TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) S. B. Civil Second Appeal No. 86/81 has been preferred by defendant-Municipal Board, Bikaner against the judgment and decree dated 6-9-1979 by which the trial court granted decree for perpetual injunction against the appellant-defendant Municipal Board, holding that the plot in dispute shall not be sold by auction on objection of defendant no. 2 but in case any neighbour raises any objection against the disposal of the land under Rule 23 of the Rajasthan Municipalities (Disposal of Urban Land ) Rules, 1974 (for short "the Rules of 1974"), then the land be disposed of by public auction. The appeal against the judgment and decree of the trial court was dismissed by the appellate court vide judgment and decree dated 5-11-1080. S. B. Civil Second Appeal No. 91/1981 is also against the same judgments and decrees referred above but by defendant no. 2, who is also seeking allotment of land in his favour. The facts which are not in dispute are that plaintiff no. 1 is a Trust and plaintiff no. 2 is the Chief Trustee of plaintiff no. 1-Trust. Plaintiff no. 1 applied for the allotment of the plot in dispute having measurement of 264 sq. ft. According to the plaintiff, the plaintiff's property for which Patta was issued in favour of plaintiff no. 1 on 29-4-1949 is situated adjoining to the plot in dispute. Since the land in dispute is a small strip of land having measurement of less than 100 sq. yards, therefore, the plaintiff no. 1 is entitled to apply for allotment of the strip of land under Rule 23 of the Rules of 1974. Plaintiff no. 1, therefore, applied for allotment of land on 10-6-1970, upon which file was constituted. Since the land cost was more than Rs. 500/-, therefore, prior approval of the District Collector was needed as per the Rules, hence the matter was sent to the District Collector, Bikaner for approval. The District Collector, Bikaner granted approval for sale of the land in favour of plaintiff no. 1 by order dated 28-9-1971 on payment of Rs. 9/- per sq. ft. . The plaintiff was not agreeable to pay the cost of the land at the rate of Rs. 9/- per sq. ft. , therefore, the plaintiff preferred revision petition against the order of the District Collector. Bikaner. Till the filing of the suit, said revision was not decided by the revisional authority. According to the plaintiff though the revision petition of the plaintiff for getting the rate reduced was pending, still the plaintiff deposited Rs. 2376/- which is the cost of the land approved by the District Collector and which is at the rate of Rs. 9/- per sq. ft. This amount was deposited on 8-4-1975 by the plaintiff. According to the plaintiff, meanwhile part of the land in question was encroached upon by defendant no. 2 (appellant in S. B. Civil Second Appeal No. 91/81 ). Defendant no. 2, on the basis of his possession, submitted the objection against the allotment of land in favour of the plaintiff. Defendant no. 2 also submitted that he is ready and willing to purchase the said strip of land and he even prepared to pay Rs. 25/- per sq. ft. The matter was referred to the District Collector, Bikaner, upon which the learned District Collector, Bikaner vide order dated 27-3-1976 ordered that the land be put to public auction. The plaintiff prayed that since the decision was taken to allot the land in favour of the plaintiff and the plaintiff already deposited Rs. 2376/- on 8-4-1975 in pursuance of the order of the District Collector, Bikaner dated 28-9-1971, therefore, the learned District Collector had no jurisdiction to dispose of the land by public auction. It is also submitted that defendant no. 2 had no adjoining plot, adjoining the land in dispute, therefore, he had no locus standi to claim the plot under Rule 23 of the Rules of 1974 and he has no locus standi to challenge sale of the land in favour of plaintiff by the Municipal Board. The plaintiff prayed that the plot may not be auctioned on the request of defendant no. 2 and it may be declared that the plaintiff is entitled to get the plot on free-hold basis under rule 23 of the Rules of 1974. The defendant-Municipal Board Bikaner submitted written statement questioning the right of the plaintiff to maintain the suit after showing ignorance about constitution of the Trust and its registration etc. However, the Municipal Board admitted that the Patta no. 94 dated 29-4-1949 was issued in the name of plaintiff no-2- The Municipal Board also admitted that application was submitted by defendant no. 2 for allotment of the land but it was on 6-6-1970 and it was for the land measuring 445 sq. ft. Upon plaintiff's moving application, file no. 21 was constituted and recommendation was sent to the District Collector, Bikaner for approval. Defendant- Municipal Board also admitted that the approval was granted by the District Collector, Bikaner for sale of the land on payment of cost of the land at the rate of Rs. 9/- per sq. ft. , but this approval was conditional. The condition was that in case the plaintiff will deposit the cost of the land within seven days then the land will be sold to the plaintiff otherwise not. It is also submitted that the plaintiff did not deposit the cost of the land within seven days and after more than four years, deposited Rs. 2376/- on 8-4-1975. The Municipal Board also admitted that the District Collector directed to sell the land by public auction and, therefore, the Municipal Board had right to sell the land by public auction. Defendant no. 2 also questioned about the constitution of plaintiff-Trust and its authority to file the suit. Almost same defence was taken by defendant no. 2 against allotment of the land in favour of the plaintiff. The trial court framed the issues and after evidence and hearing the parties, the trial court held that the land in dispute since having measurement less than 100 sq. yards, therefore, is a strip of land, therefore, it is available for allotment. The trial court also held that the plaintiff is owner of the adjoining property, therefore, the defendant, who is not adjoining neighbour, has no right to object for allotment of land to the plaintiff under Rule 23. Therefore, the trial court held that the plot cannot be auctioned on objection of defendant no. 2 but in case there is any other objection of the adjoining plot holder then the plot is required to be sold by public auction.
(3.) IN the first appellate court, in two appeals, preferred by the two defendants-Municipal Board,bikaner and defendant no. 2 Liyakat Ali, the first appellate court considered the matter in the light of rule 23 and reached to the conclusion that looking to the measurement of the plot, it cannot be said that the plot cannot be used independently. Since the plot can be used independently then the land is not available for sale by allotment under sub-rule (1) of Rule 23 of the Rules of 1974, may it be less than 100 sq. yards. IN view of the above, the appellate court was also of the view that the plot can be disposed of by auction. The learned counsel appearing for the appellant, which has been preferred by the Municipal Board, Bikaner, vehemently submitted that the plot in question can be used as independent plot and, therefore, it is not available for allotment to the plaintiff even as per sub-rule (1) of Rule 23 of the Rules of 1974, which clearly provides that those plots which are not fit to be disposed of as plots, shall be sold to the owners of the adjoining plots. When plot can be used independently then it can be disposed of by public auction, may there be no objection from any of person or any of the neighbour. It is also submitted that the plaintiff though deposited the cost of the land but it was not in compliance of the order of the District Collector, Bikaner dated 28-9-1971 by which the plaintiffs were permitted to deposit the cost of the land within seven days. The plaintiff admittedly deposited the cost of the land on 8-4-1975. It is also submitted that the said deposit was not in pursuance of the order dated 28-9-1971 nor time was extended by the District Collector for deposit of the cost of the land. It is further submitted that mere deposit of the cost of the land, cannot confer any right upon the plaintiff to claim allotment of the plot. Admittedly, no order allotting the land has been passed in favour of the plaintiff. Therefore, the plaintiffs cannot claim right over the plot. It is also submitted that defendant no. 2 has no right to claim the plot by mere offering Rs. 25/- sq. ft. The learned counsel for the appellant in S. B. Civil Second Appeal No. 91/81 on behalf of the private respondent Liyakat Ali submitted that defendant Liyakat Ali was admittedly in possession of the part of the land in dispute, therefore, defendant no. 2- appellant Liyakat Ali raised objection against the allotment of the land to the plaintiff. It is also submitted that defendant no. 2-appellant Liyakat Ali took part in the public auction also and gave bid and offered Rs. 25/- per sq. ft. to the Municipal Board but because of the interim order passed by the civil court, the land was not allotted to defendant-appellant Liyakat Ali. ;