7 ,

MUNICIPAL CORPORATION, JAIPUR A v.

SHANKARLAL

FEBRUARY 3, 2006

[ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] B

Constitution of India, 1950-Article 226-Writ filed by Respondent seeking direction to Municipal Corporation to regularise a plot of land- Allowed by High Court-Challenge to-Held: Order of High Court not c sustainable since while passing the direction, the Court did not consider various pleas raised by the Corporation-Municipalities-Regularization of land.

Clarificatory order-Scope and extent of-Direction of High Court to Corporation to regularise a plot of land-Respondent aggrieved by certain steps taken by Corporation filed application seeking clarification-High Court D

while dealing with the application virtually substituted its earlier order by a fresh one-Held: Not permissible, as directions which were not given in earlier order cannot be incorporated in the subsequent order-Municipalities- Regularization of land.

In 1984, Respondent filed an application for regularization of a plot of E land before the Jaipur Development Authority (JDA). While the application was pending consideration, JOA passed a resolution in 1989 to regularize lands of similarly situated persons like the Respondent. Subsequently, the land in dispute stood transferred to the Appellant-Corporation. Respondent filed an application for regularization before the Appellant in 1996. He filed a writ F petition in 1999 before High Court for direction to Appellant to regularize the land on basis of the 1989 JOA resolution. In response, Appellant raised various pleas viz. that it was not bound by any decision taken by its predecessor body i.e. JDA and that the writ petition was not maintainable on grounds of delay and laches. But the High Court allowed the writ petition without considering te said pleas of the Aprellant, and held that the Corporation G was bound to regularize the Respondent's land on the pattern of the 1989 JDA resolution. Aggrieved by certain steps taken by the Appellant- ., Corporation, Respondent filed an application before High Court seeking "clarification in the order". High Court disposed of the application holding

61 H

A that the action taken by the Appellant was in flagrant disregard and violation of the High Court's earlier order. Both the orders of High Court are under

challenge in the present appeals.

Disposing of the appeals, the Court

B HELD: I. The orders of the High Court both in the writ petition and the so called clarificatory order are clearly indefensible. As a matter of fact, the High Court did not consider various pleas taken by the Appellant- Corporation regarding delayed approach and the effect of any decision taken ' by the predecessor budy on it. It was not explained before the High Court as to why the Respondent filed a11 application before the Appellant-Corporation " c in 1996 if he was really str.king his claim on the basis of an application made

earlier. Maximum that could have been done by the High Court 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. The High Court while dealing with application for D 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 the High Court to regularize on the basis of the earlier decision of •

JDA without deciding the binding effect, if any of the said decision of the

E Appellant-Corporation. (65-G, H; 66-A-B]

2.1. Once the orders passed by the High Court 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 conferred any right on the Respondent, much less effecting the merits of the appeal. (66-E] ..

2.2. It is however directed that the application dated 27.9.1996 filed by the Responde'!t 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, G 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.

(66-F-G]

~ - CIVIL APPEL LA TE JURISDICTION : Civil Appeal Nos. 3468-69 of

H 2003. ..

MUNICIPALCORPORATIONv. SHANKARLAL[PASAYAT.J.J. 63 Y From the Judgment and Order dated I 0.11.2000 of the Rajasthan High A Court in S.B. Civil Misc. Application No.33/2000 in S.B. Civil Writ Petition No.3536/99 and final rder dated 23.11.2000 in D.B. Civil Special Appeal (Writ) No.2552/2000.

WITH

C.A. No. 3470 of 2003.

Altaf Ahmed, A.P. IJhamija, Sarad Singhania, H.D. Thanvi and Sushi!

Kumar Jain for the Appellant

Aruneshwar Gupta and Naveen Kumar Singh for the Respondent C

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. These appeals are directed against 0the 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 D

.~· 10.11.2000 passeJ 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 ...

E 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 F 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 G appellant-Corporation. Firtly, it was pointed out that the corporation was not bound by any decision taken by its predecessor body i.e. the JDA. Jn 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 H

64 Sl!PRE\1F COi RT REPORTS

[20061 2 S.C.R.

A the basis of an application which was filed earlier to tht! 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 !aches.

By the judgment dated 6.12.1999 a learned Single Judge of the High B 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 v Ide Agenda Item N0.42.14 the JDA decided to regularize the lands of similarly situated persons like the petitioner but his case was not n:gularized 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 JOA. 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 tht: pattern of the JOA 's decision tak.:n for similarly placed land occupiers like the petitioner whose cast:s have been regularized by the JOA in its decision referrt:d to above. Non consideration and not deciding the petitioner's case for regularization even after the land stood transfemd from the JDA to the respondent Corporation on the pattern of the JOA 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. I 989 and I 7 .5. I 989 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 G 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 I 0.11.2000 disposed of H the said application and held that the action taken by the appellant-Corporation

...

1 -

1 ,.

MUNICIPALCORPORATfON v. SHANKARLAL [PASAYAT, J.] 65 y was in flagrant disregard and violation of the order dated 6.12.1999. It was A further held that the direction of the Commissioner of the Corporation fixing the amount at Rs. I 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 B

submitted that the orders of the High Court are clearly unsustainable. The r High Court did not consider the specific pleas of the Corporation that (a) it was not bound by any decision taken in 1989 by the JOA when it had its own prescriptions (b) the writ application was highly belated. Further, the High Court did not indicate any basis for its conclusion that the Corporation was c bound by the earlier decision of the JOA in the matter of fixation of rate. ft 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 abo•tt a decade without any explanation whatsoever being offered for the abnormal delay in approaching the Court. In any event, the resolution of D

, J the JOA 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 F: 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 rewritten the judgment which is impermissible in law.

Learned counsel for the respondent supported the order and submitted

- _j_ 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 G 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 H

A 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 fmpermissible. Direction could not have been given by learned Single Judge to regularize on the basis of the earlier B 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 C 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, D 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 struid taken in the appeals before this Court can by no stretch of E 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 F 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 G amount is refunded.

The appeals are disposed of. No costs.

8.8.8.

Appeals disposed of.