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2024 DIGILAW 540 (RAJ)

Yogyadev v. Municipal Board, Taranagar

2024-04-03

VINIT KUMAR MATHUR

body2024
ORDER : Mr. Vinit Kumar Mathur, J. - Heard learned counsel for the parties. 2. The present writ petition has been filed against the notice dated 24.01.2023 issued by the Executive Officer, Municipal Board, Taranagar, District Churu in pursuance of the order dated 06.12.2022 passed by the Divisional Commissioner, Bikaner in Appeal No.01/2022. 3. Briefly noted the facts in the matter are that the petitioner, being the resident of Taranagar, District Churu, applied for grant of Patta. In pursuance of his application, the respondent No.1 issued a lease deed (Patta) on 30.03.2013 for the land situated at Khasra No.1847/697 at Ward No.16, Taranagar, District Churu ad-measuring 823.33 sq.yds. After issuance of the lease deed (Patta) in his favour, the petitioner got the same registered and is presently residing in the dwelling house constructed on the land in question. 4. The petitioner received a notice dated 24.01.2023 from the Executive Officer, Municipal Board, Taranagar, District Churu, wherein it was stated that in pursuance of the order dated 06.12.2022 passed by the Divisional Commissioner, Bikaner in Appeal No.01/2022, the lease deed (Patta) issued in favour of the petitioner on 30.01.2013 has been cancelled. It was also stated in the notice that if any construction has been undertaken within 75 ft. from the center point of the road, the same may be removed by the petitioner. Aggrieved of the notice dated 24.01.2023 issued in pursuance of the order dated 06.12.2022 passed by the Divisional Commissioner, Bikaner, the present writ petition has been filed. 5. Learned counsel for the petitioner submits that the petitioner was absolutely unaware of the fact of any appeal being filed against him before the Divisional Commissioner, Bikaner. He submits that after receipt of the notice dated 24.01.2023, when the petitioner inquired about the factum of the appeal filed before the Divisional Commissioner, Bikaner, he obtained the copy of the same. Learned counsel further submits that the certified copies of the proceedings of appeal were also obtained and as per the order dated 04.10.2022, the notices were issued in the appeal preferred by the private respondent No.4 and the same were made returnable on 19.12.2022. He submits that although the notices were issued, but the same were never served upon the petitioner and the learned Divisional Commissioner, without waiting for service of notice of appeal, decided the appeal itself on 06.12.2022 before the date fixed for return of the notices. He submits that although the notices were issued, but the same were never served upon the petitioner and the learned Divisional Commissioner, without waiting for service of notice of appeal, decided the appeal itself on 06.12.2022 before the date fixed for return of the notices. Learned counsel, therefore, submits that the learned Divisional Commissioner, Bikaner had decided the appeal without following the due process of law, much less without giving any opportunity of hearing to the petitioner. 6. Learned counsel for the petitioner further submits that the order dated 06.12.2022 passed by the Divisional Commissioner, Bikaner is in gross violation of the principles of natural justice and thus, the same is not sustainable in the eye of law. He submits that since the notice dated 24.01.2023 had been issued on the basis of the order dated 06.12.2022, therefore, the notice itself is de hors the law and is deemed to have been issued in gross violation of principles of natural justice. He, therefore, prays that the writ petition may be allowed and the order dated 06.12.2023 as well as the notice dated 24.01.2023 may be quashed and set aside. 7. Mr. Virendra Acharya, learned counsel appearing for the private respondent No.4 on Caveat very fairly submits that the order dated 06.12.2023 reflects that the petitioner was not heard in the matter before deciding the appeal. He submits that the order dated 06.12.2022 has been passed giving only a direction to the Municipal Board, Taranagar to reconsider the facts with respect to issuance of Patta No.366 dated 30.03.2013 issued in favour of the petitioner in accordance with the rules as the same is falling within 75 ft. from the center of the road. He, therefore, prays that the writ petition may be dismissed. 8. I have considered the submissions made at the Bar and have gone through the relevant record of the case. 9. It is an undisputed fact that the petitioner was issued a lease deed (Patta) by the Municipal Board, Taranagar on 30.03.2013 and he was rightfully in possession of the pattashud land. On an appeal being filed by the private respondent No.4, the learned Divisional Commissioner issued notices to the respondents in the appeal including the petitioner on 04.10.2022. 9. It is an undisputed fact that the petitioner was issued a lease deed (Patta) by the Municipal Board, Taranagar on 30.03.2013 and he was rightfully in possession of the pattashud land. On an appeal being filed by the private respondent No.4, the learned Divisional Commissioner issued notices to the respondents in the appeal including the petitioner on 04.10.2022. The certified copy of order-sheets of the appeal shows that notices were made returnable on 19.12.2022, however, the Divisional Commissioner, Bikaner, for the reasons best known to him, decided the appeal itself on 06.12.2022 without waiting for the service of notice upon the respondents in the appeal. Since no notice was served upon the petitioner, therefore, he did not appear before the learned Divisional Commissioner on the date on which the appeal preferred by the private respondent No.4 was decided. The order dated 06.12.2022 passed by the Divisional Commissioner, Bikaner deciding the appeal before the date fixed for return of the summons/notices issued to the petitioner is de hors the law and is in clear violation of the procedure required to be adopted while deciding the appeal. 10. The argument of the learned counsel for the respondents that the Additional Commissioner, Bikaner vide its order dated 06.12.2022 has merely remanded the matter back to the Municipal Board, Taranagar is noted to be rejected on the ground that any order adversely passed affecting the rights of a person cannot be passed without giving an opportunity of hearing to that person. Since, the order dated 06.12.2022 is having evil consequences upon the petitioner, therefore, the same could not have been passed without giving an opportunity of hearing to the petitioner. The same has been passed in violation of principles of natural justice, thus, the order dated 06.12.2022 is not sustainable in the eye of law. 11. In view of the discussions made above, the writ petition merits acceptance and the same is allowed. The order dated 06.12.2022 passed by the Divisional Commissioner, Bikaner is quashed and set aside. Consequently, the notice dated 24.01.2023 issued by the Executive Officer, Municipal Board, Taranagar, District Churu is also quashed and set aside. The matter is remanded back to the Divisional Commissioner, Bikaner for conducting the hearing on appeal afresh, after giving reasonable opportunity of hearing to all the concerned parties. 12. Consequently, the notice dated 24.01.2023 issued by the Executive Officer, Municipal Board, Taranagar, District Churu is also quashed and set aside. The matter is remanded back to the Divisional Commissioner, Bikaner for conducting the hearing on appeal afresh, after giving reasonable opportunity of hearing to all the concerned parties. 12. Needless to say, the petitioner will be at liberty to raise all the available defenses before the appellate authority. 13. The parties shall appear before the Divisional Commissioner, Bikaner on 23.04.2024 and thereafter on the dates as fixed by the Divisional Commissioner. 14. Stay petition as well as other pending applications, if any, shall stand disposed of.