BHUVANESHWARI SINGH Vs. GOVERNMENT OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) In the intra-court appeal, the petitioner-appellant (for short 'appellant'), has impeached the judgment and order dated 17th May, 2013, passed by the learned Single Judge, rejecting the assailment to the order dated 9.12.2009, and map as well as list of the even date, and thus, declining the relief as prayed for under the relief clause of the writ application. In order to appreciate the controversy, the indispensable essential material facts need to be outlined first. The subject matter of the impugned communication dated 9th December, 2009, is the Vidhan Sabha Nagar Residential Scheme (hereinafter referred to as the 'Scheme', for short) and Sanyukta Grah Nirman Sahakan Samiti (hereinafter referred to as the 'Samiti', for short). The impugned communication reflects the informations collected by the Liquidator appointed by the Samiti from time to time from the allottees and submitted to Jaipur Development Authority (for short the 'JDA'), in the Scheme including the ownership documents, which necessitated revision of layout plan of the Scheme by the JDA Sector Road in compliance with the parameters of 60% or less plotted area in the Scheme and 40% or more for road and facilities, resulting into reduction in plot sizes on revision of some plots. The appellant aggrieved of the Conclusions arrived at by the Deputy Registrar, Cooperative Societies and conveyed to the Deputy Commissioner, Zone-8, JDA, vide communication dated 9th December, 2009, assailed the same as an arbitrary and illegal action with a mala fide intention to regularize the plots to the allottees under Section 83(8)(b) of the JDA Act, 1982, in collusion with the Officers of the Samiti. The appellant alleged arbitrary increase in the plots' size of various Officers of the JDA, Cooperative Department and relatives of the Liquidator as well as erstwhile office bearers of the Samiti, prior to the appointment of the Administrator under order dated 20th June, 1995. The competence of the Deputy Registrar, to forward the impugned communication dated 9th December, 2009, to the Deputy Commissioner, Zone-8, JDA, was also questioned since this action could be undertaken by the Liquidator alone. The impugned communication dated 9th December, 2009, assailed for want of jurisdiction, has also been questioned for factual illegalities in view of the enhancement of number of plots resulting into reduction of plot areas of the appellant and others and therefore, prayed for annulment of the impugned communication dated 9th December, 2009.

(2.) In response to the notice of the writ application, the respondents/non-appellants (for short the 'respondents'), submitted their counter affidavit questioning the very maintainability of the writ proceedings so much so that the controversy raised, involved seriously disputed complex questions of facts with reference to the number of the members of the Samiti, and further, availability of the alternative remedy under Section 58 of the Rajasthan Cooperative Societies Act, 2001 (hereinafter referred to as the 'Act of 2001', for short), was also pleaded. Further, since allegations of mala fide were levelled against the Administrator of the Samiti, the Official Liquidator and also against the erstwhile office bearers of the Samiti, before the appointment of the Administrator, but none was impleaded as party eo-nominee to the writ proceedings. Moreover, since the revised layout plan of the Scheme of the Samiti was approved by the JDA vide order dated 7th January, 2010, which was not under challenge, therefore, the writ proceedings were liable to be dismissed on that count alone. Initiation of the litigation is stated to be a proxy litigation by one Bahadur Singh Meena, who claimed himself to be the President of Samiti, who filed a Revision Petition Number 1/2010 before the Deputy Registrar, Cooperative Societies, unsuccessfully challenging the impugned communication dated 9th December, 2009 and documentary evidence in this regard was also brought on record, questioning the bona fide. Initiation of the writ proceedings was stated to be a gross abuse of process of court. The allegations of increasing in the number of plots were repelled for facts without any factual foundation. The writ proceedings were also contested on merits.

(3.) The learned Single Judge having heard the learned counsel for the parties and taking into consideration the materials available on record as well as pleadings of the parties, concluded that the writ proceedings did raise seriously disputed complex questions of facts with reference to the members of the Samiti and title with reference to the allotment of the plots in the Scheme as well as to the layout plan of the Scheme. The question of facts could only be determined by leading evidence and therefore, declined to exercise discretionary jurisdiction under Art. 226 of the Constitution of India.