MITAL, C. J. - (1.) THE facts of this case are little complicated but not difficult to resolve. Respondent no. 4 Mohammed Haneef applied to the Municipal Council,churu for permission to raise Balcony on Government land. THE Municipal Council, Churu declined the permission and against that order he filed an appeal before the Collector, Churu. THE appeal was rejected vide Ex. 2 dt. 23rd of Mareh,1976. He then went in revision under section 300 of the Rajasthan Municipalities Act before the Board of Revenue.
(2.) WHILE the appeal was pending before the Collector, Churu, Kalu and others purchased the strip of Government land over which the respondent no. 4 wanted to raise Balcony vide sale-deed dt. 19th of February,1976 and because of this purchase Kalu and others became party before the Collector,churu. Similarly they were made parties in the revision before the Board of Revenue. On behalf of the purchasers an argument was raised that the land ceased to be Government land,therefore,the question of asking permission to raise Balcony on their land should not be granted by the statutory authorities and, therefore, the appeal should be dismissed. An argument was raised on behalf of the revision-petitioners that the land was in a public street and public was entitled to have a free access on the same and since the sale was made by the Municipal Council,churu in contravention of law, the sale should be ignored or in any case the matter should be sent back for enquiry whether the sale is good or bad. Another argument was raised on behalf of the respondent no. 4 in support of the revision was that when the permission was rejected by the Municipal Council in the year 1975 the land sold belong to the Government and Kalu had not purchased, therefore, the things should be seen as at the time of passing of the order of rejecting the permission. This argument found favour with the Board of Revenue but ultimately accepted the revision. The operative part of the order is as follows: - " (a) It should be examined whether the prescribed procedure was followed in making the sale to the present non-applicants no. 2,3 and 4 on 19. 2. 76; (b) if the sale is found to have been effected in contravention of law and procedure action should be initiated to cancel the same; and (c) the request of the applicant for the proposed construction should be considered if the situation contemplated in (b) above is found to exist. " It has been brought on record that the matter was reported to the Collector, Churu that the sale in favour of Kalu etc. was against law. Therefore,he reconsidered the matter and by the order dt. 9th of April,1987 came to the conclusion that sale made in favour of Kalu was of a street and since it could not be sold the sale was set aside. Copy of the order of the Collector is Anx. R. 4/1.
(3.) AGAINST the order of remand passed by the Board of Revenue, the vendees Kalu etc. have come to this Court. In support of the writ petition, two arguments were raised;once the petitioners have become owners of the land in dispute nothing survives to make a remand order and the other that the Board of Revenue was wrong in making observation while making remand order that subsequent order of sale of certain lands cannot be considered while determining the correctness of the order of Municipal Council rejecting permission for construction of Balcony vide order dt. 4th of Oct. 1975. After hearing the learned counsel for the parties,we are of the view that there is no scope for interference in the operative part of the order of remand made by the Board of Revenue as it is just,proper and in the interest of justice. The petitioners claim to be owners of public street by sale. It is settled rule that the land which is for common use of the villagers or urban citizens cannot be sold by the public authorities as every bypasser viz. Villagers and urban citizens acquire a right of way free of obstruction. Whether it was such property or not had to be gone into more particularly in view of the order of the Collector who found that it was a street for the use of the public and cancelled the sale. What is the effect of that order and whether the petitioners have challenged that or not need not be gone into at this stage and is left open to be raised by the parties at appropriate stage. The other part of the reand order is also in the interest of justice. It has only ordered that if it is found that sale to the petitioners is bad then the property will revert back to the Government and the concerned authorities will have to redecide whether to grant permission to Mohammed Hanif for raising Balcony or not. While upholding the operative part of the order of remand made by the Board of Revenue, we cannot agree with the observations made by it that the subsequent order of sale cannot be considered while determining the correctness of order of the Municipal Council dt. 4th of October,1975. If it is held that the sale in favour of the petitioners is correct,the jurisdiction of the Municipal Council or the public authorities under the Municipal Law to grant permission for raising construction of Balcony would ceased to exist from the date the purchase was made by the petitioners and thereafter it would be the petitioners who alone can give permission for raising Balcony. Therefore, supervening facts had to be taken note of. While doing so we negative the reasonings recorded to the contrary by the Board of Revenue. ;