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2005 DIGILAW 433 (RAJ)

Sappu Begum v. State of Rajasthan

2005-02-10

BHAGABATI PRASAD BANERJEE, SATYA PRAKASH PATHAK

body2005
Judgment Pathak, J.-This is a D.B. Civil Review Petition under order 47 Rule 1 of the CPC read with Article 226 of the Constitution of India against the Judgment dated 18.01.2005 in D.B. Civil Special Appeal No. 602/2000 Smt. Sappu Begum & Ors. vs. State of Rajasthan & Ors., decided alongwith two other D.B. Civil Writ Petitions. 2. We have heard learned counsel Mr. J.P. Joshi for the petitioners and carefully gone through the Judgment delivered by the Division Bench of this Court and the Judgment delivered by the learned Single Judge dated 18.07.2000 in S.B. Civil Writ Petition No. 2346/2000 and also carefully examined the material available on record. The learned Counsel for the petitioners has argued that the Hon’ble Division Bench was required to determine mainly the following issues:- 1. Whether the regularization of the land in favour of the petitioners is in terms of the Judgment of the Revenue Board ? 2. Whether after the order passed by the State Govt. dated 10.06.1998, the revenue authorities were competent to decline regularization of the land in favour of the petitioners in accordance with the provisions contained in the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 (for short, hereinafter referred to as ‘the Rules of 1970’)? 3. Whether Section 16(4) of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ‘the Tenancy Act’), which prohibits allotment/regularization of certain categories of lands, was not attracted in the present matter and the observations made in view thereof are also not in accordance with the factual position existing as the petitioners are claiming 27 Bhigas of land which was in their long possession and further on account of that possession they were entitled for the allotment of land in view of Rules of 1970? 4. Whether the Board of Revenue was right while deciding the matter and observing that the Revenue Appellate Authority was not competent to confer Khatedari rights even when regularization of land concerned was found in favour of the petitioners and this finding is intact and nothing has been done by the authorities in the Revenue Department in this regard ? 5. Whether the land, which was allotted to the Housing Board, is in the possession of the petitioners and not in possession of Housing Board and the Housing Board has no right whatsoever to raise any construction etc. on it? 6. 5. Whether the land, which was allotted to the Housing Board, is in the possession of the petitioners and not in possession of Housing Board and the Housing Board has no right whatsoever to raise any construction etc. on it? 6. Whether after the Government has issued direction for change of classification of land was it open to the revenue authorities not to carry out or comply with the directions of the State Govt.? 7. Whether on the issues sought to be raised in the appeal the review petition deserves to be admitted and accepted. ? 8. Whether on the basis of subsequent notification issued by the State Govt. amending its earlier notification dated 01.04.1991, the petitioners were entitled to claim the land as a matter of right? 3. We have given our thoughtful consideration to the contentions raised before us. 4. We are dealing with a case where the petitioners have divested their title in the land before the same could be allotted to them lawfully in 1994 and the rights were sought to be prepositioned by a writ petition filed in 2000. 5. To correctly appreciate the matter, it shall be proper to narrate the facts giving rise to this review petition. Sappu Begum and three other filed S.B. Civil Writ Petition No. 2346/2000, which was dismissed on 18.07.2000. In the Writ Petition, the petitioners prayed for the following reliefs: i. the judgement of Revenue Board dated 5.1995 (Annex. 6) to the extent it held that petitioners are not entitled to be declared as khatedars of the land, be quashed and set aside: ii. the Judgment /order passed by the Board of Revenue and the Revenue Appellate Authority to the extent that it should be seen that petitioners possession should be regularized, should be interpreted by this Hon’ble Court to mean that petitioners should be bestowed upon the khaterdari rights and respondents be directed to do so; iii. the order dated 11.03.1996 (Annex. 8) and consequential order dated 15.03.1996 (Annex. 9) may kindly be quashed and set aside.; .iv. the order dated 11.03.1996 (Annex. 8) and consequential order dated 15.03.1996 (Annex. 9) may kindly be quashed and set aside.; .iv. the tender notice No. 213 dated 6.2000 may also be quashed and set aside to the extent it includes the lands of the petitioners and respondent No.7 may kindly be restrained from carving out any road from out of the land of the petitioners measuring 27 bighas in Khasra No. 381 of village Nagaur; .v. the respondents No. 4 to 6 may kindly be directed to comply with a part of theJudgment of Board of Revenue (Annex. 6) passed in favour of the petitioner and also to comply with the order of the State Government dated 10.6.1988 (Annex. 18) in their true letters and spirits and to act upon them accordingly. 6. The learned Single Judge came to positive finding that petitioners stated in Para No. 29 of the petition that prior to the above writ petition they had filed S.B. Civil Writ petition No. 2269/96 and the same was withdrawn with the liberty to file fresh petition. After withdrawal of the writ petition, when again the above writ petition was filed, then on close scrutiny of the earlier writ petition No. 2269/96 it was found that almost similar prayers were made in the writ petition filed subsequently. 7. It was also noticed by the learned Single Judge that several objections were raised in the earlier writ petition No. 2269/96 regarding maintainability of the writ petition such as writ petition was filed by the present petitioners through their power of attorney Shri Shakti Singh and the power of attorney executed in favour of Shakti Singh on 212.1992 for the land in question which was purchased by them by registered sale deed dated 2.1994 and also the petitioners concealed material facts from Court by not disclosing sale-deed dated 2.1994 as it was disclosed by the private respondents in their affidavit in November 1996 for impleading them as party respondents in that petition. 8. The learned Single Judge found that after withdrawal of the earlier petition No. 2269/96 way back on 7.1.1999, the petitioners waited for nearly 18 months and thereafter filed the present writ petition. 8. The learned Single Judge found that after withdrawal of the earlier petition No. 2269/96 way back on 7.1.1999, the petitioners waited for nearly 18 months and thereafter filed the present writ petition. The leaned Single Judge found that enormous delay of 18 months was not explained in that writ petition and observed that since tender notice was issued on 6.2000 by the Housing Board for construction of roads etc, the writ petition was filed to delay the matters. The learned Single Judge was of the view that only ground of delay and laches was sufficient to dismiss the petition but the learned Single Judge also considered the matter on merit and found that the petitioners have no case and they want to retain the possession of land by hook or crook particularly in the circumstances when tender notice No. 213 dated 02.06.2000 (Annex.1) was issued. The learned Single Judge after considering the matter in detail dismissed the writ petition in the manner indicated hereinabove. The petitioner feeling dissatisfied with the Judgment passed by the learned Single Judge in S.B. Civil Writ Petition No. 2346/2000 preferred D.B. Civil Special Appeal No. 602/2000, which was heard and disposed of vide Judgment delivered by Division Bench on 18.01.2005, hence this review petition has been filed. 9. At the very outset, it can be mentioned here that scope of review is very narrow and it is not as a matter of right to be exercised but has to be exercised only when it is found that there is an error apparent on the face of record which requires to be set right. Furthermore, when requirement of the provisions contained in Order 47 Rule 1 of CPC are satisfied particularly on discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicant’s knowledge, could not be produced for mistake or error apparent on the face of record or for any other sufficient reason. 10. In a case where correct interpretation of law alleged to have not been made or a conclusion drawn may seem to have a different interpretation but does not change the ultimate outcome then it will not have any justification to entertain a review petition. 10. In a case where correct interpretation of law alleged to have not been made or a conclusion drawn may seem to have a different interpretation but does not change the ultimate outcome then it will not have any justification to entertain a review petition. The contention of the learned counsel is basically regarding non-applicability of Rule 16(4) of the Tenancy Act in the present matter and according to him the land is in the possession of the petitioners and the Board of Revenue had directed the revenue authorities to regularize the land in question in their favour. It may be stated here that it is not in dispute that on the land in question the petitioners are trespassers. 11. It is also not in the dispute that the Housing Board after getting allotment of land is developing a housing colony and for that matter the construction of the roads are in progress for the public at large. The learned Single Judge, as discussed hereinabove, found that the petitioners had filed a writ petition earlier to the present one, which was withdrawn and after issuance of tender notice No. 213 dated 6.2000 (Annex.1 to the writ petition) filed the petition. The learned Single Judge also came to the conclusion that the material facts were not disclosed while the writ petition was filed and on merits also there was no case of the petitioners. The Division Bench, while considering the matter, has referred Rule 20 of the Rules of 1970 at page 3 of the Judgment and also quoted Rule 20 according to which in certain districts allotment to trespassers can be made. Section 16(4) of the Tenancy Act makes a mention of the lands which are of certain categories and particularly the lands which are used for casual or occasional cultivation in the bed of a river or a tank are not liable to be regularized. The Division Bench after considering the entire matter, came to the conclusion that the question of allotment would arise only when the land is converted and up till date the nature of the land has not been changed i.e. it remains Agore i.e. tank bed, therefore, the same was not available for allotment. The learned counsel for the petitioners could not explain as to what steps were taken by them after the Judgment was delivered by the Board of Revenue for regularization. The learned counsel for the petitioners could not explain as to what steps were taken by them after the Judgment was delivered by the Board of Revenue for regularization. For conferment of Khatedari rights, a regular suit is required to be filed under the provisions of the Tenancy Act, 1955. 12. A perusal of the Judgment delivered by the Board of Revenue (Annex.6) would clearly indicate that it has not been ordered that the declaration be made in favour of the petitioners regarding Khatedari rights. If that is so and the land in question has not been regularized in favour of the petitioners and further when the land in question is said to be in possession of the petitioners in the capacity as trespassers, then the land not being of the nature available for allotment then how without regularization/conferment of Khatedari rights can be made available to the petitioners. 13. The argument of the learned Counsel that the land in question is not part of the river bed or tank, the observations made by the Division Bench are not factually correct and the review petition should be admitted and accepted is not tenable in view of the fact that petitioners are trespassers and the nature of the land what it used to be has not been changed by the Judgment of Revenue Board and Khatedari rights have not been bestowed upon them. 14. The contention of learned Counsel that the notification issued by the State Govt. on 4.1991, which has been relied on by the Division Bench, whereby the operation of Rules of 1970 has been excluded from District Nagaur, in fact, subsequently amended, therefore, petitioners have all the right to get allotment of land done in their favour on account of long possession, is without merit in as much as that it has to be seen first that as to what is the status of the petitioners with regard to the land in question. As discussed hereinabove that the petitioners are trespassers and, further more, previously when writ petition was filed it was withdrawn and after 18 months in the present matter writ petition was filed on almost similar type of averments were made therein and in fact the learned Single Judge noticed that the earlier writ petition was filed through power of attorney which was executed in 1992 whereas, the sale-deed was executed for the said land only in July, 1994. The above factual position in fact disentitles the petitioners to claim any right to possess the land in question and to get Khatedari rights on regularization/allotment. It is pertinent to mention here that for the conferment of Khatedari rights a regular suit is required to be filed under the provisions of Tenancy Act. 15. A careful scrutiny of the material available on record indicate that the petitioners are trying to retain the possession of the land in question to which they have no legal title. Merely technical grounds will not entitle them to retain the land in question which is to come into public use. Be as it may, petitioners have already been in possession in the capacity as trespassers and retained possession for a long time, therefore now they cannot be permitted to continue illegal possession over the land in dispute for indefinite period. In our humble opinion, first of all it is the duty of a litigant to come before the Court with clean hands. Suppression of material facts as observed by the Learned Single Judge and unexplained delay of 18 months itself was a sufficient ground for the dismissal of the writ petition. The review petition is running into 34 pages. It so appears that to discuss each and every point raised in the review petition would amount to sit in appeal over the Judgment delivered earlier against which the review petition has been filed. 16. The learned Counsel in support of his submissions has placed reliance on the case reported in AIR 2005 SCW 230 (Board of Control for Cricket, India & Anr. vs. Netaji Cricket Club & Ors.) and argued that when points at issue or wrong interpretation of law in relation to the fact has been made, the Court should entertain the review petition. In the above case, an undertaking was given before the Court by one of the learned Counsel for the parties. vs. Netaji Cricket Club & Ors.) and argued that when points at issue or wrong interpretation of law in relation to the fact has been made, the Court should entertain the review petition. In the above case, an undertaking was given before the Court by one of the learned Counsel for the parties. Subsequently, a controversy arose in relation to that undertaking. It was in the above set of facts and circumstances, the Hon’ble Supreme Court observed that review applications are maintainable arising on account of mistake of law or fact by Court or an advocate. The law is settled on the point that the scope of review is very narrow and unless the error is so apparent that at the first sight it requires correction only then the powers of review are required to be exercised by the Court. The findings arrived at or the observations made itself in the Judgment of the Division Bench would not be sufficient in our humble opinion to entertain in the review petition. 17. In view of the foregoing discussion, we find no merit in this review petition and the same is dismissed. No order as to costs.