JUDGMENT
A.K. Mathur, J.
1. Heard learned Counsel for the parties.
2. Petitioner by this writ petition has challenged the order Annex. 9 dated 17th July, 1992 passed by the Additional Divisional Commissioner, Udaipur whereby the revisional authority has set aside the order of the Collector, Banswara and affirmed the order of the Municipality granting permission to the respondent for raising construction over the land in question.
3. The petitioner is a resident of Mohalla Prithviganj of Banswara and he has filed the writ petition in his personal capacity as well as in the representative capacity on behalf of the residents of Mohalla and as a President of Teli Nav Yuvak Mandal, Prithviganj, Banswara which is representative body for the Teli Samaj of this Mohalla whose Holi Ceremony is held for the last so many years in this chowk. Teli Mohalla Prithvigaj is in Ward No. 19 of the Banswara Town” and there is a chowk known as Holi-ka-chowk which is adjacent to the road and is part of the public road, which is used by the petitioner for ceremonial purposes like burning Holi etc. The respondent Shankar Clandestinely obtained the allotment of this part of the chowk from the Municipality by describing it as a strip of land. As soon as the petitioner came to know about it, that Shankarlal has obtained permission for construction in 1984 they approached the Collector Banswara and the Collector stayed the operation of the sanction and respondent Shankarlal was restrained from raising the construction. Petitioner filed review petition against the order of allotment of this land as strip of land which is still pending. However, the petitioner filed an appeal before the Collector and the Collector and SDO passed the order dated 27th February, 1985 prohibiting the respassing over the aforesaid land. Meanwhile, Collector decided the appeal by his order dated 11.3.1986 with the direction that sanction regarding construction be stayed till the decision of the review petition. The respondent Shankarlal filed are appeal before the Divisional Commissioner against the order of the Collector and Divisional Commissioner by his order dated 8th February, 1988 ordered that the Collector himself or through a Commissioner should see the actual site and on the basis of this fact finding inquiry should pass a fresh order. The Collector appointed a commissioner who inspected the site and reported that on inquiries it revelealed that for last 20 years Holi is being burnt on this land. The Collector in turn remanded the case to the Municipality with the direction that site may be seen and looking to the situation at the site and on the public opinion gathered at the spot the requisite order may be passed. Shankar filed a revision before the Divisional Commissioner which came to be decided on 27th October, 1989 by the Additional Divisional Commissioner and by his order the case was remmanded back to the Collector with a direction that the case may be decided in accordance with the earlier directions contained in the order dated 8th February, 1988. The Collector decided the appeal on 24th December, 1981. The Collector observed that since the land is being used for public purpose, therefore, no construction should be permitted on it. Shankarlal preferred a revision petition before the Divisional Commissioner which came to be decided by the Additional Divisional Commissioner who set aside the order passed by Collector and allowed the respondent to raise the construction on the public land. Aggrieved against this order of the Additional Divisional Commissioner dated 17th July, 1992, petitioner has filed the present writ petition. A reply has been filed by the respondents and they have controverted the allegations raised by the petitioner.
4. Mr. Shishodia, learned Counsel for the petitioner has raised legal objection that the order passed by the Additional Divisional Commissioner is without jurisdiction as no revision lies against the order passed by the Collector, therefore, that order is final and under Section 300 of the Act no revision lies before the Divisional Commissioner. As against this Mr. Bhargava, Mr. Gupta and learned Dy. Govt. Advocate invited my attention to the decision given in Poonamchand v. Municipal Board, Jhalawar 1964 RLW 620 wherein a Division Bench of this Court has held that under Section 300 of the Act all the orders passed under the Act are revisable as such revision lies against the order passed by the Collector. In view of the decision of the Division Bench, the contention of Mr. Shishodia does not appear to be well founded.
5. Mr. Shishodia has also submitted that under Sub-section (6) of Section 170 no construction can be permitted on the street. This is essentially a question of fact for which the petitioner may file a civil suit and gel a declaration that whether this land in dispute is a street or not.
6. There is no merit in this writ petition and the same is dismissed.