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Rajasthan High Court · body

2014 DIGILAW 1807 (RAJ)

Bhike Khan v. State Of Rajasthan

2014-11-12

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 11.6.12 passed by the Additional District Collector, Churu, whereby pending disposal of the application preferred by the petitioner under Section 312 of the Rajasthan Municipalities Act, 2009 (for short "the Act"), the interim relief granted vide order dated 23.9.11, stands vacated. 2. The petitioner preferred an application under Section 312 of the Act before the District Collector, Churu, questioning the resolution adopted by the Municipal Board, Rajgarh for dispossessing the petitioner from the land ad measuring 7.6'x 7' situated at Sabji Mandi, Rajgarh. Vide order dated 23.9.11 passed by the District Collector, Churu, the execution of the order dated 20.9.11 passed by the Municipal Board, Rajgarh directing dispossession of the petitioner, was stayed. Later, the application preferred by the petitioner was transferred for disposal to the Additional District Collector, Churu. On 31.5.12, the petitioner made an application stating that vide order dated 23.9.11, the operation of order dated 20.9.11 passed by the Municipal Board, Rajgarh having been stayed, the matter needs to be forwarded to the State Government for disposal in terms of the provisions of sub-section (2) of Section 312 of the Act. According to the petitioner, after passing of the order dated 23.9.11, the Collector/Additional District Collector exercising the power under sub-section (1) of Section 312 had become functus officio and could not have rejected the application preferred by the petitioner on the ground that notwithstanding the grant of interim order dated 23.9.11, the application preferred by the petitioner under sub-section (1) of Section 312 of the Act remains pending. 3. After due consideration, the application dated 31.5.12 has been rejected by the Additional District Collector observing that ex parte order dated 23.9.11 cannot be construed to be an order passed under sub-section (1) of Section 312 and the proceedings in terms of the said provision remains pending. However, while rejecting the application preferred, the order dated 23.9.11 passed in favour of the petitioner as aforesaid has also been vacated. Hence, this petition. 4. However, while rejecting the application preferred, the order dated 23.9.11 passed in favour of the petitioner as aforesaid has also been vacated. Hence, this petition. 4. Learned counsel for the petitioner reiterating the stand taken before the Additional District Collector, submitted that while exercising the power as an officer authorised by the State Government, the Additional District Collector having passed the order dated 23.9.11, staying the execution of the order passed by the Municipal Board had become functus officio and could not have vacated the order passed in favour of the petitioner. Learned counsel submitted that in terms of provisions of subsection (2), the Additional District Collector was under an obligation to refer the matter to the State Government and thus, the impugned order passed is ex facie without jurisdiction. 5. On the other hand, the counsel appearing for the respondents submitted that the order dated 23.9.11 passed by the District Collector was an ex parte order passed pending disposal of the application and therefore, the order impugned passed after hearing both the parties vacating the interim order passed in favour of the petitioner cannot be faulted with. Learned counsel submitted that without there being any prima facie case in favour of the petitioner, the execution of the order passed by the Municipal Board could not have been stayed by the authorised officer and thus, the petitioner is not entitled for any relief. 6. I have considered the rival submissions and perused the material on record. 7. Indisputably, as per the provisions of sub-section (1) of Section 312, the officer authorised by the State Government is empowered to suspend the execution of any order or resolution of a Municipality or the doing of anything which is about to be done or is being done on behalf of the Municipality is causing or likely to cause injury or annoyance to the public or a breach of peace or is unlawful or detrimental to interest of the Municipality. But then, the authorised officer is not empowered to rescind the order or to direct that it shall continue in force with or without modification. But then, the authorised officer is not empowered to rescind the order or to direct that it shall continue in force with or without modification. As a matter of fact, as per provisions of sub-section (2) of Section 312, after passing the order under sub-section (1) of Section 312, the authorised officer is required to forthwith forward to the State Government and to the Municipality affected thereby a copy of the order with the statement of reasons for making it and thereafter, the State Government in its discretion may rescind the order or direct that it shall continue in force with or without modification permanently or for such period as it thinks fit. The order in terms of sub-section (2) of Section 312 cannot be passed by the State Government without giving the Municipality concerned reasonable opportunity of showing cause against the said order. 8. A bare perusal of order dated 23.9.11 reveals that the order passed was not final order passed in terms of the provisions of sub-section (1) of Section 312 rather, it was an order granting the interim relief to the petitioner pending disposal of the application preferred in terms of provisions of sub-section (1) of Section 312 of the Act. Moreover, as per provisions of sub-section (2) of Section 312, the authorised officer while forwarding the copy of the order to the State Government and to the Municipality affected thereby, is required to record statement of reasons for making it and it is not the case of the petitioner that while passing the interim order, the reasons were recorded by the authorised officer in respect thereof and thus, the stand sought to be taken by the petitioner that after passing the order dated 23.9.11, the authorised officer had become functus officio does not appear to be correct. But then, in the considered opinion of this court, the Additional District Collector while holding that application preferred by the petitioner remains pending should not have vacated the interim order passed in favour of the petitioner without assigning any reason. On the facts and in the circumstances of the case, the Additional District Collector should have considered and disposed of the application preferred by the petitioner in conformity with the provisions of Section 312 of the Act. 9. On the facts and in the circumstances of the case, the Additional District Collector should have considered and disposed of the application preferred by the petitioner in conformity with the provisions of Section 312 of the Act. 9. In this view of the matter, the order impugned passed by the Additional District Collector to the extent of vacating the interim order dated 23.9.11 passed in favour of the petitioner deserves to be set aside. 10. Accordingly, the writ petition is partly allowed. The order impugned passed by the Additional District Collector, Churu vacating the interim order dated 23.9.11, staying the execution of order dated 20.9.11 passed by the Municipal Board, Rajgarh is set aside. The order dated 23.9.11 is restored. The Additional District Collector is directed to consider and dispose of the application preferred by the petitioner in the manner mandated by Section 312 of the Act, expeditiously, preferably within a period of two months from the receipt of certified copy of this order. No order as to costs.Petition partly Allowed. *******