* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI RAMESH RANGANATHAN + WRIT APPEAL Nos.306 and 483 OF 2010 %Dated: 27.08.2010 Between: Shaik Rahamathunnisa Begum …Appellant and The Joint Collector, Kadapa, Kadapa District, And another. …Respondents ! Counsel for the Petitioners: B.Adinarayana Rao ^Counsel for the Respondents: GP for Home <Gist: >Head Note: ?Citations: 1. AIR 1964 SC 377 2. (1982) 2 SCC 463 : AIR 1982 SC 1249 3. (1994) 6 SCC 109 : AIR 1995 SC 350 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI RAMESH RANGANATHAN WRIT APPEAL Nos.306 and 483 OF 2010 27.08.2010 Between: Shaik Rahamathunnisa Begum …. Appellant AND The Joint Collector, Kadapa, Kadapa District And another. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI RAMESH RANGANATHAN WRIT APPEAL Nos.306 and 483 OF 2010 COMMON ORDER: (per Hon’ble Sri Justice V.V.S.Rao) Two Letters Patent Appeals arise out of the same writ petition filed by the appellant, a resident of Kadapa town. It is, therefore, expedient to consider them together. The appellant filed W.P.No.32576 of 1998 seeking a mandamus to respondents, namely, Joint Collector and Mandal Revenue Officer, to pay compensation under the Land Acquisition Act, 1894 for the land admeasuring Acs.5.00 in S.No.601/7 of Chemmumiapet of Kadapa town, which had been allegedly assigned to her on 29.08.1977. By order dated 21.03.2005, learned Judge disposed of the writ petition directing the respondents to assign alternative land in S.No.919/1 admeasuring Acs.5.00 in Chinnachowk village near Nanapally village, Kadapa Mandal, pay compensation of Rs.70,000/- (Rupees seventy thousand only) to appellant towards developmental charges and the appellant be permitted to collect the tree trunks on the land. The second respondent was permitted to take possession of the land in S.No.601/7. The appellant filed review W.P.M.P.No.11345 of 1998 seeking review of the order referred to hereinabove. She also filed W.P.No.14369 of 2005 for a mandamus to injunct respondents, namely, District Collector, Joint Collector and Mandal Revenue Officer from alienating Acs.3.50 out of the subject land in favour of M/s.Shriram Social Welfare Trust, Chennai (Shriram Trust, for brevity). Learned single Judge dismissed both of them on 02.11.2009 but allowed the appellant to retain an extent of Acs.0.10 cents in survey No.601/7 where the appellant raised construction. After the dismissal of the review petition, the appellant filed W.A.No.306 of 2010 on 04.02.2010. She also filed W.A.No.483 of 2010 against the main writ petition. We have heard both the matters together. The main grievance before us is that the writ petition was disposed of accepting the proposal made by Government Pleader and that the same does not amount to the appellant’s consent for the order. The appellant’s Counsel contends that mandamus issued to allot alternative land or to grant compensation was flouted and land which is classified as ‘hill’ in the revenue records not fit for cultivation is sought to be assigned. He would urge that the order of the learned single Judge in the writ petition is vitiated by misrepresentation and, therefore, ought to have been reviewed. Lastly, he contends that the land was assigned to appellant in 1977 which was brought to cultivation by digging borewells, constructing houses, raising mango garden and therefore the same could not have been resumed by the Government without paying compensation. Assistant Government Pleader for Revenue submits that the learned Judge disposed of the writ petition based on the consent of the Government Pleader as well as the appellant’s counsel and, therefore, the same cannot be agitated in writ appeal. She would further urge that while filing review, the appellant denied having given consent and the learned single Judge was not inclined to review the order on this ground, and hence the question of misrepresentation would not arise. According to her, the appellant was already allotted alternative land and was put in possession. The petitioner filed W.P.No.32576 of 1998 seeking compensation for the assigned land or allotment of alternative land. At that stage, she claimed mandamus based on the earlier Division Bench Order, dated 28.01.1997 in W.P.M.P.No.14925 and 14958 of 1988. For ready reference, we may extract the short order of the Division Bench. These two writ petitions are directed against the orders of the Commissioner of Land Revenue dated 27-8-88 resuming the land held by the petitioners for the public purpose, namely, to construct office buildings in the lands. It is also stated in the impugned orders that the petitioners were not entitled to the given pattas as the wives of the Government Services. The learned counsel for the petitioners has placed before us the earlier order of the Joint Collector dated 13-7-1982 in which it was stated that the assignment was fairly made and there was no bar to grant pattas to the wives of the Government servants particularly when they were about to retire. However, in the inspection report of the Revenue divisional Officer, it was stated that the petitioners had cultivated the land and also put up certain walls and sheds. It was submitted that under the circumstances when the order had become final and issuing any impugned orders stating that the land is required for the public purpose, the Government is entitled to resume the same is contrary to Law. … In these circumstances, we are of the view that it would be sufficient if a direction is given to the respondents either to grant compensation to the petitioners or allot suitable alternate sites in case the land is required for the public purpose. If it is not so need, the respondents may consider allowing the petitioners to continue in possession. The Government did not seriously contest her claim. When the matter was heard by the learned single Judge, it was submitted that the Government is willing to allot Acs.5.00 of land at Chinnachowk village near Nanapally village. At that stage, it was open to the petitioner to refuse the proposal and insist upon compensation. She accepted the proposal based on which the learned Judge directed to allot Chinnachowk land in lieu of Chemmumiapet land in addition to payment of Rs.70,000/- as compensation towards developmental charges. The order has become final and we may quote the same. However, during the course of hearing, the learned Government Pleader for Revenue, on instructions had come up with a proposal stating that respondents are willing to give an extent of Acs.5.00 cents of land, in S.No.919/1 of Nanapally village, situated at a distance of nine kilometers from Cuddapah Mandal and Town to the petitioner, in lieu of Ac.5.00 cents of land in Sy.No.601/7 situated in Chemmumiapet, Cuddapah Town and Mandal, which was ordered to be resumed to the Government. On the other hand, the learned counsel for the petitioner, while accepting the said proposal made by learned Government Pleader, stated that the petitioner spent huge amount for developing mango garden in the extent of Ac.5.00 cents, which was ordered to be resumed to the Government; so the respondents may be directed to award at least Rs.70,000/- for the developments made by the petitioner over the land. Though, initially, learned Government Pleader for Revenue resisted the claim of the petitioner for grant of Rs.70,000/- towards development charges, however, taking into consideration of the circumstances of the case and the development made by the petitioner over the land over all these years, she agreed for payment of the said sum to the petitioner towards development charges. After hearing both sides, and taking into consideration the factual circumstances, and the agreed stand taken by the learned counsel for the petitioner and the learned Government Pleader for Revenue, the writ petition is disposed of in terms of the proposal mooted by the learned Government for Revenue and accepted by the learned counsel for the petitioner and vice versa on the quantum of grant of development charges. (emphasis supplied) Viewed from any perspective, the order excerpted hereinabove is certainly a consent order. There is no dispute that after this Court passed above order on 21.03.2005, the Tahsildar, Kadapa, assigned land in survey No.919/1 of Chinachowk village admeasuring Acs.5.00 to the petitioner. In review W.P.M.P.No.11345 of 1998, the Tahsildar filed counter affidavit stating that though survey No.919/1 of Chinnachowk village is classified as ‘hill’ poramboke, the same is cultivable land. The averment was not controverted by filing a reply affidavit. Therefore, the petitioner cannot now turn around and take a plea that the land at Chinnachowk village is uncultivable or that it is hill poramboke. While considering review petition, learned single Judge has also noticed that Chemmumiapet land was alienated to Shriram Trust for establishment of school, ashram, juvenile home, vocational training institute and micro credit financing facility. It was also noticed that when the consent order was passed, the question of review does not arise. The learned Judge observed as under. Further, the order, which is now sought to be reviewed, is a consent order passed by this Court, after hearing the learned counsel on either side and taking into consideration the factual aspects. The petitioner herself has consented for passing such an order, and now, she contends that the respondents have mislead her and therefore, the order passed by this Court may be reviewed. I am unable to agree with the said contention of the petitioner. Here, be it not the power of review has to be exercised only when an error apparent on the face of the record is brought to the notice of the Court. It is not the case on hand. This Court, having heard the learned counsel on the either side and taking into consideration the agreed stand of the learned counsel for the petitioner and the learned Government Pleader, passed the order and the petitioner having not brought to the notice of the Court any error apparent on the face of the record. I see no grounds to entertain the Review W.P.M.P., and is liable to be dismissed. It is fairly well settled that the statements recorded in the Judgment are conclusive. If a person seeks to assail such statements, the remedy is by way of a review. Even if in the review, person does not meet success, the matter must rest there. Appellate jurisdiction is not attracted in relation to orders passed on consent of the parties to the proceedings. In Bank of Bihar v Mahabir Lal[1], the law was stated as under (para 33 of AIR). In our opinion where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless of course both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. If the High Court had proceeded on an erroneous impression that Mr De had conceded that the money was taken along with him by Ram Bharosa Singh to Patna, there was nothing easier for the Bank than to prefer an application for review before the High Court after the judgment was pronounced or if the judgment was read out in court immediately draw the attention of the Court to the error in the statement. In State of Maharashtra v Ramdas Shrinivas Nayak[2], while reiterating that, “Judges record is conclusive of the facts, neither lawyer nor litigant may claim to contradict it except before the Judge himself but nowhere else”, the apex Court held (para 4 of SCC). We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. “Judgments cannot be treated as mere counters in the game of litigation[3].” We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. 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[4]. 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 as recorded in the judgment. Yet again in State of Maharashtra v Admane Anita Moti[5], Supreme Court held (Para 3 of SCC). It is well established that the factual recitals or observations made in a judgment or order are taken to be correct unless rebutted. The burden to rebut it is on the person who challenges it. One of the methods to rebut such observation is to file the affidavit of the person who was present in the Court and to produce such material which may satisfy the Court that the recital in the judgment crept in inadvertently or it was erroneous. The fact that the order in W.P., was passed on consent, is also taken note of by learned single Judge. Therefore, it is too late to contend otherwise. Insofar as the allegation that the land allotted now, in lieu of Chemmumiapet land, is unfit for cultivation is concerned, it is a question of fact and it cannot be agitated. Further, in the counter affidavit filed in review petition, the Tahsildar made a statement that the land is cultivable land though it is classified as ‘hill poramboke’. This stands unrebutted and therefore, deemed to be proved. The writ appeals, for the above reasons, are devoid of any merit and are accordingly dismissed. __________________ (V.V.S.RAO, J) ____________________________ (RAMESH RANGANATHAN) 27.08.2010. Pln Note: LR copy be marked. (By order) pln [1] AIR 1964 SC 377 [2] (1982) 2 SCC 463 : AIR 1982 SC 1249 [3] Per Lord Atkinson in Somasundaram Chetty v Subramaniam Chetty, AIR 1926 PC 136 : 99 IC 742 [4] Per Lord Buckmaster in Madhu Sudan Chowdhri v Chandrabati Chowdhrian, AIR 1917 SC 30 : 42 IC 527 [5] (1994) 6 SCC 109 : AIR 1995 SC 350