WRIT PETITION 21 of 2013 on 20 December 2013

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR

ORDERINS.B. Civil Review Petition No.21/2013(With Stay Application No.680/2013)In S.B. Civil Writ Petition No.695/2004

Taruchaya Nagar Ramaram Vikas SamitiJaipur through its Secretary Dr. KavitaSharma and Another Vs. The State ofRajasthan through the Secretary to theGovernment, Urban Development andHousing Department, Govt. Secretariat,Jaipur and Others Date of Order ::: 20.12.2013

PresentHon'ble Mr. Justice Mohammad Rafiq Shri Bajrang Lal Sharma, Senior Counsel withShri Babu Lal Sharma, counsel for petitioners ####

By the Court:-

This review petition has been preferred bypetitioners seeking review of order/judgment dated10.12.2012 by which their Writ Petition No.695/2004 wasdismissed.

Writ petition was filed by petitioners TaruchayaNagar Ramaram Vikas Samiti Jaipur through its Secretary Dr.Kavita Sharma, who too joined as petitioner no.2, with theprayer that a mandamus be issued to respondents to grant abenefit of Circular dated 18.02.1994 and to regularize theirpossession of the members of the petitioner no.1 Samiti, interms of Circular dated 10.07.1999 issued by respondentState. They were allotted such plots by Subhash SindhiCooperative Housing Society Limited in a housing scheme of300 plots.

Shri Bajrang Lal Sharma, learned Senior Counselappearing for petitioners, has cited a judgment of the–Supreme Court inA.R. Antulay Vs. R.S. Nayak and Another (1988) 2 SCC 602, and argued that the Supreme Court therein has held that “per incuriam” decisions are those decisions,which are given in ignorance or forgetfulness of somestatutory provision or of some binding authority. This courtwhile deciding the writ petition, has considered only thequestion of authority binding on the court concerned, buthas neither noticed nor decided the question of statutoryprovision. In this connection, learned Senior Counsel drewattention of the court towards Section 54 of the JaipurDevelopment Authority Act, 1982, which specifically dealswith question of disposal of land by the Jaipur DevelopmentAuthority by way of allotment, regularization or auction,subject to such conditions as the State Government may fromtime to time prescribe. What has been prescribed in sub-section (1) of Section 54 has been reiterated in sub-section(4) thereof.

It was argued that Division Bench judgment of thiscourt dated 11.08.2011 inSpecial Appeal (Writ) No.342/2007– Ratan Kumar Sharma Vs. State of Rajasthan and Others, onwhich reliance was placed by the respondents, was a judgmentper incuriam as it was decided in ignorance of mandatoryprovision of Section 54 of the JDA Act. When the legislatureby Statute has included 'regularization' as one of the modesof disposal of the land, the Division Bench could notdescribe the same as misadventure. The Division Bench inthatcase,whilerejectingprayerofwrit-petitioners/appellants that it may be left open to thegovernment to regularize certain plots in favour of theappellants, observed that the government cannot enter intosuch misadventure. This observation has been given by theDivision Bench without any reasoning and without applicationof mind.

It was argued that courts cannot go contrary to themandate of law. If the legislature by Section 54 of the JDAAct, empowered the Jaipur Development Authority to disposeof the lands by way of allotment, regularization or auction, that would mean that one of the accepted modes of disposalis regularization. The Division Bench was not justified inholding that if the State were to regularize the land, itwould amount to misadventure on its part.

Shri Bajrang Lal Sharma, learned Senior Counsel,argued that even if Special Leave to Petition has beendismissed against afore-mentioned Division Bench judgment,that would not amount to approval of the law laid downtherein by the Division Bench, inasmuch as, the 'doctrine ofmerger' would not be attracted in such a situation. Freshwrit petition filed by petitioners could still be consideredon merits. Neither the Division Bench in aforesaid case northis Court, while dismissing the writ petition ofpetitioners, in the present case, has considered the effectof Section 54 of the JDA Act.

Learned Senior Counsel cited judgment of theSupreme Court in V. Kishan Rao Vs. Nikhil Super Specialty–Hospital and Another (2010) 5 SCC 513. and argued thatthe Supreme Court in its Para 54 and 55 held as under:- “54. When a judgment is rendered by ignoring theprovisions of the governing statute and earlierlarger Bench decision on the point such decisionsare rendered per incuriam. This concept of perincuriam has been explained in many decisions ofthis Court. Sabyasachi Mukharji, J. (as hisLordship then was) speaking for the majority inA.R. Antulay Vs. R.S. Nayak (1998) 2 SCC 602,explained the concept in the following words:-“42. ... 'Per incuriam' are those decisionsgiven in ignorance or forgetfulness of someinconsistent statutory provision or of someauthority binding on the court concerned, sothat in such cases some part of the decisionor some step in the reasoning on which it isbased, is found, on that account to bedemonstrably wrong.”provisions of the governing statute and earlierlarger Bench decision on the point such decisionsare rendered per incuriam. This concept of perincuriam has been explained in many decisions ofthis Court. Sabyasachi Mukharji, J. (as hisLordship then was) speaking for the majority inA.R. Antulay Vs. R.S. Nayak (1998) 2 SCC 602,explained the concept in the following words:-“42. ... 'Per incuriam' are those decisionsgiven in ignorance or forgetfulness of someinconsistent statutory provision or of someauthority binding on the court concerned, sothat in such cases some part of the decisionor some step in the reasoning on which it isbased, is found, on that account to bedemonstrably wrong.”

Subsequently also in the Constitution Benchjudgment of this Court in Punjab Land Developmentand Reclamation Corporation Ltd. vs. Labour Court,(1990) 3 SCC 682, similar views were expressed inPara 40 at P.705 of the report.judgment of this Court in Punjab Land Developmentand Reclamation Corporation Ltd. vs. Labour Court,(1990) 3 SCC 682, similar views were expressed inPara 40 at P.705 of the report.

55. The two-Judge Bench in D'Souza has taken noteof the decisions in Indian Medical Association andMathew, but even after taking note of those twodecisions, D'Souza (2009) 3 SCC 1, gave thosegeneral directions in Para 106 which are contraryto the principles laid down in both those largerBench decisions. The larger Bench decision in J.J.Merchant (Dr.) (2002) 6 SCC 635, has not been noted in D'Souza (supra). Apart from that, the directionsin Para 106 in D'Souza (supra) are contrary to theprovisions of the governing statute. That is whythis Court cannot accept those directions asconstituting a binding precedent in cases ofmedical negligence before consumer Fora. Thosedirections are also inconsistent with the avowedpurpose of the said Act.”

Learned Senior Counsel also cited judgment of theSupreme Court in State of Orissa and Another Vs. Mamata–Mohanty (2011) 3 SCC 436, and referred to its Paras 64and 65, which read as under:- “PER IN CURIAM - Doctrine:64. “Incuria” literally means “carelessness”. Inpractice per incuriam is taken to mean perignoratium. The Courts have developed thisprinciple in relaxation of the rule of staredecisis. Thus the “quotable in law”, is avoided andignored if it is rendered, in ignoratium of aStatute or other binding authority. 65. In Mamleshwar Prasad v. Kanahaiya Lal - AIR1975 SC 907, this Court held: “7. .....where byobvious inadvertence or oversight a judgment failsto notice a plain statutory provision or obligatoryauthority running counter to the reasoning andresult reached, it may not have the sway of bindingprecedents. It should be a glaring case, anobtrusive omission.” (emphasis added)

Learned Senior Counsel also relied on judgment ofthe Supreme Court in A.R. Antulay, supra, especially theobservations made in Paras 47 to 51 and 75 and it was arguedthat the Supreme Court in that case held that an order ofthe court, which is given per incuriam and in violation ofcertain constitutional limitations and derogation ofprinciples of natural justice can always be remitted by thecourt ex debito justitiae. It can do so in exercise of itsinherent jurisdiction in any proceeding pending before itwithout insisting on the formalities of a reviewapplication. It was held that basic fundamental ofadministration of justice is that no man should sufferbecause of the mistake of the court. Per incuriam are thosedecisions given in ignorance or forgetfulness of someinconsistent statutory provision or some authority binding on the Court concerned so that in such cases some part ofthe decision or some step in the reasoning on which it isbased is found on that account to be demonstrably wrong.

Learned Senior Counsel also cited judgment of theSupreme Court inState of Madhya Pradesh Vs. Narmada BachaoAndolan and Another – (2011) 7 SCC 639, on the question asto which judgments are per incuriam. Learned Senior Counsellaid emphasis in particular on observations made in paras 65to 69 of the report and argued that the Supreme Courttherein held that the courts are not to perpetuate anillegality, rather it is the duty of the courts to rectifymistakes. It was argued that this court, while dismissingthe writ petition, has wrongly relied on the judgment of theSupreme Court inCommissioner of Central Excise, Nagpur Vs.–Gurukripa Resins Private Limited (2011) 13 SCC 180, whichis wholly distinguishable on facts.

Learned Senior Counsel thus submitted that judgmentpassed by this court in Writ Petition suffers from errorapparent on the face of record, justifying its review andrecall.

I have given my anxious consideration to thesubmissions made by learned Senior Counsel and alsorespectfully studied the cited case law.

What is, in substance, argued is that this courtwhile dismissing the writ petition has wrongly not held thejudgment of the Division Bench per incuriam as that judgmentwas rendered in ignorance of statutory provision containedin Section 54 of the JDA Act, which empowered the JaipurDevelopment Authority to dispose of land even byregularization, apart from allotment or auction. In fact theReview Petition No.342/2011 was also filed in SpecialAppeal (Writ) No.342/2007, seeking review of DB Judgmentdated 11.08.2011 raising similar grounds. The Division Benchin review petition held that review is neither a re-hearing nor an appeal. Even an erroneous decision cannot bereviewed, as review is by no means an appeal in disguise,whereby an erroneous decision is corrected. In taking thatview, the Division Bench relied on a judgment of the SupremeCourt inState of West Bengal and Others Vs. Kamal Senguptaand Another – AIR 2009 Suppl. S.C. 476, in Para 15 of whichthe Supreme Court observed as under:- “The term 'mistake or error apparent' by its veryconnotation signifies an error which is evident perse from the record of the case and does not requiredetailed examination, scrutiny and elucidationeither of the facts or the legal position. If anerror is not self-evident and detection thereofrequires long debate and process of reasoning, itcannot be treated as an error apparent on the faceof the record for the purpose of Order 47 Rule 1,CPC or Section 22(3)(f) of the Act. To put itdifferently an order or decision or judgment cannotbe corrected merely because it is erroneous in lawor on the ground that a different view could havebeen taken by the Court/Tribunal on a point of factor law. In any case, while exercising the power ofreview, the concerned Court/Tribunal cannot sit inappeal over its judgment/decision.”

Even if Section 54 of the JDA Act was not specifically mentioned in the judgment of Division Bench,the core question, which it has decided in negative, waswhether the JDA can regularize plots of the petitioners.Incidentally, though it may be noted that Section 54, supra,does not find mention anywhere in the pleadings of thereview petition filed before the Division Bench. Entireemphasis in the pleadings of the writ petition, out of whichaforesaid Special Appeal arose and also in the memorandum ofspecial appeal was on the Regularisation Rules of 1981 andthe Circulars issued by the Government and no mention ofSection 54 of the JDA Act whatsoever was made in either ofthem. There is no such mention in the pleadings of writpetition of the present matter either. But this questionnonetheless lead to the Rajasthan Land Revenue (Allotment,Conversion and Regularisation of Agricultural Land forResidential Purposes in Urban Areas) Rules, 1981, andCirculars dated 01.03.1982 and 31.12.1983, which were referred to in the judgment of the present matter. ThoseRules and Circulars were obviously issued by the StateGovernment with a view to conferring power upon the JaipurDevelopment Authority for regularisation. Therefore, merenon-mention of the provision in judgment of Division Bench,would not make the judgment per incuriam, and for thatreason, judgment passed by the Single Bench in the presentmatter can be said to suffer from any error apparent on theface on record. It is trite that a judgment, even iferroneous in law, cannot be sought to be corrected by areview, inasmuch as re-hearing of the main case, which hasbeen heard and decided, cannot be sought in the guise ofreview petition.

All what has been argued only seeks to point outillegalities in the judgment, which cannot be described aserrors apparent on the face of record.

In view of the above discussion, I do not find anymerit in this review petition, which is accordinglydismissed. This also disposes of stay application.

(Mohammad Rafiq) J.

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.Giriraj Prasad JaimanPS-cum-JW