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2015 DIGILAW 1495 (RAJ)

Kailash Chand v. District Collector

2015-08-10

AJIT SINGH, SUNIL AMBWANI

body2015
JUDGMENT : We have heard learned counsel appearing for the parties. 2. Aggrieved by the order passed by the District Collector, Baran dated 6.3.2006 by which he had set aside the orders dated 20.2.2006 and 28.2.2006 as well as the order dated 29.6.2002, making disposal of land by way of allotment of 368 sq.ft. in favour of Shri Mool Chand, and 897 sq.ft. in favour of Kailash Chand, on the ground that though the land allotted to each of them is not 100 sq. yard; the plot, as a whole without any division in front of house of the allottees, who are real brothers, was not a strip of land for either of them or together for the purposes of disposal by Municipal Corporation under Rule 23 of The Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (for short, "the Rules") and further, that the disposal was made ignoring the earlier orders passed by the Sub Divisional Magistrate, Baran dated 23.6.2005, by which he had found that the land in dispute disposed of by the Nagar Palika on 30.10.1973 was not proper, inasmuch as, the land was open in front of house of the revisionist. Learned Single Judge dismissed the writ petition on the ground that detailed reasons been given by the revisional authority taking note of the earlier rejection of allotment of land, giving rise to this DB Special Appeal. 3. It is submitted by learned counsel appearing for the appellant that the disposal was made at different points of time i.e. in the year 2002 and thereafter, in the year 2006 to the two brothers separately of the land in front of their respective houses and that each disposal was for less than 100 sq.yard of land, which will come within the meaning of "strip of land", for which it was not necessary to hold auction. The land in any case was disposed of at the then prevailing market rate. 4. Rule 23 of the Rules is quoted below:- "23 Strips of Land - (1) Strip of land to be sold at double the reserve price.- Small strips of land which are not fit to be disposed of as plots shall be sold to the owners of the adjoining plots at the rate of double the reserve price. 4. Rule 23 of the Rules is quoted below:- "23 Strips of Land - (1) Strip of land to be sold at double the reserve price.- Small strips of land which are not fit to be disposed of as plots shall be sold to the owners of the adjoining plots at the rate of double the reserve price. Such strips of land shall be disposed of on an out-right sale if the adjoining property is freehold, and leased out if the adjoining property owner has only lease hold rights. (2) Auction - Where two or more persons are interested in the strip there shall be auction only between those where plots or building adjoining the strip of land provided that before auctioning such strip of land a public notice shall be issued. (3) Land use - These strips of land may be sold for such purpose as is permissible under the rules, regulating sale of land in the area and for such construction as is permissible under those rules, provided that before disposing any strip of land, building line shall be demarcated which shall be maintained. Explanation (1) Definitions.- A strip of land shall mean a piece of land adjoining an existing plot which cannot be put to independent use and which shall in no case exceed 100 Sq.Yds. in area. No strip of land shall be sold: (i) if it endangers public safety or is against traffic regulation; and (ii) if it is to be used for a purpose other than building to which such strip is adjacent. (iii) until a building line is established. Explanation (2) Disputes & Decisions- Whether a particular area is a strip land or not, shall be decided by the Corporation or Council or Board, as the case may be." 5. For a piece of land to be a small strip as defined in Explanation-1 in the Rule 23 of the Rules, the land should be a piece of land which cannot be put to an independent use and is less than 100 sq.yard in area. 6. In the present case, though the allotment to the two brothers made with a gap of four years, was for less than 100 sq.yards, each piece of land was not separate and distinct. 6. In the present case, though the allotment to the two brothers made with a gap of four years, was for less than 100 sq.yards, each piece of land was not separate and distinct. It was an open piece of contiguous land, which was divided by the Municipal Corporation for sale to the two brothers firstly in the year 2002, in which it sold as a strip of land to one of the brothers and thereafter, in the year 2006 once again treating the other part of the contiguous and running land as a strip of land to the other brother. 7. Ordinarily, the rule of disposal is by way of auction, which is the recognised mode of disposal of public land. Rule 23 is an exception to the disposal of land by auction, in a situation where the small piece of land is less than 100 sq.yard adjoining an existing plot is available which cannot be put to independent use. It is apparent that two brothers sought allotment of the land which was more than 100 sq. yards by making separate applications at different points of time and got it allotted as a strip of land to each of them. It was a clever design which was found to be unacceptable by the District Collector and in violation of Rule 23 of the Rules and thus the disposal was set aside. 8. Learned counsel for the appellant submits that both the brothers had moved applications separately at different point of time. There was no collusion or design between them. The only objection raised by the complainant was that there is 5 ft. of space between his house and the land which opens in front of his house. It is submitted that the Municipal Corporation had followed the detailed procedure for disposal of land in accordance with Rule 23 of the Rules, in which no objections were filed. 9. We do not find any good reason to interfere with the order of learned Single Judge, who had dismissed the writ petition affirming the order of the District Collector. The District Collector had rightly found that the land was not open for disposal as it was more than 100 sq.yard and could not have been treated as strip of land for allotment to the two brothers, who are living adjacent to it, by sale on reserve price. The District Collector had rightly found that the land was not open for disposal as it was more than 100 sq.yard and could not have been treated as strip of land for allotment to the two brothers, who are living adjacent to it, by sale on reserve price. The plot size exceeding 100 sq.yard should have been put up for auction for best price to be fetched by the local body. 10. If the explanation submitted by the appellant is accepted, than even the large piece of land much more than 100 sq.yard can be settled separately with each of the house holder in a colony in whose front or side or back the land is situate and which will be in clear violation of Rule 23 of the Rules. 11. The Special Appeal has no merit and is accordingly dismissed. Appeal Dismissed.