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2000 DIGILAW 968 (RAJ)

Heman Das v. Municipal Board, Malpura

2000-08-03

A.R.LAKSHMANAN, ARUN MADAN

body2000
JUDGMENT 1. 1. Heard Mr. G.P. Kaushik, learned counsel for the appellant and Mr. Narendra Jain, learned counsel for the respondent-Municipal Board. The unsuccessful petitioner in the writ petition is the appellant in this appeal. The writ petition was filed by the appellant to call for the order dated 7.5.1998 passed by the Additional Divisional Commissioner, Ajmer and to quash the same and the order of the Additional Collector, Tonk dated 22.12.1992 be restored. It is seen from the records that pursuant to an advertisement for auction of the shops to be given on rent on 3.10.1988, the appellant participated in the auction and was declared as successful bidder. His bid at Rs. 500/- per month as rent was accepted. The appellant had deposited Rs. 5 500/- towards advance to allow him to participate in the proceedings of auction. He also deposited the security money as per the terms and conditions of the auction and he also deposited monthly rent of shop upto June, 1990 for a period of three years after the auction. He has deposited a sum of Rs. 2191.50 for the period from 15.5.87 to 30.6.87 and Rs. 2922/- for the period from September, 1987 to Oct., 87 and Rs. 29221- for the period from November, 87 to December, 87. A sum of Rs. 1461/- for the period from May, 1988 was also deposited. The appellant has deposited rent till December, 1990 and thereafter from January, 1991. According to the appellant, the order passed by the Additional Divisional Commissioner, Ajmer in the revision is not proper and maintainable Under section 300 of the Rajasthan Municipalities Act against the order passed by the Additional Collector, Tonk while exercising powers under sub-section (2) of Section 80 of the Rajasthan Municipalities Act, 1959 delegated to him by the State Government vide Notification dated 27.2.1975. Learned counsel for the appellant Mr. Kaushik further argued that the Additional Divisional Commissioner cannot set-aside the order passed by the Additional Collector under section 80(2) under the revisional powers without holding that the Collector has exceeded his jurisdiction. The reply affidavit was filed by the respondent-Municipal Board. On 18.12.1998, the learned Single Judge dismissed the writ petition for default since none appeared on behalf of the appellant/petitioner. The reply affidavit was filed by the respondent-Municipal Board. On 18.12.1998, the learned Single Judge dismissed the writ petition for default since none appeared on behalf of the appellant/petitioner. Thereafter, an application to recall the order dated 18.12.1998 was moved and in that application the learned Single Judge passed an order on 18.3.1999 recalling the earlier order dated 18.12.1998. The said order dated 18.3.1999 is reproduced hereunder - "It is stated by counsel for petitioner that on the last date, even though the arguments have been addressed earlier and the case was fixed to enable the petitioner to deposit the rent due of State under their occupation, but because of lack of instruction the appearance could not be made. Mr. Kaushik states that the petitioner is not ready to deposit the rent and submits that the writ petition may kindly be decided on the ground that the rent is not deposited. After hearing counsel for petitioner the application is allowed. The order dated 18.12.98 is recalled. The writ petition is restored to its original number." 2. It is, thus, seen from the above order that the appellant has given up his contention regarding the maintainability of the writ petition Under section 300 of the Rajasthan Municipalities Act. On restoration of the writ petition, the matter was again heard by the learned Single Judge and an order was passed on 18.3.99 dismissing the writ petition. We have perused the entire pleadings and the order impugned in this writ petition. It is not in dispute that the appellant had participated in the auction and was declared as the successful bidder in the said auction. The offer by the appellant at Rs. 500/- per month by way of rent was also accepted. It is also riot in dispute that pursuant to the said auction, appellant was paying the rent regularly and continuously upto June, 1990. Thereafter the appellant moved an application to the Additional Collector, Tonk for reducing the rent. The Additional Collector, Tonk vide its order dated 22.12.1992 ordered that the rent of the shops be fixed as per the rent of the adjoining shops. Aggrieved by the order of the Additional Collector, the matter was taken up before the Additional Divisional Commissioner Under section 300 of the Rajasthan Municipalities Act. The Additional Collector, Tonk vide its order dated 22.12.1992 ordered that the rent of the shops be fixed as per the rent of the adjoining shops. Aggrieved by the order of the Additional Collector, the matter was taken up before the Additional Divisional Commissioner Under section 300 of the Rajasthan Municipalities Act. The revision filed by the Municipal Board was accepted vide order dated 7.5.1998 and the order Annexure-2 passed by the Additional Collector, Tonk was set-aside. It is further ordered by the Additional Divisional Commissioner that the arrears of rent be recovered with interest at the rate of 12% and in case the arrears are not paid, the petitioner/appellant shall also be evicted. Being aggrieved against the order Annexure-3, the appellant had filed the writ petition which was dismissed for default and restored latter and again dismissed on merits after hearing the counsel appearing for other side. When the matter came up for hearing on the last date i.e. 11.7.2000, we adjourned the matter at the request of Mr. Kaushik, learned counsel for the appellant to verify from his client as to whether the appellant had deposited the entire arrears of rent. Today when the matter is taken up for hearing, he submits that he could not contact his client and, therefore, requested for further adjournment. Since the matter if pending for a very long time and the appellant is also is a defaulter in payment of rent to a public body, the adjournment was refused and the matter was heard on merits. Mr. Kaushik reiterated his submission in regard to maintainability of the writ petition. His contention was opposed by Mr. Narendra Jain stating that this plea was given up before the learned Single Judge when the learned Single Judge has recalled his order dated 18.12.98 and passed the order dated 18.3.1999. Even otherwise, Mr. Jain submitted that there is absolutely no equity in favour of the appellant and, therefore, the appeal is liable to be rejected. We see merit and force in the submissions made by Mr. Jain. The appellant has participated in the auction and paid a sum of Rs. 500/- by way of monthly rent and paid rent continuously for several years cannot now be allowed to reopen the matter by stating that the rent shall be reduced. Such a contention cannot at all be countenanced. Jain. The appellant has participated in the auction and paid a sum of Rs. 500/- by way of monthly rent and paid rent continuously for several years cannot now be allowed to reopen the matter by stating that the rent shall be reduced. Such a contention cannot at all be countenanced. The appellant is occupying the property owned by the public body and not paying the rent to the Municipal Board. There is absolutely no equity in his favour. 3. With regard to the contention advanced by the learned counsel for the appellant that the revision petition was not maintainable before the Additional Divisional Commissioner against the order of the Additional Collector, we are of the opinion that this issue has already been settled by this Court in the matter of Hamid Zafar Alam & others v. The Municipal Board, Nagaur & others, 1997(1) WLC (Raj.) 494 , wherein it was observed as under - "The powers under sub-sections (2)(a) and (2)(b) of section 80 can be independently exercised either by the State or by the officer authorised by the State and while doing so, he shall not be acting for and on behalf of the state but shall be acting as an officer competent to decide the matter under sub-sections (2)(a) and (2)(b) of section 80 of the Act." 4. It is always open to the State or the authority concerned to call for and adjudicate legality or propriety of any order passed by or on behalf of the Board, its Chairman, Vice-Chairman, any member or officer or Collector as or other officer appointed by the State in this regard. The powers exercised by the Collector are always open to revision by the Divisional Commissioner in exercise of his powers under section 300 of the Rajasthan Municipalities Act. 5. There is absolutely no merit in the appeal and the Municipal Board shall be entitled to recover the possession of the shop in question together with arrears of rent and interest and cost as ordered by the learned Single Judge, if necessary, with police aid. The order of the learned Single Judge is confirmed. The writ appeal is dismissed. No costs in this appeal.Municipal Board Entitled Recover Possession of Shop Together With Arrears of Rent and Interest.Appeal dismissed. *******