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2021 DIGILAW 1796 (RAJ)

Kamla Devi v. State of Rajasthan, Through the Secretary, Department of Urban Development

2021-09-22

INDERJEET SINGH

body2021
JUDGMENT : INDERJEET SINGH, J. This writ petition has been filed by the petitioner with the following prayers: “(i) That the impugned order dated 27.11.2017 annex p/11 passed by the respondent no. 1 may kindly be quashed and set aside. (ii) That the decision taken by the UIT dated 20.02.2018 annex P/13 may kindly be declared illegal and may kindly be quashed and set aside with all consequential benefits. (iii) That the letter annexes P/15 dated 13.06.2018 may kindly be quashed and set aside. (iv) That the patta issued to the Petitioner i.e. annex P/2 may kindly be ordered to be restored and the respondents may kindly be directed not to interfere in the peaceful possession of the Petitioner in the plot in question.” 2. Brief facts of the case are that petitioner purchased a plot situated in Qila No. 25 of Murabba No. 39/41 of Chak 3E Chhoti, Sri. Ganganagar ad-measuring 30ft × 85ft. After purchasing of the said plot, the petitioner submitted an application with Urban Improvement Trust (referred to as, ‘UIT’) for issuance of patta so that she can construct a house over the said plot. The UIT considered the request of petitioner and issued an allotment letter dated 10.11.2000 under Section 90B of the Land Revenue Act, 1956 and also issued lease-deed on 10.11.2000 and the same was duly registered with the Sub-Registrar, Sri. Ganganagar. After issuance of the allotment letter as well as the lease-deed, the petitioner constructed a house over the said plot and started residing peacefully. 3. As per the plan approved on 12.09.1989 by UIT, in front of the plot of the petitioner, 100ft wide road was shown therein, which merged in the 60ft wide road on a “T” point. In the final master plan of city of Sri. Ganganagar for the year 2003-2023, the 100ft wide road has been shown as straight and not in the spiral shape. The respondent No. 4 submitted an application in the year 2015 seeking permission for construction of a house on the plot measuring 75ft × 165ft situated other side of the road for which the Land Conversion Officer, Sri. Ganganagar issued patta in his favor on 27.09.1989, however, the same was not registered. The said application was considered by the UIT and the matter was referred to State Government vide letter dated 28.10.2015 with regard to application submitted by respondent No. 4. Ganganagar issued patta in his favor on 27.09.1989, however, the same was not registered. The said application was considered by the UIT and the matter was referred to State Government vide letter dated 28.10.2015 with regard to application submitted by respondent No. 4. The State Government vide letter dated 27.11.2017 directed the UIT for correction in the alignment of road as per the previous master plan dated 1981-2001. The UIT in its meeting of empowered committee dated 20.02.2018 (Annex.R/6), in compliance of directions issued by the State Government, took decision for changing the alignment of 100ft road from straight to curve and the patta issued in favor of the petitioner was also cancelled. Thereafter, the respondent-UIT had issued a notice dated 13.06.2018 informing the petitioner with regard to cancellation of the patta issued in her favor. Hence, this writ petition has been filed by the petitioner. 4. Learned counsel for the petitioner has submitted that respondent-UIT had issued lease-deed/patta in favor of the petitioner on 10.11.2000, which was duly registered before Sub-Registrar, Sri. Ganganagar and the same cannot be cancelled by way of an administrative order. Counsel further submitted that respondent-UIT issued the lease-deed/patta in favor of the petitioner as per the approved plan dated 12.09.1989, therefore, respondent-UIT cannot cancel the same. Counsel further submitted that as per the master development plan of Sri. Ganganagar for the year 2003-2023, the 100ft wide straight road has been shown in front of the house of petitioner, which has been merged in 60ft wide road on a “T” junction. Counsel further submitted that respondents have changed alignment of road from straight to curve without there being any public interest. Counsel further submitted that change in alignment of the road, affecting the house of petitioner, is violation of the guidelines issued by the Division Bench of this Court in the case of Gulab Kothari, Editor, Rajasthan Patrika, Jaipur v. State of Rajasthan reported in (2017) 1 WLC 562 (Raj.). Counsel further submitted that registered sale-deed can only be cancelled by way of filing a civil suit. 5. In support of his contentions, learned counsel for the petitioner has relied upon the judgment passed by Division Bench of this Court in the case of Gulab Kothari, Editor, Rajasthan Patrika, Jaipur v. State of Rajasthan reported in (2017) 1 WLC 562 (Raj.) wherein the Court held: “87. 5. In support of his contentions, learned counsel for the petitioner has relied upon the judgment passed by Division Bench of this Court in the case of Gulab Kothari, Editor, Rajasthan Patrika, Jaipur v. State of Rajasthan reported in (2017) 1 WLC 562 (Raj.) wherein the Court held: “87. Thus, there cannot be any quarrel with the proposition that the Master Plan, which is a policy document for guiding the future development of the city Or town in the planned manner and to arrest undesirable and unplanned growth, is not a static document, which cannot be modified or revised as and when considered necessary in the larger public interest in furtherance of planned development of the urban area in respect whereof it is made operative. But then, the Master Development Plan prepared to master the future development in the city or town democratically, after due deliberation and consideration of suggestions and objections from the public at large, cannot be permitted to be set at naught at the whim and fancy of the authority concerned just to serve the interest of individuals. Obviously, the object of the planned development shall be achieved by rigorous and successful implementation of the Master Development Plan and not by deviation therefrom with impunity. (iv) Once the Master Development Plan is brought into being, vigilant implementation thereof shall be the rule and any deviation therefrom an exception and therefore, the power vested with the authority or the State Government for modification thereof during its operative period shall be exercised sparingly in larger public interest, to achieve the basic object thereof i.e. planned development of the concerned region, city or town and not to sub-serve interest of an individual.” 6. Learned counsel has also relied upon the judgment passed by this Court in the case of Gulam Jilanee S/o Gulam Sarvar v. Director of Local Self Government Department reported in 2018 Supreme 170 (Raj), wherein the Court held: “7. The impugned order dated 10.5.2016 has been passed by the Collector, Sikar. Even in terms of a plain reading of Section 73(2) of the Act of 2009, the Collector, Sikar does not have the power thereunder as nothing has been brought on record to show that the State Government had authorized him to exercise powers under Section 73(2) of the Act of 2009. Even in terms of a plain reading of Section 73(2) of the Act of 2009, the Collector, Sikar does not have the power thereunder as nothing has been brought on record to show that the State Government had authorized him to exercise powers under Section 73(2) of the Act of 2009. Further even otherwise Section 73(2) of the Act of 2009 applies only at the stage of proposal to lease/sell municipal land not subsequent to its lease/sale and registration. Besides, Mr. M.M. Ranjan has not been able to satisfy this Court that the registered lease deed dated 7.5.1997 is a statutory lease deed. This Court in the case of Ramchandra S/o Shri Gulabchand Nai (supra) has held that the power under Section 73(2) of the Act of 2009 even when exercisable by the State Government or an officer authorized by it can be only at the stage of a proposal to lease or sell municipal or government land and such power cannot be exercised subsequent to the execution of the lease deed and registration thereof. 8. The Apex Court in the case of Satya Pal Anand v. State of Madhya Pradesh (supra) has held that if a document is registered, it cannot be cancelled by the registering authority but such consequence can only flow from a suit for declaration being filed by the aggrieved party before a civil court of competent jurisdiction.” 7. Learned counsel has also relied upon the judgment passed by this Court in the case of Chand Mal v. Municipal Board, Kishangarh reported in 2007 Supreme 1743 (Raj), wherein the Court held: “5. The first and foremost question which is required to be considered in this case is whether the State Government by an administrative order dated 1.11.1976 could cancel the registered lease deed executed in favour of the petitioner without adopting due process of law for cancellation of such registered lease deed as admittedly no civil suit for cancellation of registered lease deed in favour of petitioner was filed by the State Government or any other person including the Municipal Board, Kishangarh. The order dated 1.11.1976 was also admittedly passed without giving any notice or opportunity of hearing to the petitioner. The said order reproduced in the writ petition indicates that the same was passed on the alleged wrong report of the Collector in respect of land in dispute. The order dated 1.11.1976 was also admittedly passed without giving any notice or opportunity of hearing to the petitioner. The said order reproduced in the writ petition indicates that the same was passed on the alleged wrong report of the Collector in respect of land in dispute. What was that report and how it was wrong is not known as the said report is not on record. In the considered opinion of this Court, such an order that too exparte and without giving any opportunity of hearing and considering the reasons could not have been passed by the Deputy Revenue Secretary cancelling the allotment and registered lease deed in favour of the petitioner. By an administrative order a vested property right by way of registered lease deed could not have been taken away. More so, if it is construed to be a quasi-judicial order, it could not have been passed without complying with the principles of natural justice, giving a notice and opportunity of hearing and thereafter passing a speaking order. The said order is, therefore, ex-facie illegal and unsustainable and deserve to be quashed and the same is accordingly hereby quashed.” 8. Learned counsel appearing on behalf of respondent-UIT submitted that the lease-deed/patta had wrongly been issued in favor of the petitioner, therefore, the State Government took a decision for changing the alignment of road. Counsel further submitted that respondent-UIT is having every right to cancel the lease-deed/patta, which had wrongly been issued in favor of the petitioner. Counsel further submitted that the petitioner has not made empowered committee as party to the writ petition. In support of his contentions, learned counsel for the respondent also relied upon the judgment in the case of Gulab Kothari (supra). 9. Counsel appearing for respondent No. 4 submitted that petitioner has filed the writ petition against the show cause notice issued by the respondent-UIT for cancellation of the patta, therefore, the instant writ petition is not maintainable. Counsel for respondent No. 4 alternatively argued that the part land of his plot ad-measuring 75ft × 50ft is coming in the road after straightening of the road, therefore, respondent-UIT may be directed to either give compensation or allot land in some other scheme of UIT. 10. Heard learned counsel for the parties and perused the record. 11. Counsel for respondent No. 4 alternatively argued that the part land of his plot ad-measuring 75ft × 50ft is coming in the road after straightening of the road, therefore, respondent-UIT may be directed to either give compensation or allot land in some other scheme of UIT. 10. Heard learned counsel for the parties and perused the record. 11. This writ petition filed by the petitioner deserves to be allowed for the reasons, firstly, the lease-deed/patta issued by respondent-UIT, which had been duly registered, cannot be cancelled by it by way of an administrative order. The registered lease-deed/patta can only be cancelled by way of filing a suit by the aggrieved party before the Civil Court of competent jurisdiction. Secondly, the show cause notice issued by the respondent-UIT on 13.06.2018 is a mere formality as the decision with regard to cancellation of lease-deed/patta had already been taken by empowered committee constituted by the UIT in its meeting dated 20.02.2018. Thirdly, the decision taken by the respondent-UIT in changing the alignment of road from straight to curve is contrary to the guidelines issued by the Division Bench of this Court in the case of Gulab Kothari (supra) as the change in alignment of the road is not in the public interest and the same has been done just to accommodate private respondent No. 4. Fourthly, the 100ft wide straight road is merging in a 60ft road at “T” point and change in the alignment of road from straight to curve will not serve any public purpose. Lastly, the petitioner, after registration of the lease-deed/patta, has constructed house over the plot whereas no construction has been made by respondent No. 4 on his plot, therefore, the equity is also in favor of the petitioner. 12. In that view of the matter, the instant writ petition is allowed in the following terms: 1. The impugned order dated 27.11.2017 (Annex P/11) passed by the respondent No. 1 is quashed and set aside. 2. The decision taken by respondent-UIT dated 20.02.2018 (Annex P/13) is quashed and set aside qua the petitioner. 3. The notice dated 13.06.2018 (Annex.-P/15), issued by respondent-UIT is quashed and set aside. 4. The impugned order dated 27.11.2017 (Annex P/11) passed by the respondent No. 1 is quashed and set aside. 2. The decision taken by respondent-UIT dated 20.02.2018 (Annex P/13) is quashed and set aside qua the petitioner. 3. The notice dated 13.06.2018 (Annex.-P/15), issued by respondent-UIT is quashed and set aside. 4. Respondent-UIT is directed either to pay compensation for the part land of plot of the respondent No. 4, which comes in the road, or allot the same size of plot in any other scheme of the UIT in the city of Sri. Ganganagar. 5. Respondent-UIT is further directed to remove all the encroachments from the 100ft road in question from its starting point to the ending “T” point within a period of two months from today.