Municipal
Corporation, Jaipur Vs. Shankarlal [2006] Insc 8 (3 January 2006)
Arijit
Pasayat & Tarun Chatterjee
With
Civil Appeal No. 3470 Of 2003 Arijit Pasayat, J.
These
appeals are directed against the orders passed by a learned Single Judge of the
Rajasthan High Court in S.B. Civil Writ Petition No.3536 of 1999 disposed of on
6.12.1999 and the order dated 10.11.2000 passed on an application filed for
"seeking clarification" of the order dated 6.12.1999.
A
brief reference to the factual aspects would be necessary for deciding the
controversy involved.
The
respondent filed a Writ Petition for a direction to the appellant-Corporation
to regularize the land i.e. plot No.113, Near Central School, Bajaj Nagar, Tonk
Road, Jaipur. It was the case of the writ petitioner that the regularization
was to be done in view of the decision taken by the Jaipur Development
Authority (in short 'JDA') dated 6.11.1989. It is to be noted that the land
originally belonged to the Jaipur Urban Improvement Trust, which body was succeeded
by the JDA and finally by the appellant-Corporation. The respondent stated that
he had filed an application for regularization before the JDA on 18.9.1984.
The
prayer in the writ petition was resisted on several grounds by the
appellant-Corporation. Firstly, it was pointed out that the corporation was not
bound by any decision taken by its predecessor body i.e. the JDA. In fact the
respondent had filed an application for regularization on 27.9.1996 and his
application was to be considered in the light of statutory provisions and
regulations governing the appellant- Corporation. It was specifically urged
that the writ application filed in 1999 seeking enforcement of a resolution on
the basis of an application which was filed earlier to the resolution has to be
ignored and the application made in 1984 is of no consequence. It was
specifically pointed out that the writ petition was not maintainable on the
grounds of delay and laches.
By the
judgment dated 6.12.1999 a learned Single Judge of the High Court disposed of
the writ application without dealing with aforesaid stands of the
appellant-Corporation and inter alia gave the following directions:
"In
my considered view, the application dated 18.9.1984 of the petitioner for
regularization was undoubtedly pending on the decision taken by the JDA on or
about 6.11.1989 when vide Agenda Item NO.42.14 the JDA decided to regularize
the lands of similarly situated persons like the petitioner but his case was
not regularized and according to the respondent-Corporation his case is pending
consideration after receipt of the file of the petitioner's land in dispute
from the JDA.
However,
since after the decision of the JDA the land in dispute stands transferred to
the respondent Corporation, the respondent Corporation is bound to regularize
the petitioner's land on the pattern of the JDA's decision taken for similarly
placed land occupiers like the petitioner whose cases have been regularized by
the JDA in its decision referred to above. Non consideration and not deciding
the petitioner's case for regularization even after the land stood transferred
from the JDA to the respondent Corporation on the pattern of the JDA is per se
arbitrary.
Consequently, this writ petition deserves to be
allowed.
As a
result of the above discussion, this writ petition is allowed. The respondent
Municipal Corporation Jaipur is directed to regularize the land of the
petitioner (i.e. Plot No.113, Near Central School, Bajaj Nagar, Tonk Road, Jaipur,
which is in his possession) in view of the decisions dated 6.11.1989 and
17.5.1989 of the Jaipur Development Authority referred to by the petitioner in
his writ petition. The orders for aforesaid regularization be passed within a
period of four weeks from the receipt of certified copy of this judgment. No
order as to costs." An application was filed by the respondent seeking
"clarification in the order" making a grievance that the
appellant-Corporation was charging prevalent market rate.
The
learned Single Judge by order dated 10.11.2000 disposed of the said application
and held that the action taken by the appellant-Corporation was in flagrant
disregard and violation of the order dated 6.12.1999. It was further held that
the direction of the Commissioner of the Corporation fixing the amount at Rs.1 crore
7 lacs was beyond the scope of the order passed by the High Court earlier and
was not within the purview of the orders of the Court. Both these orders are
under challenge in these appeals.
Mr. Altaf
Ahmad, learned senior counsel for the appellant-Corporation submitted that the
orders of the High Court are clearly unsustainable. The High Court did not
consider the specific pleas of the Corporation that
-
it was not bound
by any decision taken in 1989 by the JDA when it had its own prescriptions
-
the writ
application was highly belated. Further, the High Court did not indicate any
basis for its conclusion that the Corporation was bound by the earlier decision
of the JDA in the matter of fixation of rate. It also did not record any
finding on the aspect that the writ petitioner was seeking direction on the
basis of the letter which was written about five years before the decision of
JDA. It was also seeking enforcement of the decision after about a decade
without any explanation whatsoever being offered for the abnormal delay in
approaching the Court. In any event, the resolution of the JDA on which the
High Court placed reliance was in fact in the nature of enabling provision and
it was by no stretch of imagination a mandatory one. It is inconceivable that
the rate prevalent in 1989 was to be adopted even when the regularization was
directed to be done by the High Court in 1999. The High Court clearly
overlooked the same. Further, the High Court has substituted its earlier
decision by a fresh one while dealing with an application stated to be for
clarification. In essence and substance the High Court has re- written the
judgment which is impermissible in law.
Learned
counsel for the respondent supported the order and submitted that the
appellant-Corporation has not come to Court with clean hands.
The
orders of learned Single Judge both in the writ petition and the so called clarificatory
order are clearly indefensible. As a matter of fact learned Single Judge did
not consider various pleas taken by the appellant-Corporation regarding delayed
approach and the effect of any decision taken by the predecessor body on it. It
was not explained before the High Court as to why the respondent filed an
application before the appellant-Corporation in 1996 if it was really staking
his claim on the basis of an application made earlier. Maximum that could have
been done by learned Single Judge in such a situation was to direct the
appellant- Corporation to deal with the request made in 1996, in accordance
with law. The direction given for regularization is clearly unsustainable. Learned
Single Judge while dealing with application for clarification virtually
substituted his earlier judgment by a fresh one. Directions which were not
given in the earlier order were incorporated in the subsequent order which was
also impermissible. Direction could not have been given by learned Single Judge
to regularize on the basis of the earlier decision of JDA without deciding the
binding effect, if any of the said decision of the appellant-Corporation.
Learned
counsel for the respondent has further highlighted that the order of the
learned Single Judge has been given effect to and the challenge to order before
the Division Bench was dismissed and the Special Appeals were held to be not
maintainable. It has also been submitted that subsequent transactions had been
entered into by the respondent with the other parties. It has been pointed out
by learned counsel for the appellant-Corporation that the action was taken in
view of the strong words used by a learned Single Judge even going to the
extent of saying that the action of the Corporation virtually amounted to
contempt of Court's order.
Under
the threat of contempt, action was taken by the appellant-Corporation without
prejudice to its claims involved in the matters before the High Court and this
Court.
Once
the orders passed by learned Single Judge are held to be indefensible, any
consequent action to give effect to the order without prejudice to the stand
taken in the appeals before this Court can by no stretch of imagination be said
to have been conferred any right on the respondent, much less effecting the
merits of the appeal.
The
inevitable result is that orders of learned Single Judge are to be set aside,
which we direct. It is however directed that the application dated 27.9.1996
filed by the respondent shall be dealt with by the appellant-Corporation in
accordance with law. The amount which is stated to have been deposited shall be
adjusted against the amount, if any, fixed by the appellant-Corporation, if it
chooses to regularize the land in question. However, if it decides not to
regularize the land the amount shall be returned to the respondent with
interest at the rate of 9% from the date of deposit till the amount is refunded.
The
appeals are disposed of. No costs.
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