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2021 DIGILAW 2354 (RAJ)

Omprakash v. Municipal Board

2021-12-16

SUDESH BANSAL

body2021
JUDGMENT 1. This miscellaneous appeal is being preferred under Order 43 Rule 1 read with Section 151 CPC assailing the order dated 01.04.2021, whereby the Additional District Judge, Ratangarh, Churu declined to grant ad-interim injunction to the appellants, during the course of hearing of the application for temporary injunction. 2. Relevant facts of the case as culled out from the plaint are that the land of Khasra Nos.623, 639, 655, 848, 850, 851, 863 and 865 total measuring 82 bighas and 14 biswas at village Ratangarh are recorded in the name of Gaushala Kasba Ratangarh in the revenue record and few of lands are recorded in the name of Pinjarapole Gaushala Ratangarh Charity Society. These lands of Gaushala are being managed by the Ratangarh Charity Samiti, which is said to be a registered society having Registration No.25/11/27 since 1927. The officiating members of the society were elected on 14.08.2015 and the then Secretary of this society got registered another society in the name of "Ratangarh Pinjarapole Gaushala Samiti" before the Registrar under Rajasthan Societies Registration Act, 1958. The newly constituted society viz., Ratangarh Pinjarapole Gaushala Samiti, has transferred a piece of land measuring 6000 square mtrs. (100 X 60 mtrs.) out of the land of Khasra No.639 total measuring 9.99 hectares, which is recorded in the name of Gaushala Kasba Ratangarh. A lease-deed dated 03.04.2019 has been executed in favour of Municipal Board, Ratangarh. The Municipal Board, Ratangarh being lessee took this piece of land for the purpose of construction of Sewerage Treatment Plant (STP). The construction and establishment of STP was started and, at that juncture, the appellants woke up and instituted a civil suit for permanent injunction on 04.03.2021 for and on behalf of the public of Ratangarh alleging, inter alia, that the lease-deed is void ab-initio as the land recorded in the name of Gaushala cannot be transferred for any other purposes. Alongwith the suit an application for temporary injunction was also filed, which is yet pending and has not been decided finally. 3. Alongwith the suit an application for temporary injunction was also filed, which is yet pending and has not been decided finally. 3. Counsel for the appellants argued that it is not in dispute that the piece of land measuring 6000 square mtrs., which is part of Khasra No.639 measuring 9.99 hectare is recorded in the name of Gaushala Kasba Ratangarh in the revenue record of Jamabandi and the respondent No.3 society, viz., Ratangarh Pinjarapole Gaushala Samiti has transferred the said piece of land to respondents No.l & 2, Municipal Board, Ratangarh by way of lease-deed. This lease-deed is illegal and void ab-initio and stands in violation of the Rajasthan Land Revenue (Allotment of Land To Gaushalas) Rules, 1957 (hereinafter referred to 'as the Rules of 1957'). Sub-rule (4) and (5) of Rule 8 of the Rules of 1957 have been pressed in support of his contention. 4. The counsel for the appellants has argued that the piece of land is recorded in the name of Gaushala and it is reserved for the benefit of cattle, animals and birds for their enjoyment of natural environment and for their grazing purposes, therefore, transfer of a piece of land of Gaushala is against the interest of public and cattle/animals/birds. 5. It has also been argued that respondent No.3, Samiti, is not authorized to execute the lease-deed and transfer the said piece of land of Gaushala to respondents No.l & 2 for the STP purposes is without jurisdiction and void. The construction of STP by respondents No.l & 2 on the land of Gaushala would be against the interest of animals/cattle/birds, therefore, be stopped. 6. The counsel for the appellants has contended that the application for temporary injunction has not yet been decided finally and the reply from the respondents No.l, 2, 3(b) as also for respondent No.4 were not filed, yet the trial Court committed jurisdiction error in not passing the ad-interim injunction to stay the on-going construction/establishment of STP on the piece of land of Gaushala. Therefore, the impugned order dated 01.04.2021 be set aside and the ad-interim injunction be granted at least until the trial Court decides the application for temporary injunction finally on merits. 7. Respondent No.4, Tehsildar, has filed reply to the stay application before this Court. Therefore, the impugned order dated 01.04.2021 be set aside and the ad-interim injunction be granted at least until the trial Court decides the application for temporary injunction finally on merits. 7. Respondent No.4, Tehsildar, has filed reply to the stay application before this Court. As per reply of the Tehsildar, the disputed land is agriculture and is part of Khasra No.639, which is recorded in the name of Gaushala Kasba town of Ratangarh in the revenue record of Jamabandi. It is contended that the land has not been allotted to Gaushala under the Rules of 1957 hence provisions of said Rules are not applicable on the disputed land. However, since the Gaushala is having the tenancy rights over the land according the Rajasthan Tenancy Act, 1955, therefore, agriculture land cannot be used for non-agriculture purpose and any improvement over the agriculture land can be made only after seeking due permission from the revenue authorities from the revenue authorities under the relevant provisions of law. Lastly, the appeal and stay application of the appellants have been prayed to be dismissed. 8. The respondents No.l, 2 and 3(b) are vehemently opposing the present appeal and justifying the decision of ad-interim injunction vide impugned order on some additional grounds also but at the same time, respondent No.3(a) does not oppose the prayer to grant ad-interim injunction to the appellants. 9. As far as respondent No.l, 2 and 3(b) are concerned, the counsel has raised preliminary objection that in view of Sections20-A of the Specific Relief Act, 1963 (as amended) (in short, 'the Act'), a civil suit for permanent injunction relating to infrastructure project itself is not maintainable before the civil court and only the special courts constituted under Section 20-B of the Act can entertain and decide the disputes relating to infrastructure projects. Counsel for the respondents submits that they have raised this objection before the trial Court by way of filing a separate application, which is yet pending and has not been decided. 10. Counsel for the respondents submits that they have raised this objection before the trial Court by way of filing a separate application, which is yet pending and has not been decided. 10. Respondents have vehemently raised objection that the Rules of 1957 are not applicable to the land in question as the land in question was not allotted to the Gaushala under the Rules of 1957, therefore sub-rules (4) and (5) of Rule 8 of the Rules of 1958 do not apply to the lease-deed in question and the ex-parte order dated 09.04.2021 passed by this Court to maintain status quo is liable to be vacated. 11. Counsel for the contesting respondents has strenuously urged that before filing of the present suit for permanent injunction in representative capacity on 04.03.2021, the appellants preferred a public interest litigation before Division Bench of this Court and in the said PIL and a specific was made to quash and set aside the lease-deed dated 03.04.2019 in question, but the said PIL bearing No.555/2021 has been dismissed as withdrawn vide order dated 04.02.2021 and the appellants were given liberty to pursue the representation before the appropriate authority, if so advised, in accordance with law. He submits that the appellants instead of pursuing the representation before the appropriate authorities have filed the present suit which is not bonafide and tainted with malafide as also suffers from suppression of material facts. Firstly, the appellants have not even whispered in their suit and T.I. application before the trial Court about filing of PIL challenging the lease-deed and dismissal of PIL vide order dated 04.02.2021 prior to filing of the suit on 04.03.2021 and further the appellants deliberately have not impleaded the State of Rajasthan, the District Collector, Churu who were made party in the PIL. The trial Court while deciding the ad-interim injunction considered this aspect and therefore appellants are not entitled to get any interim injunction in garb of filing representative suit as they are not fair and cannot ask for equitable relief in any manner. 12. He contends that the construction/establishment of STP is also for the benefit of public at large and crores of rupees have already been invested in the project and stoppage of STP in the middle would not in public interest rather it would be against the public interest. 12. He contends that the construction/establishment of STP is also for the benefit of public at large and crores of rupees have already been invested in the project and stoppage of STP in the middle would not in public interest rather it would be against the public interest. For the benefit and use of cattle/animals/birds a chunck of land of 82 bighas and 14 biswas is for Gaushala and 6000 square meters piece of land is being used for STP purpose, after taking on lease for some stipulated period of ten years. The land of Gaushala will remain continuing to be Gaushala and shall not be divested/transferred further. The Ratangarh Charity Society, which is managing the Gaushala has not objected and the appellants, in order to achieve some ulterior motive, want to stall the STP of Government taking shelter of public interest of public at large is considered vis-a-vis the interest of cattle/animals/birds, it is in the larger and greater interest of public of Ratangarh to continue the project of STP which would ultimately for the benefit of public at large. Therefore, there is no scope to grant injunction, much less ad-interim injunction in favour of the appellants. 13. During the course of arguments, following points have emerged for consideration by this Court: (a) The appellants have tried to take resort of the Rule 8(4) and (5) of the Rules of 1957 to contend that the lease-deed is in violation to the said Rules but this point was not raised before the trial Court. The respondents vehemently dispute that Rule 8(4) and (5) of the Rules of 1957 are not at all applicable to the land in question as this land is not allotted on lease to the Gaushala. The trial Court may consider this objection independently without being influenced by the ex-parte interim order dated 09.04.2021 passed by this Court. (b) As per respondents, suit for permanent injunction and application for temporary injunction filed by the appellants are not maintainable at all before the civil court in view of Section 20-A of the Act, which has been inserted as special provision for contract relating to infrastructure project in the Specific Relief Act. (c) As per the respondents, the Ratangarh Charity Society, which is a registered body since 1927 and managing the affairs of the land of Gaushala, has not objected to the lease-deed. (c) As per the respondents, the Ratangarh Charity Society, which is a registered body since 1927 and managing the affairs of the land of Gaushala, has not objected to the lease-deed. The action of the appellants to stall the project of STP may not be treated as bona fide and in the interest of public. (d) As per respondents, the project of STP launched by the Municipal Board is also in the larger interest of public and stopping its construction in the middle would be against the public interest. (e) As per the respondents interest of public of Ratangarh would greater and served by operation of STP, which is larger public interest vis-a-vis the interest of cattle/animals/birds and if out of 82 bighas and 14 biswas land of Gaushala, a piece of land of 6000 square meters is used for construction/establishment of STP, same may not be treated in violation of the interest of cattle/animals/birds. (f) As per respondents, appellants firstly filed PIL to quash the lease-deed in question and when could not get any relief in the PIL, has filed the present suit before the civil court wherein the factum of filing PIL has been suppressed and the State Govt. and the Collector have not been made party, therefore, the appellants have not approached the civil court with clean hands and their action is highly tainted with mala fides and belated as well. (g) As per respondents that trial Court has rightly declined to grant ad-interim injunction in favour of appellant, yet for all above stated additional grounds also no injunction can be granted to stop the project of STP and T.I. itself is liable to be dismissed. The ex-parte interim order of status quo dated 09.04.2021 passed by this Court deserves to be vacated and appeal be dismissed. 14. Heard learned counsel for the parties in detail. 15. It is well clear that while passing the impugned order dated 01.04.2021 declining to pass ad-interim injunction order, all the points raised by both the parties during the course of hearing of this appeal were not raised before the learned trial Court and as such were not considered by trial Court. During the course of appeal, the appellants have raised new points as regards the lease-deed in question being violative of Rule 8(4) and (5) of the Rules of 1957. During the course of appeal, the appellants have raised new points as regards the lease-deed in question being violative of Rule 8(4) and (5) of the Rules of 1957. Similarly, the contesting respondents have also raised several new points, which have been raised first time before the appellate Court. This Court does not want to express any opinion on merits on the new points raised by both the sides during the course of appeal first time and feels that it is appropriate to relegate the parties to raise their all objections before the trial Court during the course of hearing of the application for temporary injunction finally. As the application for temporary injunction is yet to be heard and decided finally, therefore, trial Court may consider all the points on merits. 16. This Court during the course of appeal vide order dated 09.04.2021 has directed the respondents to maintain status quo as it exists today and such interim stay is in operation till date. 17. During the course of hearing of the appeal, a query was put for the respondent Municipal Board that before starting the construction of STP on the land in question, which is indisputably an agriculture land of Gaushala, whether any land used was changed and permission from the concerned authorities was taken? There is no answer from the side of the respondent Municipal Board to this query, nor any such order of change of land use and any permission giving sanction regarding construction of STP has been placed on record. Thus, this Court is of the opinion that without obtaining permission of change of land use and without sanction of construction plan, the construction work on the agriculture land is not permissible in law. Therefore, only for this reason, this Court is continuing the interim order of status quo dated 09.04.2021, which shall remain continue until the trial Court decides the application for temporary injunction finally. If the respondent Municipal Board submits any order of change of land use and sanction for permission, the trial Court will consider the same. 18. Therefore, only for this reason, this Court is continuing the interim order of status quo dated 09.04.2021, which shall remain continue until the trial Court decides the application for temporary injunction finally. If the respondent Municipal Board submits any order of change of land use and sanction for permission, the trial Court will consider the same. 18. Thus, without expressing any opinion on merits and without setting aside the impugned order of the trial Court dated 01.04.2021, this appeal is disposing of this appeal with a direction that the leaned trial Court that shall hear and decide the application for temporary injunction finally on merits, after due appreciation of all the points mentioned hereinabove and all other arguments/objections raised by the parties, within a period of two months from the date of receipt of copy of this order and without being prejudiced by the extension of interim stay order dated 09.04.2021 by this Court. 19. The parties are expected to complete their pleadings before the trial Court at least in relation to application for temporary injunction, if not already done, within thirty days from today in order to hear and decide the application for temporary injunction finally within the prescribed time as mentioned hereinabove. 20. The stay application and all other pending applications, if any, are also disposed of.