GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 14. 7. 92 with a prayer that by an appropriate writ, order or direction, order dtd. 29. 2. 92 (Annex. 6) passed by the learned Addl. Divisional Commissioner, Udaipur and order dtd. 11. 6. 92 (Annex. 7) passed by the Executive Officer, Municipal Board, Banswara be quashed.
(2.) IT arises in the following circumstances : (i) The petitioner applied for allotment of strip of land in front of his house measuring 17' x 4' before the Municipal Board, Banswara. (ii) On the said application submitted by the petitioner, the Municipal Board, Banswara issued a notice on 8. 4. 87 inviting objections from all the interested persons. A copy of the said notice was placed on the Notice Board of the Municipal Board, Banswara and another copy of the said notice was also pasted on the disputed site. (iii) In pursuance of the said notice, no objection whatsoever was received from any interested person and the Municipal Board, Banswara agreed to allot the strip of land to the petitioner and a sale-deed was executed in favour of the petitioner by the Municipal Board Banswara on 13. 11. 87. (iv) The petitioner paid a sum of Rs. 5250/- is consideration for the sale of said strip of land to the Municipal Board, Banswara. (v) After execution of the registered sale-deed in favour of the petitioner, the petitioner applied for permission to construct on the strip of land with a view to extend his building line. On the application submitted by the petitioner for raising construction on the strip of land, a notice inviting objection was issued by the Municipal Board and the petitioner was duly informed by letter dtd. 23. 5. 88 that the notice has been issued inviting objections on the application of the petitioner submitted for raising construction on the strip of land. The petitioner was further directed not to raise construction on the strip of land till the permission was granted by the Municipal Board, Banswara. (vi) The petitioner was granted permission to raise construction of a wall vide order dtd. 16. 9. 88 passed by the Municipal Board, Banswara. (vii) That nearly after lapse of more than one year, the respondent No. 5 preferred an appeal before the Collector, Banswara under Section 170 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act of 1959) read with Rajasthan Municipal (Disposal of Urban Land) Rules, 1974 (hereinafter referred to as the Rules of 1974) against the order of allotment of land made in favour of the petitioner by the Municipal Board. Notice of the said appeal was issued to the petitioner. The petitioner submitted his objection before the Collector. Banswara against the maintainability of the appeal filed by respondent No. 5 in the matter of allotment of strip of land in favour of the petitioner. (viii) That the learned Collector, Banswara after considering the rival contentions of the parties rejected the appeal filed by respondent No. 5 vide order dtd. 21. 12. 88 (Annex. 5) and upheld the allotment of strip of land made in favour of the petitioner by the Municipal Board, Banswara. (ix) Feeling aggrieved by the order dtd. 21. 12. 88 (Annex. 5) passed by the Collector, Banswara, the respondent No. 5 Shri Gurnamal preferred a revision petition before the Divisional Commissioner, Banswara. The said revision petition was transferred to the Additional Divisional Commissioner, Udaipur for decision. The Additional Divisional Commissioner, Udaipur vide its order dtd. 29. 2. 92 (Annex. 6) allowed the the said revision petition filed by the respondent No. 5 and set aside the sale made in favour of the petitioner. (x) After passing of the order by the Additional Divisional Commissioner, Udaipur dtd. 29. 2. 92 allowing the revision petition filed by the respondent No. 5. The Executive Officer, Municipal Board, Banswara has cancelled the allotment of strip of land made in favour of the petitioner vide order dtd. 11. 6. 92 (Annex. 7 ). Hence, this writ petition with the above prayer. Reply to the writ petition was filed by the respondent No. 3 on 26. 5. 93. The respondent No. 5 who is main aggrieved party also filed a reply on 9. 10. 98 and in para 5 of the reply it was averred that for the strip of land in question, he had also applied before the Municipal Board, Banswara for allotment on 24. 9. 83 and that application is Annex. R/3. Thereafter he again applied before the Municipal Board through application 18. 8. 87 Annex. R/5. A site plan was also attached with the application which shows that the disputed strip of land falls in the area of plot of respondent No. 5. Hence the strip of land in question be allowed to respondent No. 5. It was also stated by the respondent No. 5 that the Additional Divisional Commissioner through order dtd. 29. 2. 92 (Annex. 6) came to the conclusion that allotment of land and sale-deed executed in favour of the petitioner was not in accordance with Rule 23 of the Rules of 1974. Hence, the writ petition be dismissed. I have heard both and perused the record. In this writ petition, the main submissions of the learned counsel for the petitioner are as follows. (i) Against the allotment of strip of land which was made by the respondents under the provision of Rule 23 of the Rules of 1974, there is no provision for appeal and revision and, therefore, the appeal which was filed by the respondent No. 5 and entertained by the Collector, Banswara under Section 170 of the Act of 1959 was illegal and without jurisdiction and thus, though the appeal was dismissed by the Collector, Banswara through judgment dtd. 21. 12. 88 (Annex. 5), but against that order of Collector, the revision petition which was filed by respondent No. 5 was itself incompetent. Therefore, the impugned order dtd. 29. 2. 92 (Annex. 6) passed by the Additional Divisional Commissioner was also illegal and without jurisdiction and in consequence of that order, the order dated 11. 6. 92 (Annex. 7) by which allotment of strip of land in favour of the petitioner was cancelled is itself without jurisdiction. Hence, they be set aside. (ii) That before passing order dtd. 11. 6. 92 (Annex. 7) no prior notice was given to the petitioner. Hence from this point of view also, the order dtd. 11. 6. 92 (Annex. 7) be set aside.
(3.) AFTER perusing the record as well as reply filed by the respondents it is clear that for the strip of land in question, objections were invited but within that period the respondent No. 5 did not raise any objection. From the record, it is also clear that for same strip of land, the respondent No. 5 had also applied for allotment and his application was pending and allotment of land which was made in favour of the petitioner was not made through auction as provided under Sub-rule 2 of Rule 23 of the Rules of 1974. It may further be stated here that in the impugned judgment dtd. 29. 2. 92 passed by the Additional Divisional Commissioner, Udaipur (Annex. 6), the learned Additional division commissioner inter alia held that : (i) There was dispute between the petitioner and respondent No. 5 over the disputed strip of land. (ii) The application of respondent No. 5 was pending since 1983 for allotment of same strip of land. Thus, respondent No. 5 was interested party for the said strip of land. (iii) When there was dispute between parties over the strip of land as in this case was between the petitioner and respondent No. 5, then as per provisions of Sub-Rule 2 of Rule 23 of the Rules of 1974, strip of land should have been allotted by auction and thus, ultimately, the learned Addl. Divisional Commissioner held that the allotment of land in favour of the petitioner was not in accordance with the Rules of 1974 and thus, he allowed the revision petition filed by the respondent No. 5 and set aside the order of the Collector dtd. 21. 12. 88 (Annex. 5) and remanded the case to the Municipal Board, Banswara with a direction that as per provisions of Rule 23 of the Rules of 1974, enquiry be made and further proceedings be taken as provided in sub-rule 2 of Rule 23 of the Rules of 1974. In consequence of order dtd. 29. 2. 92 passed by the Additional Divisional Commissioner, order dtd. 11. 6. 92 (Annex. 7) was passed by which allotment which was made in favour of the petitioner for strip of land was cancelled. ;