Dismissed

Municipal Council, Pali v. Mohan Lal and Anr.

Rajasthan HC24 Sept 2014SAW/537/2014

Case brief

AI extract

What is this about?

The High Court Bench dismissed a special appeal by the Municipal Council, Pali against a Single Judge's order and a Division Bench judgment. The lower courts quashed notices requiring lease deeds for construction permission, holding that the land, originally leased for commercial purposes, could not be restricted to grain markets and that the building permission application should be processed und

What did the court decide?

Single Judge's order allowing writ petition and quashing notices was affirmed; direction to process construction application upheld; appeal dismissed.

Municipal Council, Pali Vs Mohan Lal and Anr. — Property and Title | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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JUDGMENT

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D.B. CIVIL SPECIAL APPEAL NO.537/2014

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Municipal Council, Pali Vs. Mohan Lal & Anr.

DATE OF ORDER

::: 24.09.2014

PRESENT

HON'BLE THE ACTING CHIEF JUSTICE MR. SUNIL AMBWANI HON’BLE MR.JUSTICE VIJAY BISHNOI

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Mr. T.S. Champawat, for the appellant. Mr. J.P. Joshi, Sr. Advocate assisted by Mr. Sidharth Joshi for respondents.

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BY THE COURT:

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This special appeal has been filed by the Municipal Council, Pali against the judgment dated 25.2.2014 passed by the learned Single Judge allowing the writ petition and quashing impugned notices dated 1.4.2009 and 8.6.2009 with further direction to the Municipal Council, Pali to process the application of the petitioners for grant of permission to raise construction strictly in accordance with law and the observations made in the judgment. Since the applications are pending from the year 2008, the respondent Municipal Council was directed to decide the same expeditiously preferably within two months from the date of passing of the order.

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Brief facts of the case which have given rise to the Special Appeal are that a plot of land was allotted to the respondent-petitioner for commercial purposes. After the allotment of the land was made for Dhanmandi Yojna, the project of Dhanmandi Yojna itself was abandoned. In the lease deed it is specifically provided that the land shall be used for commercial purpose. It appears that Dhanmandi could not be established at the place and in the area where the plot of land was allotted to the petitioner. Under the provisions of Rajasthan Agricultural Produce Market Act 1961, a separate area was notified as market yard for carrying on wholesale business after which no person could have carried on the business of agriculture produce except in the notified market yard.

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In the earlier round of litigation, the dispute related to a general notice given to all the allottees on 15.7.2008 to produce their lease deeds, for changing the land use from commercial to residential in accordance with a new residential scheme proposed by Nagar Prishad. A Division Bench of this Court had allowed the writ petition with the findings as follows:-

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“So far as the second ground of abandonment of the project of Dhan Mandiis concerned it is hardly relevant for cancellation of allotment for made commercial purposes. Abandoning the

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scheme of implementation of the scheme of setting up the grain market itself does not mean that land cannot be used for other commercial purposes. The lease executed n favour of the allottees put no such restriction on the user of land except for commercial purposes. If the land could not be used for grain market it can be used for commercial purposes. Moreover if the land alloted for commercial purposes is sought to be used by the allottees for other purposes in terms of the provisions of Municipalities Act, the allottee in required to make an application and such use can be permitted only on payment of conversion charges which amply take tare of interest of Municipality. Thus the two grounds disclose in the order are perse not sustainable. At this instant of time also there is no whisper that allotment when made was at too low a price to smell a rat. The approval now appears to have been made to the allottees is that if they agree to withdraw the litigation, the Municipal Council offers to allot in the same land smaller plots for residential purposes at the same price at which the plots were allotted originally wrongly which will result in covering more than half the land which will yield crores of rupees now to the Municipal Council. This is apparent from the following resolution dated 15/7/2006 reads as under:-

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“यद� समस� आब�ट� सहम� ह� एव� नय�य�लय म� ववच�र�ध�न य�चचक� वव�ड� कर ल�व� �� उनह�

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समझ"�� क� रप म� उस� य�जन� क�त म� 30 ग)ण� 60 वग+फ-ट आव�स�य भ/खण2 आब�दट� कर ��व�। जजसक� म/लय पररष� नह�� वस/ल�ग�, ननयम�न)स�र ल�ज एव� अनय र�श; आब�ट� पररष� म� जम� करव�य�ग� इस पक�र क� समझ"�� करन� पर क) ल भ/शम 29 ब�घ� 6 बबसव� म� स� आध� भ/शम आब�टन म� चल� ज�य�ग� एव� ;�ष आध� भ/शम पररष� न�ल�म� द�र� ववकय कर कर�डB रपय� क- आय अजज+� कर सक�ग�।"

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If anything, the above resolution reveals that real cause of cancellation appears to be extra ordinarily escalation in land prices which the Municipal Council wants to share. This justifies the apprehension entertained by the allottees as noticed above. The new ground sought to be raised, was declined by the learned Single Judge on the ground that the order passed by the Authority, Administrative quasi judicial or judicial affecting the rights of the parties cannot be supported from outside the reason contained in the order itself and in our view rightly so as the view taken by the learned Single Judge is in consonance with decision of Supreme Court in AIR 1952 SC page 16 (Commissioner of Police Bombay Vs. Gordhandas Bhanji) the court said that ;

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“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or

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of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they addressed and must be construed objectively with reference to the language mused in the order itself.”

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This view was consistently followed by the Courts in India through out. To illustrate that the same principle was reiterated and reinvigorated in the case of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, wherein while laying down that the expanding area of the application of principles of natural justice has made the distinction between the administrative and quasi-judicial functions no longer relevant for the purpose of examining their validity. The Court observed referring to the Gordhandas Bhaji's case (supra):-

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“When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validate by additional grounds later brought out.”

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The next question that need consideration is that progressively regular prolonged intervals of 9 years the respondents have made efforts to cancel the allotment of 1971 and no exceptional ground now been made to permit the respondent to continue with the same exercise at this distant of time merely because some new grounds were discovered. In our opinion, permitting them now to continue with the fourth innings successively when the authorities have persistently refused to adhere to basic principle of fair place since 1980. It would be permitting them to persecute the allottees rather than to proceed in accordance with law and to defeat the case of a good and fair governance. Therefore, in our opinion, these proceedings must be brought to a close now. The notice issued in 1999 for hearing being bad for want of vagueness and not informing the grounds on which proposed action is taken and the ulterior reason on which the order is founded as noticed above are also not justified to sustain the order itself, consequently dated 27.2.2002 was rightly quashed by learned Single Judge. However, we modify the direction to proceed in pursuance of notice, which we have found to be invalid and quash the notice itself to be invalid.

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Consequently, the D.B. Civil Special Appeals No.980/2007, 122/2005, 164/2005 and 687/2007 are allowed for the reasons stated above and rest of appeals by the Municipal

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Council and the State are dismissed.

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No costs.”

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Learned counsel appearing for the respondent submits that the application for construction of shops is pending since long. By the impugned notice, the Municipal Council, Pali has now directed the plot holders, who have submitted building plans, to submit documents of title as well as the lease deeds so that the applications for giving permission under Section 170(8) of the Rajasthan Municipal Corporation Act, 1959 may be considered for orders.

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Learned Single Judge held that the lease deeds were issued allowing commercial use of the land. There is no stipulation in the lease deed of using the land only for wholesale of paddy Dhanmandi. The Division Bench had decided the issue with regard to commercial use of the land and that the findings recorded by the earlier Division Bench in favour of petitioner are binding on Municipal Council, Pali.

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The Municipal Council, Pali had filed a Special Leave Petition in the Supreme Court, which was dismissed. The insistence of the Municipal Council, Pali after the dismissal of Special Leave Petition for producing the documents of title as well as the lease deed for considering the building plans is thus illegal and cannot be sustained.

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Learned counsel for the Municipal Council submits that Section 173-A of the Rajasthan Municipalities Act, 1959 and thereafter Section 194 of the Rajasthan Municipalities Act, 2009 provide for restriction of change of use of land and the power of the State Government to allow the change. He submits that the land was initially allotted for construction of shops in establishing the Dhanmandi. The land use as provided in the lease deed was for establishing shops for commercial purpose. The Municipal Corporation has thereafter changed the land use in the master plan from commercial purpose to residential purpose and thus, in case the respondents want to raise construction of the shops, they will have to seek permission of the State Government and thereafter make applications for raising constructions. He submits that a corresponding Section 194 of the Rajasthan Municipalities Act, 2009 (the new Act) provide for change the land use.

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In our view, the learned Single Judge has not committed any error in allowing the writ petition and directing the respondent-appellant Municipal Council, Pali to process the application of the petitioners for grant of permission to raise construction in accordance with lease deed, and the observations made in the judgment.

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The question as to whether the plot of land allotted to the respondent can be used for commercial purpose has been settled by the Division Bench which has become final. It is no longer open for the Municipal Council to insist that only the business of foodgrains cannot be carried out in the shop, failing which the land now earmarked for residential purpose in the master plan must be used only for residential purpose and not for any other purpose.

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We do not find any merit in this special appeal. The same is accordingly dismissed.

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(VIJAY BISHNOI), J. (SUNIL AMBWANI), ACTING CJ.

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babulal 12

Municipal Council, Pali v. Mohan Lal and Anr.

Case brief

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Municipal Council, Pali v. Mohan Lal and Anr.

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