Bal Ram (Shri) And Ors. vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 334 Del

JUDGMENT

A.K. Sikri, J.

1. The aforesaid writ petition was filed in the name of three petitioners, namely, S/S. Bal Ram, Dewan Singh and Gian Ram all sons of late Shri Har Chand. It was filed through Smt. Sumita Rai claiming herself to be the General Power of Attorney (GPA) holder and a copy of the said GPA dated 5.2.1990 was enclosed as annexure to the writ petition. During the pendency of this writ petition, Gian Ram, one of the petitioners, filed CM 12454/2003 for dismissal of the petition, inter alia, on the ground that the land in question belonged to him as well as his two brothers and Smt. Sumita Rai was never authorised to file any such petition. Reference was made to certain proceedings pending between the parties in Suit No. 1486/89 which was filed in this Court and has since been transferred to District Court. It was also stated in the application that one of the petitioners, namely, Bal Ram passed away on 27.5.1994 and on his death alleged GPA stood revoked by operation of law.

2. When this application came up for hearing on November 21, 2003, Counsel for the Union of India also made a statement that possession of the land in question had already been taken on 12.4.2000 before filing of the petition. After hearing the parties, writ petition was dismissed by passing the following order :

"It is a case of the Union of India that the possession of the land in question has been already taken on 12.5.2000 and the amount is lying with the Court in Suit No. 1486/89. Today before us, Counsel appearing for Smt. Sumita Rai has stated that she has purchased the rights in the property in question from the erstwhile owner, Shri Bal Ram and others. The parties are agitating before the Civil Court also for the rights of the property and, therefore, it will be for the Civil Court to decide so far as the rights are concerned.

So far as the present petition is concerned, we dismiss the petition as the possession has already been taken and the petitioner is not interested to proceed with the petition.

The petition stands dismissed accordingly."

3. Present application is now filed seeking review of the aforesaid order.

4. It is the case of the review petitioner that Suit No. 1486/89 is filed by one Smt. Santosh Garg in which the three petitioners were arrayed as the defendants. Suit was filed on the averments that these three petitioners had entered into an agreement to sell the land in question to said Smt. Santosh Garg and in the written statement filed by the petitioners, the petitioners had specifically admitted that vide agreement to sell dated 2.1.1989 they had transferred the land in question to Smt. Sumita Rai wife of Shri S.K. Rai for a total sale consideration of Rs. 7,50,000/-. It is also contended by the review petitioner that application was filed only by one of the three petitioners, namely, Gian Ram and other two brothers had not filed any application for dismissal of the writ petition. Thus it is only Gian Ram who denied execution of General Power of Attorney in favor of Smt. Sumita Rai which fact was not denied by the other two brothers and, therefore, writ petition could not be dismissed on the basis of averments made by Gian Ram in the aforesaid application. It is also stated that a false statement was made that possession of the land has been taken. In fact a batch of writ petitions involving same question is pending consideration and review petitioner should also be given a chance to argue the matter along with those writ petitions.

5. It may be mentioned at this stage that when the matter was heard on 27.2.2004, there was a dispute as to whether the review petitioner had paid entire sale consideration. An affidavit is not filed in which it is alleged that although Rs. 1,28,000/- was paid at the time of execution of agreement to sell dated 2.1.1989, thereafter amount was paid in various Installments through different cheques. A sum of Rs. 3,00,000/- was also paid in cash on 5.2.1990 and, therefore, it is on that date General Power of Attorney was executed by three brothers in favor of Sumita Rai.

6. On the basis of aforesaid averments, it was contended by Mr. Ravinder Sethi, learned Senior Counsel appearing for the Sumita Rai that she had become the owner of the property after giving full consideration and possession was also given to her. As far as three brothers are concerned, they had no interest left in the property in question and thus application for dismissal of writ petition was not maintainable and could not be moved by Shri Gian Ram.

7. We are afraid that on the basis of aforesaid averments and allegations Smt. Sumita Rai cannot seek review of the order dated November 21, 2003 as these averments do not constitute any valid ground for seeking review. Review jurisdiction is limited and the review petitioner has to show error apparent on the face of the record. We have already reproduced order dated November 21, 2003 from which it is clear that writ petition was, inter alia, dismissed after noticing the statement of learned Counsel for the Union of India that possession of the land in question had already been taken on 12.5.2000 and even the amount was deposited which was lying with the Court in Suit No. 1486/89.

8. Apart from a bald averment in the review application that this statement is false nothing is shown as to how it is so. Sumita Rai/review petitioner has not been able to show that as on today she was in possession of the land in question or when the petition was filed on 10.8.2000. On the other hand, learned Counsel for Gian Ram contended that as per Khasra Girdhavari for the year 1999-2000 it is the three brothers who were shown in the possession of the land. It is not necessary to go into this question as already noted above, we are sitting in review jurisdiction and we do not find any error apparent on the face of the record which would enable Smt. Sumita Rai to file this application.

9. It may be stated that there are serious disputes about the execution of General Power of Attorney as well as receipt of entire consideration by the three brothers pursuant to the agreement to sell dated 2.1.1989. Mr. Sandeep Sethi, learned Counsel appearing for Gian Ram submitted that even in the pleadings filed by Sumita Rai, in pending litigation, much after 1990 she has not mentioned about the payment of other amounts except Rs. 1,28,000/- received on the date of execution of the agreement to sell. Even these questions cannot be decided in these proceedings more so when all these issues are subject matter of proceedings between the parties before the Civil Court. Mr. Sandeep Sethi even argued that General Power of Attorney does not give any authority to Sumita Rai to file such petition challenging acquisition of land on their behalf.

10. As far as present writ petition was concerned, what is required to be noted is that the petition was not filed by Sumita Rai in her name on the ground that she had purchased the property and had become owner thereof and, therefore, had right to maintain the said writ petition. The petition was filed in the name of three petitioners and she acted only as General Power of Attorney holder. Therefore, on record, it is the three brothers who are/were the petitioners. Out of the three petitioners, one petitioner was dead even on the date of filing of the petition and, therefore, could not be imp leaded as petitioner. Gian Ram filed the application for dismissal of the writ petition on the ground that neither he nor other two brothers authorised her to file the petition. We may mention that although this application was filed only by Gian Ram in reply to this review application, affidavit of Dewan Singh is also filed stating that he had not authorised Sumita Rai to file the petition. Therefore, when the petition is filed in the name of Shri Dewan Singh and Gian Ram (third brother no more alive and these two petitioners come forward and state that they do not want to press the writ petition, the petitioner as General Power of Attorney holder only cannot be allowed to resist this request of the petitioners. Things would have been different if Smt. Sumita Rai had filed the petition in her own name on the foundation that she had allegedly become the owner of the property. As noted above, that is not the case projected in the writ petition.

11. This review petition being devoid of any merit is hereby dismissed.

12. As we are dismissing the review petition on this ground, it is not necessary to go into the question as to whether General Power of Attorney confers any such power on Sumita Rai to file such a petition or whether with the death of one of the executants of General Power of Attorney, when it is a joint General Power of Attorney, such power of attorney stood revoked.