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1998 DIGILAW 1254 (RAJ)

Ridmal Singh v. State of Rajasthan

1998-11-26

R.R.YADAV

body1998
Honble YADAV, J.–The instant writ petition has been filed for quashing of the order dated 29.5.88 (Annex.8) passed by the State Government and the order dated 16.5.88 (Annex.9) passed by the Additional Collector and Secretary Mandi Vikas Samiti, Hanumangarh Junction (respondent No.2). (2). It is averred in the writ petition that in the year 1972, the petitioner applied for patta of the vacant land lying in front of his ancestral property purchased by his father from Maharaja Karani Singh in the year 1957. Gram Panchayat Dhiradesar at the time of celebration of Silver Jubilee granted a Patta to the petitioner for the land measuring 90 X 55 free of cost in auction which is adjacent to the petrol pump and house of petitioners brother Salam Singh. The aforesaid Patta was issued as per resolution No.3450 dated 7.10.1972 under Rule 267 of the Rajasthan Panchayat and Nyay Panchayat (General) Rules, 1961 (hereinafter referred as the Rules of 1961). Photo stat copy of the Patta alongwith site plan is annexed with the writ petition and marked as Annex.3. (3). It is further averred in paragraph 7 and 8 of the writ petition that Pilibanga Shikshan Samiti Pilibanga District Sri Ganganagar (respondent No.3) made an application and prayed that the disputed land belongs to School hence same may be allotted to it. A copy of the said application is filed and marked as Annex.6 to the writ petition. Upon the aforesaid application Annex.6 a notice dated 22.6.80 was issued by respondent No. 2 to the Chairman, Shikshan Samiti Pilibanga and the pe- titioner, asking the parties not to make any construction on the vacant land which was lying adjacent to Bharat Petrol Filling Station and also to produce documents with regard to their ownership. (4). After service of notice respondent No.3 is represented by Mr. S.N. Sharma whereas respondents No.1 and 2 are represented by Addl. Government Advocate Mr. L.R. Upadhyaya present in Court. However, no reply has been filed on behalf of respondents. (5). I have heard learned counsel for the parties and carefully perused the materials available on record. (6). (4). After service of notice respondent No.3 is represented by Mr. S.N. Sharma whereas respondents No.1 and 2 are represented by Addl. Government Advocate Mr. L.R. Upadhyaya present in Court. However, no reply has been filed on behalf of respondents. (5). I have heard learned counsel for the parties and carefully perused the materials available on record. (6). It is strenuously urged by learned counsel for the petitioner that since the averments made in the writ petition are not controverted by any of the respondents by way of filing reply hence whatever averments are made in the writ petition are to be believed and on this premise the writ petition is to be allowed. (7). On the other hand, the learned counsel for respondent No.3 argued that the present writ petition cannot be allowed simply on the ground that no reply controverting the averments made in the writ petition has been filed. In fact according to Mr. Sharma the averments made in the writ petition are palpably false and are inconsistent with the documentary evidence Annex.8 and 9 filed by the pe- titioner himself. It is also contended by learned counsel for respondent No.3 that under Sub-rule (2) of Rule 267 of the Rules of 1961 the Panchayat can allot abadi land free of charge only to the members of Scheduled Castes Scheduled Tribes and other backwards classes. Here in the present case even from the averments made in the writ petition it is apparent that petitioner is neither a Scheduled Caste nor Scheduled Tribe nor belongs to other backward class category therefore under Sub-rule (2) of Rule 267 of the aforesaid Rules he is not entitled to obtain Patta free of cost as is evident from Annex.3 to the writ petition. From perusal of Annex.3 it appears that the land was put to auction but who was the highest bidder is not disclosed therefore every content of Annex.3 is inconsistent with the Rules of 1961 and also indicates that arbitrarily and illegally the petitioner was allotted the land in dispute for which he was not entitled. It is urged by the learned counsel for respondent No.3 that Gram Panchayat has no legal justification to allot land in question to the petitioner against the statutory Rules of 1961 free of cost in the year of its Silver Jubilee Celebration. (8). The Learned Addl. It is urged by the learned counsel for respondent No.3 that Gram Panchayat has no legal justification to allot land in question to the petitioner against the statutory Rules of 1961 free of cost in the year of its Silver Jubilee Celebration. (8). The Learned Addl. Government Advocate appearing on behalf of respondents No. 1 and 2 adopted the aforesaid arguments raised on behalf of respondent No.3 and he further submitted that in response to the notice Annex.5 a detail reply was filed which is filed and marked as Annex.7 to the writ petition but in this reply there is no reference with regard to allotment of Patta to the petitioner dated 23.10.72 Annex.3 to the writ petition which leads towards an irresistible conclusion that Annex.3 is forged document and has been manufactured at the time of filing of the writ petition to give a colour to his bogus claim in order to grab the land which belongs to respondent No.3 Mr. L.R. Upadhyaya, Additional Government Advocate also invited my attention to the averments of paragraph 8 of the writ petition where- in the petitioner himself has admitted that in the application moved by respondent No.3 they were claiming ownership over the disputed vacant land. According to Mr. Upadhyaya, learned Additional Government Advocate the averments made in paragraph 7 and 8 of the writ petition are falsified from Annex.8 according to which the land in dispute was settled in favour of respondent No.3 on 6.5.71 but the then Governor of Rajasthan gave assent for allotment of the disputed land in favour of respondent No.3 on 29.5.88. In compliance of approval accorded by State Government Annex.8 the Additional Collector and Secretary Mandi Vikas Samiti, Hanumangarh Junction directed respondent No.3 to take possession of the land in dispute but in the meantime the petitioner filed the present writ petition and after misleading the Court he obtained ad interim stay order on 16.9.88. This is how handing over possession of the land in question to respondent No.3 in pursuance of Annex.8 and 9 to the writ petition is being delayed by the petitioner. (9). This is how handing over possession of the land in question to respondent No.3 in pursuance of Annex.8 and 9 to the writ petition is being delayed by the petitioner. (9). In rejoinder the learned counsel for the petitioner urged before me that Sub-rule (2) of Rule 267 of the Rules of 1961 is amended by adding Sub-rule 2(a) of Rule 267 of the Panchayat General Rules wherein phraseology of Sub-rule(2) of Rule 267 of the Rules of 1961 is altered. (10). I have given my thoughtful consideration to the rival contentions raised at the Bar. (11). I am of the opinion that there is substance in the arguments raised by learned counsel for respondent No.3 and Addl. Government Advocate appearing on behalf of respondents No.1 and 2. I am objectively satisfied from perusal of Annex.8 that the land in dispute was allotted to respondent No.3 on 6.5.71 which got the approval of His Excellency the then Governor of Rajasthan on 29.5.88 vide Annex.8 to the writ petition. In pursuance of Annex.8 respondent no.2 passed the order Annex.9 directing respondent No.3 to take possession of the land in dispute as the land was already allotted in favour of Pilibanga Shikshan Samiti on 6.5.71. Once the disputed land was already settled in favour of respondent No.3 on 6.5.71 then the question of re-allotment in favour of petitioner by passing resolution by Gram Panchayat Dhiradesar on 7.10.72 and execution of patta in his favour on 23.10.72 do not arise. The aforesaid facts are supported even from the averments made in paragraphs 7 and 8 of the writ petition wherein it is averred by the petitioner himself that by moving an application before respondent No.2, respondent No.3 was claiming ownership of the land in dispute. To my mind raising the question of ownership before respondent No.2 by respondent No.3 would not have arisen in the year 1980 unless it is held that the land in dispute was allotted to respondent No.3 on 7.5.71 which is apparent on the very face of perusal of Annex.8 to the writ petition. (12). I am also satisfied with the argument of learned Addl.Government Advo- cate that so called Patta Annex.3 which is void ab initio being in contravention of statutory Rules of 1961 was not in existence in the year 1980 but it was manufactured after 1980 to give a colour to the present writ petition. (12). I am also satisfied with the argument of learned Addl.Government Advo- cate that so called Patta Annex.3 which is void ab initio being in contravention of statutory Rules of 1961 was not in existence in the year 1980 but it was manufactured after 1980 to give a colour to the present writ petition. Had it been in existence in the year 1980 it ought to have been mentioned in the detail reply filed before respondent No.2 in Annex.7 to the writ petition. (13). I am of the view that in the present writ petition, the petitioner has not invoked the equitable jurisdiction of this Court under Article 226 of the Constitution with clean hands hence it is liable to be dismissed on this ground alone. (14). The learned counsel for the petitioner invited my attention to amended Sub-rule (2) of Rules of 1961. Suffice it to say in this regard that amended Sub-rule (2) of Rule 267 of the Rules of 1961 has no application in the present case. In fact old Sub-rule (2) of Rule 267 is applicable in the present case as these Rules were amended after 1972 whereas settlement was held in favour of respondent No.3 on 6.5.71 and so called Patta Annex.3 was executed on 23.10.72. (15). As regards the argument of learned counsel for the petitioner that as th- ere is no counter affidavit in traverse of the allegations contained in the writ petition supported with affidavit, it is not open to disbelieve the allegations of the petitioner made in the writ petition. The aforesaid argument of learned counsel for the petitioner is not acceptable for the reason that he who seeks equity under Article 226 of the Constitution must establish that he is also prepared to be equitable with his opponent. To my mind the act of the petitioner is the case on hand to grab the land in dispute by hook and crook cannot be allowed to succeed in extraordinary jurisdiction of this Court under Article 226 of the Constitution which is an equitable jurisdiction to promote honesty and good faith amongst the public at large. (16). To my mind the act of the petitioner is the case on hand to grab the land in dispute by hook and crook cannot be allowed to succeed in extraordinary jurisdiction of this Court under Article 226 of the Constitution which is an equitable jurisdiction to promote honesty and good faith amongst the public at large. (16). From the aforesaid facts and circumstances I am firmly of the view that the instant writ petition is liable to be dismissed with special costs to the respondents but it is pointed out by learned counsel for the petitioner that as no reply has been filed on behalf of the respondents, therefore, in the interest of justice cost may be made easy. As a result of aforementioned discussion, the instant writ petition lacks merit and it is hereby dismissed. The ad interim stay order granted earlier is hereby vacated. Cost is made easy.