1 23 S.B. CIVIL WRIT PETITION NO.2832/1997. Kalu & Ors. Vs. Additional Divisional Commissioner, Bikaner & Ors. Date of Order :: 24th March 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.L. Jain, for the petitioners. Mr. Manoj Bhandari ] Mr. Sushil Bishnoi ] Mr. Anil Vyas for Mr. S.D. Vyas ], for the respondents. .... BY THE COURT: By way of this petition for writ, as filed on 29.05.1997, the petitioners seek to question the order dated 26.02.1997 as passed by the Additional Divisional Commissioner, Bikaner whereby the revision petition (No.15/1992) preferred by them under Section 300 of the Rajasthan Municipalities Act, 1959 ('the Act') against the order dated 09.04.1987 as passed by the Collector, Churu came to be rejected particularly on the basis of the order passed by the Division Bench of this Court on 12.07.1994 in D.B.Civil Writ Petition No.2256/1983. The dispute between the parties relates to a piece of land situated adjacent to their residential houses at Ward No. 15 within the jurisdiction of the Municipal Council, Churu; and the case has a long drawn history of over three decades with 2 several rounds of proceedings before the different authorities and in different Courts and involves multiple facts and events. The accumulation of the facts and events could, however, be disentangled with a look at the relevant of them in their chronology. On 21.07.1975, the respondent No.4 Mohd. Hanif moved an application seeking permission to raise construction at his residential plot at Ward No. 15, Churu before the Municipal Council; and upon the Municipal Council's failure to deal with the application, proceeded to serve a 60 day's notice. On 04.10.1975, the Municipal Council, Churu informed the applicant-respondent No.4 that in view of the objection of his southern side neighbourer and in relation to the Government land, it was not considered appropriate to grant permission for opening the windows and placing the chhajjas. On 10.10.1975, the respondent Mohd. Hanif preferred an appeal before the Collector, Churu for being aggrieved of the said order dated 04.10.1975. On 23.03.1976, the Collector, Churu proceeded to dismiss the appeal so preferred by the present respondent No.4 Mohd. Hanif after noticing that on 19.02.1976, the open land on the way had been sold by the Municipal Council to the 3 objectors Kalu (represented by his legal representatives-the petitioners Nos. 1/1 to 1/8 herein) and others (represented by the petitioners Nos. 2, 3 and 4 herein). The learned Collector found that permission could not be accorded to the applicant to open the doors or windows or to place the chhajas towards the land purchased by Kalu and others. The order so passed by the Collector, Churu was challenged in revision petition under Section 300 of the Act before the Board of Revenue for Rajasthan at Ajmer (‘the Board of Revenue’) being Revision Petition No. 72/77/MC/Churu. On 05.04.1983, the Board of Revenue proceeded to consider the said revision petition and observed, inter alia, that on the date of passing of the impugned order (i.e., 04.10.1975) the land in question had not been sold and the subsequent order of sale of certain portion of land could not be considered while determining the correctness of the order dated 04.10.1975. The Board of Revenue, however, proceeded to remand the matter to the Collector, Churu with the following directions:- “(a) It should be examined whether the prescribed procedure was followed in making the sale to the present non- applicants No. 2, 3 and 4 on 19.2.76; (b) if the sale is found to have been effected in contravention of law and procedure, action should be initiated to cancel the same; and 4 (c) the request of the applicant for the proposed construction should be reconsidered if the situation contemplated in (b) above is found to exist.” On 14.07.1983, the aforesaid purchasers Kalu and Ghani while joining Mst. Sakina, widow of the third purchaser Ibrahim, preferred a writ petition in challenge to the aforesaid order dated 05.04.1983. This writ petition (CWP No.2256/1983) was admitted for consideration on 28.10.1985 and operation of the impugned order dated 05.04.1983 was stayed. The stay order was later on confirmed and the writ petition remained pending for hearing. On 09.04.1987, though the said writ petition was pending in this Court, the Collector, Churu proceeded to examine the matter pursuant to the aforementioned directions of the Board of Revenue as made on 05.04.1983. The learned Collector found that the Municipal Council proceeded to sell the land in question contrary to the public interest and even against the propriety while avoiding the opinion of the Deputy Town Planner against such sale of the part of public way; and despite the report of the Commissioner that the dispute was pending before the Collector and despite the comments that the amount could be deposited ''subject to 5 refund on adverse decision”. The learned Collector also found that no any notice inviting objection was issued for sale of such piece of land and the sale was made without having regard to the public convenience and the need of way for the appellant Mohd. Hanif and others. The learned Collector found such sale to be contrary to the public interest and void ab initio; and proceeded to cancel the same. The learned Collector further found that there was no justification in denying permission for opening of windows and placing of chhajjas towards the Government land; and observed that both the proceedings, of not granting construction permission to the appellant within time, and of attempting to sell the land to other persons were contrary to law and rather created doubts. The learned Collector, therefore, proceeded to set aside the order dated 04.10.1975 and directed the Commissioner, Municipal Council, Churu to issue necessary construction permission to the applicant Mohd. Hanif. It may be pointed out at this juncture that in view of the questions involved in the matter and after noticing that the aforesaid order dated 09.04.1987 was passed by the Collector during the pendency of the writ petition (CWP No.2256/1983) and had been taken note of by the Hon'ble Division Bench in its final order, it was considered appropriate to examine the 6 record of the said writ petition and hence, the case file has been called from the record. Hereinabove, the contents of the order passed by the Board of Revenue on 05.04.1983 have been referred from its certified copy as available in the record of CWP No 2256/1983. However, the reply as filed on behalf of the respondents in the said writ petition is not available on the record. Be that as it may, as per the observations made in the order passed by the Hon'ble Division Bench (that shall be referred hereinafter later), it is beyond doubt that the aforesaid order dated 09.04.1987 as passed by the Collector was very much before the Court as Annexure-R/4/1 at the time of disposal of the said writ petition. In or about the year 1992, the date being not available, the present petitioners proceeded to prefer a revision petition under Section 300 of the Act against the aforesaid order dated 09.04.1987, allegedly after coming to know about the same. The said revision petition, bearing No. 15/1992, however, remained pending until the matter in the said writ petition was decided by this Court. On 12.07.1994, the Hon'ble Division Bench of this Court considered and decided the aforesaid writ petition (CWP No. 2256/1983) preferred by the present petitioners Kalu and others. After taking note of the history of the case and 7 operative portion of the order of the Board of Revenue and so also of the aforesaid order passed by the Collector, Churu on 09.04.1987, the Hon'ble Division Bench examined the two contentions urged before it by the petitioners: one, that the petitioners having become owners of the land in dispute, nothing survived to make a remand order; and second, that the Board was wrong in making observation that the subsequent order of sale could not be considered while determining the correctness of the order dated 04.10.1975 passed by the Municipal Council rejecting the prayer for construction permission. The Hon'ble Division Bench did not agree with the principal contention and found no scope for interference in the remand order that was considered to be just, proper, and in the interest of justice. The Division Bench observed that the petitioners were claiming to be the owners of the public street by sale; and settled rule it was that the land for common use could not be sold by public authorities as every bypasser has a right of way free from obstructions. The Hon'ble Division Bench thereafter observed that whether it was such a property or not had to be gone into particularly in view of the order of the Collector (the order dated 09.04.1987) who had found it to be the street for public use while cancelling the sale. The Division Bench further observed that the effect of 8 the said order of the Collector and whether the petitioners have challenged the same or not was not required to be gone into; and it was left open to be raised by the parties at the appropriate stage. It was also observed that the other part of the remand order was also justified wherein it was ordered that if the sale to the petitioners was found to be bad, the property would revert back to the Government and the question of granting permission would be redecided. The Hon'ble Division Bench, however, did not agree with the observations as made by the Board of Revenue that the subsequent order could not be considered while determining the correctness of the order dated 04.10.1975; and observed that in case the sale was found to be correct, the jurisdiction of the authorities to grant permission would cease to exist from the date the purchase was made by the petitioners and thereby, it would be the petitioners who could be given permission for raising balcony. Thus, even while putting at naught such observations of the Board of Revenue, the Hon'ble Division Bench, nevertheless, dismissed the writ petition as being meritless. On 04.01.1995, the petitioner No.1 Kalu expired. At the given point of time, the said Revision Petition No. 15/1992 was pending before the Additional Divisional Commissioner, Bikaner and therein, his legal representatives (petitioners 9 Nos. 1/1 to 1/8 herein) were substituted in his place. On 26.02.1997, the aforesaid Revision Petition No. 15/1992 was taken up by the Additional Divisional Commissioner, Bikaner for consideration. A submission was made before the said Revisional Authority on behalf of the non-petitioner No.1 Mohd. Hanif that with dismissal of the writ petition by the High Court on 12.07.1994, the petitioners were not to get any relief in the revision petition and the same was required to be dismissed. The learned Revisional Authority found the counsel appearing for the petitioners agreeing on such submissions and proceeded to dismiss the revision petition while observing that the petitioners were not to get any relief in view of dismissal of their writ petition by the High Court. The matter was, however, ordered to be sent to the Municipal Council, Churu for taking appropriate proceedings in accordance with the decision of the High Court. On 29.05.1997, in challenge to the aforesaid order dated 26.02.1997 as passed by the Revisional Authority, the petitioners filed this writ petition; and herein, show cause notice was ordered to be issued on 28.07.1997. On 11.08.1998, however, this writ petition was considered by the Hon'ble Single Judge of this Court, who found the challenge as attempted by the petitioners to the 10 order of the Collector dated 09.04.1987 suffering from delay and laches and on this count alone, proceeded to dismiss this writ petition. On 06.08.2008, the Division Bench of this Court considered the matter in intra-court appeal (SAW No. 947/1998) preferred in challenge to the aforesaid order dated 11.08.1998. The Hon'ble Division Bench found that essentially the order dated 26.02.1997 as passed by the Revisional Authority is under challenge in the writ petition; and the writ petition having been filed within three months of the said order, could not have been dismissed on the ground of delay. For this reason, the Hon'ble Division Bench set the order dated 11.08.1998 aside and remanded the matter to the Single Judge to decide the writ petition on merit in accordance with law. Accordingly, this writ petition has been restored to its number. On 17.10.2008, while considering this revived writ petition, the application (IA No. 12003/2008) was allowed permitting substitution of the legal representatives of the petitioners Nos. 2, 3 and 4, who had expired during the pendency of the aforesaid SAW No. 947/1998 and whose legal representatives were indeed substituted before the Hon'ble Division Bench. 11 The learned counsel for the parties have now been heard on merits; and at length. Learned counsel Mr. S.L. Jain appearing for the petitioners has put a serious challenge to the orders as passed by the Collector, Churu (dated 09.04.1987) and by the Additional Divisional Commissioner, Bikaner (dated 26.02.1997). With reference to the facts of the case, learned counsel submitted that the order as passed by the Collector on 09.04.1987 remains entirely illegal, unauthorized, and rather contrary to the order as made by the Board of Revenue. Learned counsel submitted that the Collector concerned proceeded to pass the said order in a strange manner without any notice to the petitioners and without extending them any opportunity of hearing. Moreover, according to the learned counsel, there was no material available with the Collector to find any illegality in the sale made in favour of the petitioners and the impugned order had been passed more on assumption than on evidence. Learned counsel further contended that in fact the Collector had no jurisdiction to cancel the sale as made in favour of the petitioners because once the sale had become final, only the appropriate proceedings could have been adopted to annul the same and by way of an executive order, 12 the Collector, who was essentially to deal with the matter relating to construction permission as claimed by the respondent No.4, could not have ordered cancellation of the sale made in favour of the petitioners. Learned counsel submitted that even if the Collector could have examined the question of sale and arrived at any particular finding, the only course available with him was to recommend the action to be taken and in any case, the Collector could not have cancelled the sale himself. In support of his contention that the Collector had no jurisdiction to cancel the sale, the learned counsel has referred to a Division Bench decision of this Court in the case of Harpal Singh Vs. State of Rajasthan & Ors. : SAW No. 485/1996, decided on 25.01.2007. Learned counsel for the petitioners yet further submitted that the order directing grant of construction permission to the respondent No.4 only as a consequence of setting aside of sale of the petitioners equally remains bad in law; and that the matter regarding grant of construction permission was even otherwise required to be examined independently and merely for setting aside the sale of the petitioners, construction permission could not have ipso facto been granted to the respondent No.4. Putting an equally serious challenge to the order passed 13 by the Additional Divisional Commissioner on 26.02.1997, the learned counsel for the petitioners submitted that several contentions were urged in the revision petition before the Revisional Authority but none of them has received due consideration. Learned counsel submitted that the revision petition could not have been dismissed only because of the order passed by the Division Bench of this Court; and rather, in view of the very order as passed by the Division Bench, the revision petition was required to be heard on merits. Learned counsel also referred to the observations as made in the impugned order dated 26.02.1997 about the so-called concession made by the counsel representing the petitioners and referred to the averments as taken in paragraph 10(d) of the present writ petition that the said counsel had specifically denied having agreed for dismissal of the revision petition. Countering the submissions aforesaid, learned counsel Mr. Manoj Bhandari appearing for the contesting respondent strenuously argued that the petitioners having agreed, of being not entitled to any relief, before the Revisional Authority, cannot maintain this writ petition in challenge to the order so passed by the Revisional Authority; and submitted with reference to the decision of the Hon'ble Supreme Court in the case of Jagvir Singh & Ors. Vs. State (Delhi Admn.): (2007) 5 14 SCC 359 that the record of the proceedings remains final and is not open to be contradicted. Learned counsel submitted that any suggestion contrary to the observations made in the impugned order cannot be countenanced; and could least be permitted to be raised before the writ court when no such submission was ever made before the authority concerned. Learned counsel further referred to the decision of this Court in the case of Chhail Singh Vs. Municipal Corporation, Jodhpur: 2003 (3) RLW 1726 to submit that the land for common use of the public cannot be sold by the public authorities and submitted that cancellation of sale by the Collector in the present cases deserves to be upheld. Having given a thoughtful consideration to the rival submissions and having examined the material placed on record, this Court is clearly of opinion that no case for interference in the writ jurisdiction is made out; and the petitioners are not entitled to any relief. Put in a nutshell, the chronology of facts and events makes it clear that after the requisite construction permission was denied to him, the respondent Mohd. Hanif preferred an appeal that was pending before the Collector; and it was during the pendency of the said appeal that the questioned 15 sale was made in favour of the petitioners or their predecessors; and the permission was denied to the respondent and the said appeal was dismissed only because of the land having been sold and being no longer an open Government land. The Board of Revenue, however, remanded the matter to the Collector concerned to examine and determine the points as noticed above including the question of validity of the sale made in favour of the petitioners. The order of the Board of Revenue was in challenge and the matter was sub judice before this Court in CWP No.2256/1983 but the Collector proceeded to carry out the exercise contemplated by the order passed by the Board of Revenue and found the land in question to be a part of public street and having wrongly been sold by the Municipal Council. The Collector, thus, proceeded to set aside the sale as made in favour of the petitioners or their predecessors and found no valid reason to deny the construction permission as applied for by the respondent. The order so passed by the Collector on 09.04.1987 was very much before the Division Bench of this Court when the said writ petition was decided on 12.07.1994. The Division Bench, however, did not disapprove the order passed by the Collector but left the matter open to challenge in appropriate proceedings; and at the time of such decision of 16 the writ petition, the revision petition as preferred by the petitioners before the Additional Divisional Commissioner was pending. Taking a comprehensive view of the matter, it is but apparent that the petitioners had every opportunity available with them, particularly in view of the observations as made by the Division Bench of this Court, to put forward appropriate challenge to the order dated 09.04.1987 as passed by the Collector, Churu; and in fact, the revision petition filed by them against the said order dated 09.04.1987 was very much pending at the time of passing of the order dated 12.07.1994 by the Division Bench of this Court. However, when it came to be suggested before the Revisional Authority that the petitioners were not likely to get any relief in the revision petition because of the order passed by the Division Bench, the counsel appearing for the petitioners did state his agreement on such a contention urged on behalf of the non- petitioner. Interestingly, the impugned order dated 26.02.1997 as passed by the Revisional Authority does not record any other contention having been urged and put forward on behalf of the petitioners. Mere filing of or attending on the revision petition was obviously not sufficient; and unless something was argued before the Revisional Authority on behalf of the 17 petitioner, there was nothing for the said Authority to decide in the revision petition. Not only that no specific contention was put forward on behalf of the petitioners, the significant part of the matter is that a specific consent was stated on the contention urged on behalf of the non-petitioner about futility of the revision petition. In this state of affairs, the learned Revisional Authority cannot be faulted in having dismissed the revision petition. It is suggested in the writ petition that the petitioners had inquired about the proceedings from the counsel who had appeared on their behalf before the Additional Divisional Commissioner; and the said counsel, according to the petitioners, denied having made any such concession. It is contended on the basis of such averments that the observations as made by the Additional Divisional Commissioner should be ignored and the impugned order should be set aside for being a non-speaking one not dealing with the contentions of the petitioners as made in the revision petition that were required to be considered in view of the order passed by the Division Bench of this Court. The contention remains absolutely ill-founded. It is trite that the statement as made in the order passed by a judicial authority particularly about what transpired before 18 it remains conclusive; and neither the lawyer nor the litigant could be permitted to contradict it before the other Court. In the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr. : AIR 1982 SC 1249, the Hon'ble Supreme Court said,- “7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. The Hon’ble Supreme Court stated the principles in no uncertain terms that,- ''4. ................. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession 19 as recorded in the judgment.” It is an admitted position that no such attempt was ever made before the learned Revisional Authority to suggest if the admission as recorded in its order was not correct or that something else was stated. Hence, the statement as recorded in the impugned order has to be treated correct and final; and binding on the petitioners.