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2017 DIGILAW 2186 (RAJ)

Municipal Board, Sirohi v. State Of Rajasthan

2017-10-11

NIRMALJIT KAUR

body2017
ORDER : Nirmaljit Kaur, J. The present writ petition is preferred against the communication dated 15.09.2006 vide which the State Government withdrew its earlier communication dated 09.12.2005 clarifying that the mutation can be entered in the name of the petitioner-Board as well as against the order dated 29.12.2006 vide which the mutation entered in the name of the petitioner Board was cancelled. 2. The petitioner No. 1 is the Municipal Board, Sirohi established under the Rajasthan Municipalities Act, 1959. In accordance with the provisions contained in Article 243W in Part-IXA of the Constitution read with the provisions of 12th Schedule to the Constitution, the petitioner Board was assigned the duty of preparation of plan for economic development, social justice, urban planning including town planning. In order to resolve the problems of the residents, a meeting of the City Monitoring Central Integrated Development Scheme was held for the city of Sirohi on 13.06.1988. The respondent No. 6 who was also present in the meeting, agreed to sell the land measuring 35 bighas 4 biswas and in pursuance of the same, a registered sale deed was executed by the respondent No. 6 in favour of the petitioner Board on 27.03.1989. Thereafter, the respondent No. 5 moved an application under Section 175 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the act of 1955") alleging that the sale deed executed in favour of the petitioner Board was in violation of Section 42 of the Act of 1955. Subsequently, the said application was withdrawn by the respondent No. 5 on the ground that provision of Section 42(b) of the Act of 1955 were not applicable in the case of the petitioner Board which is not a person. The said application was allowed vide order dated 09.10.1995 and the proceedings under Section 175 of the Act of 1955 stood withdrawn. Thereafter, the Tehsildar suddenly vide order dated 29.06.2005 after about 10 years cancelled the mutation entered in favour of the petitioner Board. The petitioner Board filed an appeal before the Additional Collector, Sirohi against the order of the Tehsildar dated 29.06.2005. The appeal was allowed vide judgment dated 04.01.2006 and the matter was remanded back to the Tehsildar with certain directions. The petitioner Board filed an appeal before the Additional Collector, Sirohi against the order of the Tehsildar dated 29.06.2005. The appeal was allowed vide judgment dated 04.01.2006 and the matter was remanded back to the Tehsildar with certain directions. Meanwhile, the State Government too vide communication dated 09.12.2005 clarified that the petitioner Board being an Institution, the sale deed in favour of the petitioner Board was not hit by Section 42 of the Act and further reiterated its opinion vide its communication dated 20.12.2005 and the mutation too was entered in the name of the petitioner Board on 18.03.2006. After the matter stood settled, the State Government vide its communication dated 15.09.2006 withdrew its earlier communication dated 09.12.2005. As a result, the mutation entered in the name of the petitioner Board was cancelled. Thereafter, Shri Bhanwar Lal, son of the respondent No. 6 filed a suit under Section 88 of the Act of 1955 for declaration, partition and possession. However, the said suit has been dismissed by the Assistant Collector, Sirohi vide judgment dated 28.09.2001 and the same has attained finality. 3. Learned counsel for the petitioner while praying for the said relief submitted that in the present case, the sale deed was executed in the year 1989, whereas, the mutation was cancelled in the year 2006. Hence, such an order of cancellation could not have been passed almost after 17 years. Secondly, the petitioner Board is an entity and therefore, the sale deed executed in favour of the petitioner Board is not hit by Section 42 of the Act of 1955. 4. Section 214 of the Rajasthan Tenancy Act reads as under: S.214 Limitation in cases under this Act - (I) The suits and applications specified in the Third Schedule shall be instituted and made within the time prescribed therein for them and every such suit instituted or application made after the expiry of the period of limitation so prescribed shall be dismissed. Provided that any such suit or application, for which the period prescribed by the said Schedule is shorter than the period prescribed by the law in force before the commencement of this Act, may be instituted or made within six months next after the commencement of this Act or within the period of limitation prescribed by the aforesaid law, whichever period expires first: Provided that any such suit or application for which a period of limitation is prescribed by the said Schedule but for which no period is prescribed by the aforesaid law may be instituted or made within the period prescribed by the said Schedule computed from the date of the commencement of this Act. (2) If the payment of rent has been suspended under the order of a competent authority on account of an agricultural calamity, the period of suspension shall be excluded in the computation of the period of limitation prescribed for a suit for the recovery of such rent. (3) Subject to the provisions contained in subsections (1) and (2) the provisions of the Indian Limitation Act, 1908 (Central Act LX of 1908) shall apply to suits, appeals, applications and proceedings under or in pursuance of this Act. 5. The first argument of the petitioner cannot be sustained in the facts of the present case as the sale deed was executed in the year 1989, whereas, the period of 12 years is prescribed under Item No. 66 of the Third Schedule. This was amended w.e.f. 05.10.1981 and the period of limitation was prescribed as 30 years. The transaction being of the year 1989, limitation is upto 30 years in the present case. 6. Be that as it may, the question of limitation need not be even gone into in the present case in view of the following facts that have emerged: (a) The application under Section 175 of the Act of 1955 filed by the respondent No. 5-Tehsildar already stood dismissed as withdrawn vide order dated 04.10.1985, the same has been placed on record as Annexure 6. (b) Even, the suit filed by the son of the Vendor, Shri Bhanwarlal under Section 88 of the Act of 1885 for declaration, partition and possession was dismissed by the Assistant Collector vide judgment dated 28.09.2001 and a copy of the same has been placed on record as Annexure 19 which has attained finality. (b) Even, the suit filed by the son of the Vendor, Shri Bhanwarlal under Section 88 of the Act of 1885 for declaration, partition and possession was dismissed by the Assistant Collector vide judgment dated 28.09.2001 and a copy of the same has been placed on record as Annexure 19 which has attained finality. (c) The second application under Section 175 of the Act of 1955 at the behest of Tehsildar is, therefore, not maintainable in view of the provisions contained under Order 2, Rule 2 CPC. However, even if it is assumed for the sake of argument that the respondent State is entitled to move a fresh application under Section 175 of the Act of 1955, the land in any case in view of the facts of present case, cannot be reverted back to the Vendor and the same if at all will have to be reverted back to the State. The petitioner being the Municipal board which is a statutory body established under the Rajasthan Municipalities Act, 1959 and an obligation having been placed upon it under the provisions contained under Article 243W in Part-IXA of the Constitution for providing relief to the public in the form of various facilities including the town development, it becomes incumbent upon the State to allow the petitioner Board to mutate the land in its favour. 7. There is yet another way of looking at the controversy. The petitioner Board can acquire the land under the provisions of the Land Acquisition Act, 1894. The Land Acquisition Act, 1894 does not prohibit the acquisition of land of Scheduled Caste and Scheduled Tribe persons. Hence, this Court find no reason to agree with the contention of the learned counsel for the petitioners that if the acquisition of land by virtue of the provisions of the Act of 1894 can be resorted to and vested in the petitioner Board, there is no reason for the State Government to take a view that the petitioner Board cannot acquire the agriculture land belonging to the scheduled caste and scheduled tribe persons for the purpose of development of residential colonies by private negotiations, especially when the vendor not only sold the land vide registered sale deed but his suit under Section 88 has also been dismissed and therefore, he is not entitled to the land to be reverted back to him. 8. 8. In view of the above, the present writ petition is allowed and the communication dated 15.09.2006 (Annx.13) and the order dated 29.12.2006 (Annx.15) are set aside. The earlier mutation No. 2220 entered in the name of the petitioner Board is confirmed.