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2005 DIGILAW 326 (RAJ)

Anita v. State of Rajasthan

2005-02-03

S.K.KESHOTE

body2005
JUDGMENT 1. - In this petition under Article 226 of the Constitution of India the petitioner is praying for grant of following relief. "(i) by a writ, order or direction, order dated 15.11.1989 (Annexure-4) may kindly be ordered to be complied with; (ii) by a writ, order or direction respondents may be directed to allow the petitioners to transfer plot No.114-A, Jamdoli, Agra Road, Jaipur; (iii) Any other order which your Lordships may deem fit and just in favour of petitioner in the circumstances of the case may also be passed; and (iv) Costs of writ petition may also be awarded to the petitioners." 2. The writ petition was admitted on 29th of August, 1996. The reply to the writ petition has been filed by the respondents and the petitioner has also filed rejoinder thereto. 3. Briefly stated the facts of the case are that the petitioner was allotted the land for poultry farm being plot No.114-A measuring 1000 sq. metres situated at Jamdoli at Agra Road, Jaipur. This allotment was made on 23rd August, 1985 and the lease deed was executed on 8th of November, 1985. The petitioner Smt. Anita, due to her personal difficulty, could not carry on the poultry farm and submitted the application to the respondents praying therein for grant of permission to her to transfer thereof to other person. On this request of the petitioner no final decision appears to have been taken by the respondents. Thus this writ petition. 4. The petitioner is basing her claim on the basis of the Government order dated 15th of November, 1989 and the order dated 24th of August, 1990. These two orders undisputedly permit the transfer of the poultry farm by the allottee to other person. The petitioner has cited some case where the Government has permitted the transfer of poultry farms by the allottees to third person. The details of those transfer made has been given in para no.6 of the writ petition. 5. The contents of para no.6 of the writ petition have not been disputed in the reply; it has been admitted that those transfers were permitted in pursuance of the order dated 15.11.1989 (Annexure-4). It is stated that the order dated 15.11.1989 is superseded under the document dated 16.12.1989 (Annexure R-2). It is not the case of the respondent that the order dated 29.8.1990 has been withdrawn or superseded. 6. It is stated that the order dated 15.11.1989 is superseded under the document dated 16.12.1989 (Annexure R-2). It is not the case of the respondent that the order dated 29.8.1990 has been withdrawn or superseded. 6. In the rejoinder to the reply filed by the respondents, the petitioner has made a specific averment that after the order dated 16.12.1989 (Annexure R-2) the transfer of the plot mentioned in para no.6 has been made. In rejoinder the petitioner has also made a reference to the document, the order dated 12.5.1994 (Annexure-13) and therefrom it reveals that the order dated 15.11.1989 has not been withdrawn or cancelled. 7. The learned counsel for the petitioner contended that in the cases of kiths and kins of the powerful persons the rules of the State Government are taken differently than the Rules insisted to be followed in the cases of the ordinary citizens. In his submission in the case of the petitioner the respondents are not permitting her to transfer her plot taking the shelter under the order dated. 16.12.1989 (Annexure R-2) though after this order the transfer of the poultry farm has been permitted in the case of the son of an IAS Officer. 8. It has next been contended that from the orders of the Government dated 29th of August, 1990 (Annexure-4) and dated 12.5.1994 (Annexure-13) it is clear that the order dated 15.11.1989 still holds the field. 9. Lastly it is contended that the order dated 16.12.1989 is contrary to the provisions of the Rajasthan Land Revenue (Allotment of Land to Dairy and Poultry Farms) Rules, 1958 (for short, 'the Rules, 1958'). Referring to the Rule 4 of the Rules, 1958 the learned counsel for the petitioner submitted that the transfer of the poultry farm lands by the allottees thereof to third persons is permissible subject to the sanction of the Government. The order dated 16.12.1989 cannot supersede, in his submission, the Rule 4 of the Rules, 1958. 10. I have given my anxious and thoughtful consideration to the contentions of the learned counsel for the petitioner and perused the entire record of the writ petition. 11. The document Annexure-7 is the permission granted by the Government for transfer of poultry farm Plot No.51 in the name of Arun Singh by his allottee Anil Singh. It is dated 1st of February, 1990. 11. The document Annexure-7 is the permission granted by the Government for transfer of poultry farm Plot No.51 in the name of Arun Singh by his allottee Anil Singh. It is dated 1st of February, 1990. The original allottee Anil Singh has given his no objection certificate for transfer of the plot No. 51 on 16.12.1989 that is on the day on which the order dated 18.11.1989 stated to have been superseded. Arun Singh and Anil Singh are the sons of Mahendra Singh, an IAS Officer of the State Government. There is sufficient merit in the contention of the learned counsel for the petitioner that in the case of the sons of IAS Officers of the State Government, the Rules and Regulations are taken differently than the Rules insisted to be followed in the cases of ordinary citizens. In the case of the petitioner the respondents took the defence that the benefit of the order dated 18.11.1989 cannot be given to her as that order has been supersede under the order dated 16,.12.1989 (Annexure R-2) but in the case of the son of an IAS Officer of the State Government that was not taken any bar for the transfer of the poultry farm to third person. Arun Singh and Anil Singh are the sons of Mahendra Singh. IAS Officer, is not in dispute. The prayer made by the petitioner for grant of permission to her to transfer the land/plot of poultry farm situated in same area and allotted for the same purpose for which it was allotted to Anil Singh the son of IAS Officer, has been differently treated and it is clearly a case of hostile discrimination. 12. In the reply to the writ petition it is not disputed by the respondents that the order dated 24th of August, 1990 (Annexure-5) holds the field. The order dated 24th August, 1990 (Annexure-5) is passed in pursuance of the order dated 15.11.1989. The order of the Government dated 12.5.1994 (Annexure-13) has also been passed in pursuance of the order dated 15.11.1989. The document Annexure-7 is dated 1.2.1990. Thus from the documents aforesaid there remains no more in dispute that the order dated 15.11.1989 was not given totally go by. 13. It was given effect to as and when it was considered necessary and more particularly to bestow favour to its kiths and kins of favourties or relations of IAS Officers. The document Annexure-7 is dated 1.2.1990. Thus from the documents aforesaid there remains no more in dispute that the order dated 15.11.1989 was not given totally go by. 13. It was given effect to as and when it was considered necessary and more particularly to bestow favour to its kiths and kins of favourties or relations of IAS Officers. The defence taken by the respondents in the matter justifying its action not to grant the sanction for the prayer made by the petitioner for grant of transfer of her plot in question is wholly arbitrary and perverse on the face to it. The petitioner has reproduced the rule 4 of the Rules 1958 in para no 8-B of the writ petition. In reply to the writ petition the contents of para no. 8-B have not been denied. Thus, the rule aforesaid is in force. The rule 4 of the Rules, 1958 prohibits the sale of the mortgage, lease or in any other way transfer of the land allotted for poultry farm to any other person or body without previous sanction of the Government. 14. The learned counsel for the petitioner is correct that the order dated 16.12.1989 is only an executive order. The order dated 15.11.1989 is a clarification to the Rule 4 of the Rules, 1958. The order dated 16.12.1989 has been read in the manner and fashion as what it is stated and exhibited that thereunder the order dated 18.11.1989 was superseded. The Rule 4 of the Rules, 1958 is not struck off of the statutory book. It holds field and the Government has power to sanction the transfer of the land allotted for poultry farm. 15. Taking into consideration all the facts and circumstances of the case, I am satisfied that the respondents have not acted fairly, impartially and bonafidely in the matter of the application filed by the petitioner for grant of sanction of transfer of her poultry farm plot to other person. 16. In the result the writ petition succeeds and the same is allowed. The respondent no.1 is directed to consider the application of he petitioner for grant of sanction to transfer the plot in question allotted to her for poultry farm to third person. This exercise is to be undertaken and completed within a period of one month from the date of receipt of the copy of this order. The respondent no.1 is directed to consider the application of he petitioner for grant of sanction to transfer the plot in question allotted to her for poultry farm to third person. This exercise is to be undertaken and completed within a period of one month from the date of receipt of the copy of this order. While considering the application the respondent no.1 shall keep in mind the observations and findings recorded in the order. 17. It is a fit case for award of costs of the writ petition against the respondents and in favour of the petitioner. Accordingly the respondents are directed to pay Rs. 2000/- as costs of the petition to the petitioner. The amount of costs is to be paid to Smt. Anita wife of Shiv Pal Singh, resident of 4-Ka-24, Jawahar Nagar, Jaipur by Account Payee Cheque/DD/Pay Order. In case the order of the respondents goes adverse to the petitioner, she is free to apply for revival of this writ petition by filing a simple note. 18. In view of this order, the stay application filed along with the writ petition, also stands disposed of.Petition and stay appln. disposed of. *******