Himachal Pradesh High Court
State Of Himachal Pradesh vs Amrawati And Others on 30 August, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 277 of 2018.
Judgment reserved on: 211.8.2018 .
Date of decision: 30.08.2018.
State of Himachal Pradesh .....Appellant/Defendant.
Versus Amrawati and others ....Respondents/Plaintiffs.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.Gs., with Mr. Bhupinder Thakur, Dy. A.G. For the Respondents : Mr. Rajiv Jiwan, Advocate.
Tarlok Singh Chauhan, Judge This regular second appeal has been filed by the appellant-State against the concurrent findings recorded by both the learned Courts below whereby the suit filed by the respondents/plaintiffs was partly decreed.
2. The case of the plaintiffs was that they were residents of House No. 18-A, Raura Sector, Bilaspur and were owners in 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 2 possession of land comprised in Khasra No. 338/11, measuring 5 biswas, situated in village Mandi -Manwa, Pargna and Tehsil Sadar, .
District Bilaspur, H.P. (hereinafter referred to as the suit land). It was averred that the plaintiffs were successor-in-interest of one Malhi, who had applied for grant of land under the Bhakra Dam Oustees Scheme by making an application through his son Prem Lal, the father of the plaintiffs, the latter acting in capacity of Rafiq (friend). Upon consideration on his application, Malhi was allotted the suit land vide order dated 20.11.1963 passed by the Deputy Commissioner, Bilaspur.
The patta in this behalf was granted on 29.11.1972 and possession was delivered on the spot to the allottee and this was so recorded in mutation No. 226 dated 24.11.1973. It was averred that upon the death of Malhi, Prem Lal, the father of the plaintiffs became owner in possession of the suit land and applied for exchange of the said plot with a nearby area. During the process of making inquiries with respect to the request for exchange,the Deputy Commissioner, Bilaspur on 18.3.2005, reviewed the order dated 20.11.1963 and set-
aside the grant of suit land earlier made in favour of Malhi. The reason mentioned was that since plot No.18-A in Raura Sector-2 had already been granted to Prem Lal son of Malhi, he could not have granted the benefit again. It was pleaded in the plaint that such an order passed by ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 3 the Deputy Commissioner, after 42 years of the allotment having been made, was unsustainable in the eyes of law, since the Deputy .
Commissioner did not possess the power of review under the relevant statute. The Divisional Commissioner had also fallen in error while dismissing an appeal against the order passed by the Deputy Commissioner and plaintiffs being legal heirs of Prem Lal be declared in possession of the suit land and the order dated 18.3.2005 of the Deputy Commissioner, Bilaspur affirmed in appeal by the learned Divisional Commissioner, Mandi on 25.9.2010 were illegal, wrong, without jurisdiction and null and void. A declaration was further sought that the application for exchange of land filed by the predecessor-in-
interest of the plaintiffs, was still surviving, consequently relief of permanent prohibitory injunction restraining the defendant from causing any interference in the possession of the plaintiffs or dispossessing them from the suit land was prayed for. In the alternative, it was prayed that if the plaintiffs are dispossessed from the suit land they be granted a decree for possession of the suit land and in addition thereto, compensation to the tune of Rs.1,00,000/- for causing harassment and inconvenience to the plaintiffs was also sought against the defendant.
::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 43. The defendant-State filed a written statement wherein preliminary objections qua maintainability, locus standi, estoppel, .
valuation and the plaintiffs being suppression of material facts were taken. On merits, it was averred that the possession of the suit land was given to the predecessors of the plaintiffs through Ram Lok and Roshan Lal. The land measuring 0-5 bigha comprised in Khasra No. 338/11, situated at Village Mandi-Manwa was allotted to Prem Lal, son of Malhi on 20.11.1963. It was averred that it was found during the inquiry proceedings on an application for exchange that there was no land in the name of Prem Lal in the old submerged town at Bilaspur and there was only a house in his name situated in a Abadi-deh land.
Prem Lal had made an application on 29.9.1958 for allotment of a plot in new Bilaspur township, in pursuance of which he had been allotted a house-cum-shop comprised in Plot No.18-A, Raura Sector, Bilaspur, New Bilaspur Town. It was pleaded that Prem Lal, predecessor-in-
interest of the aforesaid plaintiffs while applying for the exchange of the land as an oustee did not disclose the fact of allotment of plot No.18-A, Raura Sector and thereby the suit land had been allotted in his favour. Since he had already been allotted a plot for his rehabilitation in lieu of the acquired house, Prem Lal could not have given any further benefit under the scheme and thus, the allotment of ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 5 the suit land to Prem Lal had rightly been cancelled by the Deputy Commissioner by reviewing his previous order. It was asserted that .
the appeal against the order of review had also been rightly rejected by the Divisional Commissioner, Mandi and prayed for dismissal of the suit.
4. On the pleadings of the parties, the learned trial Court on 28.10.2013 framed the following issues:-
1.
2.
suit land? OPP r to Whether the plaintiffs are owners in possession of the Whether the order dated 18.3.2005 passed by learned Deputy Commissioner and order dated 25.09.2010 passed by learned Divisional Commissioner and the order affirming the orders aforesaid are nullity being without jurisdiction? OPP
3. If issues No. 1 and 2 are proved in favour of the plaintiffs, whether the plaintiffs are entitled for permanent prohibitory injunction as alleged? OPP
4. Whether the plaintiffs are entitled for mandatory injunction directing the defendant to consider his application as per rules of Dam oustees Scheme as alleged? OPP
5. Whether the plaintiffs are also entitled for recovery of compensation of Rs.1,00,000/- for harassment and on account of expenses suffered by him? OPP
6. Whether the suit of the plaintiffs is not maintainable?
OPD ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 6
7. Whether the plaintiffs have no locus standi to file the present suit? OPD
8. Whether the plaintiffs have no cause of action to file the .
present suit? OPD
9. Whether the plaintiffs have not come to Court with clean hands?OPD
10. Whether the suit of the plaintiffs is not properly valued?
OPD.
11. Relief.
5. After recording evidence and evaluating the same, the learned trial Court partly decreed the suit of the plaintiffs to the effect that the plaintiffs being legal representatives of Prem Lal were owners in possession of the suit land and the orders dated 18.3.2005 and 25.9.2010 passed by Deputy Commissioner, Bilaspur and Divisional Commissioner, Mandi were declared to be wrong, without any jurisdiction and nullity. The defendants were directed by wayof mandatory injunction to reconsider the application of the plaintiffs/their predecessor for exchange of the land comprised in Khasra No. 338/11, measuring 5 biswas, situated at Mandi-Manwa, Pargna and Tehsil Sadar, District Bilaspur.
6. Aggrieved by the judgment and decree dated 30.11.2016 passed by the learned trial Court, the defendant-State preferred an appeal before the learned first Appellate Court, which was dismissed ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 7 by the learned first appellate Court vide its judgment and decree dated 31.8.2017. It is against these judgments and decrees passed by both .
the learned Courts below that the defendant-State has filed the instant Regular Second Appeal before this Court.
7. It is vehemently urged by learned Additional Advocate General that the learned Courts below have failed to notice that Prem Lal had suppressed the material facts before the competent authority at the time of moving application dated 20.11.1963 for allotment of Nautor land by concealing that he had already been allotted plot No.18/A on the basis of his application dated 29.9.1958 and, therefore, he is not entitled to another plot in terms of the Scheme.
8. On the other hand, Mr. Rajiv Jiwan, learned counsel for the respondents would argue that both the transactions are separate and based on different rights and, therefore, there is no question of concealment.
I have heard the learned counsel for the parties and have gone through the material placed on record.
9. A perusal of the record goes to show that both Malhi and Prem Lal had been separately allotted land under the Scheme, in their own respective rights, against different properties independently held by them. Both of them received separate notices under Section 9 of ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 8 the Land Acquisition Act, 1894 for their respective holdings. The Notice Ex. PF received by Malhi in respect of 1/3rd share held by him in Abadi .
Deh land, whereas notice Ex. PG issued to Prem Lal is in respect of House No.1037/A. The compensation was awarded in favour of Prem Lal vide award Ex.PH, whereas the compensation was awarded to Malhi vide award Ex.PD. Thus, it stands proved on record that Prem Lal was allotted plot No.18-A in lieu of the acquired structure i.e. House No. 1037/A, whereas Malhi was allotted/received khasra No. 338/11 i.e. the suit land in lieu of his share held by him in the acquired land.
10. Thee learned first Appellate Court has rightly observed that the whole confusion appears to have arisen only on account of the fact that the application for grant of land under the Bhakra Dam Oustees Scheme was admittedly made by Prem Lal, but admittedly was made on behalf of his father Malhi, in the capacity of his next friend (rafiq), since the latter was admittedly a person of unsound mind (fatur-ul-akal) which is clearly evident from the perusal of application Ex.PA. However, the Deputy Commissioner while passing the order dated 18.3.2005 Ex.PX failed to consider all these facts and passed the order against the predecessor-in-interest of the respondents.
Therefore, affirmation of this order by the Divisional Commissioner is ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 9 of no consequence. Even otherwise, the title of the parties in the given circumstances could at best be adjudicated and decided by the Civil .
Court as the orders passed by the Deputy Commissioner and Divisional Commissioner to say the lest are without application of judicial mind.
11. That apart, the order of cancellation dated 18.3.2005, Ex.PX, by the Deputy Commissioner amounts to a review of the previous order dated 20.11.1963 and it is more than settled that the power of review is a statutory power and in absence of any such power having been conferred in writing in the statute, no power could vest within any authority to exercise the power of review. In the very nature of things, proceedings under the Scheme like one before me, do not admit of review.
12. As observed earlier, it is more than settled that power of review is a creature of the statute, therefore, unless such power is vested, such provision is a quasi-judicial or even a judicial authority cannot exercise any power, even for correcting a wrong.
13. The learned Additional Advocate General has not been able to point out any provision in the statute whereby it can be gathered that the Deputy Commissioner had the power of review his or his predecessor's order.
::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 1014. In Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills Ltd. (2005) 13 SCC, 777, the Hon'ble .
Supreme Court of India in para 19 held as under:
"19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re- heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 11 reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and .
invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (1981) SCC (L&S) 309, it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again.
15. Applying these principles, it is apparent that where a Court or judicial authority having jurisdiction to adjudicate on merit, proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication.
16. The Hon'ble Supreme Court in Dr. (Smt.)Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya Sitapur (U.P.) and others (1987) 4 SCC 525 and Patel Narshi Thakershi and others vs. Shri Pradyumansinghji Arjunsinghji (1971) 3 SCC 844, has clearly held that power to review is not an inherent power and must be conferred by law either expressly or necessary implication.
17. The first Appellate Court has further rightly observed that the Bhakra Dam Oustees Scheme, 1971 was itself a complete Code and did not provide for any power of review to the allotting authority.
Therefore, the order that was subsequently passed by the Deputy ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 12 Commissioner vide Ex.PX was apparently in excess of the jurisdiction .
or rather without jurisdiction. Lastly, even this order is ignored, even then admittedly the order Ex.PX was passed in violation of the basic principles of natural justice and fair play as admittedly the predecessor-in-interest of the respondents was never afforded an opportunity of even being heard.
18. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law.
Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judge Bench decision of the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:
"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 13 findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
.
19. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 14 length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied .
in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the r question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
20. Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP 15 before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts .
and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
21. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and, therefore, cannot be held to be perverse. Moreover, the findings rendered by both the learned Courts below are pure findings of fact which are immune from challenge in second appeal.
22. No question of law much less substantial question of law arises for consideration in this appeal.
23. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
( Tarlok Singh Chauhan ) th 30 August, 2018. Judge (GR) ::: Downloaded on - 31/08/2018 22:54:28 :::HCHP