1 S.B. CIVIL WRIT PETITION NO.3138/1995 Desh Raj Vs. Additional Collector Sri Ganganagar & Ors. Date of Order :: 6th April 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.S.L.Jain,for the petitioner. Mr.K.K.Bissa Government Counsel. Mr.R.S.Charan ) Mr.Vijay Bishnoi),for the respondents. .... BY THE COURT: The petitioner was granted a patta dated 10.04.1988 (Annex.2) by the Gram Panchayat, Lalgarh Jatan while allotting free of charge a piece of 25’ x 45’ size land. The said patta (Annex.2) states it to be an allotment meant for the persons belonging to the category of Scheduled Casts, Scheduled Tribes, Landless Persons, Village Artisans and Marginal Farmers. The allotment so made to the petitioner came to be questioned with the respondent No.2 Hemraj filing a revision petition (No.184/1994) that was considered and allowed by the Additional Collector (Vigilance) Sriganganagar by the impugned order dated 12.06.1995 (Annex.4), inter alia, on the ground that the petitioner was not entitled for such free allotment. 2 The order so passed by the Additional Collector (Vigilance), Sriganganagar has been challenged by way of this writ petition. It has essentially been contended on behalf of the petitioner that the revision petition as filed by the respondent Hemraj was not competent because he did not file a copy of the order under challenge; that the revision petition was filed in the year 1994 much after the said allotment and being grossly belated and incompetent, ought to have been rejected; that the respondent made a wrong assertion in the revision petition about his having come to know of the patta in question only on 12.06.1993 whereas the fact was that he had already filed a civil suit in the Court of Munsif, Sadul Shahar; that in fact, the revision petition was mala fide and was filed only after the respondent failed to obtain injunction in the Trial Court; that once the respondent had availed of the remedy of filing the civil suit, the remedy for cancellation of patta by way of revision petition was not competent; that the land in question was nothing more than a strip of land lying vacant in front of plots Nos.21 and 22 belonging to the petitioner and various similarly situated applicants were allotted such strips of land but only the petitioner was targeted for the personal enmity of respondent No.2 and at the same time, similar allotments in favour of other persons were maintained. It has also been 3 contended on behalf of the petitioner that the respondent was nursing a grudge against the petitioner for the reason that the petitioner had purchased a shop from the said respondent’s father and the respondent intended that the petitioner should re-covey the same to him. It has also been contended that the petitioner had sold the plot in question to one Ram Dayal who had established an industry in the name of Oil & General Mills and such a fact, even when stated before the Revisional Authority was not given adequate consideration nor the said transferee Ram Dayal was heard. It has also been contended that patta having been granted after the allotment order, the same could not have been cancelled under the revisional powers. It is yet further submitted that the plot in question had been in the use and occupation of the petitioner since long and he has sold the same to his son to establish an industry and huge amount has been spent and if deprived of the land, the petitioner would suffer irreparable injury. Learned counsel for the petitioner has referred to and relied upon the decisions in Kalicharan and another Vs. Board of Revenue and another: 2005 (3) WLC 4, Gordan & others Vs. State of Rajasthan and others: 2005 (3) WLC 103, and Munna Ram Vs. State of Rajasthan: 2004 (3) WLC 307. Having given a thoughtful consideration to the 4 submissions made on behalf of the petitioner and having perused the material placed on record, this Court is clearly of opinion that no interference is called for in this matter in the writ jurisdiction. In the first place, it may be pointed out that by way of this petition challenge is given to an order passed by the subordinate authority in its revisional jurisdiction. The proceedings herein are not akin to nor in substitution of an appeal or a revision; and interference in writ jurisdiction in any order passed by the subordinate authority is essentially considered when the order could be said to be suffering from such fundamental flaws like erroneous assumption of jurisdiction, or refusal to exercise jurisdiction, or errors apparent on the face of the record, or violation of principles of natural justice, or arbitrary or capricious exercise of authority, or recording the findings that are perverse or without reasonable basis or are patently unreasonable; and when any such error leads to manifest injustice. It is also settled that while exercising the writ jurisdiction, this Court would not countenance restoration of an illegality. So far the allotment in question is concerned, the learned Additional Collector has, apart from finding want of relevant record in the Panchayat, and having received only the 5 proceedings register, has basically found that by a resolution dated 01.04.1988 the Panchayat had appointed a Survey Committee to identify the weaker and poor people who were found in possession and who could be allotted 30' x 45' size plots free of charge. Pursuant to such a resolution and proceedings, allotments were made in favour of 371 persons with the name of the petitioner appearing at serial No.367. The fact has been noticed that the petitioner was already having plots Nos.21 and 22 with him admeasuring 2700 sq. feet that had been purchased by him from one Kana Ram. It was also noticed that the petitioner had purchased another plot No.41 of 70’x50’ size on 01.08.1983 that was challenged in revision petition No.14/1985 that was allowed on 28.05.1985; and such an order had been challenged in the writ petition before the High Court and the said land was yet in the possession of the petitioner. The learned Additional Collector has pointed out that there was no provision under the Panchayat (General) Rules, 1961 to allot any strip of land and has referred to the Rules meant for free of charge allotment to weaker persons, to the extent 150 sq. yards. The learned Additional Collector had been of the opinion that the petitioner was not entitled to free of charge allotment and hence, has proceeded to cancel the allotment. 6 It may be pointed out that so far the fact about petitioner having plots Nos.21 and 22 with him is concerned, the same is not at all in dispute and rather, the petitioner has himself asserted in the writ petition that he is the owner of plots Nos.21 and 22. Further, the fact that the petitioner did purchase plot No.41 in alleged auction proceedings is also not in dispute. The record of the connected CWP No.2059/2007 as filed by the petitioner makes out that the said purchase of plot No.41 by the petitioner had been a matter of dispute; and earlier the said allotment was cancelled on 29.05.1985 by the Collector, Sriganganagar in case No.14/1985. However, it is the case of the petitioner that matter was ultimately remanded with the orders passed by this Court in the writ petition and in the intra- court appeal. The claim of the petitioner in relation to the said plot No.41 has, of course, been rejected with the order dated 29.03.2007 after finding that the said plot No.41 stood restored to its original allottee Jagdish. Such part of the matter relating to plot No.41 is not being dilated further in this order because the dispute relating to the said plot No.41 is to be essentially considered and decided in the aforesaid CWP No.2059/2007; however, the fact having a bearing on the present matter is that the petitioner maintains his claim towards plot No.41 in the 7 said writ petition. The said plot No.41 was purchased by the petitioner in alleged auction proceedings for a sum of Rs.2000/- and its size has been given at 70’ x 50’. In this state of record, the petitioner could be considered anything but answering to the description of such persons belonging to the weaker sections to whom free of charge allotments had been envisaged. It may be pointed out that even before the present Rules of 1996, such free of charge allotments were regulated by other notifications like the one issued by the State Government on 06.07.1982 making the Rajasthan Panchayat (General) (Special Allotment of Abadi Land to the members of Scheduled Castes/ Scheduled Tribes, Landless Persons, Village Artisans, and Small and Marginal Farmers) Rules, 1982; and its forerunner notification dated 24.09.1975 making similar titled Rules of 1975. Under the said Rules also, only a plot of 150 sq.yards could have been allotted free of charge to a person belonging to any of the specified categories provided that he was not owning any house site in any abadi or agricultural land in Rajasthan in his own name or in the name of any member of his family. The categories of persons eligible for allotment free of charge is amply described in the said Rules and the petitioner, on his own showing, is not 8 answering to the description of such persons to whom free of charge allotments of plots of 150 sq. yards size is envisaged. The petitioner being fundamentally ineligible for allotment free of charge, when such allotment has been set aside, this Court finds no reason to interfere in the writ jurisdiction. The suggestions about not filing of copy of order, or about delay in filing the revision petition, or about the respondent No.2 nursing a grudge against the petitioner or having not made correct statement about date of knowledge of allotment, or about having failed in his prayer for temporary injunction in the civil suit, are of no bearing when it is noticed that the order passed by the Revisional Authority is eminently just and proper and not without jurisdiction. The decision in Kalicharan’s case (supra) wherein this Court did not approve making of an reference under the Rajasthan Land Revenue Act, 1956 after 30 years of passing of the order of regularisation was not countenanced; and so also the decision in Gordhan’s case (supra) wherein questioning of the allotment on the ground of inadequate sale price was not approved and it was considered inequitable to dispossess the auction purchasers from the land in dispute after more than 22 years, proceeding on their own facts, are of no assistance to the 9 petitioner. In Munna Ram’s case (supra), the dispute regarding opening of new water course was sought to be taken up by way of a writ petition after failing to obtain a temporary injunction from the civil Court and hence, this Court did not entertain the writ petition on the same dispute. In the present case, the Revisional Authority had the jurisdiction to entertain a revision petition under the Rajasthan Panchayati Raj Act; and the submissions cannot be countenanced that merely for the respondent having filed a civil suit or having failed to obtain temporary injunction, the illegal allotment made to the petitioner has acquired an immunity. The submission remains untenable that patta having been issued, the same could not be challenged in revision petition. In the scheme of the statutory provisions dealing with allotment of land by a Panchayat, an illegal allotment does not acquire immunity from examination of the Revisional Authority merely for issuance of patta in favour of the allottee. The submission about the land in question having been a strip of land in front of the land belonging to the petitioner, cannot be accepted for the simple reason that the patta in question itself states the same having been issued free of charge as an allotment to the weaker section and not as a strip to the petitioner. It is also not borne out in the scheme of allotment of 10 land by the Panchayat, whether under the Act of 1961 or under the present Act of 1994 that any such allotment could be made in the name of strip of land and that too, free of charge! The submission about other allotments made at the same time having not been interfered with hardly makes any impression. Neither the status of such other allottees has been given out nor has it been shown if any of them was similarly placed with the petitioner while having already two plots of land and having purchased another in auction and yet having been allotted further land, free of charge. The suggestion about the petitioner having transferred the property to Ram Gopal is also of no effect and the submissions in that regard, if of any bearing, only put further question mark on the conduct of the petitioner. On one hand, the allotment was made free of charge with reference to the weaker sections and on the other, the petitioner would suggest having transferred the land so allotted to his son and then, the son having allegedly set up an industry thereat. It is rather strange that on an abadi land meant for providing residence to the weaker sections of the society, the petitioner would suggest putting up an industry with his family dealing. For the very suggestions as made by the petitioner, the impugned allotment deserves not to be countenanced. Noteworthy it is 11 that the alleged transferee, son of the petitioner, has not even been joined as a party to this writ petition. The claim of equity as put forward on behalf of the petitioner, cannot be accepted either because if the allotment in question is maintained, the same would only be at the expense of a bona fide eligible allottee belonging to the weaker sections. The allotment remains contrary to law and there is no equity in favour of the petitioner. This Court feels that the impugned order, if interfered with, would only result in restoration of an illegality in favour of the petitioner; and, obviously, such a course would not be adopted by this Court. In the aforesaid view of the matter, this Court finds no reason to exercise writ jurisdiction in favour of the petitioner. This writ petition fails and is, therefore, dismissed. However, in the circumstances, the parties are left to bear their own costs. A copy of this order be placed on the record of CWP No.2059/2007. (DINESH MAHESHWARI), J. s.soni