The construction of a private hospital did not qualify as a public utility under the relevant rules.

1. - This intra court appeal has been filed by the appellants against the order of the learned Single Judge dated 07.12.1989, by which the learned Single Judge dismissed SB Civil Writ Petition No.3471/1988.

2. The facts giving rise to this appeal are that writ petition No.3471 /1988 was filed by the respondents of Sector A Shastri Nagar, Jodhpur challenging the validity of the order (Ex.2), dated 16.08.1988 passed by the Dy.Secretary to the Government of Rajasthan, Urban Improvement and Housing Department and the order (Ex.3) dated August 26, September 1, 1988 passed by the Urban Improvement Trust, Jodhpur (hereinafter referred to as 'the Trust') for allotment of a plot of land having an area of 2000 sq.yd. in Sector -A, Shastri Nagar, Jodhpur for the purpose of Trinity Hospital @ Rs. 435/- per sq.yd.

3. The writ petition has been contested by the respondents in the original writ petition and reply has been filed.

4. The learned Single Judge, after hearing both the parties, vide order dated 07.12.1989 , allowed the writ petition and further ordered as follows:-

"In the result, the writ petition is allowed, the direction contained in the letter ( Ex.2) with regard to allotment of land measuring 2000 sq.yds. for construction of Trinity Hospital, out of the open space in Sector - A of Shastri Nagar Scheme and the order of allotment ( Ex.3), passed by the Trust allotting the said piece of land for the purpose of Trinity Hospital are set aside. The Trust is directed to refund the sum of Rs. 8,70,000/- deposited by respondents Nos.4 and 5 in pursuance of the order (Ex.3) with interest @ 12% per annum within a period of one month. In case the Trust fails to refund the said amount within the period of one month, the Trust shall be liable to pay interest at the higher rate of 18% per annum from the date of the expiry of the said period of one month till the date the amount is actually refunded. No order as to costs."

5. Being aggrieved by the above order the appellants have preferred this intra court appeal.

6. We have heard learned counsel for the parties.

7. The learned counsel for the appellants contended that the order of the learned Single Judge suffers from illegality and irregularity because the learned Single Judge observed that the allotment of the land in question to the appellants, was in violation of rule 15 of the Rajasthan Urban Improvement Trust (Disposal of Urban Land) Rules 1974 (hereinafter referred to as 'the Rules') and, therefore, quashed the order of the State Government Ex.2 and Ex.3 issued by the Urban Improvement Trust, Jodhpur.

8. Counsel for the appellants contended that the case of the appellant comes under section 102 (A) of the Rajasthan Land Revenue Act (hereinafter referred to as 'the Act') as well as under section 43 and 60 of the Urban Improvement Trust Act and these provisions have overriding effect. Counsel for the appellant contended that the allotment as made by the State Government, cannot be said to be against the provisions of rule 15 of the Rules.

9. Per contra learned counsel for the respondents submitted that under section 102 (A) of the Act, the land can be allotted for the public utility, whereas the allotment of land to a private Charitable Trust ,does not come within the purview of the public purpose. Therefore, the order of the learned Single Judge, does not suffer from any illegality or infirmity and requires to be affirmed and does not require any interference at this stage.

10. We have considered the rival contentions of learned counsel for the parties.

11. In exercise of the powers conferred under section 102 of the Rajasthan Land Revenue Act , named as Rajasthan Land Revenue (Allotment of Unoccupied Govt. Agricultural Lands for the Construction of Schools, Colleges, Dispensaries, Dharamshalas & Other Buildings of Public Utility) Rules, 1963. Under these Rules, the public utilities have been defined elaborately and as per the above Rules, the construction of the private hospital, does