Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 42 (RAJ)

Gulab Chand Agarwal v. State of Rajasthan

2003-01-10

SUNIL KUMAR GARG

body2003
JUDGMENT 1. - This writ petition has been filed by the petitioner u/Art. 226 of the Constitution of India with prayer that by an appropriate writ, order or direction, the notice dated 20.12.1991 (Annex. 8) issued by the Executive Officer, Municipal Board, Bhinmal (respondent No. 3) by which demand of Rs. 5 2,67,474.65 was made from the petitioner on account of using the land for commercial purposes, notice dated 26.12.1991 (Annex. 9) issued by the respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) by which a demand of Rs. 26,746.65 for using the land for commercial purpose and notice dated 1.1.1992 (Annex.10) issued by the respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) by which a demand of Rs. 2,67,469.65 was made from the petitioner for using the land for commercial purposes and it was further stated that in case the petitioner did not deposit the aforesaid amount, he would be dispossessed, be quashed and set aside etc. 2. The facts of the case as put forward by the petitioner are as under : (i) That the petitioner's forefather possessed a piece of land since ancient time where they have raised construction for their residential and business purposes to some extent. (ii) That in respect of above land a dispute arose between the respondent No. 2 (Municipal Board, Bhilwara (sic.) and the petitioner and a compromise was entered in the year 1970 and patta was issued to the petitioner. (iii) That in the year 1977, on certain proceedings, the patta issued to the petitioner was cancelled. Thereafter a fresh compromise was arrived at between respondent No. 2 (Municipal Board, Bhinmal) and the petitioner. (iv) That during pendency of dispute. proceedings were initiated by the respondent No. 2 (Municipal Board, Bhinmal) against the petitioner against which the petitioner approached the Collector, Jalore WS. 285 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act of 1959) restraining the respondents No. 2 (Municipal Board. Bhinmal) and respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) interfere with the possession of the petitioner. The Collector accepted the petition filed by the petitioner to vide order dated 24.10.1967 and forwarded the same to the State Government for its confirmation. (v) That the State Government through its order dated 8.12.1978 (Annex. 1) confirmed the order dated 24.10.1967 passed by the Collector, Jalore. (vi) That in pursuance of the compromise (Annex. The Collector accepted the petition filed by the petitioner to vide order dated 24.10.1967 and forwarded the same to the State Government for its confirmation. (v) That the State Government through its order dated 8.12.1978 (Annex. 1) confirmed the order dated 24.10.1967 passed by the Collector, Jalore. (vi) That in pursuance of the compromise (Annex. 2), the petitioner deposited the entire cost of the land through receipt (Annex. 3). (vii) That since the land was originally held by the joint family, therefore, a family settlement was entered into between the petitioner and his brothers and the family settlement was approved by the respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) 20 through certificate dated 21.3.1987 (Annex. 4). From perusing the certificate dated 21.3.1987 (Annex.4), it appears that house No. 377 was given to the petitioner. (viii) That thereafter (sic.) individual members sought permission, from the Municipal Board, Bhinmal (respondent No. 2) for raising construction and the permission was accordingly given by the respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) through permission letter dated 3.1.1987 (Annex. 5). (ix) Further case of the petitioner is that through order dated 28.8.1984 passed by the Chairman, Municipal Board, Bhinmal all the disputes between the petitioner and his brothers with that of Municipal Board, Bhinmal (respondent No. 2) came to an end. (x) That thereafter show cause notices dated 20.12.1991 (Annex.8), 26.12.1991 (Annex. 9) and 1.1.1992 (Annex.10) were issued by the respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) raising the demands for using the land for commercial purposes as stated above. Hence, this writ petition with the above mentioned prayer. 3. From perusing the writ petition, it appears that the petitioner did not reply to any of the show cause notices (Annex. 8, 9 & 10 respectively) issued y the Executive Officer, Municipal Board, Bhinmal (respondent No. 3). 4. Reply to the writ petition was filed by the respondents and their case is that house No. 377 came in the share of the petitioner and so far as other houses are concerned, their owners had not challenged the show cause notices (Annex. 8, 9 & 10 respective) issued by the Executive Officer, Municipal Board, Bhinmal (respondent No. 3). 4. Reply to the writ petition was filed by the respondents and their case is that house No. 377 came in the share of the petitioner and so far as other houses are concerned, their owners had not challenged the show cause notices (Annex. 8, 9 & 10 respective) issued by the Executive Officer, Municipal Board, Bhinmal (respondent No. 3). It was further submitted by the respondents that since the petitioner had already constructed three shops and one hall for commercial purposes without obtaining any permission from the Municipal Board under the provisions of Act of 1959 and therefore, the show cause notices (Annex. 8, 9 & 10 respectively) had rightly been issued by respondent No. 3 (Executive Officer, Municipal Board, Bhinmal). Further more, through family settlement between the members of the petitioner family the shops in question fell in the share of Smt. Vimla Devi (wife of the petitioner with effect from 2.12.1980 and from this point of view also, the petitioner had got no right to challenge the impugned show cause notices (Annex. 8, 9 & 10 respectively) issued by respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) and since the petitioner had raised construction without obtaining permission from the Municipal Board, Bhinmal, therefore, the respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) was justified in issuing the impugned show cause notices (Annex. 8, 9 & 10 respectively) raising demand for using the land for commercial purposes. It has been further submitted by the respondents that in this case the question to as to whether respondents are entitled to charge commercial rate on not and whether the petitioner and other sharers are able to be dispossessed or not are all questions of facts and the same could not be decided by this Court while exercising the power u/Art. 226 of the Constitution of India. Hence, the writ petition be dismissed. 5. Heard. 6. From perusing the writ petition, it appears that the show cause notice (Annex.10) was issued on 1.1.1992 and the writ petition was filed by the petitioner on 8.1.1992. It appears that the petitioner has not filed any reply to any of the show cause notices (Annex. 8, 9 & 10 respectively) issued by respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) and has directly approached this Court u/Art. 226 of the Constitution of India. 7. It appears that the petitioner has not filed any reply to any of the show cause notices (Annex. 8, 9 & 10 respectively) issued by respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) and has directly approached this Court u/Art. 226 of the Constitution of India. 7. This Court through its order dated 10.1.1992 directed the parties to maintain status-quo as it existed on that day. The stay order dated 10.1.1992 was confirmed by this Court vide order dated 17.2.1992. 8. In my opinion, this writ petition has been filed without filing reply to the show cause notices (Annex. 8, 9 & 10 respectively) issued by respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) and, therefore, in the interest of justice, it would not be proper to decide the writ petition on merits as no final order was passed by the respondents and the petitioner should first file reply to the show cause notices (Annex. 8, 9 & 10 respectively) issued by respondent No. 3 (Executive Officer, Municipal Board) before the concerned authority and thereafter the concerned authority should pass appropriate orders in accordance with law after affording an opportunity of hearing to the petitioner. 9. The learned counsel for the petitioner has placed reliance on the case of Municipal Corporation, Jodhpur v. Rajendra Bhandari, RLW 2000 (3) 1611 . This authority would not be helpful to the learned counsel for the petitioner as the matter is not being decided on merits.For the reasons mentioned above, the present writ petition is disposed of in the manner that the petitioner would file reply to the impugned show cause notices (Annex. 8, 9 & 10 respectively) issued by respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) within one month from today and the respondent No. 3 (Executive Officer, Municipal Board, Bhinmal) shall pass appropriate orders on show cause notices (Annex. 8, 9 & 10 as respectively) in accordance with law after affording an opportunity of hearing to the petitioner within three months from the date of submission of reply. The stay order dated 10.1.1992 passed by this Court and confirmed on 12.2.1997 shall remain in force till the matter is finally decided by respondent No. 3 (Executive Officer, Municipal Board, Bhinmal).No order as to costs.Writ Petition Disposed of As Above. *******