[2023:RJ-JD:39565]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Revision Petition No. 48/2023

1.

Municipal Board, Merta Through Executive, Officer

Ramratan Choudhary S/o Shri Shibhu Ram, Age 35 Yrs.,

Merta, District Nagaur.

2.

Municipal Board, Merta Through Chairman, Gautam Tak

S/o Shri Heera Lal Tak, Age About 56 Yrs., Merta, District

Nagaur.

----Petitioners

Versus

1.

General Public Merta, Through Members Of District Bar

Association, Merta City- 1- Jagdish Saraswat S/o Shri

Ramdev Saraswat, Resident Of Chippon Ki Pole, Merta

City, District Nagaur. 2- Surendra Dadhich S/o Shri

Bherulal Dadhich, Residnet Of Jalwana, Tehsil Merta,

District Nagaur.

2.

State Of Rajasthan, Through District Collector, Nagaur.

3.

State Of Rajasthan, Through Sub Divisional Officer, Merta.

4.

Tehsildar, Merta.

----Respondents

For Petitioner(s)

:

Mr. Vishal Sharma

For Respondent(s)

:

Dr. Harish Purohit

HON'BLE MS. JUSTICE REKHA BORANA

Order

23/11/2023

1.

Matter comes up on an application for clarification of the

interim order dated 21.04.2023 whereby further proceedings in

the pending civil suit were directed to be stayed. It has been

prayed in the application that it may be clarified that the stay of

further proceedings in the suit would not be deemed to be a stay

of the proceedings in the application for temporary injunction.

However, at the request of learned counsel for the parties,

the petition itself has been heard finally.

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2.

The present revision petition has been preferred against

order dated 23.02.2023 whereby the application under Order VII

Rule 11 of the Code of Civil Procedure as preferred by defendant

Nos.4 & 5 the Municipal Board, has been rejected.

3.

The facts are that a suit was preferred by the members of

the Bar Association of Merta City as representatives of the General

Public of Merta City for declaration, permanent and mandatory

injunction with the relief for allotment of the land in dispute for

the purposes of residential houses of judicial officers and further

for declaring the said land to be reserved for judicial officers

colony. An injunction against the Municipal Board that it be

restrained from taking over possession or allotting the said land,

has also been prayed for.

4.

In the said suit, application under Order VII Rule 11, CPC

was filed by the Municipal Board on the following grounds:

i.

The plaint be rejected as it does not disclose any cause of

action as the relief for allotment of the land as prayed for in

the suit cannot be granted by the Court. Allotment of land

for the purpose as prayed for can be made only in terms of

the Rajasthan Land Revenue (Allotment of Unoccupied Govt.

Agricultural Lands for the Construction of Schools, Colleges,

Dispensaries, Dharamshalas & Other Buildings of Public

Utility) Rules, 1963 (for short, hereinafter referred to as ‘the

Rules of 1963). Hence, when no relief as prayed for can be

granted, the suit itself cannot be maintained.

ii. No decree for declaration as prayed for can also be granted

as it is not the case of the plaintiffs that the land in question

has been used for the said purpose since time immemorial.

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iii. The land had been transferred to the Board way back in the

year 2006 and it being the rightful owner of the land in

question, cannot be termed to be a trespasser/encroacher

and hence, no relief of injunction can be granted against it.

iv. The Municipal Board being the owner of the land in question

was essentially to be served with a notice in terms of Section

304 of the Rajasthan Municipalities Act, 2009 (for short,

hereinafter referred to as ‘the Act of 2009’). In absence of

the mandatory notice, the suit cannot be maintained.

v. A relief for allotment of the land in question has been sought

and hence the suit ought to have been valued on the market

value of the said land and prop