K.K. Verma vs State and Others

Muzaffar Hussain Attar, J.—In the earlier round of litigation in Letter Patent Appeal (LPA) No. 66/1987 titled ""Man Singh verses State and

Ors."", a Division Bench of this Court framed questions and matter was send to Revenue Secretary for returning findings thereon with further

direction to afford personal hearing to the parties. The Revenue Secretary vide his report dated 30th September, 2002 answered the questions

framed by the Hon'ble Division Bench.

The appellant feeling aggrieved of these findings recorded against him has challenged the same before the Minister concerned.

After the findings were recorded by the Principal Secretary to Government, Revenue and Rehabilitation Department, respondent-Man Singh

filed a writ petition in which he prayed for quashing of the Government Order No. Reh-241 of 1982 dated 21st July, 1982 where under land

measuring 15 Kanal comprising in Plot Nos. 27-A and 28-A situated at Roulki Sector of Bakshinagar Colony, Jammu stand allotted to the

appellant.

Learned Writ Court in terms of the impugned judgment provided that respondent No. 1 shall accord consideration to the questions framed in

Paragraph 29 of the said judgment and in the backdrop of findings recorded by the Revenue Secretary and pass appropriate orders, however,

after issuing notice to both the parties and after affording an opportunity of hearing to them. The Learned Writ Court has further provided in the

judgment that it would be open for the Government to recall the impugned order of allotment dated 21st July 1982 in case appellant is not found

eligible under the relevant rules or allotment is not found justified.

Learned counsel for appellant submitted that in the earlier round of litigation, the respondents did not pray for quashment of the allotment order

and in view of the principles enshrined under Order 2 Rule 2 CPC, they are precluded from challenging the same in the writ petition in which the

impugned judgment has been passed.

Learned counsel also submitted that the findings recorded by the Principal Secretary to Government, Revenue and Rehabilitation Department

have been challenged before the concerned Minister and the judgment impugned should not have been passed until such time, matter was disposed

of by the Concerned Minister.

Mr. S.S. Lehar, learned Senior counsel appearing for the respondents defended the impugned judgment.

The case on hand has a chequered history. The appellant has even approached the Hon'ble Supreme Court, but did not succeed there also. The

Division Bench judgment has attained finality and the Revenue Secretary was thus bound to record the findings on the questions framed by the

Division Bench in its judgment dated 16th February, 2000.

The Revenue Secretary has already recorded his findings on the questions which have gone against the appellant.

The representation filed before the Concerned Minister against the findings recorded by the Revenue Secretary have not been filed in terms of

any statute. The filing of representation by the appellant and its pendency before the Concerned Minister is inconsequential and same has no

statutory binding.

Even otherwise, the Minister Concerned could not be a competent authority to consider the representation of the appellant-petitioner against

the findings recorded by the Revenue Secretary, inasmuch as, the Revenue Secretary has not in his own right proceeded in the matter and

recorded the findings.

The Revenue Secretary was designated as an Authority by the Letter Patent Bench of this Court. The appellant if aggrieved of findings

recorded by the Revenue Secretary should have challenged the same by filing writ petition before the Court.

The findings recorded by the Revenue Secretary have not been legally questioned, and have attained finality.

The objection to the maintainability of the writ petition on the basis of Order 2 Rule 2 CPC would not be of applicable to the writ proceedings,

in view of the mandate contained in explanation appended to Section 141 CPC.

Even otherwise, the writ jurisdiction of the constitutional Court cannot be controlled by the CPC. The constitutional Courts in order to meet

out justice to parties can devise its own procedure. However, in appropriate cases, the Court can apply the principles underlying Order 2 Rule 2

CPC to the facts of the particular case, but such a Rule cannot have universal application.

In view of the facts and circumstances of the case, the principles underlying Order 2 Rule 2 CPC would not be applicable, as the latest writ

petition filed by the private respondents was based on subsequent development and a fresh cause of action accrued on the basis of report of

Revenue Secretary.

The Writ Court has not quashed the order of allotment, but has directed the Government to take call on the same, in the manner prescribed in

the impugned judgment.

For our above recorded reasons, we find no merit in this appeal, which is, accordingly, dismissed.