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2008 DIGILAW 2600 (RAJ)

Modern Woolens Ltd. v. State of Rajasthan

2008-11-26

R.S.CHAUHAN

body2008
JUDGMENT Hon'ble Chauhan, J.—The petitioner has challenged the order dated 4-7-2005, passed by the Board of Revenue (`the Board' for short), whereby the Board has quashed the order dated 25-10-1997 passed by the Collector, Bhilwara and has remanded the case back to the Collector for reviewing his earlier orders after issuing notice. At the first blush, no illegality appears on the face of the order. However, on a deeper examination of the order, a legal issue emerges, namely whether the Collector has the power to re-review the order by which he had already reviewed his earlier order? 2. The legal issue arises under the following circumstances as under:- The petitioner is a company, registered under the Companies Act,1956. It has number of industries and establishments throughout Rajasthan. The petitioner company is the owner and is in possession of land falling in Khasra Nos.3402, 3403, 3411, 3412, 3413, 3403min, 3361/2k, 3357/3k, 3402/3, 3468/2k, 3402/2, 3368/1 and 3367/2k in total admeasuring about 13 rakbas and 18 bigha and 15 biswa situated at District Bhilwara. In the year 1988 the petitioner company applied for conversion of agricultural land into non agricultural land for setting up an industry/ factory. The said application was forwarded to the State Government for approval-cum-permission under the provisions of Rajasthan Land Revenue (Conversion of Agricultural into Non Agricultural land) Rules,1961 (`Rules of 1961' for short). Vide order dated 29-11-1989, the State Government granted permission for conversion of aforesaid agricultural land into Non agricultural purposes. While granting said permission, the State Government considered the construction already done by the petitioner and levied a fine equivalent to five times of the prevalent highest market price of land in the neighbourhood land. Consequently, the Collector, vide order dated 11-12-1989, directed the petitioner to deposit Rs.1,31,250/-, as fine under Rule 7 of Rules of 1961. The petitioner company deposited the said amount. Therefore, vide order dated 5-1-1990, the Government issued a lease-deed in favour of the petitioner company for setting up of industry/ factory on the said land. However, after lapse of two years, upon certain audit objections, the Collector issued two notices dated 22-8-1992 and 12-11-1992. Through these notices, the Collector directed the petitioner company to pay Rs.17,54,878.15. The petitioner raised a number of objections before the Collector. However, vide order dated 8-2-1993, the Collector dismissed the objections. In turn, he evaluated the total amount of fine as Rs.2,62,500/-. Through these notices, the Collector directed the petitioner company to pay Rs.17,54,878.15. The petitioner raised a number of objections before the Collector. However, vide order dated 8-2-1993, the Collector dismissed the objections. In turn, he evaluated the total amount of fine as Rs.2,62,500/-. Since Rs.1,31,250/- were already deposited by the petitioner on earlier occasion, the Collector directed the petitioner to deposit the remaining amount of Rs.1,31,250/-. Consequently, the petitioner deposited the said amount under protest. Simultaneously, the petitioner challenged the order dated 8-2-1993 before the Revenue Appellate Authority (`RAA' for short). Vide order dated 17-9- 1994, RAA dismissed the appeal of the petitioner. Thereafter, the petitioner preferred a second appeal before the Board. However, vide order dated 30-6-1997, the Board dismissed petitioner's second appeal. The petitioner did not challenge the said order any further. More importantly, the State has never challenged the order dated 8- 2-1993, passed by the Collector. Thus, with the dismissal of second appeal by the Board, the Collector's order dated 8-2-1993 had achieved finality. 3. However, while petitioner's second appeal was pending before the Board, surprisingly the Collector issued another notice dated 15- 11-1994. According to the said notice, the Collector directed the petitioner to deposit Rs.17,54,878.15. However, as the petitioner had already deposited Rs.2,65,500/-, it was directed to deposit the remaining amount of Rs.14,92,378/-. The petitioner immediately raised objections before the Collector. However, vide order dated 25- 10-1997, the Collector dismissed the objections and affirmed the order dated 15-11-1994. Since the petitioner was aggrieved by the order dated 25-10-1997, the petitioner preferred an appeal before the Board. The Board, vide order dated 4-7-2005, quashed the order dated 25-10-1997, but remanded the case back to the Collector. The Board was of the opinion that the impugned order dated 25-10-1997 was a non-speaking order. Therefore, it directed the Collector to issue a fresh notice to the petitioner and to re-assess the amount of penalty which could be imposed on the petitioner. Since the petitioner is aggrieved by the order dated 4-7-2005, it has preferred the present petition before this Court. 4. While narrating the factual matrix, mentioned above, Mr.Sunil Nath, the learned counsel for the petitioner, has contended that the power of review granted to Collector is not a power which can be carried out ad infinitum. According to learned counsel vide order dated 11-12-1989, the petitioner was directed to deposit an amount Rs.1,31,250/-. 4. While narrating the factual matrix, mentioned above, Mr.Sunil Nath, the learned counsel for the petitioner, has contended that the power of review granted to Collector is not a power which can be carried out ad infinitum. According to learned counsel vide order dated 11-12-1989, the petitioner was directed to deposit an amount Rs.1,31,250/-. The said order was reviewed by the Collector while he issued notices dated 22-8-1992 and 12-11-1992. The controversy was decided by the Collector vide order dated 8-2-1993-- an order upheld by RAA and the Board. Thus, the order dated 8-2-1993 had achieved finality. Notwithstanding the fact that the order dated 8-2- 1993 had achieved finality, notwithstanding the fact that the order dated 8-2-1993 had already reviewed the order dated 11-12-1989, still the power of review was invoked by the Collector while issuing notice dated 15-11-1994. Thus, the power has been invoked for the purpose of re-reviewing an earlier order. However, no power of rereview exists with the Collector. Hence, the order dated 15-11-1994 is ultra vires the jurisdiction vested in the Collector. Although, it was contended before the Board that the Collector does not have the power to re-review an earlier order, the Board has maintained a studied silence over the entire issue. Thus, Board's order is a non-speaking one. This issue would go to the root of the jurisdiction vested in the Collector. It was imperative for the Board to express its opinion on the said issue. Lastly, even the Order 47 Rule 9 CPC, merely grants power to review an order. But, it does not grant the power to re-review an order. 5. On the other hand, Mr. M.A. Khan, learned Additional Govt. Advocate, has contended that the Board was justified in remanding the case back to the Collector as the Collector did not pass a speaking order. Hence, he has supported the impugned order. 6. Heard learned counsel for the parties and perused the material available on record and examined the impugned orders. 7. A contention challenging the jurisdiction of an Authority is a cardinal objection, which goes to the root of the matter. Since it goes to very kernel of the case, the appropriate authority, in this case the Board, is duty bound to consider, discuss and decide the said issue. 7. A contention challenging the jurisdiction of an Authority is a cardinal objection, which goes to the root of the matter. Since it goes to very kernel of the case, the appropriate authority, in this case the Board, is duty bound to consider, discuss and decide the said issue. Hence, when the petitioner had raised the objection with regard to jurisdiction of the Collector, in re-reviewing an earlier order, the Board was legally bound to express its opinion on the said issue. However, a bare perusal of the impugned order clearly reveals that although said objection was raised before the Board, the Board has not expressed its opinion on the said issue. Therefore, the impugned order suffers from virus of being a non speaking order. 8. Emanating from Roman law is the principle of law enshrined in the Latin expression “interest re publicate ut sit finis litium” (it is in the interest of the public that there should be an end of law suit). This ancient doctrine is expre-ssed in the modern phrase “finality of a judgment”. Once a judgment has been pronounced and it goes unchallenged, the judgment achieves finality. An issue involved in the judgment cannot be re-opened over and over again. A similar doctrine would also be applicable to orders passed by the Collector. Once the Collector had reviewed his earlier order, therefore, he would be pre-empted from reviewing the same order ad inifinitum. For, it is in the interest of the re-public that a decision made by the Collector has to achieve finality. Hence, the Collector is not vested with the power to re-review his decisions repeatedly. 9. In the present case, the first notice was issued by the Collector on 11-12-1989, whereby the petitioner was directed to deposit Rs.1,31,250/-. The said notice was complied with by the petitioner. Reviewing this order, another notice was sent on 22-8-1992, requiring the petitioner to deposit Rs.17,54,878.15. Vide order dated 8-2-1993 a fine of Rs.2,62,500/- was imposed on the petitioner. The said order was upheld by both RAA as well as the Board. Since the said order was never challenged by the State, since the said order was upheld by the Board, the same achieved finality. Since the order dated 8-2-1993 was review of the order dated 11-12-1989, obviously a second re-review could not be made. However, the Collector proceeded to re-review his earlier order vide order dated 15-11-1994. Since the said order was never challenged by the State, since the said order was upheld by the Board, the same achieved finality. Since the order dated 8-2-1993 was review of the order dated 11-12-1989, obviously a second re-review could not be made. However, the Collector proceeded to re-review his earlier order vide order dated 15-11-1994. Thus, clearly the order dated 15-11-1994 was beyond the jurisdiction of the Collector. As stated above, the Board although appraised of this fact, by way of objection, never expressed its opinion on this legal issue. Hence, the order dated 4-7-2005 is clearly untenable. Moreover, since the Collector does not have jurisdiction to re-review his earlier order, no point would be served by remanding the case back to him for re-reviewing his earlier order. Therefore, this court has no hesitation in quashing and setting aside the order dated 4-7- 2005. 10. For the reasons stated above, the writ petition is, hereby, allowed. The order dated 4-7-2005 is, hereby, quashed and set aside. There shall be no order as to costs.