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HIGH COURT OF JUDICATURE FOR RAJASTHAN - JAIPUR BEN
Mohammad Rafiq, J
Taruchaya Nagar Ramaram Vikas Samiti Jaipur – Appellant
Versus
State of Rajasthan – Respondent
INS.B. Civil Review Petition No.21/2013|S.B. Civil Writ Petition No.695/2004|Stay Application No.680/2013
['BABU LAL SHARMA', 'RAJESH MOONDIA', '', 'DR A S KHANGAROT', 'BHARAT VYAS', 'AMIT KURI']
A judgment is not rendered 'per incuriam' merely because a specific statutory provision is not explicitly mentioned, provided the core legal issue was addressed and the underlying statutory authority was considered through related rules or circulars. Review is not a re-hearing to correct legal errors.
Headnote:The petitioners sought a review of the dismissal of their writ petition, praying for the regularization of plot possessions based on government circulars and Section 54 of the Jaipur Development Authority Act, 1982. The petitioners contended that the court's reliance on a previous Division Bench judgment was flawed because that judgment was 'per incuriam', having ignored the statutory power of regularization explicitly provided under Section 54 of the JDA Act. The primary issue was whether the failure to explicitly mention Section 54 of the JDA Act in the previous judgment rendered it 'per incuriam' and whether such an omission constituted an 'error apparent on the face of the record' justifying a review. The court observed that the core question of regularization had been decided and that the relevant Rules and Circulars cited were derived from the State's power to regularize; thus, the mere non-mention of a specific section does not make a judgment per incuriam. In view of the above discussion, I do not find any merit in this review petition, which is accordingly dismissed.
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By the Court:-
This review petition has been preferred by petitioners seeking review of order/judgment dated 10.12.2012 by which their Writ Petition No.695/2004 was dismissed.
Writ petition was filed by petitioners Taruchaya Nagar Ramaram Vikas Samiti Jaipur through its Secretary Dr. Kavita Sharma, who too joined as petitioner no.2, with the prayer that a mandamus be issued to respondents to grant a benefit of Circular dated 18.02.1994 and to regularize their possession of the members of the petitioner no.1 Samiti, in terms of Circular dated 10.07.1999 issued by respondent State. They were allotted such plots by Subhash Sindhi Cooperative Housing Society Limited in a housing scheme of 300 plots.
Shri Bajrang Lal Sharma, learned Senior Counsel appearing for petitioners, has cited a judgment of the Supreme Court in A.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 some statutory provision or of some binding authority. This court while deciding the writ petition, has considered only the question of authority binding on the court concerned, but has neither noticed nor decided the question of statutory provision. In this connection, learned Senior Counsel drew attention of the court towards Section 54 of the Jaipur Development Authority Act, 1982, which specifically deals with question of disposal of land by the Jaipur Development Authority by way of allotment, regularization or auction, subject to such conditions as the State Government may from time 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 this court dated 11.08.2011 in Special Appeal (Writ) No.342/2007 – Ratan Kumar Sharma Vs. State of Rajasthan and Others , on which reliance was placed by the respondents, was a judgment per incuriam as it was decided in ignorance of mandatory provision of Section 54 of the JDA Act. When the legislature by Statute has included 'regularization' as one of the modes of disposal of the land, the Division Bench could not describe the same as misadventure. The Division Bench in that case, while rejecting prayer of writ petitioners/appellants that it may be left open to the government to regularize certain plots in favour of the appellants, observed that the government cannot enter into such misadventure. This observation has been given by the Division Bench without any reasoning and without application of mind.
It was argued that courts cannot go contrary to the mandate of law. If the legislature by Section 54 of the JDA Act, empowered the Jaipur Development Authority to dispose of the lands by way of allotment, regularization or auction, that would mean that one of the accepted modes of disposal is regularization. The Division Bench was not justified in holding that if the State were to regularize the land, it would amount to misadventure on its part.
Shri Bajrang Lal Sharma, learned Senior Counsel, argued that even if Special Leave to Petition has been dismissed against afore-mentioned Division Bench judgment, that would not amount to approval of the law laid down therein by the Division Bench, inasmuch as, the 'doctrine of merger' would not be attracted in such a situation. Fresh writ petition filed by petitioners could still be considered on merits. Neither the Division Bench in aforesaid case nor this Court, while dismissing the writ petition of petitioners, in the present case, has considered the effect of Section 54 of the JDA Act.
Learned Senior Counsel cited judgment of the Supreme Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital and Another – (2010) 5 SCC 513. and argued that the Supreme Court in its Para 54 and 55 held as under:-
“54. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Ben
