MADAN, J. - (1.) THE case of the petitioners, in this writ petition,is that they are the owners in possession of house No. AMC-6. XVI/133 known as 'gopi Building', situated opposite to the Central Girls Higher Secondary School, Purani Mandi, Ajmer. It is contended by the learned counsel for the petitioners that in front of petitioner's house and in between the adjoining Nala there is a strip of land measuring 47sq. yards = 40. 61 sq. meters which is vested in Municipal Council, Ajmer, respondent No. 3 in this petition. THE petitioners have also filed a copy of the site plan which is clearly indicative of the fact that the Central Girls Higher Secondary School is located just across the 60' road and opposite the petitioners- house. On the left side of the petitioners - house adjoining to the Municipal land, building of United Commercial Bank covering strip of land and Nala is located.
(2.) VIDE their letter dated 11th of March, 1981 the petitioners made a request to the respondent-Municipal Council, Ajmer (Respondent No. 3) to sell the aforesaid strip of land measuring 47 Sq. Yards, shown in pink colour in the site- plan, in their favour. . It is contended by the learned counsel for the petitioners that the respondents had then agreed to lease out the land to the petitioners subject to their depositing Rs. 7050/- with the Municipal Council, Ajmer calculated at the rate of Rs. 150/- per square yard and other conditions stipulated therein. The petitioners had, in compliance with the said communication, deposited the aforesaid amount with the Municipal Council, Ajmer on 13th March,1981 towards costs of the land. Subsequently, respondent No. 3 vide its letter dated 2. 11. 1981 informed the petitioners that the Administrator, Municipal Council, Ajmer has granted sanction for leasing out the aforesaid strip of land as per Rule 23 of the Rajasthan Municipal (Disposal of Urban Land) Rules,1974, which was subsequently cancelled by the Collector on 10-11-1982 after receipt of the report from the City Magistrate, Ajmer wherein it was mentioned that the essential function of the strip of land in question is that of sidewalk of pavement by the pedestrians and that the construction of building on such land should be discouraged and the money deposited for the sale of said land be refunded. Thereafter the petitioners have been persisten demanding the sale of the proposed land with the request to the respondents that they should execute sale-deed in favour of the petitioners in this regard. They made two representations dated 28th June,1982 and 28th Septpmber,1982 to the respondents. In the reply filed on-behalf of respondent No. 3, Municipal Council,ajmer, the learned counsel for the respondent had drawn the attention of the court to para 3 of the reply to the writ petition wherein it has been specifically mentioned as under: - "the road between petitioners house and the Central Girls Higher Secondary School is only 14. 10 meters which comes to about 47 ft. whereas the road is required to be 18. 10 metres equivalent to 60 ft. This road is very congested road because in front of the house of the petitioners the Central Girls Higher Secondary School is situated whereas thousands of girls are required to go to the school and furthermore on account of this being main road which leads to Purani Mandi,naya Bazar the persons are required to go to the main road towards Station and Kachehri Road. In this way this road is very busy road and often on account of heavy traffic this road is blocked for hours together. This creates serious problem of congestion. The land in question cannot be given to the petitioner as the public at large is required to use this road. In this respect, on 29. 7. 1976 the Senior Town Planner totally refused for the sale of this land because this road is required to be 60 ft. wide. After 1976 the growth of population has further created serious problem and the roads are required to be wide for the facility of the public at large. " It is contended by the learned counsel for the respondents that on 8th February,1983 and on 13th August,1984,respondent No. 2 i. e. the Collector,ajmer sent communications to the petitioners specifically mentioning therein that sanction cannot be granted for sale of the land in question. In this regard, it is submitted that inspection of the site was done at the request of the petitioner and it was found that if the strip of land is allowed to be sold to the petitioners, it will create serious problems and congestion over the road besides it will be hazardous to the students of the Central Girls Higher Secondary School, which is situated just in front of the disputed land. This would also hamper the flow of traffic over the main road within the city because the land is situated within close proximity to the main road which has heavy traffic and furthermore Purani Mandi,naya Bazar onwards are thickly populated areas and as such it would be against the public interest to give this land to the petitioners.
(3.) LEARNED counsel for the respondents has further contended that it was only after the inspection of the site and granting full opportunity of hearing to the petitioner that the decision was taken that the disputed land cannot be sold to the petitioners as it would be defeating the public interest. In para 14 of the reply filed on behalf of respondent No. 3 it is specifically stated as under: - "if the answering respondent is compelled to sell this land then the public at large will suffer. The respondent No. 3 has got no interest whatsoever in this land since this land is a public trust and it belongs to the public at large. So far as Disposal of the Urban Land Rules,1974 are concerned, it is submitted that the petitioner has used his political influence and he wants to grab this land at any cost. The answering respondent has got no power to sell this public thoroughfare to the petitioner. Rule 23 of the Municipal Council (Disposal of Urban Land) Rules,1974 is not supporting the petitioner but it is going contrary to him. No steps whatsoever have been taken for the purpose of sale of this land. Only the reserve price has been fixed by the committee, as such if any order is passed by the Administrator, it is against the Disposal of Urban Land Rules,1974. " It was further contended by the learned counsel for the respondents that the Municipal Council, Ajmer has got no right even to alienate the land in question in favour of the petitioners since the main 60 ft. wide road situated just opposite the Govt. Girls Higher Secondary School, Ajmer would be narrowed down which would be against the public interest. In support of his contentions, Shri Surana learned counsel for the respondents has placed reliance upon the Notification dated 1st December,1968,issued by the State Government published in the Rajasthan Gazette on 1st of May,1969 which reads as under: - "in exercise of the powers conferred by sec. (2) of section 92 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act 38 of 1959),the State Government is hereby pleased to reserve in the public interest the following lands vesting in the belonging to the Municipalities: - 1. Lands lying within 30 meters both sides of any National High Way when passing through the Municipal limits from the centre of the Road. 2. Land lying within 15 meters both sides of any State Road falling within the Municipal limits and maintained by the public works department of the State from the centre of the Road: Provided that the land so reserved shall neither be sold, leased or otherwise transferred nor it shall be sold out to any person by the State Government. " In support of his contentions advanced at the Bar, learned counsel for the respondents has placed reliance upon the judgment of the Apex Court in the matter of the Municipal Board, Manglaur Vs. Mahadeoji Maharaj (1) reported in AIR 1965 S. C. 1147, wherein the question which arose for consideration before the Apex Court was as to whether the Municipality has any right to put structures over the vacant land which are necessary for the maintenance or user of it as a path-way. It was held by the Apex Court that the side-lands are ordinarily included in the road, for they are necessary for proper maintenance of the road. It was further held that in case of a path-way used for the long time by the public, its topographical and permanent land marks and the manner and the mode of its maintenance usually indicate the extent of the user. Reliance. was also placed on the decision of the Orisa High Court in the matter of Ratnakar Sahani and others Vs. State of Orissa and others (2) ,wherein the similar question arose with regard to the user of the public roads. The High Court in that case held as under: - "that public road, among other things, will include the drains attached to the road, public bridge or causeqay and it shall also include the land which lies in the either side of the roadway upto the boundaries of the adjacent property owned privately or. State owned, whether or not covered by any pavement, verandah or other structure. Such land would be evidently road side land and is included in public road. Public road is nothing but a species of road and road side lands being included in public road, encroachments thereon would be within the ambit of s. 254 of the Orissa Municipal Act vesting power in the Executive Officer to direct its removal". ;