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2023 DIGILAW 816 (KAR)

Vajramma v. State of Karnataka

2023-06-27

K.NATARAJAN

body2023
JUDGMENT/ORDER 1. The Petitioner in R.P.No.84/2021 is filed by Smt.Vajramma who was respondent No.4 in W.P.No.45868/2017 (SC-ST) filed this review petition for reviewing the order passed by this court dtd. 9/12/2019 for having allowed the writ petition which was field by the present respondent No.4/Jayanthi Shivram. 2. The Review Petition No.86/2021 is filed by the petitioner Devraj who is respondent No.4 in the W.P.No.45869/2017 filed for reviewing the order dtd. 9/12/2019 for having allowed the writ petition filed by the respondent No.4/Jayanthi Shivram. 3. In both the petitions the respondent No.4/ Smt. Jayanthi Shivram is common and hence the fact and law is also similar, therefore, both matters are taken together for common disposal. 4. The case of the review petition in RP.No.84/2021 is that, this court while considering writ petition filed by the respondent No.4, this court allowed the petition on the ground, the land in question was granted in favour of one depot Muniyappa on 21/6/1957 with a condition not to alienate the land for 15 years and the sale deed was affected in the year 1995 i.e., after commencement of the Prohibition of Transfer of Certain Lands act, 1978 (herein referred as PTCL Act) which came into force on 1/1/1979. But the respondent No.4 who in these review petitions are the legal heirs of the original grantee, who filed application for canceling the sale deed in the year 2014-15 and thereby this court allowed the writ petition and set aside the order passed by the Assistant Commissioner in case No.K.SC&ST (S)14/2014-15 which was upheld by the Dy. commissioner in No.K.SC&ST (A).81/2015-16. 5. The learned counsel for review petitioner has contended that this court considered that the application came to be filed for restoration with delay of 19 years, therefore the order of the revenue courts were set aside. But infact the review petitioner filed application for restoration in the year 2002 itself as per the document produced. The documents were obtained through RTI, which clearly reveals the application were filed by the review petitioner long back i.e., in the year 2002. Therefore, there was error apparent on the face of the record as per the document produced by the review petitioner, on that ground, the order requires to be reviewed. In support of his contention learned counsel for petitioner relied upon Dharma Naika Vs Rama Naika and another reported in 2008 (3) Karnataka law Journal 188 (SC). Therefore, there was error apparent on the face of the record as per the document produced by the review petitioner, on that ground, the order requires to be reviewed. In support of his contention learned counsel for petitioner relied upon Dharma Naika Vs Rama Naika and another reported in 2008 (3) Karnataka law Journal 188 (SC). 6. Learned counsel further contended that the restoration of the lands were initiated within 6 years and there is no delay. Therefore, the order under review shall be set aside, hence prayed for allowing the petition. 7. Per contra, learned senior counsel appearing for the respondent No.4 has contended that there is no error on the face of the record in the order passed by this court. Even the respondent sought the information through RTI regarding filing of the application by the review petitioner in the year 2002 in respect of Sl.No.4348 produced by the petitioner for applying the restoration application, but the information received that there is no such document available in the Assistant Commissioner office, which reveals the petitioner forged the register and created the document to show she has filed application in the year 2002 itself. Even this court had called Tahsildar before the court and in his contention he had submits that there is no such register/files available in the office in order to show the petitioner have filed any such application in the year 2002 for canceling the sale deed and also contended that the court should dismiss the review petition and also initiate proceedings against petitioner for creating the false document and in support of the same relied upon judgments of the Hon'ble Supreme Court. 8. In review petition No.86/2021 the petitioner was respondent No.4 in the original writ petition where the present respondent No.4/Jayanthi Shivram challenged the order of Assistant Commissioner and Deputy Commissioner for restoring the land in favour of the petitioner/Devraj. The same was challenged before the court by Jayanthi Shivram and this court had set aside the order of the Assistant Commissioner and Deputy Commissioner, as the application filed for restoration was after 19 years of the alleged sale deed executed. 9. The same was challenged before the court by Jayanthi Shivram and this court had set aside the order of the Assistant Commissioner and Deputy Commissioner, as the application filed for restoration was after 19 years of the alleged sale deed executed. 9. The learned counsel for review petitioner has contended the petitioner has in fact filed application on 5/7/2002 itself which was entered in the register of the Tahsildar in Sl.No.4349 and the copy of the application also endorsed by the office of the Assistant Commissioner. But they have misplaced that application and not taken any action, therefore they have filed one more application which came to be allowed. Now the petitioner got the copy of the application and the register. If these two documents are considered there will be no delay in filing the restoration application. Therefore, the order passed by this court required to be reviewed as there is error on the face of the record. 10. Per contra, the learned senior counsel for respondent No.4., Sri.P.P.Hegde argued that the respondent filed an application seeking copy of the entry as well as copy of the application dtd. 5/7/2002 but the RTI officer given endorsement that no such entry is available in their office of Assistant Commissioner and if it is contended the petitioner have created these two documents for the purpose of getting the order, therefore it is contended there is no error in the order and does not require for review. Hence prayed for dismissing the petition. 11. Having heard the arguments and perused the records, on perusal of the same, which reveals both the review petitioners are claiming the right of the property as the Government had granted land in respect of Sy.No.12/17 measuring 1 acre 36 guntas to one depot Muniyappa on 21/6/1957. Likewise, the government granted land to one Huchamma in respect of Sy.No.12/3 of Manavrathe Kaval village on 21/6/1957 both the lands were alienated by the legal heirs of the grantee on 30/5/1995 vide registered sale deed. Subsequently, the petitioners have filed application before the Assistant Commissioner for restoration of the lands, in view of the bar under Sec. 4 of the PTCL Act, which came to be allowed by the Assistant Commissioner and the same has been challenged by the purchaser before the Deputy Commissioner which also came to be dismissed. Subsequently, the petitioners have filed application before the Assistant Commissioner for restoration of the lands, in view of the bar under Sec. 4 of the PTCL Act, which came to be allowed by the Assistant Commissioner and the same has been challenged by the purchaser before the Deputy Commissioner which also came to be dismissed. Hence, the purchaser who is Jayanthhi Shivram in both cases have filed Writ Petition Nos.45868/2017 and 45869/2017 (SC- ST) and this court heard the arguments and allowed the writ petitions by setting aside the order of the Assistant Commissioner mainly on the ground there was delay of 19 years in challenging the said sale deed. 12. Now the contention of the review petitioners who are the legal heris of the grantee are that in fact, they have filed application for restoration on 5/7/2002 itself, the same was noted in the Register maintained by the office of the Assistant Commissioner, which were recorded in the register in Sl.No.4348 and 4349, but these document were not able to produce before the court while arguing the case on merits. If those applications are considered, the delay was only 7 years. Therefore, there cannot be said inordinate delay hence prayed for reviewing the order. 13. On the other hand the respondent counsel has objected and contended that the respondent also filed an application before the officer of the Assistant Commissioner for furnishing the certified copy of the register as well as the application filed by the petitioners on 5/7/2002. The office of the Deputy Commissioner, the concerned Information Officer given endorsement on 16/6/2021 stating that there is no reference available in the register regarding filing of any applications between 1/6/2002 and 31/7/2002 and he also stated the that from Page Nos.216 to 345 is available but there is no page i.e, from 223 to 254 is available. 14. Learned Senior counsel for respondent has strenuously contended the petitioner have created these two documents in order to show they have filed application in the year 2002 itself which were forged documents and there is no reference available to show these applications were available in the Assistant Commissioner's office or the register available in the Assistant Commissioner Office. The public relation officer under RTI Act also issued endorsement on 29/6/2021 showing that the Sl.No.4340 to 4350 are not available on record. 15. The public relation officer under RTI Act also issued endorsement on 29/6/2021 showing that the Sl.No.4340 to 4350 are not available on record. 15. The petitioners are claiming the applications were entered in the register in Sl.Nos.4348 and 4349 but as per the report of the Information Officer, under RTI Act , no such serial number and entries were available in Inward Register, which clearly reveals there is no such application available in the office of the Assistant Commissioner for having received the application of these petitioners on 5/7/2022. 16. Therefore, in the application said to be filed by the revision petitioner on 5/7/2022 they were not found in the Inward Register maintained by the office of Assistant Commissioner and the Sl.Nos.4348 and 4349 appears to be created subsequently by the petitioner in order to show there is no delay in filing the application before the revenue authorities for canceling the sale deed. Even the petitioner not able to produce any other document to show the said application and the register were genuine. Such being the case, it is not possible to accept the contention of the petitioner. 17. That apart for maintaining the review petition, the petitioner must show the order passed by this court, on the face of the record there was an error on record. Absolutely, there is no error or mistake on the face of the record, to show in order to review the order passed by this court. Though the respondent counsel relied upon the judgment of the supreme court reported in (2008) 12 SCC 481 in the case of KD Sharma Vs Steel Authority Of India an others and contended that the enquiry must be held at para 38 and 39 as under:-- "38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because "the court knows law but not facts". 39. If the primary object as highlighted in Kensington Income Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court." 18. In view of the judgment of the Hon'ble Supreme Court it is necessary to issue direction to the office of the Deputy Commissioner to make an enquiry in respect of the application filed by the petitioner on 5/7/2002 and the RTI application filed by both parties and information furnished by both parties and prepare a report and take action against the persons who have committed any fraud in creating the documents or giving false information under the RTI Act . 19. 19. Learned senior counsel for respondent also relied upon the judgment of Hon'ble Supreme Court reported in (2013) 8 SCC 320 in the case of Kamalesh Varma Vs Mayavati and Others where the Hon'ble Supreme Court has held once the matter is disposed of on merits, once again it is not amendable to review the Order under Order 47 Rule 1 of CPC on the same arguments or old contentions of the review petitioner. 20. Therefore I am of the view, there is no mistake on the face of the record in the order passed by this court in W.P.No.45868/2017 & W.P.No.45869/2017, in order to review the same, Hence both the review petitions are dismissed. The concerned Deputy Commissioner is directed to make an enquiry to find out the truth whether the review petitioners have filed any application on 5/7/2002 or not? Whether the register extracts produced herein are genuine or not? If any such application filed by review petitioners, if that was destroyed by any officials, then an appropriate action shall be taken at deputy commissioner level.