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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 In the review petition filed by the review-petitioner, one of the  pleas raised is that Order No.179 of 1836 has stood repealed and  therefore the judgment of this Court based on the said order was  vitiated by an error of law apparent on the face of the record.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  The first submission of the learned counsel for the review- petitioner has been that the GGO No.179 of 1836 has stood repealed  by Act No.XXII of 1864 which received the assent of Governor General  on the First day of April, 1964 and came into force on that day.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.