1 S.B. CIVIL WRIT PETITION NO.4159/1997. The President, Gram Sewa Sahkari Samiti Limited, Kathoti Vs. The Additional District Collector, Nagaur & Ors. Date of Order :: 19th February 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. R.K. Soni, for the petitioners. Mr. R.S. Choudhary and Mr. J.R. Chawel for Mr. G.R. Punia, for the respondents. ... BY THE COURT: By way of this writ petition challenge is given to the order dated 09.09.1997 (Annex.6) as passed by the Additional Collector, Nagaur in Panchayat Revision No. 32/1989 whereby the learned Additional Collector, while allowing the revision petition preferred by Ganpat Ram (respondent No.3 herein), proceeded to set aside a patta granted by Gram Panchayat, Kathoti in favour of Gram Sewa Sahakari Samiti Limited, Kathoti. Though this writ petition has presently been pressed by the President of the said Gram Sewa Sahakari Samiti but, initially, this writ petition was preferred by the Sarpanch of the said Gram Panchayat as petitioner No.1 and the present petitioner, the President of the said Gram Sewa Sahakari 2 Samiti, as petitioner No.2. This writ petition was entertained by this Court on 24.11.1997 while issuing notices and the operation of the impugned order was stayed but later, on an application moved by the present petitioner on 12.02.2001, the petitioner No.1 was ordered to be transposed as proforma respondent; and the present petitioner filed the amended cause title showing the original petitioner No.1 as the respondent No.4 but without any amendment of the averments as taken in the original writ petition. The substance of the averments taken in the petition could be taken into comprehension thus: While maintaining that the petitioners Nos. 1 and 2 are keen to safeguard public as well as their own interest, it is stated that the petitioner No.1 was authorised by the petitioner No.2 to sign and verify the pleadings and to swear affidavit for the purpose of this writ petition. It is averred that on 12.10.1982, a patta for abadi land situated near Old Bus Stand, Ward No.5, village Kathoti admeasuring 70 ft. x 100 ft. was issued by the petitioner No.1 in favour of the petitioner No.2 after following the procedure established by the Rules; that the proceedings were duly adopted and public notice inviting objections was also issued; that no any objection was received and hence, patta was issued in accordance with law; and that the respondent No.3 3 was very much a party to such proceedings for himself being a Ward Panch and did sign the resolution dated 17.07.1982 as adopted by the Panchayat for issuance of the patta in question. However, according to the petitioners, the land in question being a valuable one and being at prime location, the respondent No.3 illegally encroached over the same while the said patta proceedings were in progress; and he was issued notice by the Gram Panchayat to remove his encroachment. In any case, the petitioners assert, the respondent No.3 was very much aware of the patta proceedings and did not file any objection in that regard but after issuance of the patta, preferred an appeal that was dismissed by the Standing Committee of Panchayat Samiti, Jayal by its order dated 29.09.1989 (Annex.5). Thereafter, the petitioners point out, the respondent No.3 preferred a revision petition that came to be allowed by the impugned order dated 09.09.1997 (Annex.6) whereby the patta has been ordered to be cancelled by the Revisional Authority not on the ground that it was issued without following the prescribed procedure but on the consideration that the Panchayat had started two parallel proceedings regarding the same land: one for issuance of patta to the petitioner No.2 and another for removing of 4 encroachment wherefor a notice was issued to the respondent No.3 on 01.09.1982. While questioning the legality and correctness of the order dated 09.09.1997, it has been submitted in the writ petition that the proceedings for issuance of patta commenced way back on 14.05.1982 and no encroachment was found on the land during the site inspection carried out by three Panchas of the Gram Panchayat on 17.07.1982; and, according to the petitioners, only after 17.07.1982, the respondent No.3 illegally and with an ill-intention to grab the valuable piece of land, encroached thereupon and hence, a notice was issued to him on 01.09.1982. It is maintained that the patta in question was issued after following the procedure established by the Rules and the petitioner No.1 had the jurisdiction and authority to issue the same. It has also been averred in the writ petition that the petitioner No.1 is discharging the functions in public interest and the disputed piece of land is located at a public utility place; and when public interest is pitted against private interest, the former should be sustained. Even otherwise, according to the petitioners, the respondent No.3 had no right or title to the land in question and was not entitled to get the patta cancelled. It is 5 submitted that the learned Revisional Authority has proceeded to cancel the patta without any finding on violation of any of the requirements of law; and the impugned order remains fundamentally illegal. However, it is submitted in the alternative and without prejudice that even if the impugned order is to stand, the respondent No.3 is not entitled to retain the possession of the land in question for himself being nothing but a trespasser and the petitioner No.1 is entitled to dispossess him. The reliefs have been claimed in this writ petition in the manner that the impugned order dated 09.09.1997 may be quashed; the respondent No.3 may be directed to remove his stones etc. lying on the land in question failing which, the petitioners may be permitted to remove the same in accordance with law; and, alternatively, the petitioner No.1 may be permitted to dispossess the respondent No.3 from the land in question. The petition was filed supported by the affidavits sworn by the then Sarpanch of Gram Panchayat, Kathoti as petitioner No.1, allegedly having also been authorised on behalf of the petitioner No.2. As noticed above, this writ petition was entertained on 24.11.1997 and by way of interim order, the operation and effect of the impugned order dated 09.09.1997 was ordered to 6 remain stayed. During the pendency of this writ petition, an application came to be moved on 03.03.1999, essentially by the Sarpanch of Gram Panchayat, for modification of the stay order with the submissions that the respondent No.3 was attempting to change the situation at site and, therefore, he was required to be restrained from putting any building material or raising any construction. However, the said application came to be rejected by this Court on 09.03.1999. Thereafter, the application came to be moved on 12.02.2001, this time by the petitioner No.2 seeking transposition of the petitioner No. 1 as proforma respondent with the submissions that the Sarpanch of Gram Panchayat was defeated in the last panchayat elections and the respondent No.3 Ganpat Ram was allegedly a supporter of the present Sarpanch and, therefore, the petitioner No.2 had a reasonable apprehension that the petitioner No.1 may not prosecute the writ petition properly. The said application was allowed on 27.03.2001 and the petitioner proceeded to submit an amended cause title transposing the petitioner No.1 as respondent No.4; and the notices were issued to the said respondent No.4. However, as noticed, the present petitioner (the original petitioner No.2) has chosen to proceed with this writ petition with the averments as originally taken and without 7 seeking any amendment or alteration of the pleadings. The respondent No.3 has submitted a reply to the writ petition with the averments, inter alia, that the petitioners Nos. 1 and 2 have logically no connection so as to join as the writ petitioners. It is alleged that only the Sarpanch concerned who had the grudge against the answering respondent because of political groupings has preferred this writ petition. The answering respondent denies having made any encroachment and asserts that he is in old possession of the land in question. The answering respondent has averred that he did not receive the alleged earlier notices dated 01.09.1982 and 15.09.1982 but, of course, received the notice dated 01.10.1982 that was replied on 05.10.1982 while seeking to adduce evidence on the point. It is alleged that the Sarpanch, for having a grudge against the answering respondent, proceeded to make the allotment in favour of the petitioner No.2 without following the procedure as laid down by the Rules and it is maintained that his possession over the land being a fact admitted, the Panchayat had no right to issue any patta without getting the land vacated. It is submitted that the Revisional Authority has rightly set aside the patta in question and the impugned order calls for no interference. While questioning the impugned order dated 8 09.09.1997, learned counsel for the petitioner has strenuously contended that there being no illegality in the allotment proceedings as adopted by the Panchayat for issuance of the patta in favour of the petitioner, there was no reason for the authority concerned to set the same aside. Learned counsel also referred to the order dated 29.09.1989 as passed by the Appellate Authority and submitted that the findings on facts make it clear that the respondent No.3 was not in possession of the land in question earlier and encroached over the same only when the Panchayat had adopted the proceedings for allotment in favour of the petitioner. While relying on the decisions of this Court in the cases of Smt. Nanu Vs. The State of Rajasthan & Ors.: 1997 (2) WLC 371 and Village Panchayat Manoharpur & Ors. Vs. State of Rajasthan & Ors.: 1998 (3) WLC 377 learned counsel emphasized that being an encroacher, the respondent No.3 was neither entitled to maintain the revision petition nor could be encouraged in his land grabbing propositions; and that substantial justice cannot be allowed to escape on technicalities and the trespassers like the respondent No.3 deserve to be deprecated. Having examined the record and having given a thoughtful consideration to the entire matter, this Court is unable to find any apparent error in the order as passed by the 9 learned Additional Collector, Nagaur so as to consider any interference in the writ jurisdiction. Moreover, looking to the very frame of the petition and the manner in which the same was filed and has been maintained, this Court does not feel inclined to issue any writ, order, or direction at the instance of the petitioner. A comprehensive reading of the averments as taken in the writ petition that are supported by the affidavits of the then Sarpanch of the Panchayat concerned makes it evident that the present one was essentially a petition filed by the said Sarpanch and the real intent was to seek some order from this Court against the respondent No.3. When the Panchayat had otherwise granted a patta to the Samiti under its statutory powers and the patta came to be cancelled by the Revisional Authority upon being questioned by the respondent No.3, in the ordinary circumstances, the Panchayat, the allotting authority, could least be considered to be a person directly affected so as to file a writ petition in the matter. The petitioner No.1 and the petitioner No.2 even when chose to join this writ petition as joint petitioners, cannot be considered having common cause of action; and, in the ordinary course, any grievance against the order dated 09.09.1997 would have essentially and primarily been of the 10 allottee rather than the allotting authority. The real intent and purpose of the writ petition is seen in the submissions as made in the alternative that the possession of the respondent No.3 was required to be removed and the prayer as made in the alternative to the same effect. It is rather inexplicable that if at all the Panchayat wanted to take some proceedings for encroachment removal in accordance with law, as to what was the hitch or impediment; and as to what was the reason and cause to seek any writ or direction in that regard from this Court? The Revisional Authority has not prohibited the Panchayat from taking up any proceedings in accordance with law. The manner of filing and maintaining this writ petition does not inspire confidence. Moreover, it remains indisputable that the Panchayat concerned proceeded to issue a notice to the respondent No.3 on 01.09.1982 (Annex.R-3/1) calling upon him to explain by 15.09.1982 as to how did he make the encroachment and warning him of appropriate proceedings. By the next notice dated 15.09.1982 (Annex.R-3/2) the Panchayat reminded the respondent No. 3 of his having not given the reply to the notice dated 01.09.1982 and stated that by the resolution dated 14.05.1982, the land in question was resolved to be allotted to the Gram Seva Sahakari Samiti Limited and thereafter, on 11 15.07.1982, did he make the encroachment on the said land though the allotment proceedings had been completed in favour of the said Samiti. The date of making encroachment by the respondent No.3 as stated in the said notice dated 15.09.1982 (i.e., 15.07.1982) rather contradicts the assertion on the part of the Panchayat that the site in question was inspected on 17.07.1982. If at all any such inspection was carried out, the possession of the respondent No.3 would have been reported. The proceedings as suggested by the Panchayat do not appear free from doubt. Even while leaving the doubts about bona fides behind this writ petition and so also the incongruity in the stand of the Panchayat aside and examining the impugned order, this Court is unable to find any error or illegality calling for interference. This much is certain that in any event, the final decision to grant the patta to the present petitioner was taken only on 01.10.1982 and prior to that, the respondent No.3 had been served the notices by the Panchayat on 01.09.1982 and 15.09.1982 stating about his encroachment and seeking reply within 15 days. As on 01.10.1982, admittedly, the Panchayat had not received any reply from the respondent No.3 nor his encroachment had been removed. The fact that he had not 12 given a reply nor vacated the land was specifically stated in the next notice issued by the Panchayat on 01.10.1982 whereby the respondent No.3 was called upon to remove the encroachment within 15 days. In the indisputable fact situation, it is clear that as on 01.10.1982, the Panchayat concerned was very much aware of the fact that the land in question was not an unoccupied land and, even when of encroachment, the possession had been of the respondent No.3 who was being served with the notices. It beats the logic as to how the Panchayat chose to issue a patta in favour of the present petitioner on 01.10.1982 and that very day issued third notice to the respondent No.3 asking him to remove the encroachment. At the time of making the allotment in question, the Panchayat concerned was aware of the position that the possession of the land in question was not available to be delivered to the allottee, i.e., the present petitioner. Despite the land being not available to be delivered in possession, the Panchayat was, obviously, not justified in making an allotment on 01.10.1982 and the learned Revisional Authority cannot be said to have committed an illegality in setting aside the disputed allotment. The reference as made by the learned counsel for the 13 petitioner to the cases of Smt. Nanu and Village Panchayat Manoharpur (supra) appears to be entirely misplaced. The order as passed by the learned Additional Collector cannot at all be said to be putting any premium on dishonesty nor the allotment has been set aside on mere technicalities. When the respondent No.3 was admittedly in possession of the land in question and he was being served with the notices in that regard, the Panchayat concerned could not have made the allotment in favour of the petitioner without completion of the proceedings under such notices. If acting bona fide, nothing prevented the Panchayat concerned from completing the proceedings under such notices and removing the possession of the respondent No.3, if at all being that of an encroachment before making the allotment in accordance with law. Merely because the Panchayat could suggest itself having addressed to the basic requirements of the rules of procedure, it cannot be accepted that it had a right to make allotment of an occupied piece of land to a person and thereafter seek removal of other person therefrom. In the given fact situation, the learned Additional Collector has not committed any illegality in disapproving the allotment as made in favour of the present petitioner and there appears no reason to issue any writ, order, or direction in this 14 matter at the instance of the petitioner. The writ petition fails and is, therefore, dismissed. However, in the circumstances of the case, the parties are left to bear their own costs. (DINESH MAHESHWARI), J. Mohan/