Raj Kumar Raj Kumar vs State Of Rajasthan
2023 Latest Caselaw 9147 Raj

[2023:RJ-JD:37658]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3782/2010

1. Raj Kumar Raj Kumar S/O Late Bansi Lal Kothari aged 51 years.

2. Smt. Gyanu D/o Moti Lal Vijayvargiya W/o Raj Kumar, Villege- Sanwad, Tehsil- Mavli, District- Udaipur. Through Lr's 2/1. Shivani Kotrhari D/o Late Smt. Gyanu, Aged About 26 Years, R/o Villege- Sanwad, Tehsil- Mavli, District- Udaipur 2/2. Mayank Kothari S/o Late Smt. Gyanu, Aged About 23 Years, R/o Villege- Sanwad, Tehsil- Mavli, District- Udaipur

----Petitioners Versus

1. State of Rajasthan through the District Collector, udaipur. 2 The Municipal Board, Fatehnagar- Sanwad, Tehsil- Mavli, District- Udaipur, Rajasthan.

3 The Executive Officer, Municipal Board, Villege- Sanwad, Tehsil- Mavli, District- Udaipur.

4 The Deputy Director, Local Self Government, Udaipur.

                                                                   ----Respondents


For Petitioner(s)           :     Mr Ravi Bhansali, Sr Advocate
                                  assisted by Mr. Kalpatru Tripathi
For Respondent(s)           :     Mr Kapil Joshi



                HON'BLE DR. JUSTICE NUPUR BHATI

                                   Judgment

Reserved on:           01/11/2023
Pronounced on:          06/11/2023

1.     Though    the   matter       was      listed     in    'Orders   on   Interim

Application' Category but on the joint request of both the counsel

for the parties, the matter is heard finally today itself.

2. The present writ petition is preferred under Article 226 and

227 of the Constitution of India, claiming following reliefs:

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that this writ petition may kindly be allowed and by a writ, order or direction, the non-petitioners may kindly be directed to allot Abadi land to the petitioners in exchange of their land as agreed between the parties.

In the alternative, the non-petitioners may kindly be directed to make payment of cost of the land to the petitioners as per the present market rate of the land of the petitioners or the agreed Abadi land which was to be allotted to them.

Any other appropriate order or direction which is found just and proper may kindly be passed in favour of the petitioners.

2. Brief facts of the case are that the petitioners are the Khatedars

of the land bearing Aaraji Nos. 1036 and 1037 situated in village

Sanwad, tehsil Mawli, district Udaipur, which are in the names of

the petitioners No.1 and 2.

3. On 30.3.2007, for extension of the building of Public Health

Centre, Sanwad for raising construction of quarters and other

facilities under the Nation Rural Health Mission Scheme, land was

required to be made available to the Municipal Board, for which a

sanction of Rs.43 lacs was made by the State Government. Since

the vacant land was not found available and in absence thereof

the amount of Rs.43 lacs sanctioned by the State Government was

required to be returned, therefore, it was decided to have a site

inspection regarding availability of suitable land adjacent to Public

Health Centre and for submission of the report. In pursuance of

the decision dated 30.3.2007 (Annexure-3), it was decided that

Aaraji No. 1036 and 1037 belonging to the petitioners are nearer

to the Public Health Centre and on 27.2.2008, by a proposal, it

was decided that the land of the aforesaid Khatedars may be

[2023:RJ-JD:37658] (3 of 13) [CW-3782/2010]

taken as per the mutual consent for the consideration of cost or

allotment of Aabadi land. For that purpose, the consent was taken

from the competent authority and permission was also given by

the Administration and finance departments and for that purpose,

the Chairman and the Executive Officer of the Municipal Board

were authorized to do so.

4. Thereafter on 11.4.2008 in Municipality Fatehnagar Sanwad

Office report (Annexure-1) it was mentioned that Aaraji Nos. 1036

and 1037 are in the names of the petitioners No.1 and 2 and it

was decided that proposals be sent to the petitioners for giving

their land for construction of the building for Public Health Centre

in exchange of the cost or Aabadi land. In pursuance thereto, the

proposals were sent to the petitioners and the petitioners showed

their readiness regarding that proposal for allotment of Aabadi

land of the Municipality in exchange of their land. Thereafter the

land of the petitioners measuring 4737 and 8500 square feet, total

13237 square feet was taken.

5. In the General Meeting of the Municipal Board a report

dated 2.3.2007 regarding proposal No.2 was passed wherein the

letter of the Municipal Board dated 7.3.2007 (Annx.2.) was issued

wherein it has been mentioned that as for construction of building

for the Public Health Centre, Rs.46,00,000/- have been sanctioned

by the State Government and in absence of land, the amount will

be returned to the Government and therefore it was decided that

the land of the Khatedars situated near the Public Health Centre

[2023:RJ-JD:37658] (4 of 13) [CW-3782/2010]

may be acquired and made available to the Municipal Board for

which administrative and financial sanction was taken.

6. A letter dated 30.3.2007, (Annx.3.) was issued by the

Executive Officer of the Municipal Board to the Patwari of the area

for making site inspection of the land situated adjacent to the

Public Health Centre. The Chairman and the Executive Officer,

vide letter dated 7.3.2008 (Annx.4.) in consequence of the

meeting dated 27.2.2008 relating to proposal No.2 which is in

respect of taking additional land for construction of building for

quarters and providing other facilities, and it was unanimously

decided that the adjacent land for the Public Health Centre may be

taken as per the mutual consent either by paying the cost or

providing Abadi land in exchange of the land taken from the

Khatedars.

7. A letter was written by the Municipal Board to the Patwari on

15.3.2008 (Annx.5) for sending the copies of the Aaraji No. 1036

and 1037. Thereafter on 23.4.2008, the Municipal Board sent

letters (Annx.8 and Annx.9) to the petitioners to the effect that

they should give their written consent regarding giving their land

in question either in exchange of Abadi land or cost of the land

may be taken and surrender the same so that the proceedings for

surrender of their land in question may be completed. In

pursuance thereto, the petitioners gave their written consent for

allotment of Abadi land in exchange of their land vide their letter

dated 30.7.2008, (Annx.10 and 11). Furthermore letters were

[2023:RJ-JD:37658] (5 of 13) [CW-3782/2010]

written by the petitioners regarding surrender of their land

(Annx.12 and Annx.13).

8. Thereafter the Municipal Board did not allot the Abadi land to

the petitioners and, therefore, the petitioners made

representations dated 6.1.2009 (Annx.14). Thereafter on

06.2.2009 (Annx.15), the Municipal Board issued a letter to the

Deputy Director, Local Self Government, Udaipur mentioning

therein that the land of the petitioners measuring 13237 square

feet has been taken with their consent to the effect that in

exchange of their land, the Abadi land situated at Fatehgarh road

will be given to them and as per the proposal dated 27.2.2008

unanimous decision was taken in the meeting for giving Abadi land

to the petitioners in exchange of their land.

9. The Deputy Director, Local Self Government, vide letter

dated 18.2.2009, (Annx.16.) issued a letter to the Municipal Board

that the Office of the Deputy Director, Local Self Government is

not authorized and, therefore the proposal may be sent to the

State Government by the Municipal Board. On 31.7.2009

(Annx.17.), the Municipal Board sent a letter to the District

Collector, Udaipur mentioning therein that as per the General

Meeting of the Municipal Board dated 2.3.2007 and the proposal

No.2 dated 27.2.2008, it has been unanimously decided that the

land of the Khatedars situated in the eastern side of the Public

Health Centre may be taken from the Khatedars by their mutual

consent in exchange of Abadi land or the cost of the land. In

pursuance thereof, petitioners (Khatedars) have given their

[2023:RJ-JD:37658] (6 of 13) [CW-3782/2010]

consent for giving their land in exchange of Abadi land situated at

Fatehnagar road and the Municipal Board decided to give to the

Khatedars the cost or Abadi land.

10. That on 14.10.2009, (Annx.18.) the petitioners again made

representations to the Municipal Board to give them Abadi land in

exchange of their land, as per the mutual settlement between the

petitioners and the respondents. The Municipal Board declined to

give Abadi land to the petitioners on the pretext that there is a

news item published in the newspaper regarding surrendering the

land by the petitioners free of cost.

11. The Petitioners being aggrieved with the order dated

29.12.2009 (Annx.19), the petitioners preferred this writ petition

12. Learned Senior Counsel for the petitioners submitted that the

petitioners are the Khatedars of Aaraji No.1036 and 1037, since

the building of the Public Health Centre was to be expanded for

the interest of the villagers, the petitioners gave their written

consent for surrendering their land in exchange of Abadi land. He

further submitted that though the respondents have taken the

land of the petitioners and raised construction thereon but now

the respondents have declined to allot Abadi land to the

petitioners in exchange of their land despite the fact that a

settlement regarding allotting Abadi land in exchange of the

petitioners' land was arrived at between the petitioners and the

respondents. Thus, the impugned order dated 29.12.2009

(Annx.19) by the Municipal Board not to allot Abadi land to the

[2023:RJ-JD:37658] (7 of 13) [CW-3782/2010]

petitioners, is wholly illegal, unreasonable, unjust and contrary to

the law.

13. Learned Senior Counsel for the petitioners also submitted

that the land in question of the petitioners have been taken by the

Municipal Board for expansion of the building of the Public Health

Centre after arriving at a settlement with the petitioners, who

agreed to surrender their land in exchange of Abadi land and it

was acceded to by the respondents then the respondents are

estopped to resile therefrom and decline to allot the Abadi land to

the petitioners simply on the basis of news item to the effect that

the land was surrendered by the petitioners free of cost. He

further submitted that the documents produced clearly reveal that

the land have been surrendered by the petitioners as per the

mutual agreement between the parties with the condition that the

land has been surrendered by the petitioners in exchange of Abadi

land and the respondents agreed thereto. Thus, the respondents

are estopped to resile from their promise and merely in the garb

of news item, the petitioners cannot be allowed to suffer.

14. Learned Senior Counsel for the petitioners also submitted

that there is document submitted in any of the proceedings

initiated by the respondents in order to show that the petitioners

have surrendered their land free of costs. He further submitted

that the documents annexed with this writ petition clearly reveal

that the petitioners surrendered their land in exchange of Abadi

land and the settlement to this effect was arrived at between the

parties and simply on the basis of news item published in the

[2023:RJ-JD:37658] (8 of 13) [CW-3782/2010]

news paper, it cannot be said that the petitioners have

surrendered their land free of costs. He also submitted that there

was no occasion and there cannot be any reason for the

petitioners to surrender the land free of cost and there is no

recital to this effect in the proceedings initiated by the Municipal

Board itself.

15. Learned Senior Counsel for the petitioners further submitted

that as per the documents of the Municipal Board, it is clear that

on 27.2.2008, unanimously proposal No.2 was passed for taking

additional land of the petitioners to raise construction as per the

settlement either by payment of cost of the land or giving Abadi

land in exchange of the land of the Khatedars and in this respect,

permission of the competent authority has been taken. He also

submitted that for surrendering the land, the administrative and

financial sanctions had been given and for that purpose, the

Chairman as well as the Executive Officer of the Municipal Board

had been authorized. After the aforesaid proposal, on 23.4.2008,

(Annexure-8) the Municipal Board sent the proposals to the

petitioners and thereafter the petitioners gave their consent for

giving their land in question to the Municipal Board in exchange of

Abadi Land. He further submitted that, thereafter the Municipal

Board has proceeded to allot the Abadi land to the petitioners;

however despite unanimous decision taken by the Municipal Board

in its earlier General Meeting, now the Municipal Board has resiled

from its earlier decision and the promise to give Abadi land to the

petitioners in exchange of their land in question taken by the

Municipal Board. He also submitted that it is an undisputed fact on

[2023:RJ-JD:37658] (9 of 13) [CW-3782/2010]

record that the building staff quarters and other facilities had been

constructed on the land in question of the petitioners and the

Municipality has come totally with an inconsistent and different

stand that there is some news item published in the news paper

that the land have been given by the petitioners free of cost. He

further submitted that as per the law, the Municipality cannot be

allowed to change its own stand and decision taken earlier and the

stand taken by the Municipal Board vide impugned order Annx.19

dated 29.12.2009 is not mentioned in any of the proceedings

initiated by it, thus, once the Municipal Board has taken the land

of the petitioners and raised the requisite constructions of building

on the land in question of the petitioners then the Municipal Board

cannot be allowed to decline to give Abadi land to the petitioners.

In support of his submissions learned Counsel for the petitioners

placed reliance on the judgments passed by the Hon'ble Apex

Court in the case Yamuna Express Way Industrial

Development Authority Etc. v/s Shakuntala Education and

Welfare Society reported in (2022) 0 Supreme (SC)482;

Rajhan Narendra Rout v/S State of Maharashtra reported in

(2022) 0 AIR (SC) 3992; Motilal Padampat Sugar Mills Co.

Ltd. v/s State of Uttar Pradesh & Ors. reported in AIR 1979

SC 621; B.L. Sridhar v/s K.M. Munireddy reported in (2003)

2 SSC 355; State of Bihar and others vs Kalayanpur cement

Ltd. reported in (2010) 3 SCC 274.

16 Per Contra learned counsel for the respondents Nos.2 and 3

submitted that in view of the correspondence made by the Deputy

[2023:RJ-JD:37658] (10 of 13) [CW-3782/2010]

Director, Regional Local Self Department, Udaipur dated

18.02.2009 (Annexure-16), the petitioners cannot be allotted

Abadi land in lieu of the agricultural land surrendered by him in

light of the provisions of the Rajasthan Municipality Act 1959.

Learned counsel for the respondents Nos.2 and 3 also submitted

that for the purpose of raising construction of quarters and other

facilities for the benefit of general public, the petitioners had

agreed to surrender their land upon the condition that in

exchange, they may be allotted the Abadi land and the

respondents had agreed to their condition.

17. Learned counsel for the respondent further submitted that it

is an admitted position that the Municipal Board had made a

communication with the petitioners on 23.04.2008 (Annexure-8)

for the purpose of giving written consent for surrendering their

land in exchange of Abadi land or cost of the land and the

petitioners had duly surrendered their land. Learned counsel for

the respondent also submitted that in the general meeting of the

Municipal Board, a unanimous decision was taken that as the

petitioners stated that the land in question had been surrendered

free of cost to the respondents and the same was published in the

newspaper, thus, the petitioners would not be allotted the land in

exchange of the land surrendered by them.

18. Heard learned counsel representing the parties; perused the

material available on record and the judgments cited at the Bar.

19. This Court Observes that it is an admitted position that the

respondents in consequence of the meeting dated 27.02.2008

passed Proposal No.2 for the purpose of taking additional land for

[2023:RJ-JD:37658] (11 of 13) [CW-3782/2010]

construction of building for quarters and providing other facilities.

Vide Proposal No.2 placed on record as Annexure-4, it was

accordingly decided that the adjacent land to the Public Health

Centre may be taken with the mutual consent either by paying the

cost of the land or providing an alternate Abadi land in exchange

of the land taken from the Khatedars. This Court further observes

that thhe respondents found the land of the petitioners

appropriate and adjacent to the Public Health Centre and

accordingly made a communication (Annexure-8) to the

petitioners for surrendering the land in question to the

respondents on exchange basis for which, the petitioners can

either opt for an Abadi land or take the cost of the land.

20. This Court also observes that the petitioners submitted the

reply dated 30.07.2008 (Annexure-10) to the respondents while

submitting that he is willing to surrender the land in question with

a condition that he may be given an Abadi land in exchange. The

petitioners duly surrendered the land in favour of the respondents

by way of surrender letter dated 31.03.2008 (Annexure-12).

21. This Court further observes that it is not a disputed position

that the respondents have duly raised construction upon the land

in dispute and are also utilizing the infrastructure raised

thereupon. The petitioners have specifically stated in the reply

dated 30.07.2008 (Annexure 10) that the said land is being

surrendered by him only on the condition that he may be given an

Abadi land in exchange. The respondents after the petitioners

surrendered the land upon the said condition and after the

construction has been raised from the said land, had passed the

[2023:RJ-JD:37658] (12 of 13) [CW-3782/2010]

impugned order dated 29.12.2009 (Annexure-19) for whimsical

reasons that the petitioners at the inauguration ceremony, had

offered the said land without any cost, as the same was published

in the newspapers, thus, the petitioners cannot be offered Abadi

land in exchange. Moreover, the respondents have not placed any

document or any evidence in order to show that the petitioners

were willing to surrender the land in question free of cost. Further

the respondents have also admitted in their reply that they had

agreed to allot the petitioners Abadi land in exchange to the land

offered by the petitioners which is also substantiated by a bare

perusal of the documents placed on record as dated 06.02.2009

(Annexure 15).

22. Thus in view of the aforesaid discussion and in view of the

fact that once the respondents had agreed to give the petitioners

Abadi land in exchange of the land offered by the petitioners and

the petitioners had specifically consented and surrendered the

land upon the condition that he may be given an Abadi land in

exchange of the land offered by him, the impugned order dated

29.12.2009 (Annexure-19) deserves to be quashed and set aside.

Furthermore, the respondents are directed to allot the petitioners

Abadi land in exchange to the land offered by the petitioners

within a period of 'one month' from the date of receipt of certified

copy of this order. Thus the writ petition is hereby allowed.

23. Stay application as well as all other pending applications, if

any, also stand disposed of accordingly.

(DR. NUPUR BHATI),J 156-/devesh/-

[2023:RJ-JD:37658] (13 of 13) [CW-3782/2010]

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