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2013 DIGILAW 769 (RAJ)

Dr. Bhimsen Sharma v. State of Rajasthan

2013-04-17

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - The instant writ petition has been filed by the petitioner to quash the impugned order dated 6.8.2012 (Annex.7) passed by the Superintending Engineer, Water Resources Circle, Sriganganagar with further prayer that departmental appeal preferred by the respondent No. 4 may kindly be dismissed and respondents authorities may be directed to provide the irrigation facilities to the petitioner as per earlier arrangement. 2. Learned counsel for the petitioner submits that petitioner as well as one K.C. Sharma husband of respondent No. 4 was having agricultural land at chuk 17 BB, Tehsil Padampur, District Sri Ganganagar in Murabba Nos. 1, 2, 3, 4 and 5 so also various properties at Sriganganagar. In the year 1997, father of the petitioner late Shri Gouri Shankar Sharma executed a Will in his favour and the said Will was submitted before the District Collector, Sriganganagar and information was also given to the petitioner as well as to Shri K.C. Sharma with regard to execution of the said Will in favour of the petitioner. Thereafter, father of the petitioner died on 28.6.2009 at the age of 94 years, therefore, the Will executed in the year 1997 was not operative till his death but petitioner remained in cultivatory possession of the land in question and having all the irrigation facilities. 3. Learned counsel for the petitioner submits that an application was preferred before the respondent No. 3 by the respondent No. 4 with the contention that she has been gifted the land in question by late Shri Gouri Shankar Sharma by way of gift deed on 21.8.2007, therefore, she became owner of the land in question. Hence, it is prayed that water slips may be issued in her name. The petitioner appeared before the respondent No. 3 and submitted reply to the application and submitted that a civil suit for cancellation of the gift deed has already been filed by the petitioner in the competent civil Court in which ad interim injunction order has been passed by the trial Court as such the effect of the order passed by the civil Court is not in existence and so far as the rights of the respondent No. 4 on the basis of the gift deed are yet to be adjudicated by the competent civil Court. 4. 4. The respondent No. 3 sent for report from the concerned Patwari and Patwari after taking statement of agriculturists gave report that the petitioner is in possession of the land in question from last more than 12 to 13 years. 5. The respondent No. 3 rejected the application filed by the respondent No. 4 vide order dated 5.7.2012 in which it is observed that the petitioner is in cultivatory possession of the land in question, therefore, passed an order to maintain the existing arrangement. 6. The respondent No. 4 preferred an appeal before respondent No. 2 but the appellate Court allowed the said appeal vide impugned order dated 6.8.2012. 7. Learned counsel for the petitioner submits that order impugned is patently illegal because it has been passed without considering the order passed by the respondent No. 2, who is respondent No. 3 and without even considering the report submitted by the Patwari and Assistant Engineer and, therefore, the order passed by the appellate authority deserves to be quashed. Learned counsel for the petitioner submits that a standing order was also issued by the Superintending Engineer, which is placed on record as Annexure-4 whereby it is observed that in the event of pendency of any criminal case with regard to title of the land, the existing arrangement shall not be disturbed but in this case vide impugned order, the appellate authority disturbed the existing arrangement of the water supply which is totally illegal. 8. Learned counsel for the petitioner submits that existing arrangement of water supply cannot be disturbed for the simple reason that the petitioner is in cultivatory possession of the land in question therefore, the writ petition may be allowed and the order passed in appeal may be quashed. 9. 8. Learned counsel for the petitioner submits that existing arrangement of water supply cannot be disturbed for the simple reason that the petitioner is in cultivatory possession of the land in question therefore, the writ petition may be allowed and the order passed in appeal may be quashed. 9. Per contra, learned counsel appearing for the respondent No. 4 and Irrigation Department vehemently opposed the prayer and submits that the petitioner is not entitled for relief under Articles 226 and 227 of the Constitution of India because he has concealed' the material fact that before filing this writ petition, a civil suit was filed by him in which the impugned order was challenged by the petitioner, which is evident from the prayer clause of suit Annexure-R14/1 and this fact is not disclosed in the writ petition, more so, the application for temporary injunction was finally heard by the civil Judge (SD), Sriganganagar and fixed for pronouncement of order on 23.8.2012 before that petitioner preferred writ petition before this Court on 13.8.2012 and obtained stay in which has concealed the fact of pendency of suit and the fact that the matter has been heard by the trial Court on temporary injunction application, therefore, on this count alone, this writ petition deserves to be dismissed. 10. In support of his contention, learned counsel for the respondents invited attention of this Court towards the judgment reported in 2012 SCC Vol. 5 p. 407 and submits that this writ petition may be dismissed on merit. It is submitted that respondent No. 4 and petitioner both are LR's of late Shri Gouri Shankar Sharma and this fact is not in dispute. Of course, civil suit filed by the petitioner against the execution of the gift deed is pending but appellate authority passed an impugned order on 6.8.2012 for water supply as per the new revenue record in which there is no illegality. 11. Learned counsel for the respondents further invited attention of this Court that standing order issued by the Government cannot be made applicable in this case because till gift deed is in existence the right of the petitioner to get water supply cannot be curtailed, therefore, the Superintending Engineer, Water Resources, Sriganganagar was rightly passed an order for providing water supply as per the new revenue record. In view of above, it is submitted that this writ petition may be dismissed. 12. In view of above, it is submitted that this writ petition may be dismissed. 12. In rejoinder, learned counsel for the petitioner submits that although the suit was filed prior to filing this writ petition but in that writ petition an application under Order 7, Rule 11 C.P.C. was filed by the respondent No. 4 but same was withdrawn and matter was heard by the trial Court upon the application for temporary injunction but in fact that the suit was not maintainable, therefore, after filing this writ petition, the petitioner withdrew that civil suit, therefore, this writ petition cannot be dismissed solely on the ground of concealment of fact because it present civil suit is not pending. 13. In support of his contention, learned counsel for the petitioner submits that as per judgment of Hon'ble Supreme Court rendered in (2004) 7 SCC 166 SJS Business Enterprises v. State of Bihar and others even if the fact of filing the civil suit is not disclosed in the writ petition, the writ petition cannot be dismissed on the ground of concealment, therefore, the matter may be decided on merit. 14. After hearing learned counsel for the parties, first of all it is required to be observed that petitioner is not disputing the fact of concealment of filing civil suit before the trial Court against the impugned order dated 6.8.2012 passed by the Superintending Engineer, Water Resources, Sriganganagar but claiming his right on the ground that he has remedy to challenge the said order by way of filing this writ petition. In the opinion of this Court, it is the duty of the litigant to narrate all the correct facts in the writ petition for invoking extra ordinary jurisdiction of this Court for their relief. Here in this case, the petitioner concealed material fact of filing civil suit against the same order, therefore, the Coordinate Bench of this Court vide order dated 10.9.2012 vacated the ad-interim order while entertaining the application filed under Article 226(3) of the Constitution of India. The following order was passed by the Coordinate Bench of this Court : "Heard learned counsel for the parties on the application filed under Article 226(3) of the Constitution of India on behalf of the respondent No. 4. The following order was passed by the Coordinate Bench of this Court : "Heard learned counsel for the parties on the application filed under Article 226(3) of the Constitution of India on behalf of the respondent No. 4. Learned counsel for the respondent submitted that assailing the validity of order impugned dated 6.8.2012, a suit was filed by the petitioner before the District judge, Sri Ganganagar on 7.8.2012. It is submitted that the petitioner concealing the facts regarding the suit filed and the order passed therein, has obtained ex parte interim order from this Court. Learned counsel submitted that the suit filed has now been got dismissed as not pressed by the petitioner without taking any liberty to take appropriate remedy. Learned counsel submitted that the interim order obtained by concealment/suppression of material facts, deserves to be vacated. Learned counsel appearing for the petitioner does not dispute that the interim order was obtained by the petitioner concealing the facts regarding the remedy of suit already availed. It is also not in dispute that the suit filed stands dismissed as not pressed vide order dated 23.8.2012 passed by the Court concerned. On the facts and in the circumstances of the case, looking to the conduct of the petitioner in concealing the facts regarding the remedy of suit already availed, this Court is not inclined to continue the ex parte interim order. Accordingly, the application under Article 226(3) of the Constitution of India is allowed. The interim order dated 17.8.2012 is vacated. Let, the matter be listed for admission on 17.9.2012 as prayed." 15. In view of above, although this writ petition deserves to be dismissed on the ground of concealment of fact alone but in the interest of justice, I deem it appropriate to examine the order impugned on merit also. 16. The petitioner is claiming his right on the basis of a will executed by late Gauri Shankar whereas the respondent No. 4 being wife of K.C. Sharma other son of late Gauri Shankar is claiming right on the basis of the registered gift deed executed by late Gauri Shankar. Meaning thereby, petitioner and respondent No. 4 both are legal heirs of late Gauri Shankar Sharma but they are claiming their right on the basis of two different documents. Meaning thereby, petitioner and respondent No. 4 both are legal heirs of late Gauri Shankar Sharma but they are claiming their right on the basis of two different documents. A civil suit has already been filed with regard to validity of gift deed which is under adjudication before the civil Court but till today the said gift deed is in existence in favour of respondent No. 4 and till cancellation of the said registered gift deed, it cannot be said that respondent No. 4 is not having any title or claim over the land in question, therefore, in my opinion, the order passed by the Superintending Engineer dated 6.8.2012 impugned in this writ petition, does not suffer from any illegality, more so, it is justified on the basis of the facts and circumstances of the present case. 17. In view above, there is no force in this writ petition. Hence, this writ petition is dismissed with cost of Rs. 1,000/-.Petition dismissed. *******