Dismissed

Municiaoal Board Kishangarh v. Chand Mal and Co. and Ors.

Rajasthan HC5 Dec 2018SAW/986/2008

Case brief

AI extract

What is this about?

Division Bench dismissed the appeal against a Single Judge's order allowing a writ petition. The court held that a registered lease-deed cannot be cancelled by executive order, natural justice principles were violated due to delayed action on a notice, and the writ petition was not time-barred as the petitioner actively litigated in civil courts.

What did the court decide?

The appeal was dismissed; the impugned judgment dated 30.04.2007 allowing the writ petition was set at rest as correct in law and fact.

Municiaoal Board Kishangarh Vs Chand Mal and Co. and Ors. — Land Acquisition | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal (Writ) No.986/2008

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S.B. Civil Writ Petition No.2211/2002

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Municipal Board, Kishangarh, District Ajmer through its Chairman, Kishangarh

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----Appellant

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Versus

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Chand Mal & Company Kishangarh Madan Ganj, District Ajmer, a registered partnership firm through its partner Shri Chand Mal Jain, R/o Kishangarh Madan Ganj, District Ajmer

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State of Rajasthan through Revenue Secretary, Government Secretariat, Jaipur

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District Collector, Ajmer

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----Respondents

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For Appellant(s) : Mr. G.K. Garg, Senior Advocate, assisted by Ms. Anita Aggarwal For Respondent(s) : Mr. R.P. Garg with Mr. Shubham Jain for respondent no.1 Mr. Sunil Kumar Sharma for respondents no.2 and 3

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment

//Reportable//

05/12/2018

Per Hon’ble Mr. Justice Mohammad Rafiq:

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This appeal has been filed challenging the judgment dated 30.04.2007 of the learned Single Judge by which the writ petition as also the revision petition filed by the respondent no.1 were allowed with direction to the Municipal Board, Kishangarh (appellant herein), not to interfere with the peaceful possession of

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(2 of 14)

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the respondent no.1 on the land in question measuring 4500 square yards in khasra no.278 in Kishangarh.

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The facts of the case are that the District Collector, Ajmer, vide letter dated 07.11.1963, informed the respondent no.1 M/s. Chand Mal & Company, Kishangarh, that its case was duly forwarded with recommendation to the Government to sanction allotment of 2¼ bigha of government agricultural land on terms similar to what are given in earmarked industrial area under the Rajasthan Industrial Areas Allotment Rules, 1959. The District Collector, Ajmer, vide letter dated 09.12.1964 informed the respondent no.1 that the State Government has accorded sanction for allotment of land measuring 4500 square yards of khasra no.278 in Kishangarh for industrial purpose on the terms and conditions mentioned therein. The District Collector on 14.12.1964 executed a lease for a period of 99 years in favour of M/s. Chand Mal & Company. The Municipal Board claimed the land to have vested in it as it was not cultivated since 1944 and also claimed to be in possession of the land over which a cattle fair was held every year for one week beginning from the day succeeding Deepawali.

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The respondent no.1 wanted to raise construction on that land but the District Collector restrained him from raising the construction. He filed Writ Petition No.763/1966 in this court, which was allowed vide judgment dated 11.11.1966 holding that the District Collector could not, by a mere executive order, restrain the respondent from raising the construction. However, it was left open to the Municipal Board to proceed according to law if the constructions were raised in contravention of the provisions of the Rajasthan Municipalities Act, 1959 (for short, ‘the Act of 1959’).

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The respondent no.1 made another attempt to raise construction. The Municipal Board intervened and prevented him from raising constructions. Whereupon, the respondent no.1 filed a Civil Suit No.2/67 for permanent injunction in the court of Munsif, Ajmer. The suit in fact was decreed on 12.11.1968. The Municipal Board there-against preferred Regular Civil First Appeal No.93/1969 before the Additional District Judge, Ajmer, which was dismissed vide judgment and decree dated 18.08.1969 upholding the judgment and decree dated 12.11.1968, but it was observed that if constructions were raised in contravention of the provisions of Section 170 of the Act of 1959, it would be open to the Municipal Board to stop the construction. The Municipal Board preferred S.B. Civil Second Appeal No.474/1969 before this court and this court vide judgment dated 08.01.1973 dismissed the second appeal, however, the observations made by the District Judge with regard to the effect of Section 170 of the Act were not disturbed.

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When the respondent no.1 started raising constructions on the suit land without obtaining the permission from the Municipal Board under Section 170 of the Act of 1959, the Municipal Board again intervened in the matter. It was at this stage that the respondent no.1 put the decree of injunction for execution by filing Execution Case No.71/1974, it was resisted by the Municipal Board, who filed objections under Section 47 of the CPC on 13.09.1974 claiming that the respondent no.1 was not entitled to raise any constructions on the land in question without permission of the Municipal Board, but the learned Executing Court, namely, the Munsif & Judicial Magistrate, 1^st Class, Ajmer, vide order dated 16.11.1974 rejected the objections of the Municipal Board. Aggrieved thereby, the Municipal Board filed Regular Civil First

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Appeal No.120/1974, it was dismissed by the court of District Judge vide order dated 03.04.1975. S.B. Civil Regular Second Appeal No.17/1975 filed against the said judgment and decree at the instance of the Municipal Board was dismissed by this court vide judgment dated 23.07.1986. The Municipal Board filed Civil Appeal No.2133/1987 on grant of leave before the Supreme Court, which came to be allowed by order dated 11.02.1999 remanding the whole case to the Executing Court with direction to consider the effect of the two documents, namely, the Government order dated 01.11.1976 by which the lease in favour of the respondent no.1 purports to have been cancelled, and the Notification dated 22.01.1976 by which the land in question has been included in the Municipal limits. The Executing Court was directed to rehear the objections under Section 47 of the CPC filed by the Municipal Board.

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Pursuant to order of the Supreme Court dated 11.02.1999, the Municipal Board submitted objections on 30.09.2000 by way of Civil Miscellaneous Application No.131/2000, to which the respondent no.1 filed reply on 13.10.2000. The Executing Court, i.e., Civil Judge (Junior Division), Ajmer, District Ajmer, considered the Execution Application No.131/2000 (Objections) filed by the Municipal Board under Section 47 of the CPC and rejected the Civil Execution No.71/1974 filed by the respondent no.1 vide order dated 25.01.2001. M/s. Chand Mal & Company, Kishangarh, challenged that order by filing Civil Revision No.274/2001 and Civil Writ Petition No.2211/2002 . Learned Single Judge allowed both – the writ petition and the revision petitioner by common judgment dated 30.04.2007. Hence this appeal.

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Mr. G.K. Garg, the learned senior counsel for the appellant, submitted that the learned Single Judge has allowed the writ petition challenging the order of cancellation of the lease-deed on the ground that no notice was served on the respondent no.1 before cancelling the allotment of the lease-deed, whereas the fact is that the respondent no.1 admitted receipt of the notice and submitted reply thereto and therefore the respondent no.1 cannot contend that neither notice was served on him nor opportunity of hearing was provided to him. The learned counsel for the appellant has referred to the application filed by the appellant seeking vacation of the stay order passed by this court in appeal. It is argued that in para 9 of the application filed by respondent no.1 for vacation of the stay order, the respondent no.1 has alleged that the State Government without any notice cancelled the registered lease deed in favour of the respondent no.1 vide order/letter dated 01.11.1976. The appellant refuted this question in reply filed to the aforesaid application and categorically stated that a show-cause notice was issued by the State Government on 15.10.1966 to M/s. Chandmal & Company. This fact was also pleaded by the Municipal Board in the written statement filed by it in the injunction suit being Civil Suit No.2/1967. The respondent no.1 filed rejoinder to the aforesaid reply contending that the said notice dated 15.10.1966 was duly replied and the State Government did not take action for ten years, therefore, the notice stood lapsed and no fresh notice was given before passing the cancellation order dated 01.11.1976. The cancellation of the lease-deed ten years thereafter was thus made in breach of the principles of natural justice. This is thus clearly evident that the show cause notice was duly served on the respondent no.1 and

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there was sufficient compliance of the principles of natural justice, which he also replied. The learned counsel for the appellant submitted that the writ petition was filed by the respondent no.1 in the year 2002 challenging the order dated 01.11.1976 with inordinate delay of 26 years. Contention of the respondent no.1 that the order of cancelaltion was not served on them is emphatically refuted. The fact about the cancellation of the leasedeed was for the first time mentioned in the written statement filed by the appellant in the injunction suit of the respondent no.1. It was thereafter that the appellant filed the copy of the order dated 01.11.1976 and also the Notification dated 22.01.1976 extending the municipal limits of Kishangarh. The respondent no.1 therefore cannot be allowed to say that the copy of the order of cancellation was not served or that he was unaware about the aforesaid order.

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Mr. G.K. Garg, the learned senior counsel, argued that even though the appellant filed the SLP against the impugned judgment directly before the Supreme Court but the same was dismissed as withdrawn by order dated 05.09.2007. The writ petition was filed with inordinate delay of 26 years from the date of cancellation of the lease-deed. The learned Single Judge was wholly unjustified in entertaining the writ petition, which was filed with enormous delay of 26 years. The learned Senior Counsel, referring to prayer clause (c) of the writ petition, submitted that therein the respondent no.1 has prayed for a direction to the Municipal Board, Kishangarh, that the respondent no.1, who has been deprived of his property unlawfully by the Municipal Board, be suitably compensated, which clearly shows that the respondent no.1 was dispossessed from the property unlawfully and, therefore, the learned Single Judge erred

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in law in directing the Municipal Board not to interfere with the peaceful possession of the respondent no.1, which is contrary to his own saying. The learned senior counsel argued that the revision petition was allowed consequent upon acceptance of the writ petition, which is evident from para 7 of the impugned judgment, wherein the learned Single Judge observed that “Since the very foundation of the impugned order in the revision petition dated 25.1.2001 was existence of the order dated 1.1.1976 and the misconstruction of the notification dated 17.1.1976 extending the municipal limits, both these grounds having been decided in favour of the petitioner, the impugned order allowing the objection of the Municipal Board and rejecting the Execution Application No.131/2000 cannot be sustained...”.

¶42

The learned senior counsel argued that the writ petition under Article 226 of the Constitution is essentially a remedy of discretion, which ought not to be exercised in a matter filed with inordinate delay of 26 years. The learned senior counsel in support of the argument, has relied on the judgment of the Supreme Court in Chandigarh Administration and Another Vs. Jagjit Singh and Another – (1995) 1 SCC 745 and New Delhi Municipal Council Vs. Pan Singh and Others – (2007) 9 SCC 278 .

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The learned senior counsel for the appellant has also submitted that the learned Single Judge has erred in law in taking a view that since the lease-deed was registered in favour of the respondent no.1 under the Indian Registration Act and it could be cancelled only by filing a regular civil suit. The appellant had been contesting the matter before different forums including upto the Supreme Court. If eventually this court is not persuaded to allow

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the present appeal, the appellant should even now be granted liberty to file the civil suit seeking cancellation of the lease deed.

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Mr. R.P. Garg, the learned counsel for the respondent no.1, has opposed the appeal and submitted that it is well settled proposition of law that the lease-deed cannot be cancelled by an executive or administrative order. Reliance in this connection is placed on the judgment of this court in M/s. Anukampa Avas Vikas Pvt. Ltd. and Another Vs. State of Rajasthan – WLC (Raj.) 2009 (1) 332 . It is submitted that even if it is assumed though denied that notice was served on the respondent no.1 on 15.10.1966 to which he submitted reply, that cannot be taken as true compliance of the principles of natural justice to justify order of cancellation of allotment passed ten years thereafter on 01.11.1976. It is submitted that the order dated 01.11.1976 was never served on the respondent no.1. In fact, this order was internal correspondence, which is evident from the fact that this letter was addressed to the District Collector, Ajmer. In that letter, the lease-deed was not cancelled, what was cancelled was allotment letter dated 09.09.1964. The lease-deed has been executed in favour of the respondent no.1 by the District Collector, Ajmer, on behalf of the Government. Therein, it is clearly mentioned that the possession of the land has also been handed over to the respondent no.1. The respondent no.1 continuously remained in possession of the disputed land and the finding to that effect has been recorded by all the courts below.

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It is argued that the present appeal is liable to be dismissed because the appellant Municipal Board initially filed the SLP before the Supreme Court and when the Supreme Court was not convinced to entertain the SLP, the appellant sought to withdraw

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the same and the Supreme Court therefore dismissed the same as withdrawn by order dated 05.09.2007. No liberty, however, was sought by the appellant Municipal Board to file Special Appeal before the High Court. The learned counsel argued that expansion of the municipal limits of the Municipal Board, Kishangarh, does not automatically amount to cancellation of the allotment made in favour of the private citizens by the State Government. It is submitted that while the judgment passed in the writ petition has been challenged but that of the revision petition has still not been challenged.

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It is argued that the writ petition filed by the respondent no.1 could not have been dismissed on the ground of delay as the respondents have all alone been contesting the matter before the Civil Court by filing injunction suit and when it was decreed in their favour, before the court of District Judge in the first appeal filed by the Municipal Board and thereafter before this court in the second appeal. Even the execution itself was remitted back to the executing court under the order of the Supreme Court. The order passed in the revision petition has not been challenged. The present appeal against the judgment passed in the Writ Petition No.2211/2002 is liable to be dismissed.

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We have given our anxious consideration to rival submissions and perused the material on record.

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The facts, which cannot be and are not disputed, are that the allotment of the land in favour of the respondent no.1 was made by the Government. It was pursuant to the order of the Government that the District Collector executed a sale-deed in favour of the respondent and got the same registered under the Indian Registration Act on 14.12.1964. The learned Single Judge

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in the present case has held that the aforesaid lease-deed could not be cancelled by the executive order. But what is significant to note is that the lease deed has not been cancelled thereby. In fact, it was a communication sent by the Deputy Secretary to the Government in its Department of Revenue, to the District Collector, Ajmer, cancelling the allotment of the land made in favour of the respondent no.1 by the order of the Government dated 01.11.1976. This by itself cannot have the effect of cancellation of the lease-deed, which was executed in favour of the respondent no.1 by the District Collector. The lease-deed was registered on 14.12.1964. There is no order on record showing that the lease-deed has been cancelled. The learned Single Judge has taken the view that the lease-deed can be got cancelled only by filing a regular civil suit. This view of the learned Single Judge finds support from another judgment of the learned Single Judge of this court in M/s. Anukampa Avas Vikas Pvt. Ltd. , supra, wherein it has been held that once the sale-deed has been registered in favour of the vendee and possession has been delivered by the vendor, who executed the sale-deed, the latter loses its right to cancel the sale on the ground that some illegality was committed. The sale can be cancelled only by filing a regular civil suit. Mere filing of the SLP by the appellant Municipal Board before the Supreme Court and withdrawing the same and then filing the Special Appeal before the Division Bench of this court cannot be a ground not to entertain and decide the appeal on merits. Filing and then withdrawing the SLP does not have the effect of merging the judgment of this court with the said order as the doctrine of merger cannot be held applicable to such a situation.

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The writ petition filed by the respondent no.1 also could not be dismissed on the ground of delay and laches because the respondent no.1 has been continuously contesting the matter before the Civil Court. He filed the Civil Suit No.2/1967 for injunction, which was decreed by the civil court vide judgment dated 12.11.1968. The aforesaid judgment and decree was subjected to challenge in the first appeal by the respondent no.1 before the first appellate court. When the first appeal was dismissed, the second appeal was filed, which too was dismissed. The judgment thus attained finality. It was thereafter that the respondent no.1 moved the execution application before the court in 1974. The appellant Municipal Board filed objection under Section 47 of the CPC in the execution petition, which was dismissed by the order dated 16.11.1974 and thereafter the appeal filed by the appellant was dismissed on 03.04.1975 and then the second appeal was dismissed on 23.07.1986. No doubt, the judgment passed in the second appeal was set aside by the Supreme Court by order dated 23.07.1986 in the appeal filed thereagainst by the Municipal Board on the premise that this court failed to examine the effect of the Notification dated 22.01.1976 extending the limits of the municipality and the order dated 01.11.1976 cancelling the lease-deed. But the fact is also that the appellant Municipal Board has not challenged the order passed by the Single Bench allowing the revision petition filed by the respondent no.1. The judgment being composite both deciding the revision as also the writ petition, this technicality should not detain this court from examining the correctness of the judgment on both the aspects. On scrutiny, we find that the order dated 01.11.1976 in fact is not an order cancelling the lease-deed but a

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simple communication sent by the Government to the District Collector cancelling the allotment. No steps were taken by the District Collector to get the lease-deed cancelled by filing a civil suit before the court of law or otherwise. This issue is well settled that a duly registered sale-deed cannot be cancelled merely by an administrative order. Moreover, another Notification dated 22.01.1976 expanding the municipal limits of the municipality also would be inconsequential to the validity of the allotment and registration of the lease-deed in favour of the respondent no.1. The allotment made and the lease-deed executed in favour of the respondent no.1 and all other persons of the agriculture land situated outside the municipal limits cannot be taken to have been automatically cancelled just because the limits of the municipality have been expanded as to bring such lands within the municipality.

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Whether or not the principles of natural justice have been complied with will have to be viewed in the facts and situation of the case. Although it is true that the principles of natural justice cannot be put in a strait jacket formula, yet their compliance has to be made in a meaningful way. In the present case, although the appellant Municipal Board has not produced copy of the notice, however, they have asserted in the application for vacation of the stay order that notice of cancellation of the lease-deed was served on the respondent no.1, to which he submitted reply and thus the compliance of the principles of natural justice was fully made. In the first place, it should be noted that the order dated 01.11.1976 does not convey the cancellation of the lease-deed but it is merely a communication from the Deputy Secretary to the Government in its Revenue Department to the District Collector, Ajmer, conveying

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the decision of the Government to cancel the allotment of the land made in favour of the respondent no.1. The lease deed as such has not been cancelled. Secondly, the copy of that letter was never endorsed to the respondent no.1, although the appellant Municipal Board asserts that the same was produced on record of the injunction suit filed by it in the year 1967 as also the second appeal before this court in the year 1969.

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Be that as it may, when the appellant Municipal Board admits that the respondent no.1 submitted reply to show-cause notice and also does not dispute the fact that it did not take any action on the said notice even after receiving reply for as long as ten long years, the respondent no.1 may not be fully unjustified when he contends that he was all throughout under the bona-fide impression that the appellant Municipal Board was convinced with what he submitted in the reply to the show-cause notice. Such a belief can be described as a legitimate belief on his part. The show-cause notice aforesaid, therefore, in the facts of the case, out-lived its purpose. Apart from the fact that the lease-deed could not have been cancelled by an administrative order, which, in fact, has not been cancelled in the present case, even the cancellation of the allotment by order dated 01.11.1976, ten years after the service of show-cause notice and reply thereto submitted by the respondent no.1, cannot be held to have been made in conformity with the principles of natural justice.

¶69

The writ petition was filed in the year 2002, which was allowed vide judgment dated 30.04.2007 and the present appeal is being decided in the year 2018. The finding of possession has been recorded in favour of the respondent no.1 by the civil court as a specific issue, being issue no.1 was framed in the injunction

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suit, finding on which was recorded in favour of the respondent no.1 as the plaintiff in that suit and was upheld by the District Judge in the first appeal and by this court in the second appeal. Against the background of these facts, the writ petition of the respondent no.1 could not have been dismissed on the ground of delay and laches. The impugned judgment of the learned Single Judge in deciding the writ petition on merits and not dismissing the same on the ground of delay and laches, cannot be faulted.

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In view of these facts, the judgments cited by the learned counsel for the appellant Municipal Board are distinguishable on the facts and the ratio thereof cannot be applied to the facts of the present case.

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In the result, the appeal fails and is hereby dismissed.

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(GOVERDHAN BARDHAR),J

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(MOHAMMAD RAFIQ),J

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//Jaiman//

Municiaoal Board Kishangarh v. Chand Mal and Co. and Ors.

Case brief

What is this about?

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Municiaoal Board Kishangarh v. Chand Mal and Co. and Ors.

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