1 S.B. CIVIL WRIT PETITION NO.3689/1996. Ratan Lal Vs. State of Rajasthan & Ors. Date of Order :: 2nd March 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. M.L. Khatri, for the petitioner. Mr. S.K.Sankhla, for the respondents. ... BY THE COURT: The petitioner Ratan Lal made an application on 17.04.1987 (Annex.1) to the Municipal Board, Barmer seeking permission to raise construction on a plot of land admeasuring 800 square feet situated at Mohalla Pratapura, Barmer that he had purchased from one Shera Ram by a registered sale deed dated 31.03.1987 (Annex.4); and the application so made by the petitioner was allowed by the Municipal Board on 08.10.1987 (Annex.7). However, the construction permission so granted to the petitioner by the Municipal Board was put to challenge by way of an appeal preferred under Section 170(12) of the Rajasthan Municipalities Act, 1959 ('the Act of 1959') by the respondent No.4 Smt. Shanti Devi, said to be the owner of a plot of land in the same locality essentially on the ground that there existed 20 feet wide way in front of the plot of the petitioner but while according construction permission, such way has been 2 reduced to 17½ feet causing serious injury to the residents of the locality; and the way being of public use could not have been reduced at all. The learned Additional Collector, while dealing with the said appeal, observed in his order dated 14.08.1995 (Annex.8) that there was no proof available on record about the Municipal Board having provided for the alleged 20 feet wide way; and only on the basis of the objection as attempted to be raised by the appellant (respondent No.4 herein), there was no justification to direct that such width of the way in question be maintained at 20 feet. The learned Additional Collector, accordingly, dismissed the appeal preferred by the respondent No.4. The respondent No.4 Smt. Shanti Devi took up the matter in revision (Municipal Revision Petition No. 17/1995) before the Additional Divisional Commissioner, Jodhpur that has been decided by the impugned order dated 13.09.1996 (Annex.9). The learned Additional Divisional Commissioner agreed with the submissions made on behalf of the objector that it was required of the Appellate Court to seek a report from the Municipal Board about the width of the way in question. The learned Revisional Authority also observed that while granting construction permission, the Municipal Board ignored the report made after site inspection that there was 27½ feet wide way running from north to south at the area in 3 question. The learned Revisional Authority also observed that the construction permission could not have been granted only on the basis of the sale document and even if there was no formal order for maintaining a particular building line, it was necessary to examine as to what was the width of the way and what was the building line. The learned Revisional Authority observed that granting of construction permission on the land of way could not be approved; and, while allowing the revision petition and setting aside the order dated 14.08.1995, proceeded to modify the construction permission and ordered that the present petitioner Ratan Lal ought to leave 20 feet wide lane and ought to remove the illegal construction raised on 2½ feet land. Aggrieved, the petitioner has preferred this writ petition. It is contended on behalf of the petitioner that the order dated 13.09.1996 remains illegal and arbitrary; and that the respondent No.4 preferred the appeal nearly 4 years after grant of the construction permission though the limitation for appeal remains 30 days per section 170(12) of the Act of 1959; and there being no explanation for such an inordinate delay though the appellant is residing nearby, the appeal ought to have been dismissed on this count alone. It is also submitted that the impugned order is based on surmises and conjectures; that the petitioner had purchased the plot in 4 question from Shera Ram under registered sale deed wherein the disputed way was shown as 17½ feet wide and in fact, the said Shri Shera Ram purchased the disputed plot from one Megh Singh in the year 1983 and in his sale deed also, the width of the lane in question was shown as 17 ½ feet only. The impugned order has been supported on behalf of the respondents essentially with the submissions that the land of way cannot be permitted to be reduced in any manner and the order impugned does not disclose any error apparent on the face of the record so as to call for interference in the writ jurisdiction. The rival submissions have been given a thoughtful consideration and the material placed on record has been examined. The essential and basic consideration on which the learned Additional Divisional Commissioner, Jodhpur chose to interfere in the order passed by the Additional Collector, Barmer has been that the Appellate Authority failed to call for the requisite record from the Municipal Board and failed to determine the questions relating to the building line and width of the way in question. If at all the said were the considerations prevailing with the learned Revisional Authority, the reasonable and proper course was to remand the matter to the Appellate Authority. However, after making such 5 observations about want of requisite material, the learned Revisional Authority itself purportedly examined some part of the site inspection report available on record and abruptly concluded that the width of the way in question was required to be maintained at 20 feet. Such conclusion of the learned Revisional Authority could only be rejected as being assumptive in nature rather than any finding arrived on the basis of relevant material. On an examination of the material available on record, prima facie, it appears that the sale deed of the petitioner and so also the sale deed of his predecessor-in-title stated about 17½ feet way on the northern side and 27½ feet way on the eastern side of the plot in question. The report as made on the file of the Municipal Board on 08.10.1987 also seems to be of the effect that the sanctioned way running from north to south (i.e., on the eastern side of the plot in question) was 27½ feet wide. The learned Revisional Authority has repeatedly referred to such kind of report but then, has omitted to consider that the report stated about the way on the eastern side of the plot in question and was not related with the way in dispute situated on the northern side. Prima facie, there does not appear any cogent material available on record whereby 20 feet wide way could be held existing and dedicated for public use on the northern side of the plot in 6 question. It is also not borne out on the record if there was a regular building line maintained in the area in question and if raising of construction by the petitioner was in any manner disturbing the building line ? The conclusion as reached by the learned Revisional Authority that 20 feet wide way was required to be maintained cannot be approved on the present status of the record. In the aforesaid view of the matter, the order as passed by the learned Additional Divisional Commissioner being contrary to record and rather away from record, cannot be sustained. It is, however, noticed that the width of the way in question is seriously in dispute; and though prima facie, no material seems to be available whereupon the learned Additional Divisional Commissioner passed the order but then, the order as passed by the Additional Collector concerned is also not based on consideration of all the relevant records particularly in relation to the width of way in question, the building line, and other relevant facts and factors. Having regard to the overall facts and circumstances of the case, it appears appropriate to set aside both the impugned orders and to restore the said appeal bearing No.10/1995 on the file of the Additional Collector, Barmer for decision afresh 7 in accordance with law. As a result of the aforesaid, this writ petition succeeds to the extent indicated above; the impugned orders dated 14.08.1995 (Annex.8) and 13.09.1996 (Annex.9) are quashed and set aside; Appeal No.10/1995 shall stand restored on the file of Additional Collector, Barmer for re-consideration in accordance with law. The parties through their counsel present before this Court shall stand at notice to appear before the Appellate Authority on 13.04.2009. In the circumstances of the case, the parties are left to bear their own costs of this writ petition. (DINESH MAHESHWARI), J. Mohan/