Dr. AR. Lakshmanan, C. J.
1. This appeal is directed against the order passed by B. J. Shethna, J. dated 6-10-99 in S.B. Civil Writ Petition No. 3556/97, dismissing the writ petition on the ground that the right of the appellant petitioner, much less fundamental right guaranteed under the Constitution has not been infringed by the Urban Improvement Trust, Jodhpur in allotting the land to the second respondent Sri Nakora Parshwanath Jain Mahavidyalaya, Jodhpur. The appellant filed the writ petition on the following prayers :
1. By an appropriate writ, order or direction -
I/a. Resolution of the Urban Improvement Trust dated 24-4-1995 (Annex. 11) and the order of allotment dated 12-10-95 (Ann. 12) allotting land to the Respondent Nakoda Parashwanath Jain Mahavidyalaya and consequential Licence issued to the said Mahavidyalaya be declared to be invalid and quashed.
I/b. Respondent Urban Improvement Trust may further be directed to allot the residue 10,200 sqm. of the land out of the plot in question to the petitioner."
II. Any other appropriate writ, order or direction as may be considered proper in the facts and circumstances of the case may kindly be made.
III. Cost of the writ petition be awarded to the petitioner."
2. The prayers are two-fold. Prayer 1/a is to quash the resolution of the Urban Improvement Trust (in short UIT) dated 27-4-1995 and the order of allotment dated 12-10-1995 allotting the land to the second respondent. Prayer 1/b is for a mandamus directing the allotment of the residue 10.200 sqm. of the land out of the plot in question to the appellant.
3. The appellant earlier filed the writ petition in S. B. Civil Writ Petition No. 1672/96 which was withdrawn with the permission of the Court. According to the appellant and allotment has been made in a most secret manner and despite the fact that the appellant has sought allotment of 10,200 sq. mts. of the land since allotted to the second respondent school, t
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he appellant Society runs a school under the name and style of St. Anne's School. It is their case that 20,506 sq. yards is reserved for the purpose of Higher Secondary School in Saraswati Nagar in the master plan of Jodhpur as also in the Saraswati Nagar Scheme, Jodhpur. The petitioner applied for allotment of the said piece of land. The first respondent UIT allotted half of the plot comprising 10,253 sq. yards vide order dated 9-1-1992. The appellant deposited a sum of Rs. 6,34,375/- with the first respondent and the appellant had also constructed a building and is running a school having classes from 1st to 12th apart from a model laboratory and a model Computer Centre. On 6-1-93 a request was made to the UIT that the whole of plot of 20,000 sq. meters earmarked in the plan for Senior Higher Secondary School be allotted to them instead of half allotted to the appellant. A letter of request was also addressed by the President to the Hon'ble Chief Minister on 21-7-94 which was also responded by the Chief Minister vide his letter dated 14-8-94 (Annexure 4). The appellant also made representation on 30-8-94, 14-11-94, 7-12-95, 6-12-95 and 15-5-96 to various authorities. In the meanwhile the petitioner came to know about the allotment made to the second respondent school which was disclosed for the first time by way of reply to the writ petition. The appellant applied for a certified copy of the resolution of allotment and thereafter filed the present writ petition for the prayers asked for.
4. A reply was filed by the first respondent UIT and second respondent school. A rejoinder was filed by the writ petitioner. Justice Shethna dismissed the writ petition on three grounds :
(1) That a suit instituted by one Central Academy is pending before the civil Court regarding the same land;
(2) Since the writ petition involves disputed questions of fact, the writ petitioner appellant should invoke a better alternate and efficacious remedy by way of suit before the civil Court; and
(3) No fundamental right guaranteed under the Constitution of the appellant has been infringed by the UIT in allotting the land to the second respondent.
5. We have heard Mr. P. P. Choudhary, learned counsel for the appellant and Mr. K. N. Joshi for respondent No. 2. We have perused the writ petition, reply by the respondent Nos. 1 and 2, the rejoinder, by the writ petitioner and the annexures filed by the appellant and the respective respondents. At the time of hearing Mr. Choudhary, learned counsel for the appellant placed before us the following contentions :
(1) According to Mr. Choudhary, as from the documents annexed along with the reply the respondent No. 2 itself admitted that no application was made by the respondent No. 2 for allotment of plot of land in question. On the other hand, the application of the appellant for allotment of remaining half of the plot in question was pending.
(2) The filing of a civil suit is in fact a conspiracy between Central Academy and the respondents with a view to deprive the appellant his right to get allotment of remaining half of the plot in question.
(3) The appellant demanded allotment of whole plot but when the whole plot was not given to it, the appellant was made to make an application for half of the plot being given to the appellant vide order dated 9-1-92.
(4) The documents produced by the respondent No. 2 clearly show that the respondent No. 2 never sought allotment of the plot in question and that the allotment is a mistery.
(5) The learned Judge while dismissing the writ petition has not pointed out which fact is in dispute.
(6) The Court is not, in proceeding under Art. 226, incompetent to decide the question of fact which could be determined from the material on record.
(7) The learned Judge has erred in dismissing the writ petition on the ground of availability of alternative remedy by way of filing a civil suit.
(8). When the allotment of the land in question was made in favour of Central Academy they deliberately did not deposit the amount demanded by the UIT and the same was cancelled.
(9). Civil suit cannot be regarded as an alternative efficacious remedy.
(10). When there is a violation of Art. 14 of the Constitution or any of the fundamental rights and no extraordinary circumstances exist for refusal of the relief then the writ petition cannot be rejected on account of availability of alternative remedy of a civil suit.
(11). The claim for remaining half of the plot is in accordance with the Master Plan and cannot be defeated by misconstruing the letter of thanks Annexure R/1/3. It is not a letter of waiver of the right that the appellant will not require the remaining half of the plot.
(12). The learned single Judge is not right in dismissing the writ petition on the ground of delay. There was no delay on the part of the appellant to move this Court. The observations made by the learned single Judge are legally untenable and the same are based on no evidence on record. Hence the impugned judgment is liable to be set aside and the appeal deserves to be allowed.
(13). The failure and omission to allot the whole plot of land to the appellant and to allot half of the plot to it is clearly arbitrary so as to be violative of Art. 14 of the Constitution.
(14). As per the Master Plan and the Scheme to run a school efficiently a Secondary School must have more than 20,506 sq. meters of land available to it. It cannot be bifurcated into two parts to be given to two different educational institutions.
6. The first respondent UIT filed the reply in the writ petition denying the allegations. In para 2 of the reply of respondent No. 1, it is stated as follows :
"It is pertinent to submit here that in the earlier writ petition it was said that a piece of land comprising 20.506 sq. yards was reserved. Out of that 10.253 sq. yds. has been allotted to the petitioner vide allotment order dated 9-1-92 and in such circumstances it was prayed that the remaining 50% of the land should also be allotted to the petitioner, but the petitioner suppressed the material fact that before filing of the writ petition, the land in question (i.e. 50% of the entire reserved land) was already allotted to Shri Nakoda Paraswanath Jain Mahavidyalaya, Jodhpur on 12-10-1995. It is also pertinent to submit here that before that 50% of the entire plot i.e. the plot which has been allotted to respondent No. 2 vide allotment letter dated 12-10-95 was allotted to Central Academy, Jodhpur and when Central Academy School did not deposit the amount, then that land has been allotted to the respondent No. 2. On account of this conduct of the petitioner, writ petition deserves to be dismissed."
7. It is also stated that a suit has been filed by the Central Academy Shiksha Samiti on 15-6-96 in relation to the said allotment and the matter is still pending before the Court of Additional District Judge No. 1, Jodhpur. The land which has been allotted to the appellant is an adjacent land which is subject matter of civil suit. In such circumstances it is stated that the appellant was having knowledge about the litigation which is pending before the Additional District Judge No. 1, Jodhpur. It is also denied that the matter relating to the allotment made in favour of respondent No. 1 was ever kept in secrecy. On the other hand, matter relating to allotment of land in respect of respondent No. 2 was considered in the meeting of the Allotment Committee of UIT on 27-4-95 and after completing the formalities the allotment order was issued on 12-10-95. It is also further stated that earlier writ petition was filed being writ petition No. 1672/96 without disclosing the fact that the land has already been allotted to the respondent No. 2 much before the filing of the writ petition. The plot of land was reserved for the purpose of school i.e. Educational institution. 50% of the plot was earlier allotted to the Central Academy, Jodhpur and thereafter the appellant moved an application for allotment. In such circumstances the remaining half of the plot was allotted to the appellant vide allotment order dated 9-1-92 and the same was not only accepted without any protest but the appellant was satisfied with the said allotment. After allotment on 4-7-92 the appellant moved an application for further allotment of 5,000 sq. mtrs. of land. This application was made on 16-8-92 but before that the respondent No. 2 made an application on 6-7-92 for allotment of the land. The facts disclosed in the reply affidavit and the annexures filed show that the appellant was knowing it very well that the land in question has already been allotted to the respondent No. 1. It is further stated in para (i) of the reply to the grounds as follows :
"At the cost of repetition, it is submitted that 50% of the land reserved for the educational institutions in Saraswati Nagar was allotted to Central Academy School on 10-4-87 and remaining 50% was allotted to the petitioner in 1992. Thereafter the allotment made in favour of Central Academy School was cancelled as the amount was not deposited and as such the said land was allotted to the respondent No. 2 vide resolution dated 27-4-95 and consequential order dated 12-10-95 was issued. It is incorrect to say that the plot was ear-marked only for one school, but it was meant for educational institutions."
8. It is further stated that the land has been reserved for educational institutions and the purpose has not been changed even by making allotment in favour of respondent No. 2.
9. Shri K. N. Joshi, learned counsel for second respondent invited our attention to the detailed reply filed by them in the writ petition. Our attention was also drawn to various exhibits filed by the second respondent. A careful perusal of the entire pleadings and the annexures would clearly demonstrate that the grievance as expressed by the appellant school is nothing but imaginary and that the writ petition is the outcome of professional rivalry and jealousy. It is not in dispute that a civil suit is pending in the Court of the Additional District Judge No. 1, Jodhpur in civil suit No. 61/96 which was filed by Central Academy Shiksha Samiti, Jodhpur. The matter is already sub judice before the civil Court. The present writ petition is also belated and that the allotment is challenged after a long delay. As seen from the records and the reply affidavit of first respondent, the impugned land was reserved for educational purpose and it was also allotted for educational purpose and hence no illegality has been committed by the respondent No. 1. As rightly pointed out by the learned counsel for second respondent, it is not the monopoly of the appellant that the entire land available in the city which is kept reserved for educational purpose should be allotted to it. There are other educational institutions which are being run in the city of Jodhpur and their rights cannot be allowed to be infringed by allotting the entire land only in favour of the appellant. In the instant case the land has already been allotted, possession has also been given and the entire amount has been deposited and even the boundary wall has also been raised. We are unable to accept the argument of Mr. Choudhary that the respondent No. 1 is duty bound to inform the allotment made to the respondent No. 2. Such a contention in our view has no force or tenable. It is not obligatory on the part of the respondent No. 1 to inform each and every action taken by it to each and every person. The appellant himself has stated that they have applied for 10,000 sq. yards. It is the discretion of the first respondent to consider what measurement of a plot should be allotted to an educational institution in the interest of the public at large. In the instant case the first respondent had thought it proper to allot the impugned land to the respondent No. 2 which is also a reputed educational institution in the city of Jodhpur like the appellant. As a matter of fact the second respondent college made an application to the respondent UIT and the District Collector, Jodhpur for allotment of land on 6-7-92. The copies of the application are filed and marked as Annexures R2/1 and R2/2 respectively. The District Collector directed the respondent No. 2 to move an application to the respondent UIT. Copy of the said letter is also marked as Annexure R2/3. As a matter of fact the respondent college, formerly known as Sardar Vanijya Mahavidyalaya, Jodhpur has already moved an application in the year 1987 as can be seen from Annexure R2/4. Thus from the above factual aspects it is clear that the matter regarding allotment of land was pending since 1987. Apart from the above applications the appellant also moved an application to the District Collector, Jodhpur. Thereafter another letter was also moved as Annexure R2/6. Thus considering the above application of respondent No. 2 the impugned land was allotted to the appellant vide order dated 12-10-95 (Annexure 12). After allotment of the impugned land the respondent No. 2 deposited a sum of Rs. 50,000/- on 12-10-95, Rs. 1,50,000/- on 29-11-95 and further a sum of Rs. 10,26,482/- on 15-5-96 under Annexure R2/14. After the deposit permission was also sought to raise the boundary wall and the UIT has also accorded permission to raise construction of the boundary wall and the second respondent spent a sum of Rs. 1,58,482/- for the construction of the boundary wall. Thus it is seen that the entire transaction has been completed and the respondent No. 2 was given possession of the land vide letter dated 13-6-96 itself. As pointed out by the learned counsel in the Master Plan of the Jodhpur city the area in question is described as residential. However in the lay-out plan of Sarswati Nagar the land is reserved for the school. Thus it is seen hat the land is reserved only for educational institutions. It is also seen from the records that at the time of allotment in favour of the appellant the present land in question was not available for allotment and that the appellant had accepted the allotment of half of the plot. In such circumstances we are of the opinion that it is not open to the appellant to say that half of the plot cannot be allotted. As the land has been reserved for educational institutions, the purpose has not at all been changed even by making allotment in favour of the respondent No. 2.
10. Learned counsel for the appellant cited certain decisions of the Supreme Court in Viyyapuri v. State of Maharashtra, AIR 1986 SC 180 to say that the first respondent made representation to the appellant on the faith of which the first respondent acted to the prejudice of the appellant and, therefore, the first respondent cannot resile from the representation made by them. Another decision reported in Superintendent of Taxes, Dhubri v. M/s. Onkarmal Nathmal Trust, 1976 (1) SCC 766 : AIR 1975 SC 2065 and Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association, AIR 1988 SC 233 were also cited. In our opinion, the first respondent UIT has never made any representation to the appellant that the land will be allotted to the appellant at any point of time and that the first respondent has not acted to the prejudice of the appellant. The judgments cited by the learned counsel will have no bearing to the facts and circumstances of the case. On the other hand, in our considered opinion even if the appellant had any right, the appellant had waived the same and the principle of waiver will certainly apply against the appellant when it made a demand in January, 1993. It should not have waited for all these years and should have approached the appropriate forum by way of appropriate proceedings. In this case allotment has been made to the respondent No. 2, which is also a school, way back on 12-10-1995 and the possession also was handed over to it and some construction is also made on the plot. In such circumstances, there is no question of removing the second respondent from the place in question and putting the appellant in possession.
11. In our opinion, the prayer No. 1/a to quash the resolution dated 27-4-95 (Annexure 11) and the order of allotment dated 12-10-1995 (Annexure 12) cannot at all be quashed. The appellant has not made out any case for quashing Annexure 11 and Annexure 12. Hence the prayer No. 1/a is rejected. Prayer 1/b relates to a direction to be issued to the first respondent to allot the residue extent of the land out of the plot in question to the appellant. In order to obtain a writ in the nature of mandamus the appellant must show that he has legal right to the performance of a legal duty by the first respondent against whom the mandamus is sought and such a right must be subsisting on the date of the writ petition. In our opinion, the appellant has failed to establish that he has a legal right for performance of a legal duty by the first respondent. The mandamus, in our opinion, is not an appropriate proceeding to decide the complicated questions of fact, the object of mandamus being simply to compel performance of a legal duty on the part of the first respondent who is entrusted by law with the duty. The Court, in a proceeding for mandamus will never sit as a Court of appeal so as to examine facts or to substitute its own wisdom or the discretion vested by law in the person viz., the first respondent against whom the writ is sought. Courts have held that it is only person whose rights are being infringed who may apply for mandamus. In the instant case the appellant has miserably failed to establish that his rights have been infringed by the first respondent by allotting the land to the second respondent. The present petition, in our opinion, is not only frivolous but also mischievous. The conduct of the appellant in this case is an important factor to be taken into consideration in awarding costs. Though it is a fit case for awarding exemplary costs, we refrain from doing so by taking a lenient view of the matter.
12. For all the foregoing reasons, we dismiss the writ appeal. However, we order no costs.