Municipal Board Pushkar vs Jagat Singh Rathore and Another

R.S. Chauhan, J.—The petitioner, the Municipal Board Pushkar, (''The Board'', for short) has challenged the order dated 28-10-2006 passed by District Collector Ajmer, whereby the learned Collector has declared the action of the Board in demolishing a part of hotel and sealing part of the hotel, which belongs to the respondent No. 1, Mr. Jagat Singh Rathore, as unlawful and has declared the action as null and void.

Brief facts of the case that according to the Board, the respondent No. 1 had encroached upon certain land belonging to the "Ghats" (embankments) of the Pushkar Lake as well as on a particular road of Pushkar. Allegedly, the respondent No. 1 had constructed part of his hotel on the said land without the permission of the Board. Since other hoteliers had also encroached on land belonging to the Board, on 14-4-2006, the Board had issued a general notice informing the hoteliers to stop their illegal activities, otherwise their hotel would be seized. On 19-4-2006, a special notice was sent to the respondent No. 1. Again on 22-4-2006, another notice was sent to him informing him that it is not possible to grant permission under bye-law 4(2) of the Pushkar (Pushkar Sarowar Swachhata, Pavitrata Evam Saudaryakaran Up-Vidhiyam), 1991 (herein after to be referred as "Bye-laws 1991"). For, grant of such a permission would be against "the prestige" of the Pushkar Lake. It further directed him to stop the commercial activities of the hotel within a period of three days, otherwise necessary action would be taken against him. Furthermore, according to the Board, as the respondent No. 1 had not complied with the earlier notices, on 22-4- 2006 itself, the Board sealed certain rooms of the hotel and demolished a part of the hotel. Since, the respondent No. 1 was aggrieved by the said notices and by the action of Board in demolishing a part of the hotel and in sealing the rooms of the hotel, he filed an application u/s 285 of the Rajasthan Municipality Act,1959 (`the Act of 1959'' for short) before the District Collector Ajmer. After hearing both the parties, vide order dated 28- 10-2006, the collector declared the action of the Board and the notice dated 22-4-2006 as unlawful. Hence, this petition before this Court.

Mr. K.N.Gupta, the learned Counsel for the Board, has raised a single contention before this Court, namely, that the power of deciding an application u/s 285 of Act of 1959 was with the Sub-Divisional Officer (`the SDO'' for short) and not with the Collector. Therefore, the Collector could not have exercised the power under the said provision. Hence, the impugned order is ultra-vires the jurisdiction of the learned Collector.

On the other hand, Mr. A.K.Sharma, learned Counsel for Mr. Rathore, has raised a preliminary objection that the writ is premature. According to learned Counsel, once an order has been passed by the appropriate authority u/s 285(1) of the Act of 1959, according to Section 285(2), the order has to be forwarded to the State Government. It is for the State Government to rescind the order or to direct that it shall continue, with or without modification, permanently or for such a period, as it thinks fit. In the present case, without waiting for the Collector to send his order to the state Government, the petitioner has rushed to this Court for challenging the order dated 28-10-2006. Therefore, the writ petition deserves to be dismissed being pre-mature. Secondly, the demolition was carried out in the presence of the Sub-Divisional Officer, Ms. Ansu Chaudhary. The respondent No. 1 had also filed a criminal complaint against the SDO before Judicial Magistrate (Junior Division) Pushkar. The learned Magistrate had asked for a report from the Dy. Superintendent of Police, Circle North, Ajmer. Moreover, a report submitted by Divisional Commissioner, Ajmer-a report of enquiry initiated at the behest of the respondent No. 1-the learned Divisional Commissioner had scathingly commented against the demolition carried out by the Board. In these circumstances, the respondent No. 1 had no hope that justice would be done by the SDO. Therefore, the respondent No. 1 cannot be expected to approach the SDO, who herself had taken illegal action against the respondent No. 1. Lastly, the malafide intention of the Board is apparent from the fact that although in the notice dated 22-4-2006, three days time was given to the respondent No. 1 to close down the commercial activities of the hotel, yet the demolition began on 22-4-2006 itself. Thus, the Board, in hot haste and without waiting for the time period to be over, started demolishing the part of the hotel. In such a situation, the respondent No. 1 had no other option but to approach a neutral authority like the Collector.

Section 285 of the Act of 1959 reads as under:

Power of suspending execution of order etc. of board.-

(1) If in the opinion of any such officer as may be appointed or authorised by the State Government in this behalf the execution of any order or resolution of a board, or the doing of anything which is to be done or is being done by or on behalf of a board, is causing or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof.

(2) When any such officer makes any order under this section, he shall forthwith forward to the State Government and to the board affected thereby a copy of the order, with a statement of the reasons for making it, and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit: Provided that no order of such officer passed under this section shall be confirmed, revised or modified by the State Government without giving the board reasonable opportunity of showing cause against the said order.

A bare perusal of Sub-section (1) of Section 285 clearly reveals that this section grant a special power to an officer, who may be appointed or authorised by the State Government. If such an officer is of the opinion that the execution of any order, or resolution of the Board, or the doing of anything which is to be done by, or being done by, or on behalf of the Board is likely to cause injury, or likely to cause annoyance to the public, or breach of peace, or is unlawful, then he may by an order in writing under his signatures suspend execution or prohibit the doing of such an act or implementation of such an order. This opinion can be formed by the Officer either by suo-motto or upon an application filled by a person.

According to Sub-section (2) of Section 285 of the Act after hearing both the parties-the Board and the person so aggrieved- the officer is legally bound to pass a reasoned decision. After passing of the order, the officer is legally bound to forward the said order forthwith to the State Government. It is for the State Government to decide whether to rescind the order, or to direct that it shall continue in force, with or without modification, permanently or for a temporary period. But, the State Government shall not pass such order without first hearing the Board. Thus, Sub-section (2) contains the procedure to be followed after an order has been passed by the Officer.

In the present case, there is not an iota of evidence to show that the procedure of Sub-section (2) of Section 285 of the Act of 1959 was followed. Therefore, the Board has prematurely rushed to this Court challenging the order dated 28-10-2006. In fact, the Board should have waited till the said order is sent to the State Government and till the State Government has expressed its opinion u/s 285(2) of the Act of 1959. Until and unless, the State Government passes its order u/s 285(2), till then this writ petition is premature. Therefore, this writ petition deserves to be dismissed on this ground alone.

Mr. K.N. Gupta, the learned Counsel for the Board, has contended that since the Collector was not the authorised officer, u/s 285(1) of the Act of 1959, the impugned order dated 28-10-2006 was clearly ultra-vires his jurisdiction. Thus, the order is void and ab-initio.

The issue before this Court is whether the respondent No. 1 was justified in approaching the Collector instead of the SDO or not? In order to deal with this issue, there are two principles of law that one needs to keep in mind; firstly one of the principles of natural justice is Nemo Judex In Causa Sua (no person can be a Judge of his own cause); secondly, the justice should not only be done, but should appear to be done.

It is true that the Sub-Divisional Officer is the authorised officer to hear an application u/s 285(1) of the Act of 1959. But it cannot be ignored that the SDO, Ms. Ansu Chaudhary, herself was present when the demolition of the part of the hotel was carried out, that the respondent No. 1 had filed a criminal complaint against her before the learned Judicial Magistrate, that the Divisional Commissioner, in his report, had castigated the action of the Board about sealing of the rooms of the hotel and demolishing a part of the hotel. Since, the respondent No. 1 had moved the criminal machinery against the SDO, since she was personally involved in the illegal action of the Board, a very reasonable likelihood existed that she would be biased against the respondent No. 1. In case, he is asked to present his application u/s 285(1) of the Act of 1959 before the SDO, the SDO would be a judge in her own cause. Moreover, the SDO would be prejudiced or biased against the respondent No. 1. Hence, likelihood of justice being done are extremely slim. In such a scenario, justice would certainly not appear to have been done.

In State of U.P. v. Mohammad Nooh AIR 1958 SC 86, the Hon''ble Apex Court observed that the roles of a judge and a witness cannot be played by one and the same person and that it is futile to expect, when those roles are combined, that the judge can hold scales of justice even. Therefore, in the present case, the SDO would combine the role of a judge and a witness. Hence, it cannot be expected that SDO would do complete and substantive justice to the respondent No. 1.

Administrators, such as the SDO and the Collector, being part of the Executive are a facet of the State. A sacred relationship exists between the State and the people. It is the constitutional duty of the State to protect and promote the interest and right of the people. It is the constitutional duty of the State to be fair, just and reasonable in its actions. In case, a person is convinced that for certain reasons there is unlikelihood of receiving justice at the hands of a particular public officer-in this case the SDO-he would be justified in approaching an authority higher to the appropriate authority. Merely because the SDO is authorised by the Government to hear an application u/s 285(1) of the Act of 1959, in certain exceptional cases where the authorised officer himself is involved, the person would be justified in approaching an officer higher in rank-in the present case, the Collector. After all, the laws are meant to facilitate, to ameliorate the life of people. Moreover, the laws are meant for doing justice to the people. A rigid insistence that the respondent No. 1 should approach the SDO, would defeat the very purpose of Section 285 of the Act of 1959. A perusal of Section 285 of the Act of 1959 clearly reveals that the authorised officer plays a supervisory role over the action of the Board. If, the authorised officer is himself/ herself involved in the illegal action of the board, justice would not be done to the aggrieved person. Thus, the insistence by the Board, that the respondent No. 1 should have approached the SDO and not the Collector, is unsustainable.

In SB Civil Writ Petition No. 3683/2006 decided on 12-12-2008, this Court had already expressed its opinion that the notice dated 22- 4-2006 and the action of Board in demolishing part of the hotel and in sealing the rooms of the hotel without waiting for three days to be over were arbitrary, unreasonable and unjust. Therefore, this Court has no hesitation in upholding the impugned order dated 28-10-2006.

In the result, this petition is devoid of merit and it is, hereby, dismissed without any order as to costs.