Heard Shri C.B. Yadav, learned Senior Counsel for the petitioner- applicant in support of the review application .
2. By this application No.214047 of 2010, the applicant- petitioner has sought review of the judgment and order dated 15.4.2010 passed by this Court in Writ Petition No. 15474 of 2010, Salek Chand vs. Deputy Director of Consolidation, Gautam Budh Nagar and others. The aforesaid writ petition was filed before this court against the judgement and order dated 11.3.2010 passed by Dy. Director of Consolidation, Gautam Budh Nagar in Revision No.1 of Gram Sabha Vs. Salek Chand. For ready reference the pleading made and grounds taken in the writ petition are extracted as under:-
4. That against the order and judgement dated 5.2.1982 the Respondent no.4 and 5 filed Appeal no.5131 and 132 before the settlement officer consolidation respondent no.2 who by order and judgement dated 29.6.2002 dismissed the Appeal. A true copy of the order and judgement dated 29.6.2002 passed by S.O.C. Respondent no.2 is being filed herewith and marked as Annexure no.2 to this writ petition.
5. That against the order and judgement dated 29.6.2002 passed by S.O.C. Respondent no.2, the respondents no. 4 and 5 filed revision no. 52 of 2003-2004 before the respondent no.1 Deputy Director of Consolidation, Gautam Budh Nagar on 24.7.2002.
6. That the petitioner filed written arguments before the respondent no.1. A photostat copy of the written arguments is being filed herewith and marked as Annexure no.3 to this writ petition.
7. That the Deputy Director of Consolidation wrongly and illegally by four line order allowed the revision after cutting the word dismissed by order dated 11.3.2010. The certified as well as true copy of order and judgement dated 11.3.2010 is filed herewith and marked as Annexure no.4 to this writ petition.
8. That there is no detail order or typed order in the file and only order annexed as Annexure no.4 in the filed.
9. That the revision was dismissed and the same was mentioned in the order but by cutting the word dismissed the word allowed has been written by the Deputy Director of Consolidation respondent no.1 and there is clear manipulation of the order.
10. That there were large number of complaints of corruption against the respondent no.1 and a complaint was made even by the District Bar Association, Collectorate Gautam Budh Nagar to the Collector, Gautam Budh Nagar and even a news Item was also published in News paper. The photo stat copies of the complaint of Bar Association and news Item are filed herewith and marked as Annexures 5 and 6 to this writ petition.
11. That except the impugned order which has been filed as Annexure no.4 here is no detail order in the file.
12. That it is apparent that after cutting the word dismissed the word allowed has been made.
13. That the impugned order is not reasoned and speaking order as such same is liable to be quashed.
14. That with oblique motive the impugned order has been manupulated.
15. That it is in the interest of justice that this Hon'ble court may be pleased to stay the effect and operation of the impugned order dated 11.3.2010 passed by Deputy Director of Consolidation Gautam Budh Nagar Annexure no.4 to the writ petition and pleased to pass any suitable order which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case.
16. That the petitioner has no other alternative remedy except to file present writ petition following following amongst other grounds :-
GROUNDS I. Because there is no detail order or typed order in the file and only the order annexed as Annexure no.4 is in the file.
II. Because the revision was dismissed and the same was mentioned in the order but by cutting the word dismissed the word allowed has been written by the D.D.C. Respondent no.1 and there is clear manipulation of the order.
III. Because there was large number of complaints of corruption against the respondent no.1 and a complaint was made even by the District Bar Association, Collectorate Gautam Budh Nagar to the Collector, Gautam Budh Nagar and even a news Item was also published in news paper.
IV. Because except the impugned order which has been filed as Annexure no.4 there is no detail order in the file.
V. Because it is apparent that after cutting the word dismissed the word allowed has been made. VI. Because the impugned order is not reasoned and speaking order as such same is liable to be quashed. VII. Because with oblique motive the impugned order has been manipulated. PRAYER It is, therefore, Most Respectfully prayed that this Hon'ble court may graciously be pleased to :- 1. Issue a writ, order or direction in the nature of certiorari quashing the impugned order and judgement dated 11.3.2010 passed by Deputy Director of Consolidation, Gautam Budh Nagar respondent no.1,Annexure no.4 to this writ petition. 2. Issue any other writ order or direction which this Hon'ble court may deem fit and proper on the facts and circumstances of the case. 3. Award the cost of the writ petition. Sd/- (Mrs. Tabassum Hasmi) Advocate. Counsel for the petitioner. dt.19.3.2010 Ladies Chamber High Court "
3. Thus from a careful reading of the pleading and grounds of the writ petition it is clear that the aforesaid writ petition was filed merely on the ground that revision filed by Gaon Sabha against the petitioner-applicant was virtually dismissed by Dy. Director of Consolidation on 11.3.2010 but it was subsequently allowed by cutting the word "dismissed" on order sheet dated 11.3.2010 of said revision with note that detail typed order dated 11.3.2010 was on separate sheet but no such detailed order was on the record of the said revision. Therefore, after hearing the learned counsel for the petitioner on 25.3.2010, this Court had directed the Deputy Director of Consolidation, Gautam Budh Nagar to appear in person before the Court on 15.4.2010 and explain the situation, which reads as under:-
"It is stated that vide order dated 11.3.2010 passed by Deputy Director of Consolidation, Gautam Budh Nagar initially the revision filed by the GaonSabha against the petitioner was dismissed but later on by cutting down the word "Kharij" in its place it has been written as "sweekar kiya jata hai", thus it was admitted or allowed and record of the case has been consigned to the office. No detail has been given as to why it was subsequently admitted or allowed. It is not understandable as to how such order was passed by Dr. Abha Gupta, Deputy Director of Consolidation, Gautam Budh Nagar in Revision No.1 Gram Sabha Vs. Salek Chand, therefore, she is directed to appear before the Court and explain the situation on the date fixed.
List on 15.04.2010.
A copy of this order shall be given to Sri Amit Kumar, learned standingcounsel free of cost within 24 hours for communication to Dr. Abha Gupta."
4. Thereafter on 15.4.2010, Dr. Abha Gupta, Deputy Direction of Consolidation, Gautam Budh Nagar along with Shri Ramkesh Katiyar, Consolidation Officer, Gautam Budh Nagar were appeared before this Court and filed counter affidavit in the writ petition explaining the situation inter-alia that actually the detailed order dated 11.3.2010 was passed by the Deputy Director of Consolidation in Revision No.1 Gram Sabha Vs. Salek Chand under Section 48 of the U.P.C.H. Act but petitioner had not enclosed the aforesaid order passed by Dy. Director of Consolidation deliberately while filing the above noted writ petition in stead thereof merely order sheet of the aforesaid date ( i.e. 11.3.2010) of said revision was filed in the aforesaid writ petition with aforestated facts whereas the actual detailed order dated 11.3.2010 passed in the said revision was available on the record of the said revision and filed as Annexure C.A.-3 of the said counter affidavit. It was also stated in the said counter affidavit that not only this but against the order dated 11.3.2010 passed by the Deputy Director of Consolidation, the petitioner-applicant, Salek Chand had already filed a restoration application before Dy. Director of Consolidation/District Magistrate, Gautam Budh Nagar on 18.3.2010, but he did not mention about the fact that a detailed order dated 11.3.2010 was not actually passed in the said revision and was not available on record. Apart from it, the petitioner had also filed supplementary affidavit in the writ petition on 15.4.2010 by enclosing the detail order dated 11.3.2010 passed by Dy. Director of Consolidation in the said revision as Annexure-S.A.-I to the said supplementary affidavit but he had not furnished any explanation about the same as to why he could not file said order while filing the writ petition, which was bone of contention in writ petition. Therefore after hearing the learned counsel for the petitioner and learned Standing Counsel and perusing the record of the writ petition including material placed through the said counter affidavit filed on behalf of respondents. I have dismissed the writ petition vide judgement and order dated 15.4.2010 which reads as under:-
"Heard learned counsel for the petitioner and learned standing counsel for respondents.
Deputy Director of Consolidation, Gautam Budh Nagar namely Dr. Abha Gupta as directed by this Court is present before the Court. Ramkesh Katiyar, Consolidation Officer, Gautam Budh Nagar has filed counter affidavit in writ petition stating therein that the order dated 11.3.2010 passed by Deputy Director of Consolidation has not been enclosed by the petitioner while filing the writ petition, instead thereof he has filed only a fabricated certified copy of the order sheet dated 11.3.2010 in the writ petition. In order to demonstrate the aforesaid fact the learned standing counsel has also drawn attention of this Court on a restoration application dated 18.3.2010 moved by the petitioner in the court of Deputy Director of Consolidation, wherein he has also filed a certified copy of the order sheet dated 11.3.2010 contained at page 17 of the counter affidavit. From perusal of which it indicates that there is manipulation in the copy of the order sheet of Revision No.1 Gram Sabha Vs. Salek Chand decided on 11.3.2010, wherein it has been mentioned that typed copy of order is not attached with the said certified copy of the order sheet, whereas in the restoration application no such note has been appended in the said order. It indicates that by manipulating the certified copy of the order sheet dated 11.3.2010 passed in the said revision the petitioner has filed abovenoted writ petition before this Court. But instead of taking any serious action against the petitioner I have also considered the submissions of learned counsel for the petitioner and learned standing counsel on merits of the order dated 11.3.2010 passed by Deputy Director of Consolidation, Gautam Budh Nagar, which has been filed by the petitioner along with supplementary affidavit as Annexure SA-1.
From perusal of the order dated 11.3.2010 passed by Deputy Director of Consolidation it appears that the land in dispute was recorded as Banjar land in the name of Gaon Sabha. The petitioner could not establish his title before Deputy Director of Consolidation as to how the title of said land has been conferred upon the petitioner. The Deputy Director of Consolidation has dealt with the orders passed by Consolidation Officer as well as Settlement Officer of Consolidation in quite detail and rightly set aside the orders passed by both the authorities below to her. In my opinion also no title could be conferred upon the petitioner on the basis of any claim of adverse possession over the land belonging to the Gaon Sabha even if the notice u/s 122-B of U.P.Z.A.&L.R. Act has been dropped against the petitioner in respect of said land. It is not the case of the petitioner that the land has been settled with the petitioner either before Zamindari abolition by Zamindar or Gaon Sabha under the relevant provisions of U.P.Z.A.&L.R. Act, as such the petitioner cannot claim any right or title in respect of the land belonging to the Gaon Sabha. The view taken by the Deputy Director of Consolidation, in my considered opinion, appears to be perfectly justified and cannot be called in question at the instance of the petitioner.
The writ petition is accordingly dismissed being devoid of merit."
5. The grounds on, which the petitioner-applicant has sought review of the aforesaid judgment and order dated 15.4.2010 passed by this Court in the above noted writ petition are as under:-
"A. Because with regard to the title dispute over the property bearing gata no.117/4 consisting of area 2-7-0, an order was passed on 30.11.1976 by the Tehsildar and the said order was cancelled/ set aside after reference made by the Additional Commissioner, by the Board of Revenue vide order dated 12.9.1979. Thus, the rights which were claimed by the petitioner as Sirdar already confirmed on 12.9.1979 and the order by which the petitioner was asked to vacate the property in question was already set aside by the Board of Revenue. The order passed by the Board of Revenue attained finality because this order has not been challenged.
B. Because in the earlier proceedings also, a notice issued under Section 122-B was already withdrawn on 30.09.1971 by the Sub Divisional Officer, Sikandarabad and declared the petitioner to be Sirdar and later on after deposit of the requisite amount, the petitioner was declared to be a bhumidhar and the order dated 30.9.1971 passed by the Sub Divisional Officer declaring the petitioner to be Sirdar was not challenged by the Goan Sabha at any point of time, as such, this order also attained the finality.
C. Because the fact referred to above were already part of the judgment and order dated 29.6.2002 passed by the Settlement Officer Consolidation, Bulandshahr, Camp office at Dadri. Neither the Deputy Director of Consolidation nor this Hon'ble Court had dealt with the aforesaid fact and as such the impugned judgment may be reviewed to the extent that the right, title and possession which was settled in favour of the petitioner vide two judgments dated 30.9.1971 and 12.9.1979 became final and these orders have not been challenged. Therefore, subsequent denial of the right of the petitioner on the ground that no adverse possession can be claimed over the Goan Sabha land is wholly illegal. However, this Hon'ble Court did not take into account the aforesaid fact and dismissed the writ petition vide the impugned judgment and order dated 15.4.2010. The said judgment may kindly be reviewed to the extent that it may be seen as to whether the Gaon Sabha has got any right in the property in the light of the judgment dated 30.9.1971 and 12.9.1979. These judgments are very much discussed in the judgment and order dated 29.6.2002 passed by the Settlement Officer Consolidation. Neither the Deputy Director of Consolidation nor this Hon'ble Court had dealt with the aforesaid factors and it appears that the petitioner's right has been overlooked in the garb of filing of the writ petition mainly against order sheet without annexing with the real judgment which was filed by the counsel for the petitioner subsequent along with the supplementary affidavit.
D. Because the affidavit filed by Gaon Sabha does not dispute about the rights which was confirmed in favour of the petitioner in the year 1971-1979 and the affidavit filed by the Gaon Sabha is totally silent, therefore, the legal aspect which were required to be dealth with has not been dealt by this Hon'ble Court, therefore, this Hon'ble Court may be pleased to allow this application and review the judgment and order dated 15.4.2010.
E. Because subsequent appeal and revision filed by the Gaon Sabha is already barred by resjudicata in view of the fact that the petitioner is already in possession over the property since last 50 years and on two occasions, the possession of the petitioner has already been admitted by the Sub Divisional Officer, Sikandarabad, District Bulandshahr vide the judgment and order dated 30.9.1971 and also by Member of the Hon'ble Board of Revenue by the judgment and order dated 12.9.1979 therefore in that circumstances the right which is confirmed in favour of the petitioner along back in the year 1971-79 and these two orders attained to the finality because these orders have not been questioned any where in the court of law. It appears that the counsel for the petitioner could not property assist this Hon'ble Court and the issue has been deviated from real question of consideration on the ground that certain manipulation in the records of the Deputy Director of Consolidation, therefore, on account of the technicalities, the door of justice cannot be shut to the litigants as this is observed by this Hon'ble Court in the earlier occasions also."
6. Before proceeding further in the matter, it is to be noted that a judgement and order passed by the court can be reviewed by the same court under certain circumstances and on limited grounds available under Order 47 Rule 1 C.P.C., which is extracted as under:-
"ORDER XLVII REVIEW
1. Application for review of judgment - (1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or ( c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order."
7. From a careful reading of the grounds of the aforesaid review application inasmuch as averments made and grounds taken in the writ petition giving rise cause of action of instant review application and on perusal of records, it is clear that the grounds taken in review application were already available to the petitioner-applicant at the time of the filing of the writ petition but instead of taking the aforesaid grounds in writ petition, it was filed merely on the ground that D.D.C. had initially dismissed the said revision filed by Gaon Sabha against the petitioner on 11.3.2010, but subsequently on the same day allowed the said revision by cutting down word "dismissed" in the order sheet dated 11.3.2010 without passing any detailed order in the said revision. That is why as indicated herein before vide order dated 25.3.2010 this court had directed the D.D.C., Gautam Budh Nagar to appear before this court in person to explain the said situation. In pursuant thereto, Dy. Director of Consolidation, Gautam Budh Nagar appeared before the court and explained the situation by filing counter affidavit enclosing the detailed order dated 11.3.2010 passed by her in the said revision. Thereupon after hearing the petitioner's and respondents' counsel, I found that the stand taken by the petitioner in the writ petition was wholly false, mischievous and misleading to the court. The aforesaid conduct of petitioner was found highly unfair as such writ petition was dismissed. Although while dismissing the said writ petition, I was intending to direct some inquiry against the petitioner and his counsel, but I had refrained from doing so.
8. It is significant to notice that it is not the case of petitioner-applicant that the aforesaid review application is moved due to discovery of new and important matter or evidence which after exercise of due diligence was not within his knowledge or could not be produced by him when the judgement and order sought to be reviewed was passed by this court. There is nothing to indicate that while passing the judgement and order sought to be reviewed, this court had committed some mistakes or error apparent on the face of record or there exist any other sufficient reason which desires to review of the order dated 15.4.2010 passed by this Court. Therefore, in given facts and circumstances of the case, I am of the considered opinion that the grounds on which the review of aforesaid order is sought for were already available to the petitioner, but reason best known to him he has not taken the aforesaid grounds in the writ petition gave rise cause of action of instant review application. This court, in writ jurisdiction, was not under legal obligation to fish out the grounds in favour of the petitioner for invalidating the impugned order dated 11.3.2010 passed by Dy. Director of Consolidation. Therefore, in given facts and circumstances of the case, I am of the considered opinion that it is not fit case where the review application can be otherwise entertained by this court.
9. It is also to be noted that neither in the writ petition nor in the review application the decisions alleged to have been rendered by Revenue courts on 30.9.1971 and 12.9.1979 in favour of petitioner-applicant as indicated in the grounds no. A,B,C,D and E of review application and extract of Khatauni and Khasra of relevant years in respect of land in dispute have been filed by the petitioner so as to enable this Court to examine the veracity and genuineness of aforesaid documents and legal impact and implication of the said materials in respect of the property in dispute. In my opinion, by moving this application, the whole attempt of petitioner-applicant is to get the case remanded back before Dy. Director of Consolidation for fresh disposal on the aforesaid issue by keeping this court in dark about the real facts and circumstances of the case. Thus like earlier, at this time also the approach of the petitioner-applicant does not appear to be fair and bonafide. It is also to be remembered that this court is not merely a court of law rather it is court of equity, justice and good conscience. Therefore, having regard to the rampant corruption in public life and public administration and high market value of land in dispute situated in District Gautam Budh Nagar, I am not inclined to re-open the issue for providing any further opportunity to the petitioner-applicant to indulge in such manipulation and mal-practice. At any rate. once the writ petition was dismissed on merits and on account of unfair conduct of the petitioner inasmuch as poor drafting and poor presentation of writ petition before this Court, it would not be appropriate to encourage such petitioner, to approach this Court again by seeking review of the judgment and order passed by this Court on merits by engaging another counsel. Such encouragement, in my view, will convey wrong message, therefore, on this count also the review application filed by the petitioner-applicant is liable to be rejected.
10. Accordingly, the review application stands rejected.
Order Date :- 21.9.2010 SFH