1 SBCWP No.3105/07 & 9 others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R 1. S.B.CIVIL WRIT PETITION NO.3105/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 2. S.B.CIVIL WRIT PETITION NO.5107/2006 DR(J) Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 3. S.B.CIVIL WRIT PETITION NO.3122/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 4. S.B.CIVIL WRIT PETITION NO.3123/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 5. S.B.CIVIL WRIT PETITION NO.3124/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 6. S.B.CIVIL WRIT PETITION NO.3125/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 7. S.B.CIVIL WRIT PETITION NO.3129/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 8. S.B.CIVIL WRIT PETITION NO.3130/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 9. S.B.CIVIL WRIT PETITION NO.3131/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. 10. S.B.CIVIL WRIT PETITION NO.3132/2007 Vimal Grah Nirman Sahkari Vs. Municipal Board, Balotra Samiti Ltd., Balotra & Ors. Date of Order :: 12.05.2009 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR 2 SBCWP No.3105/07 & 9 others Mr.L.R.Choudhary, for the petitioners. Mr.D.S.Rajvi, for the respondent-Municipal Board. Mr.Jaswant Mal Bhandari, for the respondent No.2 BY THE COURT: Since all the afore-titled writ petitions involve common question of law and facts, and arising out of common order Annexure-P/10 dated 26.10.2005 passed by the respondent No.3, Additional Divisional Commissioner, Jodhpur (for short “the revisional court” hereinafter), therefore, with the consent of learned counsel for the parties, they are heard and decided together. The facts stated in Writ Petition No.3105/2007 are taken as leading case.. The facts and circumstances giving rise to the instant writ petitions are that the petitioner-Vimal Grah Nirman Sahkari Samiti Ltd. is a Society registered under the Rajasthan Co-operative Societies Act. The petitioner-Society purchased the agricultural land bearing Khasra No.637 measuring 19 bighas 18 bishwas situated at Balotra by the registered sale- deeds dated 6.10.1982 and 15.10.1982. According to the petitioner, out of 19 bighas and 18 biswas of the land bearing Khasra No.637, 3 bighas 12 biswas of land was acquired by the State Government for construction of over-bridge on Luni River Balotra vide land acquisition Award dated 15.7.1995. 3 SBCWP No.3105/07 & 9 others However the amount for the land acquisition was not paid as per the award and therefore, the acquisition proceedings were dropped and the land again came to be entered in the name of the petitioner-Society. According to the petitioner, the agricultural land bearing Khasra No.637 was originally owned and vested with the petitioner-Society. However, the road was to be constructed through the agricultural land of the petitioner-Society and therefore, the land was surrendered to the respondent-Municipal Board for construction of the road. The respondent-Municipal Board constructed the road but for the remaining land, the licence were issued to the various persons and subsequently, the land has been sold by the respondent-Municipal Board to the various persons including the private respondents, who are the party respondents to these writ petitions. Aggrieved by the action of the respondent- Municipal Board, the petitioners filed revision petitions before the respondent No.3 under Section 300 of the Rajasthan Municipalities Act, 1959 (for short “the Act of 1959” hereinafter). All the revision petitions came to be dismissed by order Annexure-P/10 dated 26.10.2005. Hence, these writ petitions. A reply to the writ petition has been filed by the respondent-Municipal Board stating therein that by letter dated 4 SBCWP No.3105/07 & 9 others 25.03.1985, some part of the land was surrendered to the Municipal Board and after the land having been surrendered to the Municipal Board, it vested with the respondent-Municipal Board and Municipal Board issued an advertisement for auction of the plots carving out in the land surrendered by the petitioner. While the plots were being carved out in the land surrendered to the respondent-Municipal Board and the Municipal Board was in process of auctioning the plots, some objections were came to be raised. However, as many as 12 plots were auctioned on 21.12.1985. In the meantime, one Subhan Khan filed a suit and therefore, further proceedings were not taken for auctioning the remaining plots. Along with the reply, the document Annexure-R/1/2 dated 25.3.1985 has been placed on record by the Municipal Board whereby the petitioner-Society surrendered the land of Khasra No.637 situated at Balotra stating therein that towards Western side of the land of Khasra No.637, leaving the land measuring 120 ft. from the railway line and 80 ft. from their land, stone slabs have been installed and the land has been surrendered to the Municipal Board for the purpose of construction of the road. However, on the land surrendered by the petitioner-Society to the Municipal Board, some persons have trespassed thereupon for which the suit has been filed in the court of Sub-Divisional 5 SBCWP No.3105/07 & 9 others Officer. It has further been stated that the petitioner-Society is surrendering the complete land to the Municipal Board voluntarily and requested the Municipality to construct the road and remove the trespassers and in the event of construction of the road and removal of the trespassers, the suit filed by them before the Sub-Divisional Officer will be withdrawn by the petitioner-Society and the surrendered land will be of the ownership of the respondent-Municipal Board and the petitioner-Society would have no right over the said land. In the later part of the document, it has been stated that the surrender-deed has been executed voluntarily without any pressure. According to learned counsel for the respondent- Municipal Board, since the land has been surrendered to the Municipal Board, therefore, it was the Municipal Board to carve out the plots and sell the same. It appears that some proceedings under Section 90 (B) of the Land Revenue Act have also been initiated and document Annexure-P/13 has been placed on record alleged to have been signed by office bearer of the petitioner-Society. A revenue suit as noticed above came to be filed before the Sub-Divisional Officer, Balotra vide Annexure-R/1/5 and the same came to be dismissed by order dated 4.10.1993 being the revenue Suit No.227/1991; Vimal Grah Nirman Sahakari Samiti Vs. 6 SBCWP No.3105/07 & 9 others Mahendra etc. It is contended by learned counsel for the petitioner that part of the land of Khasra No.637 was surrendered to the Municipal Board for the construction of the road and removal of the encroachment as has been mentioned in the surrender letter dated 25.03.1985 Annexure-R/1/2 but the respondent-Municipal Board has taken over the entire land of Khasra No.637 and further sold to various persons by issuing licences and executing the lease-deeds. From the record, it appears that the person in whose favour the lease deed has been executed sought the permission from the Municipal Board for construction of house and permission has already been granted by the Municipality. From the pleadings and the documents annexed with the writ petition, it appears that the petitioner filed a revenue suit also. The execution of the surrender letter dated 25.3.1985 has not been disputed by the petitioner-Society. The question as to whether the entire land bearing Khasra No.637 was surrendered, though the averments is indicative to this, or it was surrendered for the purpose of construction of the road or removal of trespassers, these are the questions could well have been adjudicated in the civil suit. Since writ petition involved a serious disputed question of facts, in my view, such 7 SBCWP No.3105/07 & 9 others disputed question of facts cannot be gone into in writ jurisdiction. In State of Bihar Vs. Jain Plastics & Chemicals Ltd., (2002) 1 SCC 216 (=AIR 2002 SC 206), the Hon'ble Supreme Court held that seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs. The Hon'ble Apex Court further held that even if it is possible to decide particular matters on the basis of contentions raised in affidavits, that would not be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution of India in case of alleged breach of contract. The question as to whether action of a party in breach was justified, ultimately depends on facts and evidence and need not be dealt with in writ jurisdiction. It has been further held that seriously disputed questions or rival claims arising out of breach of contract are required to be investigated and determined on the basis of evidence led in a civil suit. In G.M. Kisan Sahkari Chini Mills Ltd. Vs. Satrughan Nishad, (2003) 8 SCC 639, the Hon'ble Supreme Court held that where in a matter disputes questions of facts are involved, 8 SBCWP No.3105/07 & 9 others the exercise of writ jurisdiction by the High Court is improper. In H.S.E.B. Vs. Ram Nath (2004) 5 SCC 793, the Hon'ble Apex Court held that where there are disputed questions of facts, the writ petition is not a proper remedy. The same view has been reiterated in State of J & K Vs. Ghulam Mohd. Dar, AIR 2004 SC 510. In National Textile Corporation Ltd. Vs. Haribox Swalram, (2004) 9 SCC 786 (= AIR 2004 SC 1998, the Hon'ble Supreme Court held that since writ petition raised highly disputed questions of facts, which could be proved only by leading evidence in properly constituted suit, and further the writ petition was highly belated, the petition is liable to be rejected on these grounds alone. In Himmat Singh Vs. State of Haryana, (2006) 9 SCC 256, the Hon'ble Supreme Court held that disputed questions of fact should not ordinarily be entertained in the writ petition. In that natter, the question of fact was raised only in the grounds clause and not in the body of the writ petition and the same were not verified in accordance with writ rules. The contents thereof were denied and disputed by the respondent therein. The Hon'ble Supreme Court held whether statement of appellant or respondent was correct or not, could not ordinarily be decided in a writ proceeding. 9 SBCWP No.3105/07 & 9 others In New Okhla Industrial Development Authority Vs. Kendriya Karamchari Sahkari Grih Nirman Samiti, (2006) 9 SCC 524, the Hon'ble Supreme Court held that the writ petition arising out of complex questions of fact should not be entertained and the discretion should be exercised in accordance with judicial principles. Setting aside the decision of the High Court, the Hon'ble Apex Court held that the High Court erred in entertaining the writ petition and going into complicated questions of facts and also failed to examine the issue in its proper perspective. In this view of the matter, the writ petitions deserve dismissal only on the ground of involving a serious disputed question of fact. Consequently, all the writ petitions are dismissed. However, it will be open for the petitioners to pursue the remedy before the appropriate Civil or Revenue court, if so advised. Stay petitions also stand dismissed. (H.R. PANWAR), J. NK