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2011 DIGILAW 359 (GAU)

Maya Dolo v. Vijoy Tachang and Ors.

2011-04-21

P.K.MUSAHARY

body2011
1. Heard Mr. N.N. Saikia, learned senior counsel assisted by Mr. N. J, Dutta, learned counsel for the review petitioner, Mrs. M. Bora, learned Government Advocate for respondent Nos. 5 to 12 and Mr. A. Kashyap, learned counsel appearing for respondent Nos. 1 to 4. 2. This application has been filed seeking review of the judgment and order dated 7.4.2010 passed by this court in WHO No.20(AP)/2009 by which the aforesaid writ petition was allowed and the Respondent-Deputy Commissioner, East Kameng District was directed to cancel the land possession certificates issued to the respondent No.7, the present review petitioner within 30 days from the date of receipt of the judgment and order presently sought to be reviewed. The writ petition was contested by the respondent No.7/Review Petitioner by filing affidavit-in-opposition and the judgment and order was passed after hearing the parties concerned. The review has been sought for on the following grounds : (1) The review petitioner realized that certain vital issues were not pointed out by the learned counsel during the course of hearing. There was an omission on the part of the review petitioner to point out that in terms of the rule 7 of Chapter IV of the Gauhati High Court Rules; all matters pertaining to Customary Laws are to be heard ordinarily by a Division Bench. The review petitioner as well as the Respondents/Writ petitioners belong to Nishi Tribe, which is a notified Scheduled Tribe in the State of Arunachal Pradesh and the land in question is a private land inherited by the review petitioner and the question of inheritance of private land is governed by the Customary law of the Nishi Tribe. (2) The writ petition was filed initially by 5(five) writ petitioners and one of them, who was shown as petitioner No. 1 withdrawn from the said writ proceeding and his name was deleted. Pursuant to the withdrawal and deletion of the name of petitioner No.1, no further affidavit supporting the said writ proceeding was sworn by any of the remaining other petitioners. Under such circumstances, the aforesaid WP(C) No.20(AP)/2009 was heard and disposed of vide judgment and order under review without having affirmed by an affidavit, which is in contravention of the Code of Civil Procedure as well as rule 7, Chapter IV of the Gauhati High Court Rules. Under such circumstances, the aforesaid WP(C) No.20(AP)/2009 was heard and disposed of vide judgment and order under review without having affirmed by an affidavit, which is in contravention of the Code of Civil Procedure as well as rule 7, Chapter IV of the Gauhati High Court Rules. (3) While allowing the writ petition and cancelling the land possession certificates granted by the respondent-Deputy Commissioner in favour of the review petitioner, completely ignored the field verification report passed by the Circle Officer concerned and no reason has been recorded for not taking into consideration the Circle Officer's report although a Coordinate Bench relied on the said report at the time of passing the interim orders. (4) The writ petitioners earlier filed WP(C) No.496(AP)/2008 for the same cause of action, which was dismissed and as such, filing of another WP(C) No.20(AP)/2009 was barred under the principle of constructive res judicata and as such, the aforesaid WP(C) No.20 (AP) 2009, which was filed subsequently, ought not to have been allowed. (5) The earlier writ petition being WP(C) No.496(AP)/2008 was filed with a specific prayer for stoppage of construction of tourist lodge on the land donated by the review petitioner whereas in the writ petition, namely, WP(C) No.20 (AP) 2009, the prayer was for quashing the land possession certificates issued in favour of the review petitioner. There was no prayer for stoppage for construction of tourist lodge in the subsequent WP(C) No.20(AP)/2009 but while passing the judgment and order dated 7.4.2010, direction was issued for cancellation of the land possession certificates amounting to stoppage of construction and/or usage of the tourist lodge, which is e beyond the relief sought for in the writ petition. (6) The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ('Forest Dwellers Act') was not implemented at the relevant time and the Government was in the process of Constitution of Various Bodies/Committees contemplated under the said Act forits due implementation. Under such circumstances, the land possession certificates, which were issued by the respondent-Deputy Commissioner in favour of the review petitioner could not be said to be in contravention of the Forest Dwellers Act. Moreover, there is no provision under the said Act which expressly stipulates that the land possession certificates issued prior to implementation of the Act would be in contravention of the provisions under the Forest Dwellers Act and Rules. Moreover, there is no provision under the said Act which expressly stipulates that the land possession certificates issued prior to implementation of the Act would be in contravention of the provisions under the Forest Dwellers Act and Rules. (7) Even assuming but not admitting that the Forest Dwellers Act is applicable in the State of Arunachal Pradesh, the objects and reasons of the said Act presupposes acceptance of all Customary Laws pertaining to the land rights of the indigenous Scheduled Tribes and other Forest Dwellers and as such, the judgment and order under review appears to be totally oblivious of the prevailing Customary Laws of the Scheduled Tribes governing inheritance of land which is against the spirit of the Constitution of India and the rights of the indigenous Scheduled Tribes. No notification was brought on record by the writ petitioners or the respondent-Government that the aforesaid Forest Dwellers Act has been enforce and the court proceeded only on the submissions and contentions made by the writ petitioners, Moreover, the Union of India was not arrayed as necessary party although directions were issued to the Government of India, Department of Forests for taking necessary steps. Saikia, learned senior counsel, in support of his submissions that the matter involving question of Customary Law is to be heard by a Division Bench, has cited the case ofBoken Jopir andAnr. v. Tabur JopirandAnr., 2000 (1) GLT534. In support of his further submissions that the order passed by the Coordinate Bench, should be given due consideration, he has referred me to U.P. Gram Panchayat Adhikari Sangha and Others v. Daya Ram Soraj and Ors., (2007) 2 SCC 138 . 4. Before making any consideration as to the applicability of the aforesaid cited cases, it would be appropriate to discuss about the settled position of law in regard to scope for review of judgment and order passed by this court. Review has been provided under section 114 of the CPC. Application for review of judgment can be made under order XLVII of the CPC. It would be appropriate to reproduce the provision under order XLVII, rule 1 of the Code of Civil Procedure hereinunder: "1. Application for review of judgment -(1) Any person considering himself aggrieved-fa) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. It would be appropriate to reproduce the provision under order XLVII, rule 1 of the Code of Civil Procedure hereinunder: "1. Application for review of judgment -(1) Any person considering himself aggrieved-fa) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a court of small causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review." 5. In the present review petition, there is no pleading to the effect that there was discovery of new and important matter or evidence or some mistake or error apparent on the face of the record. What has been pleaded is that there was an omission in pointing out before the court at the time of hearing to the necessity of placing the matter before a Division Bench as it involves Customary Law of a local Tribe; the court failed to take notice that the Forest Dwellers Act was not in force as no notification was issued by the Government enforcing the same in the State of Arunachal Pradesh and it failed to give due regard to the certain orders of a Coordinate Bench. In my considered view, these are not the requirements/conditions for making an application for review of a judgment rendered by a court nor are they mistake or error apparent on the face of the record. In my considered view, these are not the requirements/conditions for making an application for review of a judgment rendered by a court nor are they mistake or error apparent on the face of the record. If the matter involves question of Customary Law and there was an omission on the part of the review petitioner to bring the same to the notice of the court at the time of hearing, it is to be agitated by filing an appeal before the Division Bench and in that case, the review petitioner would have better scope and get the judgment set aside or modified. It has been held in several cases that the power of review is not an inherent power inasmuch as review is the creation of statute. The scope of review is only for correction of mistake and not to substitute the views taken by the court and the mistake must be one, which is apparent on the face of the record. 6. A mistake apparent on the face of the record cannot mean error which has to be fished cut and searched as declared in Lily Thomas v. Union of India and Ors, AIR 2000 SC 1650 . It has also been held in Mis. Northern India Caterers (India) Ltd. v. Lt Governor of Delhi, (1980) 2 SCC 167 that a party is not entitled to seek a review of a judgment delivered by the court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. The court may reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. 7. If one carefully goes through the contentions and grounds taken in the review petition, he would easily understand that the review petitioner is trying to fish out material to substantiate her claim that allotment of land and isfmanoe of land possession certificates are matters covered by the Customary Law, which were not pleaded in the writ petition. 7. If one carefully goes through the contentions and grounds taken in the review petition, he would easily understand that the review petitioner is trying to fish out material to substantiate her claim that allotment of land and isfmanoe of land possession certificates are matters covered by the Customary Law, which were not pleaded in the writ petition. About the enforcement of the Forest Dwellers Act, the writ Court came to a conclusion that it came in to force with effect from 2nd January, 2007, the date on which the Government of India published the said Act in the Gazette of India (Extraordinary) and under section 1(3) of the aforesaid Forest Dwellers Act, it is provided that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Under section 1(2), it is also provided that it extends to the whole of India except the State of Jammu and Kashmir. The decision in Boken Jopir (supra) relates to dispute over land between the local parties, which was originated in the 'Kebang' involving Customary rights and laws and as such, it was a clear case involving Customary law and it was therefore held that it should be heard by a Division Bench. 8. In the present case, the review petitioner never took the plea of applicability of Customary Law and as such, in my considered view, the case of Boken Jopir (supra) would not at all be applicable to the present case. 9. From the grounds taken in this review petition, it is apparent that the review petitioner, in fact, is seeking rehearing of the entire matter in the garb of seeking review of the judgment, which is not at all permissible under the law. The writ court after taking into consideration the entire facts and circumstances of the case, the materials placed before it and upon hearing the learned counsel for the parties, took some views and arrived at a conclusion. Such views cannot be substituted by other view/views in the review petition. The substitution of a view is possible only in appeal. It is because, in no case, review cannot be treated as an appeal in disguise. It has been clearly held in Lily Thomas case (supra) that mere possibility of second views on the subject is not a ground for review. 10. The substitution of a view is possible only in appeal. It is because, in no case, review cannot be treated as an appeal in disguise. It has been clearly held in Lily Thomas case (supra) that mere possibility of second views on the subject is not a ground for review. 10. Last of all, I may refer to the case of Promoters and Builders Association ofPune v. Pune Municipal Corporation and Ors., (2007) 6 SCC 143 , wherein it has been held that review of an earlier order is not a routine procedure. A review of an earlier order is not permissible unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. It has also been held that a review of judgment in a case is a serious step and reluctant resort to it is proper only where a glaring omission or mistake or like grave error has crept in earlier by judicial fallibility. It is because, as held therein that the stage of review is not a virgin ground but review of an earlier order which is the normal feature of finality. For the said reason, Justice V.R. Krishna Iyer, J, as his Lordship was then, observed in Mis. Northern India Caterers (India) Ltd. case (supra) that "A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result". 11. In the aforesaid premises I am of the firm view that the grounds taken by the review petitioner in her petition are not good grounds for review of the judgment and order and no case could be made out for such review. There is no merit in this review petition and as such, it is liable to be dismissed. It is accordingly dismissed. _____________