SHETHNA, J. - (1.) THE petitioner claims to be in possession of the plot admeasuring 10' x 15. 6' since number of years, on which he constructed a garage since last more than 30 years. Lease deed was executed in his favour by the respondent No. 1, Municipal Corporation, Jodhpur on 6. 7. 1985 (Annex. 1 ). Alongwith the lease deed, site plan is annexed at page 39 of this petition.
(2.) PRIVATE respondent No. 3 being inimical to petitioner filed appeal u/s. 80 of the Rajasthan Municipality Act, 1959 before the District Collector, Jodhpur and prayed that the order passed by Municipal Corporation, Jodhpur granting lease in favour of the petitioner be quashed. It was transferred to Addl. District Magistrate before whom the petitioner made appearance and the case was registered as case No. 15/85. The petitioner approached the civil Court and filed a suit for perpetual injunction by impleading the Addl. District Magistrate as party respondent alongwith the respondent No. 3 and by way of interim prayer the petitioner prayed that Addl. District Magistrate be restrained from proceeding further with the case No. 15/85. Initially, temporary injunction was granted ex-parte and lateron it was made absolute till the final disposal of the case. Lateron, the suit was decreed by the Addl. Munsif and Judicial Magistrate No. 2, Jodhpur on 25. 8. 1992. The respondent No. 3 challenged the said decree in appeal before the District Judge Jodhpur which was transferred to Addl. District Judge No. 3, Jodhpur, which was allowed and the matter was remanded to the trial Court by setting aside the judgment and decree passed by the trial Court. According to the petitioner, it was remanded only on the point of possession over the plot in question. The petitioner challenged the said order of remand before this Court in S. B. Civil Misc. Appeal No. 112/94, in which initially the proceedings before the trial Court were stayed and which was ultimately dismissed as having become infructuous on 7. 8. 1996 in view of the impugned order at Annex. 4 dated 25. 10. 1994 passed by the District Collector, Jodhpur in appeal filed by the respondent No. 3, whereby the lease granted in favour of the petitioner by the respondent-Municipality was cancelled. The impugned order at Annex. 4 dated 25. 10. 1994 passed by the District Collector, Jodhpur has been challenged in this petition by the petitioner after a period of more than two years. It was tried to be explained by the learned counsel Shri Lohra that the petitioner came to know about the passing of the order by the District Magistrate, Jodhpur only on 7. 8. 1996 when the statement was made by the respondent No. 3 before this Court in appeal filed by the petitioner that this appeal has become infructuous in view of the impugned order dated 25. 10. 1994 (Annex. 4 ). He submitted that as soon as the petitioner came to know about the passing of the order at Annex. 4 without wasting further time he immediately filed writ petition on 4. 9. 1996. Thus, an attempt is made to explain the delay in filing the same late. Learned counsel for the petitioner vehemently submitted that the impugned order at Annex. 4 passed by the District Collector is in clear violation of principles of natural justice, therefore, it should be quashed. In support of his submission he tried to place reliance upon the photo stat copy of the order-sheet dated 16. 7. 1994 in which it has been stated by the Addl. District Collector that the matter will be now heard on 11. 10. 1994 for which the notices be given to both the defendants i. e. Municipal Corporation, Jodhpur and the parent petitioner. He further submitted that no such fresh notice was issued to him and without issuing fresh notices the District Collector straightway passed the order on 25. 10. 1994 without affording the opportunity of hearing to the petitioner. As against that learned counsel Shri J. Gehlot appearing for the respondent No. 3 pointed out from the photostat copy of the order-sheet that on last three dates i. e. 13. 9. 1994, 17. 10. 1994 & 25. 10. 1994 it is mentioned that counsel for the parties were present. Mr. Lohra tried to explain that as a matter of course this order-sheet was drawn though the counsel for the present petitioner was not present before the District Collector, Jodhpur on any of the three dates because after 16. 7. 1994, the petitioner was not served with fresh notices. Mr. Lohra, learned counsel for the petitioner stated that the Bar that he himself was the counsel for the present petitioner before the Addl. Collector, Jodhpur and after 16. 7. 1994 when the matter was transferred from Addl. District Collector to District Collector, neither he nor his client i. e. petitioner was informed about the dates of the proceedings of the District Collector, Jodhpur. He further submitted that though it was recorded in the order-sheet dated 16. 7. 1994 to issue notice to the parties, but no such notice was ever issued against the concerned parties. In ordinary circumstances, this argument of learned counsel for the petitioner was accepted, but this is a case in which it is undisputed fact that the petitioner was already served with the notice and not only that he made appearance through learned counsel Shri Lohra before the Addl. District Collector. It is true that on 16. 7. 1994 an order was passed to issue fresh notice to the respective parties. However, it is difficult to accept that though the counsel was not present on all the three occasions before passing of the impugned order their appearance was shown. It is also true that the impugned order Annex. 4 dated 25. 10. 1994 is an ex-parte order in the sense that though respondent was served no one was appearing. Except bare words of the petitioner that he was not served with the notice there is no evidence on record to show that he was not served with the notice. But, it is mentioned by the learned Collector, Jodhpur in his order at Annex. 4 that though served no one was present on behalf of the respondents, then before filing this petition it was the duty of the petitioner to make appropriate application before the Collector, Jodhpur pointing out that he was never served with the notice. There is no reason for this Court not to believe the statement made by the responsible officer i. e. Collector, Jodhpur in his order at Annex. 4 that though served the respondents were absent. Hence, this submission of Mr. Lohra cannot be accepted. It may be stated that till 16. 7. 1994 when the matter was pending before the Addl. Collector, Jodhpur the petitioner was remaining present through his counsel. It is difficult to believe that thereafter the petitioner will not enquire about the matter. It is also difficult to believe that for nearly two years i. e. till August, 1996 the petitioner would not make any attempt to find out what happened to the proceedings before the Addl. Collector, Jodhpur which was subsequently transferred to the District Collector. It is nothing but a mere attempt to explain delay of almost two years in filing this petition late against the impugned order at Annex. 4 before this Court. Thus, this petition is also required to be dismissed on the ground of delay and laches.
(3.) ON merits also the petitioner has no case. It was tried to be submitted by the learned counsel for the petitioner that there was no evidence before the learned Collector, Jodhpur to accept the appeal filed by the respondent No. 3. From the plan which is annexed alongwith the lease deed at Annex. 1 at page 39 it is clear that it was a public way on which a garage was constructed by the petitioner. A bare look at the site plan of the plot in question goes to show that it was nothing but encroachment and it is well settled law that lease deed cannot be executed of a land which is a public way. Before parting, I must state that reliance has been placed by the learned counsel for the respondent upon the Division Bench Judgment of this Court in case of Kalu & Ors. vs. Board of Revenue (1), wherein, it has been held that, "it is settled rule that land which is for common use of the villagers or the urban citizens cannot be sold by public authorities as every passer by viz. villagers and urban citizens acquire right of way free of obstruction. Whether it was such property or not had to be gone into more particularly in view of the order of Collector who found that it was a street for the use of public and cancelled the same. " Thus, this will also answer the argument advanced by the learned counsel for the petitioner that Collector has no jurisdiction to pass the impugned order at Annex. 4. In view of the above discussion, this petition fails and is hereby dismissed. The stay granted earlier stands vacated forthwith. Stay petition is also dismissed. . ;