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2003 DIGILAW 1438 (AP)

Steel Plant, Visakhapatnam v. Narla Gopalakrishnaiah

2003-11-21

A.GOPAL REDDY, DEVENDER GUPTA

body2003
DEVINDER GUPTA, CJ. ( 1 ) THE respondents owners of the land in question filed Writ Petition No. 7450 of 2002 questioning the action of the Special deputy Collector, Land Acquisition, Steel plant, Visakhapatnam in having issued memo dated 27-3-2002 as illegal and unconstitutional and prayed to quash the same with a consequential direction to issue a fresh notification for acquiring the land under the provisions of the Land Acquisition act, 1894 (hereinafter referred to as the Act ). ( 2 ) BEFORE we proceed further brief facts leading to the filing of the writ petition may be stated: Invoking urgency provisions, notification-dated 16-1-1981 was issued under Section 4 (1) of the Land Acquisition act seeking to acquire the land in question. Pursuant to invocation of urgency clause, possession was also taken on 29-9-1982. The proceedings to acquire the land were challenged before the court in W. P. No. 9538 of 1982. The court by its judgment-dated 4-12-1985 quashed the notification issued under Section 4 (1) of the Act with liberty reserved to the petitioners-appellants to issue fresh notification within a period of three months. Fresh notification under Section 4 (1) was issued on 15-9-1989 and was published in the Gazette on 25-9-1989, which was again challenged by the owners in W. P. No. 6254 of 1990. A learned Single Judge allowed the writ petition, but in appeal (W. A. No. 973 of 1995) a Division Bench of this court by order dated 6-9-1995 set aside the judgment of the learned Single Judge and dismissed the writ petition. ( 3 ) THE Special Deputy Collector, LA thereafter through Memo dated 27-3-2002 informed the owners that the compensation could not be paid to them in view of the pendency of the dispute and asked them to claim the amount as determined by Lok adalat which was challenged by them in w. P. No. 7450 of 2002. On a consideration of the submissions made on either side and the material on record, the learned Single Judge allowed the said writ petition on 23-10-2002 holding that during the pendency of the second writ petition i. e. W. P. No. 6254 of 1990 and Writ Appeal No. 973 of 1995 there was no stay and therefore there was no justification on the part of the District Collector not to proceed further in the matter and pass award under Section 11 of the Act. The learned single Judge thus held that the entire land acquisition proceedings initiated under the second notification dated 25-9-1989 are vitiated as the notification had lapsed by efflux of time. Consequently a direction was issued for issuance of a fresh notification and to pass award in accordance with law. ( 4 ) THE aforementioned judgment rendered in W. P. No. 7450 of 2002 was challenged by the Special Deputy Collector, land Acquisition in W. A,no. 533 of 2003, which was dismissed by us on 3-4-2003. A submission was made in the appeal on behalf of the Collector, Land Acquisition that since possession had already been taken on 29-9-1982 pursuant to notification issued under Section 4 (1) and under Section 17 (1) of the Act and award was also passed on 11-1-1982 by the Collector, it was-not permissible for the owners to have challenged the acquisition proceedings since the land stood vested in the Government. Such submission was turned down by us holding that by judicial order, the proceedings to acquire the land pursuant to the notification dated 16-1-1981 were set aside on 4-12-1985 which order could have been appealed against but was not appealed against and thus had become final. In this view of the matter, it was held that it was not at all permissible for the Collector, Land acquisition to say in memo-dated 27-3-2002 that fresh notification issued on 25-9-1989 was superfluous and of no consequence. Consequently, it was held that the only option left with the Collector, Land Acquisition, in case he would like to continue to remain in possession of the property would be to take appropriate proceedings in accordance with law to acquire the land and to pass award und er the provisions of the Act for which the learned single Judge had already issued necessary directions. ( 5 ) AGAINST our decision in W. A. No. 533 of 2003, Special Deputy Collector, land Acquisition sought leave to appeal by filingspecial Leave to Appeal (Civil) No. 8326 of 2003. The said SLP (C) was dismissed on 8-5-2003. After dismissal of SLP (Civil), special Deputy Collector, LA on 13-6-2003 filed the present application seeking review of our Judgment dated 3-4-2003. There was delay in filing the review petition. As such, an application seeking condonation of delay of 41 days in preferring the review has also been filed. The said SLP (C) was dismissed on 8-5-2003. After dismissal of SLP (Civil), special Deputy Collector, LA on 13-6-2003 filed the present application seeking review of our Judgment dated 3-4-2003. There was delay in filing the review petition. As such, an application seeking condonation of delay of 41 days in preferring the review has also been filed. The ground seeking condonation of delay is that as the Supreme Court has been approached to have the Judgment of this court set aside, but the SLP (C) was dismissed by Supreme Court by one line order, therefore, the Special Deputy Collector was advised to seek review of the judgment. He was advised that in a case where an order rejecting the SLP is passed without going into the merits, there is no merger and accordingly review would lie to the High court in view of the decision of the Supreme court in Kunhayammed v. State of Kerala. Accordingly, on 11-6-2003 the review petition was filed with prayer for condonation of delay urging that there are strong grounds on which there is likelihood of the judgment being reviewed in view of the settled legal position. ( 6 ) AFTER judgment was delivered by us in w. A. No. 533 of 2003, the owners approached learned Single Judge on 10-2-2003 complaining that the District Collector and special Deputy Collector were guilty of contempt as they had deliberately and wilfully failed to implement the orders of this court dated 23-10-2002 in W. P. No. 7450 of 2002 and prayed that they be punished accordingly. ( 7 ) LEARNED Single Judge by order dated 21-7-2003 allowed the contempt petition holding the Collector and Special Deputy collector guilty and liable for punishment under the provision of the Contempt of courts Act in having disobeyed the orders of the Court and thus proceeded to impose a fine of Rs. 10,000/- each on them to be paid within a period of two weeks failing which they were directed to undergo civil imprisonment for a period of one month. The said order is challenged in c. A. No. 11 of 2003. ( 8 ) REVIEW application and Contempt appeal were taken up together and we have heard learned Advocate General for the petitioner and learned counsel for the respondents. The said order is challenged in c. A. No. 11 of 2003. ( 8 ) REVIEW application and Contempt appeal were taken up together and we have heard learned Advocate General for the petitioner and learned counsel for the respondents. ( 9 ) LEARNED Advocate-General appearing for the Special Deputy Collector, Land acquisition, submitted that there are strong grounds on which Judgment delivered by us in W. A. No. 533 of 2003 dated 3-4-2003 is liable to be reviewed and, therefore, there is no reason why this court will not exercise its power of review. He went to the extent of urging that even if the court was of the view that the application seeking review by the special Deputy Collector, Land Acquisition, for one reason or the other would not be maintainable or is barred by limitation, the court is empowered to exercise its suo tnotu power to review the judgment. In support of submission, learned Advocate General heavily placed reliance on the decision of the supreme Court in Kunhayammed s case supra urging that there is no question of the order of this court merging in the order of the supreme Court. Even otherwise it was contended that the order disposing of writ appeal being contrary to number of judgments of this court and the well-settled position in law, it was liable to be reviewed. ( 10 ) LEARNED counsel appearing for the owners raised a preliminary objection as regards maintainability of the review petition after dismissal of SLP (Civil) apart from questioning the bona fides of the Special deputy Collector, LA in seeking to have the delay condoned. It was urged by him that a reading of the order of the Supreme Court dated 8-5-2003 dismissing the SLP (C) would disclose that the Judgment of the Supreme court in Kunhayammed v. State of Kerala is not applicable. The SLP (C) was not dismissed in limine but on merits. In any case, he urged that the Supreme Court in a later decision in k. Rajamouli v. AVKN Swamy has held that filing of a review petition after the SLP is dismissed would be an abuse of the process of law and if the High Court allows the review petition, filed after the Special leave petition was dismissed, after condoning the delay, it would be treated as an affront to the order of the Supreme Court. Therefore, there is no question of this court exercising powers of review either on the application of the special Deputy Collector, LA or suo motu. ( 11 ) AFTER having duly considered the submissions made at the bar and after having gone through the record, we are of the view that there is much force in what is urged by learned counsel for the owners that it is not permissible for us to review our order after slp (C) was dismissed by Supreme Court. Review application was not pending when slp was filed. We need not go into the other questions raised in this case, that whether the delay is liable to be condoned or whether there are good grounds to review the judgment rendered in the writ appeal. In any case, we would proceed on the assumption that there is a very good case in favour of special Deputy Collector, Land Acquisition on the basis of which the judgment rendered by us in W. A. No. 533 of 2003 would be liable to be reviewed and the writ appeal deserves to be re-heard on merits. Proceeding on that assumption, we will deal with the question of maintainability of the review petition. ( 12 ) IN Abbai Maligai Partnership Firm v. K. Santhakumaran three Judge Bench of the supreme Court deprecated the act of a learned Single Judge of the High Court in having exercised review jurisdiction after the Special Leave Petition against the selfsame order had been dismissed by the supreme Court after hearing learned counsel for the parties. It was held that interference by the learned Single Judge of the High court at that stage is subversive of judicial discipline. The Apex Court observed that the high Court was aware that SLP against the self-same order had already been dismissed, therefore, the High Court had no power or jurisdiction to review the self-same order, which was subject matter of challenge in slp, after the challenge had failed. As such, the act of learned single Judge in entertaining and reviewing the order, when SLP had been dismissed, was deprecated observing that judicial property has been sacrificed and the very entertaining of review petition in such a case was an affront to the order of the supreme Court. As such, the act of learned single Judge in entertaining and reviewing the order, when SLP had been dismissed, was deprecated observing that judicial property has been sacrificed and the very entertaining of review petition in such a case was an affront to the order of the supreme Court. Supreme Court strongly disapproved such an action and observed that there would be no occasion in future when it would have to say on the subject any more. The very jurisdiction in exercising the power of review by the High Court was held to be palpably erroneous. This judgment was rendered on 9-9-1998. ( 13 ) KUNHAYAMMED s case (1 supra) was also decided by a three Judge Bench of the supreme Court wherein it had an occasion to elaborately consider the question of the power of High Court to entertain review application where SLP (C) is dismissed on merits. After an elaborate discussion on the doctrines of merger and res judicata, it was held that an order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. It would mean that the Supreme court was not inclined to exercise its discretion so as to allow the appeal being filed. Only when leave to appeal is granted the appellate jurisdiction of the Supreme court stands invoked and the order passed in appeal would attract the doctrine of merger. Therefore, there is no bar in High court entertaining review application after the dismissal of SLP, whether it was dismissed on merits or otherwise. ( 14 ) IT deserves to be noticed that kunhayammed s case (1 supra) was decided by the Supreme Court dealing with the questions of law elaborately and making reference to a number of decisions on the point. However, the judgment of a Bench of equal strength rendered earlier in point of time in Abbai Maligai s case (3 supra) was neither brought to its notice nor was taken note of. In these circumstances, learned advocate-General would submit that the judgment in Kunhayammed s case being later in point of time by a Bench of equal strength and being more elaborate on the point laying down the principles therein, would govern the case. In these circumstances, learned advocate-General would submit that the judgment in Kunhayammed s case being later in point of time by a Bench of equal strength and being more elaborate on the point laying down the principles therein, would govern the case. Following the said decision, it is permissible for this court to exercise its powers of review whether on the application of a party or suo motu. ( 15 ) WE are now faced with a situation that on the same point there are two separate decisions of Benches of equal strength of supreme Court expressing different opinions. The later decision has not noticed the earlier decision. The later decision is more elaborate on the point. Both decisions on the samepoint cannot be reconciled. What course the High Court should adopt in such a situation. Law on this point is almost settled by a number of Full Bench decisions of the high Courts, which have culled out various principles. The first principle is that when various judgments of Supreme Court cannot be reconciled, the proper course for the High court would be to follow the opinion expressed by the Larger Bench of the Supreme court in preference to the opinion expressed by a smaller Bench of the Court. Reference in this connection may be made to three Full bench decisions in Rana Natwar Singh v. State of Madhya Pradesh, Mohanlal v. Tirath Ram chopra and Parag Lal Behari v. Deputy Director of Consolidation, Gorakhpur. There is yet another principle on the binding nature of the judgments of the Supreme Court when the same have been rendered by Bench of the same strength. In Gopal Krishna v. 5th Addl. District judge, and Gujarat Housing Board v. Nagajibhai Laxmanbhai and MM. Yaragatti v. Vasant it has been held that the latest judgment of the Bench of the same strength has a binding force. Another principle with which we are concerned is that where there is a direct conflict between the decisions of the Supreme Court of co-equal Benches, the high Court has to follow the Judgment, which appears to it to state the law more elaborately and more accurately. It has been held that both the views of the Supreme Court cannot be binding on the courts. In such a situation a choice, however, difficult it may be, has to be made. It has been held that both the views of the Supreme Court cannot be binding on the courts. In such a situation a choice, however, difficult it may be, has to be made. Therefore, the date of rendering the judgment by the Supreme Court cannot be a guiding principle. This view was taken by the Full Bench of the Patna High Court in amar Singh Yadav v. Shanti Devi. Similar view was taken by a Special Bench of Calcutta high Court in Bholanath Karmakar and others v. Madan Mohan Karmakar and others that where there are contrary decisions of the supremecourt rendered by Benches of equal strength, the High Court, in theory being bound by each one, is in effect, bound by none and is not necessarily obliged to follow the later in point of time, but may follow the one, which according to it is better in point of law. ( 16 ) AS noticed by us above, the latter decision of the Supreme Court in kunhayammed s case (1 supra) has notnoticed the Judgment of the Bench of the same strength rendered earlier in Abbai Maligai s case (3 supra ). We cannot comment upon the correctness of the view taken in either of the judgments. In such a situation, it will not be proper for us to go to the extent of making a choice as to which of the judgments should be followed inasmuch as the answer had already been given by the Supreme Court in a subsequent decision in K. Rajamoli s case (2 supra ). In the said decision, the Supreme court considered both the decisions, namely, kunhayammed s case (1 supra) as well AS Abbai maligai s case (3 supra) and resolved the controversy saying that the dismissal of special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the appeal provided review petition was filed prior to filing of special leave petition against the main judgment of the High Court. But the position would be different where after dismissal of special leave petition against the main judgment, a party files a review petition with application seeking condonation of delay on the ground that the party was prosecuting remedy by way of special leave petition. But the position would be different where after dismissal of special leave petition against the main judgment, a party files a review petition with application seeking condonation of delay on the ground that the party was prosecuting remedy by way of special leave petition. It was held that in such a situation, filing of review would be an abuse of the process of law. Thus, the supreme Court agreed with the view taken earlier in Abbai Maligi s case (3 supra) that if the High Court allows the review petition, filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the supreme Court. Distinction was drawn in those cases where review is sought along with an application for condonation of delay after dismissal of SLP holding that view as laid down in Abbai Maligai s case (3 supra) to be the correct one. ( 17 ) IN the circumstances aforementioned, when the later decision of Supreme Court has analysed and explained the earlier two decisions on the point making out distinction, as pointed out above, there is no option left with us except to hold that it will not be permissible for us to entertain review application or to condone delay in filing the same. It will also not be permissible for us to exercise suo motu power of review even assuming that there is a good ground to review the order. Accordingly, the review wampsr is rejected. Consequently, the delay condonation application also stands dismissed. ( 18 ) AS regards Contempt Appeal, having narrated the facts aforementioned, it cannot be said that there was any wilful or deliberate attempt on the part of the appellants in having failed to comply with the directions of the court. Remedy to challenge the order was being pursued in SLP and when it was dismissed, placing reliance on the decision of the Supreme Court, review was sought and applications were also filed for suspension of the order. In these circumstances, it cannot be said that there was any attempt on the part of the appellants in having deliberately and wilfully failed to obey the orders of the court. ( 19 ) WE, therefore, allow the Contempt appeal and set aside the order of the learned single Judge. The Contempt Case is dismissed. In these circumstances, it cannot be said that there was any attempt on the part of the appellants in having deliberately and wilfully failed to obey the orders of the court. ( 19 ) WE, therefore, allow the Contempt appeal and set aside the order of the learned single Judge. The Contempt Case is dismissed. However, in the facts and circumstances of the case, the appellants are allowed three months further time from the date of receipt of a copy of this order to comply with the directions issued in the Writ petition.