1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER S.B.Civil Writ Petition No.3060/1995 M/s. Munish Motors Vs. The State of Rajasthan & Ors. Date of Order :- 24.03.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Virendra Agarwal, for the petitioner. Mr.Zakawat Ali, Dy.G.A. for the State. The petitioner has challenged the notice dated 13.07.1995 issued under Section 91 of the Rajasthan Land Revenue Act, 1956 ('the Act' for short), and the order dated 15.07.1995 whereby the Tehsildar has directed the petitioner to remove the illegal construction made by him in Khasra No.516, on Deeg Road, near Bhagwan Talkies, Bharatpur. In a nutshell the facts of the case are that on 30.07.1983, part of the khasara No.512 in Chack No.2 Bharatpur was allotted by the Collector, Bharatpur to M/s Pratap Agriculture Implements Udyog and Repairing Works, respondent 2 No.5. However, as respondent No.5 could not carry on his business profitably on the said land, he requested the Collector that the said land may be transferred to the petitioner. The Collector accepted the said proposal. On 05.09.1988, a supplementary lease deed was drawn. The said lease deed was duly registered on 07.12.1994. According to the petitioner, he has been in possession of the said khasara. He further claims that he had further bought a land measuring 365 Sq. Yards from respondent No.5 which is situated behind the said khasara. Ever since 18.01.1988, he has been in possession of the said land. However, he has come to know that the Patwari made a report to the Tehsildar, Bharatpur alleging that the petitioner had encroached on part of the land measuring 4/64 Sq. mts. in adjoining khasara No.516. On 04.07.1995, the petitioner submitted a representation to the Collector, Bharatpur wherein he clearly stated that the measurements made by the Patwari are absolutely wrong. Further, that he has not trespassed over any portion of the land in khasara No.516. Therefore, he requested that the Tehsildar be directed not to act upon the Patwari's report. Upon the request made by the petitioner, on 04.07.1995 itself, the Collector 3 directed the Tehsildar to hear the petitioner and to verify all the facts and to send his report to him. However, according to the petitioner, the Tehsildar did not comply with the order dated 04.07.1995. Instead, on 13.07.1995, the Tehsildar issued a notice to the petitioner under Section 91 of Rajasthan Land Revenue Act, 1956. In response to the notice dated 13.07.1995, the petitioner appeared before the Tehsildar on 15.07.1995 and filed a detailed objection. But without examining the reply, on 15.07.1995, the Tehsildar directed that the petitioner be dispossessed from khasara No.512. However, according to the petitioner, the said order was not pronounced in his presence. The next date, 16.07.1995 was a Sunday. Therefore, the petitioner had no knowledge that an order had been passed against him on 15.07.1995. Yet on 16.07.1995, the Tehsildar, the Additional District Magistrate came along with police and dismantled and damaged the petitioner's property in khasara No.512. Hence, this petition before this Court. Mr. Virendra Agarwal, the learned counsel for the petitioner, has contended that the action of the Tehsildar is based on a report furnished by the Patwari dated 11.07.1995. However, the said 4 report was prepared by the Patwari without giving any notice to the petitioner. Since the said report has been prepared behind the petitioner's back, the same cannot be relied upon in order to evict him from Khasra No.516. Moreover, according to him, he has not carried out any illegal construction in Khasra No.516. In fact, his entire construction is limited only to Khasra No.512 which is owned and possessed by him. Moreover, after the issuance of the said notice, the officials and the respondents had converged on his land and had threatened that they will demolish the construction owned and possessed by him. Thus, the impugned notice and the impugned order are against the principles of natural justice. They are also in violation of Articles 14, 19, 21 and 300 A of the Constitution of India. On the other hand, Mr. Zakawat Ali, the learned Deputy Government Advocate, has contended that notice under Section 91 of the Act was duly issued; the Tehsildar has passed the impugned order only after hearing both the parties and after considering the evidence available on record. Hence, he has supported both the impugned notice and the order. 5 Heard the learned counsel for the parties and perused the impugned notice and the order. A bare perusal of the order dated 15.07.1995 clearly reveals that the petitioner had raised the plea that when the Patwari carried out the inspection of Khasra No.516 on 11.07.1995, the petitioner was not given any notice prior to carrying out of the said inspection. The Patwari merely presumed that since Khasra Nos.516 and 512 are adjacent to each other, and since the workers of the petitioner would be available on the place of his business, therefore, they must have been aware about the inspection being carried out by him. However, such a presumption made by the Patwari is not based on any evidence. The entire action being taken by the Tehsildar under Section 91 of the Act, and the order passed by the Tehsildar is based on the Patwari's report. One of the cardinal principles of law is that justice should not only be done, but it must seem to be done. Therefore, in order to satisfy the petitioner, justice should have been done. It was incumbent on the Tehsildar to direct the Patwari to give notice to the petitioner and to 6 again carry out an inspection of the land in dispute in front of the petitioner. In this view of the facts, the notice dated 13.07.1995 and the impugned order dated 15.07.1995 are, hereby, quashed and set aside. The Patwari is directed to give a notice to the petitioner prior to carrying out the survey of Khasra Nos.516 and 512. The Tehsildar should ensure that the said inspection is carried out in the presence of the petitioner or any person authorised by him. The Tehsildar is then free to take any action in accordance with law against the petitioner on the basis of the said report. Till the decision is taken by the Tehsildar, no coercive action shall be taken against the petitioner. With these observations, this writ petition is allowed. There shall be no order as to costs. (R.S.CHAUHAN)J. Manoj Solanki