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Rajasthan High Court · body

2023 DIGILAW 927 (RAJ)

Heera Devi Tiwari v. Municipal Board, Nokha

2023-04-26

NUPUR BHATI

body2023
ORDER : 1. The present writ petition has been filed under Articles 226 and 227 of the Constitution of India with the following prayers: “(a) by an appropriate writ, order or direction the writ petition filed by the petitioner may kindly be allowed. (b) by an appropriate writ, order or direction impugned action on the part of the respondent authorities in rejecting the case of the petitioner for regularization of land in dispute may kindly be held illegal and accordingly, impugned order dated 15.06.2016 (Annex.19) passed by the respondent No. 3-Director, Local Self Department, Rajasthan, Jaipur as well as decision dated 13.11.2014 (Annx.13) taken upon Agenda No. 2 in the meeting of Executive Committee of the respondent-Municipal Board may kindly be quashed and set aside. (c) by an appropriate writ, order or direction, the respondent-Municipal Board, Nokha may kindly be directed to restore the possession of the petitioner and thereafter, regularize the land in dispute in the name of the petitioner in light of the consent given by them in their written submission (Ann.11) filed before the respondent No. 3 forthwith.” 2. The brief facts of the case are that one Shri Srilal Tiwari was allotted a land ad measuring 711 sq. ft. situated near Navli Gate, Nokha, District Bikaner prior to the year 1973 on rent by the respondent-Municipal Board and possession of the same was also given and he was running his shop there. On 21.06.1991, the respondent-Municipal Board, without any notice to the allottee, dispossessed him. Thereafter, when the matter came to the knowledge of the Local Self Department, the respondent No. 3 made a communication dated 29.07.1991 (Annex.1) to the Chairman, Municipal Board, Nokha and directed him to restore the dispossessed persons on the same place or any nearby appropriate place. However, in spite of the aforesaid, the original allottee (Shri Srilal Tiwari) was not given appropriate place, therefore, he instituted a civil suit against the respondent-Municipal Board wherein a compromise dated 10.02.1995 (Anne.2) was arrived at between the parties and it was agreed upon to allot 684 sq. ft. land in place of 711 sq. ft. in the southern side of Booking Room situated at Navli Gate and further ensured to complete the regularization proceedings and the suit was decreed accordingly vide order dated 10.02.1993. 3. ft. land in place of 711 sq. ft. in the southern side of Booking Room situated at Navli Gate and further ensured to complete the regularization proceedings and the suit was decreed accordingly vide order dated 10.02.1993. 3. In pursuance of the said compromise, the respondent-Municipal Board directed the Munior Engineer to give possession of 38’ x 18’ = 684 sq. ft. land to the original allottee as per Condition No. 1 of the compromise after leaving 15 ft. land of southern side of Booking Room vide order dated 29.04.1995. Pursuant to the order aforesaid, the possession of the land was given to the original allottee (Shri Srilal Tiwari). 4. Thereafter, the original allottee (Shri Srilal Tiwari) sold 342 sq. ft. of the land out of the total 684 sq. ft. land to the petitioner through agreement to sale dated 08.06.1995 for a consideration of Rs. 1,00,000/- and possession was also handed over to him. After purchase of the said land, the petitioner invested huge amount to develop the land and constructed a shop thereon. 5. Thereafter, the original allottee (Shri Srilal Tiwari) and the petitioner applied for regularization of their respective pieces of land, in pursuance whereof, the respondent-Municipal Board regularized the possession of 270 sq. ft. out of 342 sq. ft. land of the original allottee (Shri Srilal Tiwari), however, possession of the petitioner was not regularized and the matter was pending before the respondent No. 3. However, in spite of this fact, the respondent-Municipal Board started threatening the petitioner for demolishing here construction. In such situation, the petitioner preferred a writ petition before this Court being SBCWP No. 7037/2003, which came to be disposed of by this Court vide order dated 22.01.2003 directing the respondent No. 3 to decide the matter expeditiously, preferably within a period of three months and till then status quo was ordered to be maintained. 6. Pursuant to the aforesaid direction of this Court, the respondent No. 3 remanded the matter back to the respondent-Municipal Board to consider the matter of the petitioner after affording opportunity of hearing vide order dated 16.04.2004. It was also directed that if the respondent-Municipal Board does not find it a fit case for regularization then the till the period of limitation for filing an appeal, no eviction proceedings be held and construction of the petitioner be also not removed. 7. It was also directed that if the respondent-Municipal Board does not find it a fit case for regularization then the till the period of limitation for filing an appeal, no eviction proceedings be held and construction of the petitioner be also not removed. 7. Thereafter, the Administrative Committee of the respondent-Municipal Board took the matter of the petitioner in its meeting held on 06.01.2005 at Agenda No. 2 and decided that possession of the petitioner over the land in dispute is not liable to be regularized, in compliance whereof, the respondent-Municipal Board also issued a letter dated 20.05.2005 to the petitioner. Being aggrieved, the petitioner preferred an appeal before the respondent No. 3. However, in the meantime, the Senior Town Planner, Bikaner Zone, Bikaner made a communication dated 21.08.2004 to the Additional Chief Town Planner (Scheme), Jaipur for cancellation of earlier letter of Senior Town Planner dated 17.06.1997 wherein it was stated that width of Sujangarh Road is 80 ft. and, therefore, 40 ft. land towards northern side from the center point of the road is necessary to be kept open for way and in place whereof, the petitioner can be given 15 ft. land situated in the southern side of the Booking Window and it was also stated that since the shop is constructed on the site is at a distance of 34 ft. from the center point of the said road and half of the land measuring 19 x 18 sq. ft. has already been regularized in favour of Shri Srilal Tiwari (original allottee), therefore, the concerned land was required to be regularized by the Municipal Board. Thereafter, the respondent-Municipal Board also made a communication dated 24.08.2005 to the respondent No. 3 stating inter-alia that since the Chief Town Planner, Jaipur has got re-examined the site from the Senior Town Planner, who vide letter dated 21.08.2004, has opined that the land of the petitioner is situated at a distance of 34 ft. from the center point of the road and the application is for regularization of remaining land after leaving 6 ft. land, therefore, the same can be regularized. 8. The respondent-Municipal Board, in the reply to the appeal filed by the petitioner before the respondent No. 3, categorically admitted that as per the letter dated 21.08.2004, it is agreed to regularize 17’ x 18’ land of the petitioner after charging 5% additional amount. land, therefore, the same can be regularized. 8. The respondent-Municipal Board, in the reply to the appeal filed by the petitioner before the respondent No. 3, categorically admitted that as per the letter dated 21.08.2004, it is agreed to regularize 17’ x 18’ land of the petitioner after charging 5% additional amount. It was, however, stated that 6 ft. land of the way cannot be regularized. Considering the aforesaid, the respondent No. 3, without hearing the matter on merit, remanded the same back to the respondent-Municipal Board with a direction to place the same before the Administrative Committee of the Municipal Board for decision afresh in accordance with the rules vide order dated 17.05.2008. 9. It is alleged that before the decision dated 13.11.2014, the authorities of the respondent-Municipal Board issued a notice to the petitioner for removal of her encroachment and also threatened her, therefore, the petitioner again preferred a writ petition being SBCWP No. 8127/2014 before this Court in which this Court granted interim order for maintaining status quo vide order dated 14.11.2014. 10. The Administrative Committee of the respondent-Municipal Board took up the matter of the petitioner in pursuance of the order dated 17.05.2008 of the respondent No. 3 at Agenda No. 2 in its meeting wherein it was unanimously decided to reject the case of the petitioner for regularization and she was directed to remove her encroachment on the land in question. The petitioner, being aggrieved of the same, again preferred a revision petition before the respondent No. 3 along with stay petition and the respondent No. 3, in view of the order dated 14.11.2014 passed by this Court in SBCWP No. 8127/2014, also granted interim order for maintaining status quo during the pendency of the revision petition. The respondent-Municipal Board filed reply to the revision petition and specifically denied that the land in question cannot be regularized in favour of the petitioner. The petitioner filed rejoinder to the reply and denied all the contents of the reply and specifically submitted that the Municipal Board is estopped by its consent given earlier whereby it agreed to regularize 17’ x 18’ land in favour of the petitioner. The interim order dated 14.11.2014 granted by this Court came to be vacated vide order dated 09.03.2015 and consequently, the respondent No. 3 also vacated the interim order vide order dated 29.06.2015. The interim order dated 14.11.2014 granted by this Court came to be vacated vide order dated 09.03.2015 and consequently, the respondent No. 3 also vacated the interim order vide order dated 29.06.2015. The respondent-Municipal Board, in the meantime, issued a notice dated 22.05.2015 to the petitioner directing her to remove her shop along with goods failing which her encroachment would be removed by the Municipal Board itself. Therefore, the petitioner again preferred a writ petition before this Court being SBCWP No. 5830/2015 which came to be disposed of vide order dated 13.05.2016 with a direction to the respondent No. 3 to decide the revision petition expeditiously and further directed that till the disposal of the revision petition, status quo shall be maintained. 11. The respondent No. 3, thereafter, rejected the revision petition of the petitioner vide order dated 15.06.2016 affirming the decision of the respondent-Municipal Board dated 13.11.2014 vide which application for regularization filed by the petitioner was decided to be rejected. 12. Hence, the petitioner, being aggrieved of the orders dated 13.11.2014 (Annex.13) and 15.06.2016 (Annex.19) has preferred this writ petition. 13. Learned counsel for the petitioner submits that the impugned orders are bad and needs to be quashed and set aside for the reason that the Chairman, Municipal Board has made a communication to the Director, Local Self Department wherein it was mentioned that the Senior Town Planner, in his letter dated 21.08.2004, had given an opinion that the land of the petitioner, situated at a distance of 34 ft. from the center point of the road and after leaving 6 ft. land, the remaining land could be regularized and the Municipal Board shall have no objection to the same and the regularization of the land of the other similarly situated people has not been denied by the same authority. 14. He further submits that in the written submissions submitted in the revision petition before the concerned authority, it has been categorically stated that the Municipal Board, in view of the letter dated 21.08.2004, has agreed to regularize 17’ x 18’ land of the petitioner as per the rules prevalent. He also submits that a compromise was entered into between the parties, wherein the respondents, while taking a conscious decision, had agreed that the original allottee would be given 684 q. ft. in place of earlier allotted land ad-measuring 711 sq. ft. He also submits that a compromise was entered into between the parties, wherein the respondents, while taking a conscious decision, had agreed that the original allottee would be given 684 q. ft. in place of earlier allotted land ad-measuring 711 sq. ft. in the southern side of booking room, situated at Navli Gate on rent and the proceedings for its regularization would be made in accordance with the rules and based on such compromise, the civil suit filed by the original allottee was decreed on 10.12.2015 and thus, the respondents are estopped by the doctrine of promissory estopple and, therefore, cannot take a different stand and reject the regularization of the land of the petitioner. 15. Learned counsel also submits that vide order dated 24.12.2001, the respondents have laid down certain conditions and the relevant part is reproduced hereunder: He submits that thus, the objection of the respondents that the petitioner is not in lawful possession of the land in dispute is absolutely false and unjust for the reason that in pursuance of the order dated 24.12.2001, even when the original tenant, without the permission of the Board, transfers his right by way of sale or any other means to the other person, in that case also, the order dated 24.12.2001 is applicable and 5% excess amount would be levied on the leviable amount as per the percentage fixed as per the order dated 24.12.2001, meaning thereby that transfer of rights by original tenant by any other way other than sale is also treated to be a valid transfer of rights and therefore, the agreement to sale between the petitioner and Shri Shreelal cannot be declared as null and void by the respondents. 16. It has also been submitted by the learned counsel that by way of rejoinder, they have established a case that the lands of similarly situated people, have already been regularized, whereas the petitioner has been left out for arbitrary reasons. 17. Learned counsel for the petitioner places reliance upon the judgment of Hon’ble the Apex Court in the case of M/s. Motilal Padmpat Sugar Mills Co. (P) Ltd. vs. State of Uttar Pradesh and Others, 1979 AIR 621, Kalu Chand vs. State of Rajasthan and Others, 1997 (2) WLN 258 and Anardeen and Others vs. State of Rajasthan and Others, S.B.C.W.P. No. 7307/2007, decided on 11.04.2012. (P) Ltd. vs. State of Uttar Pradesh and Others, 1979 AIR 621, Kalu Chand vs. State of Rajasthan and Others, 1997 (2) WLN 258 and Anardeen and Others vs. State of Rajasthan and Others, S.B.C.W.P. No. 7307/2007, decided on 11.04.2012. The relevant paragraphs of the judgment in the case of M/s. Motilal Padampat Sugar Mills Co. (P) Ltd. (supra) are reproduced as under: “1. The view taken by the High Court, namely, that even if there was an assurance given by the 4th respondent on behalf of the State Government and such assurance was binding on the State Government on the principle of promissory estoppel, the appellant had waived its right under it by accepting the concessional rates of sales tax set out in the letter of the 5th respondent dated 20th January, 1970 is not correct. 4. The doctrine called “promissory estoppel, equitable estoppel, quasi estoppel and new estoppel” is a principle evolved by equity to avoid injustice where a promise is made by a person knowing that it would be acted on and it is person to whom it is made and in fact it is so acted on and it is inequitable to allow the party making the promise to go back upon it. Though commonly named promissory estoppel it is neither in the realm of contract nor in the realm of estoppel. The basis of the doctrine is the inter position of equity, which has always true to its form stepped in to mitigate the rigours of strict law. 5. The true principle of promissory estoppel is that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relationship effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is infact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any pre-existing relationship between the parties or not. Equity will in a given case where justice and fairness demand, prevent a person from insisting on strict legal rights even where they arise, not under any contract, but on his own title deeds or under statute. To the applicability of the doctrine of promissory estoppel it is not necessary that there should be some contractual relationship between the parties. Nor can any such limitation, namely, that the doctrine of promissory estoppel is limited in its operation to cases where the parties are already contractually bound and one of the parties induces the other to believe that the strict rights under the contract would not be enforced be justifiably introduced to curtail the width and amplitude of the doctrine. The parties need not be in any kind of legal relationship before the transaction from which the promissory estoppel take its origin. The doctrine would apply even where there is no preexisting legal relationship between the parties, but the promise is intended to create legal relations or affect a legal relationship whish will arise in future.” The relevant paragraphs of the judgment in the case of Kalu Chand (supra) are reproduced hereunder: “17......It is urged by the learned Counsel for the petitioner that Municipal Board, Jalore falls within the ambit of “other authority” under Article 12 of the Constitution and as such cannot be allowed to commit breach of solemn undertaking on the basis of which the petitioner has acted. According to Shri Joshi, in the present case, doctrine of promissory estoppel is clearly attracted, therefore, the representation made by Municipal Board, Jalore can be enforced by a writ of mandamus, directing the respondents to perform its statutory duty by executing a registered patta in his favour and impugned orders Annexures 8, 9 and R2 may be quashed.... 20. From perusal of Annexure 1 to 6, it is evident on the face of record that the respondents” No. 2 and 3 by their words and conduct made to the petitioner a clear and unequivocal representation which was intended to create legal relationship between them in respect of the plot in question knowing and intending fully well that it would be acted upon by him. In such a situation this Court is called upon to adjudicate as to whether the doctrine of promissory estoppel is attracted in the present case. In such a situation this Court is called upon to adjudicate as to whether the doctrine of promissory estoppel is attracted in the present case. 22........the Apex Court in Moti Lal Padampat Sugar Mills (supra) ruled that doctrine of promissory estoppel is not limited in its application only to defence but it can also be available as a cause of action. Its principles are applicable against the Government in the exercise of its Government, public or executive functions. Its principles can be extended in all administrative functioning of the Government and plea of executive necessity is not available to State provided the court is objectively satisfied that an official or officials who made a promise knowing or intending that it would be acted upon by the promisee and in fact the promisee acting in reliance of it altered his position. In such a situation the promisor cannot be allowed to go back from his promise...... 28. There is yet another reason to arrive at the aforesaid conclusion. Now, the courts of law have evolved another equitable principle popularly known as theory of legitimate expectation which is akin to the principle of promissory estoppel. Now, it is well settled that doctrine of legitimate expectation and rule of promissory estoppel are invoked in those cases where one expects profits pecuniary or other advantages of the like nature. In the backdrop of the case on hand the petitioner is also entitled to get the benefit of rule of legitimate expectation from respondents.” The relevant paragraphs of the judgment in the case of Anardeen and Others (supra) is reproduced hereunder: “After hearing counsel for both the parties, it appears that the order impugned is totally non-speaking order, therefore, order Annex.3 dated 12.02.2007 is hereby quashed and matter is remitted to the Deputy Secretary, Local Self Department, Government of Rajasthan, Jaipur for passing fresh order after considering the resolution passed by the members of the Municipal Board, Nokha objectively for the purpose of regularization of the shops since the petitioners are in possession of the shops since 1967 and as per resolution No. 13 they are held entitled for regularization and shops of similarly situated persons were regularized by the orders of the Deputy Secretary, Local Self Department, Rajasthan, Jaipur as per Annex.R/3/1 dated 04.01.1986.” 18. Learned counsel for the respondents submits that the agreement for sale dated 08.06.1995 is not a lawful document as the same is an unregistered document, having no sanctity and, therefore, based on such document, the petitioner cannot be said to be a lawful owner for the piece of land and thus, the land of the petitioner cannot be regularized. He further submits that the case of one Shri Shrilal, from whom the petitioner had purchased the land, cannot be considered to be at the same footing for the reason that Shri Shrilal was the original tenant of the land in dispute, whereas the petitioner is an encroacher and not an owner and, therefore, the impugned orders have rightly been passed. 19. He also submits that the case of the petitioner was duly considered by the competent authorities but upon examination of the entire case, it was found that the petitioner has encroached over the property, which is a part of national highway and GREF road. He submits that as the petitioner is not having any valid title over the land in dispute, therefore, he cannot claim any right over the land for the purpose of regularization on the basis of letter dated 21.08.2004, issued by the Senior Town Planner, Bikaner Zone, Bikaner. 20. Learned counsel for the respondents places reliance upon the judgment of Hon’ble Court in the case of Suraj Lamp and Industries Private Limited vs. State of Haryana and Another, (2012) 1 SCC 656 . The relevant paragraphs in the judgment of Suraj Lamp and Industries Private Limited (supra) is reproduced as under: “16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas vs. S.A. Kamtam, observed: “32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad vs. Ram Mohit Hazra) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad vs. Ram Mohit Hazra) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or casement therein. 33. In India, the word ‘transfer’ is defined with reference to the word ‘convey’ .... The word ‘conveys’ in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership. 37.....that only on execution of conveyance, ownership passes from one party to another...” 17. In Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra this Court held: “10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party.” 18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. 19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a b registered instrument and an agreement of sale does not create any interest or charge on its subject-matter.” 21. Heard learned counsel for the parties and perused the material available on record. 22. It is an admitted position that the parties to dispute before the learned Civil Judge (JD), Bikaner, in Civil Original Suit No. 597/1993, Shrilal vs. Municipal Board, Nokha, had consciously arrived at an agreement that the original allottee would be given 684 sq. ft. land in place of 711 sq. ft. of land in the southern side of Booking Room situated at Navli Gate and the proceedings for regularization would be made in accordance with the rules. Based on the aforementioned agreement between the parties, the civil suit was decreed on 10.02.1995. After the compromise was entered into between the parties, the original allottee, i.e. Shri Shrilal sold out 342 sq. ft. of the land out of total 684 sq. ft. land to the petitioner through an agreement to sale on 08.06.1995. The respondents, upon an application made by Shri Shrilal for regularization of his piece of land, regularized total 270 sq. ft. of land out of 342 sq. ft. of land, however, the land of the petitioner was not regularized. The Senior Town Planner, in his letter dated 21.08.2004, categorically stated that the land of the petitioner is situated at a distance of 34 ft. from the center point of the road and the matter is for regularization of remaining land after leaving about 6 ft. of land and in such circumstances, if the land of the petitioner is regularized then the Municipal Board shall have no objection. 23. On one hand, after due examination of the facts and circumstances involved in relation to the land in dispute of the petitioner, the Senior Town Planner has given the opinion for regularization of the land of the petitioner and on the other hand, the respondent-Municipal Board has issued a communication rejecting the claim of regularization of the land of the petitioner on various grounds. This Court finds that the impugned orders have been passed without application of mind as on earlier occaions, the Municipal Board, while keeping into consideration the letter dated 21.08.2004, issued by the Senior Town Planner arrived at a conclusion that the land of the petitioner, if regularized, then the Municipal Board shall have no objection. This opinion has been given for the same piece of land for which now by way of impugned orders that respondents have denied regularization on the ground that petitioner is an encroacher and that the agreement to sale is not a valid document as the same is not registered. 24. This Court finds that the piece of land, which vests with one Shrilal, has already been regularized by the respondents and the land of the petitioner, which was a part of the land of one Shrilal, as the same was given away to the petitioner by way of an agreement to sale, has been denied regularization. 25. This Court observes that the fact that the petitioner is having the land in dispute by way of agreement to sale from one Shri Shrilal was well within the knowledge of the respondents as well as the location of the land, for which regularization has been sought by the petitioner. Further, on earlier occasions, the respondent authorities have never raised any objection that the land of the petitioner is falling in the National Highway or GREF or the petitioner has encroached upon the land and neither any objection was raised that the agreement to sale was not a valid documente. Rather, after examination of the complete facts and circumstances, the Chairman, Municipal Board stated that if the land of the petitioner is regularized, then the Municipal Board shall have no objection to it. 26. This Court also finds that the respondents have not considered the facts and circumstances of the case and have, without application of mind, passed the impugned orders dated 15.06.2016 (Annex.19) and 13.11.2014 (Annex.13), denying the regularization of her land and, therefore, the impugned orders dated 15.06.2016 (Annex.19) and 13.11.2014 (Annex.14) are quashed and set aside and the respondents are directed to regularize the land in dispute of the petitioner within a period of three months from the date of receipt of this order. 27. The writ petition is, therefore, allowed. All pending applications also stand dismissed.