Rajasthan High Court - Jaipur
Shri Brajraj Singh And Ors vs State Or Raj And Ors on 30 May, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Civil Review Petition No.106/2008 In D.B. Special Appeal (Writ) No.656/2003 In S.B. Civil Writ Petition No.3971/2000 Shri Brajraj Singh and Others Vs. State of Rajasthan and Others 2. D.B. Civil Review Petition No.90/2008 In D.B. Special Appeal (Writ) No.746/2002 In S.B. Civil Writ Petition No.2696/2000 Shri Brajraj Singh Vs. State of Rajasthan and Another Date of Order ::: May 30, 2012 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice Raghuvendra S. Rathore Shri K.K. Mehrishi, Senior Advocate, with Shri Sanjay Mehrishi, for petitioners Shri G.S. Bapna, Advocate General, with Shri Sarvesh Jain & Shri Venykatesh Garg, for the State Shri Sudhanshu Kasliwal, Senior Advocate, with Shri Krishna Verma and Shri K.S. Bhati and Shri Chandra Vijay Nathawat, for respondents
#### //Reportable// By the Court (Per Justice Mohammad Rafiq):-
Review petition No.106/2008 has been preferred by Shri Brajraj Singh S/o late Maharajah Shri Sumer Singhji of Kishangarh, District Ajmer and two others, seeking review of judgment dated 13.03.2008 passed in Special Appeal (Writ) No.656/2003, which arose out of S.B. Civil Writ Petition No.3971/2000 filed by Shri Brajraj Singh and four others, thereby upholding judgment of Single Bench dated 10.12.2001 in Writ Petition No.3971/2000 deciding along-therewith five other Writ Petitions No.2692/2000, 2693/2000, 2694/2000, 2695/2000 and 2696/2000.
Writ Petition No.3971/2000 was filed on 03.08.2000 to challenge order of Collector, Ajmer, dated 20.02.1976 passed under Section 9-A of Land Reforms & Acquisition of Landowners' Estates Act, 1963 (hereinafter shall be referred to as 'the Act of 1963') in Revenue Case No.26/76, for acquisition of disputed land comprising of Khasra No.13/1 (present Khasra No.78/1) of village Kishangarh-B, Tehsil Kishangarh, District Ajmer, and order dated 23.03.1996 passed by Divisional Commissioner cum - Compensation Commissioner, Ajmer, in Compensation Case/01/90/Ajmer for determination of compensation under Section 15 of the Act of 1963 thereabout.
Review petition No.90/2008 has been preferred by Shri Brajraj Singh seeking review of judgment dated 13.03.2008 passed in Special Appeal (Writ) No.746/2002 arising out of S.B. Civil Writ Petition No.2696/2000. Writ Petition No.2696/2000 sought to challenge the order dated 22.05.2000 of Tehsildar, Kishangarh, passed under Section 91 of the Land Revenue Act, 1956, declaring possession of petitioner and other legal heirs of late Shri Sumer Singhji, as illegal and further declaring them as trespassers over disputed land and imposing penalty and directing their eviction. It may be at this stage noted that similar order under Section 91 of the Land Revenue Act, 1956, on the same date was passed against other legal heirs of late Shri Sumer Singhji, who are (1) Smt. Gita Kumari, (2) Shri Prithviraj Singh S/o late Shri Sumer Singhji, (3) Smt. Shree Kumari D/o late Shri Sumer Singhji and, (4) Smt. Nandini Kumari D/o late Shri Sumer Singhji, who also filed writ petitions No.2692 to 2695 of 2000, respectively, referred to supra. All six writ petitions were dismissed by learned Single Judge of this court vide common judgment dated 10.12.2001 inter-alia on the ground of delay and laches and for failure of petitioners to avail alternative remedy within prescribed period of limitation, in that petitioners failed to explain delay of 24 years in assailing order dated 20.02.1976.
We have heard Shri K.K. Mehrishi, learned Senior Counsel, appearing on behalf of review petitioners, Shri G.S. Bapna, learned Advocate General for the State, Shri Karan Singh Bhati, learned counsel appearing on behalf of Smt. Shree Kumari, legal representative of respondent no.4, and Shri Sudhanshu Kasliwal, learned Senior Counsel for intervener-Airport Authority of India.
Shri K.K. Mehrishi, learned Senior Counsel appearing on behalf of review-petitioners, argued that judgment passed by Division Bench of this court suffers from errors apparent on the face of record. Neither correct legal nor even correct factual position was placed before the Division Bench. Orders that were impugned in writ petitions before Single Bench, were passed under the Act of 1963, which was enforced with effect from 13.04.1964. This court, vide judgment dated 16.12.1969, declared Chapter IV and VI of the Act of 1963 as ultra-vires of the Constitution and struck down the same. It was thereafter that the Rajasthan Land Reforms & Acquisition of Landowners' Estates (Amendment) Ordinance, 1975 was promulgated by the Governor in January, 1975, which received assent of the President of India on 26.03.1975.
That Rulers of various erstwhile princely States, including the erstwhile Ruler of Kishangarh, entered into a Covenant with the Government of India, thereby integrating all the States into one. The Government of India approved List of private properties of the Ruler of former State of Kishangarh. Letter dated 08.08.1949 was issued by the Secretary, Ministry of State, Government of India, New Delhi to H.H. Raj Pramukh of United States of Rajasthan to that effect. Pursuant to that letter, the Revenue Secretary, Government of Rajasthan, wrote to Maharajah Sumer Singhji of Kishangarh on 24.02.1958 that the lands of village Farrashia measuring 3003 bighas were included in the list of his private properties. Land Consolidation Officer, Kishangarh, by order dated 19.09.1962 directed aforesaid land to be entered in khatedari of late Shri Sumer Singhji and his family members. Shri Sumer Singhji expired on 16.02.1971. Whereupon the Government of India, by notification dated 30.04.1971 issued under Article 366(22) of the Constitution of India, recognized his eldest son Shri Brajraj Singh as the Ruler of Kishangarh State but that recognition was only a political act on the part of the Government of India. The Act of 1963 having been enforced with effect from 30.04.1964, a date on which late Shri Sumer Singhji was alive, the proceedings with regard to acquisition of land shall be held only qua him. According to Section 9-A of the Act of 1963, the landowner and every other person claiming through him in his estate was required to deliver possession of the estate acquired under Section 7, to the Collector immediately after the publication of the Rajasthan Land Reforms Acquisition of Landowners' Estate (Amendment) Ordinance, 1975 in the Official Gazette, and, it further provides that if he fails to do so, the Collector shall recover its possession from the landowner and such other person in the prescribed manner. With the death of Shri Sumer Singhji, the property devolved upon all his legal heirs of Class-I as per the Hindu Succession Act. Learned Senior Counsel referred to the definition of 'landowner' in Section 2(g), according to which a 'landowner' means the Ruler of a Covenanting State in Rajasthan holding an estate under and in accordance with the settlement of his personal or private properties made in pursuance of the Covenant and finally approved by the Central Government. It was late Shri Sumer Singhji, who was the landowner and, with his death, all his legal heirs would be deemed to be the persons claiming through him in his estate, therefore, each of them would be entitled to notice of acquisition proceedings in their individual right under the Act of 1963. In this connection, learned Senior Counsel relied on the judgments of the Supreme Court in Rajendra Singh Vs. Union of India - AIR 1970 SC 1946 and Madhav Rao Scindia Bahadur, etc. Vs. Union of India (1971) 1 SCC 85.
Shri K.K. Mehrishi, learned Senior Counsel, argued that no notice whatsoever was served upon other legal heirs of late Shri Sumer Singhji, than Shri Brajraj Singh, who all became landowners after his death. Shri Brajraj Singh, in response to notice dated 3rd February, 1976, issued under Section 9-A of the Act of 1963 submitted his objections before the Collector on 19.02.1976 through his Advocate, categorically asserting that Shri Sumer Singhji expired on 16.02.1971 leaving behind him surviving Pratap Kanwar, Smt. Gita Kumari, Shri Brajraj Singh, Shri Prithviraj Singh, Smt. Shree Kumari and Smt. Nandini Kumari, as his legal heirs and that his properties devolved upon all of them in accordance with Section 8 of the Hindu Succession Act. Therefore, notice ought to be given to all of them. Findings recorded by the Division Bench with reference to pleadings of Para 15 of the writ petition that petitioners misrepresented the fact to this court or distorted the facts, is factually incorrect. Learned Senior Counsel in this connection referred to the pleadings in Para 15 of the writ petition and argued that barring Shri Brajraj Singh, other four petitioners cannot be said to be aware of proceedings in which the order dated 20.02.1976 was passed because no notice of these proceedings was served upon them, nor any such order was served either upon them or any of their authorized Advocate or any other representative. Learned counsel referred to reply to the writ petition filed by the State of Rajasthan and submitted that even the State of Rajasthan in its reply to the writ petition did not controvert that plea of the petitioners. On the contrary, their stand in Para 10 of the reply was that notice for delivery of possession was required to be served only on Shri Brajraj Singh, who alone was in possession of the disputed land after death of ex-Ruler Shri Sumer Singhji, and further that said notice was not required to be served on other four petitioners. It is argued that even the averments in Para 15 of the writ petition, which have been heavily relied on by the Division Bench for dismissing the appeals, have not been specifically denied by the State Government in Para 15 of the reply to the writ petition, except saying that the impugned orders were passed in the presence of petitioners' counsel. It is contended that the petitioners' counsel would mean only the counsel of Shri Brajraj Singh, as Advocate Shri Subhash Rajoria appearing before the Compensation Commissioner as his counsel and not the counsel of other four petitioners, namely, Smt. Gita Kumari, Shri Prithviraj Singh, Smt. Shree Kumari and Smt. Nandini Kumari.
As regards delay on the part of Shri Brajraj Singh, learned Senior Counsel argued that advocate Shri Subhash Rajoria even though remained present in the proceedings before the Compensation Commissioner, but he did not inform Shri Brajraj Singh of the order passed by him dated 23.03.1996. Learned counsel submits that even otherwise, Section 15(2) of the Act of 1963 requires that a copy of an order made under sub-section (1) shall be served upon the Government and the landowner, and the compensation Commissioner, shall, after giving the Government and the landowner a reasonable opportunity of being heard in the matter, make a final order. No such order of provisional determination of compensation was served on any of writ petitioners including Shri Brajraj Singh. It is thereafter that Section 16 of the Act of 1963 casts an obligation on the Compensation Commissioner to communicate as soon as practicable his final order made under sub-section (2) of Section 15 not only to Government but also to the landowner, which was not done.
Learned Senior Counsel argued that the Compensation Commissioner had no power to proceed in the matter, till any statement of claim was filed by landowners as per requirement of Section 14 of the Act of 1963. In the present case, neither Shri Brajraj Singh nor any other legal heirs of late Shri Sumer Singhji filed any statement of claim. The Compensation Commissioner on his own proceeded to provisionally determine the compensation under Section 15 without providing an opportunity of hearing to them. The proceedings held by the Collector and the Compensation Commissioner were thus vitiated for non-compliance of the principles of natural justice.
Learned Senior Counsel submitted that the judgment of which review is sought, contains contradictory findings inasmuch the Division Bench in Para 3 of the judgment has observed that notice under Section 9-A of the Act of 1963 that was issued on 03.02.1976 for hading over possession of the subject land, was received by first petitioner i.e. Brajraj Singh, Whereas while recording findings in Para 9 of the judgment, it proceeded on the assumption that notice was served on all petitioners.
Learned Senior Counsel argued that functionaries of the respondent State have prepared a false report that possession of the disputed land has been taken over by them. The S.D.O., vide notice dated 25.02.1976, has made a false memo/public-notice of taking possession. It is contended that petitioners continued to remain in possession of the disputed land, which is evident from the fact that they were accepted to be in possession of the disputed land even when the order dated 22.05.2000 under Section 91 of the Land Revenue Act was passed against them. That pursuant to demand of Tehsildar Kishangarh, a sum of Rs.10000.40 was paid/deposited by the petitioners with the Tehsildar, Kishangarh, on 21.04.1984 towards land revenue for the period from 1964 to 1975 (Vikram Samvat 2021 to 2035) in respect of the disputed land measuring about 700 bighas in Khasra No.13/1 (present Khasra No.78/1) of village Kishangarh-B, Tehsil Kishangarh. An averment made to this effect in Para 15 of the writ petition has not been denied by respondents. Learned Senior Counsel argued that after determination under Section 15(2) of the Act of 1963, the compensation was required to be paid as per requirement of Section 17 of the Act of 1963, whereas in the present case, no such compensation was paid by respondents. What is alleged by respondents is that they have adjusted the compensation against certain other dues, whereas, according to law, no such adjustment is permitted. The compensation has to be necessarily paid and if not paid, it cannot be accepted to have been paid.
Shri K.K. Mehrishi, learned Senior Counsel, further argued that the possession has also not been taken in prescribed manner. Only prescribed manner is what is given under Section 183 of the Rajasthan Tenancy Act, according to which the State should have filed suit for recovery of possession. When the court drew his attention towards Rule 8 of the Rajasthan Land Reforms and Acquisition of Landowners Estates Rules, 1964 (for short, the Rules of 1964'), learned Senior Counsel did not press the said argument but rather argued that respondents have not even made compliance of Rule 8 of the Rules of 1964 because according to said Rules the possession was required to be taken by Collector from the landowner and such other person by proclaiming the fact of the taking over possession of the estate by beat of drum near the estate and by affixing a notice to that effect on the notice boards of the offices of the Collector and the concerned tehsil and at a conspicuous place near the estate acquired. It is common ground between the parties that neither the petitioners nor any person claiming through them, voluntarily surrendered the land. No mention of various steps referred to in Rule 8, has been made in the memo/public-notice of taking possession prepared by S.D.O. on 25.02.1976. It was asserted that the petitioners are still in possession of the land.
Shri K.K. Mehrishi, learned Senior Counsel, argued that even if the order passed by Division Bench suffers from substantial error of law, it would also justify review/recall of the order. In support of his arguments, learned Senior Counsel relied on the judgment of Gauhati High Court in Smt. Usha Rani Banik Vs. Haridas Das and Others - AIR 2005 Gauhati 1. Reliance was placed on the judgment of the Supreme Court in W.B. Govt. Employees (Food & Supplies) Coop. Housing Society Limited and Others Vs. Sulekha Pal (Dey) (Smt.) and Others - (2003) 9 SCC 253 to argue that the Supreme Court in that case after twenty years held that possession having not been taken by the manner prescribed, was illegally taken. Relying on the judgment of the Supreme Court in Teja Singh And Others vs. State of Punjab And Another (1995) 4 SCC 540, learned counsel argued that delay in every situation would not be fatal to maintainability of petition unless it is shown that position of the respondents has been irretrievably altered or that they have been put to undue hardship.
Lastly, it was argued that under Section 19(1) of the Act of 1963 the Collector ceases to have jurisdiction in the matter if the question arises whether the properties are of the nature referred to in Section 19(1) of the Act of 1963, such as all open enclosures in possession of the landowner used for agricultural or domestic purposes, all private buildings, places of worship, and wells situated in, and trees standing on, lands, included in such enclosures or house-sites, as are specified in clause (1) above, or land appertaining to such buildings or places of worship etc. In that event, the Collector has to necessarily refer the matter to the Compensation Commissioner for deciding the said question. Petitioner Brajraj Singh raised such objection in the reply to the notice under Section 9-A of the Act of 1963 issued by the Collector and therefore, the Collector ceased to have any jurisdiction and was under an obligation to refer the matter to the Compensation Commissioner. Learned Senior Counsel in this connection placed reliance on the DB judgment dated 21.02.1986 of this court in D.B. Civil Writ Petition No.743/1976 - Lt. Col. Sawai Bhawani Singh Vs. State of Rajasthan and Others, and in State Vs. Smt. Gayatri Devi and Others 1980 RRD 307.
Shri K.K. Mehrishi, learned Senior Counsel for review petitioners argued that counsel for appellants before the Division Bench made a wrong concession that controversy raised in the appeal No.746/2002 was covered by the judgment passed in Appeal No.656/2003, whereas the fact is that that writ petition No.2696/2000, out of which said appeal arose, sought to challenge the order dated 22.05.2000 passed under Section 91 of the Rajasthan Land Revenue Act, whereas the Tehsildar had no jurisdiction to take over the possession of the property. Being personal properties of the writ petitioners, the petitioners could not be held to be trespassers in their own land. It was an independent question which was required to be separately considered on merits. That writ petition could not at all be said to suffer from delay and laches because order impugned therein was passed as late as on 22.05.2000 and writ petition was filed soon thereafter. Concession made by learned counsel on a question of law or even on a mixed question of law and fact, does not bind a party. This should be held as an error apparent on the face of record so as to justify review or recall of judgment and rehearing of the matter.
Shri G.S. Bapna, learned Advocate General appearing on behalf of the State, while opposing review petitions, argued that review petitions arising out of Special Appeals against judgments of Single Judge in writ petitions are not maintainable. Remedy of Special Appeal against a judgment of the Single Bench before the Division Bench is provided by Rule 134 of the Rules of the High Court of Judicature for Rajasthan, 1952. When remedy of appeal itself is creature of the Rules, the review petition filed with regard to judgment in appeal has to be necessarily provided for by self same Rules. Unless review petition is expressly provided by the Rules, it cannot be treated as maintainable. Learned Advocate General in support of his this argument, relied on judgments of the Supreme Court in Kalabharati Advertising v. Hemant Vimalnath Narichania (2010) 9 SCC 437 and CTO v. Makkad Plastic Agencies (2011) 4 SCC 750.
Refuting the arguments that the Division Bench judgment suffers from errors on the face of record, learned Advocate General argued that the word 'petitioners' mentioned at different places in the judgment has been mentioned with reference to pleadings of Para 15 of the writ petition and it was because the writ petition was jointly filed by five petitioners. The word 'petitioners' wherever used, also includes Shri Brajraj Singh, one of the petitioners, and, therefore, discussion made with respect to conduct of petitioners in the judgment with reference to Para 15 of the writ petition, has been correctly made. It has rightly been held that petitioners were not frank and candid to this court and were guilty of misrepresentation. The court was conscious of fact that notice under Section 9-A of the Act of 1963 was received by first petitioner i.e. Shri Brajraj Singh, which is evident from averments made in Para 3 of the judgment, wherein pleadings of Para 15 of the judgment were reproduced including that ...prior to July, 2000, neither any of the petitioners was aware or had knowledge of the passing of the said order dated 20.02.1976... This was palpably false because petitioner Brajraj Singh had not only received notice of proceedings under Section 9-A of the Act of 1963 but had also definite knowledge of the order dated 20.02.1976. This was evident from his receipts of notice dated 03.02.1976 and a copy of objections dated 19.02.1976 to said notice, placed on record of writ petition by Brajraj Singh himself as Annexure-11. Learned Advocate General in this respect also referred to findings of Division Bench in Para 9 of the judgment, wherein Division Bench observed that order dated 20.02.1976 under Section 9-A of the Act of 1963 was passed in presence of the Advocate of the petitioner and that the situation was no different in so far as the knowledge of the petitioners concerning the order dated 23.03.1996 is concerned, which too was passed in the presence of their Advocate after hearing him.
Shri G.S. Bapna, learned Advocate General, in this respect referred to order of the Compensation Commissioner dated 23.03.1996 (Annexure-15) making determination of compensation and argued that Compensation Commissioner therein specifically mentioned that copy of the provisional statement prepared under Section 15(1) of the Act of 1963 was sent to the State Government as well as legal representatives of ex-Ruler and therefore objections were invited. While learned Government Advocate filed objections on 27.11.1991, the legal representatives of ex-Ruler, Shri Sumer Singhji and others, filed their written objections on 27.11.1991 and 12.12.1991.
Learned Advocate General produced original record of Compensation Commissioner and argued that the record shows that written objections were filed on behalf of all legal heirs of late Shri Sumer Singhji (who were petitioners in writ petition No.3971/2000), by their counsel Shri Subhash Rajoria, who filed vakalatnama on their behalf. Learned Advocate General submitted that it was against the backdrop of these facts that serious indictment regarding conduct of petitioners was made by Division Bench, which even thought of initiating proceedings against them for making false statement and misrepresentation to this court. However, it was because of persuasion by the then Advocate General that Division Bench decided to drop the matter then and there itself. Learned Advocate General therefore argued that findings regarding delay and laches as also conduct of appellants/review petitioners have rightly been recorded by the Division Bench and there is no infirmity thereabout.
Learned Advocate General citing judgment in Teja Singh, supra, argued that the Supreme Court in that case while deciding question whether notice on one co-owner is notice on other co-owners, held that petitioners being brothers, were co-owners and the fact that all of them jointly filed the appeal before the Supreme Court and engaged the same counsel, would clearly indicate that they are sailing together and the professed hostile terms is a pretence.
Learned Advocate General argued that in fact findings as to delay and laches and misrepresentation made by appellants were rightly recorded by the Division Bench while dismissing their appeal. The government has already taken over possession of the land way back on 25.02.1976 vide memo/public-notice dated 25.02.1976 (Annexure-1 annexed with reply to stay petition). Arguments on merits now being raised on behalf of petitioners in the scope of review ought not to be examined because they cannot be permitted to seek rehearing of the entire matter in the guise of review. Re-appreciation of evidence by review court in the present form is beyond the scope of its review jurisdiction. Review jurisdiction cannot be exercised as appellate jurisdiction. Learned Advocate General in support of his arguments relied on the judgment of the Supreme Court in Inderchand Jain (dead) through LRS Vs. Motilal (dead) through LRS - (2009) 14 SCC 663, Rajender Kumar and Others Vs. Rambhai and Others - (2007) 15 SCC 513, Lily Thomas and Others Vs Union of India and Others - (2000) 6 SCC 224, Parsion Devi and Others Vs. Sumitri Devi and Others - (1997) 8 SCC 715.
Shri G.S. Bapna, learned Advocate General while objecting to consideration of the matter on merits, further argued that in fact the disputed land falls in List C appended to the notice dated 03.02.1976. In response to that notice, objections were filed only with regard to properties included in Lists A and B appended to the notice. He therefore submitted that petitioners including Shri Brajraj Singh, did not file any objections in regard to properties included in List C. That in para 12 of the writ petition, petitioners made a misstatement of fact that objections were raised in respect of all the lands sought to be acquired by the Collector by List C enclosed to the notice dated 03.02.1976. Learned Advocate General in this connection referred to reply to notice (Annexure-11) dated 19.02.1976 and order of the Collector (Annexure-12) dated 20.02.1976. He referring order of the District Collector dated 20.02.1976 submitted that objections raised by Shri Brajraj Singh in regard to properties included in Lists A and B, were accepted in toto and properties covered thereby were accepted to be his personal properties and proceedings were dropped. However, it was for the lands other than those included in Lists A and B that they were directed to handover the possession. When no objection whatsoever was raised at the first available instance, the objections regarding disputed land with such an enormous delay of 24 years could not have been directly entertained in writ petition, which was rightly dismissed as being barred by delay and laches and the status of present petitioners was rightly declared to be that of trespassers.
Shri Sudhanshu Kasliwal, learned Senior Advocate appearing for the intervener-Airport Authority of India, argued that according to provisions of Article 14 of the Covenant, the successor of the State of the ex-Ruler would be governed according to 'gaddi' of each Covenanting State and which would also govern personal rights, privileged dignities and title of the Ruler thereof. Earlier the erstwhile Ruler Shri Sumer Singhji was recognized as land owner as per Section 2(g) of the Act and after his death, the Government of India by notification dated 30.04.1971 recognized his eldest son Shri Brajraj Singh as the Ruler. He having not objected to acquisition of the land covered by List C appended to the notice, cannot be permitted to now so object after such an enormous delay when third party rights have been created by allotment of sizable chunk out of disputed land, to the Airport Authority of India for establishing Civil Airport at Kishangarh, Ajmer. The purpose of setting up of said Airport is to provide better facilities to visitors of Dargah Sharif of Khwaja Moinuddin Chisti and Pushkar and also for marble industry because Kishangarh town is a hub of marble industry in India and has been included in the western dedicated fright corridor, which in course of time, would be developed as a dry inland container depot.
Shri K.S. Bhati, learned counsel appearing for legal heirs of Shri Prithviraj Singh, respondent no.4 in the review petition, has largely adopted the argument made by Shri K.K. Mehrishi, learned Senior Counsel appearing for review petitioner. In addition thereto, he argued that single bench did not decide any issue on merits and wrongly held the writ petitioners to be trespassers in their own land. The Single Bench did so without examining objections filed by Shri Brajraj Singh to the notice under Section 9-A of the Act of 1963, wherein it is categorically mentioned that hearing should also be provided to other legal heirs of late Shri Sumer Singhji and in the reply names of (1) Smt. Gita Kumari, (2) Shri Prithviraj Singh S/o late Shri Sumer Singhji, (3) Smt. Shree Kumari D/o late Shri Sumer Singhji and (4) Smt. Nandini Kumari D/o late Shri Sumer Singhji, were mentioned. Shri K.S. Bhati, learned counsel argued that right to land, if not a fundamental right, at-least is a constitutional right now in view of judgment of the Supreme Court in Radhey Shyam v. State of U.P. - (2011) 5 SCC 553. The said right cannot be allowed to be stultified in this manner. Not only Shri Brajraj Singh but all other legal heirs of Shri Sumer Singhji were entitled to notice and opportunity of hearing and admittedly neither was provided. This was serious infringement of their fundamental right guaranteed under Article 14 of the Constitution of India.
Shri K.S. Bhati, learned counsel argued that while examining the land owner's challenge to the acquisition of land in a petition under Article 226 of the Constitution, the High Court should not adopt a pedantic approach and decide the matter keeping in view of constitutional goals of social and economic justice and the fact that even though the right of property is no longer a fundamental right, but the same continues to be an important constitutional right and in terms of Article 300-A, no person can be deprived of his property except by authority of law. Referring to objects of the Act, 1963, Shri K.S. Bhati learned counsel argued that purpose of the Act was to introduce agrarian reforms, which is what has been stated in Section 7 and to equitably distribute the land amongst landless. The object for which the State is now trying to grab the disputed land does not match with the said avowed objective. Present purpose for which land is sought to be taken possession by the State is to set up an Airport and not for any other purpose. It is a commercial purpose for which the State is free to acquire the land under the Land Acquisition Act. Learned counsel argued that the acquisition in the present case, even if is sought to be made under Section 9-A of the Act of 1963, would be void because no compensation has been paid to the land owners. Section 12 of the Act requires the compensation to be paid and not to be adjusted. Nothing has been made clear by the State as to in what manner and against what dues, how much amount of compensation has been adjusted. Section 11(1) requires an enquiry to be made for determination of compensation. No such enquiry can take place unless notice is served on the affected parties and copy of provisional determination as per Section 15(2) is served upon them. There has thus been flagrant violation of principle of natural justice in the present case. Notwithstanding small delay, the matters ought to have been decided on merits. Learned counsel argued that in any case writ petition against the order passed by Tehsildar on 22.05.2000 could not be said to have been filed with an enormous delay.
We have given our thoughtful consideration to rival submissions and perused the material on record as well as the record of the Compensation Commissioner made available by the learned Advocate General.
Although, we have, in fairness to learned counsel appearing for the parties, noted certain arguments advanced by them on merits of the case, we do not however intend to examine those arguments because primary dispute that we are called upon to decide is whether the judgment dated 13.3.2008 suffers from any error apparent on the face of record falling within the purview of Order 47 and Section 114 of the Code of Civil Procedure, the principle of law that has been generally applied to review petitions arising out of writ petitions filed under Article 226 of the Constitution of India.
Division Bench mainly based its findings as to delay, laches and misrepresentation on the part of the writ petitioners, on pleadings in Para 15 of the writ petition which was jointly filed by all five legal heirs of late Shri Sumer Singhji, Shri Brajraj Singh, being the first petitioner. In that Para, the petitioners pleaded that the Compensation Commissioner decided the proceedings under Section 15 vide order dated 23.03.1996. It was further pleaded that Neither the said order had ever been communicated by the Compensation Commissioner to the petitioners or their Advocates, nor a copy of the same had ever been sent to them at any point of time prior to June, 2000, the petitioners had not been informed of the said order by any person or their lawyer, namely, Shri Subhash Rajoria, appearing for them in the said proceedings and as the petitioners were also not aware as to what land in respect of which the judgment dated 23.03.1996 had been passed by respondent no.2. If aforesaid pleadings are critically examined, it would be evidently clear that though the writ petitioners admitted that Shri Subhash Rajoria was appearing for all of them in the said proceedings but they were not aware as to for what the proceedings were initiated and what final order was passed in those proceedings. What has been further contended is that only after obtaining certified copies of the order dated 23.03.1996 that the petitioners came to know of the purpose of proceedings. This plea hardly inspires any confidence because whenever reference is made to petitioners, the petitioners also included Shri Brajraj Singh, the petitioner no.1, and he had not only received notice under Section 9-A, which is filed as Annexure-10 to the writ petition but also filed objections thereto, Annexure-11 to the writ petitions. In fact, he took a plea in Para 2 of the reply that after death of Shri Sumer Singhji, all other petitioners, whose names were enumerated therein, were his legal heirs and the property devolved on all of them in accordance with Section 8 of the Hindu Succession Act. The plea that they were completely unaware of the proceedings before the Collector under Section 9-A or before the Compensation Commissioner under Section 15, was therefore rightly held to be a misrepresentation made by writ petitioners to the court. Further plea in Para 15 of the writ petition that prior to July, 2000, neither any of the petitioners was aware or had knowledge of the passing of the said order dated 20.02.1976 or of any other order passed by respondent no.3 or of any proceedings in case no.26/76 nor the said order or any other order passed by respondent no.3 in the said case no.26/76 has been brought to the notice of the petitioner no.1 by authorized representative/advocate or any other person or to the notice of the petitioners no.2 to 5 by any other person, also was a palpable misstatement of fact, which is evident from the record.
Learned Advocate General has produced original record of the Compensation Commissioner for perusal of the court, wherein vakalatnama has been filed on behalf of other legal heirs as well by the same counsel Shri Subhash Rajoria, therefore, further plea that Shri Subhash Rajoria was engaged as a counsel by Shri Brajraj Singh alone and not by other writ petitioners, who are legal heirs of Shri Sumer Singhji, is also factually incorrect. We have verified all the assertions with reference to the material on record including from original record of the Compensation Commissioner produced for our perusal by learned Advocate General, that Shri Subhash Rajoria was appearing as counsel for all the legal heirs of Shri Sumer Singhji. Application dated 27.11.1991 on record filed by him indicates that the notice of provisional determination was received by all of them and he demanded further details thereabout. Shri Subhash Rajoria filed objections on behalf of all of them on 11.12.1991 demanding compensation as also the interest wherein it was clearly stated that they came to know about proceedings from notice dated 14.10.1991. As evident from Para 3 of the judgment, the Division Bench was conscious of fact that notice under Section 9-A was originally received by first petitioner no.1 Shri Brajraj Singh but in view of the fact that Shri Brajraj Singh pleaded their cause before the Collector in reply to notice under Section 9-A, it is evident that all other writ petitioners, who were all legal heirs of late Shri Sumer Singhji, together contested the proceedings before the Collector or even before the Compensation Commissioner and in fact all filed objections before the Compensation Commissioner through the same counsel, the Division Bench, apart from holding the judgment of the Single Judge dismissing the writ petition on the ground of enormous delay and laches, also additionally held that writ petitioners were not frank and candid to the court and were guilty of misrepresentation. The judgment of the Division Bench cannot be therefore said to suffer from any error apparent on the face of record because the Compensation Commissioner has recorded a categorical finding that the provisional statement determining the compensation under Section 15(1) of the Act was served upon all the legal heirs of late Shri Sumer Singhji, who filed their objections on 27.11.1991 and 12.12.1991. It is therefore that the Division Bench in Para 9 of the judgment was constrained to observe that averments in Para 15 of the writ petition not only amounted to distortion of facts but also show that there has been misadventure on the part of the petitioners in stating the facts in the manner that has been done. The Division Bench noted that the petitioners had definite knowledge of the order dated 20.02.1976. When the petitioners were required to deliver the possession of the disputed land, they filed written objections thereto through their authorized representative and the Advocate. The order dated 23.03.1996 was also passed in presence of their Advocate after hearing them. In those facts, the Division Bench observed that very invocation of high prerogative jurisdiction impales a party to state true and correct facts. The petitioners were therefore held to have dis-entitled themselves to any discretionary relief in the extraordinary jurisdiction of this court under Article 226 of the Constitution of India not only because of their conduct but also because of enormous delay and laches. Misrepresentation and misstatement was thus one aspect but the other aspect was that the writ petitions were filed belatedly in the year 2000. The delay assumes significance if it is viewed in the context of the plea that no objections were raised with regard to acquisition of the land covered by List C and that objections were raised only with regard to land covered by Lists A and B, with regard to which proceedings were dropped. Besides, the land was taken possession of by the government way back on 25.02.1976.
It may be noted that learned Single Judge, by common judgment dated 10.12.2001 decided as many as six writ petitions, of which five writ petitions were filed against the order dated 22.05.2000 passed by Tehsildar under Section 91 of the Rajasthan Land Revenue Act. Two Special Appeals were filed against judgment in two writ petitions, were dismissed by the Division Bench vide order passed on the same date i.e. 13.03.2008. Present two review petitions arise out of those appeals viz., Special Appeals No.656/2003 and 746/2002, which have been filed against judgments in Writ Petitions No.3971/2000 and 2696/2000, respectively. Of remaining four, three other Special Appeals were filed viz. Special Appeal No.741/2002 (Writ Petition No.2692/2000) by Smt. Nandini Kumari, Special Appeal No.742/2002 (Writ Petition No.2694/2000) by Smt. Gita Kumari and Special Appeal No.749/2002 (Writ Petition No.2695/2000) by Smt. Shree Kumari. However, no Special Appeal was filed against judgment in Writ Petition No.2693/2000 which was filed by Shri Prithviraj, whose legal representative has appeared before us now in review petition through her Advocate. In either case, therefore, the judgment passed by learned Single Judge as also that of the Division Bench, upholding the order passed by the Tehsildar under Section 91 of the Rajasthan Land Revenue Act, declaring them trespassers and directing their ejectment, has attained finality at-least qua four writ-petitioners, because no further challenge has been made to those judgments nor has any review petition been filed with regard thereto.
Coming now to Review Petition No.90/2008, we are not inclined to uphold the contention that learned Advocate then representing the appellants-writ-petitioners, was not justified in making statement that controversy in Appeal No.746/2002 was covered by the judgment passed in Appeal No.656/2003. In fact, Writ Petition No.2696/2000 was directed against order dated 22.05.2000 passed by Tehsildar under Section 91 of the Rajasthan Land Revenue Act, whereby the petitioners were declared trespassers and were directed to be ejected. It was against that order that petitioners rather than availing alternative remedy of appeal before the Collector or the Revenue Appellate Authority or the Board of Revenue, directly filed writ petition before this court. The writ petitions were dismissed both for non-availing alternative remedy and for reason of delay and laches because the order under Section 91, declaring the writ petitioners as trespassers, imposing penalty and directing their ejectment, was actually passed in consequence of the order of the District Collector dated 20.02.1976 whereby the disputed land was acquired. Main controversy was therefore decided in the Special Appeal arising out of Writ Petition in which challenge was made to order of acquisition. We are not therefore persuaded to accept the contention that learned Advocate, who at that time represented the writ petitioners was not justified in making the statement that controversy in Appeal No.746/2002 was concluded by judgment passed in Appeal No.656/2003.
It is not open to this court in the scope of review to examine the matter afresh on merits on the arguments that have been raised on behalf of review petitioners, most of which were neither orally urged during arguments before the Single Bench or even before the Division Bench nor were even pleaded in memorandum of Writ Petition or Special Appeal. Therefore, these arguments possibly cannot be entertained in review jurisdiction. The Supreme Court in Inderchand Jain, supra, held that an application of review would lie only when the order suffers from an error apparent on the face of record and permitting the same to continue would lead to failure of justice. First thing that would be seen to entertain a review petition is that an order of which review is sought, suffers from an error apparent on the face of record and permitting the order to stand would lead to failure of justice. In the absence of any such order, finality attached to the order cannot be disturbed. The power of review can also be exercised by the court in the event of discovery of new and important matter or evidence which, after the exercise of due diligence was not within knowledge of the party or could not be produced by him at the time when the order was made. Review court does not sit in appeal over its own order. Rehearing of matter in the guise of review is impermissible in law. Exercise of inherent jurisdiction cannot be invoked for reviewing any order. The Supreme Court in the aforesaid judgment in Inderchand Jain, relied on its earlier judgment in Rajender Kumar, supra, and Lily Thoma, supra.
In Parsion Devi and Others Vs. Sumitri Devi and Others (1997) 8 SCC 715, it was held by the Supreme Court that an error, which is not self-evident and has to be detected by process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. In exercise of review jurisdiction, it is not permissible for an erroneous decision to be reheard and corrected. There is a clear distinction between the erroneous decision and error apparent on the face of record. While the first can be corrected by the higher forum, the latter can only be corrected only by exercise of review jurisdiction.
In view of what we have discussed above, we do not find any error apparent on the face of the order passed by the Division Bench so as to justify its review or recall.
Both the review petitions are therefore dismissed with no order as to costs.
(Raghuvendra S. Rathore) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW