At, High Court of Rajasthan Jaipur Bench
By, THE HONOURABLE MR. JUSTICE ARUN MADAN
For the Appellant: V.L. Mathur, Advocate. For the Respondents: D.L. Bardhar, Satyavrat Sharma, Advocates.
Arun Madan, J.
1. The short question which has arisen for consideration of this Court in the present writ petition is as to whether it was open to respondent No. 2, Shanker Lal to construct 'Chabutra' i.e. raised platform measuring 54' x 4'. 38'/2' x 13 1/2. 18 3/4' x 7'. 18 3/4' x 7' and 133/4' x 4' 1/2 over the land in question belonging to respondent No. 4 viz; the Municipal Board, Khandela (hereinafter referred to as "the Board") contrary to the resolution of the Board vide Annexure-2 on the record?
2. From the perusal of Resolution No. 34 dated 21-4-1973 of the Board, it is apparent thai respondent No. 2 had sought permission of the Board for carrying out construction of 'Haveli' which was granted while the permission for construction of platform i.e. Chabutra in question was declined by the Board.
3. On inspection of the said property by the employees of the Board, it was revealed that respondent No. 2 had unauthorisedly constructed the disputed platform over the land belonging to the Board and for which the permission had already been declined by the Board as aforesaid. Respondent No. 2 was accordingly conveyed the decision of the-Building Committee of the Board vide letter dated 5-7-1973 vide (Annexure-3) on the record. In spite of the specific direction of the Board declining permission, the respondent No. 2 had unauthorisedly raised construction over the disputed land in gross violation of the Municipal Bye-laws & its aforesaid resolution. In terms of the communication dated 26-12-1973 vide Annexure-5, the respondent No. 2 was again directed by the Board to stop the aforesaid construction over the land in dispute and also to remove the said unauthorised construction positively within three days, failing which, the necessary action in accordance with the provisions of Sections 170(4)and 203 of the Rajasthan Municipal Act, 1959 (hereinafter referred to as 'the Act of 1959') shall be taken against the said respondent No. 2. Sub-section (4) of Section 170 of, the Act of 1959 stipulates, as under :-
"170 (4):-- Where a bye-law has been made prescribing and requiring any information and plans in addition to a notice, no notice under Subsection (1) shall be considered to be valid until the information and plans, if any, required by such bye-law have been furnished to the satisfaction of the Board."
Sub-section (2) of Section 203 of the Act of 1959 stipulates, as under :--
"203(2) :-- Whoever makes any obstruction in any land or space not being private property, whether such land or space belongs to or vests in the Board or not, except steps over drain in any public street shall on conviction be punished with simple imprisonment which my extend to one month or with fine which may extend to two thousand rupees or with both."
4. From the perusal of the aforesaid provisions, it is clearly apparent that the Board is fully competent and empowered by virtue of the said provisions of the Act that in the event of any obstruction or encroachment having been made by any individual over the land belonging to the Board or act of trespass over the land belonging to the Board having been committed without obtaining the express permission of the State Government or the Municipality in writing, the said unauthorised construction, obstruction or encroachment from the public land has got to be removed immediately, failing which, the said trespasser is liable to be proceeded with and visited with such penal action as contemplated under Chapter VIII of the Act of 1959. It has further been stipulated in the aforesaid provisions of the Act that if the permission sought for raising the construction is not in conformity with the Bye-laws of the board, the same shall be declined by the Board and the said unauthorised construction is liable to be-demolished by the Board and the expenses of such unauthorised construction shall stand recoverable by way of damages from the said trespasser.
5. I have heard learned counsel for the parties at length and perused the relevant record as well as the legal position on the subject. It is relevant to mention that respondent No. 2 during the pendency of proceedings arising out of civil suit filed by him as plaintiff before Civil Court, Srimadhopur had filed a fresh petition before the Municipal Board, Khandela to allow him to construct Chabutra in question measuring 54' x 3' towards the Eastern side of Haveli and the Executive Officer vide his order dated 19-3-1979 had granted permission to construct the same as per site plan with a specific direction that no encroachment or unauthorised construction shall be raised by the respondent No. 2 over the land belonging to the Board. The petitioner feeling aggrieved by the said order of the Executive Officer, preferred an appeal u/s 170 of the Act of 1959 before the Additional Collector Sikar who vide order dated 27-9-1979 allowed the appeal. In the said appeal the petitioner-appellant had sought relief from the Additional Collector against the respondent No. 2-Shankar Lal who had unauthorisedly intended to raise construction over the public land in question. Against the aforesaid order allowing the appeal of the petitioner, respondent No. 2 preferred a revision petition before the Revenue Appellate Au- , thority. Jaipur as per Section 300 of the Act of 1959 and the Appellate Authority vide its order dated 30-9-1983 allowed the same. The controversy which had arisen before the Appellate Authority in the aforesaid revision petition was regarding the fact as to whether the order of the Executive Officer dated 19-3-1979 had the express or implied authority of the Board on the basis of which, the permission regarding raising of the construction over the disputed premises in question was rightly granted in accordance with Sections 166 & 167 of the Act of 1959. The Appellate Authority while allowing the revision petition, came to the conclusion that since the Additional Collector was not vested with the jurisdiction in entertaining the appeal against the order of Executive Officer and in view of the inherent lack of jurisdiction, the impugned-order of Additional Collector, Sikar dated 27-9-1979 was no nest and nullity and was consequently quashed and set-aside. It was further observed by the said Authority that since Section 311 of the Act of 1959 also covers the order made by the Officer appointed u/s 307 or Section 308 of the Act of 1959 in exercise of powers conferred on or delegated to him by this Act, appeal against such order shall be maintainable before the Board.
6. Hence, it becomes abundantly clear that even if an Executive Officer had passed an order under delegated authority of the Board, the appeal against such orders has to be preferred before the Board itself which is competent to entertain and decide the same and not before the Additional Collector as has been done in the instant case. It is under the aforesaid circumstances that the petitioner has come up by way of instant writ petition before this Court having failed to get any relief which in fact was not admissible to him contrary to the provisions of the Apt of 1959 as referred to and discussed above.
7. Having examined the contentions raised by the learned counsel for the petitioner and also the reply to show cause notice filed by the respondents. I am of the considered opinion that the petitioner is entitled to the relief prayed for. Moreover, respondent No. 2 has admittedly raised the construction over the land belonging to the Municipal Board in an unauthorised and illegal manner contrary to the sanction given to film by the Board which was only confined to carrying out the necessary repairs in the house where the respondent No. 2 is residing and the permission obviously could not be interpreted to mean raising unauthorised construction of Chabutra over the land belonging to the Municipal Board wh
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ich obviously is apparent from the perusal of Resolution No. 34 dated 21-4-1973 vide Annexure-2 and the order dated 19-3-1979 vide Annexure-9 of the respondents. 8. As a result of above discussion, the writ petition is consequently allowed and finally disposed of. Consequently, the interim-order dated 24-2-1984 directing the parties to maintain status-quo shall stand confirmed. The respondent-Municipal Board shall be at full liberty to take necessary steps in accordance with law for demolishing the unauthorised and illegal construction raised by respondent No. 2 over the disputed land in question within a period of 90 days from the date of submission of certified copy of this order and its compliance shall be communicated to the Chairman of the Municipal Board and the costs and expenses incurred by the Board in this regard shall be recoverable from respondent No. 2.