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2008 DIGILAW 298 (GAU)

Union of India v. Zokailiana

2008-04-25

B.D.AGARWAL

body2008
JUDGMENT B.D. Agarwal, J. 1. This petition under Order 47 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure has been filed by the Union of India seeking review of judgment and order dated 7.11.2007 passed by a learned Single Judge of this Court (since demitted the office) in W.P. (C) No. 44 of 2007. 2. I have heard Mr. R.V. Sinha, learned Sr. CGC for the review Petitioner and Mr. M. Zothankhuma, learned Counsel for the private Respondent Nos. 1 to 6 as well as Mrs. Helen Dawngliani, learned Government Advocate for the State Respondents. I have also perused the order under review. 3. Before giving any opinion as to whether it is a fit case for review of the order dated 7.11.2007 it would be apposite to recapitulate necessary facts giving rise to the filing of the review petition. 4. The Army is occupying an area of 7.23 bighas of land belonging to the private Respondents since the year 1966. The Army authority was paying a nominal rent to the land-owners. Unsatisfied with the rent being paid to the land-owners the private Respondents filed two writ petitions before this Court praying for enhancement of rent and release of the land from the possession of the Army. The writ petitions were numbered as 102 of 2000 and 110 of 2000. Both the writ petitions were disposed of by a common judgment on 2.5.2002 giving certain directions to the Land Acquisition Collector-cum-Deputy Commissioner, Aizawl to re-assess the rent and grant total package of compensation. This order was challenged by the State of Mizoram by way of filing two appeals. The appeals were numbered as WA Nos. 2 and 3 of 2004 respectively. The appeals were also disposed of by a common judgment on 20.9.2005 upholding the judgment of the learned Single Judge with certain clarifications in the following words: We may, however, clarify that the order/orders determining the compensation which may be passed by the Land Acquisition Collector, in terms of the directions contained of Clause (5) of the impugned judgment and Order dated 2.5.2002, aforementioned, shall be payable to the Petitioners Respondents by the State Respondent-Authorities concerned, though the State Respondents-Authorities concerned shall remain at liberty to obtain from the Army Authorities concerned such amount/ s of money, which may be necessary for making payment to the Petitioners. 5. 5. After the disposal of the appeals Collector prepared a composite award on 29.6.2006. The award was assailed by the Union of India by filing writ petition No. 44 of 2007, inter alia, on the ground that the award was passed without any notice to the Central Government or its Defence Estate Officer. The award was also challenged on the ground of inaccuracy in the calculation of the compensation and the procedure adopted by the Collector in calculating the award. This writ petition came to be disposed of vide impugned order dated 7.11.2007. 6. Mr. R.V. Sinha, learned Sr. CGC, appearing for the review Petitioner, submitted that the learned Single Judge failed to take into account the grounds taken in the writ petition and the impugned judgment has been passed solely on the basis of the submissions made by the learned Counsel appearing for the private and State Respondents. This submission was made on the basis of the order dated 1.11.2007 wherein an adjournment was sought for by the learned CGC but the adjournment prayer was rejected and arguments were concluded. Learned Sr. CGC submitted that the learned Single Judge has apparently held that the Union of India had no locus-standi to file the writ petition inasmuch as the compensation is to be paid by the State Government to the land owners. According to learned Sr. CGC since the money has to be reimbursed by the Union of India it was a necessary party to be heard by the Collector while preparing the award and as such this Court ought not to have brushed aside its locus-standi to assail the award which was prepared dehors to the law and principles of natural justice. 7. With regard to the powers of this Court to review it's own order, the learned Sr. CGC relied upon two judgments of Hon'ble Supreme Court rendered in the case of In Re: Board of Control for Cricket in India; reported in (2005) 4 SCC 741 and Food Corporation of India and Anr. v. Seil Ltd. and Ors. reported in (2008) 3 SCC 440. On the basis of the aforesaid authorities it was contended that the High Court being a Court of record possesses plenary power to recall and review its judgment to undo miscarriage of justice. 8. v. Seil Ltd. and Ors. reported in (2008) 3 SCC 440. On the basis of the aforesaid authorities it was contended that the High Court being a Court of record possesses plenary power to recall and review its judgment to undo miscarriage of justice. 8. Per contra Sri Zothankhuma, learned Counsel for the private Respondents submitted that the instant review application has been filed in the guise of appeal, which cannot be permitted under law. According to the learned Counsel the impugned judgment is a speaking and reasoned one which cannot be reviewed under the garb of not adverting to all the grounds taken in the writ petition. The learned Counsel further contended that the powers of review can be exercised on limited grounds like recovery of new evidence which were not in the knowledge of the writ Petitioner or on account of some mistake and error apparent in the judgment on the face of record. The learned Counsel also cited the judgment of Hon'ble Supreme Court rendered in the case of Parsian Devi and Ors. v. Sumitri Devi and Ors. reported in (1997) 8 SCC 715 as well as judgment rendered in the case of Haridas Das v. Usha Rani Banik (Smt.) and Ors. reported in (2006) 4 SCC 78 . 9. Mrs. Helen Dawngliani, learned Government Advocate had also objected the prayer for review of the order dated 7.11.2007 adopting the arguments advanced by the learned Counsel for the private Respondents. 10. Apparently, Article 226 of the Constitution of India has not made any provision to review a judgment or order by the same Court unlike Article 137 wherein the Supreme Court has been vested with the power to review its own judgments. However, it is the settled principle of law that the power of review flows from the authority of passing a judicial order itself unless expressly barred by any law. It is also necessary to mention here that no doubt the Gauhati High Court has framed a rule for filing applications for review under Chapter X of the Gauhati High Court Rules. Provisions made in Chapter X basically relates to the method of filing review applications and contents thereof. However, in Rule 6 there is a reference of Order 47 Rule 5 Code of Civil Procedure, which relates to hearing of the review applications by the same judge, as far as possible. Provisions made in Chapter X basically relates to the method of filing review applications and contents thereof. However, in Rule 6 there is a reference of Order 47 Rule 5 Code of Civil Procedure, which relates to hearing of the review applications by the same judge, as far as possible. Be that as it may, the fact remains that neither Chapter X has prescribed grounds for seeking review of an order nor has it precluded from taking into consideration the preconditions laid down under Order 47 Rule 1 of the Code of Civil Procedure for deciding review applications. Besides this, judicial authorities are consistent with the principle that the provisions of Code of Civil Procedure will also apply to the writ jurisdiction of High Courts as well as for entertaining review applications so far the provisions of Code of Civil Procedure are not inconsistent with any rule. 11. In the case of Food Corporation of India (supra) the Apex Court has clarified that a writ court can exercise its power of review under Article 226 of the Constitution of India itself and while exercising such jurisdiction it not only acts as a Court of law but also as a court of equity. Despite conferring jurisdiction upon the High Courts to review its judgments the Hon'ble Supreme Court has put a rider that the applicant must make out a case of clear error or omission on the part of the court. 12. The authority of BCCI has also made it clear that pre conditions laid down under Order 47 Code of Civil Procedure have to be fulfilled for maintaining a review application. 13. Similarly, in the case of Parsion Devi (supra) the guidelines for reviewing an order have been summarized in the following language: 9. Under Order 47 Rule 1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake on 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 Rule1 Code of Civil Procedure. 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 Rule1 Code of Civil Procedure. In exercise of the jurisdiction under Order 47 Rule 1Code of Civil Procedure 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". (underlining is mine). 14. In the case of Haridas Das (supra) the Apex Court also held that: It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court. 15. In yet another judgment rendered by the Apex Court in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and Ors. reported in (1979) 4 SCC 389 the rule of circumspection in admitting review applications, even though arising out of orders under writ jurisdiction, has been reiterated. In this authority the Apex Court has also laid down the fine distinction between the powers conferred upon appellate and review authorities. The relevant observations of the Hon'ble Supreme Court can be fruitfully looked-into, which are reproduced below: 3. In this authority the Apex Court has also laid down the fine distinction between the powers conferred upon appellate and review authorities. The relevant observations of the Hon'ble Supreme Court can be fruitfully looked-into, which are reproduced below: 3. The judicial Commissioner gave two reasons for reviewing his predecessor's order. The first was that his predecessor has overlooked two important documents Esx. A/1 and A/3 which showed that the Respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the Appellant to question, in a single writ petition, settlement made in favour of different Respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definite limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court. 16. Coming to the case at hand I find that the impugned judgment is being assailed on merit sans the grounds of review enumerated in Order 47 Rule 1 Code of Civil Procedure. 16. Coming to the case at hand I find that the impugned judgment is being assailed on merit sans the grounds of review enumerated in Order 47 Rule 1 Code of Civil Procedure. Without burdening this order I would like to quote few lines from the grounds raised in the review application which will give sufficient idea that this petition is virtually an appeal against the impugned order: (i) For that this Hon'ble Court erroneously proceeded to dismiss the writ petition on behalf of the Petitioner holding in para 13 thereof that Petitioner was not directly affected from the impugned award and that the State Government had not challenged the award. It is submitted that the findings recorded in para 13 of the order/Judgment. Sought to be reviewed, by this Hon'ble Court is not only contradictory and erroneous from its own findings in the judgment but there are other apparent errors on the face of record as would be evident from them. **** ********* (ii) For that the Hon'ble Court did not consider the fact that the impugned award was passed without any show cause notice to the Petitioner which is arbitrary and violative of the principle of natural justice. It is trite that no adverse order could be passed against a party without show cause notice and the Respondent No. 8 having failed to follow the settled principle of law, the impugned award has been nullity and could not be enforced. (iii) For that this Hon'ble Court did not consider that the impugned award is without application of mind and does not contain any reasons and/or grounds therefore the award. ******* ******* ****** (iv) For that this Hon'ble Court did not consider that there has been material contradictions and omissions in the impugned award as pointed out in the writ petition. (v) to (xii)***** ***** ****** 17. In view of the observations made in the case of Haridas Das (supra) a review application cannot be filed in the tone and tenor of an appeal. What I notice is that the applicant desires that after allowing the review prayer the writ petition should be heard in extenso on all the grounds that were raised in the writ petition challenging the award of the Collector, which is simply unacceptable to me in review jurisdiction. 18. I also find that the impugned judgment is a speaking one. What I notice is that the applicant desires that after allowing the review prayer the writ petition should be heard in extenso on all the grounds that were raised in the writ petition challenging the award of the Collector, which is simply unacceptable to me in review jurisdiction. 18. I also find that the impugned judgment is a speaking one. In this order the learned Single Judge has adumbrated the directions given in the earlier writ petitions as well as writ appeals. It is true that the learned Single Judge has not dealt with the question of locus-standi of the Union of India to be heard by the Land Acquisition Collector while passing the award of compensation. However, omission in this regard in the impugned order does not lead me to take a view that the learned Single Judge was totally oblivious of the grounds raised in the writ petition. Even for a moment it is presumed that the learned Single Judge decided the writ petition without adverting to the grounds taken in the writ petition that may give rise to a cause of action for filing appeal before an appropriate division bench but not for filing review application. In my considered opinion if the review prayer is allowed it would amount to allowing hearing of the entire writ petition de novo, which will result into passing a new judgment. In my view passing a new judgment would necessarily require substituting the reasoning provided in the order under review and that is not permissible. Rather it would be against the doctrine of judicial discipline as it would amount to up-setting a judgment of coordinate bench. 19. The above apart, the learned Sr. CGC failed to convince me as to how the Union of India could not avail the alternative and efficacious remedy by way of filing writ appeal before an appropriate bench. Having regard to entire aspects of the matter, I hold that it is not a fit case to review the order dated 7.11.2007, assailed in this review petition. Consequently, the present review petition is dismissed. The review Petitioner shall be at liberty to pursue its remedy before appropriate forum, as may be advised.