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2009 DIGILAW 708 (GAU)

Young Men Christian Association v. Holy Mother of Aurobindo Ashram & Ors.

2009-09-23

A.C.UPADHYAY, B.K.SHARMA

body2009
B. K. Sharma, J.;- This appeal was admitted on 15.12.04 upon condonation of delay vide order dated 03.08.04 passed in Misc. Case No 12961 04. Although the writ appeal has been filed against the judgment and order dated 03.10.2000 passed by the learned Single Judge in the writ petition being C.R. No. 113(SH)/98 and so also the order dated 06.01.04 passed on review of said judgment and order, but considering the order passed in condoning the delay, this appeal is treated to have been directed only against the aforesaid review order. The order dated 03.08.04 passed in Misc. Case No. 1296/04 is reproduced below: "Heard Mr. H. Roy, learned counsel for the applicant and Mr. K. K. Bhatra, the learned counsel for the Proforma Respondent No.5. Civil Rule No.1 13(SH)/98 has been decided by the Court vide order dated 03.10.2000 wherein, in the operative part in paragraph 23 of the Court has passed order as under: "23. Before parting with the record, it is made clear that the possession of the private respondents over a portion of the land shall not be disturbed in view of the specific averment made in the writ petition." It is the case of the applicant that if the order of the learned Single Judge stands he is not aggrieved against that order. However, in a Review Petition a direction has been issued only in favour of Y.W.C.A., Proforma Respondent and by that order the applicant is being aggrieved, and therefore limitation for the purpose of challenge of the order will commence from 06.01.2004. The submission made by the learned counsel for the applicant is that he is not aggrieved by the original order as it was passed by the learned Single Judge. Apparently there is a change in the order by Review order dated 06.01.2004 and therefore the limitation on the submission made by the learned counsel for the applicant, commences from 06.01.2004. There is 61 days delay in filing the appeal. Having considered the application for condonation of delay, we find that there was sufficient and bonafide cause for not filing the appeal within the period of limitation and therefore we condone the delay in filing the appeal. The application stands disposed of. The writ appeal shall be listed for admission." 2. The matter relates to leasehold land of the respondent No.1 who was the writ petitioner in the writ petition. The application stands disposed of. The writ appeal shall be listed for admission." 2. The matter relates to leasehold land of the respondent No.1 who was the writ petitioner in the writ petition. The writ petition was filed seeking a direction for issuance of formal order of renewal of the lease in respect of the plot of land in question. The challenge was made to the orders dated 28.09.76 and 20.07.98 by which the Govt. of Meghalaya in the Revenue Department intimated the Deputy Commissioner, Khasi Hills, Shillong, the decision to allot a portion of the land known as "Morven Property" to the respondents No. 5 and 6. The respondent No.5 is the appellant in this appeal and the respondent No.6 is the proforma respondent. By the other impugned order dated 20.07.98, the grievance of the writ petitioner/respondent No. 1 amongst others relating to the aforesaid allotment order, non-renewal of the lease of the land held by them was rejected by the Govt. of Meghalaya in the Revenue Department. 3. The learned Single Judge allowed the writ petition by judgment and order dated 03.10.2000 setting aside and quashing the impugned orders dated 28.09.76 and 20.07.98 with further direction to the State to issue formal order of renewal as per the decision taken by it and as was communicated vide letter dated 02.06.76. In the alternative, the state was also granted liberty to take recourse to the provisions of the regulations 43,44,45 of the Assam Land and Revenue Regulation, 1886 as indicated in the judgment and to offer settlement at the first instance to the writ petitioner/respondent No. 1. The said regulations are quoted below: "43 whenever a Deputy Commissioner has reason to believe that any land within his jurisdiction is being held wholly or partially free of assessment and is liable to be assessed under Section 28, he may institute an inquiry, and the person claiming the land shall be bound to prove his title to hold the same wholly or partially free of assessment, as the case may be. 44. The result of every inquiry instituted by the Deputy Commissioner under Section 43 shall be reported to the (State) Government for orders in the prescribed manner. 45. 44. The result of every inquiry instituted by the Deputy Commissioner under Section 43 shall be reported to the (State) Government for orders in the prescribed manner. 45. (1) In any case reported to the State Government under Section 44, if the State Government declare the land not liable to assessment, their order shall be final except on proof of fraud or collusion on the part of or on behalf of the person interested. (2) If the State Government declare the land liable to assessment, the Deputy Commissioner shall inform the person interested of the (State) Government's decision, and shall proceed to assess the land in accordance with the rules made under Section 29 and to settle it with the person in possession." 4. The whole controversy is relating to the observation made in paragraph -23 of the judgment which was clarified/reviewed by order dated 06.01.04 in the Review Petition being R.P.No.4(SH)/02. Paragraph-23 of the judgment dated 03.10.2000 and the review order dated 06.01.04 are quoted below: "23. Before parting with the record, it is made clear that the possession of the private respondents over a portion of the land shall not be disturbed in view of the specific averment made in the writ petition." "06.01.2004 Heard Mrs. B. Goyal, learned counsel for the review applicant. None appears for the Opposite Party. This petition has been filed for clarification of the observation made in para 23 of the judgment and order dated 03.01.2000 passed in C R No.1 13 (SH) of 1998. There is of course nothing for review of the judgment in question except the clarification with regard to the words "possession of the private respondents". For better appreciation of the issue, para 23 is quoted below:- "23. Before parting with the record, it is made clear that the possession of the private respondents over a portion of the land shall not be disturbed in view of the specific averment made in the writ petition." Para-23 as quoted above clearly indicates that possession of the private respondents have been protected in view of the specific averment made in the writ petition. It is thus on the basis of the statement made by the writ petitioner (Opp. Party) that the aforesaid observation was made. It is thus on the basis of the statement made by the writ petitioner (Opp. Party) that the aforesaid observation was made. It the writ petition the petitioner admitted permissive possession on the part of the land by Y.W.C.A. Therefore, the words "respondents" mentioned in para 23 of the judgment means only Y.W. C.A. and no other party. The matter accordingly stands clarified. Subject to above clarification, the application is disposed of." 5. While it is case of the appellant that in terms of the observation made in paragraph 23 of the judgment and order dated 03.10.2000 the possession of the appellant over the portion of the land in question is not be disturbed, it is the case of the writ petitioner/respondent No. 1 that the said observation was only in respect of the respondent No. 5 Association. The said Association is the proforma respondent No.5 in the writ appeal. Thus the stand of the writ petitioner/respondent No.1 finds support from the aforesaid review order passed by the learned Single Judge clarifying the position. 6. We have heard Mr. H. S. Thangkheiw, learned counsel for the appellant led by Mr. D. K. Mishra, learned Senior counsel as well as Mr. V. K. Jindal, learned Senior counsel assisted by Mr. B. K. Deb Roy and Ms. S. Jindal, learned counsel representing the writ petitioner/respondent No. 1. We have also heard Mr. N. D. Chullai, learned State counsel. Although in the appeal the State Govt. is a party respondent, but it was submitted that since the State Govt. is not aggrieved by the impugned judgment and order and that they have accepted the same, it has got nothing to say in the matter. 7. Mr. Jindal, learned counsel for the writ petitioner/respondent No.1 at the very threshold questioned the maintainability of the writ appeal referring to the sand taken in Misc. Case No. 162 (SH)/08 filed by the writ petitioner/respondent No. 1. He argued that since as per the own admission of the appellant, it is not aggrieved by the impugned judgment and order dated 03.10.2000, but only aggrieved by the review order dated 06.01.04, but the appeal having been preferred against both the orders without any prayer for condonation of delay in preferring the writ appeal against the order dated 03.10.2000, the writ appeal only against the review order is not maintainable. He further argued that since the review order dated 06.01.04 is an order of rejection of the review application filed by the appellant, no appeal would lie against the said order in view of the specific bar created under Order 47, Rule 7 of the Code of Civil Procedure. As regards the merit of the case, it was submitted by Mr. Jindal that the learned Single Judge having gone into the details of the case and decided the issue involved, no interference to the impugned orders is called for. He also submitted that judging the totality of the circumstances, the appellant is aggrieved by observations made in paragraph-23 of the impugned judgment by which the possession of the proforma respondent No.5 on the portion of the land was only protected. He submitted that the learned Single Judge made the said observation having regard to the fact that the said Association was in exclusive possession of the portion of the land, but no such possession was with the appellant. 8. Countering the above argument regarding the maintainability of the writ appeal, Mr. Thangkheiw, learned counsel for the appellants submitted that the provision of the Code of Civil Procedure being not applicable and the writ appeal being a continuation of the writ proceeding, the writ appeal is maintainable. His further submission was that the impugned judgment and order dated 03.10.2000 having merged with the review order dated 06.01.04, the writ appeal is maintainable. As regards the merit of the case of the appellant, it was submitted that since by the impugned order in the writ petition dated 28.09.76 two portions of the land were allotted both in favour of the appellant Association and the proforma respondent No.5 Association, the observation made by the learned Single Judge in paragraph-23 of the impugned judgment and order would be applicable to the appellant Association as well. According to him since the appellant Association is on the same footing as that of the proforma respondent No. 5, there cannot be any discrimination in the matter of allotment of the portion of the land in question. 9. In addition to the above oral argument, learned counsel for the appellant has also submitted written argument highlighting the submissions so made. 10. While Mr. 9. In addition to the above oral argument, learned counsel for the appellant has also submitted written argument highlighting the submissions so made. 10. While Mr. Jindal, learned counsel for the writ petitioner/respondent No. 1 has placed reliance on the decisions of the Apex Court reported in (2002) 5 SCC 337 : AVGP Chettiar and Sons Vs. Palani Samy Gounder and AIR 1981 SC 1786 : Shah Babulal Khimji Vs. Jayaben D. Kania, Mr. Thangkew learned counsel for the appellant has placed reliance on the decision reported in (2004) 13 SCC 698 : Chandrabhaga Bai Vs. B. S. Patil. 11. We have considered the submissions made by the learned counsel for the parties as well as the entire materials on record. 12. Initially the appellant was not aggrieved by the impugned judgment and order dated 03.10.2000 on the ground that its interest was well protected by the observation made in paragraph-23 of the impugned judgment and order. The appellant became aggrieved by the clarification made vide the review order dated 06.01.04. The observation was made in consequence of an expressed concession made by the writ petitioner. Needless to say that the observation in Court's proceeding based on records is always conclusive and neither the lawyer nor the litigant may claim to contradict except before the same Court and nowhere else. This Court cannot launch into enquiry as to what transpired in the proceeding before the learned Single Judge. 13. The observation made in paragraph-23 relating to protection of the possession of the portion of the land by the "Private respondents" was only in respect of the respondents No. 5 in the writ petition, i.e. the proforma respondent No. 5 in this appeal and not in respect of the respondent No. 6 in the writ petition, i.e. the appellant, as will be evident from the following facts. This will also be evident from the fact that the writ petitioner is not aggrieved by the said observation and protection since in its understanding the protection provided is only to the proforma respondent No. 5 and not the appellant. 14. In paragraph-7 of the writ petition while asserting the illegality committed by the Govt. This will also be evident from the fact that the writ petitioner is not aggrieved by the said observation and protection since in its understanding the protection provided is only to the proforma respondent No. 5 and not the appellant. 14. In paragraph-7 of the writ petition while asserting the illegality committed by the Govt. towards settlement of the plot of land from within the area of leasehold land belonging to the writ petitioner on the ground of being violative of the principle of natural justice, it was stated as follows: "Further, it is submitted that the on being approached by YWCA a small portion of the Ashram's land was allowed to be used by YWCA as a social organization by the Aurobindo Ashram Trust. But at the time of accommodating he case of YWCA the petitioner was not aware of the illegal settlement made by the Govt. with YWCA and YMCA and also about the notification published in the paper." 15. By Annexure-VI letter dated 28.07.95, while raising the grievance regarding illegal allotment of the land to the appellant and the proforma respondent No. 5 from within the land of the writ petitioner, it was revealed that the proforma respondent No.5 had already made an unauthorized construction. By Annexure-VI (b) letter dated 11.08.95 also the writ petitioner had revealed that the proforma respondent No.5 had already constructed a women's hostel on the plot allotted to it. It was further revealed that the appellant had not taken any step to occupy the land as they were not interested in it. Similarly by Annexure-VI(c) letter dated 01.07.96 also the writ petitioner made it known that the proforma respondent No. 5 had already constructed a working girls' hostel and thereafter erected a pucca boundary wall demarcating its boundary. 16. It was further revealed that the appellant had not taken any step to occupy the land as they were not interested in it. Similarly by Annexure-VI(c) letter dated 01.07.96 also the writ petitioner made it known that the proforma respondent No. 5 had already constructed a working girls' hostel and thereafter erected a pucca boundary wall demarcating its boundary. 16. By Annexure-VI (d) letter dated 19.08.06 addressed to the Deputy Commissioner, East Khasi Hills, Shillong by the writ petitioner/respondent No. 1 on the subject of survey and demarcation of land leased out to it the writ petition made it known that they are ready to accommodate the proforma respondent No. 5, but objected to occupation of the land by the appellant in the following words: "In reiterating out consistent stand, we would like to inform you that while we are prepared to accommodate the case of YWCA as fait accompli (since they have already constructed a women's hostel on the strength of the illegal Government Order No. RD 141/72/54 dated 28th June, 1976), we are totally unprepared to accept the move for allotting land measuring 69 acre out of the Morven Property to the YMCA. Not only the relevant order of the Revenue Department is untenable, but also the procedure and rules as established by law were not adhered to by the Revenue Department. Further, we would like to point that YMCA has completely forfeited its claim on the land since it did not utilize the illegally allotted land during the past twenty years. It may not be out of place to mention here that the YMCA has already opted for a separate plot of land at Mawkhar where it has created its own permanent set up." 17. The writ petitioner by its Annexure -VI (e) letter dated 30.04.98 addressed to the Chief Minister of the State amongst others stated the following: "Meanwhile, upon the request of YWCA, which is a well known social organization, Sri Aurobindo Ashram even allowed an area of about 10,000 sq. ft. from within its plot, which has been used by YWCA for constructing of a Women's Hostel." 18. ft. from within its plot, which has been used by YWCA for constructing of a Women's Hostel." 18. From the above, what has transpired is that although it was the contention of the writ petitioner that the allotment of the portion of the land to the respondent Nos.5 and 6, i.e. the proforma respondent No.5 and the appellant, from within the land belonging to the petitioner was illegal, but in view of the fact that the respondent No.5 has already constructed a working girls' hostel over the plot of land allotted to it, the petitioner was not opposed towards its continued possession of the land. On the other hand, it was clearly made known to the authority that the appellant although was allotted with the plot of land, had not taken possession. It is also on record that the said Association has been allotted with another plot of land. The above position was made known to the learned Single Judge during the course of hearing of the writ petition by the learned counsel representing the writ petitioner. In paragraph-9 of the impugned judgment and order dated 03.10.2000 the submission made by the learned counsel for the writ petitioner has been recorded as follows: "9. Mr. Jindal, learned counsel elaborating the above points submitted that the writ petitioner considering that YWCA is a social organization allowed it to use a small portion of the Ashram's land and the possession of YWCA over that part of the land where a hostel premises have been constructed is not sought to be disturbed by the writ petitioner considering the objectives and purpose for which the YWCA has been established." 19. During the course of hearing of the case, when it was put to the learned counsel for the appellant as to whether the appellant is in possession of the land in question, he fairly submitted that there is no physical possession of the land by the appellant. 20. The protection provided in paragraph-23 of the impugned judgment and order was in respect of possession over a portion of the land and such protection was provided in view of the specific averments made in the writ petition. Whole controversy is based on the words "private respondents" which apparently meant the respondent No. 5, i.e. the proforma respondent No. 5 in this appeal. This position has also been clarified in the review order quoted above. Whole controversy is based on the words "private respondents" which apparently meant the respondent No. 5, i.e. the proforma respondent No. 5 in this appeal. This position has also been clarified in the review order quoted above. If the appellant is not in possession of the portion of the land in question, there is no question of providing any protection to it in terms of the observation made in paragraph-23 of the impugned judgment. 21. In paragraph 1.4 of this appeal, it has been categorically stated that while the proforma respondent No. 5 has constructed a women's hostel on the plot allotted to it, but the appellant has not made any construction on the plot of land allotted to it. The fact that the appellant is not in possession of the plot of land allotted to it, is also amply evident from the activities of the writ petitioner/respondent No.1 over the said portion of the land such as construction of fencing, dumping of soil etc. as has been revealed by the appellant itself. 22. By the impugned judgment and order dated 03.10.2000, learned Single Judge has set aside the impugned orders of allotment. As a natural consequence thereof, there could not have been any possession of the portion of the land, either by the respondent No.5 or by the respondent No.6, i.e. the appellant. However, the learned Single Judge having regard to the concession made by the writ petitioner itself and also having found that the said Association was in actual possession of the land, made the provision not to disturb such possession. Admittedly same is not the case with the appellant. Except the allotment order and some other paper works there was no physical possession of the land by it. Further admitted fact is that the entire land was in occupation of the writ petitioner and without putting them to any kind of notice, two plots out of the said land were allotted to the appellant and the proforma respondent No.5. 23. The learned Single Judge found that the entire plot of land was in occupation of the writ petitioner and the decision of the Govt. to renew the lease for 75 years had vindicated the right of the writ petitioner. 23. The learned Single Judge found that the entire plot of land was in occupation of the writ petitioner and the decision of the Govt. to renew the lease for 75 years had vindicated the right of the writ petitioner. It has been held that the impugned order dated 28.09.76 was issued without any authority of law and in gross violation of the-principles of natural justice inasmuch as the writ petitioner was not put to any kind of notice before allotting two plots of land to the two Associations from within the land-belonging to the writ petitioner. The learned Single Judge on the basis of the materials on record has found that the writ petitioner and their predecessor-in-interest are in possession of the land in question since 1865. They have otherwise also acquired the title over the land because of long, continuous and undisturbed possession. It is in such circumstances the learned Single Judge has set aside and quashed the impugned order. The whole basis of the claim of the appellant being the impugned orders and the same having been set aside and quashed, the appellant cannot harp upon the observation made in paragraph-23 of the impugned judgment which has also been clarified by the impugned review order. 24. From the materials on record referred to above; the stand of the writ petitioner in the course of hearing and the observation made by the learned Single Judge in paragraph-23 of the impugned judgment coupled with the subsequent clarification issued vide the review order leave no manner of doubt that the only protection provided was to the proforma respondent No.5 and not the appellant. Such protection was provided in view of the fact that said Association had already constructed a women's hostel and also in view of the fact that the writ petitioner was not opposed to their stay in that portion of the land in which the hostel was already constructed. Merely because the expression used "private respondents", the appellant cannot take advantage of the said expression unmindful of the relevant facts including the other expressions in the same very paragraph. Merely because the expression used "private respondents", the appellant cannot take advantage of the said expression unmindful of the relevant facts including the other expressions in the same very paragraph. Said expression are "possession of the private respondents over a portion of the land shall not be disturbed in view of the specific averment made in the writ petition." The position has already been clarified by the same very learned Single Judge by the review judgment and order dated 06.01.04. 25. As has been observed by the Apex Court in the State of Maharashtra Vs. Ramdas Shrinivas Nayak, reported in AIR 1982 SC 1249 , the Judges' record is conclusive. Neither the lawyer nor the litigant may claim to contradict except before the judge himself, but nowhere else. In paragraph-4 of the judgment it has been observed thus: "4.... We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaran Vs. Subramanian, AIR 1962 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusadun Vs. Chandrabati, AIR 1917 PC 30). Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there." 26. For all the aforesaid reasons we did not find any merit in the writ appeal. The decisions in Shah Babulal Khimji (supra) and AVGP Chettri (supra) was relied upon by Mr. Jindal, learned counsel for the respondent No. 1 in respect of preliminary objection raised by him relating to maintainability of the writ appeal, same being only against the review order and not against the impugned judgment and order dated 03.10.2000. The decision on which Mr. Thangkheiw, learned counsel for the appellant has placed reliance, i.e. Chandrabhaga Bai (supra) is to counter the argument regarding non-maintainability of the writ appeal in view of the rejection of the review petition. In the said decision, the Apex Court has held that if an application seeking clarification of the earlier order is rejected, the remedy would lie by way of filing an appeal. It was contended on behalf of the appellant that although the application filed by it was registered as review petition, but in a fact the application was by way of seeking clarification of the observation made in paragraph-23 of the judgment and order. 27. It was a review petition that was filed by the appellant and accordingly the petition was registered as RP No.4(SH)/02. The review petition was disposed of by order dated 06.01.04 which has been quoted above. It was clarified that the words "respondents" mentioned in paragraph-23 of the judgment means only the pro forma respondent No.5 and not the other party. 28. While the learned counsel for the writ petitioner/respondent No. 1 argued that the appeal will not be maintainable against the review order dated 06.01.04, learned counsel for the appellant argued that since the review petition was filed seeking clarification of the particular observation in paragraph-23 of the judgment, the writ appeal against the clarification would lie. This aspect of the matter need not detain us in view of the decision on merit of the writ appeal. 29. The writ appeal is dismissed leaving the parties to bear their own costs.