Dargah Committee vs Additional District Judge and Others

Narendra Kumar Jain, J.—Heard learned Counsel for the parties. Plaintiff-petitioner filed a suit for perpetual injunction against the respondent No. 3 Municipal Council, Ajmer, to restrain it from encashing the disputed Cheques of the balance amount. An application for temporary injunction was also filed in the trial court, which was dismissed and an appeal, filed against the said order, has also been dismissed by the appellate court, hence, challenging both the orders passed by the courts below, the present writ petition has been preferred by the plaintiff.

Learned Counsel for the petitioner contended that the petitioner submitted a plan for construction of its property situated in Choudhary Mohallah whereupon sanction was granted by the respondent No. 3 Municipal Council, Ajmer on 16th May, 1998, but prior to grant of sanction, the Municipal Council asked the petitioner to deposit conversion charges in accordance with the Notification dated 16.12.1991 and, in pursuance thereof, the petitioner gave four Cheques in total amounting to Rs. 20,37,600/- The first Cheque has already been encashed but, so far as other Cheques are concerned, the learned Counsel for the petitioner contended that the plaintiff deposited the amount by way of Cheques bonafidely without examining the provisions of law particularly Section 173-A of the Rajasthan Municipalities Act, which was not applicable in the present case. It is contended that the land in dispute was belonging to the plaintiff and it was not purchased from the State Government or the Municipal Council, therefore, the conversion charges were not payable in the present case and the demand raised by the respondent No. 3 was illegal. In support of his contention, the learned Counsel placed reliance upon - Hot Chand and Ors. v. Municipal Council, Ajmer 1996 (1) WLC 300, Municipal Corporation, 299, and other judgments also. He contended that both the courts have committed an illegality in rejecting the application for temporary injunction filed by the petitioner, therefore, the writ petition may be allowed and the impugned orders passed by both the courts below may be set aside and injunction, as prayed for by the plaintiff, be granted during the pendency of the appeal.

A notice to show-cause was issued by this Court on 23.04.2004 and interim stay order maintaining the status-quo as it exists on that date was also passed. The said stay order is operating till date. In response to show-cause notice, the respondent No. 3 Municipal Council, Ajmer, has not filed any reply to the writ petition but it is contended on its behalf that according to the Notification dated 16.12.1991 the respondent Municipal Council is entitled to recover conversion charge from the petitioner. It is further contended that the petitioner has already made payment by way of four Cheques and out of them one Cheque has already been encashed, therefore, the principle of estoppal is applicable in the present case and the writ petition deserves to be dismissed.

I have considered the submissions of learned Counsel for both the parties and examined the impugned order passed by both the courts below as well as Section 173-A of the Rajasthan Municipalities Act and also the above referred judgments.

It is correct that before granting sanction for raising construction by the Municipal Council a demand was raised from the plaintiff to deposit conversion charges in accordance with the Notification dated 16.12.1991 and the plaintiff agreed for it and deposited the amount, therefore, the principle of estoppal is attracted in the present case. However, the principles relating to estoppal are applicable only in respect of facts and not against law. This is a matter relating to interpretation of Section 173-A of the Rajasthan Municipalities Act as well as Notification dated 16.12.1991. The trial court is required to consider as to whether the action of the defendant in raising demand is in accordance with the law or not. The principle of estoppal has also been considered by this Court in Hot Chand''s case (supra).

In view of the above, I find that there is prima facie case in favour of the petitioner and, in view of the fact that interim stay order dated 23.04.2004 is operating in the case till now, I think it fit and proper to continue the interim stay order passed by this Court during the pendency of the Civil Suit by the trial court with a further direction to the trial court to decide the suit, without being influenced by any observation made by this Court in this order, expeditiously preferably within a period of one year.

Consequently, the writ petition is allowed. The impugned orders passed by both the courts below are set-aside. It is directed that both the parties shall maintain the status-quo as directed by this Court on 23.04.2004 during the pendency of the Civil Suit before the trial court. The trial court is directed to expedite the trial of the suit and will try to dispose of the suit itself finally as soon as possibly preferably within a period of one year. Any observation made above will not come in the way of the trial court while deciding the suit finally.

There will be no order as to costs.