IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.123 of 2011 In Civil Writ Jurisdiction Case No. 12531 of 2010 ====================================================== Ram Narain Choudhary, son of Late Chulhai Choudhary, resident of village Nocha, Police Station Bela, district Sitamarhi and presently residing at Village Lakshmi Nagar, Police Station Bela, District Sitamarhi (respondent no. 3 in the writ petition) .... .... Petitioner/s Versus 1. The State Of Bihar & Ors 2. The Deputy Collector Land Reforms, Sitamarhi Sadar 3. Bharat Prasad, son of Late Satya Narain Prasad, resident of village Lichi Bagan, Bhabdepur, Police Station Sitamarhi, District Sitamarhi .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Dr. Mrityunjaya Kr. Gautam For the Respondent/s : Mr. Ajay Sc11 ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER (Per: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN) 5 17-08-2011 This application has been filed for reviewing the order dated 19.11.2010 passed by this Court in CWJC No. 12531 of 2010. In the writ application, the petitioner has challenged the order dated 27.05.2010 passed by the Land Reforms Deputy Collector, Sitamarhi Sadar in Bataidari Case No. 02 of 2009-10. The facts, in short, are that one Ram Narain Choudhary, claiming to be the member of Sushashan Manch in the district of Sitamarhi had filed an application before the Land Reforms Deputy Collector praying therein that the petitioner may be stopped from selling the lands of the Bataidars. Patna High Court C. REV. No.123 of 2011 (5) dt.17-08-2011 2 The claim of the respondent no. 3 in the writ application (petitioner herein) was that a bataidari proceeding was initiated way back in the year 1974-75 and the respondents had been declared to be the bataidar of the lands in question. Several questions were raised in the writ application, however, this Court did not go into the merits of the case on the ground that the petitioner had not produced the document by which he was declared a bataidar in the year 1977, in fact the description of the lands have also not been mentioned in the writ application. In the present review application, the petitioner has produced a photocopy of the order by which the petitioner was declared to be a bataidar and submits before this Court that the Court should intervene in the matter and consider this document as it would amount to an error of record if the Court was to hold that there is no document to substantiate the claim of the respondent that he was declared as a bataidar. Learned Counsel for the respondents in the present review application submits that the document placed by the petitioner would not make out a ground for review. Relying on the judgment of the Apex Court in the case of State of West Bengal vs. Kamal Sengupta & Anr. [AIR 2009 SC (Supp) 476], Counsel for the respondent submits that the Supreme Court Patna High Court C. REV. No.123 of 2011 (5) dt.17-08-2011 3 has laid down certain broad principles for reviewing a case which are enumerated at paragraph 28 of the said judgment, which reads as follows:- “28. The principles which can be culled out from the above-noted judgments are : (i) The power of the Tribunal to review its order/decision under Section 22 (3) (f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47, Rule 1 of CPC. (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47, Rule 1 and not otherwise. (iii) The expression “any other sufficient reason” appearing in Order 47, Rule 1 has to be interpreted in the light of other specified grounds. (iv) An error which is not self-evidence and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22 (3) (f). (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. (vi) A decision/order cannot be reviewed under Section 22 (3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the Tribunal or of a superior Court. Patna High Court C. REV. No.123 of 2011 (5) dt.17-08-2011 4 (vii) while considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. (viii) Mere discovery of new or importance matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier.” Counsel appearing on behalf of the respondent no. 3 relies on sub-para (viii) of paragraph 28 of the said judgment. It has been argued on his behalf that the petitioner knew very well that there was an order relating to a declaration regarding the status of the land, yet despite time granted by the Court, they could not produce the said order. This Court would ordinarily not entertain the review application for the reason that the petitioner would not come within the principles as culled out at sub-para (viii) of paragraph 28 of the said judgment. However, this Court would have to consider this document in view of the fact, that this fact is not denied by any of the parties including the respondent that there was a bataidari proceeding initiated in Patna High Court C. REV. No.123 of 2011 (5) dt.17-08-2011 5 the year 1974-75 by which the petitioner was declared to be the bataidar. I may state here that this case comes within sub-para (iii) of paragraph 28 of the judgment aforesaid, where the Apex Court has held that “the Court may intervene on any other sufficient reason”. In the special circumstances of this case, I intend to allow the document to be taken into account. The question before this Court is whether the order declaring Ram Narain Choudhary to be a bataidar of Satya Narain Prasad, father of respondent no. 3, would justify the order passed by the Land Reforms Deputy Collector, Sitamarhi Sadar dated 27.05.2010? This Court while passing the earlier order did not take into account the merits of the case or various other aspects as it was not required. In view of the fact that aforesaid document was not produced in this Court. This Court will now consider the case on merits. As stated earlier, an application was filed on behalf of Ram Narain Choudhary, praying therein that respondent no. 3 should not be allowed to sell the lands of the bataidars, on the basis of the fact, that the petitioner was declared as bataidar in the year 1977. If it is also being stated by Ram Narain Choudhary that there is likelihood that there would be law & order problem if the lands are sold by the land holders. On the application filed by the petitioner, notices were issued Patna High Court C. REV. No.123 of 2011 (5) dt.17-08-2011 6 to respondent no. 3 asking him to show cause as to why the proceeding under Section 48E of the Bihar Tenancy Act be not initiated against him. The respondent no. 3 appeared and filed his show cause making an objection that the Land Reforms Deputy Collector had no power under Section 48E of the Act to pass prohibitory orders especially when there was an allegation that there was likelihood of breach of peace. Respondent no. 3 further objects to the fact that the petitioner should file an application as a member of the Sushashan Manch. According to respondent no. 3, the Manch has no locus to file such an application. A complaint could only be filed by the persons who were directly affected. It is submitted that the fact that other bataidars have not come forward to make a complaint would indicate that the entire application is frivolous. The respondent no. 3 objects on the ground that there is no document to support the fact that a proceeding was decided in favour of the petitioner as the original records cannot be traced. It is, therefore, submitted that the document that has been created is a forged and fabricated one. Respondent no. 3 has stated that the lands in question never came into possession of so-called bataidars and the lands have been sold as far back as in the year 1990 to different persons and the purchasers are in possession over the said lands. The list of persons who have purchased the lands has been annexed with the show cause. Patna High Court C. REV. No.123 of 2011 (5) dt.17-08-2011 7 The sales affecting the petitioner are at Sl. Nos. 7, 13 and 17 which have been purchased by Raja Ram Choudhary, Ram Snehi Choudhary and Sanjay Choudhary respectively. On the other hand, Counsel for the petitioner submits that the order issued in the year 1977 is a genuine document and the petitioner has remained in possession over the lands in questions since 1977. The order of the Land Reforms Deputy Collector, Sitamarhi Sadar indicates that the records of Case No. 160 of 1974-75 could not be located in the Office of the Additional Collector, and as such, the Court has relied on the photocopy produced by Ram Narain Choudhary, while coming to the conclusion, that Ram Narain Choudhary has been declared as a bataidar of Satya Narain Prasad. Another aspect of the matter is that while hearing the matter, the Land Reforms Deputy Collector has not followed any procedure. Even if it is presumed that the petitioner was held to be under-raiyat of the lands in question, it cannot be assumed that he has been in possession over the lands in questions since 1977. Obviously, no procedure was followed to determine this aspect. This Court is also of the view that the Court could not have passed the order declaring that the petitioner was a bataidar without following the procedure under the law and without examining whether the petitioner had remained in possession as a bataidar from the year 1977 to 2010. There is Patna High Court C. REV. No.123 of 2011 (5) dt.17-08-2011 8 a further defect in the order impugned in the writ application, inasmuch, as once it has come on record that the lands have been sold to different persons, notices ought to have been issued to those persons in order to come to a correct finding regarding the factual aspects of the case. In fact, this order is a non-implementable order as it does not take into account the actual owners of the lands. All in all, this Court cannot on the grounds mentioned aforesaid conclude that the order passed by the Land Reforms Deputy Collector, Sitamarhi Sadar is legally not sustainable. Accordingly, the writ application is allowed and the order dated 27.05.2010 passed by the Land Reforms Deputy Collector, Sitamarhi Sadar in Bataidari Case No. 02 of 2009- 10 is quashed. The review application is disposed of. Prabhakar Anand / AFR (Sheema Ali Khan, J)