- (1.) THIS is a writ application under Article 226 of the Constitution against an order of the Minister of Local Self Government Department of our State dated the 17th april, 1957, passed under Section 4 of the Rajasthan City Municipal Appeals (Regulation) Act, 1950 (Act No. 3 of 1950 hereinafter referred to as the Act of 1950 ). This application was originally allowed by a Bench of this Court (Bapna Ag. C. J. and Modi J.) by an order dated the 7th November, 1958, on the ground that the State Government had no jurisdiction to pass the order under challenge. The respondent State of Rajasthan then obtained special leave for appeal to the supreme Court and by its judgment d/- 16-9-1964, Civil Appeal No. 245 of 1962, state of Rajasthan v. Mrs. Leela Jain, AIR 1965 S. C. 1296, the interpretation put by this Court on the proviso to Section 4 of the Act of 1950 was held to be erroneous and it was further held that a revision lay to the Government against the order of the municipal authority concerned thereunder and the case has been remanded to this Court for being disposed of on the other points arising in the case. This is how the case has come before us today.
(2.) THE material facts in so far as they are necessary for the decision of this writ application may be stated very shortly. The petitioner Mrs. Leela Jain being the owner of a plot of land in Ashok Nagar in the city of Jaipur, applied to the municipal Council for permission to build on it. Respondent No. 3 D. D. Goswami is her neighbour. The petitioner was permitted to construct on her plot of land according to certain plan submitted by her, and approved by the Municipal Council, but it appears that during the course of constructions, she made certain deviations therefrom by which respondent No. 3 felt aggrieved and it is out of this discord that the present litigation has arisen. The said respondent made a revision to the municipal Council complaining against the deviations as a result of which an inquiry was made and it was found that the petitioner had made certain departures from the approved plan. On the 19th September, 1956, the President of the Municipal Council directed the petitioner to stop the construction, but it is alleged that she paid no heed to that direction. Consequently, action was contemplated against her under Section 210 of the City of Jaipur Municipal Act, 1943, which provides that whenever under the provisions of the Act, any work is required to be executed by the owner or occupier of any building or land and default is made in the execution thereof, the municipal Board may cause such work to be executed and the expenses thereby incurred shall be paid to it by the person by whom such work ought to nave been executed and shall be recoverable according to the procedure laid down in Chapter 8 of the Act. On the 24th September, 1956, the Municipal Overseer reported that the objectionable construction had been completed whereupon the President municipal Council directed action to be taken under Section 210 of the aforesaid act. In the meantime the petitioner through her lawyer prayed to the Municipal council that the case be compounded by imposition of a reasonable penalty. Consequently on the 24th October, 1956, the President of the Council inspected the site and finally recorded the following order: "i have inspected the site and seen the record of the case as well. The applicant Shrimati Leela Devi has of course made some alterations in the original plan submitted by her. The constructions, however, do not infringe any bye-law regarding construction. She has altered the plan without permission for which she has applied for compounding on 7-8 56. The Municipal Council can enforce the regulations of the Urban improvement Board or not, is a doubtful matter. The case be, therefore, compounded for Rs. 101 (one hundred one) only. The party be informed and compound money be realised. " The petitioner's case is that she had deposited the composition fee of Rs. 101 with the Municipal Council, Jaipur, and this fact stands admitted in the reply filed on behalf of the respondent State. In the meantime, respondent Goswami filed a revision to the Government against the order of the President dated the 24th october, 1956, set out above and this revision was disposed of in his favour as will appear from the following letter of the Assistant Secretary to the Government in the Local Self Government to the Municipal Council dated the 17th April, 1957: "i am directed to state that Government after full consideration hold that the power of the Board for compounding a case should be exercised judicially wherever the construction has been made in contravention of the bye-laws of Urban Improvement Board and to the detriment of the neighbours there does not seem to be justification for compromise. Under the I. P. C. (Indian Penal Code) only some affairs are compoundable and they are private crimes. Public crimes are not compoundable. Had the affair been between the Municipal Council and the owner of the house it could have been compounded, but where it affects any neighbours the construction seems to have been adversely affected by the construction (sic) and on his complaint it was decided by the Municipal Council that the construction be demolished. Under the circumstances the unauthorised construction should be demolished. The revision petition is, therefore, accepted and the order of the Municipal council, Jaipur, is set aside. The unauthorised construction should be demolished. The parties concerned may be informed accordingly. " It is this order which is being assailed by the petitioner in the present writ proceeding.
(3.) IN support of the petition, a number of grounds were taken but learned counsel for the petitioner confined his argument, when the case first came up before this court, to the contention that the order of the Government was ultra vires and it had no jurisdiction whatsoever to make it under the proviso to Section 4 of the Act of 1950. As already stated, this ground no longer survives in view of the decision of their Lordships of the Supreme Court.;