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CASE NO.: Appeal (civil)  3468-69 of 2003

PETITIONER: Municipal Corporation, Jaipur

RESPONDENT: Shankarlal

DATE OF JUDGMENT: 03/01/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T 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:

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"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 (a) it was  not bound by any decision taken in 1989 by the JDA 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 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

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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

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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.