BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner challenges the order passed by the Administrator, Municipal Council, Barmer dated 16/8/1989 (Annx. P/9) by which he ordered that since the Munici- pality is not in a position to pay compensation for the private land of the petitioner falling in the 15 ft. street kept on the western side of the respondent's house on account of setting of building line, the street between imaginary line starting from building line No. 10 at Point No. 18-A to 18-B and from 21-A to 21-B south to north be closed and land falling in between shall remain property of the respondent appli- cant. THE petitioners were aggrieved with that order inter-alia on the ground that the Administrator, Municipal Council had no jurisdiction to make such order for closing a public street on which each member of the public had right to pass and re-pass, in this manner on an application by one of the owners of the adjacent buildings. Learned counsel for the respondents urged that they have no objection if the Municipality wants to set the building line. However, in that event since the property of the petitioner shall be required to be acquired, the Municipality can do so on payment of compensation and not otherwise. If the Municipality is prepared to pay compensation, it has no objection to the maintenance of the street at the site. From the facts placed on record, it appears that vide Annx. P/1 dated 22/9/1966, the then Municipality proposed to set building line of the public street in the various streets within its municipal limits inviting objections thereto and proposed building lines were also mentioned in detail. Some objections were filed to the said proposal and ultimately by order dated 1st Feb. , 1973 (Annex. P/3), the proposed building line of the public streets was resolved to be implemented. Thereafter, it appears that the respondent raised certain constructions over the land forming part of the plot purchased by him from the erstwhile owners Ashu Singh and Jog Singh, sons of Hameer Singh. The Municipality gave a notice to remove their construction on which the respondent filed a Civil Suit for injunction against the proposed action, against Municipal Council, Barmer. However, it appears that before he could be granted any temporary injunction, the construction raised by him was raized to the ground by the Municipality and that led to the withdrawal of the suit vide his application dated 30. 06. 1988 in which it was clearly stated that he had filed a suit on 29. 5. 88 for permanent injunction with an application for temporary injunction against the notice issued by the Municipality for removing the construction raised by the respondent- plaintiff however since no ad-interim ex parte order was granted by the learned Munsif in the period intervening 29. 06. 1988 and 30. 06. 1988 the construction raised by the respondent was demolished and therefore the suit for prohibitory injunction has become infructuous and same was sought to be withdrawn by application dated 30. 06. 1988, which has been filed by the petitioner alongwith this writ petition and on which the order of withdrawal was made on 30. 06. 1988. Thereafter, on 14. 8. 89 Dhudi Devi made an application to the Administrator, Municipal Council, Barmer that her residential house is situated in Hameerpur Mohalla and in the west of her house the Municipality has proposed 15ft. road and made a request that if the Municipality is bent upon maintaining the street line, compensation to the tune of Rs. 1 lakh may be allowed to her for the land falling within the proposed building line but no action be taken against the applicant without payment of compensation for acquisition of land. This application was allowed after holding an enquiry by the Administrator vide his order dated 16. 8. 89, as aforesaid. It is true that an existing public street cannot be closed. At the same time, it is equally true that wherever a Municipality exercises its authority under the Act for maintaining building line in any public street or streets within its limit necessiating inclusion of some part of private lands to be included within such straightenedbuilding line and also removing construction requiring to keep open that part of land which comes within the proposed building line, such area obviously could not be part of existing public street and would not become part of public street until the same is acquired in accordance with provisions of Municipal Act. This is menifest from Sec. 160 of Rajasthan Municipalities Act. It is required to pay compensation for interest outstanding in respect of the land which is necessarily to be acquired for correcting and maintaining building line. It is in keeping with this provision, the resolution of the Municipality on which the petitioner has placed reliance, itself shows that the proposed building line was approved on 1. 2. 73 subject to this condition that before taking any initiative to evict any person for the purpose of maintaining building line on its own initiative, the Municipality shall pay compensation in accordance with law after verifying the claim to the title of the claimant. The exact condition of the final order of approval of the proposed building line may be reproduced hereinbelow:- ...[VERNACULAR TEXT OMMITED]...
(3.) THUS, it is apparent that notwithstanding approving the proposal to maintain the building line as stated in Annx. P/3, the actual removal of persons from land in their occupation was subject to payment of compensation on verification of their respective claims. As far as the claim of the respondent to the land in question is concerned, it is apparent from the averments made in the petition itself that the land in question was a part of the private land owned by Ashu Singh and Jog Singh from whom both the petitioner as well as the complainant-respondent had purchased the land and a part of the said purchased land formed part of the proposed street line as a result of the proposal to maintain the building line. THUS, it was not part of existing public street. If that be so, so far as the petitioner is concerned, it must be held that existence of private right of the respondent on the land in question is admitted by him as well as by the Municipality. There is no impediment on the Municipality to evict the respondent on its own initiative from any part of that land which comes in the way for the purpose of maintaining of building line in particular area. However, the resolution itself says that initiative to evict the occupants by the Municipality shall be taken for evicting such occupants only subject to its willingness for the payment of compensation for the private rights to the extent they are affected, on verifying the claim to that effect. The proposal that has been accepted on 1/2/1973 also recognises the principle in full that the persons in possession of any part of the land falling in the building line shall be evicted only after payment of compensation subject to the verification of their claim to the title. In these circumstances, notwithstanding that, literally speaking the impugned order amounts to rescinding of the resolution dated 1/2/1973 for maintaining of the building line but in substance it only gives effect to the condition subject to which the resolution has been carried out. That is to say, that notwithstanding declaration of building line, the person in occupation of the land would be evicted on its own initiative by the Municipal Council, Barmer only on the payment of compensation subject to verification of their claims. In other words, the right of any occupant of the land within that building line to claim compensation would arise only where the Municipality decides to evict those persons from the land in question and the eviction would be completed on payment of compensation subject to verification of their title to the land. From the impugned order as well as the averments made in the petition, it is apparent that the land in question originally was not part of the public street but would become part of public street only on payment of compensation after determining the right of the claimant to such compensation. The Administrator in his order has also admitted the claim of the respondent applicant is holding proprietory rights in the part of the land in the proposed street but has shown unwillingness and inability of the Municipality to pay the compensation thereof. It that be so, the respondent having raised his claim to the compensation, without determining such right, it would not be open for the Municipality to evict the respondent from the land in question. This substance is the effect of position expressed by the Administrator by saying that since the Council is not in a position to pay the compensation for the time being, it cannot implement to maintain the proposed building line by acquiring the land outstanding. In these circumstances, the issue in my opinion is wholly academic at this stage to decide whether the respondent should be evicted from the land in question. As has been disclosed in the application and also in the contention of Mr. Joshi that if the Municipality wants to evict the applicant from the land in question for the purpose of maintaining building line, it can still do so, but it will have to determine compensation payable to him in accordance with law but unless the Municipality shows its willingness to do so, he is not liable to be evicted by the Municipality. So far as the inter-se right between Shanti Devi and Badami Devi are concerned, proper forum is Civil Court and not a petition under Article 226. As a result, this petition fails and is hereby dismissed. However, it is made clear that this shall not be any impediment in the way of Municipality to take action in accordance with law for maintaining building line, and acquire the land of the petitioner for that purpose as per provision of the Municipal Act. That right remain unaffected and about that respondent too has no dispute. In fact that is his application and contention. There shall be no orders as to costs. Interim order passed by this Court shall stand vacated. 2001 RLW 1 . ;