- (1.) Heard learned counsel for the appellant. Brief facts of the case are that the plaintiffs filed a suit for permanent injunction with a specific plea that the land in question measuring 30 feet x 40 feet could not be allotted to the appellant/defendant and a specific issue was framed by the trial court on this plea. The case was fully contested on this issue by producing evidence as well as by raising legal pleas by both the parties. The trial court vide its judgment and decree dated 30.3.2000 held that the said land could not have been allotted to the defendant no.2 by the respondent Municipal Council. The appellant being aggrieved against the judgment and decree passed by the trial court preferred appeal which was dismissed by the appellate court vide judgment and decree dated 2.8.2000. Hence, this second appeal.
(2.) According to learned counsel for the appellant, the two courts below proceeded on wrong assumption of law that the commercial land cannot be allotted to a private individual and the commercial land can be disposed of only by way of public auction. Learned counsel for the appellant pointed out that as per Rule 15(1) of the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (for short 'the Rules of 1974'), a commercial land can be allotted to not only public and charitable institutions, commercial statutory or non-statutory institutions or bodies, central government, departments or educated unemployed youths under the self employment scheme but it can be allotted to any other persons. In view of the above, this is a error of law committed by the two courts below.
(3.) It is also submitted by learned counsel for the appellant that the suit as framed was not maintainable as the plaintiffs could have filed the suit for declaration or in fact, the suit filed by the plaintiffs is a suit for declaration and the suit has been filed without serving a notice under Section 271 of the Rajasthan Municipalities Act, 1959 upon the defendant Municipality, therefore, the suit was not maintainable.;