High Court
Case Details
Court No. - 46 Case :- CIVIL MISC REVIEW APPLICATION No. - 131 of 2022 Applicant :- Baboo Ram And 2 Others Opposite Party :- The Commissioner, Basti Division, Basti And 6 Others Counsel for Applicant :- Awadhesh Kumar Singh,Arvind Kumar Shukla,Komal Mehrotra Counsel for Opposite Party :- C.S.C.,Dharmraj Chaudhary Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Siddhartha Varma,J. In Re: Civil Misc. (Delay Condonation) Application No. 2022 of The delay in filing the present review application has been explained to the satisfaction of the Court. The delay condonation application is allowed. The delay in filing the review petition is hereby condoned. The review application shall be treated to have been filed within time. Order on Review Application
Legal Reasoning
Heard Sri Arvind Kumar Shukla and Sri Awadhesh Kumar Singh learned Advocates for the review-applicants. It is argued by Sri Arvind Kumar Shukla learned Advocate for the review-applicants that while answering the reference, the Division Bench could not have entered into the merits of the case and it was supposed to relegate the matter for decision on merits before the learned Single Judge, inasmuch as, Chapter V Rule 6 of the Allahabad High Court Rules clearly provides that while answering the question of law, the reference court will relegate the matter for decision on merits before the concerned bench having jurisdiction in the matter. The reference has also been made to a decision of the Apex Court in Kesho Nath Khurana vs. Union of India reported in AIR 1982 Supreme Court 1177, wherein it was observed that the procedure provided under the Rules was binding on the Division Bench and while deciding the reference, answering the question of law, the Division Bench was required to send the matter back to the learned Single Judge and it could not proceed to dispose of the Second Appeal on merits. Considering the said submissions, having noticed the provisions of Chapter V Rule 6 of the Allahabad High Court Rules, we may note that the Special Bench was constituted under the orders of Hon'ble the Chief Justice on a reference made by the learned Single Judge vide judgment and order dated 8.3.2017. The questions referred to the Larger Bench as considered by the Special Bench are as under:- "4. A. Whether the Additional Commissioner was empowered to treat an application bringing to his notice the fraud committed by the revenue authorities, as a revision and take necessary action because under U.P.Z.A & L.R. Act, the powers of revision are vested under Section 333 of the U.P.Z.A & L.R. Act and include the power to correct an error where the subordinate revenue authority has acted in the exercise of jurisdiction illegally or with material irregularity and the Revisional Authority may pass such order in the case as he thinks fit? B. Whether an order passed by the Sub Divisional Officer in case filed under Section 229 B U.P.Z.A. & L.R Act, which was passed without reference to the issues involved in the "lis" and without formal adjudication of points for determination could be said to be a decree in the eyes of law when admittedly it was against the statutory provisions of the very same Act, under which the said jurisdiction was exercised? C. Whether there is any requirement of opportunity of hearing in a case where from the records in question and the reports submitted by the Revenue Authorities, it is apparent that an illegality has been committed and a fraud has been played. In terms of the law laid down by the Hon'ble Supreme Court in Aligarh Muslim University Vs Mansoor Ali Khan 2000(7) SCC 529? Whether such an exercise would be an exercise in futility and following of principles of natural justice an empty formality? D. Whether this Court would exercise its extraordinary writ jurisdiction to set aside an order which would amount to restoration of an illegal order? E. Whether in view of the law laid down by the Hon'ble Supreme Court in the case of A.M. Allison Vs. B.L. Sen, AIR 1956 SC 227 and Mohammad Swaleh Vs. III Additional District Judge, 1998 (1) SCC 40, this Court should set aside the order passed by the Additional Commissioner, looking into the necessity to preserve public utility lands and ponds emphasized by the Hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamla Devi, 2001 (6) SC 496 and Jagpal Vs. State of Punjab and others, 2011 (11) SCC 396?"
Decision
We may note that the learned Single Judge had referred the matter to the Larger Bench as she was of a different opinion than the one taken by another learned Single Judge in a previous Writ Petition No. 5820 of 2002, wherein the learned Single Judge vide judgment and order dated 12.7.2011 while allowing the writ petition, quashing the order dated 13.9.2001 passed by the Additional Commissioner had relegated the matter for fresh decision after giving due notice and opportunity to the petitioners therein. In the subsequent Writ-C No. 41708 of 2001 (Baboo Ram and another vs. the Commissioner Basti and others) disagreeing with the decision of the learned Single Judge dated 12.7.2011 the matter was referred to the Larger Bench on the question noted above by another coordinate bench. Before entering into the reference, the Special Bench, at the outset, noted that no definite opinion was expressed by the learned Single Judge in the referral order on any of the issues before her and the questions referred to the Larger Bench could only be answered after entering into the merits of the case which ought to have been done by the learned Single Judge. In the order dated 12.7.2011 passed by the learned Single Judge in the previous writ petition, no legal issue was settled nor there was any expression of opinion on the merits of the case. In the previous Writ Petition No. 5820 of 2002, by the judgment and order dated 12.7.2011, the learned Single Judge had simply relegated the matter for fresh consideration by the Additional Commissioner while quashing the order dated 13.9.2001 expunging the names of the petitioners therein and directing for recording of the plot in question as 'Charagah', after giving notice and opportunity to the petitioners. In the said scenario, it was open for the learned Single Judge, who had referred the matter to decide the issue before her on merits. In any case, all the questions of reference noted above had been answered after entering into the merits of the case as without that process, it was not possible to give any definite answer. Once the merit of the case had been touched by the Special Bench while answering the reference, there was no reason to relegate the matter, inasmuch as, the Special Bench constituted by Hon'ble the Chief Justice was also exercising concurrent jurisdiction under Article 226 of the Constitution of India. Once an opinion was drawn by the Special Bench after dealing with the merits of the case in order to answer the questions of reference noticing that the land in question was a pasture land recorded in the revenue records, there was nothing left for fresh adjudication by the learned Single Judge or for further consideration. After giving answer to Question No. 'E' referred to this Bench, once the Court had reached the conclusion that no exception could be taken to the action taken by the Commissioner for restoration of the public utility land in the plot in question after summoning the original records and found that the revenue entries were forged, nothing was remained to be decided on merits of the writ petition. In the light of the above and the facts noted in the judgment under review, this bench had refused to quash the order passed by the Additional Commissioner by invoking extraordinary jurisdiction vested in it under Article 226 of the Constitution of India. But while keeping the impugned order intact, in order to meet the ends of justice, it was provided that the petitioners were entitled to notice and opportunity to show cause as to why action be not taken against them for illegal occupation of the public utility land (pasture land) reserved under Section 132 of the U.P.Z.A.&L.R. Act. To the above limited extent, liberty was granted to the petitioners to raise all issues available under law before the Additional Commissioner who was required to examine them as supervisory revisional authority within the scope of Section 333 of the U.P.Z.A.&L.R. Act. In the said scenario, having given anxious considerations to the submissions of the learned counsel for the review applicants and having noticed the answers given to the questions raised in the referral order, we are of the considered opinion that the review application has no merit. Reliance placed on the decision of the Apex Court is of no benefit to the review applicant, inasmuch as, in the said case, the Division Bench had no jurisdiction to decide the second appeal on merits, which is not so in the present case. Even otherwise, no prejudice caused to the review applicants (petitioners in the writ petition) could be shown to us. The judgment under review is dated 5.3.2020 and the review application has been filed in February, 2022, after almost 2 years. There is not even a whisper as to what has happened in the proceeding before the Commissioner, i.e. whether the review applicants/petitioners had agitated their claims or not. For the above, the review application is found devoid of merits and is, accordingly, rejected. Order Date :- 22.4.2022 Brijesh Digitally signed by BRIJESH KUMAR Date: 2022.04.26 16:55:54 IST Reason: Location: High Court of Judicature at Allahabad