DAVE, J. - (1.) I have heard the learned counsel for the petitioner.
(2.) IN this writ petition, the petitioner has prayed that the order of the Director, Local Bodies, dated 20th November 1991, be quashed and the resolution passed by the Municipal Board, Dholpur, dated 30. 04. 1991, be restored. Petitioner claimed the land adjoining to Masjid Habbibulla, situated in Bazaria Dholpur, and is a public property under the Rajasthan Waqf Board. According to the petitioner, one Masum Ali, was a tenant of a shop for Rs. 30/- per month, who became defaulter and the Management Committee, filed a 'suit' for permanent injunction & possession which was compromised. Masum Ali, by the said compromise, admitted the owner-ship of Masjid Habbibulla and consequently, later moved an application dated 31. 10. 1988, for permission to construct the shop on the disputed land. This time Mohd. Ali, son of Masum Ali, objected to and stated that the land does not belong to Masjid but to the Municipality and he is in possession of the land since 1976. The Executive Officer of the Municipal Board, Dholpur, who was an authority competent to decide the application, rejected the permission against which the petitioner had filed an appeal which was to be heard by the Board. This appeal was not shown in agenda in the Board's meeting dated 30. 04. 1991 and after the agenda was over with the special permission of the Chair. Shri Hanif Khan, President of the Intjamia Committee, requested the Board to hear the appeal and the members of the Board, heard the appeal and set aside the order of the Executive Officer, dated 18th Feb. , 1991, and that of the order dated 25. 11. 1991. The Executive Officer, thereafter, sent a factual report to the Director, Local Bodies, Jaipur, opining that the resolution adopted by the Municipal Board, requires to be decided under the provisions of Section 68 (2) of the Rajasthan Municipalities Act, 1959. This letter was contested and simultaneously an appeal was filed before the Collector, Dholpur. It may be mentioned here that when the Board, accepted the resolution dated 30. 04. 1991, Mohd. Ali, and Ors. feeling aggrieved with the resolution filed an appeal before the Collector, Dholpur and notice of which was issued to Hamid Khan, meanwhile, on the application sent by the Executive Officer, the Director, Local Bodies, vide order dated 20. 11. 1991, rescind the resolution No. 69 (13) of the Municipal Board, Dholpur, dated 30. 01. 1984. The Director, Local Bodies, in view of the aforesaid decision of the Collector, Dholpur, also dismissed the appeal on the request of the learned counsel for the appellant, vide his order dated 25. 11. 1991, as it had become infructuous. Hence, this writ petition for the prayer aforesaid has been filed. There may be some merit in what the petitioner submits namely the order dated 20. 11. 1991, as communicated suffers from the defect that it is not a speaking order, secondly, it did not in the mouth of subordinate officer, in the hierarchy of the officers, to challenge the order unless otherwise, permissible by law. The Executive Officer, being an authority sub-ordinate to the Board, before going to the Director, Local Bodies, ought to have placed the matter before the Board for seeking permission to go in appeal, as he is only the functionary of the Board. Mohd. Ali, of course, had right under the law to have sought the remedy before the Collector, and the Director, Local Bodies, for the above purposes. I would have given the notice but in my opinion, it would be an exercise in futility in view of the fact, that the resolution of the Board dated 30. 04. 1991, cannot be justified in law, for simple ground that it suffers from the principles of natural justice. Mohd. Ali, had not been provided an opportunity to represent his case. It was on an application of Mohd. Ali, that the Executive Officer, had refused the permission, this consultations (?) that the land vested in Municipal Board, though father of Mohd. Ali, had compromised the suit with the Intjamia Committee, earlier. Aggrieved by the order of the Executive Officer, appeal was filed by Hanif Khan, on behalf of the Intjamia Committee. Admittedly, the appeal was not before the Board, in it's meeting dated 30. 04. 1991, and it was taken up after the agenda was over though with the consent of the Members of the Board and the consent of the Member, cannot take away the rights of the objector on whose objections, the permission had been refused. Thus, the resolution is in violation of the principles of Audi Alterm Partem and though for different reasons have rightly been set aside by the Director, Local Bodies. The natural consequence of setting aside the resolution dated 30. 04. 1991, would be that the appeal filed by the Hanif Khan, revived and remains pending before the Board.
(3.) THE Secretary, Municipal Board, is, therefore, directed to place the said appeal before the Municipal Board, after showing it in the agenda and after notice of the date, time and place of hearing to Mohd. Ali son of Masum Ali. THE appeal shall be heard in accordance with law and disposed of within a period of 4 months, from the date of communication of this order. A copy of this order be sent to the President, Municipal Board, Dholpur, immediately. The writ petition is disposed of as indicated above. . ;