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2007 DIGILAW 171 (DEL)

S. N. PREMI v. ESTATE OFFICER

2007-01-25

KAILASH GAMBHIR, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) BY filing Review Petition No. 13/2007 under Order 47 Rule 1 of CPC, the appellant/applicant seeks review of the Order dated 16. 11. 2006 passed by a division Bench of this Court in LPA No. 913/2004 this Petition for review is barred by time and the applicant has filed CM no. 573/2007 for condonation of 26 days" delay in filing the Review Petition. Still another CM being CM No. 572/2007 has been filed by the appellant/applicant for grant of stay of the proceedings and has prayed for direction to the respondents to maintain status quo in regard to the demised property. CM No. 574/2007 is an application praying for exemption of dim annexures filed along with the application. The application is allowed subject to just exceptions. The CM stands disposed of. CM No. 573/2007 is an application under Section 5 of the Limitation Act praying for condonation of 26 days" delay in filing the Review Petition. The application is supported by an affidavit and it is stated that some time was taken by the appellant/applicant to consult the lawyer and some delay was caused in the office of the counsel resulting in a short delay in filing the Review petition. The Application which is supported by an affidavit, and particularly keeping in view the fact that there is only 26 days" delay in filing the Review petition, we condone the delay and proceed to deal the Review Petition on its merits. Consequently, CM No. 573/2007 is allowed. ( 2 ) AS already noticed, the appellant/applicant has filed this Review petition No. 13/2007 seeking review of the Order dated 16. 11. 2006. It is the case of the applicant in this Petition that the land in question is a property bearing No. CB-133 (old No. CB-50), Old Village Abadi, Village Naraina, Ring road, New Delhi, measuring about 650 yds. Even though a notification under section 4 of the Land Acquisition Act was issued on 24. 10. 1961 culminating in the award dated 9. 1. 1976, possession of the land was not taken over by the Land acquisition Collector (LAC) nor handed over to the Army Authorities for whose benefit the land was acquired. The applicant continued in possession of the land. 10. 1961 culminating in the award dated 9. 1. 1976, possession of the land was not taken over by the Land acquisition Collector (LAC) nor handed over to the Army Authorities for whose benefit the land was acquired. The applicant continued in possession of the land. Another person, namely, Shri Karan Singh Tanwar also had possession of property bearing No. CB-131 (new) in the same place and had filed a Suit bearing no. 643/1985 claiming the relief of permanent injunction. A decree for injunction was passed on 16. 1. 1998. The proceedings against him had also been taken under the Public Premises (Eviction of Unauthorized Occupants) Act. 1971 by the Estate Officer, Delhi Cantonment and an order of eviction was passed against him. An appeal against the same was dismissed, whereafter Shri Karan singh Tanwar filed a Writ Petition bearing No. WP (C) 6142/2004 before this court which was also dismissed by the learned Single Judge of this Court vide order dated 9. 7. 2004, against which that person filed an appeal and the said appeal was pending and an interim order was granted in favour of the appellant. It is contended that similarly situated person's appeal being LPA No. 676/2004 was admitted and continues to be pending before this Court and he enjoys the benefit of interim Order and as such, the present appeal also could not have been dismissed as they were being heard together for all this time and would amount to discrimination if the Order dated 16. 11. 2006 is not reviewed. It is also the contention of the applicant that the Writ Petition was dismissed solely on the ground that the petitioner had earlier filed a Writ Petition bearing no. 3709/2002 which was dismissed on the ground that the petitioner therein was not in possession of the land. In the subsequent Writ Petition, the contentions raised before the Court related to proceedings before the Estate Officer and order passed by the learned Additional District Judge, Delhi dated 20. 9. 2004 dismissing the appeal in relation to said proceedings. ( 3 ) AS is evident from the above narrated facts, the applicant prayed for a rehearing of the matter by filing the present Review Petition. The Division bench had dismissed the Letters Patent Appeal (LPA) preferred by the appellant vide its Order dated 16. 11. 2006. 9. 2004 dismissing the appeal in relation to said proceedings. ( 3 ) AS is evident from the above narrated facts, the applicant prayed for a rehearing of the matter by filing the present Review Petition. The Division bench had dismissed the Letters Patent Appeal (LPA) preferred by the appellant vide its Order dated 16. 11. 2006. The relevant part of the Order reads as under:- "we find no substance in the arguments of the counsel for the appellants as the issue with regard to the possession which was raised in the writ petitions, which were earlier filed mentioned above in 2002 and were dismissed with cost by the Division Bench, remains the same and the order passed by the estate Officer and pursuant to thereafter in appeal cannot be reopened. There is no infirmity in the order passed by the learned Single Judge. Therefore, there is no merit in these appeals and the same are dismissed. " ( 4 ) IT is incorrect even to argue that the LPA was dismissed only or on the sole ground of the appellant not being in possession of the suit land. This was certainly a material fact and ground for dismissal of the appeal. In fact, the judgment dated 23. 9. 2004 passed by the learned Single Judge itself was sustained by the Division Bench for its detailed reasons. Besides that, the Court had rightly observed that once the question of possession was answered by a Division bench in the earlier proceedings, the same was binding upon the petitioner. The said judgment of the Division Bench had become final between the parties and a finding of fact which had attained finality could not be got altered by the applicant in a collateral or ancillary proceeding under the Public Premises (Eviction of Unauthorized Occupants) Act. 1971. In the present application, the applicant/appellant cannot now be permitted to re-agitate the issues which were duly considered by the Letters Patent Bench and wherein it also followed the findings recorded by a Division Bench of this Court in Civil Writ Nos. 3777/2002, 3776/2002, 3778/2002 and 3779/2002. At this stage, it will be useful to refer to a Division Bench Judgment of this Court in the case of Anil Kumar jain and Anr. v. Union of India and Ors. 3777/2002, 3776/2002, 3778/2002 and 3779/2002. At this stage, it will be useful to refer to a Division Bench Judgment of this Court in the case of Anil Kumar jain and Anr. v. Union of India and Ors. [122 (2005) Delhi Law Times 431 (DB)], where the Court after discussing the law relating to review, in some detail, made the following observations: "5. Accepted norms of fair practice at the Bar would require that filing of application in the present manner may be avoided unless the facts and circumstances of the case compels the litigant to take recourse to such procedure. Exception to the general practice should be carved out in exceptional circumstances, that too in accordance with law otherwise it is likely to damage the fine fabric of faith in judicial administration. While emphasising the need for adherence to this salutary rule in the case of Tamil nadu Electricity Board and Anr. Vs. N. Raju Reddiar and Anr. , JT 1997 (1) SC 486, the Supreme Court held as under :-"once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the advocate-on-record. This practice of changing the advocates and filing repeated petitions should be deprecated with heavy hand for purity of administration of law and salutary and healthy practice. "6. In the present application the applicant controverted and has stated the facts which were never mentioned even in the original writ petition. In the entire writ petition it was nowhere stated by the petitioner that there are eucalyptus trees on the land in question. In the award annexed to the writ petition it has been stated "mahavir Prasad (present petitioners are sons of mahavir Prasad) did not produce any proof in support of the price of the land claimed by him". No reference has been made to eucalyptus trees even in the award. Again in the writ petition which was filed in the year 1990 which was amended in the year 2002 again the petitioner had made no averment that they were in possession of the land in question. The main plea taken by the petitioner was that as there being construction on the land in question, it could not be acquired. The petitioner, of course had made some vague averments in that behalf in the rejoinder filed to the counter affidavit of respondent no. 4. The main plea taken by the petitioner was that as there being construction on the land in question, it could not be acquired. The petitioner, of course had made some vague averments in that behalf in the rejoinder filed to the counter affidavit of respondent no. 4. Now, the petitioner terms the possession report of the respondent as a fabricated document and the notification issued under Section 22 (1) of the Delhi development Act, 1957 which was published, but again as a end-product of manipulated document. 7. It is interesting to note that in regard to possession itself, the petitioner in the application under consideration has stated "that in the face of the objection raised in the counter that disputed questions (regarding taking of possession of land) arose which cannot be decided in summary proceedings adopted in writ petition, merits of the question of existence of emergency and taking of possession of land should have been handled with scrupulous care. " firstly, in its judgment the Division Bench had categorically considered the question of possession on the basis of the record before the Court and the challenge to the veracity of the possession report was not proper and there was no reason to disbelieve the report more particularly when, that the award was made immediately thereafter on 29th March, 1990. The award also recorded the factum of taking possession of the land on 22nd March, 1990 as stated. We fail to understand how can the petitioner re-agitate this issue by filing the present application. In any case if we take note of the averments of the petitioner as above recorded the writ petition in any case would be liable to be dismissed. The Court recorded its findings in regard to all the pleas which were raised by the petitioners in their writ petition and a considered judgment was passed. It is unfortunate that the applicant has chosen to file the application for review primarily with the object of re-agitating the contentions which were duly considered and rejected by the Court. The scope of the review jurisdiction of the Court is a very limited one. It is unfortunate that the applicant has chosen to file the application for review primarily with the object of re-agitating the contentions which were duly considered and rejected by the Court. The scope of the review jurisdiction of the Court is a very limited one. The applicant cannot pray for review of a judgment merely because some of the judgments have not been noticed by the Court particularly when the judgments were not even referred to before the Court at that stage and in any case the applicant will be in no position to say so. Furthermore, the jurisdiction of review does not extend for substituting a view taken by the Court on merits or otherwise of the contentions raised before the court on the facts and circumstances of a case. The applicant is essentially praying before the Court that the view taken by the Court on different facets of the case - legal and factual - should be substituted primarily because another view was possible. The power to review normally is the creation of a statute. However, in exercise of powers by the High Court under Article 226 of the Constitution of India, the Court can take recourse to the power of review by necessary implication. Such power of review has a limited scope and is normally used for the correction of a mistake but not to substitute a view in law. Such mistake or error contemplated under this rule must be such which is apparent on the face of the record and not a correction of an error which requires long drawn process of reasoning. The limitation on the powers of the Court under order 47 Rule 1 are similar and applicable to the jurisdiction available to the high Court under Article 226 of the Constitution of India. With caution the court has to ensure that such power is not exercised like entertaining an 'appeal in disguise'. Where conceivably there may be two opinions and an error has to be established by a long drawn process it is not an error apparent on the face of the record. Reference in this regard can be made to the judgment in the case of R. S. Rajanna Vs. Sri Basavaiah and Ors. , AIR 1997 Karnataka 245 Para 11 and in the case of Prem Dutt Vs. Punjab State, 1998 Vol. 1 PLR 444. 8. Reference in this regard can be made to the judgment in the case of R. S. Rajanna Vs. Sri Basavaiah and Ors. , AIR 1997 Karnataka 245 Para 11 and in the case of Prem Dutt Vs. Punjab State, 1998 Vol. 1 PLR 444. 8. In the case of Parsion Devi and Ors. Vs. Sumitri Devi and Ors. , JT 1997 vol. 8 SC 480 the Supreme Court has held as under :-"it is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 9. An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record. 10. This principle was reiterated by the Supreme Court in the case of Lily thomas, etc. etc. vs. Union of India and Ors. , JT 2000 Vol. 5 SCC 617 further with a clear caution that in exercise of power of review the Court may correct the mistake but not to substitute the view. The mere possibility of two views on the subject, is not a ground for review. 11. It is obligatory on an applicant to establish on record that there was an error or a mistake apparent on the face of the record or there was such other material available with the applicant which if not taken into consideration would cause miscarriage of justice. 12. Attempt of the applicant by filing the present application is only to re-agitate the issues. 12. Attempt of the applicant by filing the present application is only to re-agitate the issues. No error much less an error apparent on the face of the record has been pointed out by the applicant. From the record and even from the averments made in this application it is clear that the possession of the land has been taken by the appropriate Government and once the possession is taken, judgment is pronounced, it is a settled principle of law that the land vests in the Government free of all encumbrances as contemplated under Section 16 of the act. The applicant specifically even admits in this application that there was 'unexplainable delay and laches in taking possession of the land. . . . . . . . ' which clearly indicate that the petitioner has been dispossessed of the land in question for which the award has also been pronounced. 13. In the application under consideration after referring to the grounds taken up in the Writ Petition, the facts and the prayer therein, the applicant has raised issues in regard to purpose of acquisition, interim order of the court dated 29th April, 1990, possession of the applicant and non-application of mind by the Competent Authority in issuing the notification under the provisions of the Act. The intention of the Petitioner is primarily to re-agitate all these issues which were considered by the Court and a view taken in its judgment dated 30th May, 2004 14. It is a settled position of law that once the possession is taken and kabza karvai or panchnama for taking possession is prepared and it is also shown that the possession was delivered to the beneficiary, the land would vest in the government free of encumbrances and even subsequent possession would tantamount to illegal or unlawful possession. In given facts and circumstances, taking of symbolic possession would be enough. Reference can be made to the judgment of the Supreme Court in the case of Balmokand Khatri Educational and Industrial trust, Amritsar Vs. State of Punjab and Ors. , 1996 (4) SCC 212 and Nagin Chand godha Vs. Union of India and Ors. 2003 (70) DRJ 721 . In given facts and circumstances, taking of symbolic possession would be enough. Reference can be made to the judgment of the Supreme Court in the case of Balmokand Khatri Educational and Industrial trust, Amritsar Vs. State of Punjab and Ors. , 1996 (4) SCC 212 and Nagin Chand godha Vs. Union of India and Ors. 2003 (70) DRJ 721 . The Courts have repeatedly held that once the land owner has been divested of his land in accordance with the provisions of the Act and an Award is passed he would hardly have any right to question the validity or legality of the acquisition proceedings. " ( 5 ) IN the case of H. K. Kapoor v. Union of India and Ors. [122 (2005) Delhi law Times 455 (DB)], a Division Bench of this Court held that an attempt on the part of the petitioner or applicant to have the matter reheard on the basis of a review application would not be permissible. A party cannot be permitted to agitate or re-agitate the issues by filing the review application. Such applications would even be beyond the purview and scope of Order 47 Rule 1 of the CPC. ( 6 ) IN the present case all that is contended is that another Letters patent Appeal with which the present case was listed from time to time, is still pending and the appellant in those cases are enjoying the interim protection, as such this LPA should not have been dismissed by the Court. This argument is certainly without any merit and, in fact, is based upon misconception of law. Firstly, there is a controversy whether the facts of the other cases are similar to the present case or not. Be that as it may, whenever a case is decided by the Court by an appropriate Order, the party can hardly be heard to say that since other appeals are pending, the Order in that appeal should be recalled and all appeals should be decided together, more so, when such Order ex-facie does not suffer from any infirmity of law or any other factual error apparent on the face of the record. The Order is consistent with the earlier Judgment of the division Bench which has attained finality. Mere pendency of the appeal would not justify recalling of an Order finally disposing of the appeal. The Order is consistent with the earlier Judgment of the division Bench which has attained finality. Mere pendency of the appeal would not justify recalling of an Order finally disposing of the appeal. ( 7 ) THE present Petition for review is without merit and is liable to be rejected. Consequently, the said application CM No. 572/2007 and RP No. 13/2007 are dismissed, while leaving the parties to bear their own costs.