Orissa High Court
Surendra Nath Ghosh Trust Estate vs State Of Orissa & Others ... Opp. Parties on 6 October, 2010
Author: B.P.Das
Bench: B.P.Das
THE HIGH COURT OF ORISSA: CUTTACK
RVWPET No.160 of 2010
In the matter of review of Judgment dated 02.07.2010 passed
by this Court in W.P.(C) No.2990 of 2008.
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Surendra Nath Ghosh Trust Estate,
Kolkata & others ... Petitioners
- versus-
State of Orissa & others ... Opp. Parties
For the petitioners - M/s. R.K.Mohanty
For the opp. parties - Mr. M. Sahu
Addl. Standing Counsel
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PRESENT:
THE HONOURABLE MR. JUSTICE B.P.DAS
AND
THE HONOURABLE MR. JUSTICE B.N.MAHAPATRA
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Date of hearing: 12.08.2010 : Date of judgment 6.10.2010
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B.N.MAHAPATRA,J. This Review Petition has been filed with a prayer
to review the judgment dated 02.07.2010 passed by this Court
in W.P.(C) No.2990 of 2008.
2. Though in the review petition several grounds have
been taken at the time of argument Mr. R.K. Mohanty, learned
counsel for the review-petitioners restricted them to the
following grounds.
The first ground raised by Mr. Mohanty, is that the
writ petition was filed with a prayer for quashing certain
conditions imposed in the order dated 25.09.2007 (Annexure-2)
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passed by O.P. No.2-Collector, Puri while approving the lease of
permanent Pattadar status as settled by O.P. No.3-Tahasildar,
Puri in favour of the petitioner-Trust. But while disposing of the
writ petition this Court has exceeded its jurisdiction and decided
certain issues beyond the prayer made by the petitioner and even
not challenged by either party. Such a course adopted by this
Court is not permissible under law. In support of his contention,
he relied upon two decisions of the apex Court in V.K.Majotra
Vs. Union of India & Ors., AIR 2003 SC 3909 and in New
Delhi Municipal Council vs. State of Punjab and others, AIR
1997 SC 2847.
The second ground for review is that this Court
relied upon certain materials available in the Lower Court
Records which were produced before the Court after closure of
arguments. The petitioner did not get any opportunity to have his
say on those materials, which amounts to violation of the
principles of natural justice.
The third ground of challenge is that various
conclusions including commission of fraud, mala fide intention of
the members of the Trust to alienate the trust properties etc.
arrived at by this Court are irrelevant and incorrect.
3. To deal with the grounds of challenge taken by
Mr.Mohanty, it is necessary to know the issues decided by this
Court while disposing of the writ petition, which are as follows:
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(i) Whether the Collector, Puri is justified in
imposing the terms and conditions while
approving the leasehold land in question in
favour of the petitioner-Trust on permanent
Pattadar status in his order dated 25.09.2007
(Annexure-2) passed in BPL Case No.20 of
2005?
(ii) Whether the lease could have been granted in
favour of the petitioner-Trust at the first
instance vide order dated 10.09.2004 in Balu
Lease Renewal Case No.4 of 2004 pursuant to
which lease renewal agreement (Annexure-1)
was executed on 3rd October, 2005 ?
(iii) Whether the lease in question could have been
renewed in the year 2004 with retrospective
effect from 08.11.1970 for 60 years in the
name of the petitioner-Trust on the basis of an
application stated to have been filed by the
petitioner-trust on 26.11.1971 before the
Collector, Puri ?
(iv) Whether an unregistered Trust in relation to
immovable property is valid and is a legal
entity so as to be entitled for the grant of lease
under the OGLS Act and the Rules framed
thereunder?
(v) Whether the members of the Trust are
entitled /authorized to alienate trust property
in terms of the Trust deed?
All other conclusions including commission of fraud,
mala fide intention of the members of the Trust to alienate the trust
property by executing Power of Attorney dated 26.02.2005 and the
direction to resume the property issued in the writ petition are
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consequential and ancillary. Even if the conclusions, i.e., fraud and
mala fide intention of the parties to alienate the trust property etc.
are kept out of consideration or would have been kept out of
consideration, the ultimate result would have been the same. In any
event, the conclusions with regard to fraud, mala fide intention of the
parties to alienate the trust property etc. have not been taken into
consideration while dealing with the question of petitioner's
entitlement for grant of lease of government property in question
under the O.G.L.S. Act and the Rules.
4. To deal with the first ground of challenge, it is relevant to
know whether all the above five issues have been decided by this
Court on the basis of pleadings and contentions raised by the
parties.
The issue no.(i) arises out of the prayer of the petitioner
in the writ petition itself.
Issue Nos. (ii) & (iii) arise out of the pleadings of the
petitioner as well as opposite parties. According to the petitioner, the
lease of the land in question was granted in favour of late Surendra
Nath Ghosh on 07.11.1924 for 16 years and on 08.11.1940 the same
was renewed for another 30 years. Surendra Nath Ghosh died on
19.01.1973. Before his death one unregistered private trust was
created on 30.06.1971 by late Surendra Nath Ghosh consisting of his
family members. On 26.11.1971, the said trust applied for renewal of
lease before the Collector, Puri. Accordingly, Khasmal lease was
renewed in favour of the petitioner-Trust in Balu Lease Renewal Case
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No. 4 of 2004 for two consecutive terms of 30 years each with
retrospective effect from 08.11.1970 pursuant to which the lease
agreement Annexure-1 was executed on 03.10.2005. The O.G.L.S.
Act, 1962 prescribes the modalities for settlement of the government
land. The manner of settlement of such Khasmahal land has been
prescribed under Schedule-V appended to paragraph-3 thereof. In
the written note of submissions, it is stated that the trust is a juristic
person and it was entitled to be conferred with all the permanent
rights that law has prescribed in respect of the leasehold properties.
Therefore, the opposite party No.2-Collector, Puri is not justified to
impose certain conditions in the impugned order dated 25.09.2007
(Annexure-2) while approving the lease of permanent status in BPL
Case No.20 of 2005.
Per contra, learned counsel appearing on behalf of the
State inter alia submitted that the petitioner had filed the writ
petition by suppressing material facts for which the same was not
maintainable. The petitioner had no locus standi to challenge the
impugned order. The suit land was leased out temporarily for a
period of 30 years with effect from 08.11.1940 for residential purpose
of the lessee-Surendra Nath Ghosh. After expiry of the term on
07.11.1970, no family members of the lessee were using the said
land for residential purpose. Due to non-renewal of lease after expiry
of the period from 07.11.1970 the leasehold land was recorded in
Sarkari Khata No.67 in Hal ROR and finally published in the year
1988. The petitioner-Trust through its trustees applied for lease of
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the land in question in Balu Lease Renewal Case No.4 of 2004.
Considering the charitable activities of the trust, the Collector, Puri
renewed the lease for 60 years with retrospective effect from
08.11.1970 with certain conditions. Otherwise, it would have been
resumed due to gross violation of lease conditions and non-use of the
leasehold land for the purpose for which the same was sanctioned.
No rent was being colleted from anybody since 1975 as the lease was
not in force. Since the period of lease had expired on 08.11.1970, the
provisions of the O.G.L.S. (Amendment) Act are not applicable to the
instant case. The lessee was not using the leasehold land for
homestead purpose for a period not less than five years as on the
appointed date, i.e., 09.01.1991. The lease was not in force on the
appointed date. The petitioner-Trust with an intention to transfer the
leasehold land applied for permanent lease vide BPL Case
No.20/2005.
Issue No.(iv) arises out of the petitioner's own pleadings
that an unregistered Trust was created on 30.06.1971 by late
Surendranath Ghosh prior to his death consisting of his family
members. On 26.11.1971, the said un-registered Trust applied for
renewal of lease before the Collector, Puri. Accordingly, Khasmahal
lease was renewed in favour of the petitioner-Trust in Balu Renewal
Lease Case No.4/2004 for two consecutive terms of 30 years each
with retrospective effect from 08.11.1970. The Trust being a juristic
person it was entitled to be conferred with all the permanent rights
that law has prescribed in respect of leasehold properties. Therefore,
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the Collector is not justified to impose certain conditions in the
impugned order dated 25.09.2007 (Annexure-2).
Issue no.(v) arises on the basis of the pleading of the
petitioner that the petitioner is an unregistered trust and after
conferring valid permanent title on the petitioner, the Collector has
no power to limit such permanent right by imposing certain
conditions. Repudiating such stand of the petitioner, learned
counsel for the State contended that in view of Clause 5 (cha) of the
trust deed, members of the Trust are not competent to transfer or
change the nature of the properties described in the schedule of the
trust deed by effecting gift, sale, mortgage etc. and, if that is done,
the same shall be void and inadmissible everywhere in all courts of
law as per the terms of the trust deed. The lease sanctioning
authority has every right to impose any condition to safeguard the
leasehold property from any alienation or misuse.
5. A close look to the pleadings and contentions raised by
the parties in the writ petition, written note of submissions, counter
affidavit and rejoinder makes it clear that all the above issues
emerged from the pleadings and arguments advanced by both the
parties.
6. The matter can be looked at from other angles. It is not
in dispute that the petitioner claimed his right in the prayer under
the provisions of the O.G.L.S. Act and the Rules framed thereunder.
In paragraph-9 of the counter affidavit, it is stated that the
previsions of the O.G.L.S. (Amendment) Act are not applicable to the
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instant case due to the fact that the period of lease was expired on
08.11.1970. The lessee was not using the leasehold land for
homestead purpose for not less than five years on the appointed date
i.e. 09.01.1991. The land in question was recorded under Sarakari
Khata since 1998 and no rent was being collected from the lessee
since 1975. In the rejoinder, there is no specific denial to the above
facts stated in paragraph-9. This necessitated the Court to
adjudicate the second issue i.e. whether the lease could have been
granted in favour of the petitioner-Trust for 60 years with
retrospective effect from 08.11.1970, vide order dated 10.09.2004 in
Balu Lease Renewal Case No.4 of 2004.
7. While adjudicating issue no. (i), which is the prayer of the
petitioner in the writ petition, this Court came to a conclusion that
the petitioner is not a 'person' as defined under Section 2(b-2) of the
O.G.L.S. Act and also is an unregistered trust. It was not entitled to
be granted with lease under the O.G.L.S. Act. Consequently it was
held that no relief could be granted on the prayer of the petitioner.
While so holding, this Court could not have shut its eyes to the
illegality committed by the Revenue Authority in granting lease to the
petitioner-Trust de hors the statutory provisions. Law is well settled
that writ jurisdiction is discretionary in nature and must be exercised
in furtherance of justice. The Court has to keep in mind that its order
should not defeat the interest of justice nor it should permit an order
to secure dishonest advantage or perpetuate an unjust gain nor
approve an order which has been passed in contravention of the
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statutory provisions. (See Champalal Binani Vs. CIT, West Bengal
& others, AIR 1970 SC 645; K.D.Sharma Vs. Steel Authority of
India Ltd. & Ors., (2008) 12 SCC 481, 2008 AIR SCW 6654).
The apex Court in Karnataka State Road Transport
Corporation v. Ashrafulla Khan & others, AIR 2002 SC 629, held
that the High Court under Article 226 of the Constitution is required
to enforce rule of law and not pass an order or direction which is
contrary to what has been injuncted by law.
8. Further, in deciding the controversy involved in issue
No.(i), which is the prayer in the writ petition, it was necessary to
decide issue Nos.(ii) & (iii) relating to petitioner's entitlement to be
granted with lease under the O.G.L.S. Act with retrospective effect,
as same is the foundation for claiming relief as prayed for by the
petitioner in the writ petition. If the petitioner was not entitled for
grant of lease of Government land under the O.G.L.S. Act and the
Rules, its prayer for grant of lease on Permanent Pattadar Status
with heritable and transferable right would not at all arise. Therefore,
the petitioner's entitlement for grant of lease of government land in
its favour is a common issue as far as issue Nos. (i), (ii) & (iii) are
concerned and they are inextricably connected.
9. In view of the above, the first ground taken by the
review-petitioner that this Court has exceeded its jurisdiction by
deciding certain issues beyond the prayer fails.
The decisions of the apex Court in V.K.Majotra (supra) is
of no help to the petitioner as in that case while exercising
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jurisdiction under Article 226 of the Constitution the High Court
issued certain directions beyond the pleadings as well as the points
raised by the parties in course of argument. In that context the apex
Court held that the learned Judges overstepped their jurisdiction in
giving a direction beyond the pleadings or points raised by the
parties during the course of argument.
In the present case, issues have been decided on the
basis of pleadings and points raised by the parties and the
arguments advanced in course of hearing and thereafter the
consequential directions have been issued by this Court.
The decision of the apex Court in New Delhi Municipal
Council (supra) is also of no help to the petitioner as in that case the
apex Court held as follows:
"We have only the rule of caution in mind which
warns that ordinarily, Courts should,
particularly in Constitutional matters, refrain
from expressing opinion on points not raised or
not fully and effectively argued by counsel on
either side."
As stated above, the issues decided by this Court
emerged from the pleadings and arguments advanced by both or
either side.
10. The second ground for review is that this Court utilized
certain materials available on record, which were produced before
the Court after closure of the argument, and the petitioner did not
get opportunity to rebut the same which amounts to violation of the
principles of natural justice.
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While dealing with issue Nos. (i) and (ii), this Court
referred to some of the documents available on the case records
pertaining to Balu Lease Renewal Case No.4 of 2004 in which lease
was granted for 60 years with retrospective effect from 08.11.1970
and BPL Case No.20 of 2005 in which lease of permanent Pattadar
Status was granted in favour of the petitioner-Trust with certain
terms and conditions. But the judgment of this Court is founded on
the settled principles of law with reference to statutory definitions.
Admitted factual backgrounds have been tested in the light of
statutory definitions. Therefore, the question whether any document
should have been kept out of consideration is of no relevance and
consequence. Even on the admitted factual position the conclusion
regarding position of law would have been the same. Moreover, the
factual position highlighted in the counter affidavit was not refuted
during the course of argument and in the rejoinder as well.
Therefore, the plea that certain documents from the record which
have been taken note of in the judgment were not brought to
petitioner's notice is an after-thought and irrelevant. The counter
affidavit referred to the records produced, which were taken note of.
When there was no argument advanced in respect of the statements
made in the counter affidavit regarding factual position, the plea now
taken cannot be a ground for review.
The apex Court in Haridas Das Vs. Usha Rani Banik
(Smt.) & Ors., AIR 2006 SC 1634, held that the parameters of review
are prescribed in Order XLVII of the CPC. The former part of the rule
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deals with a situation attributable to the applicant, and the latter to a
jural action which is manifestly incorrect or on which two conclusions
are not possible. Neither of them postulate a rehearing of the dispute
because a party had not highlighted all the aspects of the case or could
perhaps have argued them more forcefully and/or cited binding
precedents to the Court and thereby enjoyed a favourable verdict. This
is amply evident from the explanation to Rule 1 of Order XLVII which
states that the fact that the decision on a question of law on which the
judgment of the Court is based has been reversed or modified by the
subsequent decision of a superior Court in any other case, shall not be
a ground for review of such judgment. Where the order in question is
appealable, the aggrieved party has adequate and efficacious remedy
and the Court should exercise the power to review its order with the
greatest circumspection.
11. Otherwise also, it cannot be said that the petitioner is in
any way prejudiced because of the Court's reference to certain
documents available on the case record without confronting the
same to the petitioner while adjudicating issue nos. (i) and (ii) with
regard to petitioner's entitlement to be granted with lease of
Khasmahal land under the OGLS Act and the Rules. While
adjudicating issue No.(v) reference has been made to Power of
Attorney dated 26.02.2005 available on record which has been
executed by the members of the petitioner-Trust and thus no
prejudice has been caused for not confronting the same to the
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petitioner. So far as issue Nos.(iii) &(iv) are concerned, no
material/document from the LCR has been utilized.
12. While dealing with issue no.(i), this Court referred to the
letter of the Deputy Collector, Puri bearing No.294 dated 28.9.2007
which shows that the land in question has been settled by the
Tahasildar, Puri and approved by the Collector, Puri in terms of sub-
rule (3)(a) of Rule 5-B of the O.G.L.S. (Amendment) Rules, 1993. The
petitioner itself has relied upon those provisions of the OGLS Act and
the Rules in the writ petition and written note of submissions.
Hence, no prejudice is caused to the petitioner by referring to such
letter of the Deputy Collector without making any confrontation to
the petitioner.
Reference was also made to the application dated
3.11.2005 in Form No.1 filed by the petitioner for permanent
settlement of the leasehold land under the above provisions of the
O.G.L.S. Rules. This being the petitioner's own application, the
petitioner is in no way prejudiced by referring to such application
without making confrontation to the petitioner.
The order of the Collector dated 10.9.2004 was referred
to. This is the order by which lease was granted in favour of the
petitioner-Trust in Lease Renewal Case No.4/2004 for 60 years with
retrospective effect from 8.11.1970 and lease agreement (Annexure-
1) was executed on 3rd October, 2005 pursuant to such order of the
Collector. In the said order, the Collector observed that a building
was constructed on Khasmahal land and is used for commercial
14
purpose without permission of the Khasmahal authority and no
resumption proceeding has been initiated. It cannot be said that the
petitioner was not aware of that order on the basis of which lease
renewal agreement under Annexure-1 has been executed. It may be
admitted here that renewal of lease deed agreement dated
03.10.2005 under Annexure-1 was executed pursuant to the order
dated 10.09.2004 passed by the Collector. Even it has not been
pleaded in the review petition that the review petitioner was not
aware of the said order of the Collector dated 10.09.2004 in
pursuance of which the lease renewal agreement was executed. It is
accepted that the lease renewal agreement (Annexure-1) was
executed pursuant to the order of the Collector dated 10.09.2004
which has been held to be illegal.
The order of the Tahasildar dated 30.03.2007 passed in
BPL Case No.20 of 2005 has been referred to indicate that the
Tahasildar, Puri by the said order settled the land in favour of the
petitioner-Trust on Permanent Pattadar Status with heritable and
transferable rights and recommended the same for approval of the
Collector. The Collector accepted such recommendation of the
Tahasildar imposing certain terms and conditions which were under
challenge by the petitioner itself in the writ petition. As reference to
the above order of the Tahasildar dated 30.03.2007 causes no
prejudice to the petitioner, there was no need to confront the same to
the petitioner.
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13. Similarly, while deciding issue No.(ii), besides the order
of the Collector dated 10.09.2004, the letter No.7757 dated
09.09.2004 issued by the Tahasildar was referred to. This letter of
the Tahasildar reveals that the land was recorded in Sarakari Khata
as the lease was expired in 1970 during pendency of settlement
operation. This particular fact has been stated in the counter
affidavit filed by the opp. parties. Therefore, reference to such letter
without confronting the same to the petitioner causes no prejudice to
the petitioner. For the reasons stated in paragraph-12, reference to
the order of the Collector dated 10.09.2004 without making
confrontation causes no prejudice to the petitioner.
14. While deciding issue No.(iii) no material/document from
the LCR has been referred to. However, in course of hearing and in
the written note of submissions dated 11.05.2010, the petitioner-
Trust claimed that it had applied for renewal of lease before the
Collector, Puri on 26.11.1971 and the same was renewed for 60
years with effect from 08.11.1970. In that context, this Court held
that there is no pleading in the writ petition to the effect that on
26.11.1971 an application was made to the Collector for renewal of
lease granted in the name of the petitioner-Trust much less any
evidence was either enclosed to the writ petition or the rejoinder
supporting such contention. In course of hearing, no evidence was
adduced before the Court in support of such contention. Neither the
Collector's order dated 10.09.2004 passed in Balu Lease Renewal
Case No.4/2004 nor the renewal lease deed executed on 03.10.2005
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(Annexure-1) revealed that any such application was filed on
26.11.1971. This Court further held that in the case record of Balu
Lease Renewal Case No.4/2004 the application dated 26.11.1971
claimed to have been filed does not find place. In this circumstance,
there is no question of violating the principles of natural justice as
alleged by the review-petitioner.
15. Issue No.(iv) is that the Trust being an un-registered one
is not entitled to be granted lease under the OGLS Act and the Rules.
Only relying upon Section 5 of the Indian Trust Act, 1882 and
Section 17(b) of Indian Registration Act, 1908 it was held that the
Trust in relation to immovable property being not registered, the
claim that the petitioner-Trust is a juristic person does not merit
consideration. In this context, no material/document from the L.C.R.
has been utilized.
16. Issue No.(v) is whether members of the Trust are entitled
to alienate the Trust property in terms of the trust deed. This issue
has been decided on the basis of the copy of the trust deed
submitted by the petitioner in the Court and the Power of Attorney
dated 26.02.2005 executed by the members of the Trust giving power
to one Madhusudan Khuntia to sell away the land in question after
receiving the consideration money of Rs.13 (thirteen) lakh which run
contrary to the terms and conditions of the Trust deed itself. It
cannot be said that the petitioner was unaware of such Power of
Attorney dated 26.02.2005, which had been executed by the
members of the petitioner-Trust. Even in the review petition it has
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not been pleaded that the members of the Trust have not executed
such Power of Attorney dated 26.02.2005. Therefore, reference to
the said Power of Attorney without making confrontation to the
petitioner causes no prejudice to the petitioner.
17. In view of the above, petitioner's second ground for
review that this Court utilized certain materials available on record
produced before the Court after closure of the argument and the
petitioner did not get opportunity to rebut the same amount to
violation of principles of natural justice also fails.
18. The third ground for review is that various conclusions
reached by this Court on facts and law are incorrect and irrelevant.
Law is well settled that power of review cannot be
confused with the appellate power.
In Devaraju Pillai Vs. Sellayya Pillai, AIR 1987 SC
1160, the Hon'ble Supreme Court held that if a party is aggrieved by
a judgment of a Court, the proper remedy for such party is to file an
appeal against that judgment. A remedy by way of an application for
review is entirely misconceived and if a Court entertained the
application for review then it has totally exceeded its jurisdiction in
allowing the review merely because it takes a different view on a
construction of the document.
In Delhi Administration Vs. Gurdip Singh Uban &
Ors., AIR 2000 SC 3737, the Hon'ble apex Court deprecated the
practice of filing review application observing that review, by no
means, is an appeal in disguise and it cannot be entertained even if
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application has been filed for clarification, modification or review of
the judgment and order finally passed for the reason that a party
cannot be permitted to circumvent or bypass the procedure
prescribed for hearing a review application.
In Subhash Vs. State of Maharashtra & Anr., AIR
2002 SC 2537, the apex Court emphasized that Court should not be
misguided and should not lightly entertain the review application
unless there are circumstances fallen within the prescribed limits
that the Courts and Tribunal should not proceed to reexamine the
matter as if it was an original application before it for the reason that
it cannot be the scope of review.
The Hon'ble Supreme Court in Jain Studios Ltd.,
through its President Vs. Shin Satellite Public Co. Ltd., AIR 2006
SC 2686, held that the power of review cannot be confused with
appellate power which enables a superior Court to correct all errors
committed by a subordinate Court. It is not rehearing of an original
matter. A review of old and overruled argument is not enough to reopen
concluded adjudications. The power of review can be exercised with
extreme care, caution and circumspection and only in exceptional
cases. Thus, it is the settled position of law that review lies when there
is error apparent on the face of record and such an error crept in
inadvertently or otherwise and it is in the interest of justice, such a
mistake should be rectified.
19. In view of the above, the review-petitioners' challenge to
various conclusions including commission of fraud and mala fide
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intention of the members of the Trust to alienate the trust property etc.
reached by this Court both on facts and law cannot be a ground for
review.
20. The review petition is also liable to be dismissed because
of misleading averments made in the review petition which run
contrary to the averments made in the writ petition and submissions
made in the written note of submissions.
In paragraph 5 of the review petition it is averred that
the impugned judgment of this Court has referred to documents
which are not in consonance with the actual records and accordingly
a date chart showing chronology of events was given in the said
paragraph. It is stated that the copies of relevant documents referred
to in the said date chart are annexed by the petitioner as Annexure-2
series. In the said date chart against Sl.3 dated 30.6.1971 it is stated
"Surendra Nath Ghosh-Trust Estate-Registration No.5489 dated
30.6.1971 before the Sub-Registrar, Hoogly". Surprisingly, in
Annexure-2 series, no copy of the deed in the name of Surendra Nath
Ghosh Trust Estate bearing registration No.5489 dated 30.6.1971
before the Sub-Registrar, Hoogly is attached. Moreover, reference to
such document in review petition runs contrary to the averments
made in paragraph-8 of the writ petition in which it is stated that
one unregistered trust was created on 30.6.1971 by Shri Surendra
Nath Ghosh keeping his family members as trustees. On the basis of
such averments and after going through the xerox copy of the trust
deed dated 30.6.1971 furnished by the petitioner, this Court came to
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the conclusion that no trust in relation to immovable property is
valid unless declared by non-testamentary instrument in writing
signed by the author of the trust or the trustees and registered.
Because of the unregistered nature of the trust deed this Court
further held that the petitioner-Trust is not a legal entity and it can
neither make any application for grant of lease in respect of any land
in its favour nor can any lease be granted in favour of an
unregistered trust. Now the plea in the review petition that the above
statement made in paragraph-8 of the writ petition was due to
typographical error inasmuch as the trust deed was a registered one
bearing Registration No.5489 dated 30.06.1971 cannot be a ground
for review because the writ petition was decided on the basis of
pleadings in the writ petition. The review-petitioner cannot travel
beyond the pleadings in the writ petition.
21. Similarly against Sl.4 dated 26.11.1971 it is stated,
"Surendra Nath Ghosh submitted a request letter to the Collector,
Puri for renewal of lease agreement for a further period of 30 years".
But in the written note of submissions dated 11.5.2010 it is stated
that the petitioner-Trust applied for renewal/continuation of the
lease before the Collector, Puri on 26.11.1971 and accordingly,
Khasmahal lease was renewed and the lease deed under Annexure-1
was executed on 03.10.2005. Thus, the petitioners' own case is that
on the basis of application made by the petitioner-Trust for renewal/
continuation of the lease before the Collector, Puri on 26.11.1971,
Khasmahal lease was renewed and the lease deed under Annexure-1
21
was executed on 03.10.2005. Therefore, the averment made in the
review petition that Surendra Nath Ghosh made such application on
26.11.1971 runs contrary to the statements made in the written note
of submissions on the basis of which the relevant issue has been
decided.
Even assuming that such an application was made by
Surendra Nath Ghosh to the Collector, Puri on 26.11.1971 for
renewal/continuation of lease in his favour for a further period of 30
years, no such renewal was granted and that period also expired on
06.11.2000. Therefore, the revenue authorities are not justified to
renew the lease in favour of the petitioner-Trust, namely, Surendra
Nath Ghosh Trust Estate in the year 2004 on the basis of the said
letter dated 26.11.1971 filed by Surendra Nath Ghosh with
retrospective effect from 08.11.1970.
22. In view of the above, this Court has no hesitation to hold
that no case for review can be made out on the basis of misleading
averments made in the review petition which run contrary to the
averments made in the writ petition and written note of submissions.
This Court deprecates such practice.
23. Further, on the basis of such misleading and
contradictory statements it is averred in paragraph-6 of the review
petition that the impugned judgment is the outcome of an apparent
error on the face of the record giving directions beyond
pleadings/points raised by the parties during the course of argument
without bringing the additional points to the notice of the parties
22
which amount to over-stepping of jurisdiction by the Court and,
therefore, such findings and directions are clearly error apparent on
the face of the record and cannot stand the test of law. This stand of
the petitioner cannot be a ground for review. In fact the review-
petitioner is trying to confuse the issues involved on the basis of self-
contradictory averments and statements and to mislead the Court.
24. Issue Nos.(i) & (ii) have been decided on the basis of the
relevant provisions of the OGLS Act & the Rules, particularly Rule-5-
B and Sub-rule 3(a) of the said Rule of the OGLS (Amendment)
Rules, 1993 upon which both the parties placed reliance. While
interpreting the said provision reference was made to Section 2(b-2)
of the OGLS Act, 1962 in which the term 'person' has been defined
and this Court came to the conclusion that grant of lease of
Permanent Pattadar Status in BPL Case No.20 of 2005 under
Annexure-2 and grant of lease in Balu Lease Renewal Case No.4 of
2004 in favour of the petitioner-Trust are void ab initio as the
petitioner is not a 'person' as defined in Section 2(b-2) of the OGLS
Act and also does not fulfill other conditions prescribed under Rule
5-B and Sub-rule 3(a) of the said Rule of the OGLS (Amendment)
Rules, 1993. Relying on the provisions of the O.G.L.S. Act and Rules
and judgments of the apex Court as well as this Court, it was held
that since the revenue authorities had granted lease in favour of the
petitioner-Trust de hors the statutory provisions, such grant of lease
in Balu Lease Renewal Case No.4/2004 and BPL Case No.20 of 2005
is void abinitio.
23
The review-petitioner has tried to question the
conclusion reached by this Court on the basis of definition of 'person'
provided in the OGLS Act with reference to several decisions and
legal maxim and has contended the same to be illegal and untenable
in law. First of all, this stand of the petitioner cannot be a ground
for review. Secondly, the decision rendered with reference to some
other statute is of no assistance to the review-petitioner because
specific definition of the term 'person' is available in the statute
under consideration. The definition of the term 'person' in other
statute cannot be an aid to interpret the definition of the term
'person' in the statute under consideration, which is clear and
unambiguous.
25. The further contention of Mr. Mohanty is that this Court
assuming jurisdiction has decided about validity of the grant of lease
holding that the Trust in question being an un-registered one is not a
person as defined in Section 2(b-2) of the OGLS Act, 1962. This
argument of Mr.Mohanty is not correct. This Court referring to
definition of 'person' under Section 2(b-2) of the OGLS Act came to the
conclusion that the Trust is not a person according to the definition.
The expression 'un-registered' has been used with reference to Trust
to emphasize that Trust in relation to immovable property unless
registered by non-testamentary instrument in writing and signed by
the author of the trust or trustees is not valid. The expression 'un-
registered' has also been used with reference to the trust to emphasize
that an un-registered trust is not a juristic person and therefore it
24
being not a legal entity can neither make any application for grant of
lease in respect of any land in its favour nor any lease can be granted
in favour of an un-registered trust.
26. At this juncture, it may be relevant to refer to Section
114 read with Order XLVII, Rule 1 of the CPC and some of the
judicial pronouncements of the Privy Council and the apex Court.
Section 114 read with Order XLVII, Rule 1, C.P.C. prescribes the
limitations for entertaining a review petition. The limitations are that
the party filing the application for review has discovered a new and
important matter or evidence after exercise of due diligence, which
was not within his knowledge or could not be produced by him at the
time when the decree or order was passed, or on account of some
mistake or error apparent on the face of the record or 'for any other
sufficient reason'. The aforesaid limitations are prescribed in a
crystal clear language.
The expression 'any other sufficient reason' contained in
Order XLVII, Rule 1, means 'sufficient reason' which is analogous to
those specified immediately to it in the provision of Order XLVII, Rule
1, C.P.C.
In Chhajju Ram Vs. Neki & Ors., AIR 1922 PC 112, it was
held by the Privy Council that analogy must be discovered between
two grounds specified therein namely; (i) discovery of new and
important matter or evidence; and (ii) error apparent on the face of
record, before entertaining the review on any other sufficient ground.
25
The Hon'ble Supreme Court in Haridas Das (supra), held
that a perusal of the Order XLVII, Rule 1 shows that review of a
judgment or an order could be sought : (a) from the discovery of new
and important matter or evidence which after exercise of due diligence
was not within the knowledge of the applicant; (b) such important
matter or evidence could not be produced by the applicant at the time
when the decree was passed or order made; (c) on account of some
mistake or error apparent on the face of record or any other sufficient
reason. Therefore, some mistake or error, if made ground for review, it
must be apparent on the face of record and if a party files an
application on the ground of `some other sufficient reason' it has to
satisfy that the said sufficient reason is analogous to the other
conditions mentioned in the said rule i.e. discovery of new and
important matter or evidence which it could not discover with due
diligence or it was not within his knowledge and, thus, could not
produce at the initial stage. Apparent error on the face of record has
been explained to include failure to apply the law of limitation to the
facts found by the Court or failure to consider a particular provision of
a statute or a part thereof or a statutory provision has been applied
though it was not in operation. Review is permissible if there is an error
of procedure apparent on the face of the record e.g. the judgment is
delivered without notice to the parties, or judgment does not effectively
deal with or determine any important issue in the case though argued
by the parties. There may be merely a smoke-line demarcating an error
simplicitor from the error apparent on the face of record. But there
26
cannot be a ground for entertaining the review in the former case.
"Sufficient reason" may include disposal of a case without proper notice
to the party aggrieved. Thus, if a person comes and satisfies the Court
that the matter has been heard without serving a notice upon it, review
is maintainable for the "sufficient reason" though there may be no error
apparent on the face of record.
None of the above parameters are applicable to the facts of
the present case.
27. In the above facts situation, no case for review under
Order XLVII, Rule 1, C.P.C. is made out. The well-known parameters
of review, as indicated above, having not been fulfilled, there is no
scope for review.
The Review petition is accordingly dismissed.
.............................
B.N.Mahapatra, J.
B.P. Das, J.I agree.
......................... B.P.Das,J.
Orissa High Court, Cuttack. The 6th Oct., 2010/SS/PCP/SKJ.