Judgment:
Shethna, J.
(1). Madarsah Taiyabiah Society of Udaipur filed S.B. Civil Writ Petition No. 4084/94 before this Court under Article 226 of the Constitution and prayed that the impugned order at Annex. 13 dated 19.7.94 be quashed and set aside.
(2). The petitioner is a registered society. It is running school having about 1800 students in the school building which according to it was a very small one, therefore, they wanted some more land for extension of the school building. Accordingly, it approached the Collector, Udaipur who in turn recommended to the Secretary, Urban Improvement Trust on 30,6.72 (Annex. 1) for allotment of land to the petitioner. By a resolution dated 24.5.84, the U.I.T. Udaipur also recommended the allotment of land to the petitioner and accordingly, wrote a letter dated 10.10.84 (Annex. 2) to the State Government. In turn, the State Government directed U.I.T. to allot the land to the petitioner by its letter dated 3.1.85 (Annex. 3). Consequent thereof, the U.I.T. allotted 6361 sq. ft. land to the petitioner for only Rs. 1,20,859/-. The said amount was deposited by the petitioner along with its letter dated 17.3.85 (Annex. 4). The U.I.T. executed a document of transfer in favour of the petitioner which is at Annex. 5.
(3). II is contended in the petition by the petitioner that there was a city wall which was about 5-6 feet away from the school building which is about 10 feet wide, The same was removed by Municipal Council, Udaipur in 1978-79. The said land which was in front of the school was also available for allotment'. It is the case of the petitioner that on 23.1.85, it deposited Rs. 1,28,364/- and accordingly, the Municipal Council executed the registered sale deed on 25.12.89 (Annex. 6). The petitioner claimed to be in possession of the said land.
(4). In para 13 of the petition, it has been stated that the petitioner improved the land and spent huge amount for its development and also raised construction which was approved by the U.I.T. as well as Municipal Council, Udaipur. Plan is at Annex. 7.
(5). On 10.4.91 notice (Annex. 8) was received by the petitioner from the State Government whereby the petitioner was asked to appear before the Minister, Local Self Government and to show cause as to why the allotment made in favour of the petitioner should no! be cancelled. At that stage, the petitioner filed writ petition before this Court being writ petition No. 1901791 which was admitted and ad-interim stay order was granted in favour of the petitioner whereby it was ordered that the petitioner shall not be dispossessed from the land in question.
(6). By another notice dated 4.3.94, the petitioner was asked to file objections, if any, within 15 days from the receipt thereof. Accordingly, objections were submitted on 28.3.94. Writ petition No. 1909791 came to be dismissed as infructuous by the learned Single Judge of this Court on 8.8.94 (Annex. 14). Thereafter, the petitioner filed representation dated 15.8.94 before the Minister, Local Self Government (Annex. 15). According to the petitioner, nothing was done on the representation made by it but the U.I.T., Udaipur called upon the petitioner to remove the construction immediately failing which all the constructions put on by it shall be demolished.
(7). The Deputy Secretary to the State Government wrote a letter dated 19.7.94 (Annex. 13) to the Secretary, U.I.T., Udaipur and Commissioner, Municipal Council, Udaipur stating that after hearing the executive members of the petitioner school, the State Government has decided to cancel the allotment of land made in favour of the petitioner and to refund the amount with interest to the petitioner because the allotment of the said land was not in public interest and because of the road being small, accidents are taking place there and two persons have already lost their lives in fatal accident. This has been challenged by the petitioner by way of writ petition No. 4084794 which was filed on 22.8.94.
(8). It was placed for orders before the learned Single Judge on 24.8.94 wherein notice was ordered to be issued. On 2.9.94, it was submitted by the respondents that it was a public road and it was used as such since long but now the same is blocked by the petitioner whereby many problems were created and it was submitted that thepublic road cannol be allotted or sold to any one including the petitioner. However, it was contended by the petitioner that the road on one side does not lead to any other place and it is blocked. This statement was denied by the other side.
(9). In view of the above, the learned Single Judge by his order dated 2.9.94 appointed Mr. V.K. Mathur, Advocate of this Court as Commissioner to visit the site and submit his report about the existing position at the site. Accordingly, the report dated 12.9.1994 was submitted which is on the record of the case.
(10). By an interim order dated 21.9.94, the learned Single Judge of this Court ordered the parties to maintain status quo as on that day till the decision of the writ petition. When it was pointed out by the Commissioner from the photographs that rubbish, filth, mud etc. were lying there, therefore, the Municipality was given liberty to keep the site neat and clean and accordingly, the Municipality cleared the same and kept the site neat and clean. Thereafter, this mailer was adjourned from time to time by different Courts including this Court.
(11). On 5.7.99, Shri N.P. Gupta learned counsel appearing for the intervenor (as he then was) submitted before me that the petitioner misled this Court and suppressed the fact that it was a tenant and not the owner of the school building. Mr. Joshi for the petitioner wanted time to as certain it and it was posted on 19.7.99. On that day, it was adjourned to 10.8.99 as Mr. Joshi wanted to file reply. On 10.8.99, Mr. Joshi filed reply and the matter was kept on 7.9.99. Thereafter, it was adjourned to 8.9.99, 14.9.99, 15.9.99, 8.10.99, 7.12.99 and 22.12.99 for one or the other reasons. On 22.12.99, it was kept on 8.2.2000 and on that day, once again the matter was adjourned till 25.2.2000. On 2.3.2000, no one was present for the petitioner, therefore, the main writ petition was dismissed and the interim relief granted earlier was vacated.
(12). This restoration application was filed by the petitioner on 18.3.2000 for restoring the main writ petition on the grounds mentioned in it. This was also adjourned from time to lime for one or Ihe other reasons. Till 11.8.2000, Mr. J.P. Joshi or somebody else appeared in his place for the petitioner and got the mailer adjourned. When it was adjourned on 17.8.2000, Shri Mahesh Bhatt, counsel for the appellant appeared along with Mr. Joshi and at their joint request, it was put up on 15.9.2000. However, for one or the other reasons, it could not be placed on 15.9.2000. When it was placed on 17.10.2000, Mr. Joshi stated that Mr. Bhatt is going to appear in the matter in his place, therefore. It was kept on 17.11.2000. Later on, it was placed on 22.11.2000 and 15.12.2000. Lastly, it was ordered to be placed on 9.2.2001 but for one or the other reasons, it could not be placed before this Court tilt today.
(13). Today, Mr. Pushpendra Singh, learned counsel appeared for the petitioner is place of Mr. J.P. Joshi and requested to adjourn this matter on the ground that Mr. Bhatt is going to appear in the matter. This request was rejected with a heavy heart. In the past, this application was adjourned on this very ground. While adjourning this matter, it was made clear that this Court would ordinarily not wait for the counsel and the counsel should make it convenient to appear before this Court. From the order-sheet, it is clear that on the day one, when this matter was placed on 30.3.2000, it was ordered to put up the main writ petition also along with this restoration application and it was made clear that the restoration application would be granted provided the petitioner is ready to go on with its writ petition.
(14). Under the circumstances, request to adjourn this restoration application was rejected.
(15). Mr. Bhati was given an opportunity to address this Court on the merits of the writ petition but in view of the Commissioner's report and the reply affidavits, he left it to the Court for passing appropriate orders.
(16). In the foregoing paras of this order, I have narrated few important and relevant facts of the main writ petition. It is clear that on earlier occasion, the petitionerhad filed writ petition No. 1901/91 which was later on dismissed by the learned Single Judge as infructuous (Annex. 14). Under the circumstances, in my considered opinion, second writ petition challenging the impugned order dt. 19.7.94 (Annex. 13) would not be maintainable. Even assuming for the sake of arguments that the main writ petition was maintainable then on merits also, it has no substance because it is clear from the order Annex. 13 to the main writ petition that the land which was allotted to the petitioner by the Slate Govt. was a public land which could not have been allotted by any one including the State Government. It is clear that because of small width of the road, many accidents were taking place at the site. Not only that two persons lost their valuable lives and considering all these aspects, if the State Government has decided in public interest to cancel the allotment of land, then it can never be questioned. Challenge to such type of order must fail. It is also clear that after allotment till the passing of the cancellation order,' the land in question was never utilised by the petitioner, therefore, such an order of cancellation can never be interfered by this Court in its extraordinary jurisdiction under Article 226 of the Constitution.
(17). There is a detailed report of Commissioner Mr. V.K. Mathur, Advocate which clearly shows that when he inspected the site, the strip of land in question was not used by the public though it was connecting one of the ends of city to another running parallel to main road because it was blocked with rubbish, filth, mud etc.
(18). I must state that when the main writ petition was heard for some lime by me in the past, it was suggested by all the learned counsel for the parties that I can personally go and see the place whenever I am at Udaipur and decide whether it was a public road or not and whether it was blocked by the petitioner or not? During my one of the official visits, I had personally gone as requested by the learned counsel for the parties and found that it was a public road which was unnecessarily blocked by the petitioner. This was brought to the notice of learned counsel for parties and thereafter the matter was adjourned from time to time for one or the other reasons as stated earlier. After adjourning the main writ petition on several occasions, at last in absence of learned counsel for the petitioner, it was dismissed for default so that no injustice may be done to the petitioner. It was with a view that restoration application may be heard alongwith the main writ petition, but it was also got adjourned from lime to time and I am at pains to say that an attempt was made only to delay the hearing.
(19). One day the request to adjourn the matter had to be rejected, therefore, today it was rejected.
(20). In my considered opinion, the reason given by the petitioner for restoration of the main writ petition is not a good reason. Such type of reasons arc easily available. Only inference which can be drawn by the Court in this matter is that a deliberate attempt was there to delay the hearing of this restoration application. However, with a view that no injustice is done, an opportunity was given to Mr. Bhati to address the Court on merits of the case, but in view of what has been said above he left to the Court, therefore, on the material available on record, I have decided this petition.
(21). In my considered opinion, when the writ petition itself has no substance, then there was no question of restoring the same and then dismiss the same on merits after restoring it, because even if it was restored then also it would have been dismissed on merits.
(22). In view of the above discussion, this restoration application is dismissed.