MADAN, J. - (1.) IN this writ petition filed under Art. 226 of the Constitution of INdia the petitioner who is member of the Schedule Tribe and who has got no house in village Mandawari, Tehsil Lalsoth, District Dausa, has sought the relief of writ of mandamus for allotment of land measuring 100' x 100' which has wrongly Been allotted to respondent No. 4, the then Sarpanch and Rambilas respondent No. 5 with the prayer to quash the allotment of land made in favour of respondent No. 4 and has also challenged the decision of village panchayat dated 5. 9. 1977 and the sale- letter dated 11. 6. 1968 vide Ex. 1 and 2 respectively. The petitioner has further sought the relief of writ of prohibition on the ground that the petitioner who is in possession of 100' x 100' of land for a very long time, shall not be dispossessed from the said land. The petitioner has further sought the relief of any other appropriate writ, direction or order which may be issued by this court by setting aside the impugned order, dated 24. 3. 1984 passed by learned Additional Collector Dausa with a direction that the petitioner be held entitled to the allotment of the land in accordance with the provisions of Rule 66 of the Panchayat & Nyaya Panchayat (General) Rules, 1961.
(2.) THE facts giving rise to the filing of this writ petition briefly stated, are that the petitioner is a resident of village Mandawari Tehsil Lalsoth, District Dausa and is by caste Meena and as such belongs to Scheduled Tribe of Rajasthan State. It has been contended in the writ petition that the petitioner has got no residential house in the village and as such gram-panchayat Mandawari has been exploiting the petitioner with a view to deprive him of the possession of the land in question. THE aforesaid piece of land of which the petitioner is claiming possession is situated in western side of land of Nemichand Jain and at some distance on the same track, Rambilas respondent No. 5 is having his house and in the same vicinity one Munsi Lal Soni son of Narain Soni Ex Sarpanch of village Mandawari is also having his land. It has been contended on behalf of the petitioner that Munsi Lal Soni, respondent No. 5, was holding his post as Sarpanch in the years 1974-77 and during the relevant period, the land measuring 173' x 35' x 41' total measuring 6574 sq. feet at the rate 4 NP per squire feet was allotted to the petitioner and the petitioner had paid in all Rs. 2621. 96 Tor the allotment of his said land to the gram-panchayat, Mandawari. It has been further stated by the petitioner that respondent No. 4 has got three double storied houses and two shops in village Mandawari and that these houses and shops were also existing before allotment of disputed land to the petitioner. It has been further contended that since the petitioner is from Scheduled Tribe having no house in the village, had requested the gram-panchayat to allot a piece of land measuring 100' x 100' on the same basis as allotted to respondent No. 4, the then Sarpanch and Rambilas respondent No. 5 but his application was rejected. On number of occasions the petitioner had requested the gram-panchayat to supply him the copy of the rejection order but the same has not been given to him and as such he had no alternative except to file a revision petition before the Collector. THE petitioner has further alleged discrimination by the authorities qua other applicants as referred to above since on the one hand it is said that the land is required to be given to the petitioner by observing formula of rules 65 and 66 of the Rules of 1961 to Munsi Lal Sarpanch as well as Rambilas, respondent No. 5 who were allotted land in terms of allotment order, dated 6. 5. 1975 by gram- panchayat, Mandawari (total land given to him 1350 sq. feet @ 4 NP per squire feet) and on similar basis gram-panchayat had allotted land to Munsi Lal Soni, respondent No. 4 vide order Ex. 3, but the petitioner was left out for allotment of the land in question. It has been further contended by the petitioner that the gram panchayat had rejected the petitioner's application on 30. 7. 1977. Subsequently the petitioner had sent a notice for demand of justice to respondent Nos. 1 to 3 on 19. 4. 1984 vide Ex. 6 but to no effect. THE petitioner has challenged the impugned orders of gram-panchayat and Additional Collector, Dausa dated 24. 3. 84 which are illegal, unjustified, discriminatory and perverse on the ground that the impugned orders are contrary to the record of the case and that since the case of the petitioner for allotment of land cannot be distinguished with the case of Ex Sarpanch Munsi Lal, respondent No. 4 and in view of the applicability of Rule 266 clause (c) which is applicable to the petitioner, the land could be allotted to the petitioner on the basis of private negotiations whereas the land ought not to have been allotted to respondent No. 4 Munsi Lal under Rule 262 of the Rules of 1961 and that since the petitioner does not have residential house in his own name in village Mandawari, due consideration under Rule 266 was required to be given in the matter. During the course of hearing it was brought to the notice of this court by the learned counsel for the respondents that from the perusal of Patta dated 6. 5. 75 it is clearly apparent that the land was given to Rambilas, respondent No. 5 (deleted as a party to writ petition vide order of this court dated 5. 4. 89 ). It has been contended that as Rambilas respondent No. 5 has got six houses and seven shops in the village, he should not have been allotted any land and since he is not an agriculturist, but is running a kirana shop on account of perverse findings, the petitioner has been discriminated with respondent No. 5 inasmuch as the land of respondent No. 5 and that of the petitioner is situated in the same vicinity and if rule 266 is made applicable to respondent No. 5, then the petitioner should not have been discriminated without any nexus for valid reason. It has been further alleged that due to political rivalry and since the petitioner has been discriminated qua above named individuals and as such fundamental rights of the petitioner guaranteed under Arts. 14 & 16 of the Constitution of India have been violated. No reasons have been assigned as to why the allotment of land was made in favour of Munsi Lal Ex Sarpanch who has got number of houses and shops in the village and that this is a case of highhandedness and abuse of power and position due to which the petitioner has been discriminated quo respondent Nos. 4 and 5. It has been further contended that special provision has been made under the Panchayat Rules for giving due consideration to the oppressed class and that the petitioner is falling within the category of Scheduled Tribe. Shri Surana, learned counsel for the petitioner, has placed reliance upon the resolution, dated 6. 9. 77 passed by village panchayat Mandawari on the basis of which the petitioner had applied for allotment of land for setting up an industry. Panchayat comprising 7 members who were present in the meeting of the said date, unanimously took a decision that the dispute concerning allotment of land to the petitioner be referred to the gram sabha for its decision. On 20. 9. 1977 a joint meeting of gram sabha and gram-panchayat took place wherein the resolution dated 6,9. 77 was confirmed on 27. 9. 77. The allotment of land as claimed by the petitioner was rejected and the resolution passed by gram sabha rejecting the allotment of land, was confirmed. Against this decision of gramsabha the petitioner preferred a revision before the Addl. Collector and Magistrate 1st Class, Dausa. After taking into consideration the totality of facts and circumstances of the case and also the relevant rules concerning allotment of land, learned Additional Collector came to the conclusion that without resort to the provisions of law and the rules, petitioner forcibly and unlawfully wishes to grab the piece of land which is a valuable piece of land being very close to the main road and as such the petitioner is not entitled for allotment of the land and consequently there being no error apparent on the face of the decision of gram sabha and gram panchayat the revision petition is not maintainable and was consequently dismissed by the Addl. Collector vide his order dated 2. 3. 1984. Being aggrieved by the order of Addl. Collector dated 6. 7. 78 the petitioner preferred an appeal before Revenue Appellate Authority, Jaipur, and the Appellate Authority after hearing the petitioner rejected the appeal vide order, dated 11. 11. 86 which fact has been suppressed by the petitioner in this writ petition and which has been brought-forth to the notice of this court by the learned counsel for respondent No. 3, gram panchayat and this fact is also apparent from the reply filed on behalf of respondent No. 3. On 26. 7. |1989 this writ petition had come up for hearing before learned Single Judge of this court when the writ petition was admitted for hearing and notices were issued to the respective parties to the petition and the interim order dated 12. 6. 86 was confirmed with the direction that the same shall remain operative till the final hearing and disposal of the writ petition. Subsequently notices were served on all the respondents who have since filed their reply to the writ petition and it is under these circumstances that the matter has come up for final hearing and disposal before this court. During the course of hearing on 6. 9. 94 a question had arisen for consideration of this court as to who is in actual possession of plot Nos. 1, 2 and 3, i. e. , residential plots and shops bearing Nos. 1 to 5 in Khasra No. 588/1 in village Mandawari, Tehsil Lalsoth, District Dausa and a local Commissioner was appointed by this court to inspect the site on 6. 9. 94 itself and furnish the report to the court by 7. 9. 94. Shri Rajendra Kumar Sharma an Advocate of this court who was appointed as Commissioner, inspected the site on 7. 9. 94 and submitted his report which has since been taken on record of this court.
(3.) LEARNED counsel for the parties have been heard at length by this court and they have also filed their written submissions. On behalf of respondent No. 3 it has been specifically contended that the land measuring 5 bighas 3 biswas in Khasra No. 588 of which the land in dispute forms a part, has been set apart of extension of abadi land by the Collector, Jaipur and mutation No. 96 dated 7. 12. 70 was opened by the Tehsildar Lalsoth. It has been further contended that the land in dispute is within the close proximity of Bus-stand of village Mandawari and is a very valuable piece of land and that the petitioner had encroached upon the said land by taking unlawful possession over the same and hence in absence of legal right, the petitioner is not entitled to any relief by this court. It has been further contended by respondent No. 3 that the petitioner was evicted by the authorities after following due process of law and that the petitioner being a trespasser has rightly been evicted in accordance with law on 4. 10. 77. It has been further contended that after setting apart the land in dispute for extension of Abadi the gram- panchayat had prepared the plan for residential purposes as well as for shops and had issued public notice for auction of the plots on 28. 9. 77 stating therein that the said plots will be auctioned on 17. 10. 77 between 10. 00 a. m. to 4. 00 p. m. and that the petitioner had participated in the said auction. Notwithstanding the fact that the petitioner gave a highest bid of Rs. 6200/- for allotment of plot No. l but since he had not deposited 1/4 of the bid amount, auction in favour of the petitioner was cancelled after due notice to him and hence the writ petition is not maintainable for the reason of conduct of the petitioner. It is only after the eviction of the petitioner that he had filed an application for allotment of land for setting up an industry before the Collector, Jaipur on 13. 6. 1978 which was rejected by the learned Collector after due verification on 6. 7. 78 on the ground that the possession of the petitioner over the land in question had not been proved and that the allotment cannot be made in favour of the petitioner and if inspite of this the petitioner wanted allotment of the land for setting up an industry he has to file a separate application which may be considered in accordance with law. ;