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2004 DIGILAW 613 (AP)

Darsi Ragamma v. Government Of A. P.

2004-06-28

V.V.S.RAO

body2004
V. V. S. RAO, J. ( 1 ) IN these two writ petitions the petitioners and the respondents are same. First petitioner is mother and second petitioner is minor son at the relevant time. They are aggrieved by orders of the Government passed in two separate orders dated 7. 9. 1993 and 17. 9. 1993. Therefore, both the writ petitions are disposed of by this common order. ( 2 ) ONE Rangaiah, husband of first petitioner, applied to Tahsildar for assignment of Government land. Petitioners alleged that the Tahsildar assigned the land admeasuring ac. 1. 00 in S. No. 1508/2 and Acs. 1. 08 in s. No. 1508/6 after conducting necessary enquiry. The land was statedly brought under cultivation. The assignment was made by order dated 27. 2. 1975. ( 3 ) IT is the case of the petitioners that after lapse of fourteen years, fifth respondent filed an appeal before the Revenue Divisional officer, which was dismissed. The same was confirmed by the first revisional authority, Commissioner for Land Revenue. However, the Government entertained revisions, and by impugned orders being g. O. Ms. No. 865, dated 7. 9. 1993 (subject- matter of Writ Petition No. 1454 of 1994), and G. O. Ms. No. 892, dated 17. 9. 1993 (subject-matter of Writ Petition No. 1460 of 1994) cancelled the assignment on the ground that the land was being cultivated by the fifth respondent. Assailing the two government orders, two writ petitions are filed. ( 4 ) THOUGH the writ petitions were admitted and interim orders were passed on 3. 2. 1994, neither the official respondents nor the contesting fifth respondent filed any counter-affidavit. Be that as it is, when the matter was called before me on 21. 6. 2004, learned Government Pleader for Revenue (Assignment) was directed to get instructions in the matter. Today he has filed a statement allegedly given by petitioners herein to the effect that petitioners are cultivating the land in S. No. 1508/2 admeasuring Ac. 1. 00 and fifth respondent is cultivating the land in s. No. 1508/6, admeasuring Acs. 1. 08. Based on this, learned Government Pleader prays to close the case as the matter is compromised between both parties. Learned counsel for the petitioners, Sri Y. Krishna reddy, disputes the statement allegedly given by petitioners as well as the compromise between petitioners and fifth respondent. 1. 08. Based on this, learned Government Pleader prays to close the case as the matter is compromised between both parties. Learned counsel for the petitioners, Sri Y. Krishna reddy, disputes the statement allegedly given by petitioners as well as the compromise between petitioners and fifth respondent. ( 5 ) IT is now well settled that Order xxiii of Code of Civil Procedure, 1908, which regulates settlement and compromise between contesting parties, has no application to the proceedings in an application for judicial review under Article 226 of the constitution of India. Being public law remedy, it is the duty of the Court to adjudicate an application for judicial review, like writ petition, with reference to the well settled grounds for judicial review and may either accept or reject the contention of the petitioners regarding the validity of quasi-judicial or administrative order. A Court in writ petition cannot record compromise as held by the Supreme Court in Dwarka prasad Agarwal v. B. D. Agarwal, AIR 2003 SC 2686 . It was held: a writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Article 226 of the constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character. It is also well settled that a writ remedy is not available for resolution of a property or a title dispute. . . . In terms of Section 141 of the Code of civil Procedure, the provisions thereof are not applicable in a writ proceeding. No provision of the Code of Civil Procedure has been made applicable in terms of the rules framed by the High Court of Judicature at Nagpur dated 25. 9. 1951 framed under article 225 of the Constitution of India. In any event the applicability of the provisions of the Code of Civil Procedure, if any, would be only with regard to the procedural and machinery provisions contained therein but thereby no new right could be created. 9. 1951 framed under article 225 of the Constitution of India. In any event the applicability of the provisions of the Code of Civil Procedure, if any, would be only with regard to the procedural and machinery provisions contained therein but thereby no new right could be created. Even if the provisions of Order 23, Rule 3 of the code of Civil Procedure and/or principles analogous thereto are held to be applicable in a writ proceeding, the Court cannot be permitted to record a purported compromise in a casual manner. It was suo motu required to address itself to the issue as to whether the compromise was a lawful one and, thus, had any jurisdiction to entertain the same. It may be true, as has been contended by mr. Rao, that the writ petition was maintainable at the threshold. But once it is held that by reason of the purported settlement between the private parties, the high Court was not required to issue any writ, it could only either permit the petitioner to withdraw the writ petition and dismiss the same as having become infructuous. The high Court derives its jurisdiction in terms of Article 226 of the Constitution of India, if an occasion arises therefor, to make judicial review of the order passed by a statutory authority. It is beyond any cavil that no writ can be issued if the disputes involve private law character. The writ Court has also no jurisdiction to determine an issue on private dispute over a property or right under a partnership. While purporting to record a compromise, the writ Court cannot enlarge its jurisdiction by directing that the suits pending in different Courts filed or different causes of action would also stand compromised. By reason thereof the writ court would be entrenching upon the jurisdiction of the Civil Court indirectly which it could not do directly. For the purpose of granting permission even for withdrawal of suit in terms of Order 23, Rule 1 of the Code of Civil Procedure, the Civil Courts themselves were required to apply their mind as to whether having regard to the dispute between the parties, a case therefore has been made out or not. The Civil Court is required to act on its own and not on the basis of any direction of any other Court determining a totally foreign issue. The Civil Court is required to act on its own and not on the basis of any direction of any other Court determining a totally foreign issue. ( 6 ) HAVING regard to binding precedent of the Supreme Court, the compromise projected by learned Government Pleader for Revenue cannot be accepted. ( 7 ) INSOFAR as the contention of the learned Counsel for the petitioners that without there being proper order as to condonation of delay on the revision petitions preferred by fifth respondent, the government could not have set aside/ cancelled the assignment in favour of petitioners has force. Therefore, accepting the contention, I deem it proper to set aside both the Government Orders impugned in the writ petitions and remit back the matter to the Government with a direction to decide whether there is any justification to entertain revision petitions of fifth respondent after lapse of more than seventeen years seeking cancellation of assignment made in favour of late Rangaiah, husband of first petitioner. It is also made clear that it shall be open to the Government to get a report from the District Collector as to the ground position and pass appropriate orders in the matter. ( 8 ) WITH the above observations and directions, the writ petitions are disposed of.