Rajasthan High Court - Jaipur
Yasudeen vs State Of Rajasthan And Ors. on 23 August, 1999
Equivalent citations: 2000(2)WLC294
ORDER Shiv Kumar Sharma, J.
1. By the instant writ of certiorari the petitioner seeks to quash the judgment dated Jan. 31, 1995 of the learned Division Bench of the Board of Revenue Ajmer, whereby the special appeal preferred by the Urban Improvement Trust Jodhpur (in short the UIT) was allowed and the judgment of the learned single Bench of the Board of Revenue Ajmer dated May 30, 1986 was set aside.
2. Brief resume of the facts is that in the city of Jodhpur, there lies a big chunk of land titled as Khasra Nos. 751/1160, 751/ 1157, and 751/1159 measuring 40 bighas situated at Khema Ka Kuan, Pal Road Jodhpur. The Collector Jodhpur vide order dated October 16, 1975 converted the said land into Abadi land and placed it at the disposal of the UIT on payment of 40 times the land revenue. This order was called in question by the petitioner by filing an appeal under Section 75 of the Land Revenue Appellate Authority Jodhpur on the ground that the land in question was not unoccupied Government land and it was erroneously placed at the disposal of the UIT. It was also contended that the land was possessed by the petitioner and he was the title holder of the said land having possession over it since ancestral time and the Collector Jodhpur had no right to hand over the same to UIT. The Revenue Appellate Authority Jodhpur vide order dated July 2, 1976 set aside the aforequoted order of Collector Jodhpur and allowed the appeal. Thereafter two appeals were preferred against the order of the Revenue Appellate Authority before the Board of Revenue Ajmer by the State of Rajasthan as well as by the UIT. The Board of Revenue after examining the old revenue record of Jodhpur State gave positive finding that the land in dispute was not the Government land but a private property of the petitioner who is having a patta over it and rejected both the appeals vide judgment dated February 25, 1983. The State of Rajasthan assailed the judgment of the Board of Revenue by filing writ petition before this Court. The petitioner placed communication dated March 19, 1983 (Annexure 4) addressed by the Deputy Secretary to the Government Advocate Board of Revenue Ajmer advising him that the writ in the matter is not desirable as the order of the Collector against the party was passed without giving an opportunity of being heard which was against the principles of natural justice. Thereafter the Legal Remembrancer to the Govt. of Rajasthan wrote a letter dated October 11, 1983 to the Government Advocate Jodhpur that if the writ petition has been filed and not listed for hearing the same may be recalled or withdrawn without further delay. If the writ petition had not been filed then the papers may be returned to the department. S. B. Civil Writ Petition No. 1432/1984 State of Rajasthan and another v. Yashubuddin and others was listed before this Court and the Government Advocate made a statement that the writ petition has become infructuous and the State did not want to press it therefore the writ petition was dismissed as not pressed vide order dated October 10, 1985. Thereafter the UIT submitted a review petition before the single Bench of the Board of Revenue Ajmer seeking review of the judgment dated February 25, 1983, but the said petition was dismissed by the learned single Bench vide its judgment dated May 30, 1985. Against this judgment the UIT preferred special appeal under Section 10 of the Land Revenue Act before the Division Bench of the Board of Revenue. The learned Division Bench allowed the appeal as indicated hereinabove. 3. Mr. Rajendra Mehta, learned counsel appearing for the petitioner canvassed that the judgment of the Board of Revenue dated Feb. 25, 1983 was merged in the order dated Oct. 10, 1985 passed by the High Court and therefore it could not have been reviewed, second limb of argument of Mr. Mehta learned counsel appearing for the petitioner is that in view of the provisions contained in proviso of Sub-section (1) (b) of Section 10 of the Act, the special appeal could have been filed before the Division Bench against the decision of single Bench only after seeking declaration of learned single Member who passed the order that the case was fit for appeal. Reliance was placed on Shree Narayana Dharmasanghom Trust v. Swami Prakasnanda (1997) 6 SCC 78.
4. On the other hand Mr. B. S . Bhati, learned counsel appearing for the respondents supported the judgment of the Division Bench and sought dismissal of the writ petition. Mr. S.D. Purohit, learned counsel appearing for the UIT canvassed that in S.B. Civil Writ Petition No. 1342 of 1984. an application under Article 226 of the Constitution of India was filed on August 14, 1985 along with certified copy of the judgment dated May 28, 1985 of the Board of Revenue Ajmer stating therein that the writ petition submitted by the State of Rajasthan be dismissed having become infructuous as review petition moved by the UIT was allowed by the order dated May 28, 1985 of the Board of Revenue Ajmer and order dated Feb. 25, 1983 of the Board of Revenue which was under challenge in the said writ petition was set aside by the Board of Revenue itself. Under these circumstances the learned Additional Government Advocate Dr. S.S. Bhadawat on Oct. 10, 1985 states before this Court that the writ petition has become infructuous and therefore he did not want to press the writ petition. The learned counsel in these circumstances contended that that in view of the said statement of the learned Addl. Government Advocate the doctrine of merger shall not be applicable in the instant case. It was contended that the argument in respect of maintainability of special appeal was not raised before the Division Bench. Therefore the petitioner cannot be permitted to raise the argument in the instant writ petition.
5. I have reflected over the rival submissions and carefully scanned the material on record.
6. In Corpus Juris Secundum Volume 57, at page 1068, "merger" is explained in the following words :
" 'Merger" is defined generally as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; and an absorption of swallowing up so as to involve a loss of identity and individuality.
In law it is the absorption or extinguishment of one estate of contract in another. It is said that merger is an operation of the law not depending on the intention of the parties".
In Stroud's Judicial Dictionary Vol. III at page 1781, "merger" is defined as follows :
"Whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate the less is immediately annihilated; or in the law phrase, is said to be merged, that is, sunk or drowned in the greater."
7. Meaningful question that arises in the instant writ petition is whether the order of Revenue Board dated Feb. 25, 1983 no longer exists as a separate entity and has merged in the order dated Oct. 10, 1985 of the High Court. It is now to be seen that for the application of doctrine of merger what should be the nature of the order passed by the higher Court ? Whether such order should be a speaking order or not ?
8. In Indian Oil Corporation Ltd. v. State of Bihar (1986) 4 SCC 146 : (AIR 1986 SC 1780) Bench of two Hon'ble Two Judges of the Supreme Court indicated thus :
The dismissal of a special leave petition in limine by a non-speaking order does not justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by Supreme Court. The effect of a non-speaking order of dismissal of a Special Leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that Supreme Court had decided only that it was not a fit case where special leave should be granted. It cannot be assumed that it had necessarily decided by implication all the questions in relation to the merits of the award, which was under challenge before Supreme Court in the special leave petition."
9. In Yogendra Narayan Chowdury v. Union of India (1996) 7 SCC 1 : (AIR 1996 SC 751) Bench of Hon'ble Two Judges of the Supreme Court observed thus :
"It is settled law that even the dismissal of special leave petition in limine without assigning reasons does not operate as res judicata."
10. In Shree Narayana Dharmasanghom Trust v. Swami Prakasnanda (supra) Bench of Hon'ble Two Judges of the Supreme Court propounded as under :
"Thus, it is settled law that even the dismissal of special leave petition in limine operates as a final order between the parties and any order passed by the High Court or Tribunal subsequently operates as a resjudicata as far as the parties thereto are concerned. It is true that in Indian Oil Corporation Ltd. v. State of Bihar (AIR 1986 SC 1780) (supra) this Court had pointed out that when the writ petition was dismissed by the Court in limine, the jurisdiction of the High Court under Article 226 is not precluded, the dismissal of the writ petition under Article 32 does not operate as res judicata. That principle is entirely different from the review of an order under Order 47, Rule 1. Under these circumstances we are of the view that the High Court is well justified in refusing to review the order passed in the revision."
11. Now I proceed to examine the facts of the instant writ petition in view of the findings as indicated hereinabove. Admittedly the writ petition bearing No. 1432 of 1984 was filed by the State of Rajasthan and the Collector Jodhpur. The Urban Improvement Trust Jodhpur was arrayed as respondent No. 2 in the said writ petition. During the pendency of the writ petition an application was filed on behalf of the UIT Jodhpur on August, 14, 1985 with the averments that order dated Feb. 25, 1983 of the Revenue Board was set aside by the Revenue Board itself vide order dated May 25, 1985 therefore the writ petition became infructuous. Certified copy of the order dated May 25, 1985 was appended with the application. No reply to the application was filed by the State of Rajasthan and the Collector and when the case was listed on Oct. 10, 1985 before this Court the learned Additional Government Advocate made a statement that the writ petition became infructuous and the petitioner did not press the writ petition. Under these circumstances the writ petition was dismissed as not pressed by this Court. The writ petition was not dismissed in limine but it was dismissed as not pressed on the ground that it became infructuous. Therefore the case law cited before me by the learned counsel for the petitioner is not applicable in the instant case and I hold that the order dated Feb. 25, 1983 did not merge in the order dated Oct. 10, 1985.
12. In order to consider the rival submissions in respect of proviso to Section 10(1) of the Act reappreciation of facts is necessary. As already stated that land in question was placed for disposal of UIT by the Collector. Petitioner preferred first appeal under Section 75 of the Act. The Revenue Appellate Authority allowed the appeal and set aside the order of the Collector. The UIT and the State filed two separate second appeals under Section 76 of the Act before the Board of Revenue which were rejected. The State instituted a writ petition assailing the said order before the High Court whereas UIT filed review petition against the same order/ Board of Revenue vide its judgment dated May 28, 1985 allowed the review petition and the writ petition of the State was dismissed as not pressed on Oct. 10, 1985. After the review petition was allowed on May 28, 1985, the main appeal was heard on merits and was dismissed on May, 30. 1986, and two review petitions bearing Nos. 15/ 1986 and 16/1986 were again filed by the UIT and the State against the judgment dated May 30, 1986. The Board of Revenue by a common judgment dated Sept. 13, 1985 (sic) dismissed the review petitions. It appears that UIT in the year 1986 also filed Special Appeal No. 130/86 under Section 10 of the Act assailing the order dated May 30. 1986 before the Division Bench of the Board of Revenue. The said appeal was allowed vide order dated January, 31, 1995.
13. The question springing for consideration now is whether proviso appended to Sub-section (1)(b) of Section 10 of the Act confers a right of appeal? Section 74 of the Act lays down that there can be no appeal unless specific right of appeal is provided in the Act. Appeals are creations of statutes and unless a person can bring himself within the four corners of the statute law prescribing appeals, he cannot go before any appellate authority. A right of appeal does not exist and cannot be assumed unless expressly given by the statute. It is a substantive right and not a mere procedural matter.
14. Section 10 of the Act only provides as to how the jurisdiction of Board of Revenue is exercised. It reads thus -- (before amendment of 1991).
"10. Jurisdiction of Board how exercised -- (1) Except as otherwise provided by or under this Act or by any other law or enactment for the time being in force in the whole or any part of the State and subject to any rules made in that behalf, the jurisdiction of the Board may be .
(a) by the Chairman or any other member of the Board, sitting singly, or
(b) by a Bench of the Board, consisting of two or more members :
Provided that a party aggrieved by a decision of a single member shall have the right to make a special appeal to a bench consisting of two or more members of the Board within one month from the date of the decision of the single member if the Member who passed the judgment declares that the case is fit one for appeal.
(2) Subject to any rules made in that behalf, the Chairman may distribute the business of the Board and make such territorial or other divisions of its jurisdiction as he may deem fit.
(3) Every order made or act done under Sub-section (1) or in accordance with the distribution or division made under Sub-section (2) shall be deemed to be the order or act, as the case may be, of the Board."
15. A bare look at the aforequoted provisions demonstrate that there are two modes for exercising this jurisdiction, i.e. (i) by Single Bench, or (ii) by D.B. or more members. The proviso to Sub-section (1) provides for special appeal against decision of single Bench before Bench of two or more members. A party who is aggrieved by a decision of single Bench has a right to make a special appeal within one month from the date of decision of the single member but such special appeal can only be filed after single member declares it a fit case for appeal. Thus appeal provided under the proviso to Sub-section (1) is an appeal as a special case to examine the correctness and propriety of an order passed by a single member. The proviso to Section 10(1) of the Act however couched in language which gives no room whatsoever for more than one interpretation. With effect from March 26, 1964 following words have been added by Section 2 of Rajasthan Act No. 5 of 1964 --
"It the member who had passed the judgment declare that the case is fit one of for appeal". The language of the proviso to Section 10(1) of the Act is analogous to that used in Letters Patent appeals of various High Courts. There is no reason for doubt that it was the intention of Legislature that the right of special appeal would be allowed only if the Member who delivered the impugned judgment certified that it was a fit case for appeal. The Rajasthan Land Revenue (Amendment) Act 1991 further amended the proviso to Section 10(1) of the Act thus :--
"If the member who passed the judgment ceases to be attached to the Board, any other member declares that the case is a fit one for appeal."
16. Thus it is apparent that that proviso to Section 10(1) of the Act confers a specific right of appeal and I hold accordingly.
17. Contention of Mr. Purohit learned counsel appearing for the respondent UIT is that learned single Member of the Board of Revenue had certified that it was a fit case for appeal. He further canvassed that the petitioner did not raise the objection before the D.B. therefore waived the right to raise the objection and he cannot be permitted to raise it again.
18. Undeniably, the respondent UIT filed special appeal before the Division Bench of the Board of Revenue on July 22, 1986 along with application seeking declaration of learned single Member in view of proviso to Section 10(1) of the Act. The learned single Member. Mr. Rajendra Pal Singh vide order dated January 28, 1987 granted leave to the respondent UIT under proviso to Section 10(1) of the Act and the matter was listed before the Division Bench for admission. Mr. Mehta, learned counsel for the petitioner did not dispute this factual position and his only contention is that the learned single Member Shri N.C. Sharma was available in the Board of Revenue and leave to file special appeal ought to have been obtained from Shri N.C. Sharma on or before March 28, 1983 i.e. within one month from the date of passing of the order as is evident from proviso to Section 10(1) of the Act. In pursuant to proviso to Section 10(1) of the Act which provides that a party aggrieved by a decision of a single member shall have the right to make a special appeal to a bench consisting of two or more members of the Board within one month from the date of the decision of the single member if the member who passed the judgment declares that the case is fit for appeal. Mr. Mehta, learned counsel in support of his submission placed reliance on Radhey Shyam v. State of Rajasthan (RRD 1989 page 760), wherein the larger bench of the Board of Revenue indicated that the 'Member who passed the original judgment alone is competent to grant permission for special appeal (in other words to declare a case fit one for special appeal) and no other Member is competent to do so even if the Member who passed the original judgment ceases to be attached to the Board .
19. An objection was raised on behalf of the petitioner before the Board of Revenue that special appeal was submitted beyond limitation. The Division Bench of the Board of Revenue vide order dated January 28, 1988 overruled the objection and held that the appeal was submitted within limitation and as the learned single Member, granted leave to file appeal on January 27, 1987 the special appeal was admitted.
20. As already stated by the Rajasthan Land Revenue (Amendment) Act, 1991 amendment in proviso to Section 10(1) of the Act was made and after this amendment any Member of the Board can declare that the case is fit one for filing appeal. He can grant leave to appeal.
21. The special appeal was filed within the period of limitation along with application seeking leave to appeals Section 2 of the Rajasthan Land Revenue (Amendment) Act, 1991 provides that in the proviso to Sub-section (1) of Section 10 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956) hereinafter refereed to as the principal Act, between the words "who passed the judgment" and the words "declares that the case is fit one for appeal", the words "and if the member who passed the judgment ceases to be attached to the Board, any other Member" shall be inserted and shall be deemed always to have been inserted. Therefore leave granted by Shri Rajendra Pal Singh, in place of Shri N.C. Sharma, cannot be said to be invalid, as the amendment vide the aforesaid Act of 1991 has been given retrospective effect. Even otherwise the respondent UIT did its duty to file an application seeking leave to appeal along with the special appeal and it was for the Board of Revenue to pass appropriate orders on the application. Once the leave is granted it will relate back to the date of filing of the special appeal. Because of the Larger Bench decision in Radhey Shyam case (1989 RRD 760) (supra) all the special appeals in which required declaration of fitness had been granted by the member other than the member who passed the order were likely to fail only on that ground therefore to overcome this hardship the amendment was made in proviso to Sub-section (1) of Section 10 of the Act with retrospective effect by the Rajasthan Land Revenue (Amendment) Act, 1991. Under these circumstances I am unable to persuade myself to agree with the submissions advanced before me by the learned counsel appearing for the petitioner. I hold that the Division Bench of the Revenue Board had Jurisdiction to entertain the appeal as the leave was granted on January 28, 1987 by the learned single Member of the Board of Revenue. The application filed by the respondent UIT seeking leave to appeal along with special appeal filed within limitation. However the matter shall be heard by the S.B. of the Board of Revenue.
22. In view of what I have discussed hereinabove, the writ petition fails and is hereby dismissed. No costs.