Sohan Lal and Another vs Harimohan and Others

Umesh Chandra Dhyani, J.—This is review application being MCC No. 734 of 2013 moved on behalf of respondent no. 14/State of Uttarakhand, to review the order dated 11.12.2012 passed by the Hon''ble Division Bench of this Court in Special Appeal No. 395 of 2012 "Sohan Lal vs. Hari Mohan and others".

Instant review application has been filed on the ground that this fact was not in the knowledge of the State/applicant that, in village Rishikesh, settlement proceedings are going on, pursuant to the notification dated 15.10.1991 and U.P. Land Revenue (Survey of the Record Operation) Rules, 1978.

Objections have been filed by the opposite party/appellants against the review application alleging therein that in the review application the State itself has mentioned that the State has applied for extension of time to comply with the Court''s order and that the permission was sought to file the time extension application, which was given by the Under Secretary on 28.10.2013. It has also been alleged that permission of Principal Secretary (Judicial)/Legal Remembrancer, Government of Uttarakhand, has not been obtained to file review application. In support of his allegation, learned counsel for the opposite party/appellants has placed a letter issued by the Under Secretary/Public Information Officer under the Right To Information Act, 2005, whereby it was informed to the opposite party/appellant Govind Prasad Bahuguna that the State Counsel cannot file the review petition before the High Court without the permission of the Government. Besides the same, a copy of the letter issued by the Office of Advocate General, High Court of Uttarakhand, is also placed before this Court to show that no permission was given by the Law Department to file review petition.

In reply thereto, learned C.S.C. appearing for the State/review applicant placed a copy of the undated letter of permission given by the Law Department to file review petition.

Although the permission has been obtained from the Law Department to file the review petition, but as stated earlier, we were told that the present review petition was filed at the instance of learned Advocate General, who is the first Legal Advisor to the Government of Uttarakhand, and has precedence over the Principal Secretary (Judicial)-cum-Legal Remembrancer, who is the first Law Officer of the Government, in matters of advice to the Government, therefore, in such a situation, there appeared to be no need for the direction of the Principal Secretary (Judicial)-cum-Legal Remembrancer to file a review petition before this Court.

In earlier round of litigation, a writ petition, being WPMS No. 2007 of 2008, was filed by the respondent nos. 1 to 6 before this Court, against the notice of demarcation. In that petition, the learned Single Judge of this Court has also taken note of the fact that the settlement proceedings are going on in the concerned village. The opposite party/appellants preferred special appeal being SPA No. 55 of 2010 before the Hon''ble Division Bench of this Court, being aggrieved against the judgment of the learned Single Judge. The said special appeal was allowed and it was made clear that the purport and intent of notice dated 14th November, 2008 was only to demarcate the dividing line in between khasra No. 276/49 and Khasra No. 276/6/37 and neither the appellants nor the writ petitioners can object to such demarcation, and a fresh notice was directed to be issued. Thereafter, notice was issued by the Tehsildar Rishikesh and a survey report was submitted, but as the opposite party/appellants were not satisfied with the report, they filed writ petition being WPMS No. 2100 of 2011 before this Court, which was dismissed on the ground of alternate remedy, against which, Special Appeal No. 395 of 2012 was preferred before the Hon''ble Division Bench of this Court, which was disposed of and a direction was given to the appellate court to demarcate and handover the possession, against which instant review application has been filed.

From perusal of memo of parties in WPMS No. 2007/2008, which was filed by respondent nos. 1 to 6, it emerges out that State was not a party in that petition, while in subsequent writ petition i.e. WPMS No. 2100/2011, which was filed by the opposite party/appellants, State was made a party. Therefore, in view of the fact that the State was not a party in previous round of litigation, the contention of the learned C.S.C. that this fact was not in the knowledge of the State, gains ground. It may also be relevant to mention here that in WPMS No. 2007/2008 although the District Magistrate, Commissioner and Tehsildar were arrayed as respondents but the State of Uttarakhand was not a party. In present Writ Petition No. 2100 of 2011 (M/S), State of Uttarakhand has been arrayed as respondent no. 14.

In support of his case, learned counsel appearing for the opposite party/appellant has placed reliance upon following three judgments:-

i) S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, .

ii) Kamlesh Verma Vs. Mayawati and Others, .

iii) Union of India (UOI) Vs. Sandur Manganese and Iron Ores Ltd. and Others, .

In Kamlesh Verma''s case (supra), it was held by the Hon''ble Supreme Court that the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him, is a ground for review. The said view was reiterated in Sandur Manganese and Iron Ores'' case (supra). Earlier also, the view taken by the Hon''ble Apex Court was that if the judgment and order is vitiated by an apparent error or it is palpable wrong and if the error is self evident, review is permissible under Order 47 Rule 1 of C.P.C.

In the instant case, this fact has been mentioned that during the course of compliance of court''s order it came to the notice that notification for making record operation was made on 15.10.1991, and therefore, no direction could be made by this Court to the revenue officials to make survey and to handover possession. This exercise can only be done by the Assistant Record Officer who was entitled to make survey and correct the record under the said Rules. Although survey staff was called for joint survey, but they were called at the instance of the revenue authorities and they did not do so in their independent capacity. Therefore, it appears prima facie that the order passed by the Hon''ble Division Bench was passed without taking note of notification dated 15.10.1991. The said fact goes to the root of the case. We, accordingly, allow the review application and set aside the impugned judgment and order dated 11.12.2012.

List this appeal for hearing.