1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CIVIL WRIT PETITION No.5717/2003 [ABDUL LATIF & ANR. VS. STATE & ORS.] Date of Judgment : 04.04.2008. HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.R.K.Soni for the petitioner. Mr.M.S.Singhvi for the respondent No.6. ***** This writ petition is directed against the order dated 08.09.2003 (Annex.12) whereby the revision petition field by the petitioner was dismissed by the District Collector, Rajsamand. A further prayer has also been made to set aside the pattas (Annex. 2 to 4) issued in favour of respondent No.6 after declaring pattas to be null and void. It is lastly prayed that the respondent No.5 be directed to perform their duties as per the provisions of law and keep the land free from encroachment. Learned counsel for the petitioner submits that pattas (Annex.2 to 4) were issued in favour of respondent No.6 and if the proceeding undertaken by the Gram Panchayat for the purpose of issuance of patta is looked into then it would clearly reveal that at the instance of respondent No.6, entire process was manipulated and thereby pattas were issued in violation of the provisions of law. In that regard it is contended that not only pattas were 2 issued prior to finalisation of the process of issuance of such pattas but it further shows that as against the decision of allotment of one plot and three plots were alloted to non-petitioner No.6. Looking to the fraudulent act of the respondents, the petitioner approached Collector by invoking the provisions of Section 97 of the Panchayati Raj Act of 1994 (hereinafter referred as “the Act of 1994”) but then petitioner was non-suited by the Collector mainly on the ground of delay in maintaining revision petition. In the impugned judgment, the Collector has recorded its finding to the effect that revision petition has been preferred after a period of 21 days and thereby it being beyond the period of limitation, cannot be entertained. The contention of the learned counsel for the petitioner is that no limitation is provided under Section 97 for maintaining revision petition and thereby the Collector has misguided by himself in deciding the issue by taking it to be case where revision petition is to be filed within period of limitation. On this ground itself learned counsel for the petitioner submits that the order of learned Collector deserves to be set aside. If a provision does not provide a limitation for presenting the revision petition then the same cannot be dismissed on the ground of delay more so when the petitioner had approached the revisional authority stating that the pattas were issued in favour of respondent No.6 by a fraudulent act on the part of the respondents. In this regard attention of the Court was drawn towards the proceeding undertaken by the Gram Panchayat and Annex.3 to 4 i.e. the pattas issued in favour of the respondent No.6. Referring to the 3 representation submitted by the petitioners at Annex.5 and 6 it is contended that when pursuant to the representation, nothing was done by the respondents then the petitioner was left with no option but to prefer revision petition. The revision petition was not preferred by the petitioner with any delay inasmuch as immediately when petitioner could know about the allotment of pattas in favour of respondent No.6 in the Year 1981, he immediately filed a representation and approached the revisional authority thereafter thus without considering this aspect of the matter, the revision petition was dismissed erroneously on the ground of delay. The prayer of the learned counsel for the petitioner is thus to set aside not only the impugned order but also the pattas issued by the respondents Gram Panchayat. Learned counsel appearing for the respondents however, contends that the order passed by the District Collector is in accordance to the provisions of law inasmuch as petitioner had not approached the revisional authority within reasonable time inasmuch as pattas were issued by the Gram Pancahayat pursuant to the auction made and therein the petitioner had also participated, therefore, the petitioner was well aware of the auction of the plot by the Gram Panchayat and for that purpose reference of the auction proceedings as placed on record of the writ petition was referred. It is otherwise contended that apart from the fact of participation of the petitioner in the auction, a further fact remain that a civil suit was 4 also filed at the instance of other persons when respondent No.6 had started further construction and that suit was filed in the Year 1998 thus the petitioner could know about the existence of the right of the non-petitioner No.6 in the year 1998 because if with raising of the construction by the non- petitioner No.6, the petitioner had not made an effort to find out the position regarding right and title of the non-petitioner No.6 in the land in dispute then it clearly shows that the petitioner had preferred revision petition with unexplained delay. The further contention of the learned counsel for the petitioner is that revision petition under Section 97 was not even maintainable not only for the reason that an appeal lies in regard to dispute of sale and transfer of property by the Gram Panchayat under Rule 270 of the provisions of Rajasthan Panchayat (General) Rules, 1961 (hereinafter referred as “the Rules of 1961) as then was existed and otherwise now under Rule 166 of the Rajasthan Panchayat Rules, 1996 (hereinafter referred as “the Rules of 1996) and therein limitation is provided for maintaining the appeal. Petitioner had not filed appeal to challenge the issuance of patta in favour of non-petitioner No.6 and thereby the revision petition under Section 97 was not even maintainable. It is further urged that even otherwise a revision petition can be filed under Section 97 by a person interested, however, the petitioner is not a person interested because he is not either a neighbour of the non-petitioner No.6 or is otherwise effected by issuance 5 of pattas. Referring to revision petition filed by the petitioner which otherwise exist on record of the petition as Annex.7 it is contended by the learned counsel for the respondent that therein also petitioner has nowhere stated that how he is a person interested in the matter so as to invoke the Sections of Provisions of Section 91 of the Act of 1994, the entire revision petition nowhere make a mention as to in what manner petitioner is interested rather their exist absolutely no averments regarding petitioners interest against the issuance of patta therefore also the revision petition was not maintainable before the learned Collector. It is lastly contended that even the Collector was not having authority to entertain the revision petition so filed in the Year 2002 inasmuch as vide notification dated 01.02.2002 the power given to the Collector was withdrawn and it was given afresh only vide notification dated 08.09.2003 marked as Annex.R/3. The revision petition was filed by the petitioner on 24.06.2006 though at the relevant time the Collector was not having any authority to take any appeal for its consideration. Referring to Annex.2 to 4 it is submitted that the petitioner has tried to mislead the Court by producing one and the same pattas obtained from different sources. Referring to the Annex. 2 it is contended that same is not a patta and so far as Annex.3 and 4 are concerned, it is nothing but the copies of patta of one plot obtained from the different sources. The petitioner was rightly alloted the land pursuant to auction in which many of 6 the person had participated, therefore, questioning the issuance of Patta after lapse of 21 years was noway justified or more so when petitioner remain in peaceful possession of land during this entire period and otherwise if it is assumed that no period of limitation is provided for maintaining a revision petition then also taking note of the provisions of Limitation Act at the best revision can be maintained within a period of three years and in any case not beyond a period of 12 years. According to learned counsel for the respondent No.6, filing of the revision petition by the petitioner is nothing but is an outcome of personal enmity between the parties and thus to take revenge, revision petition was preferred. Again referring to the pattas so issued, it was urged that the date mentioned therein is in reference to the date when proceedings were initiated for auction of land in dispute and otherwise of such questions cannot be raised after a lapse of 21 years and otherwise a question of fact. Learned counsel for the petitioner in rejoinder submits that though the appeal was provided under Rules of 1961 and also under the Rules of 1996 but for the reason that remedy of revision also lies, the petitioner had rightly invoked the jurisdiction of the Collector. The petitioner had not otherwise participated in the auction. So far as the authority of the Collector to maintain the revision petition in the Month of June 2002 is concerned, it is urged that for a period of one year or so that the authority of Collector was withdrawn but then the authority of the Collector having 7 been revived subsequently, it necessarily means that such authority is to be treated for intervening period also and thereby the petitioner cannot be non-suited on that count. The contention of the learned counsel for the petitioner is further that for the respondent No. 6 has taken some other legal grounds while arguing the matter and if this Court comes to the conclusion that in view of the existence of specific remedy under the Rules, only appeal can be maintained, the petitioner may be given liberty to file an appeal otherwise on the face of record pattas issued in favour of respondent No.6 seems to be an outcome of fraudulent act on the part of all concerned, hence it is urged that the writ petition should be allowed and not only the order passed by the Collector but also the pattas issued thereupon be set aside. I have considered the rival submission made by the authorities and perused the record carefully. First coming to the issue pertaining to fraudulent act of the respondents in regard to issuance of pattas in favour of respondent No.6, the counsel for the petitioner making reference of the proceeding and also of pattas submitted that the allotment of land by the pattas be declared to be illegal as there exist lot of discrepancy therein. The argument raised in that regard needs determination of question of fact which otherwise cannot be determined by this Court exercising jurisdiction under Articles 226 and 8 227 of the Constitution. It is a matter where even there exist dispute on the fact as to whether petitioner participated in the auction or not inasmuch as referring to the list of participants participated in the auction learned counsel for the respondents contended that even petitioner had participated in the auction as Latif Mohd. whereas the counsel for the petitioner seriously disputed the said contention and documents filed on record along with reply by respondent No. 6. Not only the aforesaid dispute, a further dispute exist as to whether the non-petitioner was alloted three plots vide pattas at Annex. 2 to 4 or only one patta inasmuch as according to the petitioner the respondents issued three pattas and in the grounds (ii) and (iii) raised also shows that Annex.2 to 4 pattas have been issued meaning thereby three pattas were said to have issued according to the petitioner whereas according to non-petitioner No. 6 only one patta was issued in favour of the petitioner hence a serious allegation of misleading this Court and manuplation of documents is being made apart from a dispute regarding Annex.2 to be a patta. Thus, aforesaid disputed question exist in regard to the number of pattas hence in view of the above, when it is a disputed question of fact as to how many pattas were issued in favour of respondent No.6 or how many plots are alloted, the other issues pertaining to those pattas can be ascertained which again necessary needs a determination of question of fact thus unless it become clear that which of the patta is to be taken into consideration for the purpose of determination of the fact as to whether there is fraudulent act on the part of the 9 respondents, no finding can be recorded and which otherwise remains out of competence of this Court because not only this Court cannot enter into the question of facts but exercising the jurisdiction under Articles 226 and 227 of the Constitution the jurisdiction of this Court is limited inasmuch as this writ petition basically arising out of the order passed by the Collector. In the case of Sadhna Lodh Vs. National Insurance Co. Ltd. 2003 (3) SCC 524 the Hon'ble Apex Court held in para 7 as under which is quoted for ready reference. “The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the fact of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.” In view of the judgment referred to above it becomes clear that even this Court cannot look into the error of facts and law unless it is shown that the order has not been passed by the lower authority within the settled parameters hence all the issues pertaining to question of facts cannot be decided by this Court more so when the petitioner was otherwise having a remedy of appeal not only under the Rules of 1961, but also under the 10 Rules of 1996 and if the jurisdiction of the appellate authority would have been invoked, even the question of facts could have been looked into. Now coming to the issue as to whether the revision petition was maintainable despite of existence of specific remedy of appeal not only under the Rules of 1961 but also under the Rules of 1996. Rule 270 of the Rules of 1961 provides for remedy of appeal and a further remedy of revision is provided under Rule 272 of the Rules of 1961, however, the petitioner has not invoked those remedies specifically provided under the Statute and sameway the remedy of appeal lies even under the Rules of 1996 where pattas issued pursuant to auction can be challenged by maintaining an appeal hence it becomes clear that despite of existence of a specific remedy, the petitioner cannot invoking the revisional jurisdiction under Section 97 of the Act of 1994 more so when limitation is provided for maintaining an appeal thus if any party is permitted to maintain a revision despite of existence of specific remedy of appeal within a period of limitation then this will amount to not only circumventing the provisions of appeal but further giving leverage of a party to avoid the issue of limitation. The arguments of the learned counsel for the petitioner cannot be accepted that in the light of the provisions of Section 97, the petitioner was having liberty to maintain a revision petition at any time. It is otherwise seen that on the date of presentation of revision even the Collector was having no authority to exercise any jurisdiction under 11 Section 97. Now coming to the issue as to whether the petitioner could have otherwise maintain the revision petition under Section 97. Perusal of revision petition does not show any averment therein to the effect that petitioner being interested person is maintaining the revision petition whereas as per provisions of Section 97 a revision petition can be maintained by the person interested, if at all same is maintainable otherwise thus even on that ground also the revision petition filed by the petitioner was not maintainable. Now comes as to what the grievance of the petitioner in regard to issuance of patta, the counsel for the petitioner could not supply any reason other than the fact that in the garb of issuance of pattas, non-petitioner No.6 is trying to encroach upon the land of public way. If the grievance of the petitioner is regarding encroachment on the public way then the said issue could have been taken up but the petitioner's whole grievance is against the issuance of pattas, therefore, the petitioner could not show his locus even for maintaining revision petition that too when pattas were issued in the Year 1981 and revision petition was filed by the petitioner in the Year 2002 i.e after lapse of long 21 years without giving appropriate justification for delay more so when it has otherwise came on record that non-petitioner No.6 starting raising further construction on the disputed land in the Year 12 1998 and in that regard civil suit was also filed by others. Thus if the petitioner is so relevant and concerned about the land then he could have noticed raising of further construction by the non-petitioner No.6 so as to pursue his remedies, if any, but then petitioner could not justified his part of inaction apart from his interest and locus in the property. It is otherwise a fact that if one remains in peaceful possession for a period of more than 12 years then right to challenge such possession vanishes and goes away however in the present matter since the revision petition has been filed after lapse of 21 years, it becomes clear that even if it is assumed that there is no period of limitation provided for maintaining a revision petition under Section 97 of the Act of 1994 then delay of 21years is such a delay which cannot be condoned unless there are convincing reasons. In view of the what has been stated above, it becomes clear that the petitioner had approached revisional authority even with unexplained delay of 21 years because whatever explanation has been given by the counsel for the petitioner is not found to be justified. Thereby it seems to be nothing but an abuse of process of law by the petitioner who even failed to maintain an appeal as provided for challenge to transfer of land. The writ petition filed on additional grounds cannot otherwise be entertained as observed that the petitioner had made prayer in the present petition over and above the prayer made in the revision petition which otherwise cannot be maintained by the petitioner. However, this judgment deals with all the 13 arguments so raised during the argument and as I do not find any merit in the argument rather the petitioner could not show his interest in pursuing the remedies by the revision petition, the writ petition is dismissed with cost of Rs.10,000/-. (MUNISHWAR NATH BHANDARI), J. mamta