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Kamji and ors. Vs. the State of Raj. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition Nos. 469, 475 and 574 of 1979
Judge
Reported in1980WLN(UC)90
AppellantKamji and ors.
RespondentThe State of Raj. and ors.
DispositionPetition dismissed
Cases Referred and Purshottam Lal and Ors. v. State of Rajasthan and Ors.
Excerpt:
.....board was not a necessary party but gram sabha was a necessary party--prayer for impleading gramsabha as a party cannot be allowed after raising of preliminary objection.;the petitioners have, amongst others, sought the relief that village padola should not be declared as gramdan village. in order to entitle them to this relief, in my opinion, gram sabha is a necessary party. having regard to the relief asked for by the petitioners, gramdan board cannot be said to be a necessary party, for, it has got nothing to do with the declaration of the gramdan village. gram sabha was a necessary party to the writ petition and it having not been made party, the writ petition cannot be said to be properly constituted and further that in the facts and circumstances of this case, the prayer for..........state of rajasthan, chairman, rajasthan gramdan board, the collector, banswara and the chairman gramsabha, padola, tehsil bagidora, district banswara have been impleaded as respondents no. 1,2 3 and 4 respectvely the petitioners have tought that the declaration (annexure-1), the order annexure-2) of conformation of the chairman of the rajasthan gramdan board and the declaration (annexure b) of the collector, banswira may be quashed. the case of the petitioners is that the objection was filed before the chairman of the rajasthan gramdan board. rajasthan relating to village padola under section 9 of the rajasthan gramdan act (act no xii of 1971), hereinafter referred to as the 'act',) that no declaration given by any person under section 9 of the act was found on the file, that no.....
Judgment:

S.K. Mal Lodha, J.

1. These three writ petitions, under Articles 226 and 226 of the Constitution, raise common questions for determination and are, therefore, disposed of by a common order.

2. It will be convenient lo notice the facts leading to the filing of S.B Civil Writ Petition No. 469/19/9.

3. Ten petitioners have filed this joint writ petition. The State of Rajasthan, Chairman, Rajasthan Gramdan Board, the Collector, Banswara and the Chairman Gramsabha, Padola, Tehsil Bagidora, District Banswara have been impleaded as respondents No. 1,2 3 and 4 respectvely The petitioners have tought that the declaration (Annexure-1), the order Annexure-2) of conformation of the Chairman of the Rajasthan Gramdan Board and the declaration (Annexure B) of the Collector, Banswira may be quashed. The case of the petitioners is that the objection was filed before the Chairman of the Rajasthan Gramdan Board. Rajasthan relating to village Padola under Section 9 of the Rajasthan Gramdan Act (Act No XII of 1971), hereinafter referred to as the 'Act',) that no declaration given by any person under Section 9 of the Act was found on the file, that no proper publication and investigation as required under Section 19 of the Act read with rr 7 and 8 of the Rajasthan Gramdan Rules, 1971 (for short 'the Rules' hereafter) were made by the Chairman, and that after receipt of the report from the Chairman, the Collector declared village Padola of Tehsil Bagidora vide order (Anx 8) dated July 18,1978 as Gramdan village. According to the petitioners, the declaration of the village Padola as Gramdan village was mads in disregard of Sections 8,10 and 11 of the Act and the Rules made thereunder. The petitioners have, therefore, prayed for the reliefs mentioned above.

4. A show cause notice was issued to the respondents. In pursuance of which, reply to it was filed on behalf of respondents No. along with documents. In the reply, respondent No. 2 has raised the following preliminary objections

(1) that the writ petition is belated, for, declaration was made on July 18,1978 and it was filed on February 24,979.

(8) that the writ petition is not properly constituted

(4) that the questions raised by the petitioners are complicated, which cannot be conveniently examined in the writ proceeings and,

(4) that the petitioners are guilty of making false statements in the writ petition and as they have not come with clean hands, it is liable to be dismissed :

As regards merits of the writ petition, it was stated that the declaration of the village Padola as Gramdan village was made after following the procedure are laid down in Sections. 8,10 and 11 of the Act and the Rules made thereunder and, therefore, it was prayed in the reply that the writ petition should be dismissed.

5. When the case came up for admission on January 29, 1980 Mr. M. Mridul, learned Counsel for respondent No. 2 raised the following preliminary objections :

(1) that Gramdan Board and Gram Sabha are necessary parties to the writ petition and in their absence, the writ petition should fail ;

(2) that a joint writ petition on behalf of the petitioners is not maintainable ; and

(3) that the writ petition involves complicated and disputed questions of fact, which cannot conveniently be gone into in the writ proceedings and, therefore, it should not be entertained.

Arguments were heard on the preliminary objections and the cause was ordered to be put up for admission on February 1, 1930 as agreed to by the learned Counsel. On February 1, 1960, it was ordered to be put up for admission on February 2, 1980. It appears that on January 30,1980, learned Counsel for the petitioners moved an application stating inter alia, (1) that to avoid the controversy and in the interest of justice, the petitioners may be allowed to add Gramdan Board, Bhoodan Board and Gramsabha as parties to the writ petition, (2) that the writ petition can be decided on the facts on record and to avoid the controversy, matters relating to the authorisation of Ambalal Samadiya, matters relating to mis-representation made by Ambalal Samadiya and others 'will not be pressed for the purpose of arguments' and (3) that the petitioners have the same cause of action based on same grounds and based on same facts.

6. Arguments on the application as well as the writ petition were heard on February 21 1980. I propose to deal with the preliminary objections first.

7. The first preliminary objection raised by Mr. M. Mridul, learned Counsel for respondent No.2 is that the Gramdan Board & the Gram Sabha are necessary parties to the writ petition and as they have not been impleaded as parties in it the writ petition should fail. It may be mentioned here that in the reply filed on behalf of respondent No 2, specific objection in this regard was not taken & what was mentioned was that the writ petition is not properly constituted and is, therefore, liable to be dismissed on this ground. Annexure 8 dated July 18,1978 is the declaration made by Collector, Banswara, by which, village Padola was declared as the Gramdan village. Chapter II of the Act deals with the Gramdan Board Section 5 thereof lays down that the Bhoodan Board shall be the Rajasthan Gramdan Board, (hereinafter referred to as the 'Gramdan Board')' the Gramdan Board is to perform these duties which have been assigned to it under the Act. Section 6 makes mentioned of the duties of the Gramdan Board. The Bhoodan Board means the Rajasthan Bhoodan Yagna Board established under Section 3 of the Rajasthan Bhoodad Yagna Act, 1954. Chapter IV of the act deals with constitution and working of Gram Sabha. Section 13 provides for constitution of Gram Sabha. It lays down that with effect from the date specified in the notification issued under sub Section (1) of Section 11 declaring a village to be a Gramdan village all persons whose names are included in the register referred to in Section 14 shall be deemed to constitute a Gram Sabha for the Gramdan village and the Gram Sabha shall have all such powers and discharge all such functions as are vested in, or conferred on it by or under the Act or otherwise. Sub-section (2) of Sec 13 mentions that the Gramsabha so established shall be a body corporate by the name of 'Gram Sabha of....' having perpetual succession and a common seal. Section 14 provides for register of members. According to Section 14, electoral roll of the Rajasthan Legislative Assembly prepared under the provisions of the Representation of People Act, 1951, for such part of the constituency of the Assembly as is included in the Gramdan village shall be deemed to be the register of members of the Gram Sabha for such Gramdan village, 'ill a register is prepared in accordance with Sub-section (2) and that such register shall also include names of the persons who have donated their lands by way of Gramdan but are not residing in the Gramdan villages, A reading of Sections 14 and 15 together shows that after the issues of the notification under Sub-section(1) of Section 11 declaring the village Padol to be a Gramdan village, theGramsabha for the Gramdan village Padola had come into existence, because the words used in Section 33(1) 'all persons whose names are included in the register referred to in Section 14 shall be deemed to constitute a Gram Sabha for the Gramdan village'. So also, according to Section 14, the names of those persons, whose names are mentioned in the electoral roll for such part of the constituency of the Assembly as was included in the Gramdan village because members of the Gram Sabha for this Gramdan village. The petitioners have, amongst others, sought the relief that village Padola should not be declared as Gramdan village. In order to entitle them to this relief, in my opinion, Gramsabha is a necessary party. Having regard to the relief asked for by the petitioners, Gramdan Board cannot be said to be a necessary party, for, it has got nothing to do with the declaration of the Gramdan village. Learned Counsel for the petitioners submitted that the Chairman Rajasthan Gramdan Board and the Chairman Gram Sabha, Padola have been impleaded as parties and in these circumstances the writ petition cannot to be b(sic)d, for non joinder of Aramdan Board and Gram Sabha. I have held that so far as Gramdan Board is concerned, it is not a necessary party but so far as Gram Sabha is concerned, it necessary party in so far as the relief for quashing declaration of village Padola as Gramdan Village is concerred. The Chairman Gramsabha Padola is only an office bearer of the Gram Sabha In these circumstances, joining of Chairman Gramsabha as party to the writ petition cannot be takes to be joinder of the Gram Sabha. This view of mine stands supported from the decision reported in Ranjeetmsl vs G.M.N. Rly AIR 1977 SC 1702 This takes me to the consideration of the praver of the learned Counsel for the petitioners that the Gram Sabha Pothiwada, Tehsii Bagidora, District Banswara may now be impleaded as party to the writ petition The declaration was made on July 18, 1978. The writ petition was fi1ed on Feb. 24,1979. The objection that the writ petition was not properly constituted was taken in the reply, which was presented on September. 1(sic), 1979. The preliminary objection to this effect was raised on January 29,1980 I was on January 30, 1980 that an application was moved that though the Gram Sabha is not a necessary party but to avoid the controversy in the interest of justice, it may also be impleaded as party to the writ petition. Having regard to this fact, it will not be proper for me to exercise the discretion in favour of the petitioner to accept the prayer of the learned Counsel for the petitioner for impleading Gram Sabha as a party to the writ petition In Ranjeet Mal's case AIR 1977 SC 1702, General Manager Northern Railway, New Delhi was made party to the writ petition, an objection was taken that Union of India is a necessary party to An application was moved for impleading the UOI as a party While affirming Ranjeet Mai v. General Manager, Northern Railway 1974 RLW 415, their Lordships of the Supreme Court held that the High Court was justified in rejecting the petition because the Union of India was not made party to the proceedings. It follows, therefore, that Gram Sabha was a necessary party to the writ petition and it having not been made party, the writ petition cannot be said to be properly constiiuted and further that in the facts and circumstances of this case, the prayer for impleading Gram Sabha as a party after raising of the preliminary objection about its non joinder cannot be granted The first preliminary objection, therefore prevails to the extent stated above.

8. The second preliminary objection raised by respondent No. 2 is that joint writ petition on behalf of the petitioners is njt maintainable. The petitioners are residents of village Padola. One of the petitioners, Ka(sic)ji has stated in his affidavit that he is one of the petitioners and has been authorised by all the petitioners to sign and verify the pleadings relating to the case. Sub-rule (4) of Rule 375 of the Rajasthan High Court Rules provides that an application by more than one person shall not be entertained except when the relief claimed is f(sic)ded on the same cause of action. Learned Counsel for the petitioners urged that the relief claimed that village Padola should not be declared as a Gramdan village, is founded on the same cause of action and as such this joint writ petition is maintainable. Io Chandanmal Nauratmal v. State of Rajasthan 1967 RLW 144 a question arose whether joint petition filed by forty four petitioners for retraining the respondents from enforcing the provisions of the Rajasthan Agricultural Produce Markets Act, 1961, the Rules made thereunder and the bye-laws made by the Krishi Upaj Mandi Samiti, was not maintainable in view of Rule 375 of the Rajasthan High Court Rules, on the ground that the relief claimed by the petitioners could not be said to be founded on the same cause of action. It was observed as under :

It is true that the petitioners are challenging the validity of the same law in the same manner and it may be assumed that they are affected in the same way. But all the same this is not sufficient for holding that they have the same rights which are allegedly infringed by this law. In other words, the injury with which they are threatened or have already sufficient cannot be said to be the same.

9. In Sheo Karan v. State of Rajasthan 1977 RLW 364, a preliminary objection was raised that a joint petition by eight petitioners was not maintainable in view of Rule 375 of the Rajasthan High Court Rules. In that case, the petitioners prayed that the order of the Minister may be quashed on the ground that the orders of the Ministers were made malafide without any jurisdiction and without hearing the petitioners. The learned Judge held that the rights of all the petitioners were different and that they were affected in different way, even though the order was common In the case before me, ten petitioners are residents of village Padola and they have prayed that the declaration of village Padola as the Gramdan village may be quashed. In my opinion, even though they have identical cause of action in regard to declaration of the village Padola as Gramdan village still cannot be said that tbey have same cause of action within the meaning of r 375 of the Rajasthan High Court Rules. In this view of the matter, this writ petition by ten petitioners, in my opinion, is not maintainable in view of Rule 375 of the Rajasthan High Court Rules It may specifically be mentioned that learned Counsel for the petitioners at any point of time did not submit that this writ petition, may be treated on behalf of one of the petitioners.

10. Now, I proceed to deal with the third preliminary objection raised by the learned Counsel for respondent No, 2 to the effect that the writ petition involves complicated and disputed questions of fact which cannot conveniently be gone into in these proceedings It will be necessary here to analyse the averments relating to facts made in the writ petition. The petitioners have stated in ground No. (a) that they have not signed the declaration, though their names have been mentioned in the list of the persons, who have made declaration in accordance with the provisions of Section 8 of the Act. They have also disputed various entries made in the declaration Annexure-1 The petitioners have stated that Roopla son of Shri Moghla resident of village Sharda informed them that he had never signed any declaration relating to Gramdan. In ground No, (c) it was stated that Chamna s/o Badiya, Lalji s/o Somaniya, Lawaji s/o Gamaniya, Velhi s/o Baju, Baju son of Makaniya and Thanwara s/o Makaniya told them that Ambaram, Ambalal, Samadiya and others had obtained their thumb impressions by giving a false impression that the thumb impressions and signatures are being obtained for the purpose of allotment of land and distribution of Takavi. Annexure. IA relates to the declaration of the fields of Ghair Khatedar tenants but no permission was obtained from the Collector. They have cited various instances in this connection. A perusal of the writ petition shows that averments relating to certain facts in respect of the declaration Annexure-I, obtaining of permission from the Collector before declaration misrepresentation by one Ambalal Samadiya, publication etc. have been made. These averments have been denied by respondent No. 2 in the reply. After the objection being raised, learned Counsel appearing for the petitioners stated in writing in his application that the matters relating to the authorisation of Ambalal Samadiya and matters relating to misrepresentation made by him and others 'will not be pressed for the purpose of arguments'. Having considered the averments made in grounds a,b,d,e,f,g,k,l,m,o and p and the replies thereto, I am opinion that this writ petition raises complicated and disputed questions of facts, which cannot conveniently be investigated in these proceedings on the basis of the material that has been placed on record by the petitioners aLd respondent No. 2. It is well settled by catena of cases of the Supreme Court and this Court that where the basic facts are disputed and complicated questions of facts and law depending an evidence are involved, the writ Court is not the proper forum for seeking relief and the right course for the High Court in proceeding under Article 226 is to dismiss the petition on the preliminary grounds without entering upon merits of the case. In DLF Housing Const. Ltd. v. Delhi Mplty : AIR1975SC386 , it was observed as under :

In the absence of firm and adequate factual foundation, it is hazardous to embark upon a determination of the points involved.

Same is the view taken in Union of India v. Khas Kranpura Colliery Co Ltd. : [1968]3SCR784 , Rabindra Nath Sons and Ors. v. Union of India and Ors. : [1970]2SCR697 , Duiga Prasad v. The Chief Controller of Imports and Exports and Ors. : [1969]2SCR861 , Trilokchand Motichand v. Commissioner of Sales Tax Bumbay (g), Kamini Kumar Das Choudhury v. State of West Bengal and Ors. : [1973]1SCR718 and Purshottam Lal and Ors. v. State of Rajasthan and Ors. 1972 WLN 702. I am, therefore, of the opinion that for determination of the questions relating to facts raised by the learned Counsel for the petitioners in this writ petition, and which have been disputed, cannot be determined in the writ proceedings under Articles 226 of the Constitution and it will not be a sound exercise of discretion to entertain the writ petition.

11. Learned Counsel for the petitioner pressed for my consideration that there was non-compliance of Sub Sections 8, 10 and 11 of the Act and Rules. 3, 4, 5, 6, 7, 8 and 10 of the Rules. It may be mentioned that the petitioners have filed certified copies of Declaration (Annexure-1), Declaration of the Ghair Khatedars (Annexure-IA), Report of Chairman (Ancexure.2), Certificate dated Feb. 13, 1978 (Annexure-4), Certificate dated Feb 13,1978 (Annexure 6), Receipt of declaration dated Feb 13,1978 (Annex ire-7) and Order of the Collector Banswara dated July 18, 1978 (Annexure-8) The questions whether there was strict compliance of Sub Section 8,9,10 and 11 of the Act wnether the Order (Annexure 8) declaring the village Padola as Gramdan village was passed after complying with the requirements of the aforesaid Sections and the Rules made there under depend on determination of certain basic facts. The facts, which the petitioners have stated in the writ petition in regard to them have been controverted by respondent No. 2, and, therefore, a proper finding cannot be arrived at on the basis of the material on record in regard to the question whether there was compliance of Sub Section 8,9,10 and 11 of the Act and the Rules made thereunder.

12. In SB Civil Writ Petition No. 475 of 1979, besides the points which have been dealt herein above, respondent No. 2 has stated in reply that petitioners No. 1,2,4,5,6,7 and 8 have gone to the extent of forging signatures of person shown as petitioner No. 3 Gautam, for the person named Gautam had died as far back as on March 25,1973 as will appear from the Certificate dated 26-7-79 Annexure Rule 2/1. Reply on behalf of respondent No. 2 was filed on Sept. 13,1979. On January 28,1980, an application was moved on behalf of petitioners that the name of Gautam s/o Dhira may be deleted from array of the petitioners on the ground that Gautam s/o Dhira seems to be a different person than Gautam s/o Dhira who has been referred to in Annexure Rule-2/-. The power which was filed by the learned Counsel for the petitioner, undoubtedly, contains the thumb impression of Gautam s/o Dhira as one of the petitioners Petitioner No 3 Gautam s/o Dhira is resident of village Pothiwada Tehsil Bagidora District Banswara. In view of the conclusion to which I have arrived at herein above it is not necessary to record a specific finding whether petitioner No. 3 Gautam s/o Dhira had died on March 2 ,1979 prior to the filing of the writ petition. The other arguments raised in this writ petition are very those which were raised in SB. Civil Writ Petition No. 469 of 1979

13. In SB. Civil Writ Petition No 574 of 1979, on behalf of respondent No, 2, it is stated in the reply to the writ petition that many amongst those who are shown as petitioners are not even alive and that the names of many have been set out twice over whereas the name of one petitioner has been set out thrice, and that rest 35 have rot authorised the filing of this writ petition. It has also been stated that two of the petitioners are not residents of village itself and that five of the petitioners are not khatedars and, therefore, they are not aggrieved persons and seventeen of those who are arrayed as petitioners are not signatories to the declaration. Respondent No. 2 has filed affidavits of 35 persons whose names have been mentioned as petitioners marked as Annexures Rule/2/I to 2/35, it was therefore, mentioned in the reply that only 81 persons, out of 119 named as petitioners remain and at their instance, the writ petition is not maintainable as they have shown more persons as co-petitioners, has not filed the petition. On January 19,1978 affidavits marked as Annexure 19 to 40 were filed. In the affidavits which have been filed on behalf of respondents No 2 marked as Annexures Rule- /I to 2/35, it has been stated that the deponens have not filed the writ petition in the High Court for setting aside the declaration made in respect of Gram Kajliya, that they never authorised any person to file the writ petition on their behalf, that Khema s/o Navla Bharta s/o Gulabai, Marji s/o Jawta, Laba s/o Kalat Marji s/o Hamta, Wala s/o Kala and Babriya s/o Fatiya had died prior to the filing of the writ petition and that they had authorised Ambalal Samadiy a to present the declaration before the Gramdan Board. In the affidavits which have been filed on behalf of the petitioners marked as Annexures 19 to 48, the deponents have stated that the power of attorney which was given for filing the writ petition contain their (sic)graltre/thumb impression, that they did not affix their thumb impressfor on the declaration after understanding it and the entire proceedings were done by practising fraud, that Ambalal Samadiya was not authorised to submit the declaration and that they did not go before Yashpal Gupta Advocate for swearing in the affidavits. The averments made in the affidavits filed on behalf of respordent No. 2 to the effect that the persons mentioned therein have died prior to the presentation of the writ petition have not been controverted. The facts mentioned in para A/1 of the reply of respondent No. 2 and affidavit in Rule. 2/1 to Rule. 2/35 filed in support of the contents of this para and the affidavits which have been filed on behalf of petitioners marked as Annexures (sic)9 to 48 themselves raise serious questions of fact, which cannot be properly determined on the basis of the material on record for coming to the conclusion that the writ petition was properly constituted.

14. In view of the discussion made here-above, it follows : (1) that Gram Sabha is a necessary party in each of these three joint writ petitions (2) that these three joint writ petitions on behalf of the petitioners are not maintainable and (3) that these three writ petitions involve complicated and disputed questions of fact, which cannot conveniently be gone into in the proceedings under Article 226 of the Constitution. The preliminary objections raised by respondent No. 2 to the extent mentioned herein above prevail and the writ petitions are not maintainabls.

15. The result is that these writ petitions are dismissed. There will be no order as to costs.


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