1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 1039 of 1999 GAYATRI DEVI V/S STATE OF RAJ. & ORS. Mr. MANISH SHISHODIA, for the appellant / petitioner Mr. KN JOSHI, Mrs. PRATISTHA DAVE, & Mr. NK RASTOGI, for the respondent Date of Order : 16.7.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. ORDER ----- This appeal seeks to challenge the order of the learned Single Judge dt. 20.7.1999 dismissing the writ petition on preliminary objection raised by the respondent. The petitioners challenged the proceedings for acquisition, and also alleged that some land belonging to them is under threat of dispossession despite not being under acquisition. Of course with respect to that land regular civil suit was also filed. This fact is also mentioned in the writ petition. The writ petition was filed on 31.1.1985. The acquisition proceedings were challenged by writ petitioners on the grounds in which we do not feel advised to go at 2 this stage as the writ petition has been dismissed on preliminary objection. Reply to the writ petition was filed on behalf of the respondent no. 4 the Municipal Board on 5.1.1988 raising certain objections about locus standi of some of the writ petitioners to file the writ petition. Then, it was pleaded that the land Araji No. 1605/1 Kha is not being acquired under the notification Annexure-11 and 12, still that has been made subject matter of writ petition, three persons were alleged to be not interested in prosecuting the writ petition, still they have been impleaded as petitioner, and in the garb of the order of status quo passed by this Court the property has been let out by the petitioner to various persons, and thus the stay order is being misused. These submissions were made as preliminary objections. Then, parawise reply was also given. The state respondents no. 1 to 3 filed a reply as late as on 18.9.1995 i.e. After more than 10 ½ years of the filing of the writ petition, and in the reply in para-17 it was pleaded that erroneously land of Araji No. 1605/1 ख did not come to be included in the initial notification therefore, fresh notification under Section 4 was issued on 31.7.1989 and a copy whereof was produced as Annx.R/11. Some additional reply was also filed on behalf of State respondent about the land having been let out by the 3 petitioners to other persons. Rejoinder was filed by the petitioner on 9.10.1996 inter-alia stating that inspite of expiry of more than 7 years after Annex.R/11, it has not been disclosed as to whether the notification under Section 6 has been issued or not with respect to this land, and after checking the file, the petitioners have not come across any such notification, therefore, that notification has lapsed by passage of time. Filing of additional reply was also objected on the ground of it having been filed without obtaining permission of the Court. It is in this fact scenario that on 27.1.1998 an application was filed on behalf of the petitioners seeking permission to raise additional grounds or in the alternative permission to amend the writ petition seeking to challenge notification under Section 4 and 6, inter-alia on the ground of they having been published in the official gazette on the same date, and claiming it to be a pure question of law, enclosing with the application copy of the gazette. We may now notice that the acquisition proceedings have been challenged, also on the ground, that only notification under Section 4(1) had been issued and then notification under Section 6 has been issued, without 4 previous issuance of notification under Section 4 (5), which is mandatory. Without issuance of notification under Section 4 (5), the declaration under Section 6 could not be made, and in the reply of either of the respondents, it is not shown that any notification under Section 4(5) was ever issued. It is on these fact situations, that the learned Single Judge has dismissed the writ petition, on the preliminary objection as mentioned above. After hearing learned counsel for either side, in our view, the impugned order cannot be sustained, inasmuch as, the preliminary objections, as sustained by the learned Single Judge, have no force whatever. It would suffice to observe, that the difference in the cause of action on the anvil of identity of the land qua each of the petitioners stands substantially obliterated by the State filing and enclosing Annex.R/11. That apart, learned Single Judge could examine the matter on merits, and if it was found that any of the petitioners was not interested in any land, qua him the writ petition could be dismissed, but others could not be non-suited on that ground. So far as the objection about three petitioners having expressed their desire not to prosecute the writ petition is concerned, in this regard also the matter rests 5 only in the realm of bald averment, having been made by the respondent No.4, not supported by any material, which could not be taken as gospel truth on the face value to non-suit the petitioners. Then the next objection considered is that the land which was not included in the notification has also been stayed, and the order of status quo was misused by the petitioners, by letting out the land during pendency of the writ petition. In our view, so far as including land is concerned, Annex.R/11 appears to have not been looked into by the learned Single Judge. Then so far letting out is concerned, if that was in any manner violative of stay order, respondents could have taken appropriate action in that regard against the petitioners, but then it cannot be said, that on that ground, without anything else, the writ petition could be dismissed. So far as the rejection of application for amendment is concerned, true it is that application was fled after 13 years, but then this cannot be lost sight that the reply was filed by the State respondents after a long long delay of more than 10½ years. That apart the objection sought to be raised was purely a legal objection, which could be allowed to be raised even without amendment 6 of the writ petition. The net result of aforesaid discussion is that considering from any stand point we find ourselves unable to sustain the impugned order. The appeal is, therefore, allowed. The impugned order is set aside, and the matter is sent back to the learned Single Judge for deciding the writ petition on merits after hearing the parties concerned. Since the writ petition is of the year 1985, the Registry is directed to list it for hearing in the priority available to the matters of 1985. The parties are directed to appear before the learned Single Judge on 17.8.2009. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/