Judgment:
Farooq Hasan, J.
1. A thumb-nail sketch of the primary facts will help resolve the controversy which has arisen in this second appeal.
2. An abadi land situated in village Chaksu (District Jaipur) measuring 150 ft. x 25 ft. as described by letters A.B.C & D in the map annexed to the plaint, was auctioned by the Municipal Board, Chaksu (defendant-respondent) for a sum of Rs. 545, the highest bid put by the appellant & accepted by the respondent-Board-Whereupon 1/4th of the said bid amount was deposited by the appellant on June 20, 1968 and the rest, on March 19, 1969, and its possession was delivered by the Board to the appellant. How ever, since no heed to the request of the plaintiff-appellant to execute a 'patta' was paid by the respondent Board, the appellant had submitted an application along with a plan of proposed constructions on March 13, 1973, that too, in vain, and then the appellant served a notice Under Section 170(8) of the Raj. Municipalities Act, 1959, in addition to the notice to the respondent No. 2 Under Section 80, CPC and to the respondent Board Under Section 271 of the Municipalities Act on March 28, 1975. On non-reply to the aforesaid notices, the plaintiff commenced construction work which was forcibly stopped by the employees of the respondent Board. This led the plaintiff to institute a civil suit on 27th April, 1976, seeking direction against the respondent Board to execute a 'patta' in addition to a declaration that as the plaintiff has acquired ownership he is entitled to raise construction, and further seeking a restraint against the respondent Board & its employees from interfering with the plaintiff's possession.
3. The respondent-Board, in its written statement, admitting the fact of auction of the land in question & the receipt of notices, rescinded that the plaintiff was delivered possession, apart from contending that the auction in favour of the plaintiff was not confirmed by the Collector (defendant-respondent No. 2) and, therefore, the respondent-Board could not issue Patta in favour of the plaintiff, along with sanctioned plan for raising constructions. The Collector (defendant) did not file any written statement.
4. On the basis of the pleadings of the parties, the following issues were framed:
[1] whether the Collector had no authority to cancel the auction in respect of the land in question?
[2] whether the plaintiff is entitled to obtain a 'Patta' and raise constructions?
[3] Relief?
Both the defendants remained in conspicuous, being away from the proceedings which were ex-parte taken. How ever, the trial Court dismissed the plaintiff's suit holding that, no rights have been treated to the plaintiff and so, he is not entitled to any of the reliefs and further observing that although order refusing confirmation of auction has not been placed by the plaintiff but, since the plaintiff has not stated that it has not been cancelled, it could be presumed that auction has been cancelled. The trial Court placed reliance on the provisions of Section 80 of the Municipalities Act which envisages that if a land is auctioned for an amount exceeding Rupees 500/- in case of city and Rupees 200/- in cash of any other Municipality then unless it is confirmed by the Collector, no title is passed to the purchaser.
5. Against the aforesaid findings arrived at by the trial court under its judgment dated 3-5-1980, the plaintiff went in appeal which was dismissed by the first appellate court on 18-12-1980. Hence this second appeal.
6. While admitting the present appeal, the following substantial questions of law were formulated on March 22, 1982:
[1] whether the appellant was entitled to be afforded an opportunity of being heard before the Collector, Jaipur District, Jaipur could pass the order for cancellation of the auction sale for the land in dispute made in favour of the appellants?
[2] whether the learned lower appellate court was right to cast burden on the appellant to prove that the land in dispute did not belong to the Municipal Board, Chaksu but it was the Govt. land entrusted to the Municipal Board under the provisions of Section 102 A of the Raj. Land Revenue Act, 1956?
7. In the instant case, admittedly, the, Municipal Board (defendant-respondent No. 1) no where pleaded that auction in favour of the plaintiff has been cancelled by the Collector after hearing the plaintiff-appellant, whereas the plaintiff has come out with the case that no notice was given to him by the Collector before the Collector could pass the order for cancellation of the auction sale for the land in dispute made in his favour.
8. The pivotal controversy turns upon the only and significant point to be considered for disposal of the present appeal, e.g. whether the Collector has no authority to cancel the auction of the land in question. If the result of this point comes out in favour of the plaintiff then definitely his suit will have to be decreed and in this view of the matter it will have to be held that both the subordinate courts fell in error in dismissing the suit of the plaintiff.
9. For purposes of Sub-section (2) of Sub-section 92 of the Municipalities Act, the property which is to be managed & controlled by the Municipal Board are classified into two categories by the said Act, namely, property which vests & belongs to the Board and the property which vests but does not belong to it. A Nazul land this placed at the disposal of the Board under notification No. F 7 (187) L.S.G /58-II, dated October 8, 1959 so published in Rajasthan Gazette dated October 12, 1959, belongs to this second category of the land. The properties by virtue of the aforesaid notification, though vested to the Board (sic) belonged to the Government and, therefore, Section 80 of the Municipalities Act could not be held applicable in the case of sale of such land. In exercise of powers conferred by Section 102(A) of the Land Revenue Act, the Government of Rajasthan by another notification No. F. 7 (187) L.S.G./58, dated March 8, 1961, put certain additional restrictions in respect of the' aforesaid Nazul lands laying down the procedure. Looking to the aforesaid notification and the provisions contained in S 92 of the Municipalities Act & Section 102 A of the Land Revenue Act, it follows that the land which belongs to the Government and vests in the Municipal Board does not come within the ambit of Section 80 of the Municipalities Act because, Section 80 of the Act applies only on such lands which become vested in the Municipal Board under Sub-section (2)(E) of Section 92 of the Municipalities Act and not to lands otherwise vesting in the Municipal Board. The proviso to Section 80(1) therefore, could not be held applicable in sale of Nazul lands. I may also observe that condition 2 (b) of the notification dated 8-3-1961 requires the association of the Collector or the Sub-Divisional Officer in respect of Nazul lands. The Government thus retaining ownership of the Nazul lands and retaining the competence to issue direction for the disposal of the Nazul lands issued directions requiring association of the Collector & the Sub-Divisional Officer in the sale of Nazul lands. I therefore hold Section 80(1) proviso inapplicable to the sale of Nazul lands on the principle adopted in Radha Kishan and Ors. v. State of Rajasthan (D.B. Civil Misc. Writ Petition No. 312 of 1962 decided by this Court on 8-3-1965) which has been followed by the Division Bench of this Court in Chauthmal v. State of Rajasthan 1971 WLN 212, and also hold that it did not require confirmation of the Collector. If such sale can only be annulled under Section 83 of the Land Revenue Act and not otherwise, then I must observe that no order under Section 83 of the Land Revenue Act can be passed to the prejudice of any person unless such person has had an opportunity of being heard.
10. Now, adverting to the fact of the present case, I may state that none of the defendants elsewhere have pleaded that the land in question was one which could squarely come within the ambit of Section, 80 of the Municipalities Act. How ever, today learned Counsel appearing for the Municipal Board (respondent) fairly conceded that the land in question was the Government land, and for that purpose, he referred to a letter (a photostat copy of which has been produced by him) of the Administrator, Municipal Board, Chaksu which is on record in the case No. 300/66-67 in the context of the application of Abdul Rashid s/o Abdul Hakim (present appellant) for obtaining the land on payment of premium (Nazrana) which makes it precise patent that the land in question is the Government land and the same has been placed at the disposal of the Municipal Board (respondent). These circumstances persuade me to hold that there was no justification for the courts-below to have held that Section 10 of the Municipalities Act applies in this particular case; and the decision of the lower court holding the sale void on account of non-compliance of Section 80(1), therefore, cannot be sustained.
11. Though I stand benefitted by the enlightment derived from the decision referred to above, I am of the view that explanation calls for more intrinsical examination than has been done hitherto. In the present case, the fact of sale has been admitted by the Municipal Board (respondent No. 1) in as much as the deposit of the sale amount in the Municipal Board has also not been disputed and as mentioned in the foregoing para of narration of facts above, the sale amount had been deposited by plaintiff. Thus, in these circumstances, it was for the Municipal Board to make a proper defence to resile from performance of the contract. More so, it had to plead and prove by placing significant material on record enabling the Court to conclude that Section 80 of the Municipalities Act applied to the facts of this case. As stated here in before the respondent-Board failed to adduce any evidence to the above effect. When the land in question is not covered by Section 80 of the Municipalities Act, no sanction or approval of the Collector is necessary. Thus viewed, the impugned judgment holding the sale to the appellant void with reference to Section 80(1) is without jurisdiction. I get support from the decision in Chauthmal v. State of Rajasthan (supra) where in it has been observed that on a proper interpretation it appears reasonable to hold that Section 92(2)(e) of the Municipalities Act refers to property not only vesting in but also belonging to the Municipal Board, and the property belonging to the Government and not to the Municipal Board cannot be covered by Section 92(2)(e) of the Municipalities Act. This Court, in the referred case also observed that. Nazul Lands belonging to the. Government and not to the Board, therefore, cannot vest in the Municipal Board and the Local Self Govt. Department notification dated 8-10-1968 cannot have the effect of vesting Nazul Lands in the Municipal Boards under Clause 2(e) of Section 92 of the Municipalities Act. Viewed from these observations this Court held unsustainable the decision appealed in that case holding the sale void on account of non-compliance of Section 80(1) proviso, of the Municipalities Act. Here, I would resume the brief facts of the cited case, where the land in dispute was auctioned and same was sold on highest bid of Rs. 801/- and no sanction was obtained from the Collector and the sale was set aside on the ground that in such sale, sanction of the Collector was necessary. In these circumstances, the case was decided in the light of the observations, referred to above.
12. Having benefitted by the enlightment derived from the principles laid down above and the foregoing discussions, in my opinion, even if it is assumed that auction of the land in question had been cancelled by the Collector (respondent No. 2) then also, the courts-below were not justified in holding that by virtue of Section 80 of the Municipalities Act, this auction in question was to be confirmed by the Collector and because the same was not confirmed by the Collector, no such title could have passed to the purchaser.
13. As stated here in before, in the plaint, a notice under Section 271 of the Municipalities Act is stated to have been served upon the Municipal Board (respondent No. 1) and even after that notice, neither any action was taken nor the plaintiff-appellant was respondent communicating any information. More so, learned Counsel for the responded No. 1 conceded that in response to the notice under Section 271 of the Municipalities Act, no action was taken by the Municipal Board. In these circumstances, the plaintiff-appellant candidly was compelled to commence constructions over the land in question according to the proposed plan submitted by him along with his application before the Municipal Board, Chaksu.
14. As already stated, undisputedly, whole of the auction money has been deposited by the plaintiff appellant and, therefore, he was also entitled to obtain a patta yet to be executed by the Municipal Board in his favour.
15. A last ditch effort has been made to press the argument on the second substantial question. Since it is a common case that the land is a 'Nazul land' and that it was placed at the disposal of the Municipal Board, by Notification No. F. 7 (187) ISG/58-II. dated 8-10-1959 issued by the Government in the exercise of powers given by section on 102A of the Land Revenue Act, it would be futile exercise to examine this issue. And, 1 must conclude that the appellant is entitled to a decree as sought for in his plaint.
16. I accordingly, allow this appeal and set aside the judgment & decree passed by the courts-below which are assailed in this second appeal; and the suit of the plaintiff appellant is decreed with costs through-out, further directing the respondent No. 1 Municipal Board, Chaksu, to complete formalities of executing Patta in favour of the plaintiff appellant within shortest-period not beyond six months.