Full Judgment Text
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CASE NO.:
Review Petition (civil) 662 of 2001
PETITIONER:
Surendra Kumar Vakil & Ors.
RESPONDENT:
Chief Executive Officer, M.P. & Ors.
DATE OF JUDGMENT: 15/03/2004
BENCH:
R.C. LAHOTI & G.P. MATHUR.
JUDGMENT:
JUDGMENT
O R D E R
IN
CIVIL APPEAL NO.8484 OF 1997
R.C. Lahoti, J.
The suit property consists of a piece of land measuring 11.37
acres comprising in Survey No.392 and the structure standing thereon
known as Bungalow No.39 in Sagar Cantonment area. A suit for
declaration of title filed by the review-petitioner was directed to be
decreed by the Trial Court and the decree was upheld by the High
Court in First Appeal. The Chief Executive Officer of Cantonment
Board, Sagar preferred an appeal by special leave which was allowed
by this Court and the suit filed by the review-petitioner was directed to
be dismissed. A perusal of the judgment under review reveals that in
forming opinion against the review-petitioner in the matter of title over
the land in suit, this Court placed reliance on Order No. 179 of 1836 of
the Governor General in Council whereunder the land forming part of
the suit property is known as one held under ’old grant’. This Court
also noted with approval the view of the law taken in Shri Raj Singh
Vs. The Union of India and Ors. \026 AIR 1973 Delhi 169 as regards
the properties in British Cantonment areas. The judgment sought to
be reviewed is reported as (1999) 3 SCC 555.
In the review petition filed by the review-petitioner, one of the
pleas raised is that Order No.179 of 1836 has stood repealed and
therefore the judgment of this Court based on the said order was
vitiated by an error of law apparent on the face of the record. It is
mainly this plea which persuaded the Court to issue notice in review
petition. The non-petitioners herein have disputed the availability of
any merit in any of the pleas raised by the writ-petitioner and have
submitted that no case for review was made out.
We have heard the learned counsel for the parties at length and
we are satisfied that the judgment under review does not suffer from
any such infirmity as to call for recalling of the judgment in exercise of
review jurisdiction of this Court.
The first submission of the learned counsel for the review-
petitioner has been that the GGO No.179 of 1836 has stood repealed
by Act No.XXII of 1864 which received the assent of Governor General
on the First day of April, 1964 and came into force on that day. In the
submission of the learned counsel for the review-petitioner Sections
XVII and XXVIII are relevant which are extracted and reproduced
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hereunder :
"XVII. And may make Rules and
Regulations to provide for certain
matters hereinafter mentioned the same
to be general or special :
The Local Government shall have
power to make Rules and Regulations not
inconsistent with the provisions of this Act or
of any other law in force, to provide within
the limits of any Military Cantonment for the
matters hereinafter mentioned, and from
time to time to repeal, or alter, such Rules
and Regulations. The Rules and Regulations
made under this Section may be general for
all Military Cantonments in the Territories
under the local Government making the
same, or special for any one or more of such
Cantonment, according as the local
Government shall direct."
"XXVIII. Effects of Rules made under Section
XVII of the Act in respect of Regulations
previously.
Whenever in any Military Cantonment,
Rules and Regulations have been made
under Section XVII, so much of any
Regulation or Act as may be held to
empower the Commanding Officer to make
local Regulations regarding matter other
than Military shall cease to have any effect in
such Cantonment, and all local Regulations
for any Military Cantonment which may have
been made before the promulgation of the
Rules and Regulations for such Cantonment
made under such Section XVII, shall cease to
have any effect. Provided that nothing in this
Section shall be held to interfere with any
Military Authority vested in the said
Commanding Officer under Articles of War."
The learned counsel for the review-petitioner submitted that
Order No.179 of 1836 is referable to Section XVII and, therefore,
stands repealed by Section XXVIII.
We have carefully perused the two provisions relied on by the
learned counsel and we find no merit in the submission made. Under
Section XVII, the Local Government is empowered to make Rules and
Regulations generally for all military cantonments in the territories
under that Local Government or in respect of one or mori of such
cantonments. The nature of the Rules and Regulations which can be
framed by the Local Government is indicated by the Preamble which
reads as under :
"Preamble :
Where it is expedient to make
provision for regulating the administration of
Civil and Criminal Justice and the
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superintendence of Police and Conservancy,
for protecting the public health within the
limits of Military Cantonments and for laying
down local Rules and Regulations to be
enforced within such limits, it is enacted as
follows :"
Once the Rules and Regulations have been framed by the Local
Government then the power of the Commanding Officer to make local
Regulations regarding matters other than military comes to an end.
Order No.179 of 1836 issued by Governor General in Council cannot be
said to have been issued under Section XVII and, therefore, the
question of its ceasing to operate by reference to Section XXVIII does
not arise. There are certain Acts and Regulations which have been
specifically repealed by Act No.XXII of 1864 as per Section 2 read with
the Schedule appended to the Act but Order No.179 of 1836 is not be
found mentioned therein.
In addition, the learned counsel for the non-petitioners has
pointed out that Order No.179 of 1836 was amended by Order
No.1001 dated 8th July, 1864 by Governor General in Council and such
amendment would not have been made if Order No.179 of 1836 would
have stood repealed with effect from 1st April, 1864 by Act No. XXII of
1864. It is also pointed out that the decision of this Court in Chitra
Kumari (Smt.) Vs. Union of India & Ors. \026 (2001) 3 SCC 208
decided on February 14, 2001 also takes notice of GGO No.179 of
1836 as still in force.
The first plea raised by the review-petitioner fails.
It was then submitted that in the decision of Nagpur High Court
dated 07.10.1949 in Second Appeal No.120 of 1947 in Shrideo
Jankiramji Idol Vs. The Governor General in Council, Delhi
certain observations have been made regarding General Land Register
(GLR) maintained under the Cantonment Land Administration Rules of
1925 and those observations would have a material bearing on the
facts of this case. The decision of Nagpur High Court cannot be relied
on by the review-petitioner as a precedent because there is no such
point of law decided as may be capable of being read as precedent for
the purpose of this case. If the judgment though not judgment intra-
parties, is yet sought to be relied on as a piece of evidence, then it
should have been tendered in evidence which has not been done. Be
that as it may, it is not disputed at the Bar that this judgment was
very much available before the Court when the appeal was argued and
the judgment of Nagpur High Court was specifically referred to in the
Note of written submissions made on behalf of respondent in the
appeal (review-petitioner herein). A point that has been heard and
decided cannot form a ground for review even if assuming that the
view taken in the judgment under review is erroneous.
The third contention raised on behalf of the review-petitioner
relates merely to appreciation of evidence and we do not think it is
available to be urged now.
No case is made out for entertaining the review petition. It is
dismissed.