Jagdish Kumar Sain vs State of Rajasthan and Others

Heard learned counsel for the applicant-writ-petitioner. The accompanying D.B. Civil Writ Petition No. 10971/2009 had been registered on an application seeking amongst others the following reliefs:-

(i) the writ petition may be allowed and the respondents authorities be directed to conduct a detail survey of the land in question, out of which a piece of land has been allotted to the Income Tax Office and also to the School and over which the building for Income Tax Officer has been constructed and also cemented road has also been constructed from Income Tax Office to the National Highway, and looking to the same the application submitted by the people of Sirohi for the plot in the Rajeev Nagar Scheme and a piece of plot may kindly be ordered to allot the people of Sirohi.

(ii) by an appropriate writ, order or direction, the respondents may kindly be directed to not to cancel the Rajeev Nagar Scheme for residential purposes at Sirohi.

Briefly stated the pleaded case of the applicant-writ-petitioner is that the Municipal Council, Sirohi had purchased land measuring 35 bigha 4 biswa situated in khasra no. 2164, 2168, 2170, 2171, 2172, 2173, 2173/2, 2176/2, 2175/1, 2175/2, 2176/1, 2180 and 2181 from its khatedar Tejaram Goyal, a member of the Scheduled Caste community by a registered deed dated 27.3.1989 for a sum of Rs. 7,39,200/-. The Municipal Council, Sirohi acquired the said land for the purpose of launching the Rajeev Nagar residential scheme and in pursuance of the said objective, invited applications from the people of Sirohi for residential plots and in response thereto, the persons interested did submit their applications in its office. It was thereafter that out of the land in question, allotments were made to the jurisdictional Income Tax Office as well as to a School and the permission for constructions to these Institutions was also granted. This move had the potential of depriving the people of Sirohi, who had applied for allotment of plots in the Rajeev Nagar scheme contemplated by the Municipal Council, Sirohi.

The applicant-writ-petitioner in his averments made in the petition did mention as well that there is a restriction contemplated in Section 42 of the Rajasthan Tenancy Act, 1956 (for short, hereinafter referred to as "the Act") with regard to the transfer or purchase of the land belonging to the member of the Schedule Caste community to/by any individual person or institution or organization. Reference has also been made to the letter dated 5.12.2006 of the District Collector, Sirohi requiring the Tehsildar, Sirohi to cancel the mutation made for the land in question for implementation of the Rajeev Nagar scheme with the direction to initiate a proceeding u/s 175 of the Act in a competent court of law. That pursuant thereto, a proceeding under the aforementioned provision of law was indeed initiated against the respondent no. 8 Tejaram and the Municipal Council, Sirohi, has been mentioned. The applicant-writ-petitioner did state as well about the order of the Municipal Council, Sirohi for construction of cemented road from the Income Tax office to the National Highway road on an expenditure of Rs. 3,28,526/-. Contending that all these developments in succession had the potential of depriving the public of Sirohi of the benefit of allotment of plots in the land to avail the facilities of the Rajeev Nagar scheme as earlier contemplated by the Municipal Council, Sirohi, the reliefs, as mentioned hereinabove, were sought for.

During the pendency of the writ petition, the respondent no. 8 Tejaram expired and on the interim application filed being IA No. 15526/11, a Coordinate Bench of this Court on 24.9.2012 issued notice and required the applicant-writ-petitioner to take necessary steps within a period of 15 days. It was ordered further that process fee be paid for service by registered post with acknowledgment due within 15 days, failing which the writ application would stand dismissed automatically without reference to the Court. As the requisites in terms of the said order had not been deposited, the writ petition was dismissed on 27.11.2012.

The instant applications one u/s 5 of the Limitation Act, 1963 and the other for restoration of the writ petition have now been filed. The applicant-writ-petitioner has averred therein that as his learned counsel was not aware of the peremptory order, he could not take steps in time. Further, though the learned counsel for the respondent no. 8 had sought time to obtain instructions about his heirs and legal representatives, he too did not submit any document or instruction to that effect.

Reciting the above grounds, the learned counsel for the applicant-writ-petitioner has prayed for recalling of the order dated 24.9.2012 and the dismissal of the accompanying D.B. Civil Writ Petition No. 10971/2009.

A plain perusal of the order dated 24.9.2012 makes it abundantly clear that the same was passed in presence of the learned counsel for the parties. As the order would reveal, the learned counsel for applicant-writ-petitioner was as well present when it was passed. The pleaded plea that the learned counsel for the applicant-writ-petitioner was not aware of the peremptory nature of the order dated 24.9.2012 is, therefore, patently untenable. As the records would reveal, the petition was dismissed on 27.11.2012 i.e. after more than two months from the date of the said order, though in terms thereof, 15 days had been granted to the learned counsel for the applicant-writ-petitioner to deposit the process fee.

On an overall consideration of the materials available on record, we are thus not inclined to accede to the prayer for recalling the order dated 24.9.2012 or the dismissal of the accompanying D.B. Civil Writ Petition No. 10971/2009 for the failure of the applicant-writ-petitioner or his counsel to take necessary steps in time. The applications for condonation of delay as well as for restoration of the writ petition are thus rejected.