Jhulelal Charitable and Education Trust vs State of Rajasthan and Others

By filing the instant writ petition, the petitioner questions the legality of the order dated 27-9-1991 Annexure 12 passed by the Additional Divisional Commissioner, Udaipur (respondent No. 3) on the ground, inter alia, that he has committed jurisdictional error reversing the order granting licence on 12-9-1991 in respect of land in dispute to the petitioner in exercise of his revisional jurisdiction u/s 300 of the Rajasthan Municipalities Act, 1959 arising out of revision before him which filed after 15 months. The locus standi in filing the revision petition by respondent No. 4 before respondent No. 3 is also challenged in the present writ petition.

Answering respondent No. 4 has filed a detailed reply denying the averments made in the writ petition and supported the order impugned dated 17-9-1991 Annexure 12 passed by Additional Divisional Commissioner, Udaipur.

I have heard learned counsel for the petitioner as well as learned counsel appearing on behalf of respondent No. 4. No one has appeared on behalf of respondents Nos. 1, 2 and 3 to oppose the present writ petition in spite of due service.

It is contended by the learned counsel for the petitioner that the Additional Divisional Commissioner, Udaipur (respondent No. 3 ) has no jurisdiction to reverse the order granting licence dated 12-9-1991 Annexure 12 relating to the land in dispute to the petitioner in exercise of his revisional jurisdiction without condoning inordinate delay of 15 months in filing the revision. It is urged by the learned counsel for the petitioner that as respondent No. 4 has not filed any application for condonation of delay u/s 5 of the Indian Limitation Act, therefore, the Additional Divisional Commissioner, Udaipur ought to have dismissed the revision on the ground of limitation without entering into its merits. According to the learned counsel for the petitioner, unless the delay is condoned, the revisional Court has no jurisdiction to nullify licence dated 12-9-1991 granted by the Municipal Board, Nimbahera in its favour.

I am of the view that the aforesaid contention raised by the learned counsel for the petitioner is misconceived, inasmuch as, no limitation is prescribed for invoking the revisional jurisdiction of Additional Divisional Commissioner, Udaipur u/s 300 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as "the Act of 1959") calling the records from Municipal Board, Nimbahera for the purpose of being satisfied as to the correctness, legality or propriety of the licence dated 12-9-1991 Annexure 12 granted to the petitioner. Indisputably, the Act of 1959 is a special Act. It is well to remember that in special Act, if no limitation is prescribed for filing revision u/s 300 of the said Act then within the meaning of Section 29 of the Indian Limitation Act, 1963 read with Article 137 of the said Act, the revision can be filed within three years when right to file revision accrued to respondent No. 4 and argument contrary to it is not acceptable. In view of the aforesaid facts and circumstances it is held that revision filed by respondent No. 4 u/s 300 of the Act of 1959 before the Additional Divisional Commissioner, Udaipur was within limitation and it cannot be said to be beyond limitation.

It is next contended by the learned counsel for the petitioner that the Additional Divisional Commissioner, Udaipur while holding the licence dated 12-9-1991 Annexure 12 to the writ petition to be void ab initio has not quoted any statutory Rule on the basis of which, it can be held that the licence granted to the petitioner on the aforesaid date was null and void. Suffice it to say in this regard that the Additional Divisional Commissioner, Udaipur has specifically recorded a positive finding which is not being disputed before me that the land in dispute for which the licence is granted to the petitioner on 12-9-1991 for charitable purposes was earmarked for educational purposes within the meaning of Rule 11 of the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (for short "the Rules of 1974") which clearly provides that in the Scheme approved by the Chief Town Planner or his representative authorised by him in his behalf, plot of land indicated Parks and Play-grounds, Educational Institutions. Hospitals, Dispensaries. Cinemas, Markets and such other use shall be reserved for the purpose it has been earmarked and shall not be put any other use. I decline to interfere in extraordinary writ jurisdiction under Art. 227 of the Constitution of India with the order impugned Annexure 12 passed by the Additional Divisional Commissioner merely because that in his impugned order he has not quoted the statutory Rule 11 of the Rules of 1974. The learned counsel is not able to dispute the finding recorded by the revisional Court that the petitioner has applied for allotment of the land in dispute for charitable purpose not for educational purposes. I am of the view that since the land is earmarked for Educational Institution therefore, it cannot be allowed to put to any other use except educational purpose. To my mind, educational purpose is not synonymous to charitable purpose, therefore, even if the petitioner is held to be educational Institution together with charitable institution, it cannot obtain the land in dispute earmarked for educational purpose for use of charitable purpose.

There is yet another strong reason to nullify the licence dated 12-9-1991 granted by the Municipal Board, Nimbahera in favour of the petitioner. It is apparent from perusal of the order dated 4-9-1991 Annexure 2 to the writ petition filed by the petitioner himself that the reserve price of the land in dispute is Rs. 150 per Sq. Mt. which has been allotted to the petitioner after reducing 75% sanctioned reserve price and has been allotted to it at the rate of 25% i.e. Rs. 37.50 per Sq. Mt. and total amount paid by the petitioner is only Rs. 34,837.50 + 37.50 for leasing out the land in dispute for 99 years. Thus the aforesaid price fixed by the Municipal Board, Nimbahera is also per se illegal being violative of provisions envisaged under Sub-rule (1) of Rule 18 of the Rules of 1974 according to which no land shall be allotted for a price less than the sanction reserve price except for categories covered under Rule 17 provided that lands for school and other public and charitable institution may be allotted on payment of 50% of the sanctioned reserve price. It is not understandable how Municipal Board, Nimbahera allotted the land in dispute to the petitioner on payment of only 25% of the sanctioned reserve price causing a huge loss to public exchequer against mandatory provisions envisaged under Sub-rule (1) of Rule (1) of Rule 18 of the Rules of 1974.

It is to be imbibed that Rules of 1974 has been framed by the State Government in exercise of its powers conferred by sub-section (1) of Section 279 read with Section 80 and 92 of the Act of 1959 and Section 102A of the Rajasthan Land Revenue Act, 1956, therefore, the Municipal Board, Nimbahera has no legal authority whatsoever to lease out the land in question to the petitioner for 99 years without ensuring payment of 50% of the sanctioned reserve price from the petitioner. The Municipal Board, Nimbahera has no legal authority to grant licence to the petitioner on 12-9-1991 at the rate of 25% of the sanctioned reserve price,

From the discussion made hereinafter, I am of the opinion that the Additional Divisional Commissioner, Udaipur has committed no jurisdictional error in nullifying grant of licence dated 12-9-1991 by the Municipal Board, Nimbahera in favour of the petitioner and an argument contrary to it raised by the learned counsel for the petitioner is not acceptable and it is hereby repelled.

It is next contended by the learned counsel for the petitioner that respondent No. 4 has no locus standi to file a revision petition before the Additional Divisional Commissioner, Udaipur invoking his powers u/s 300 of the Act of 1959. The aforesaid argument is being raised merely to be rejected and it is hereby rejected for the reason that respondent No. 4 is an Educational Institution and appurtenant to the plot for which licence is granted to the petitioner on 12-9-1991 a school is being run by it. Respondent No. 4 has applied for settlement of land in its favour, which has been conveniently ignored by the Municipal Board, Nimbahera on non-existent ground that Secretary of the Institution is living in one portion of the school building whereas according to the terms and conditions of allotment made to respondent No. 4 over which school building exists, the Secretary was entitled to reside. It is further borne out from the record that when objection was raised by the Municipal Board, Nimbahera and the Collector, Chktorgarh, the Secretary of the school shifted to some other place. The ex parte Report Annexure 8 dated 2-4-1991 on record which is alleged to be the basis of refusing allotment to respondent No. 4 seems to be a procured ex parte report in order to hoodwink the legitimate claim of respondent No. 4 to allot the land in question for educational purpose on payment of 50% of the sanctioned reserve price.

It is reiterated that mere infirmities of superfluous nature urged by the learned counsel for the petitioner and discussed hereinabove, the illegal grant of licence by the Municipal Board, Nimbahera to the petitioner on 12-9-1991 cannot be allowed to stand. It is well to remember that power under Articles 226 and 227 of the Constitution of India is designed to enforce rule of law and it cannot be invoked to direct the authorities concerned to act contrary to law.

Upshot of the aforesaid discussion is that the instant writ petition lacks merit and it is hereby dismissed with cost assessed Rs. 5000/- making it payable by the petitioner to respondent No. 4 who has filed reply and opposed the present writ petition.