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2004 DIGILAW 18 (ORI)

Sk. Ansar Alli v. State of Orissa

2004-01-13

A.K.PATNAIK, M.PAPANNA

body2004
JUDGMENT A. K. PATNAIK, J. — The petitioners were the owners of the land measuring Ac. 0.012 decimals in Plot No. 301, Khata No. 151, Mouza-Jagannathpur, Tahsil Mahanga in the district of Cuttack and they had constructed a residential house on the said land. Land Acquisition Case No. 17 of 1997 ws initiated under the Land Acquisition Act, 1894 (for short, “the Act”) for acquisition of the said land. The petitioners submitted their objection to the acquisition of the said land stating that they have constructed their residential house by incurring huge expenses, but the authorities did not pay any heed to the said objection. Thereaf¬ter notification under Sections 4 and 17 of the Act was issued on 4.5.1999 stating that their land was urgently needed for con¬struction of approach road to the high level bridge over the river Badagenguti and that the provisions of Section 5-A of the Act will not apply to the said land. Aggrieved, the petitioner filed writ petition O.J.C. No. 11756 of 2000 before this Court with a prayer to quash the said notification dated 4.5.1999 for acquisition of the said land. The Court entertained the writ petition and passed interim orders on 22.11.2000 in Misc. Case No. 11935 of 2000 directing that the petitioners shall not be dispossessed from the disputed land, but after hearing the par¬ties at length dismissed the writ petition and vacated the said interim order by judgment dated 12.12.2003. 2. In Review Petition No. 149 of 2003, the petitioners have prayed for review of the said judgment dated 12.12.2003 in O.J.C. No. 11756 of 2000. In Misc. Case No. 143 of 2003, the petitioners have prayed for stay of further proceeding pursuant to L.A. Case No. 17 of 1997 on the file of the Land Acquisition Officer, Cuttack and for appropriate orders restraining the opposite party Nos. 1 to 3 from dispossessing the petitioners from the land in question till final disposal of the review petition. In Misc. Case No. 2 of 2004, the petitioners have stated that the houses on the land sought to be acquired have been demolished on 29th and 30th of December, 2003 and have prayed that the Collector, Cuttack and the State Government be directed to re-construct the petitioner’s houses and pay adequate compensation to the peti¬tioners. 3. In Misc. Case No. 2 of 2004, the petitioners have stated that the houses on the land sought to be acquired have been demolished on 29th and 30th of December, 2003 and have prayed that the Collector, Cuttack and the State Government be directed to re-construct the petitioner’s houses and pay adequate compensation to the peti¬tioners. 3. It is stated in the review petition that the counsel for the petitioners failed to urge and argue before the Court at the hearing of the writ petition that there was non-application of mind by the State Government to the questions (i) that the peti¬tioners are poor daily wage earners; (ii) that the house proper¬ty is their only existing house; (iii) that the petitioners belong to the minority community; (iv) that the adjacent lands are vacant; and (v) that the approach could as well be construct¬ed over such adjacent vacant land and demolition of the house of the petitioners was not necessary. It is also stated in the review petition that the counsel for the petitioners failed to urge and argue before the Court that there was no relevant mate¬rial before the State Government for its subjective satisfaction for invoking the powers under Section 17 (4) of the Act dispens¬ing with the provisions of Section 5-A of the Act. 4. Mr. Bijan Ray, learned counsel appearing for the review petitioners submitted that in Om Prakash and another v. State of U.P. and others, AIR 1998 SC 2504 , the Supreme Court found that the notification under Section 4 read with Section 17(4) of the Act was published on 30th of March, 1991 whereas the declaration under Section 6 of the Act was made on 7th of January, 1992 and the Supreme Court held that the fact that the declaration under Section 6 of the Act was issued nine months after the notifica¬tion under Section 4 read with Section 17(4) was issued falsi¬fies the claim of urgency of the acquisition of the land by the Government. Mr. Ray further submitted that in Union of India and others v. Praveen Gupta and others, AIR 1997 SC 170 , the Supreme Court has further held that the decision regarding urgency is to be taken on subjective satisfaction of the appropriate Government on the basis of material available on record. Mr. Mr. Ray further submitted that in Union of India and others v. Praveen Gupta and others, AIR 1997 SC 170 , the Supreme Court has further held that the decision regarding urgency is to be taken on subjective satisfaction of the appropriate Government on the basis of material available on record. Mr. Ray submitted that these two decisions of the Supreme Court though relevant to the facts of this case were not placed before the Court when it heard the writ petition and as a result, the Court has come to an erroneous conclusion in the judgment dated 12.12.2003 in O.J.C. No. 11756 of 2000 that the notification of the State Government invoking the urgency clause and dispensing with the requirements of Section 5-A of the Act was valid. 5. With great respect, we are unable to accept the submis¬sion of Mr. Ray. A review is not available against a judgment on the ground that it is erroneous, but it is only available where there is an error apparent on the face of the record. In Thungab¬hadra Industries Ltd. v. The Government of Andhra Pradesh repre¬sented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372 , the Supreme Court held : “.......Similarly, even if the statement was wrong, it would not follow that it was an “error apparent on the face of the record” for there is a distinction which is real, though it might not always be capable of exposition,between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in dis¬guise whereby an erroneous decision is reheard nd corrected, but lies only for patent error. We do not consider that this furnish¬es a suitable occasion for dealing with this difference exhaus¬tively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions enter¬tained about it, a clear case of error apparent on the face of the record would be made out.....” The aforesaid law with regard to the scope of review has been reiterated by the Supreme Court in Delhi Administration v. Gurdip Singh Uban and others, (2000) 7 SCC 296 . 6. 6. In this case, the ground taken by the review petitioners is that the counsel for the petitioners while arguing the writ petition before the Court did not urge some points and did not bring to the notice of the Court the two decisions of the Supreme Court in Om Prakash and another v. State of U.P. and others and Union of India and others v. Praveen Gupta and others (supra). We find on a reading of the said two decisions of the Supreme Court that they were rendered in the facts of those cases and the Court will have to hear the parties at length to find out whether the notifications under Sections 4 and 17 of the Act issued in the present case are valid or invalid considering the facts of the present case and the law laid down in the said two decisions of the Supreme Court. All this would mean a rehearing of the writ petition and correction of the erroneous conclusions in the judgment dated 12.12.2003 in O.J.C. No. 11756 of 2000, if any. This, is thus not a case of any error apparent on the face of record so as to call for review by this Court. To grant review in this case on the ground that some relevant points were not urged and some decisions were not placed before the Court to permit rehearing of the writ petition on merits, and to grant review on the ground that the judgment is erroneous is to permit an appeal in the guise of a review. 7. For the aforesaid reasons, we are not inclined to enter¬tain this review petition and we dismiss the review petition and the two misc. cases. M. PAPANNA, J. I agree. Review Petition dismissed.