Dismissed

Municipal Board v. General Public Merta

Rajasthan HC23 Nov 2023CR/48/2023

Case brief

AI extract

What is this about?

This court dismissed a revision petition challenging the rejection of an application to reject a plaint seeking land allotment and injunction. The High Court upheld the lower court's view that a preliminary issue regarding the authority to allot land must be adjudicated before rejection and rejected arguments regarding mandatory notice under Section 304. The summons petition was also disposed of.

What did the court decide?

The revision petition was dismissed. The stay petition and all pending applications were disposed of.

Municipal Board Vs General Public Merta — Property and Title | Rajasthan HC (2023)

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[2023:RJ-JD:39565]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 48/2023

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Municipal Board, Merta Through Executive, Officer Ramratan Choudhary S/o Shri Shibhu Ram, Age 35 Yrs., Merta, District Nagaur.

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Municipal Board, Merta Through Chairman, Gautam Tak S/o Shri Heera Lal Tak, Age About 56 Yrs., Merta, District Nagaur.

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----Petitioners

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Versus

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General Public Merta, Through Members Of District Bar Association, Merta City- 1- Jagdish Saraswat S/o Shri Ramdev Saraswat, Resident Of Chippon Ki Pole, Merta City, District Nagaur. 2- Surendra Dadhich S/o Shri Bherulal Dadhich, Residnet Of Jalwana, Tehsil Merta, District Nagaur.

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State Of Rajasthan, Through District Collector, Nagaur. 3. State Of Rajasthan, Through Sub Divisional Officer, Merta. 4. Tehsildar, Merta.

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----Respondents

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For Petitioner(s) : Mr. Vishal Sharma For Respondent(s) : Dr. Harish Purohit

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HON'BLE MS. JUSTICE REKHA BORANA Order

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23/11/2023

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Matter comes up on an application for clarification of the interim order dated 21.04.2023 whereby further proceedings in the pending civil suit were directed to be stayed. It has been prayed in the application that it may be clarified that the stay of further proceedings in the suit would not be deemed to be a stay of the proceedings in the application for temporary injunction. However, at the request of learned counsel for the parties, the petition itself has been heard finally.

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The present revision petition has been preferred against order dated 23.02.2023 whereby the application under Order VII Rule 11 of the Code of Civil Procedure as preferred by defendant Nos.4 & 5 the Municipal Board, has been rejected.

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The facts are that a suit was preferred by the members of the Bar Association of Merta City as representatives of the General Public of Merta City for declaration, permanent and mandatory injunction with the relief for allotment of the land in dispute for the purposes of residential houses of judicial officers and further for declaring the said land to be reserved for judicial officers colony. An injunction against the Municipal Board that it be restrained from taking over possession or allotting the said land, has also been prayed for.

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In the said suit, application under Order VII Rule 11, CPC was filed by the Municipal Board on the following grounds:

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i. The plaint be rejected as it does not disclose any cause of action as the relief for allotment of the land as prayed for in the suit cannot be granted by the Court. Allotment of land for the purpose as prayed for can be made only in terms of the Rajasthan Land Revenue (Allotment of Unoccupied Govt. Agricultural Lands for the Construction of Schools, Colleges, Dispensaries, Dharamshalas & Other Buildings of Public Utility) Rules, 1963 (for short, hereinafter referred to as ‘the Rules of 1963). Hence, when no relief as prayed for can be granted, the suit itself cannot be maintained.

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ii. No decree for declaration as prayed for can also be granted as it is not the case of the plaintiffs that the land in question has been used for the said purpose since time immemorial.

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iii. The land had been transferred to the Board way back in the year 2006 and it being the rightful owner of the land in question, cannot be termed to be a trespasser/encroacher and hence, no relief of injunction can be granted against it.

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iv. The Municipal Board being the owner of the land in question was essentially to be served with a notice in terms of Section 304 of the Rajasthan Municipalities Act, 2009 (for short, hereinafter referred to as ‘the Act of 2009’). In absence of the mandatory notice, the suit cannot be maintained.

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v. A relief for allotment of the land in question has been sought and hence the suit ought to have been valued on the market value of the said land and proportionate Court fees ought to have been paid. The same having not been done, the plaint deserves to be rejected.

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vi. No resolution of the Bar Association has been placed on record so as to show that the suit has been filed by the plaintiffs as representatives of the Bar Association. Therefore also, the plaintiffs having no locus standi to prefer the suit, the plaint deserves to be rejected.

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The Court below, while dealing with all the issues raised by the defendants, proceeded on to dismiss the application vide the order impugned dated 23.02.2023 against which the present revision petition has been preferred.

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Learned counsel for the petitioners submitted that admittedly, the reliefs as prayed for are essentially against defendant Nos.4 & 5 and hence, the notice in terms of Section 304 of the Act of 2009 was a mandate which having not been served, the plaint ought to have been rejected. Secondly, a bare reading

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of the plaint makes it clear that the reliefs as prayed for are not within the domain of a civil court as no civil court can grant decree for allotment of any public land. The allotment, if any to be made, is only within the domain of the authorities as prescribed under the Rules of 1963. Once it is held that the reliefs cannot be granted, the suit for the said reliefs cannot be maintained. Consequently, it cannot be held that any cause of action accrued to the plaintiffs against the defendants and hence, the plaint deserves to be rejected being bereft of any cause of action. Learned counsel further submitted that reliance of the Court below on the case of Municipal Council, Barmer vs. State of Rajasthan & Ors., (2018) 1 WLN 387 is totally misplaced as the present one was not a suit simplicitor for injunction but a relief for allotment and declaration had also been prayed for. Therefore, the finding of the Court below that the relief of injunction only having been prayed for against the Municipal Board, the notice in terms of Section 304 of the Act of 2009 was not essential, is totally erroneous.

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In support of his submissions, learned counsel for the petitioners relied upon the judgment of Coordinate Bench of this Court in the case of Murli Ram & Ors. vs. The State of Rajasthan & Ors., S.B. Civil First Appeal No.174/2014 decided on 16.07.2014.

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Per contra, learned counsel for the respondent submitted that while adjudicating the application under Order VII Rule 11, CPC, the Court is required to consider only the pleadings/averments as made in the plaint. The plaint could be rejected if the same is barred by any law. The defendants have

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not been able to point out as to by which law, the suit in question is barred. Secondly, from a bare perusal of the reliefs as prayed for, it is clear that the only relief prayed for against the Municipal Board is of injunction. Therefore, in terms of Section 304 of the Act of 2009, no notice was required to be served on the Municipal Board. Further, the notice in terms of Section 304 of the Act of 2009 is essential only if the Municipal Board or the officer/employee of the Board acts in its/his official capacity. So far as the present matter is concerned, the Board is not acting in its official capacity and therefore also, no notice was required to be served in terms of Section 304 of the Act of 2009. Further, as the relief for allotment and declaration had been prayed for against the State Authorities, an application under Section 80 (2) of CPC had very well been filed for exemption of service of notice in terms of Section 80, CPC. Therefore, the suit was very much maintainable and the plaint could not have been rejected on the ground of non-service of notice in terms of Section 304 of the Act of 2009.

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So far as the ground that the relief as prayed for cannot be granted by the Court is concerned, counsel submitted that if it be so, the suit would ultimately be dismissed but the same cannot be a ground for rejection of the plaint under Order VII Rule 11, CPC. With the said submissions, learned counsel submitted that rejection of the application by the Court below is perfectly in terms of law and hence the present revision petition deserves to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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In the present suit, following reliefs have been prayed for by

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the plaintiffs:

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“20+;g gS fd oknhx.k dk okn izfroknhx.k ds fo:) Lohdkj fd;k tkdj fuEuor~ fMØh ikfjr djkosa %&

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a. ;g gS fd dLck esM+rk dh lhek esa fLFkr [kljk ua- 1752 jdck 1-6200 gSDVs;j Hkwfe dks U;kf;d vf/kdkfj;ksa ds vkoklksa gsrq vkoafVr dj U;kf;d vkokl dh Hkwfe ?kksf’kr dh tkosaA

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b. ;g gS fd LFkkbZ fu’ks/kkKk bl vej dh tkjh QjekbZ tkosa fd dLck esM+rk dh lhek esa fLFkr [kljk ua- 1752 jdck 1-6200 gSDVs;j ij izfroknhx.k fdlh izdkj dk vfrØe.k] dCtk o fuekZ.k dk;Z] vkoaVu] fu;eu bR;kfn u rks Lo;a djsa vkSj u gh vU;ksa ls djokosaA vxj nkSjkus nkok izfroknhx.k fdlh izdkj dk uktk;t fuekZ.k dk;Z dj ysosa rks mls tfj;s vkKkid fu’ks/kkKk ds gVok;k tkosaA

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c. ;g gS fd [kpkZ o gtkZ oknhx.k dks izfroknhx.k ls fnyk;k tkosa o vU; dksbZ vuqrks’k tks oknh ds i{k esa mfpr gks] iznku fd;k tkosaA”

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10. In the application under Order VII Rule 11, CPC it has been

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submitted by the defendants as under:

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“mijksDr bLrnqvk ekuuh; U;k;ky; ls oknhx.k us dkuwu ds foijhr ekax dh gS] fdlh Hkh lEifr ds vkoaVu gsrq jktLFkku ljdkj ds fu;e cus gq, gS vkSj ;g fu;e jktLFkku ljdkj ds jsosU;w ¼xqzi&6½ foHkkx ds fu;e ,Q- 5¼9½@jsosU;w@60 fnukad 20-07-1963 dks tkjh gq, ftlesa vkoaVu ds leLr izko/kku dk mYys[k gS] ftlesa dgha Hkh bl ckr dk mYys[k ugha gS fd U;k;ky; ds }kjk Hkh dksbZ Hkwfe vkoaVu dh tk ldsxh] tc Hkwfe vkoaVu dh bLrnqvk ekuuh; U;k;ky; ls oknhx.k izkIr gh ugha dj ldrs rks ,slh ifjfLFkfr;ksa esa Hkwfe ds vkoaVu gsrq nkok ykus dk Hkh oknhx.k dks dksbZ gd vf/kdkj izkIr ugha gS] ,slh ifjfLFkfr;ksa esa oknhx.k dks izfroknhx.k ds fo:) dksbZ fcuk;nkok gh iSnk ugha gksrk gS] ftlls oknhx.k dk nkok dkfcy pyus ds ugha gS] lks nkok dkfcy [kkfjt ds gSA”

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Meaning thereby, the specific ground raised by the defendants was that the allotment, if any, of any land for public utility can be made only in terms of the Rules of 1963. Rule 2 of the Rules of 1963 provides for allotment of a government land for public utility/government office building. Rule 4 of the Rules prescribes the allotting authorities for the said purposes. As per

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the said rule, the allotting authority for both the above purposes is Sub-Divisional Officer/Collector/the State Government. Meaning thereby, it is the State Authorities who are competent to allot the land for any such purpose. As submitted by defendant-Municipal Board itself, the allotment can be made only in terms of Rules of 1963 and as per the said rules, the allotting authority is the State Authority only. It is nowhere the case of Board that it is the allotting authority. Meaning thereby, the relief of allotment could not have even been prayed for against the Municipal Board and could have been prayed for against the State authorities only. A bare perusal of the reliefs as prayed for in the plaint also makes it clear that the relief for allotment of the land has been prayed for against the State Authorities, that is, defendant Nos.1 to 3 only.

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In view of the same, the conclusion as arrived by the Court below that the relief for injunction only was prayed for against the Municipal Board and hence, no notice in terms of Section 304 of the Act of 2009 was required, cannot be interfered with. Therefore, the reliance of the Court below on the case Municipal Council, Barmer (supra) cannot be said to be misplaced. As held in Municipal Council, Barmer (supra), a suit wherein the relief for injunction only has been prayed for against the Municipal Board, it cannot be said to be barred by 304(1) of the Act of 2009. 11. So far as the issue whether the relief as prayed for can be granted by the Court or not is concerned, as held in the case of Gurdev Singh vs. Harvinder Singh [SLP(C) 19018/2022] decided on 09.11.2022, the fact that the relief as prayed for cannot be granted by the Court cannot be a ground for rejection of the plaint at its threshold. Therefore, the Court below rightly held

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that the same was a mixed question of fact and law and could be decided only after adjudication of the issue concerned.

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So far as the ground raised by the Municipal Board that it was the rightful owner of the land in question is concerned, a perusal of the record shows that the case of defendant Nos.1 to 3 is that the land continues to be recorded as gair mumkin gochar and further that the land was never allotted by the Collector for any other purposes. Therefore, the fact of the Board being the rightful owner of the land in question becomes disputed and any finding qua the same could be given only after an issue being framed and adjudication being made on the said issue after recording of evidence. The finding of the Court below hence, being totally in consonance with law, deserves no interference.

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So far as the ground of deficit court fee is concerned, as rightly held by the Court below, the same was also a mixed question of fact and law and the plaint could not have been rejected on the said ground.

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In view of the above analysis, this Court does not find any ground to interfere with the order impugned and the revision petition is hence, dismissed .

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Stay petition and all pending applications, if any, stand disposed of.

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(REKHA BORANA),J

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161-T.Singh/-

Municipal Board v. General Public Merta

Case brief

What is this about?

What did the court decide?

Municipal Board v. General Public Merta

Case brief

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