M/S Concept Cars Ltd. Hardoi Thru. ... vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 8512 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 

 
Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 330 of 2022
 

 
Appellant :- M/S Concept Cars Ltd. Hardoi Thru. Authorized Signatory Ram Chandra Rajwar (In Wpil 7472 Of 2021)
 
Respondent :- State Of U.P. Thru. Prin. Secy. (Revenue) Govt. Of U.P. Civil Secrt. Lko. And Others
 
Counsel for Appellant :- Kapil Misra,Paresh Mishra
 
Counsel for Respondent :- C.S.C.,Krishna Kumar Singh,Ratnesh Chandra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajnish Kumar,J.

(Order on application seeking permission to enjoin as appellant)

1. Having heard the learned counsel for the appellant, learned State Counsel and learned counsel representing the respondent nos.5 & 6 and having regard to the affidavit filed in support of the application seeking permission to enjoin as appellant, the Court finds that sufficient interest of the appellant is involved in the matter, as such leave is granted to file the special appeal.

(Order in re: Special Appeal)

2. Heard Shri S. C. Misra, learned Senior Advocate, assisted by Shri Paresh Misra and Shri Kapil Misra, Advocates for the appellant, Shri Prashant Singh Atal, learned Chief Standing Counsel with Shri V. P. Nag, learned Standing Counsel for the State-respondents, Shri Ratnesh Chandra, learned counsel representing the respondent no.5 and Shri Krishna Kumar Singh and Shri Ansul Singh, learned counsel for the respondent no.6 and perused the records available before us on this special appeal.

3. Challenge in the Writ Petition and directions issued by the learned Single Judge:

(a) Proceedings of this intra-court appeal have been instituted under Chapter VIII Rule 5 of the Rules of the Court laying a challenge to the judgment and order dated 05.07.2022 passed by the learned Single Judge in Public Interest Litigation (PIL No.7472 of 2021) which was filed by the respondent no. 6 with the following prayers:-

"(i). Issue, a writ order or direction in the nature of Mandamus commanding the respondent no.3 to conduct the inquiry in the matter in pursuance of letter dated 28.07.2020 issued by the opposite party No.2 whereby directed to conduct inquiry as per law, contained in Annexure No.7 to this writ petition.

(ii). Issue, a writ order or direction in the nature of Mandamus commanding the respondents to remove/vacate the unauthorized/illegal construction of Marooti Showroom over the Gata No.467, 468, 509, 544, new no.842, 1034, 1039, 1040, and 1175, Rakba 0.1260 Hectare, situated in village-Nanakganj Grant, Pargana-Gopmau, Tehsil-Sadar, District-Hardoi and take legal action against responsible person in accordance with law.

(iii). Issue any other writ, order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case.

(iv). Allow this writ petition with costs in favour of petitioner."

(b) Learned Single Judge while allowing the writ petition has issued the following directions:

"(1). Opposite party no.5 and other illegal occupants of the land in question are to be evicted forthwith inasmuch as the orders of eviction have already been passed in compliance of the order passed by the District Magistrate on 04.06.2021.

(2.) Necessary action must get completed within 15 days regarding eviction. With respect to compensation, the appeal(s) shall be heard and decided by the competent authority against the orders passed by the Tehsildar, Sadar, Hardoi expeditiously preferably within a period of one month from the date of the order. "

4. Facts:

(a) The dispute in this case relates to land admeasuring 4 bighas and 16 biswas comprised in old khasra plot no.467M, 508M, 509M and 544M (new khasra plot numbers after consolidation operation are khasra plot nos.1034, 1035, 1039, 1040 and 1175 having the same area of 4 bighas and 16 biswas) situate in village-Nanakgunj Grant, Pargana-Gopamau, Tehsil-Sadar, District-Hardoi.

(b) A Charitable Trust in the name and style of Gyan-Yog Charitable Trust was created by executing a Trust deed on 10.09.1986 by one late Radhey Shyam Agarwal. The first managing Trustee was the aforesaid late Radhey Shyam Agarwal, who was the Chairman of the Board and Trustee as well for his life time. Late Radhey Shyam Agarwal and Hari Narain Agarwal were the founder Trustees. As per the Trust deed, Sanjeev Agarwal, S/o Radhey Shyam Agarwal (Respondent no.5 herein) was one of the Trustees. Rajeev Agarwal, the other son of late Radhey Shyam Agarwal, is also described as one of the Trustees.

(c) The founder Trustee-Radhey Shyam Agarwal made an application for resumption of the land in question under section 117(6) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'U. P. Z. A & L. R. Act'). A resolution was passed by the Gaon Sabha concerned on 12.01.1987 whereby it was resolved that the land in question may be conveyed to the Trust for construction of a Hospital on payment of premium of Rs.8000/- per acre with the condition that the residents of the village shall be served at the Hospital free of charge, the residents of the village shall also be employed as per their qualification in the Hospital and the drain flowing over khasra plot no.544 which carries storm water during rainy season shall be maintained as it is. A report by the Tehsildar and another by the District Land Reforms Officer, Hardoi, were submitted to the District Magistrate whereupon the Trust was required to make a payment of Rs.24000/- in respect of resumption of land in question by means of a letter dated 27.01.1997 from the District Land Reform Officer/Additional District Magistrate (F/R), Hardoi. As per the said demand the amount of Rs.24,000/- was deposited in the Government Treasury.

(d) The District Magistrate thereafter issued an order on 30.01.1987 under section 117(6) of U.P.Z.A. & L.R. Act resuming the land in question. The purpose for which the land was resumed was also mentioned in the schedule appended to the said order dated 30.01.1987 which, as described in the said schedule, was for Gyan-Yog Charitable Trust (Chairman, R. S. Agarwal, Retired I.A.S). The possession was handed over to the Trust on 02.02.1987 and possession certificate was signed by the tehsil authorities and the Trustees.

(e) The land in question in the khatauni of 1333F and 1356F was recorded as class 5(iii)(2) land and was described as Jungal Dhak.

(f) After completion of the consolidation operations in the village concerned when khatauni was prepared by the tehsil authorities of the revenue department the land in question was described in the khatauni as class 6(ii) land.

(g) A sale deed was executed on 19.06.2010 transferring the land comprised in khasra plot no.1175 by the Trust in favour of Yash Vardhan Agarwal and Surya Vardhan Agarwal, S/o Sanjeev Agarwal. Another sale deed was executed by the Trust on 01.07.2010 transferring an area of 1057.72 Sq. M of the land in question in favour of Yash Vardhan Agarwal, S/o Sanjeev Agarwal and Pradeep Kumar Agarwal. On the basis of these two sale deeds executed by the Trust, names of the transferees were ordered to be mutated and they were also incorporated in the khatauni as well.

(h) Class of land in question was however change from 6(ii) to 1 Ka (Bhumidhar with transferable rights by means of an order passed in Form PA 23, though under law change of class of any land is not permissible to be changed).

(i) On 03.01.2022 P.I.L (Civil) No.7472 of 2021 was filed in which an order was passed on 18.03.2021 by the learned Single Judge whereby keeping the question of bona fide of the petitioner (respondent no.6 herein) open, learned Single Judge provided that in case the respondent no.6-petitioner is found pursuing his personal agenda, the Court would consider registration of suo motu PIL. The learned Single Judge also formulated certain questions/issues to be considered such as (i) whether the land in question could have been resumed and vested in the Trust, (ii) Assuming that the land could have been vested in the Trust considering public purpose sought to be achieved, whether the land could have been sold by the Trust or any of its members in favour of the Treasurer of the Trust for private purpose, if so, under what law? learned Single Judge also observed in the said order dated 18.03.2021 that in such a situation the issue involved will be of larger public interest for the reason that such land is held by the State as a Trustee of the people.

(j) A three Member Committee comprising of Sub Divisional Officer Sadar, Hardoi, Settlement Officer (Consolidation), Hardoi and City Magistrate, Hardoi, submitted an inquiry report on 01.06.2021 to the District Magistrate, Hardoi. This report was based on an inquiry conducted in the light of the issues outlined by the learned Single Judge in his order dated 18.03.2021. The inquiry report concluded that the order of resumption dated 30.01.1987 under section 117(6) of U.P.Z.A. & L.R. Act was not as per law for the reason that the land was resumed for a private Trust. The Inquiry Committee also concluded that the sale deeds executed by the Trust and mutation orders in favour of the transferees effected in the revenue records were also illegal. The Committee also concluded that the matter requires criminal investigation for offences under the Indian Penal Code. It also recommended disciplinary action to be taken against the erring officers.

(k) The District Magistrate passed an order on 04.06.2021 in the backdrop of the order dated 18.03.2021 passed by this Court and taking into consideration the report submitted by the Three Members Committee, dated 01.06.2021 whereby he rescinded the resumption order dated 30.01.1987 describing it to be without jurisdiction, illegal and void ab initio. The order dated 04.06.2021 further vested the land in Gram Sabha and also ordered the Tehsildar concerned to incorporate the said order in the revenue records and initiate proceedings under section 67 of U.P. Revenue Code, 2006 (hereinafter referred to as 'Code, 2006') for ensuring eviction of the occupants of the land in question.

(l) One Ramchandra Rajwar describing himself to be an Authorized Signatory of the appellant-company filed revision petition bearing No.1351 of 2021 under section 210 of the Code, 2006 challenging the order dated 04.06.2021 passed by the District Magistrate, Hardoi. The said revision petition was decided by the Board of Revenue by means of an order dated 02.08.2021 wherein it has been held that the appellant-company did not have locus to challenge the order dated 04.06.2021 passed by the District Magistrate and accordingly, the Board of Revenue accepted the preliminary objection regarding maintainability of the revision petition filed on behalf of the appellant-company. The Board of Revenue further observed that if so advised, the appellant-company may seek impleadment in the revision petition which was filed by the Trust against the order dated 04.06.2021 and was pending. However, while holding that the revision petition against the order dated 04.06.2021 was not maintainable at the behest of the appellant-company, the Board of Revenue by means of the order dated 02.08.2021 also provided that in case the appellant-company moves any application before the Sub divisional Officer concerned for exchange of land in question with the land belonging to the appellant-company, the same shall be ensured by the Sub Divisional Officer. It was also provided that in case in lieu of land comprised in Gata no.1175 the Sub Divisional Officer gets possession of any other land belonging to the appellant-company in exchange, the same shall be subject to the final outcome of the revision petition no.1146 of 2021 which was filed by the Trust against the order dated 04.06.2021 passed by the District Magistrate, Hardoi.

(m) Pursuant to the order passed by the District Magistrate on 04.06.2021 a notice under section 67 of the Code, 2006 was issued to Sanjeev Agarwal for eviction from the land in question. The Tehsildar/Assistant Collector, Sadar, Hardoi decided the said proceedings initiated under section 67 of the Code, 2006 by means of the order dated 27.01.2022 whereby Sanjeev Agarwal-respondent no.5 was ordered to be evicted from the land in question. Damages to the tune of Rs.3,54,60,000/-(Rs. thirty five crore four lakh sixty thousand) along with execution charges of Rs.12,800/- were also imposed.

(n) The order dated 27.01.2022 was made subject to final outcome of the revision petition no.1146 of 2021 filed by the Trust against the order dated 04.06.2021 passed by the District Magistrate.

(o) The appellant filed an application for setting aside the order of eviction dated 27.01.2022 on 07.02.2022 which was rejected by means of the order dated 07.03.2022 by the Tehsildar.

(p) Challenging the orders dated 07.03.2022 and 27.01.2022, appellant-company filed Writ-C No.1860 of 2022 which was dismissed as withdrawn by this Court with liberty to approach appropriate forum, vide order dated 01.04.2022. Thereafter the appellant-company filed revision petition under section 210 of the Code, 2006 against the orders dated 07.03.2022 and 27.01.2022 passed by the Tehsildar before the Board of Revenue which was registered as Revision Petition No.1072 of 2022. In this revision petition an order was passed on 11.05.2022 whereby the Board of Revenue directed that the revision petition be listed after judgment by larger Bench of the Board of Revenue in some pending reference. The order dated 11.05.2022 was challenged by the appellant-company by filing Writ B No.2296 of 2022 which was disposed of by the learned Single Judge on 24.05.2022 whereby the order dated 11.05.2022 passed by the Board of Revenue was modified and the matter was remitted to the Board of Revenue with the direction that the revision petition shall be heard on its merit.

(q) One Vinay Kant Pathak, who is one of the Trustees also filed Revision Petition No.511 of 2022 against the orders dated 04.06.2021 and 31.01.2022 passed by the District Magistrate. By the order dated 31.01.2022 application seeking recall of the order dated 04.06.2021 was rejected.

(r) Revision Petition no.1072 of 2022 filed by the appellant-company, Revision Petition No.1146 of 2021 filed by the Trust and Revision No.511 of 2022 were consolidated together and have been decided by the Board of Revenue by a common judgment and order dated 20.06.2022.

(s) The Board of Revenue while deciding the aforesaid revision petitions by means of the judgment and order dated 20.06.2022 has set aside the orders dated 04.06.2021 and 31.01.2022 passed by the District Magistrate. The orders dated 27.01.2022 and 07.03.2022 passed by the Tehsildar have also been set aside and these orders passed by the District Magistrate and Tehsildar have been substituted by certain directions contained in the order dated 20.06.2022 passed by the Board of Revenue. The result is that the order dated 04.06.2021, whereby the resumption of the land was rescinded, has been set aside and simultaneously the order dated 27.01.2022 whereby the eviction from the land in question and recovery of damages were ordered, has also been set aside.

(t) The Board of Revenue while passing the order dated 20.06.2022 has substituted certain directions in place of the orders dated 04.06.2021 and 31.01.2022 passed by the District Magistrate and orders dated 27.01.2022 and 07.03.2022 passed by the Tehsildar. The order of the Board of Revenue, dated 20.06.2022 provides that (i) the land in question shall be again vested with Gram Sabha concerned or any other Gram Sabha/Local Body/Local Authority under section 117(1) and (2) of U.P.Z.A.& L.R.Act, (ii) the Trust or any institution being run by the Trust shall remove its possession from the land in question and hand over the possession to the State Government before 1st of September, 2022 except the land comprised in khasra plot no.1175, (iii) Recovery of an amount two times the land revenue as annual rent from the Trust in respect of the land in question for the period commencing from 02.02.1987 and ending on 01.09.2022 shall be ensured, (iv) In case the Trust does not remove its occupation by 1st of September, 2022, proceedings be initiated against the Trust under the relevant provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and accordingly possession in favour of the State be obtained and damages for the period from 1st of September, 2022 till actual possession is taken over, be also recovered and (v) since the matter of exchange of plot no.1175 is said to be pending before the State Government as such after seeking appropriate instructions from the State Government requisite orders for exchange of khasra plot no.1175 be passed and till the time requisite order in relation to exchange is passed, the appellant-company shall not change the nature of the land comprised in khasra plot no.1175 and that status quo by both the parties shall be maintained.

(u) Learned Single Judge delivered the judgment in the writ petition on 05.07.2022, however, he did not have the occasion to consider the judgment dated 20.06.2022 passed by the Board of Revenue for the reason that it was delivered after the judgment was reserved in the writ petition by the learned Single Judge.

(v) The judgment dated 05.07.2022 has, thus, been challenged by the appellant-company by instituting the instant Special Appeal.

5. Submissions on behalf of the appellant-company:

(a) It has been contended on behalf of the appellant that the writ petition as Public Interest Litigation was not maintainable on account of lack of of bona fide of the petitioner-respondent no.6 because the fact that he was earlier an employee of the appellant-company and the petition by him was filed with oblique motive on account of personal grudge which he bore for the reason that he was ousted from the service of the appellant-company. It has also been argued that though the judgment and order under appeal passed by the learned Single Judge materially affects the interest of the appellant-company and causes serious prejudice to its rights, however, the appellant-company was not impleaded as a party respondent. Accordingly, the submission is that the writ petition ought to have been dismissed for want of impleadment of necessary parties. Elaborating this argument, it has been submitted that in terms of the provisions contained in Order 1 Rule 3 of the Code of Civil Procedure, the appellant-company was a necessary party and thus the writ petition suffered from the vice of non-impleadment of necessary party.

(b) Drawing attention of the Court to the prayer clause of the writ petition, it has been stated that prayer no.(ii) made in the writ petition was to issue, a writ order or direction in the nature of Mandamus commanding the respondents to remove/vacate the unauthorized/illegal construction of Maruti Showroom over the land in question which is owned and managed by the appellant-company, however the appellant-company was not impleaded in the writ petition and hence the proceedings of writ petition ought not to have been carried in absence of impleadment of the appellant-company as a party respondent.

(c) It has further been argued that while proceeding to decide the writ petition finally the learned Single Judge has completely ignored the earlier order dated 18.03.2021 passed in the writ petition wherein the question of bona fide of the petitioner-respondent no.6 was left open for being considered. Further submission is that in terms of the order dated 18.03.2021 bona fide of the petitioner-respondent no.6 ought to have been determined first and it is only thereafter if the situation so warranted, the writ petition ought to have been registered as a suo-motu Public Interest Litigation (PIL) and having not done so the learned Single Judge has erred in law in proceeding with the writ petition and pronouncing the judgment and order under appeal.

(d) Learned counsel representing the appellant-company has also urged that after the District Magistrate passed the order dated 04.06.2021 the writ petition was rendered infructuous for the reason that the prayer made in the writ petition was to issue a direction to the District Magistrate, Hardoi to conduct the inquiry pursuant to the order dated 28.07.2020 passed by the Commissioner, Lucknow Division Lucknow and once the inquiry was concluded and resultant order dated 04.06.2021 was passed, the prayer made in the writ petition stood granted and hence the writ petition at that stage itself ought to have been dismissed as having been rendered infructuous.

(e) It has also been contended on behalf of the appellant-company that the learned Single Judge has considered and commented upon the order dated 02.08.2021 passed by the Board of Revenue during pendency of the writ petition which was never challenged by way of amending the writ petition or otherwise, and hence the learned Single Judge has erred in law in giving a finding in respect of the said order dated 02.08.2021 passed by the Board of Revenue which was passed on the revision petition preferred by the appellant-company challenging the order dated 04.06.2021 passed by the District Magistrate. Learned Senior Advocate has further argued that it was not open to the learned Single Judge to have declared a judicial order passed by the Board of Revenue without calling upon the appellant-company to defend the said order though the order was passed by the Board of Revenue on the revision petition filed by the appellant-company and the order contains certain directions in respect of exchange of land in favour of appellant-company.

(f) In sum and substance, the submission of the learned counsel appearing for the appellant is that the appellant-company was not impleaded as a party respondent in the writ petition though it was a necessary party that the learned Single Judge had no occasion to declare the judicial order passed by the Board of Revenue on 02.08.2021 as illegal in absence of any challenge made to it before him in the writ petition and also on account of the fact that though the said order was passed by the Board of Revenue on the revision petition preferred by the appellant-company and it contains certain directions in its favour, the appellant-company was not impleaded as a party respondent that the order dated 18.03.2021 passed earlier in the writ petition was not taken into consideration and without determining the bona fide of the petitioner-respondent no.6 and without registering suo-motu PIL, learned Single Judge could not have proceeded with the writ petition to pass the final judgment and order and, in fact after passing of the order dated 04.06.2021 the writ petition was rendered infructuous for the reason that the prayer regarding inquiry into the matter was granted which resulted in passing of the order dated 04.06.2021 by the District Magistrate, Hardoi.

(g) The prayer, thus, is that the instant Special Appeal be allowed and the judgment and order under appeal passed by the learned Single Judge be set aside.

6. Submissions on behalf of the respondent no.6-petitioner:

(a) Opposing the prayer made in the instant special appeal, it has been argued by Shri Krishna Kumar Singh and Shri Ansul Singh, learned counsel representing the respondent no.6-petitioner that the judgment and order under appeal does not suffer from any error as the learned Single Judge has exercised his discretionary jurisdiction under Article 226 of the Constitution of India looking to the public interest involved in the matter. It has also been argued that the land which was resumed by the District Magistrate under section 117(6) of U.P.Z.A.& L.R. Act for charitable purposes could not have been permitted to be alienated further, that too, in favour of family members of the Trustees . It has thus, been argued that having regard to the over all public interest involved in the matter learned Single Judge has rightly allowed the writ petition and has issued necessary directions for reclaiming the land in favour of the State and since the judgment and order under appeal herein serves larger public interest, as such the same need not be interfered with in the instant Special Appeal.

7. Submission on behalf of the respondent no.5:

(a) It has been argued by Shri Ratnesh Chandra, learned counsel representing the respondent no.5 that in the facts of the case the judgment and order under appeal passed by the learned Single Judge cannot be permitted to be sustained.

8. Submission on behalf of the State-authorities:

(a) Shri Prashant Singh Atal, learned Chief Standing Counsel representing the State authorities has submitted, on the basis of instructions received from the State Government by means of the letter dated 21.07.2022, that the Authorized Signatory of the appellant-company has made a request to the State Government for exchange of land comprised in khasra plot no.1175 by means of his letter dated 07.03.2022 and that on the said request reports have been summoned by the State Government from the Board of Revenue and District Magistrate, Hardoi by means of the letter dated 31.03.2022. He has stated that this application with the prayer for exchange of land is pending consideration before the State Government.

(b) It has also been stated by the learned Chief Standing Counsel that the order dated 02.08.2021 passed by the Board of Revenue has not been challenged by the State Government. Learned Chief Standing Counsel has argued that in the facts and circumstances of the case the order dated 04.06.2021 passed by the District Magistrate, Hardoi is just and proper.

9. Discussion:

(a) Having heard the competing arguments made by the learned counsel representing the respective parties and having gone through the record available before us,what we, at the outset, find is that since the judgment and order dated 20.06.2022 passed by the Board of Revenue was rendered during the period when the judgment by the learned Single Judge in the writ petition was reserved, learned Single Judge was deprived of the opportunity to consider the impact of the said judgment of the Board of Revenue which was passed in three consolidated revision petitions, one of which (Revision No.1072 of 2022) was preferred by the appellant-company against the orders dated 27.01.2022 and 07.03.2022 passed by the Tehsildar in the proceedings under section 67 of the Code, 2006. Learned Single Judge also did not have the occasion to consider the fact that the Board of Revenue by means of the order dated 20.06.2022 has set aside the order dated 04.06.2021 passed by the District Magistrate and the order dated 27.01.2022 passed by the Tehsildar and has substituted its own directions.

(b) It is also noticeable that admittedly the appellant-company was not impleaded as a party-respondent in the writ petition though in the prayer clause of the writ petition, a relief was sought in respect of removal of unauthorized/illegal construction of Maruti Showroom which is owned and managed by the appellant company. It can be said that the respondent no.5-Sanjeev Agarwal was impleaded as a party-respondent in the writ petition who is one of the directors of the appellant-company, as such non-impleadment of the appellant-company was not fatal so as to vitiate the proceedings of the writ petition. However, on behalf of the appellant-company, it has been contended that company is altogether a separate entity having a corporate personality and as such it can be sued only as a separate legal entity and not by any individual Director by name. It has been argued that the members of a company may derive profits without being burdened with its management and since the company is a legal entity different from its members, it is only the company which can enter into the contracts for conducting business in its own name and not by any Director in his individual capacity.

(c) On the aforesaid two counts, we find it appropriate not to enter into the merits of the judgment and order under appeal herein passed by the learned Single Judge and therefore proceed to consider as to whether in absence of any finding on the impact which the judgment and order dated 20.06.2022 passed by the Board of Revenue would have on the entire matter, the instant Special Appeal can be appropriately decided or not. It is not in dispute that the learned Single Judge did not and could not have any occasion to consider the judgment and order dated 20.06.2022 of the Board of Revenue for the reason which has been discussed above.

(d) The judgment and order dated 20.06.2022 was passed in judicial proceedings instituted under section 210 of the Code, 2006 and is a judicial order. The directions issued by the Board of Revenue in its order dated 20.06.2022 clearly run contrary to the directions issued by the learned Single Judge in the judgment and order under appeal. The judgment and order dated 20.06.2022 of the Board of Revenue has yet not been challenged; rather the same is still intact. It has also not been stayed or rescinded or varied or set aside by any higher Court or forum.

(e) Thus, in our considered opinion, unless and until determination of the impact of the judgment and order dated 20.06.2022 passed by the Board of Revenue on the matter in hand is made, any pronouncement on the issues involved in the case will not be appropriate.

(f) Though the provisions of Code of Civil Procedure in its entirety as such are not applicable to the proceedings of a petition filed under Article 226 of the Constitution of India, however, it is trite that broad principles contained in the Code will have application even to such proceedings. Section 114 read with Order 47 of the Code of Civil Procedure provides a remedy of seeking review. Section 114 confers a substantive right on any person considering himself to be aggrieved to seek review of a judgment of a Court, whereas Order 47 provides the grounds on what review of a judgment can be sought. As per Order 47 Rule 1, review of a judgment can be sought in a situation which emerges on account of discovery of new and important matter and evidence which after exercise of due diligence was not within the knowledge of the party seeking review of the judgment and the same could not be produced at the time when the judgment was passed. Thus, discovery of new and important evidence which could no be produced by a party at the time when the judgment is made is one of the grounds available for seeking review of a judgment in terms of the provisions contained in Order 47 Rule 1 of the Code of Civil Procedure.

(g) So far as the facts of the present case are concerned, admittedly the judgment and order dated 20.06.2022 passed by the Board of Revenue was not available to either of the parties to the Writ Petition at the time of its hearing before the learned Single Judge for the reason that at that time it was not rendered. The judgment by the Board of Revenue was delivered during the period when the judgment by the learned Single Judge was reserved after completion of the hearing of the Writ Petition. Accordingly, we are of the opinion that it was a situation of impossibility for either the appellant or any of the parties to the writ petition to have produced the judgment and order dated 20.06.2022 before the learned Single Judge during the course of the proceedings of the Writ Petition and thus it may be noted that the learned Single Judge did not have the occasion or opportunity to have considered the impact of the judgment and order dated 20.06.2022 passed by the Board of Revenue on the issues involved in the case.

10. Conclusion:

For what has been narrated herein above, our indefeasible conclusion, in the facts and circumstances of the case, is that it will neither be appropriate nor in the interest of justice to pronounce any judgment on the issues discussed and considered by the learned Single Judge in the judgment and order under appeal herein, unless the judgment and order dated 20.06.2022 passed by the Board of Revenue and its impact on the issues involved in the case are considered and decided by the learned Single Judge.

Order

Accordingly, this Special Appeal is disposed of with the liberty to the appellant to approach the learned Single Judge by way of seeking review of the judgment and order under appeal. While filing the review petition, it will be open to the appellant to take all the grounds which may be available to it under law.

There will be no order as to costs.

 
Order Date :-29.07.2022 
 
akhilesh/
 

 
[Rajnish Kumar, J.]    [D. K. Upadhyaya, J.]