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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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/