1994 Supreme(Raj) 1011
RAJASTHAN HIGH COURT
B.J.Shethna, J.
Tulsi Ram - Appellant
Versus
State of Rajasthan & ors. - Respondent
S.B. Civil Writ Petition No. 795 of 1985.
Decided On : 17-12-1994
The scope of Article 227 of the Constitution is very narrow and the court can only interfere if there is an error of jurisdiction resulting in miscarriage of justice.
Headnote:
ARTICLE 227 - RAJASTHAN MUNICIPALITIES ACT, 1959 - SECTION 285(2) - SCOPE OF ARTICLE 227 PETITION - COURT'S DISCRETION TO INTERFERE - SALE DEED EXECUTION AFTER MULTIPLE ORDERS AGAINST PETITIONER - DISHONEST CONDUCT - PRIVATE DISPUTE - PENDING CIVIL SUIT - NO BAR TO AUTHORITY'S INTERFERENCE - REFERENCE UNDER SECTION 80 - NOT RAISED BEFORE AUTHORITY - CANNOT BE RAISED IN ARTICLE 227 PETITION.
Fact of the Case:
Petitioner challenged an order passed by the Dy. Secretary of the State Government in a revision application remanded by the court in an earlier writ petition. The petitioner had been denied sanction for land by the Collector, which was upheld in revision. Despite this, the Municipal Board passed a resolution confirming an auction of the disputed land, which was set aside by the Collector. The petitioner ultimately succeeded in getting the sale deed executed, despite orders against him. He then filed a writ petition challenging the Dy. Secretary's order.
Finding of the Court:
The court held that the petition was not maintainable under Article 226 of the Constitution but was strictly under Article 227, which has a very narrow scope. It found that the Dy. Secretary had the power to pass the order under section 285(2) of the Rajasthan Municipalities Act, 1959, and that the petitioner's conduct was dishonest. The court also held that the pending civil suit between the parties did not bar the authority from interfering and that the petitioner could not raise for the first time in the petition an objection to the reference made under section 80 of the Act.
Issues: 1. Whether the court should exercise its discretionary power under Article 226 of the Constitution in favor of the petitioner. 2. Whether the Dy. Secretary had the power to pass the order under section 285(2) of the Rajasthan Municipalities Act, 1959. 3. Whether the petitioner's conduct was dishonest. 4. Whether the pending civil suit between the parties barred the authority from interfering. 5. Whether the petitioner could raise for the first time in the petition an objection to the reference made under section 80 of the Act.
Ratio Decidendi: 1. Article 227 of the Constitution has a very narrow scope and the court can only interfere if there is an error of jurisdiction resulting in miscarriage of justice. 2. The Dy. Secretary had the power to pass the order under section 285(2) of the Rajasthan Municipalities Act, 1959, as the petitioner had ultimately succeeded in getting the sale deed executed despite orders against him. 3. The petitioner's conduct was dishonest as he had obtained the sale deed despite multiple orders against him. 4. The pending civil suit between the parties did not bar the authority from interfering as the authority had the power to pass the order under section 285(2) of the Act. 5. The petitioner could not raise for the first time in the petition an objection to the reference made under section 80 of the Act as he had not raised it before the authority in revision.
Final Decision: The petition was dismissed with costs.
JUDGMENT
1. Should this Court exercise its discretionary power under Article 226 of the Constitution of India in favour of persons like the petitioner? That is the question to be answered in this petition which is filed under Article 226 of the Constitution of India. Though the label of Article 226 of the Constitution is given to this petition, but this petition is strictly under Article 227 of the Constitution and not under Article 226. The scope of the petition under Article 227 of the Constitution is very very narrow and limited. Unless and until error of jurisdiction is committed which resulted into miscarriage of justice then and then only this Court can interfere otherwise not.
2. In this petition, the petitioner has challenged the order (Annex.4) passed by the Dy. Secretary of the State Government on 4.4.1985 in revision application which was remanded by this Court in earlier writ petition filed by the petitioner by its order dated 27.7.1983.
3. There is a chequered history of the litigation in this matter. Initially, the Collector refused to sanction the land by his order dated 2.9.1966 (Annex.1) against which revision was filed before the Revenue Authority which confirmed the order of the Collector on 15.11.1967. It was not carried further and thus it had become final. Surprisingly, again respondent no.4 passed a Resolution on 15.5.1968 which was again challenged before the Collector, who initially suspended the said Resolution by his order dated 13.7.1970. However, again on 1.7.1972, the respondent no.4-Municipal Board, Nokha straightway confirmed the auction of the disputed land which was held on 10.12.1961 (which was already set aside earlier by the competent authorities like the Collector and the Revenue Authorities) and the sale deed was executed within a period of three days only on 4.7.1972. That was challenged before the Collector, who by the order dated 25.9.1972 suspended the same. But, ultimately as he was of the opinion that the sale-deed was already executed, therefore, he sent the matter to the State Government for confirmation of sale by his order dated 13.11.1972. By an order dated 10.1.1974, the Government did not sanction that and set-aside the Collector's order to that effect. Aggrieved by that order passed by the Government, the petitioner preferred a writ petition before this Court, which was allowed and the matter was remanded to the Government under section 285(2) of the Rajasthan Municipalities Act, 1959 (for short 'the Act'). After hearing the respective parties, the Dy. Secretary passed the order against the petitioner which is challenged by the petitioner in this petition.
4. It may be stated that the facts stated above are not stated by the petitioner in his petition, but that have been supplied by Mr. H.C. Jain, learned counsel appearing for the respondent no.5.
5. The learned counsel for the petitioner submitted that once the sale deed was executed, it could not have been cancelled or suspended by the State Government under section 285 of the Act. In support of his submission, he has relied upon the decisions of this Court reported in Bhairon Lal V/s Bhagwat Dutt Thakur, Collector, Kotah, 1955 RLW 517 and Partumal V/s Managing Officer, Jaipur, 1961 ILR (11) Raj. 1121 , which has been referred to in the subsequent judgment by this Court which is reported in Mahaveer Prasad Jain V/s. The State of Rajasthan, 1980 WLN (UC) 417 . This submission of the learned counsel for the petitioner cannot be accepted for the simple reason that having failed twice if the petitioner has ultimately succeeded in getting the sale deed executed inspite of the orders against him by the competent authority, then there is nothing wrong by the competent authority to pass the order which is under challenge in this petition. Article 226 of the Constitution of India is not meant for such a dishonest persons, who do not come to this court with clean hands. This petition though labelled as petition under Article 226 of
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