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2000 DIGILAW 295 (RAJ)

Devi Lal v. State of Rajasthan

2000-03-03

B.S.CHAUHAN

body2000
JUDGMENT 1. - The instant writ petition has been filed challenging the impugned order dated 16-12-95 (Annex. 3), by which the allotment in favour of the petitioner has been cancelled. 2. The facts and circumstances giving rise to this case are that the petitioner had been allotted a small strip of land by the Gram Panchayat, Mamalkheda, vide order dated 15-8-86. A large number of persons, who are respondents in this writ petition, filed Revision No. 141/1994 in the Court of the Additional District Collector, Sardulshahar, district Sri Ganganagar, and after hearing the parties, the said Patta has been set aside. Hence this writ petition. 3. In the instant case, the District Collector has recorded the following findings of facts:- (i) That the land in dispute was abutting the petitioner's house and it was claimed by the revisionist to be a public place (Chowk). Undoubtedly, it was a public land even if it was a strip; (ii) The mandatory provisions of Rule 265 (2) of the Rajasthan Panchayat (General) Rules, 1961, had been violated as the Patta was issued without getting the auction approved from the Competent Authority; (iii) The Gram Panchayat did not have any competence to allot the public land constituting a public path and even if it was not a public land, the allotment was subjected to approval, which has not been taken/granted; (iv) There had been some manipulations with the site plan and in the Khasra Register; and (v) The Record made it clear that the provisions of Rules 251 to 270 of the Rules, 1961 had not been complied with and the Patta had been issued without waiting for the approval for a period of thirty day and the approval had never been accorded. 4. This Court has very limited scope under Article 227 of the Constitution as per the law laid down in Mohd. Yunus v. Mohd. Mustaqim, AIR 1984 SC 38 , wherein it has been held that even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution and the power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous assumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal etc. has resulted in grave injustice. (Vide Constitution Bench judgments of the Apex Court in D. N. Banerji v. P.R. Mukherji, AIR 1953 SC 58 ; and Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, AIR 1958 SC 398 . For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and dehors the factual and legal position on record. (Vide Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895 ; Rukmanand Bairoliya v. State of Bihar, AIR 1971 SC 746 ; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896 ; Laxmikant R. Bhojwani v. Pratapsing Mohansingh Pardeshi, (1995) 6 SCC 576 ; Reliance Industries Ltd. v. Pravinbhai Jasbhai Patel, (1997) 7 SCC 300 ; M/s. Pepsi Food Ltd. v. Sub-Judicial Magistrate, (1998) 5 SCC 749 ; and Virendra Kashinath Ravat v. Vinayak N. Joshi, (1999) 1 SCC 47 . 5. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (Vide Rena Drego v. Lalchand Soni, (1998) 3 SCC 341 ; Chandra Bhushan v. Beni Prasad, (1999) 1 SCC 70 ; Savitrabai Bhausaheb Kevate v. Raichand Dhanraj Lunja, (1999) 2 SCC 171 ; and Savita Chemical (P.) Ltd. v. Dyes and Chemical Workers' Union, (1999) 2 SCC 143 ). Unless the findings are patently erroneous and dehors the factual and legal position on record, exercising the power under Article 227 of the Constitution may not be justified and in that eventuality disturbing the findings of facts would amount to jurisdictional error. (Vide Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde, (1999) 4 SCC 1 . Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (Vide Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde, (1999) 4 SCC 1 . Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (Vide Union of India v. Himmat Singh Chahar, (1999) 4 SCC 521 ). Similarly, in Ajaib Singh v. Sirhind Co-operative Marketing- cum-Processing Service Society Ltd., (1999) 6 SCC 82 , the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. 6. Similarly, a Full Bench of this Court in Chiman Lal v. State of Rajasthan, S.B. Civil Writ Petition No. 1688 of 1983, vide judgment order dated 18-2-2000, reported in (2000) 2 Raj LR 39 ", has considered the aspect of interference in allotment at a very belated stage and held that the revisional powers can be exercised at any time provided; (i) the order has been obtained by fraud; (ii) order is obtained by misrepresentation or collusion with public authority by the private party; (iii) order is against public interest; (iv) the order is without jurisdiction; (v) order is in clear violation of the statutory rules or provisions of the Act; and (vi) order is void/void ab initio being against public policy or otherwise.6A. The Court further observed as under:- "The Common Law doctrine of public policy can be enforced wherever an action affects/offends public interest or where harmful result of permitting the injury to the public at large is evident. In such type of cases, revisional power can be exercised by the Authority at any time either suo motu or as and when such orders are brought to their notice." 7. In Maharaja Chintamani Sarannath v. State of Haryana, (1999) 8 SCC 16 , the Hon'ble Supreme Court has categorically held that even if the order is found to be bad/illegal/without jurisdiction, the Courts may not interfere if setting aside the order amounts to reviving an invalid order. 8. In Maharaja Chintamani Sarannath v. State of Haryana, (1999) 8 SCC 16 , the Hon'ble Supreme Court has categorically held that even if the order is found to be bad/illegal/without jurisdiction, the Courts may not interfere if setting aside the order amounts to reviving an invalid order. 8. Moreso, it is settled proposition of law that if the Statute provides for an approval of a higher authority, the order cannot be given effect to unless it gets the approval and the order remains inconsequential. In the instant case, admittedly, the approval was not granted by the Competent Authority and the Patta was issued within thirty days without waiting for approval. Approval was not accorded even after expiry of thirty days, therefore, it cannot be said that the Patta issued in favour of the petitioner had any sanctity what so ever, for the reason that the matter goes to the root of the cause and in case where approval of the higher authority is required, the Lower Body did not have any competence to finalise the order. Thus, the order becomes nullity for want of competence and remains inconsequential and unenforceable. (Vide Trilochan Mishra etc. v. State of Orissa, AIR 1971 SC 733 ; Union of India v. M/s. Bhimsen Walaiti Ram, AIR 1971 SC 2295 ; State of Orissa v. Harinarayan Jaiswal, AIR 1972 SC 1816 ; State of U.P. v. Vijay Bahadur Singh, AIR 1982 SC 1234 ; and Laxmikant v. Satyawan, AIR 1996 SC 2052 ). 9. In the instant case, as the allotment had been made in flagrant violation of the Statutory Rules, the same cannot be saved and is liable to be struck down. Thus, the facts and circumstances of the case do not warrant any review of revisional order by which the allotment in favour of the petitioner has been cancelled. 10. Thus, in view of the above, I find no force in the writ petition and it is accordingly dismissed. There shall be no order as to costs.Petition dismissed. *******