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2017 DIGILAW 682 (MP)

Bhagwan Singh (D) through LRs v. Kalla

2017-05-17

VIVEK AGARWAL

body2017
ORDER 1. This review petition has been filed by the defendants in Writ Petition No.1391/2005 seeking review of order dated 23.3.2017 on the ground that even after it is presumed that there is no provision of second appeal under the Revenue Book Circulars, yet Additional Commissioner was empowered to hear revision and merely mentioning of wrong provision in the memo of appeal will not debar the Commissioner from passing an order exercising his revisional authority, therefore, this Court has erred in setting aside the order of the Additional Commissioner and remanding the matter to the Tahsildar. 2. Learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in the case of Ram Dass v. Inshwar Chander and others, as reported in AIR 1988 SC 1422 , wherein it has been held that High Court in an appropriate case can reappraise evidence if findings of appellate Court are found to be infirm in law. Reliance has also been placed on the judgment of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, as reported in (2014)9 SCC 78 . Petitioner has placed specific emphasis on para 29 of the said judgment and has submitted that there is no much difference in exercise of appellate jurisdiction and revisional jurisdiction, therefore, the order passed by the Additional Commissioner should have been treated as an order passed in revisional jurisdiction. Reliance has also been placed on the judgment of this Court in the case of Vijay Mittal v. State of M.P. and others, as reported in 2014(1) MPLJ 549 , so also on the order of this Court in Writ Petition No.15896/2005 decided on 11.2.2015. 3. Learned counsel for the respondents on the other hand submit that no ground has been made out as are provided under Order 47 for seeking review and in fact this issue was never argued or urged in the writ petition by the learned counsel for the petitioners that merely mentioning of wrong provision will not debar the jurisdiction of Additional Commissioner from exercising revisional jurisdiction as granted under RBC. It is further submitted that in fact Additional Commissioner had also remanded the matter to Tahsildar and this Court too has remanded the matter to Tahsildar for granting opportunity afresh to all the concerned parties before passing an order on merits, therefore, it cannot be said that any prejudice has been caused to the petitioners. Learned counsel for the State also submits that the land is that of the State Government and petitioners have no vested right to get it allotted, therefore, on this ground also the review has no meaning and it is ultimately the authorities of the State Government who are free to decide the entitlement of the petitioners for allotment of such land. 4. A perusal of the judgment in the case of Ram Dass (supra), reveals that Hon'ble Supreme Court on the contention that the revisional powers do not extend to interference with and upsetting of findings of fact, has held that it needs to be observed that, subject to the well known limitations inherent in all revisional jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction. It is also noted that ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeals under the Code of Civil Procedure and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice-versa. Similarly, in the case of Hindustan Petroleum Corporation Ltd. (supra), it has been held laid down that none of these statutes confer on revisional authority the power as wide as that of the appellate Court or appellate authority despite such power being wider than that provided in section 115 CPC. Similarly, in the case of Hindustan Petroleum Corporation Ltd. (supra), it has been held laid down that none of these statutes confer on revisional authority the power as wide as that of the appellate Court or appellate authority despite such power being wider than that provided in section 115 CPC. Similarly in the case of Vijay Mittal (supra), this Court in para 16 was pleased to hold that instead of mentioning appeal under Chapter-IV Part -3 of Clause 20 of RBC, if section 44 of the Code has been mentioned, it will not make any difference because under this Clause of RBC, appeal before the Commissioner was maintainable and merely by quoting wrong provision would not take away the jurisdiction from the appellate authority which the said authority is otherwise having. Same is the ratio in Writ Petition No.15896/2005 decided on 11.2.2015. 5. It is seen that present petitioners had approached the Additional Commissioner in appeal being aggrieved by order of the SDO declining to condone delay in the matter of filing of appeal. In this regard, provisions as are contained in RBC are clear. It has been clearly mentioned in noting below clause 8 of part V para 30 of RBC that where in an appealable case if appeal is not filed within the prescribed period of time, then, such person has no right to file a revision. Besides this, it is also true that case of Vijay Mittal (supra), is distinguishable inasmuch as in that case only wrong provision was mentioned but the Commissioner on facts was held to had jurisdiction to hear the appeal. In the present case, it is an admitted position that there is no provision for second appeal in the RBC, and therefore, the Additional Commissioner had no jurisdiction to hear appeal, and therefore, it was not a case of merely writing a wrong provision before the Commissioner. Hon'ble Supreme Court in the case of Ram Dass and Hindustan Petroleum Corporation Ltd. (supra), has clearly distinguished the scope of revision vis-a-vis that of appeal, and therefore, it cannot be said that Additional Commissioner while hearing the appeal could have exercised its revisional jurisdiction because the jurisdiction in revision is much more compact and narrow. Hon'ble Supreme Court in the case of Ram Dass and Hindustan Petroleum Corporation Ltd. (supra), has clearly distinguished the scope of revision vis-a-vis that of appeal, and therefore, it cannot be said that Additional Commissioner while hearing the appeal could have exercised its revisional jurisdiction because the jurisdiction in revision is much more compact and narrow. In any case, even the Additional Commissioner had remanded the matter to Tahsildar for conducting fresh enquiry granting opportunity of hearing and passing fresh orders and same has been done by this Court. Moreover, there is no error apparent on the face of order dated 23.3.2017 calling for its review. It is also necessary to mention that review cannot be granted on the whims and fancies of the parties. When this Court has clearly observed that such issue regarding mentioning of wrong provision was not argued by learned counsel for the present petitioners, it cannot be said that this Court was in error in not considering an argument which was not put forth before it. Therefore, since there is no error apparent on the face of record, the review petition fails and is dismissed. Parties to bear their own costs.