M.M.D. Educational Extension ... vs Municipal Council, Udaipur ...
2023 Latest Caselaw 8779 Raj

[2023:RJ-JD:36232]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 122/2019

M.M.D. Educational Extension Society, Mahamaya Dadhimiti Shiksha Prashar Samiti, Shivnagar South Sundarws, Udaipur Through Its Founder Smt. Bansanti Devi Tiwari W/o Jagdish Tiwari, Age 68 Years (Raj.)

----Appellant Versus

1. Municipal Council, Udaipur, Through Its Commissioner.

2. Urban Improvement Trust Udaipur, Through Its Secretary.

3. Local Self Department, State Of Rajasthan Jaipur., Through Deputy Secretary, State Of Rajasthan, Jaipur.

                                                                    ----Respondents


For Appellant(s)              :    Mr. Paramveer Singh Champawat
For Respondent(s)             :    Mr. Anurag Shukla



              HON'BLE MS. JUSTICE REKHA BORANA

                                    Judgment

20/10/2023

1. The present appeal has been filed against the impugned

judgment and decree dated 22.11.2018 passed by the Additional

District Judge No.3 Udaipur in Civil Decree Appeal No.01/2016

(CIS No.10/2016) whereby the judgment and decree dated

28.01.2016 passed by Civil Judge (South) Udaipur, in Civil Original

Suit No.124/2008 (CIS No.1470/2014) dismissing the suit for

declaratory injunction as filed by the plaintiff, has been affirmed.

2. The plaintiff society preferred the suit with the submission

that a plot was allotted to it by U.I.T., Udaipur vide allotment letter

dated 19.10.1995 and Rs.1,00,000/- as part payment was

deposited vide cheque dated 21.03.1996. The remaining amount

was to be deposited in installments but meanwhile a

notification/circular was issued by the State Government whereby

[2023:RJ-JD:36232] (2 of 6) [CSA-122/2019]

the educational institutes were granted a relaxation of 50% in the

reserved rates of allotment. Therefore, the plaintiff also moved an

application to the State Government for grant of the said

relaxation.

3. In pursuance to the said application, sanction to allot the

land in question at 50% concessional rate and further, direction to

regularise the allotment of the plaintiff society, after recovering

the remaining amount, was granted/passed by the Local Self

Department of the State Government vide order dated

01.07.2000. But despite several requests, order dated 01.07.2000

was not implemented by the defendant authorities and hence, the

present suit was filed.

4. The case of the defendants was that the allotment order

dated 19.10.1995 stood cancelled vide letter dated 03.10.1996

and hence, the order dated 01.07.2000 was of no consequence. It

has been submitted that the order dated 01.07.2000 was passed

by the State Government in ignorance of the cancellation letter

dated 03.10.1996. It has also been submitted that the plaintiff

society, fraudulently, concealing the fact of the cancellation of the

allotment, got the order dated 01.07.2000 issued in its favour and

hence, cannot be held entitled to any relief in pursuance to the

same.

5. On basis of the pleadings of both the parties, the following

issues were framed:-

"¼1½ vk;k jkt- ljdkj uxjh; fodkl laLFkk ds 1-7-2000 ds i= ds vuqØe esa oknh] izfroknh ds fo:) nkokd`r vuqrks'k izkIr djus dk vf/kdkjh gS \ ¼2½ vk;k oknh laLFkk dk vkoaVu fnuakd 03-10-1996 dks fujLr gks tkus ls oknh dk okn iks'k.kh; ugha gS \

[2023:RJ-JD:36232] (3 of 6) [CSA-122/2019]

¼3½ vuqrks'k \"

6. The learned Trial Court while deciding issue No.1 specifically

observed that the order dated 01.07.2000 (Exhibit 3) seems to be

procured by the plaintiff, concealing the fact of the allotment

having already been cancelled. The Court, on basis of the said

observation, proceeded on to decide issue No.1 against the

plaintiff and as a consequence dismissed the suit.

7. The relevant fact to be taken note of is that during the

pendency of the first appeal, certain documents were sought to be

brought on record by the plaintiff vide an application under Order

7 Rule 14, CPC which was rejected vide order dated 13.01.2016.

The said order was assailed in a writ petition and vide order dated

25.01.2016 passed in S.B. Civil Writ Petition No.865/2016;

M.M.D Education Extension Society, Udaipur vs.

Commissioner, Municipal Council, Udaipur & Ors., the

appellant was granted liberty to assail the validity of the order

dated 13.01.2016 in the appeal.

8. In pursuance to the above liberty, a prayer was made before

the first appellate Court and, the documents as filed by the

appellant were taken on record in terms of Order 41 Rule 27, CPC

by the first Appellate Court. However, the first Appellate Court

proceeded on to confirm the finding of the learned Trial Court on

issue No.1 while observing that the proceedings were undertaken

by the appellant before the State Government while concealing

the fact of cancellation of the allotment in question. Further, the

Appellate Court went on to the extent to observe that the order

dated 01.07.2000 was passed in contravention to law and the

governing Rules, without any challenge been laid by the defendant

[2023:RJ-JD:36232] (4 of 6) [CSA-122/2019]

Department to the said order. Admittedly, there was no counter

claim on behalf of the defendants qua the order dated

01.07.2000. The first Appellate Court observed as under:-

"bl izdkj Lo;a okfn;k vihykFkhZ;k }kjk tks jkT; ljdkj ds le{k iz"uxr jkT; ljdkj ds vkns"k fnukad 01-07-2000 ds laca/k esa tks dk;Zokgh jkT; ljdkj ds ;gka dh xbZ gs mlesa okfn;k vihykFkhZ;k laLFkk }kjk iz"uxr vkoaVu fujLr djus ds laca/k esa dksbZ vfHkdFku dj tkudkjh vius Lrj ij ugha nh xbZ gS ftlls fopkj.k U;k;ky; }kjk pqukSrhxzLr fu.kZ; esa tks iSjk la[;k 8 dh ykbZu uacj 7 o mlds vkxs dh nks&rhu iafDr;ksa es okfn;k vihykFkhZ;k laLFkk }kjk vkoaVu fujLrh ds rF; dks uxj fodkl izU;kl ds le{k fNikrs gq, dk;Zokgh dh tkuk tks ekuk o Li'V fd;k gS] dh iqf'V gksrh gSA

blds vfrfjDr iSjk o fVIi.kh la[;k 40 esa l{ke izkf/kdkfjrk }kjk fcuk fof/k ijke"khZ }kjk izfroknh jsLiksMsaV i{k dks vius Lrj ij i= fy[kdj tks vkoaVu dk;Zokgh fujLr djus ds laca/k esa uxjh; fodkl foHkkx dks voxr djk;k x;k Fkk] ds laca/k esa Li'V mYys[k djrs gq, vf/kdkfjrk ds Lrj ij oknxzLr Hkw[k.M dks fnukad 08-06-2000 dh fVIi.kh ds vuqlkj izfroknh jsLiksMsaV U;kl ds dCts esa gksuk crkdj o vkoaVu fujLrh ds rF; dks Li'V mtkxj dj mDr Hkw[k.M dks vkjf{kr nj ls 50 izfr"kr ls gh vkoaVu djuk U;k;fgr esa ugha gksuk crkrs gq, blh ds vuq:i mDr rF; ds vuqlkj fu.kZ; fy;s tkus gsrq i=koyh rRdkyhu ea=h] uxjh; fodkl foHkkx dks voyksdu gsrq fHktok;k x;k Fkk fdarq rRdkyhu ea=h egksn; uxjh; fodkl foHkkx }kjk iSjk la[;k 40 esa mYysf[kr rF;ksa dks ugha ekus tkus ds laca/k esa ;k muls lger ugha gksus ds laca/k esa dksbZ fof/kd fVIi.kh fd, fcuk dsoy ek= fcuk fdlh uhfr fu;e vkfn dk mYys[k o gokyk fn;s ;g vkns"k iznku djuk crk;k gS fd ^^laLFkk dks 50 izfr"kr nj ls vkoaVu dj fn;k tkosaA** ftlls Hkh ;g mtkxj vkrk gS fd iz"uxr dfFkr okn i= ds vuqrks'k esa ftl dfFkr vkns"k fnukad 01-07-2000 dh ikyuk dk vuqrks'k pkgk x;k gS og vkns"k fcuk fdlh fof/k ,oa uhfr fu;e ds vk/kkj dk gS ftldh ikyuk Hkh gekjs fof/klEer fouez erkuqlkj vihykFkhZ;k okfn;k U;k;ky; ls djokus dk fof/kd n`f'V ls vf/kdkfj.kh ugha gSA"

9. In the specific opinion of this Court, the above observation

by the first Appellate Court is totally in excess of jurisdiction.

Admittedly, the order dated 01.07.2000 was not under challenge

and the finding qua the veracity of the same was not even

required or necessitated in the present matter. It was no one's

[2023:RJ-JD:36232] (5 of 6) [CSA-122/2019]

case that the order dated 01.07.2000 had been passed in

contravention to any law or Rule.

This Court is also of the clear opinion that the observation of

both the Courts that the order dated 01.07.2000 has been

procured while concealing the fact of cancellation of the allotment

is totally incorrect on the face of it. The documents as taken on

record by the first Appellate Court seems not even to have been

considered by the Court. A bare perusal of the said document, the

note sheet, as shown to this Court by learned counsel for the

appellant, makes it clear that the fact of cancellation of the

allotment in question was very well on record and was very well

taken into consideration by the authorities of the State

Government before passing the order dated 01.07.2000.

10. In the opinion of this Court, when the first Appellate Court

proceeded on to take the documents on record, a consideration of

the same was essential by it. The first Appellate Court either

should have considered the said documents itself or ought to have

remanded the matter to the learned Trial Court for passing fresh

orders after consideration of the said documents.

A perusal of both the orders impugned makes it clear that

the documents as taken on record under Order 41 Rule 27, CPC

were not at all considered by the Courts below. Therefore, the

findings as arrived by both the Courts below are totally contrary to

the material available on record.

11. In view of the above observations, the impugned judgment

and decree dated 22.11.2018 passed by the Additional District

Judge No.3, Udaipur is hereby quashed and set aside. The matter

is remanded back to the first Appellate Court to decide afresh

[2023:RJ-JD:36232] (6 of 6) [CSA-122/2019]

after taking into consideration the documents as taken on record

on the application under Order 41 Rule 27, CPC.

12. With the above directions, the present appeal is disposed

of. Both the parties shall appear before the first Appellate Court

on 28.11.2023. The Court would not be required to issue any

order notices/summons to the parties.

13. Stay petition and all pending applications, if any, also stand

dismissed.

(REKHA BORANA),J

93-KashishS/-

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