HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Review Petition (Writ) No.217/2022
In
S.B. Civil Writ Petition No.9086/2019
1. Mukhtar Ahmed Gehlot, S/o - Shri Shokat Ali, Aged About
46 Years, R/o - Mohalla Guwar, Makrana, District Nagaur
(Rajasthan.)-341505
2. Mohammed Siddique S/o Shri Gulam Shekh Farid, Aged
About 53 Years, R/o Ward No.38, Guljarpura, Makrana,
District Nagaur (Rajasthan.)-341505
----Review Petitioners
Versus
1. Bhanwarlal S/o Sh. Shrinarayan, R/o Village Mahapura,
Tehsilsanganer, Distt. Jaipur.
----Review Respondent/Writ Petitioner
2. M/s. Land Mark Executive Pvt. Ltd., Registered Office 3, Munirika Marg, New Delhi Through Authorized Agent Pradeep Sharma S/o Naresh Chand Sharma, R/o F-1, Vijay Path, Banipark, Jaipur.
3. Gopal S/o Laduram, R/o Village Mahapura, Tehsilsanganer, Distt. Jaipur.
4. Smt. Krishna Devi D/o Shrinarayan Sharma, R/o Village Mahapura, Tehsil Sanganer, Distt. Jaipur. Presently R/o A- 48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur. (Since Deceased) 4/1. Jitendra S/o Sh. Narain Sahai, R/o A-48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur.
4/2. Chandra Mohan S/o Sh. Narain Sahai, R/o A-48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur.
4/3. Shekhar S/o Sh. Narain Sahai, R/o A-48, Shivaji Marg, Nehru Nagar, Panipech, Jaipur.
4/4. Rama Devi D/o Narain Sahai W/o Amit Sharma, Path-7, Bandhu Nagar, Murlipura, Jaipur.
4/5. Shyama Devi D/o Narain Sahai W/o Nikhil Sharma, R/o Village Jhanyi, Post Bar Ke Balaji, Jaipur.
----Respondents
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5. Rajasthan Government Through Tehsildar, Sanganer,
District Jaipur.
6. Board Of Revenue, Rajasthan, Ajmer Through Its
Registrar.
7. Revenue Appellate Authority, Jaipur.
8. Assistant Collector Cum Executive Magistrate, Jaipur City
- I , Jaipur.
9. Smt. Laxmi Devi Wife Of Late Shrinarayan Sharma.
(Deleted Respondent).
----Proforma Respondents
For Petitioner(s) : Mr.Javed Khan, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
06/01/2023
This review petition has been filed by the two review petitioners for seeking review of the order and judgment passed by this Court on 06.07.2022 in S.B. Civil Writ Petition No.9086/2019 (Bhanwarlal Vs. Ms. Land Mark Executive Pvt. Ltd. and Ors.).
Learned counsel for the review petitioners submitted that S.B.Civil Writ Petition No.9086/2019 was filed by the original petitioner-Bhanwar Lal challenging the order dated 09.04.2019, passed by the Board of Revenue, order dated 01.02.2016 passed by the Revenue Appellate Authority, the Judgment and decree dated 12.06.2015, passed by the Assistant Collector and Executive Magistrate, Jaipur City - I & judgment and the preliminary decree dated 02.06.2015, passed by the Assistant Collector and Executive Magistrate, Jaipur City - I, Jaipur.
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(3 of 8) [WRW-217/2022] Learned counsel for the review petitioners submitted that this Court while deciding the writ petition has set aside the decree dated 12.06.2015, the order passed by the Board of Revenue dated 09.04.2019 and the order dated 01.02.2016, passed by the Revenue Appellate Authority, has also been set aside.
Learned counsel for the review petitioners submitted that though this Court has upheld the preliminary judgment and decree dated 02.06.2015, however, liberty has also been given to the Court below to proceed further in pursuance of the preliminary judgment and decree.
Learned counsel for the review petitioners submitted that the present dispute before this Court, was also raised before different adjudicating Authorities, wherein interest of the review petitioners have not been looked into, in spite of the review petitioners being bona-fide purchaser of the property in question.
Learned counsel for the review petitioners submitted that the fact relating to transfer of land by the original plaintiff M/s.Land Mark Executive Pvt. Ltd. in favour of Manglam Build Developers Limited was highlighted before this Court in the reply filed by the respondents in the present writ petition i.e. M/s.Land Mark Executive Pvt. Ltd.
Learned counsel for the review petitioners submitted that none of the parties in the writ petition brought certain important facts in knowledge of this Court with respect to the present status of the property in question.
Learned counsel submitted that not only the land was transferred in favour of the JDA Authorities but also regularization camps were held and lease deed/patta were issued and as such, learned counsel for the review petitioners submitted that in such a (Downloaded on 12/01/2023 at 12:01:26 AM) (4 of 8) [WRW-217/2022] situation, it was incumbent on all the parties, who brought their matter before this Court to reveal complete facts of the said property in question for arriving at a proper conclusion.
Learned counsel for the review petitioners has made following submissions for recalling the order passed by this Court:-
1. There is an apparent error/mistake in the order dated 06.07.2022 passed by this Court, as pleadings before this Court have not been taken into consideration while passing the said order and in spite of the fact that transfer of land being brought into notice by way of filing reply by the original respondent in the writ petition, this Court did not give its own finding and as such "error apparent on the face of the record", needs to be corrected by this Court.
2. The writ petition filed by the petitioner as well as the facts pleaded before this Court in the reply filed by the respondents did not narrate the correct facts before this Court and subsequent developments which had taken place during the litigation, ought to have been brought into notice of this Court and if certain important facts are not brought into notice of this Court, such omission becomes a cause for calling the order to be re-examined, by considering all the relevant and subsequent facts.
3. The consequence of the order passed by this Court would be like unsettling the settled things after a long period of time and since the review petitioners are in a rightful possession of the property in dispute and in absence of such an important necessary party, the final order should not have been passed by this Court. (Downloaded on 12/01/2023 at 12:01:26 AM)
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4. Learned counsel for the review petitioners submitted that even if writ petition has been filed under Article 227 of the Constitution of India, conduct of the parties is a most important factor for the purpose of granting equitable relief and in clandestine manner, and the facts projected before this Court affect rights of the persons, who have stakes in the property, such conduct itself dis-entitled the original writ petitioners to get relief from this Court.
5. Leaned counsel for the review petitioners submitted that though an appeal is said to have been filed against the order passed by this Court before the Division Bench, however, the right of review for recalling the order passed by this Court is available and as such this Court may not restrain itself from recalling the order only on account of pendency of the appeal before the Division Bench.
6. Learned counsel for the review petitioners further submitted that the Apex Court in the case of Crystal Developers Vs. Asha Lata Ghosh (Dead) through LRs & Ors. reported in 2005 (9) SCC 375, has considered the issue of subsequent developments, which had taken place and if certain rights were settled in respect of property in question, the order of the Court should not result into unsettling or depriving the persons from their valuable right of the property.
I have heard learned counsel for the review petitioners and perused the available on record.
This Court finds that in the present review petition, the review petitioners have claimed that they had purchased the property from one M/s.Manglam Build Developers Limited. (Downloaded on 12/01/2023 at 12:01:26 AM)
(6 of 8) [WRW-217/2022] This Court finds that Misc. Application No.1/2022 was filed by the applicant - M/s.Manglam Build Developers Limited under Order 1 Rule 10 CPC for impleadment as a party respondent in the writ petition and this Court vide order dated 02.03.2022, after considering the submissions of learned counsel for both the parties, found that Manglam Build Developers Limited was neither necessary nor proper party, however, considering the controversy involved in the writ petition, the Manglam Build Developers Limited was allowed to intervene in the matter as intervener.
This Court finds that counsel who was representing Manglam Build Developers Limited was given opportunity of hearing and after considering the submissions raised by counsel for the intervenor as well as counsel appearing for the original writ petitioner and the respondents, this Court decided the writ petition finally on 06.07.2022.
This Court finds that if review petitioners are seeking their rights from Manglam Build Developers Limited or they have stepped into their shoes, the right of Manglam Build Developers Limited has already been considered by this Court while adjudicating the writ petition.
This Court finds that before deciding the writ petition finally, the order dated 02.03.2022 passed by this Court on impleadment application was not challenged before any Higher Court and as such, this Court decided the writ petition finally.
The submission of counsel for the review petitioners that due to subsequent developments, which had taken place and did not form as a part of pleadings, as such, this Court has not looked into important aspect relating to third party rights, as such there is an apparent error in the order passed by this Court, suffice it to say (Downloaded on 12/01/2023 at 12:01:26 AM) (7 of 8) [WRW-217/2022] by this Court that the review petitioners were neither party in the first instance, where suit was filed nor in the appeal filed before the Revenue Appellate Authority. The review petitioners or any such other persons, who are claiming their right now, never applied for impleadment as a necessary party in the first instance.
This Court finds that the matter traveled upto the Board of Revenue and even at that stage, no such person came forward for impleadment on the basis of some right being created in their favour by virtue of subsequent developments.
This Court finds that in the writ petition filed by the original writ petitioner, various orders passed by the Adjudicating Authorities, were under challenge and all those persons, who were parties in the litigation, were before this Court and they were accordingly heard.
This Court also finds that the writ petition filed by the original writ petitioner was challenging the orders passed by the different Review Authorities including the Board of Revenue and since the writ petition was filed primarily under Article 227 of the Constitution of India, all those parties, who were there before the Adjudicating Authorities, were only necessary parties and accordingly, such parties were heard.
This Court further finds that the impleadment application which was filed, at one point of time, was considered in the interest of justice and even hearing was afforded to such applicant for making legal and other factual submissions.
The submission of learned counsel for the review petitioners that the subsequent developments had resulted in creating rights in favour of the review petitioners and now by virtue of order passed by this Court, the settled things have become unsettled, (Downloaded on 12/01/2023 at 12:01:26 AM) (8 of 8) [WRW-217/2022] this Court finds that the order of Board of Revenue as well as the Appellate Authority have not been found to be legally sustainable and accordingly, those orders have been set aside by this Court.
The submission of learned counsel for the review petitioners that this Court may not restrain itself from entertaining the present review petition only on account of pendency of appeal being filed against final order passed by this Court, however, this Court is not dismissing the present review petition on the said ground.
This Court is considering all the submissions, which have been made by the counsel for the review petitioners for entertaining the review petition.
The submission of learned counsel for the review petitioners that the Apex Court in the case of Crystal Developers (supra) has laid down the law that the settled things should not be unsettled and if any right is created in favour of parties, the same needs to be protected. This Court, has gone through the judgment relied upon by counsel for the review petitioners and finds that the Apex Court was dealing with the issue of revocation of grant of probate and whether the same was to operate prospectively or the same could be revoked on the ground of fraud. The said judgment is of little assistance to counsel for the review petitioners.
This Court finds that the present review petition cannot be entertained by this Court and accordingly, the same is dismissed.
(ASHOK KUMAR GAUR),J Monika/30 (Downloaded on 12/01/2023 at 12:01:26 AM) Powered by TCPDF (www.tcpdf.org)