S.K.MAL LODHA, J. - (1.) THIS is a petition under Article 226 of the Constitution of India by Ganeshmal who is resident of Bhinmal and is a voter and tax -payer. There is a plot of land measuring 5344 sq. Gaz (the sq. Gaz referred to in this judgment bears the dimension 2' x 2'), situate at Badlawala Choraya, Bhinmal within the limits of Bhinmal Municipality. The case of the petitioner is that respondents Nos. 3 and 4 (Keshrimal and Ganpatlal) claimed their title in respect of the aforesaid plot on the basis of two sale -deeds dated March 14, 1958 which they obtained from certain Bhambies. The vendor -Bhambies, according to respondent No. 2 Municipal Board Bhinmal ('the Board' hereafter) had no right or title to transfer the plot in favour of respondents Nos. 3 and 4. The Board initiated proceeding for ejectment against respondents Nos. 3 and 4. On March 12, 1967, an order for ejectment was passed against respondents Nos. 3 and 4 on the ground that they were trespassers. This order was executed on March 15, 1967 and, according to the petitioner, respondents Nos. 3 and 4 were dispossessed from the plot. Respondents Nos. 3 and 4 moved the Collector, Jalore, under Section 285 of the Rajasthan Municipalities Act (No. XXXVIII of 1959) (hereinafter referred to as the Act'). The Collector, Jalore, passed the order dated October 24, 1967 for suspending the execution of the order of eviction against respondents Nos. 3 and 4. The material portion of the order passed by the Collector is as under: I heard both the parties and carefully examined the record. It is evident from the record that this is purely a civil matter in which parties have target declared their respective titles from the proper court. Both the parties claim their possession, applicant on the basis of the sale deeds, and this respondent on the basis of its being a Nazul land But under Section 203(2) of the Rajasthan Municipalities Act, 1969, the Municipal Board can remove the encroachment from the open space. But whether land is an open spice, or in possession of the applicants have to be decided first by the Civil Court. This has also been held by the Commissioner, Jodhpur in his judgment dated 27 -2 -59 that the dispute hanges (sic hinges?) on the title of the land and it can only be decided by the proper form. In the above circumstances, the order passed by the Municipal Board Bhinmal under Section 203 of the Rajasthan Municipalities Act 1959 is illegal and therefore, its execution is suspended. He also sent a copy of the order dated October 24, 1967 to the Secretary to the Government, Local Self Government Department, Rajasthan, as provided under Section 285(2) of the Act.
(2.) ONE more fact that needs to be mentioned here is that the Municipal Board, by its resolution dated December 16, 1968 (a copy of which was filed in S.B. Civil Writ Petition No. 359 of 1971 marked as Ex. 3) agreed on certain terms to settle the matter with respondent No. 8 Kesharimal. According to that resolution, land measuring 4971 -50 sq. Gaj was to be sold to respondent No. 3. The reserve price was as recorded Rs. 7.00 per sq. Gaj. The State Government, by its order dated August 5, 1970 directed the Municipal Board, Bhinmal to sell the entire plot measuring 5344 sq. Gaj to respondents Nos. 3 and 4 @ 21 paisa per sq Gaj. The Administrator, Municipal Board, Bhinmal, in pursuance of the order of the State Government executed two sale -deeds dated October 27, 1970 in respect of the plot in favour of respondents Nos. 3 and 4. The Municipal Board, Bhinmal, filed a writ petition entitled Municipal Board, Bhinmal v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 359 of 1971 decided on September 14, 1973 challenging the orders of the Collector, Jalore dated October 24, 1967 and the State Government dated August 5, 1970. By order Ex. 1 dated September 14, 1973, this Court allowed the writ petition in part and set aside the other No. F. 2(23) LSG/67/Lit dated August 5, 1970 and consequent sale by Keshrimal was also quashed. In that writ, the Board was represented by Mr. H.M. Parekh who is counsel for the petitioner in this writ petition. DB Special Appeal No. 161 of 1973 was preferred by respondents Nos. 3 and 4 against the Municipal Board, Bhinmal and others. The Division Bench, by its order dated January 14, 1977, dismissed the appeal. It was held therein as under: We are in complete agreement with the reasons given by thelearned Single Judge for holding the order passed by the State Government under Section 285(2) of the Rajasthan Municipalities Act, 1959 to be ultra vires the Government. That being so, the learned Single Judge was right in striking down the impugned order of the State Government under Section 285(2), so also the consequential sale deeds executed by the Administrator. It will be pertinent here to excerpt the following observations made by the learned Judge in the penultimate paragraph: We must, however, make it clear that nothing stated by the learned Single Judge in the order appealed from, shall prejudice the right, title and interest and possession, if any, of the appellant Keshrimal. Nor, shall the order act to the prejudice of the respondent, the Municipal Board, Bhinmal, to take recourse to such legal remedies as may be available to it under law. As a result of this, the parties would be relegated to the position that obtained on October 24, 1967. The matter that was pending before the State Government under Section 28(2) of the Act, revived. The Collector, by his order dated October 24, 1967 suspended the execution of the order by which respondents Nos. 3 and 4 were sought to be ejected and both the parties were directed to get their respective claims decided by seeking declaration from proper court In regard to this dispute, a compromise (copy of which has been filed marked as Ex. R/1) dated November 21, 1978 was presented before the State Government On December 8, 1978, the State Government passed the order (Ex. 3) under Section 285(2) and confirmed the order of the Collector, Jalore dated October 24, 1967. While confirming it, it expressed its agreement with the terms mentioned in the compromise (Ex A/1) which was submitted before it. It is clear from the order Ex. 3 that the dispute which was going on in respect of the plod between respondents Nos. 3 and 4 on the one hand and the Board, on the other, was decided. The case of the petitioner further is that the plot is a public land and he applied to the Board to auction it so that he may have an opportunity to offer his bid. A registered notice is said to have been sent to the Administrator and to the State Government on April 9, 1979. The petitioner has challenged the order (Ex 3) of the State Government in this writ petition.
(3.) IT may be mentioned here that the petitioner has not stated in the writ petition that a review petition Ex. 5 was filed by the petitioner and the State Government by its order Ex. A6 dated April 13, 1979 rejected it and maintained the order dated December 8, 1978.;