Smt. Asaana Baig W/O Sh. Sultan ... vs State Of Rajasthan ...
2023 Latest Caselaw 5694 Raj/2

[2023:RJ-JP:27648]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 13047/2021

1.       Smt. Asaana Baig W/o Sh. Sultan Baig, Aged About 54
         Years,      R/o     Village      Nathu        Thala,         Panchayat   Samiti
         Dodiyana, Distt. Ajmer (Raj.)
2.       Smt. Rasool W/o Sh. Sultan Baig, Aged About 69 Years,
         R/o Village Nathu Thala, Panchayat Samiti Dodiyana,
         Distt. Ajmer (Raj.)
3.       Smt. Murad Baig W/o Sh. Alladdin Baig, Aged About 45
         Years,      R/o     Village      Nathu        Thala,         Panchayat   Samiti
         Dodiyana, Distt. Ajmer (Raj.)
4.       Smt. Rasida W/o Sh. Umar Kha Khayam Khani, Aged
         About 40 Years, R/o Village Nathu Thala, Panchayat
         Samiti Dodiyana, Distt. Ajmer (Raj.)
5.       Smt. Sikander W/o Sh. Babu Kha Khayam Khani, Aged
         About 45 Years, R/o Village Nathu Thala, Panchayat
         Samiti Dodiyana, Distt. Ajmer (Raj.)
6.       Smt. Choti W/o Sh. Sabir, Aged About 38 Years, R/o
         Village Nathu Thala, Panchayat Samiti Dodiyana, Distt.
         Ajmer (Raj.)
7.       Smt. Sabir Baig W/o Sh. Rasool Baig, Aged About 40
         Years,      R/o     Village      Nathu        Thala,         Panchayat   Samiti
         Dodiyana, Distt. Ajmer (Raj.)
8.       Ghasi Kha S/o Anuka Kha, Aged About 52 Years, R/o
         Village Nathu Thala, Panchayat Samiti Dodiyana, Distt.
         Ajmer (Raj.)
                                                                          ----Petitioners
                                         Versus
1.       State       Of    Rajasthan,          Through          Principal     Secretary,
         Panchayati Raj Department, Secretariat Jaipur.
2.       District Collector, District Ajmer (Raj.)
3.       Sarpanch,         Village       Nathu        Thala,          Panchayat   Samiti
         Dodiyana, Distt. Ajmer (Raj.)
                                                                        ----Respondents

For Petitioner(s)              :     Mr. Sanjay Sharma
For Respondent(s)              :



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            HON'BLE MR. JUSTICE GANESH RAM MEENA

                                Judgment / Order

07/10/2023

1. The present writ petition has been filed by the petitioner

challenging the notice dated 01.01.2021, issued by the Gram

Panchayat, Dodiyana, District Ajmer (Raj.) asking the petitioner to

vacate the public land.

2. Since, the present writ petition has been filed against the

notice for eviction only, the petitioner may approach the

concerned Gram Panchayat asking that he is in possession of land

having ownership/title in his favour.

3. A judgment has been passed by the Division Bench of this

Court in the case of M/s Global One Resources LLP Vs.

Deputy Commissioner & Ors.; Civil Appeal No.18424/2022,

which observed as under:

"9. The scope of interference in the writ jurisdiction under Article 226 of the Constitution of India, against show cause notices, is limited. Though there is no bar as such for entertaining the writ petition at the stage of show cause notice, but it has been settled in catena of decisions by the Hon'ble Supreme Court as also this Court as to when writ petition can be entertained at stage of issuance of the show cause notice.

10. In the case of Union of India and Others Vs. Coastal Container Transporters Association and Others, (2019) 20 SCC 446, while dealing with an issue with regard to dispute regarding classification of taxable services, their Lordships in the Hon'ble Supreme Court cautioned against exercise of writ jurisdiction as below:

"30. On the other hand, we find force in the contention of the learned Senior Counsel, Shri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of the Constitution of India at the stage of show-cause notices. Though

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there is no bar as such for entertaining the writ petitions at the stage of show-cause notice, but it is settled by a number of decisions of this Court, where writ petitions can be entertained at the show-cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. The High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court.

31. The judgment of this Court in Union of India v. Guwahati Carbon Ltd. (2012) 11 SCC 651, relied on by the learned Senior Counsel for the appellants also supports their case. In the aforesaid judgment, arising out of the Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show-cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show-cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show-cause notices there are no factual disputes.

32. Further, the judgment of this Court in Malladi Drugs & Pharma Ltd. v. Union of India (2020) 12 SCC 808, relied on by the learned Senior Counsel for the appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show-cause notice stage."

The Hon'ble Supreme Court in the case of Union of India and Another Versus Vicco Laboratories, (2007) 13 Supreme Court Cases 270 held as below:- "31. Normally, the writ court should not interfere at the stage of issuance of show- cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and to satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show-cause notices have been issued. Abstinence from interference at the stage of issuance of show- cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show-cause notice is issued either without jurisdiction or in an abuse of process of

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law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause-notice. The interference at the show-cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out."

The Hon'ble Supreme Court in the case of Union of India and Another Versus Kunisetty Satyanarayana, (2006) 12 Supreme Court Cases 28 held as below:-

13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or showcause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional Commr., Mysore 2001 (10) SCC 639, State of U.P. v. Brahm Datt Sharma (1987) 2 SCC 179, etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or chargesheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge- sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or chargesheet.

No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

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11. In view of above considerations, we are not inclined to entertain this writ petition at the stage of issuance of show cause notices but leave the petitioner to work out its remedy. It is made clear that all the issues raised by the petitioner are left open to be decided by the respondents after receipt of reply/detailed reply to show cause notices impugned in this writ petition pertaining to financial years 2019-20, 2020-21 and 2021-22.

12. In the result, writ petition is dismissed."

4. In view of the law laid down and the facts of the case, this

Court finds that the present writ petition is filed against the show

cause notice and the same is pre-mature. Therefore, the present

writ petition is dismissed as being pre-mature.

5. Since, the main petition has been dismissed, other pending

application/s, if any, stand/s disposed of.

6. However, petitioner would be at liberty to show his

ownership/title about land in question to the Authority who has

issued notice to him.

(GANESH RAM MEENA),J

ARTI SHARMA /207

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