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2015 DIGILAW 131 (RAJ)

Meena v. State of Rajasthan

2015-01-16

SANGEET LODHA

body2015
JUDGMENT 1. - This writ petition is directed against order dated 12.12.96 passed by the District Collector, Bhilwara, whereby in purported exercise of power conferred under Section 285 of Rajasthan Municipalities Act, 1959 ( for short "the Act") pending approval of the State Government the sanction for construction of commercial building granted in favour of the petitioner by the Municipal Council, Bhilwara, stands suspended and the Commissioner, Municipal Council has been directed to issue notice to the petitioner herein to stop the construction. The notice dated 27.12.96 issued by the Commissioner, Municipal Council, Bhilwara directing the petitioner to stop the construction has also been challenged. 2. The relevant facts are that the petitioner purchased a plot situated in Azad Chowk, Bhilwara in the month August, 1996 by way of different sale deeds. The total measurement of the plot comes to 105x89.9 sq. ft. The petitioner's predecessor in title had applied for conversion of the land and permission to raise construction by way of an application dated 20.6.96. After due consideration, vide notice dated 29.8.96 issued by the Commissioner, Municipal Council, the petitioner's predecessors in title were directed to deposit conversion charges, projection charges and other charges as specified in the notice. The amount as specified in the notice was deposited by the petitioner by cheque vide receipt dated 12.9.96. The building plan submitted by the petitioner's predecessor in title was approved by the Municipal Council on 11/12.9.96. As per the approved plan, the permission was granted to raise construction on basement, ground floor, first floor and second floor. While the construction was in progress, the District Collector, Bhilwara vide order dated 12.12.96 suspended the construction permission dated 11.9.96 granted to the petitioner by the Municipal Council, Bhilwara pending approval by the State Government. That apart, the Commissioner, Municipal Council, Bhilwara was directed to issue notice to the petitioner to stop the construction. Accordingly, vide notice dated 27.12.96 issued by the Commissioner, Municipal Council, Bhilwara, the petitioner is directed to stop the construction. Hence, this petition. 3. On 2.1.97, this court while issuing notices to the respondents, passed an interim order in favour of the petitioner in the following terms: "In the meanwhile the operation of the order dated 12.12.96 passed by the Collector, Bhilwara suspending the permission for construction granted by the Municipal Council, Bhilwara shall remain suspended till the disposal of this stay petition." 4. On 2.1.97, this court while issuing notices to the respondents, passed an interim order in favour of the petitioner in the following terms: "In the meanwhile the operation of the order dated 12.12.96 passed by the Collector, Bhilwara suspending the permission for construction granted by the Municipal Council, Bhilwara shall remain suspended till the disposal of this stay petition." 4. Later, interim order passed as aforesaid, was confirmed by this court vide order dated 29.1.02 with liberty to the respondents to file reply and prayer for its vacation. The interim order is in operation till this date. 5. The respondents have filed reply to the writ petition taking the stand that the strip land was given to the petitioner's predecessor in title for use as platform and therefore, the same could not have been converted for construction of the shops. It is submitted that as per provisions of Section 173A, the Commissioner, Municipal Council is not competent to change the land use and the power with regard to change of the land use is vested in the State Government. Regarding the construction raised, the stand taken is that the petitioner has raised construction in deviation of the sanctioned plan and therefore, the District Collector has rightly exercised the power under Section 285 of the Act. While placing the sanctioned plan and the plan of the existing construction on record, the respondents have pointed out the construction raised by the petitioner in deviation of sanctioned plan, by way of an additional affidavit, as under: Plan Submitted/sanctioned Existing Position Basement: Basement: 8 shops/show rooms were shown and parking place was sanctioned i.e. 58 9 "x 58 6" and two ramps and two roof bend were sanctioned. Instead of 8 shops/show rooms, 22 shops were constructed and two roof bend were existed, but only one ramp was there and another was converted in stair case. Ground Floor: Ground Floor: 13 shops/show rooms were sanctioned and 2'6" projection towards East and South side was sanctioned. Instead of 13 shops/show rooms by reducing the size and by putting partition 35 shops were constructed. First Floor: First Floor: Seven Halls were sanctioned. Instead of seven halls, 33 shops were constructed. Second Floor: Second Floor: Seven Halls were sanctioned. Instead of seven halls, 37 shops were constructed. Third Floor: Third Floor: Neither any proposed construction was shown nor it was sanctioned. First Floor: First Floor: Seven Halls were sanctioned. Instead of seven halls, 33 shops were constructed. Second Floor: Second Floor: Seven Halls were sanctioned. Instead of seven halls, 37 shops were constructed. Third Floor: Third Floor: Neither any proposed construction was shown nor it was sanctioned. Without permission on third floor 26 shops were constructed. 6. Learned counsel for the petitioner contended that the order dated 12.12.96 passed by the District Collector, Bhilwara is ex facie without jurisdiction inasmuch as, the power under Section 285 of the Act cannot be invoked in those cases where an action has been completed and nothing is required to be done by the Municipal Council. It is submitted that in the instant case, after grant of permission for construction by the Municipal Council, the petitioner has already commenced the construction and nothing was required to be done by the Municipal Council thereafter and therefore, the action sought to be taken by the District Collector in purported exercise of power conferred under Section 285 of the Act is not sustainable in the eyes of law. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Municipal Board, Kannauj v. The State of U.P. & Ors.", AIR 1971 SC 2147 and a Bench decision of this court in the matter of "Padma Devi v. State of Rajasthan & Ors.", RLW 1992 (1), 694. It is submitted that the petitioner has already deposited the requisite fee for raising construction and relying upon the permission granted, demolished the existing construction and started new construction and therefore, principles of promissory and equitable estoppel are attracted in the matter and the permission granted in favour of the petitioner cannot be questioned. 7. On the other hand, learned counsels appearing for the respondents submitted that the District Collector is empowered under Section 285 of the Act to suspend the sanction for raising construction granted by the Municipal Council under Section 170 of the Act, if the permission so granted causes or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful. In this regard, learned counsel has relied upon a decision of this court in the matter of Municipal Council, Ajmer v. Narendra Singh, 1983 RLR, 118 . In this regard, learned counsel has relied upon a decision of this court in the matter of Municipal Council, Ajmer v. Narendra Singh, 1983 RLR, 118 . Drawing the attention of this court to the details of the deviation as set out in the additional affidavit and shown in the maps produced, learned counsel submitted that the petitioner has raised construction in gross deviation of the plan sanctioned and therefore, the Municipal Council is well within its jurisdiction in directing the petitioner to stop the construction and deal with the construction raised in deviation of the sanctioned plan. Learned counsel submitted that viewed from any angle, the action sought to be taken against the petitioner is in accordance with law and does not warrant any interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 8. I have considered the rival submissions of the learned counsel for the parties and perused the material on record. 9. Section 285 of the Act, which deals with the powers of the officer appointed or authorised by the State Government to suspend the execution of order or resolution of a Municipal Board, may be beneficially quoted: "285. Powers of suspending execution of order etc. of board (1) If in the opinion of any such officer as may be appointed or authorised by the State Government in this behalf the execution of any order of resolution of a board or the doing of anything which is about to be done or is being done by or on behalf of a board, is causing or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof. (2) When any such officer makes any order under this section, he shall forthwith forward to the State Government and to the board affected thereby a copy of the order, with a statement of the reasons for making it, and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit: Provided that no order of such officer passed under this section shall be confirmed, revised or modified by the State Government without giving the board reasonable opportunity of showing cause against the said order." 10. A perusal of sub-section (1) of Section 285 reveals that the officer appointed or authorised by the State Government in this behalf may exercise the power of suspending the order or resolution of the Board which is causing or likely to cause injury or annoyance to the public or a breach of peace or is unlawful where anything is required to be done in pursuance thereof. But in case where acts are completed and nothing is required to be done by the Board, the provisions of Section 285 of the Act cannot be invoked. 11. In Municipal Board, Kannauj's case (supra), where an employee holding the post of sweeper was dismissed by the Municipal Board and the Governor of Uttar Pradesh in exercise of the power conferred under Section 34 of the U.P.Municipalities Act, 1960, a provision almost analogous to the provisions of Section 285 of the Act, passed an order prohibiting execution of order of dismissal, the Hon'ble Supreme Court observed that where resolution or order does not require any acts to be performed or steps to be taken for execution or further execution of resolution or order of the Board or of its officer, there remains nothing to prohibit and therefore, the power under Section 34 (1-B) could not have been invoked. 12. 12. In " Bhairon Lal v. Bhagwat Dutt Thakur, Collector, Kotah, 1955 RLW, 517 , a Bench of this court while considering the question regarding exercise of the power under Section 195 of Rajasthan Town Municipalities Act, 1951 held that the power of interference under 195 is restricted to execution of any order or resolution of the Municipal Board or doing of anything which is about to be done or is being done by or on behalf of the Municipal Board or prohibiting the execution thereof could not have been exercised where the land had been sold to the petitioner therein by the Municipality and over which the construction was sought to be raised. 13. Similarly, in "Likhmichand v. State of Rajasthan & Ors.", 1978 WLN (UC), 271 , this court held that after the grant of permission for raising construction nothing remains to be done by the Municipal Board and therefore, the power conferred by Section 285 of the Act could not be invoked by the Collector. 14. In Padma Devi's case (supra), where a plot of land was regularised in favour of the petitioner therein and sale deed was executed in her favour and thereafter, permission for raising construction applied for was granted, a Bench of this court held that the concluded sale cannot be touched by the Collector and on that basis, permission granted by the Board for raising construction cannot be stayed in purported exercise of power under Section 285 of the Act. However, the court left it open for the Collector to take appropriate action in the matter in accordance with law. Distinguishing the decision of this court in Municipal Council, Ajmer's case (supra), the court observed that the question with regard to interpretation of Section 285 of the Act did not come up for consideration of the court and the court only make a reference to the general power to suspend the resolution of the Board. 15. In view of the settled position of law as discussed here in above, in the considered opinion of this court, the construction permission having been granted in favour of the petitioner by the Municipal Board and acted upon by her could not have been interfered with by the Collector by invoking powers under Section 285 of the Act. 16. In the result, the writ petition succeeds, it is hereby allowed. 16. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dated 12.12.96 passed by the District Collector and the notice dated 27.12.96 issued by the Municipal Council, Bhilwara pursuant thereto are quashed. However, it is made clear that on account of the present writ petition being allowed and the orders impugned being quashed, the Municipal Council, Bhilwara shall not be precluded from dealing with the construction raised by the petitioner in deviation of the sanctioned plan in accordance with law. Further, the Municipal Council and the State Government shall be at liberty to take appropriate proceedings against the petitioner in accordance with law, regarding the change of the land use alleged to have been made in defiance of the provisions incorporated in the relevant statute. No order as to costs.Petition allowed. *******