Aisha Bibi and Others vs The Lieutenant Governor and Others

Prasenjit Mandal, J.—This appeal is at the instance of the writ petitioners and is directed against the judgment and order dated February 10, 2010 passed by a learned Single Judge in W.P. No. 310 of 2008 and the order in Review dated September 02, 2011 so merged in the order dated February 10, 2010 passed by the learned Single Judge of the Circuit Bench at Port Blair in the said writ petition. The following facts are not in dispute:--

(i) The petitioners filed the aforesaid writ petition challenging an order dated November 02, 2006 of the Deputy Commissioner and the appellate order dated January 25, 2008 in relation to the prayer of the writ petitioners for cash compensation or allocation of alternative land in lieu of land that had allegedly been resumed in 1956.

(ii) While disposing of the said writ petition, the learned Single Judge has held that the order in question of the Deputy Commissioner was a reasoned one and the appellate forum had affirmed the decision of the Deputy Commissioner. There was no justification for interference in the said writ petition. Accordingly, the writ petition was dismissed.

(iii) Being aggrieved by the order of dismissal, the petitioners preferred an appeal being MAT No. 35 of 2010 which was dismissed as withdrawn by a Division Bench of this Hon''ble Court holding inter alia that if the appellants/writ petitioners filed any application for review, the learned Trial Judge should be at liberty to decide the same without being influenced by the order passed by the Division Bench and

(iv) Accordingly, the petitioners filed an application for review being RVW No. 04 of 2011 which was dismissed by the order dated September 02, 2011. Thereafter, this mandamus appeal has been preferred.

Now, the question is whether the appeal should be allowed or not.

Upon hearing the learned Counsel for the parties and on going through the materials on record we find that the question of maintainability of this appeal has arisen.

While arguing on behalf of the appellants, Mrs. Anjili Nag, learned Advocate has submitted that the writ petitioners have challenged the judgment and order dated 10.02.2010 passed in W.P. No. 310 of 2008 and as such even after dismissal of the application for review, this appeal is quite maintainable.

Mr. S.K. Mandal, learned Government Pleader appearing for the respondent Nos. 1 to 7 has vehemently raised the question of maintainability of this appeal and by referring to the provisions of Order 47 Rule 7 of the CPC, he has contended that since the application for review has been rejected, the order passed in the application for review shall merge with the main order in the writ petition by the doctrine of merger and that as per provision of Order 47 Rule 7 of the CPC when an application for review has been rejected, no appeal lies. Accordingly, this appeal is not maintainable.

Mr. Jayapal, learned Advocate appearing for the respondent No. 8 and Mr. N.A. Khan, learned Advocate, appearing for the respondent No. 11 have also supported the contention of Mr. S.K. Mandal.

In reply, Mrs. Anjili Nag, learned Advocate for the appellants has contended that though her clients filed an appeal being MAT No. 34 of 2010 earlier, the petitioners were granted leave to move an application for review before the learned trial Court in accordance with law as per order dated February 23, 2011 and since the leave was granted, keeping pendency of the said appeal became meaningless, and as such the said appeal was dismissed as withdrawn. Under the circumstances, after the dismissal of the application for review, the petitioners were at liberty to prefer the appeal against the judgment and order dated February 10, 2010 passed in WP No. 31 of 2008.

Having due regard to the submissions of the learned Advocates of both the sides and on perusal of the materials on record, we find that the earlier appeal filed by the writ petitioners was dismissed as being withdrawn. The writ petitioners preferred an application for review upon obtaining leave from the appellate Court. The said application for review was dismissed on merits by the order dated September 02, 2011. Therefore, according to the doctrine of merger, the findings observed in the review would merge with the judgment and order dated February 10, 2010. The net effect of the situation is governed by the provisions of Order 47 Rule 7 of the CPC and for convenience the said Rule is set out herein below:--

R.7. Order of rejection not appealable. Objections to order granting application--

(1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.

(2).........

(3)........

After the disposal of the application for review, the order passed in the application for review merges with the main order passed in the concerned writ application. In such circumstances, since the prayer of the application for review stood rejected, according to the provisions of Rule 7(1) of Order 47 of the CPC, no appeal lies. Therefore, we are unable to accept the submissions advanced by Mrs. Anjili Nag. We are, therefore, of the view that the appeal is not maintainable at all in law. For this reason the appeal is liable to be dismissed.

If for argument sake it is held that the appeal is maintainable yet in consideration of the factual aspect, we are of the view that the learned Single Judge has rightly dismissed the writ petition and also the application for review. The basis of the claim of the writ petitioners in respect of the land in question is that they paid rents for the land in question up to 1996 for the entire land and that they were in continuous possession up to 1976, but, we find that the petitioners/appellants herein have failed to show any rent receipt from 1966 to 1976. The rent receipts that were filed mention the word "crop" and Mrs. Nag has described such word that the land is agricultural and it shows that the writ petitioners were in possession of the same. With due respect to her, we are of the view that this submission cannot be accepted as the said rent receipts do not bear any particulars of the land and that different roll numbers have been allotted in respect of those rent receipts granted in different years. So there is no evidence that the writ petitioners are in occupation of the entire land save the land to the extent of 488 square metres. Mrs. Nag has referred to the case of Tek Ram v. A & N Administration & Ors. passed by a Division Bench of this Court in FMAT 562 of 1995. But with due respect to her, we are of there view that the fact of Tek Ram''s case is quite distinguishable from the present one. In that case, the petitioners were found to have been in continuous cultivation till 1978, but in the instant case, as recorded earlier, the appellants have failed to file any paper to show payment of rent from 1966 to 1976. Therefore, that decision was not rightly taken into consideration in the instant case by the learned Single Judge.

It may be noted herein that while the alternative land measuring 488 square metres was allotted to the writ petitioners, they accepted the same without any protest. Accordingly, the learned Trial Judge has held that there is no infirmity at all in the impugned orders and that those orders did not call for interference by the Court exercising its extraordinary jurisdiction under Article 226 of the Constitution of India.

In that view of the matter we are of the opinion that the appeal is not maintainable and that there is no scope of interference with the impugned judgment and order even on merits. Accordingly, the appeal is dismissed. There will be no order as to costs.

Urgent photostat certified copy of this judgment and order may be supplied to the parties after observing all required formalities.

Soumen Sen, J.

I agree.