Swarn Singh Mann And Ors vs State Of Rajasthan And Ors

This special appeal has been filed with delay of 172 days, which is sought to be explained in the application under Section 5 of the Limitation Act

stating that after decision of the writ petition vide order dated 26.07.2018, the petitioner-appellants filed review petition and the review petition was

decided vide order dated 22.01.2019 and therefore the period of limitation ought to have been counted from 22.01.2019 and if that is done the appeal

would be within limitation.

In view of the above, the delay of 172 days in filing the appeal is condoned. The application under Section 5 of the Limitation Act is accordingly

allowed.

The matter is heard on merits.

Mr. R.P. Vijay, learned counsel for the appellants, submitted that the petitioner-appellants in the writ petition challenged the allotment made by the

respondent Housing Board under the ‘Parijat Scheme’ at Kota. The respondents made illegality in allotment of the houses and thereby the

bona-fide applicants, like the petitioner-appellants were deprived of the allotment. The learned Single Judge has refused to go into the merits of the

case and dismissed the writ petition on the ground that the allottees were not made parties to the writ petition, whereas the fact is that two of the

allottees themselves came forward and filed application for their impleadment. The learned counsel has referred to the order dated 05.01.2006 of the

learned Single Judge to argue that the application of two persons for their impleadment was allowed.

Learned Single Judge has dismissed the writ petition primarily on the ground that the petitioner-appellants sought to assail the allotment made in the

year 2003, which according to the learned counsel for the petitioner-appellants was made in the year 2005 and not in the year 2003, without impleading

any of the 88 allottees. Learned counsel however submitted that at-least two of the allottees themselves came forward and filed application for their

impleadment and therefore it cannot be said that none of the allottees was impleaded as party to the writ petition, as would be evident from the order

dated 05.01.2006. It is submitted that the allotments have been made subsequent to filing of the writ petition.

Perusal of the order dated 05.01.2006 indicates that the court has stated that “the submission of the counsel for the Housing Board and other

allottees is that their names have rightly been included as per the rules and the booklet of the Housing Board and there is no illegality in the Lottery

Draw.â€, but therein it is not indicated as to whether they were impleaded as party or not, however, their submission was that there was no illegality in

the lottery draw. Thus, this indicates that the allotments were made by the Housing Board as per the rules and the booklet of the Housing Board.

Learned counsel for the appellants has not been able to dispute that the total number of allottees were 88 and even if allotment has been made

subsequent to filing of the writ petition, the learned Single Judge while deciding the writ petition in 2018 would not be justified in cancelling the

allotment without impleadment of any of the allottees. The learned Single Judge has relied on the judgment of the Supreme Court inC hairman & MD,

BPL Limited Vs. S.P. Gururaja and Others â€" (2003) 8 SCC 56.7 The Supreme Court in that case held that the Board and the State had not

committed any illegality which could have been a subject matter of judicial review. The Supreme Court opined that the High Court committed a

manifest error in so far as it failed to take into consideration that the delay in this case had defeated equity. The allotment was made in the year 1995.

The writ application was filed after one year. By that time the Company had not only took possession of the land but also made sufficient investment.

The learned Single Judge, relying on the aforesaid judgment, also held the writ petition to have been filed with delay.

Be that as it may, even the appellants filed the writ petition when the allotments have yet not been made, it was incumbent on the part of the

appellants to challenge the allotment so made by impleading the persons in whose favour the allotments were made, so that they could defend their

cases.

Learned counsel at this stage submitted that learned Single Judge in this case has initially protected the interest of the appellants directing that the

allotment made in favour of the allottees shall be subject to outcome of the writ petition, therefore the writ petition ought to have been decided on

merits. Even if the allotments were subjected to final outcome of the writ petition, it cannot obviate the necessity of impleadment of the parties who

are likely to be adversely affected by outcome of the writ petition. In other words, if the writ petition is allowed, it would result in dispossession of the

allottees from the houses which they have been occupying for last one-and-a-half decade, which obviously could not have been done without their

impleadment and providing them opportunity of hearing who are likely to be affected thereby.

We do not find any infirmity in the order passed by learned Single Judge.

The appeal is accordingly dismissed. This also disposes of the stay application.