1 CWP No.1683/1997 Contempt Petition No. 495/2002 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.1683/1997 Sahib Singh V. Additional Collector & others S.B. CIVIL CONTEMPT PETITION NO.495/2002 Sahib Singh V. Rajendra Prasad Gupta & others Date of order ::: August 21, 2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.N.K.Mishra, for the petitioner Mr.T.P.Sharma, for the respondent Mr.Vikram Singh, for the respondent No.3 Mr.S.L. Sharma, for the contemners in the Contempt Petition. BY THE COURT This common order, disposes of S.B. Civil Writ Petition No.1683/1997 and S.B. Civil Contempt Petition No.495/2002. S.B.Civil Writ Petition No.1683/2007 By this amended writ petition, the petitioner has challenged the ex parte order dated 26.9.1995 passed in the revision petition filed by the non-petitioner against which the application for setting aside the ex parte order was rejected vide order dated 14.10.1996 (Anx.8) passed by the Additional Distt. Collector, Dholpur. Against the order dated 19.2.1992 passed by the Panchayat Samiti, Bhusawar whereby the land allotted to the petitioner was restored and the order of the Gram Panchayat was set 2 CWP No.1683/1997 Contempt Petition No. 495/2002 aside, the non petitioner filed a revision petition which was accepted ex parte vide order dated 26.9.1995. The petitioner has also filed review petition for setting aside the ex parte order dated 26.9.1995, which was rejected on 14.10.1996 and subsequently, the alleged piece of land where the shop was constructed by the respondent has been sold on 1.12.1992, therefore, the sale deed was also challenged by way of amendment. It is also pertinent to mention here that during the continuance of the interim order the said sale was effected therefore, the petitioner has also filed contempt petition which is also being disposed of by this common order. The facts, in brief, of the case, as per the petitioner, are that the petitioner, a disabled soldier, suffered serious injuries and his case was of amputation through right elbow and his disability was found 80%. He submitted an application for allotment of a residential plot to the Collector, Bharatpur through the Distt. Soldier Board, Bharatpur which was forwarded to the Gram Panchayat, Timasiya since the petitioner belonged to the said village. On the said application, Gram Panchayat, Timasiya issued a notice dated 26.3.1972 inviting 3 CWP No.1683/1997 Contempt Petition No. 495/2002 objections, in response to the said notice, objections were filed by the Government Higher Secondary School, Baseri wherein it was submitted that the land which was proposed to be allotted to the petitioner, had earlier been allotted to the School by the Gram Panchayat. The Gram Panchayat by its order dated 1st November, 1972 decided that no proper allotment had been made in favour of Government Higher Secondary School, Baseri and it decided to allot the residential plot to the petitioner. In pursuance of the aforesaid decision of the Gram Panchayat, a patta was issued to the petitioner. The resolution was passed in the meeting and the patta was also issued to the petitioner in pursuance thereof. An appeal was preferred by the School against the aforesaid decision of the Gram Panchayat, Timasiya dated 1.11.1972 before the Panchayat Samiti, Baseri. The said appeal was allowed by the Panchayat Samiti, Baseri by its order dated 27.1.1973. The Panchayat Samiti held that there was a valid allotment in favour of the School vide letter dated 5.9.1961 issued by the then Sarpanch of Gram Panchayat, Timasiya and that the said land, therefore, could not be allotted to the petitioner. The revision petition filed by the petitioner against the 4 CWP No.1683/1997 Contempt Petition No. 495/2002 aforesaid decision of the Panchayat Samiti was dismissed by the Additional Collector, Bharatpur by his order dated 6.9.1974. The petitioner therefore filed Writ Petition No.132/1975 before this Court against the order dated 27.1.1973 and 6.9.1974. The writ petition was allowed on 25.11.1983 and the said order was subsequently modified vide order dated 18.12.1984, which is reproduced hereunder: “It appears that there are certain clerical errors in the operative portion of the judgment dated 25.11.83 passed by this Court and instead of 27.1.73 date has wrongly been mentioned as 27.1.83 and the name of Gram Panchayat Baseri has wrongly been mentioned instead of Panchayat Samiti, Baseri. The above said errors are rectified and the operative para of the judgment dated 25.11.83 is corrected as read as under: “In the result, the writ petition is allowed. The orders (Ex.3) dated 27.1.1973 passed by the Panchayat Samiti, Baseri as well as the order (Ex.6) passed by the Additional Collector, Bharatpur dated 6th September, 1974 are quashed. In the circumstances of the case the parties are left to bear their own cost in this writ petition.” 5 CWP No.1683/1997 Contempt Petition No. 495/2002 Subsequently, the Sarpanch played foul and allotted the said land to the respondent No.4 arbitrarily and malafidely vide Patta dated 17.5.84. When the petitioner came to know about the aforesaid Patta he filed an appeal before the Panchayat Samiti which was heard and decided on 27.8.90 and the matter was remanded back to the Gram Panchayat and the Gram Panchayat did not revise the order and maintained the same. The petitioner thereafter again filed an appeal before the Panchayat Samiti challenging the order dated 6.2.1991 and the Panchayat Samiti heard the arguments and allowed the appeal and set aside the impugned orders. The respondent No.4 filed revision petition before the Additional Collector, Dholpur against the order dated 19.12.1992 and the said revision was allowed ex parte and the order dated 19.12.92 was set aside. When the petitioner came to know about the order dated 26.9.2005, the petitioner filed a review petition which was dismissed on 14.10.1996. The petitioner came to know that the respondent No.4 Shri Nanne Khan had sold the said plot in question to the respondent No. 5 for a sum of Rs.25000.00 through registered sale deed dated 11.6.2002 and the said sale is in 6 CWP No.1683/1997 Contempt Petition No. 495/2002 disregard and disobedience of the interim order dated 21.8.1997 of the High Court. When the petitioner came to know about the aforementioned sale deed dated 11.6.2002 the petitioner sent a legal notice through his counsel to all the respondents and it was expected from them to get the sale deed cancelled but nothing has been done. At this stage,the amendment application was filed. The respondent No.3 has not filed any reply to the writ petition although he has filed reply to the amendment application. The amendment application was allowed by this Court on 7.2.2008. Submission of counsel for the petitioner is that the ex parte order is wholly erroneous as the service has been effected by pasting the notice at his residence of village where he was not residing and he was residing at Jaipur in support of which he has submitted documents – family card, identity card, letter of quarter allotment by the A.G. - along with the review petition but the same have not been considered. Submission of counsel for the respondents is that the shop constructed by him is not over the land of the petitioner but the Panchayat has committed an error in setting aside his 7 CWP No.1683/1997 Contempt Petition No. 495/2002 allotment therefore, he has filed the revision petition before the Additional Collector which was accepted ex parte vide order dated 26.9.1995 and there is no error in passing the ex parte order as the petitioner despite service has not appeared. I have considered the submissions of both the parties and is of the view that the Additional Collector has committed an error in taking the service proved without verifying the fact whether the petitioner was residing at his village or not and further he has also not discussed the documents placed by the petitioner of his residence at Jaipur. In the aforesaid facts and circumstances, the writ petition is partly allowed, the orders dated 26.9.1995 (Anx.7) and 14.10.96(Anx.8) are set aside and the matter is remanded back to the Additional Collector to decide the matter afresh within a period of three months. S.B. Civil Contempt Petition No.495/2002 Since the sale has been effected during the continuance of the interim order, therefore, the same is void. However, the issue with regard to the construction of the shop on the same land will be decided afresh by the Additional Collector in the light of the judgment in the 8 CWP No.1683/1997 Contempt Petition No. 495/2002 review petition, as directed above. In view of the above, the notices of contempt issued to the contemners are discharged. The contempt petition is disposed of. (PREM SHANKER ASOPA) J. गोpa ल