The Allahabad High Court has rejected the review application saying that if the sale deeds itself were nullity and void ab initio, the review-applicant can not claim any right and title on the said null and void sale deeds.
A Single Bench of Justice Dinesh Kumar Singh passed this order while hearing a Civil Misc Review Application Defective filed by M/S Concept Cars Ltd through authorized signatory Ram Chandra Rajwar.
The review application has been filed seeking review of the order dated 5.7.2022 passed by the Court in Public Interest Litigation (PIL), Sharad Kumar Dwivedi Vs State of U.P and others, with a prayer to recall the order and restore the Public Interest Litigation Petition to its original number and decide the same afresh after impleading the review-applicant as party to the proceedings.
The grounds which have been taken in the review application, are that the order dated 5.7.2022 contains direction for removal of illegal encroachment in terms of the order dated 4.6.2021 passed by the District Judge, whereby the District Magistrate set aside the resumption order dated 30.1.1987 and directions were issued for initiating eviction proceedings in terms of Section 67 of the U.P Revenue Code, 2006.
The said order was set aside by the Board of Revenue in its judgment and order dated 20.6.2022 and, therefore, the order of the District Magistrate dated 4.6.2021 was not in existence at the time of passing of the order under review dated 5.7.2022.
The review-applicant was not a party in the Public Interest Litigation and the order of the Board of Revenue dated 2.8.2021, by which Revision filed by Ram Chandra Rajwar, Manager of the review-applicant, M/s Concept Cars Limited impugning the order dated 4.6.2021 passed by the District Magistrate, was disposed of on the very first day with direction to the State Government to consider the request of the revisionist for exchange of land in question and till such consideration, status-quo was directed to be maintained. The validity of the order of the Board of Revenue dated 2.8.2021 could not have been challenged in the Public Interest Litigation.
It has been further submitted that in view of the prayers made in the Public Interest Litigation, inquiry was conducted by the District Magistrate and, thereafter, no further orders were required to be passed and, the Court while passing the order dated 5.7.2022 had travelled beyond the prayers made in the Public Interest Litigation. The enabling provisions of Section 101 of the U.P Revenue Code, 2006 which permit exchange of public land was not placed before the Court. The Government Order dated 9.5.1984 permitting the resumption of land for being allotted to private entities, has also not been considered in the said judgement and order under review dated 5.7.2022.
S.C Mishra, Senior Advocate assisted by S/Sri Sunil Kumar Chaudhary and Abhishek Dhaon, counsel for the review-applicant has placed reliance on several judgments to submitted that the review-applicant was an independent corporate entity and is a necessary party and without the review-applicant being heard, the impugned judgment and order under review could not have been passed.
On the other hand, Abhinav N Trivedi, Chief Standing Counsel assisted by Yogesh Kumar Awasthi, Standing Counsel has submitted that the grounds taken in the review application are wholly misconceived and the review application has no merit and substance, and it deserves to be rejected in view of the detailed findings recorded by the Court in the order dated 5.7.2022 under review.
The Court has taken note of these facts in the order under review that how in a fraudulent and dishonest manner the Government land, which was purportedly allotted for charitable purposes, was sold to its own trustees by the trust vide sale deed dated 9.6.2010 in a gross contravention of the provisions of Section 92 of the Code of Civil Procedure and the provisions of the Indian Trust Act.
The Court said that,
The two sale deeds dated 9.6.2010 and 1.7.2020 were void ab initio and were nullity in the eyes of law. If the sale deeds itself were nullity and void ab initio, the review-applicant can not claim any right and title on the said null and void sale deeds.
The review-applicant has not been able to show in the review application that the sale deeds dated 9.6.2010 and 1.7.2020 were valid and conferred a legal title over the land in favour of the two worthy sons of Sanjeev Agarwal, who are the Directors of the review-applicant. When the sale deeds are null and void ab initio, no right and title would get conferred on the review-applicant as its occupation on the land in question would be nothing but an encroachment of the Government land.
The other ground taken by the review-applicant is that while passing the judgement and order dated 5.7.2022, the Government Order dated 9.5.1984 which permitted resumption of Gram Sabha land for being allotted to public entities was not considered.
The Court further said that,
In terms of the provisions contained in paragraph seven of the Government Order dated 9.5.1984, the allotment in favour of a private entity is permissible only for a specific period. The order of resumption dated 30.1.1987 would make it evident that no such period was prescribed and secondly, the trust was never vested with the authority to alienate and sell the land mentioned in the order of resumption dated 30.1.1987, that too to its own trustees for commercial establishment.
It is a well settled proposition of law that a review is neither an opportunity of re-hearing nor it can be disguised as an appeal. The review-applicant, which is nothing but an alter ego of the trust, has failed to demonstrate that even if it would have been given an opportunity for the sake of being heard in the Public Interest Litigation, what pleadings or documents could have been placed before the Writ Court, which could have reversed the directions contained in the judgment and order dated 5.7.21022.
The Board of Revenue is under supervisory jurisdiction of the High Court and, therefore, it is always open for the High Court to scrutinize any order passed by the Board of Revenue in the Public Interest Litigation, which has direct bearing of the issues involved in the Public Interest Litigation.
The Board of Revenue order dated 20.6.2022 had directed for vesting of the land in the Gram Sabha, which was resumed vide order of the District Magistrate dated 30.1.1987. However, without any plausible rhyme or reason, an exception has been carved out on the basis of the very transactions of the land in favour of the trustees, which are null and void ab initio.
So far the ground taken by the counsel for the review applicant that the judgement of the Board of Revenue dated 20.6.2022 was not placed before the Court before delivering the order dated 5.7.2022 under review is concerned, the judgment and order pronounced by the Constitutional Court will have precedence and binding authority over the order passed by a revenue authority/board.
The Court observed that,
The Board of Revenue knowing fully well that the Public Interest Litigation is going and the judgement has been reserved, proceeded to pass the order dated 20.6.2022 favouring the trustees/review-applicant against the judicial propriety.
The Court has noted the favourable disposition of the Board of Revenue towards the Board of Trustees in the judgment and order dated 5.7.2022. The Board of Revenue in its order dated 20.6.2022 has treated vesting of the land in the Government simply as an encroachment. The case is not of simple encroachment, but it is a case of fraud and cheating besides encroachment. The Court while dealing with the facts had detailed in the judgment and order, did not deem it fit to carve out an exception in favour of the trust or the trustees and, as mentioned above, the review applicant is nothing but an alter ego of the trust inasmuch as the trustees are the Directors and the land in question was sold by trust to its trustees. The exception carved out by the Board of Revenue in its order dated 20.6.2022 runs contrary to the findings recorded by the Board of Revenue itself and such an order can not be taken note of in view of the detailed findings recorded by the Court in the order dated 5.7.2022 under review.
“Sanjeev Agarwal had filed a caveat in the Public Interest Litigation. In the counter affidavit filed on 5.6.2021, Sanjeev Agarwal in paragraph 3 had stated that he was a Director of Concept Cars Limited, review-applicant and the same has also been stated in paragraph 7 of the said affidavit, but he never raised objection regarding impleadment of the review-applicant in the Public Interest Litigation.
Thus, it is evident that Sanjeev Agarwal was not only representing the trust, but he was also representing the review applicant herein and in view thereof, I do not find any substance in the submission of the review-applicant that the review-applicant got prejudiced as it was not made a party in the Public Interest Litigation.
In view of the aforesaid discussion, the Court does not find any ground to review the order dated 5.7.2022″, the Court further observed while rejecting the application.
“The District Magistrate, Hardoi and all authorities are directed to implement the judgement and order dated 5.7.2022 under review within a period of fifteen”, the order reads.