- (1.) THIS is a petition under Art. 226 of the Constitution by one Vijairaj against an order of the Revenue Appellate Authority purporting to have been passed in exercise of its power under sec. 300 of the Rajasthan Municipalities Act, 1959. I have heard the learned counsel for the parties and have perused the material on record.
(2.) A perusal of plan annexure 5 is necessary to understand the case. The house enclosed by red line is the house of Vijairaj and that enclosed in green line is the house of Suraj Roop respondent No. 1. There is now a Chabutri shown in yellow abutting the walls of the houses of Vijairaj and Suraj Roop. The Sanitary Inspector made a report on 26. 12. 61 to the Municipal Commissioner that this Chabutri was an encroachment on municipal land. The petitioner's predecessor-in-title Sumermal had obtained permission for opening a door in his wall at the place where the Chabutri had been constructed by respondent No. 1. He too made a complaint before the Administrator of the Municipal Council on 29. 12. 61 alleging that this Chabutri was a new encroachment made by Suraj Roop. After hearing the parties the Municipal Commissioner held that part of the Chabutri was new and was an encroachment and ordered its demolition under his order annexure 1 dated 1. 10. 63. A revision was filed against the above order to the Administrator under sec. 77 (2) by respondent No. 1. The Administrator maintained the order of the Municipal Commissioner. Under the misapprehension that the above order was under sec. 170 (11) (b) an appeal was filed against it to the Collector under sec. 170 (12 ). The Collector also upheld the order of the Municipal Commissioner. Respondent No. 1 thereafter filed a revision application under Sec. 300 against the order of the Collector before the Revenue Appellate Authority. That Authority held that the order of the Collector was without jurisdiction as the order of the Municipal Commissioner was under sec. 203 (2) and not under sec. 170 (11) (b ). But the Authority at the same time held that the Chabutri was an old one and being of the view that an old encroachment could not be removed under sec. 203 (2) he set aside the order of the Municipal Commissioner. Two questions arise for determination in this case. The first question is whether the order of the Municipal Commissioner can be treated as one under sec. 170 (11) (b ). On behalf of respondent No. 1 it was contended that it should be so treated. I am unable to agree with this contention. \ Sec. 170 does not contemplate any construction by way of encroachment on municipal land. It only deals with constructions made by persons on their own lands without obtaining the previous permission of the Municipal Board. Sec. 203 (2) is the provision which deals with encroachment on municipal land. No provision of law is mentioned in the order of the Municipal Commissioner dated 1. 10. 63. It shall be deemed to be an order under sec. 203 (2 ). The next question for consideration which arises is as to whether the order passed under sec. 203 (2) is revisable by the authority authorised in this behalf by the State Government under sec. 300. Sec. 300 runs as follows - "power to call for records - Any officer or authority authorised in this behalf by the State Government may, for the purpose of being satisfied as to the correctness, legality or propriety of any order passed under this Act by a Collector or other officer appointed by the State Government in that behalf, call for the relevant records and may, in doing so, direct that pending the examination of the records, such order shall be held in abeyance. " It is clear from the above section that orders passed under the Act by a Collector or other officer appointed by the State Government alone can be revised under sec. 300. It is thus clear that an order under sec. 203 (2) is not revisable under sec. 300. I accordingly find that the order of the Revenue Appellate Authority dated 6th July, 1964 is without jurisdiction. The order of the Collector dated 17. 4. 64 is also without jurisdiction. I quash both these orders. The result is that part of the Chabutri in dispute which is an encroachment on municipal land will be demolished unless respondent No. 1 takes steps to have this order set aside. .;