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2006 DIGILAW 2060 (RAJ)

S. M. S. Investment v. State of Raj.

2006-06-16

A.K.PUROHIT, R.B.PARMAR

body2006
Honble PUROHIT, M.—The applicants have filed these review applications under section 86 of the Rajasthan Land Revenue Act, 1956 (in short hereinafter referred to as the Act) for reviewing the judgment passed by this court on 10.5.2002 by which the appeals filed by the applicants under section 20 of the Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963 (in short the Act of 1963) were dismissed. [Section 21 of the Act of 1963 provides the provision for review] 2. The learned counsel for the applicants has argued that the Division Bench of this court while deciding the appeals has not considered the relevant provisions of the Act of 1963 and has committed an error apparent on the face of record by way of dismissing the appeals being not maintainable u/s. 20 of the Act of 1963. Therefore, the judgment of the Division Bench of this court dated 10.5.2002 deserves to be reviewed. 3. These are cases in which the proceedings for acquisition of Estates of former Ruler of Jaipur were initiated by Collector, Jaipur and after affording the opportunity of hearing of the Ex-Ruler, Collector, Jaipur passed the order by which land measuring 9325 bighas and 10 biswas was ordered to be acquired in favour of the State Govt. out of 14026 bighas 9 biswas of the land and land measuring 4672.09 bighas was left out of the operation of the Act of 1963. Ex-Ruler Maharaja Bhawani Singh and others filed a writ petition No. 743/76 before Honble High Court and alleged that land under acquisition is of the nature referred to in section 10(1) of the Act of 1963 and it is exempted from acquisitions. The Honble High Court set aside the order passed by the Collector, Jaipur dated 17.4.1976 and the present applicants were asked to file their objections within a period of two months before the Compensation Commissioner and it was directed that the objections will be decided by the Compensation Commissioner after holding an enquiry. Thereafter, Ex-Ruler Shri Bhawani Singh, his family members and transferees filed their respective objections. Thereafter, Ex-Ruler Shri Bhawani Singh, his family members and transferees filed their respective objections. The Compensation Commissioner after hearing both the parties, dismissed the objections filed by the transferees holding that the objections could only be filed by the Ex-Rulers and the local authority and the inter se dispute between Ex-Ruler and transferees relating to the properties cannot be decided by the Compensation Commissioner, and held that objections filed by the transferees are not maintainable. Against the order of the Compensation Commissioner, the transferees/present applicants filed appeals before the Board of Revenue and the Division Bench of the Board after hearing learned counsel for the appellants and the Govt. Advocate has come to the conclusion that these appeals against the order of the Compensation Commissioner were not maintainable u/s. 20 of the Act of 1963. 4. Before this court while hearing the appeals, the learned counsel for the present applicants had raised the argument that the property claimed by them was exempted under the provisions of section 10(1) of the Act of 1963. While the Govt. Advocate raised preliminary objections regarding the maintainability of these appeals u/s. 20 of the Act of 1963. Section 20 of the Act of 1963 has been reproduced by the Division Bench of this court in its judgment. Once again, it is reproduced herein-under: "Section 20 – Appeals from the orders of Compensation Commissioner and Collector : (1) The Government or any person aggrieved by any decision of the Compensation Commissioner or the Collector, as the case may be, may (a) under sub-section (2) of section 3, sub-section (2) of section 10 and sub-section (2) of section 11, within ninety days of the date of such decision, and (b) under sub-section (2) of section 15, within ninety days from the date of communication of such order, appeal to the Board. (2) When an appeal is made to the Board under sub-section 1), the appeal shall be heard and decided by a bench of the Board consisting of two Members. (3) In deciding an appeal under this section, the authority hearing the appeal shall follow the same procedure as prescribed for the hearing of appeals made to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955). (4) The decision of the Board in an appeal under this section shall be final." 5. (3) In deciding an appeal under this section, the authority hearing the appeal shall follow the same procedure as prescribed for the hearing of appeals made to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955). (4) The decision of the Board in an appeal under this section shall be final." 5. Bare perusal of provisions of Section 20 of the Act of 1963 reveals that appeals under section 20 of the Act of 1963 can only be filed against the decision of Compensation Commissioner of the Collector, as the case may be, u/ss. 3(2), 10(2), 11(2) and 15(2) of the Act of 1963 and there is no provision of appeal against the other orders passed by the Compensation Commissioner or the Collector which is not covered under the above provisions. In the present case, the Compensation Commissioner, Jaipur has not passed any order u/s. 10(2) of the Act of 1963. Therefore, the appeals before the Division Bench were not maintainable against the impugned order of the Compensation Commissioner, Jaipur. In support of this argument, the Govt. Advocate has placed reliance on 1983 RRD page 414 State vs. Dr. Karni Singh. The Division Bench of this court considered these arguments. 6. The applicants filed their objections before the Compensation Commissioner, Jaipur. Section 7 of the Act of 1963 provides that after the commencement of the Act, the Government may, by notification in the Official Gazette, appoint a date for acquisition of land owners estates in the State and for their vesting in the State Government. The State Govt. appointed date for acquisition of land owners estate as 1.9.1964. Section 7A of the Act of 1963 further makes provisions for non-recognition of certain transfers and agreements and any transfer of an estate liable to acquisition under this Act or any agreement made by a land owner with any other person or after the commencement of the Act for transfer of hi estate liable to acquisition shall be null and void. The provisions pertaining to consequences of acquisition are contained in section 8 of the Act of 1963 and from the date of vesting any estate all rights, titles, interest of the land owner and of other person claiming through him in his estate stood acquired by and vesting in the Government free from all encumbrances. The provisions pertaining to consequences of acquisition are contained in section 8 of the Act of 1963 and from the date of vesting any estate all rights, titles, interest of the land owner and of other person claiming through him in his estate stood acquired by and vesting in the Government free from all encumbrances. Section 10 of the Act of 1963 exempts certain properties from acquisition, which provides that notwithstanding anything contained in section 8, buildings, place of worships, wells open enclosures in possession of the land owner and for agricultural or domestic purpose etc. shall continue to belong to or be held by such land-owner. Sub-section (2) of section 10 further provides that if any question arises whether any property is of the nature referred to in sub-section (1), it shall be referred to the Compensation Commissioner, who may, after holding the prescribed enquiry make such order thereon as he deems fit. The applicants filed their objections before the Compensation Commissioner, Jaipur claiming that the properties transferred in their favour by the Ex-Ruler before the appointed date, are exempted from the provisions of section 10. The Compensation Commissioner, Jaipur did not decide the question whether the properties as claimed by the applicants are of the nature referred to in section 10(1) of the Act of 1963. A perusal of the impugned judgment shows that the learned Compensation Commissioner, Jaipur categorized the objections filed before him in three parts, viz.: (i) Objections filed by Lieutenant Colonel Bhawani Singh, (ii) Objections filed by members of royal family, and (iii) the transferees. 7. After hearing both the parties, the Compensation Commissioner, Jaipur held that the objections filed by the transferees are not maintainable and the objections filed by the Ex-Ruler and his family members held to be maintainable, which have not been decided as yet. It is, thus, clear that the Compensation Commissioner, Jaipur has not passed any decision on the question whether the properties claimed by the Ex-Ruler and his family members as their private properties are of the nature specified in section 10(1) of the Act of 1963. Therefore, the impugned judgment passed by the learned Compensation Commissioner, Jaipur cannot be termed as an order or judgment passed under section 10(2) of the Act of 1963. In the case of State vs. Dr. Therefore, the impugned judgment passed by the learned Compensation Commissioner, Jaipur cannot be termed as an order or judgment passed under section 10(2) of the Act of 1963. In the case of State vs. Dr. Karni Singh, provisions of appeal under section 20 of the Act of 1963 have been considered and it has been observed as under: "Section 20 of the Act of 1963 provides for limited right of appeal to the Board of Revenue. Appeals under this section can be filed in respect of the matters specified in sections 3(2), 10(2), 11(2) and 15(2) of the Act. Section 3(2) of the Act deals with the amount of land revenue payable in respect of any estate of a land-owner. Section 10(2) of the Act deals with a reference made to the Compensation Commissioner in respect of a property specified in sub section (1) thereto. Section 11 deals with refund of sums to which landowner is not entitled. Section 15 of the Act relates to amount of compensation payable to land owner in respect of estate resumed." 8. In view of above provisions of law, the Division Bench of this court held that the order passed by the Compensation Commissioner, Jaipur dated 17.6.1996 does not fall in any of the categories specified in section 20 of the Act of 1963 and the question whether the property claimed as a private property falls u/s. 10(1) of the Act of 1963, has not been decided by the Compensation Commissioner, Jaipur and also held that the objections filed by the Ex.-Ruler and his family members as to whether any property is of the nature referred to in section 10(1), have yet to be decided by the Compensation Commissioner, Jaipur. Therefore, the impugned judgment of the Compensation Commissioner was not termed as an order of the judgment passed u/s. 10(2) of the Act of 1963 and because the right of the appeal u/s. 20 of the Act of 1963 is limited in respect of the matters specified therein, every order passed by the Compensation Commissioner is not appealable u/s. 20. Consequently, the preliminary objections raised by the learned Govt. Consequently, the preliminary objections raised by the learned Govt. Advocate in these appeals have been allowed by holding that the appeals filed by the appellants were not maintainable u/s. 20 of the Act of 1963 and appellants are free to seek any other remedy which may be available to them under any other law or by way of writ petition, if they are so advised. 9. The learned counsel for the applicants have once again argued the same legal points which were raised while arguing the appeals and which have already been considered and decided by this court while deciding the appeals. 10. The learned counsel for the applicants now wants us to rehear the appeals on the same grounds, which were raised before this court while deciding the appeals. In these review petitions it is not permissible because the scope of review is very limited. Review is permitted only under the circumstances of discovery of new and important matter which after exercise of due diligence was not within the knowledge or could not have been produced at the time when the order was passed or on account of some mistakes or error apparent on the face of the record. 11. Section 86(3) of the Act expressly provides that the application for review shall lie on the grounds mentioned in order 47 Rule 1 C.P.C. and the provisions of the said order shall be subject to provisons contained in sub-section (1) and (2) of section 86 of the Act. It is well settled principle that the mistakes or errors on the face of the record must be in the nature, which does not require any extraneous matter to show its incorrectness. It should be an error so manifest and clear that no court would permit such an error to remain on the record while hearing the review the court cannot sit over the judgment and hear the case as being heard in the appeal or revision the scope of review has got its limited compass in comparison to the scope available at the time of hearing of appeal or revision. 12. The series of the decisions have crystallized the position that palpable and manifest errors on the face of the record review is permitted. 12. The series of the decisions have crystallized the position that palpable and manifest errors on the face of the record review is permitted. Order 47 Rule 1 C.P.C. provides that the scope of review is very limited and the review of the judgment can be allowed and three grounds; (i) discovery of new and important of new and important matters of evidence i.e. fresh facts which after exercise of due diligence was not within the knowledge of the applicants and could not be produced by him at the time when the decree was passed or the order was made, (ii) some mistake or error apparent on the face of the record, (iii) for any other sufficient reasons, which are analogous to the reasons specified above. 13. An error can be said to be apparent on the face of the record only when it may be noticed without going deep in record and trying tofind circumstances in which it was given. The court deciding the review petitions is also not required to go into correctness or otherwise of the decisinos of the lower court to examine the question of exercise of jurisdiction by those courts, therefore, the scope of present application for reviewing the order pronounced in the appellate court cannot be wider than that of appeals. 14. The power of review should be exercised in the rarest of the rare cases and it should not be used indiscriminately to avoid justice and when there is no error apparent on the face of the record and the material irregularity the review deserves to be rejected. Subsequent happening is also not a ground for review nor subsequent change of law or decision of the same of the superior court uphold such ground. A subsequent admission of the party in the matter of the litigation cannot be ground for review. 15. The Honble Supreme Court in Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhary, AIR 1995 SC 455 has clearly held that the error apparent on the face of the record should be such which should strike immediately looking at the record and would not require any long drawn process of reasoning on points. While considering review, the courts are not supposed to re-appreciated the entire evidence and reverse the findings. While considering review, the courts are not supposed to re-appreciated the entire evidence and reverse the findings. In "Ajit Kumar Rath vs. Orissa State, AIR 2000 SC 85 , the apex court held that the power is not absolute and is subject to restrictions indicated in Order 47 C.P.C. A review cannot be claimed or asked for merely for a fresh hearing or correction of an erroneous view taken earlier, i.e., the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed in establishing it. The expression "any other sufficient reason" used in Order 47 Rule 1 C.P.C. means a reason sufficiently analogous to those specified in the rule. Any other attempt not based on any ground set out in order 47, would amount to an abuse of the liberty given to the court under the Act to review its judgment. Similarly, in Nilkanthan Dash vs. Dhruba Charan Sahu, AIR 1999 Orissa 106, the court has held that when there is a mistake apparent bon the face of the record and the court is convinced, it would be appropriate for the court to correct the same, but there is a distinction which may not always be capable of exposition between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. The mistake or error apparent on the face of the record is one, which is self evident and does not require a process of reasoning and it is distinct from erroneous decision. Rehearing the matter of detecting an error in the earlier decision and then correcting the same do not fall within the ambit of review jurisdiction. Review jurisdiction cannot be used as appellate jurisdiction in disguise. 16. As already stated hereinabove, the scope of review is very limited and keeping in view the afore-stated legal position in mind and also after going through the judgment of Division Bench dated 10.5.2002, we do not find the there is any error apparent on the face of judgment dated 10.5.2002, which requires interference in these review applications. Consequently, the review applications fail and are hereby dismissed. 17. Pronounced in open court.