DALIP SINGH,J. - (1.) THIS matter comes up on the application (Inward No.36678) filed on 17.8.2012 under Article 226(3) of the Constitution of India by the respondents for vacating the interim order dated 13.7.2012 by which this court while admitting the appeal and issuing the notice to the respondents ordered that "In the meantime, parties are directed to maintain the status-quo in respect of land in dispute with regard to its possession as well as entry in the revenue record."
(2.) THE appellant, Jaipur Development Authority (for short "the JDA") has filed this appeal against the judgment of the learned Single Judge dated 4.5.2012 dismissing S.B. Civil Review Petition No.222/2008 filed by the appellant for review of the order of the learned Single Judge dated 30.10.2007 passed in S.B. Civil Writ Petition No.8768/2007, Baji Ram and Anr v/s State of Rajasthan and Ors whereby the learned Single Judge directed while allowing the said petition for recording the names of the respondents No.1 and 2 in the revenue record in the execution of the order dated 25.4.1976 passed by the Assistant Settlement Officer. The grievance which was raised by the appellants before us and so also before the learned Single Judge, was that the writ petition came to be allowed by the learned Single Judge without having issued notices to the appellants but merely having issued notice to the Government Advocate who was present in the court directing him to accept notice, however the Government Advocate did not, in fact, represent the appellant JDA and accordingly on the basis of the above, the writ petition came to be allowed and that the appellant JDA never got an opportunity to appear and make the submissions before the learned Single Judge. The matter came up before the Division Bench on 13.7.2012 and the appeal was admitted exparte and notices issued and at the same time, the interim order quoted hereinabove, came to be passed by the Division Bench. In this back ground of the case, the respondents submitted an application under Article 226(3) of the Constitution of India for vacating the exparte interim order dated 13.7.2012. The learned counsel appearing for the respondents pointed out from the documents filed along with the said application for vacation of the exparte interim order more particularly, the fact that against the judgment dated 30.10.2007 of the learned Single Judge allowing the writ petition, the State of Rajasthan had preferred an appeal before the Division Bench which was registered as D.B. Civil Special Appeal (Writ) No.1793/2008 and the said appeal filed by the State of Rajasthan came to be dismissed by the Division Bench vide its order dated 5.11.2008. Copy of the said order has been filed as Annexure R-3 to the application. The said order reads as follows : "Heard learned counsel for the appellants both upon limitation application and also in appeal. Delay in filing this appeal however is condoned. By the order impugned, the learned Single Judge of this court issued a writ of mandamus directing the revenue authorities to make entry in the revenue records pertaining to the land in question pursuant to order dated 25th April, 1976 passed by the Land Settlement Department. It is not in dispute that the order dated 25th April, 1976 passed by the Land Settlement Department was never challenged by the State of Rajasthan and the same thus remained operative. In view of order dated 25th April, 1976, which was never challenged, the learned Single Judge of this Court was wholly justified in issuing a writ of mandamus directing the authorities to comply with the order aforesaid. Faced with this situation, we do not find any justification to interfere with the order impugned. This appeal accordingly dismissed." The learned counsel for the respondents also pointed out that even before the appeal filed by the State of Rajasthan bearing No.1793/2008 was dismissed by the above order dated 5.11.2008. The respondent JDA had preferred a review petition on 16.10.2008. The appeal filed by the State was, in fact, dismissed by the Division Bench while the review petition filed by the JDA was still pending against the judgment dated 30.10.2007. It was further submitted that after the Division Bench dismissed the appeal filed by the State of Rajasthan bearing No.1793/2008 vide order dated 5.11.2008, the State of Rajasthan preferred a review petition before the Division Bench. The copy of the memo of appeal No. 1793/2008 has been filed along with application as Annexure R-2 and the memo of the review petition which was preferred by the State against the order dated 5.11.2008 dismissing the appeal No. 1793/2008 has also been filed as Annexure R-4. The learned counsel for the respondents took pains to counter the submissions of the learned counsel appearing for the appellant JDA and pointed out that the State of Rajasthan in the review petition filed before the Division Bench against the dismissal of the appeal vide order dated 5.11.2008, had specifically raised the issue before the Division Bench regarding these facts and the ground which is now sought to be raised by the JDA in the present appeal that no notice was issued to the JDA by the learned Single Judge before deciding the writ petition vide judgment dated 30.10.2007. In this behalf, learned counsel for the respondents has pointed out from para no.6 of the review petition (Annexure R-4) wherein it has been stated in narration of the facts as follows : ".... It is submitted that all these facts were not brought to the notice of the Hon'ble Court by the respondents no.1 and 2, nor the JDA could bring the same to court's kind notice as it was not heard before the passing of the judgment dt. 30.10.2007."
(3.) THE learned counsel for the respondents pointed out that the State of Rajasthan in the review petition has specifically therefore raised the issue which is now being sought to be raised by the JDA in the present appeal that no notice has been served upon them and no opportunity of hearing was given to the JDA. Learned counsel for the respondents further pointed out that the submission which is being sought to be raised by the JDA with regard to not affording of an opportunity of hearing and of development by the JDA of the land and the rights of the intervener's having arisen as a result of the said development was also raised by the State of Rajasthan in the review petition filed by it against the judgment dated 5.11.2008. The learned counsel pointed out these facts were specifically quoted in para no.7 of the review petition which is Annexure R-4 on record. The learned counsel further pointed out that not only in narration of the facts but in the grounds of review which appear in Annexure R-4, it was specifically stated by the State of Rajasthan that the judgment dated 30.10.2007 has been obtained by the petitioners from the learned Single Judge by practicing fraud upon the court and by misleading the court at the time of passing of the order. The learned counsel for the appellants pointed out that this ground is ground No "A" of the review petition which was filed by the State of Rajasthan against the judgment dated 5.11.2008 by which the Division Bench dismissed the appeal filed by the State of Rajasthan and upheld the judgment of the learned Single Judge allowing the writ petition dated 30.10.2007. It was the contention of the learned counsel that the judgment dated 30.10.2007 was obtained by fraud and this fact has also been raised by the State of Rajasthan before the Division Bench and the same did not find favour with the Division Bench as the review petition subsequently came to be dismissed by the Division Bench vide its judgment dated 20.1.2009. The learned counsel for the respondents further pointed out that the contention with regard to the subsequent rights of the intervener as a result of the development by the JDA was also raised in the grounds or the review in para No.F of the ground in the said review petition and those also did not find favour with the Division Bench which dismissed the review petition despite the aforesaid grounds having been raised therein. Learned counsel then referred to the order passed by the Division Bench dated 20.1.2009 which has been filed before us as Annexure R-6. The Division Bench vide its order dated 20.1.2009 accordingly dismissed the review petition also. ;