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2016 DIGILAW 1243 (ORI)

Angul Sukinda Railway Limited v. Priyabrata Panda

2016-12-16

S.N.PRASAD, SANJU PANDA

body2016
JUDGMENT : S.N. PRASAD, J. 1. Both these review petitions have been filed for review of orders dated 05.10.2016 passed in W.P. (C) No. 8034 of 2016 and dated 19.10.2016 passed in W.P. (C) No. 18082 of 2016 in terms of order passed in W.P. (C) No. 8034 of 2016 dated 5.10.2016. 2. The brief fact of the cases in short is that the Government of Orissa has issued notification U/s.4(1) of the Land Acquisition Act, 1894 (herein after referred to as ‘the Act’) seeking acquisition of land for setting up of Angul-Duburi-Sukinda rail project. The petitioners being persons interested, even if entitled to notice U/s.20 of the Act and to participate in the reference in terms of Sub-Section (2) of Section 50 of the Act for determination of the market value U/s.18 of the Act, were not provided with such opportunity and the application filed by the petitioners in this regard before the Civil Judge (Sr. Division), Kamakshyanagar has also not taken into consideration the grievance of the petitioners, challenging the said order before this Court under writ jurisdiction, it has been contended by the petitioners that the reference U/s.18 of the Act has been made and the land in question was required for the purpose of railway lines and the work has been entrusted to the petitioner’s company with the liability to pay the compensation amount in respect of the said project in terms of agreement of Ministry of Railways, as such the petitioner’s company being a necessary party, made application under Order 1, Rule 10 of the Code of Civil Procedure, 1908 for being impleaded as party, but the same was rejected vide order passed in L.A. cases, being aggrieved, the petitioners have approached this Court and this Court, after taking into various aspects of the matter and the legal position, has passed order declining to interfere with the same, however with liberty to the petitioners to avail the right provided in sub-section (2) of Section 50 of the Land Acquisition Act. The petitioners have filed these review petitions for review of the orders by modifying the same with a direction that the petitioner be added as parties to the reference in different Land Acquisition cases pending in the Court of Civil Judge (Sr. Division), Kamakshya Nagar. 3. The petitioners have filed these review petitions for review of the orders by modifying the same with a direction that the petitioner be added as parties to the reference in different Land Acquisition cases pending in the Court of Civil Judge (Sr. Division), Kamakshya Nagar. 3. Learned counsel for the petitioners while arguing, has submitted that this court has not appreciated the judgment rendered by Hon’ble Apex Court in the case of U.P. Awas Evam Vikas Parishad vs. Gyan Devi, reported in AIR 1995 SC 724 in its right perspective. 4. We have heard learned counsels for the parties and gone through the record. Before appreciating the arguments advanced on behalf of learned counsel for the petitioners and the grounds taken for review/modification of the order passed in the writ petitions, we though it proper to have discussion regarding the scope of review under Article 226 of the Constitution of India. The power to review is the creation of a statue. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, then certainly this can be said to be ground for review, but the mere fact that different views on the same subject are possible, cannot be said to be a ground to review the earlier judgment passed by a Court of Law. This Court has considered the judgment of Hon’ble Apex Court regarding width and scope of power of review as has been rendered in the case of Moran Mar Basselios Catholicos and Another vs. Most Rev. Mar Poulose Athanasius and Others, reported in AIR 1954 SC 526 particularly at paragraph 32 which reads as under. “32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. Mar Poulose Athanasius and Others, reported in AIR 1954 SC 526 particularly at paragraph 32 which reads as under. “32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, Rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason.” In the case of Shivdev Singh vs. State of Punjab, reported in AIR 1963 SC 1909 , in a review petition filed under Order 47, Rule 1 C.P.C., the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court's power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. The judgment rendered by Hon’ble Apex Court in the case of Sow. Chandra Kanta and Another vs. Sheik Habib, reported in AIR 1975 SC 1500 wherein it has been held that “a review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Chandra Kanta and Another vs. Sheik Habib, reported in AIR 1975 SC 1500 wherein it has been held that “a review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.” It is the settled proposition as has been held by Hon’ble Apex Court in the judgment discussed herein above the scope of review which can only be done in case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, mistake or error apparent on the face of the record and for any other sufficient reason and in the light of this legal position the fact of these review petitions need to be appreciated. 4. So far as the ground taken by the learned counsel for the petitioner that the judgment rendered in the case of U.P. Awas Evam Vikas Parishad (supra) the things have not been appreciated, we have gone through the entire judgment and have found that this Court after taking into consideration and having discussed the provision of Section 3(b) which contains the definition of ‘person interested’ which includes all persons claiming an interest in compensation to be made on account of acquisition of land under this Act and persons shall be deemed to be interested in land if he is interested in an easement affecting the land. This court has taken into consideration the provision of Section 18 which entitled a person who has not accepted the award to apply to the Collector to refer the matter to the court both with respect to the quantum of compensation as well as apportionment thereof. This court has taken into consideration the provision of Section 18 which entitled a person who has not accepted the award to apply to the Collector to refer the matter to the court both with respect to the quantum of compensation as well as apportionment thereof. Section 19 has also been taken into consideration which specifies information by which the Collector should send along with the reference, one of the matters which he must specify is mentioned in clause (d) of sub-section (1) thereof, namely, “(d) if the objection to be the amount of the compensation, the ground on which the amount of compensation was determined.” Section 20 has been taken into consideration by this Court which says that the Court shall send notices to (a) the applicant, (b) all persons interested in the objection (c) the Collector and thereupon proceed to dispose of the matter, Section 50 which occurs in “para VIII Miscellaneous” contains a provision which was relevant for the purpose of determining the issue raised in the writ petition and sub-section (2) of Section 50 provides a provision that in any proceeding before the Collector in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation, provided that no such local authority or company shall be entitled to demand a reference U/s.18. 5. This court has also taken into consideration the provision of Section 53 which provides the applicability of the provision of code of Civil Procedure to apply all proceeding before the court under this Act without being inconsistent with anything contained in the Act. 6. This court has also discussed the scope of Order 1, Rule 10 and its applicability under the proceedings U/s.18 of Land Acquisition Act before the Court. 7. 6. This court has also discussed the scope of Order 1, Rule 10 and its applicability under the proceedings U/s.18 of Land Acquisition Act before the Court. 7. This Court after taking into consideration the fact that Section 53 of the Act does not apply the provision of Code of Civil Procedure to all proceedings before the court under this Act and the expression “Court” is defined in clause (d) of section 3 to mean a Principal Civil Court of Original Jurisdiction unless the appropriate Government has appointed a Special Judicial Officer within any specified local units to perform the functions of the Court under this Act and while answering the question as to whether Order 1 Rule 10 of the CPC inconsistence with any of the provisions contained in the Act, this question has been answered on consideration of Sec.18, 30 and 50, after appreciating the provision of Sections 18, 30 and 50 of the L.A. Act, this court has come to conclusion that the proceeding U/s.18 is not an appeal, but at the same time it is not like a Civil Suit, this court has put reliance upon the judgment rendered in the case of Chimanlal Hargovind Das vs. S.L.O. reported in AIR 1988 SC 1652 and thereafter it has been held that the Civil Court cannot take cognizance of the dispute as an Original Court by itself. A person whose case is not been referred under Section 18 and 30, cannot appear before the Court and claim either a share in the compensation or for enhancement of the compensation. If such a thing is permitted, the very purpose of including a proviso relating to limitation in Section 18 would be defeated. The Act provides for a reference being made at the instance of a person who has appeared or participated in the award, proceedings before the Collector under Section 18, but this must be done within the period prescribed. 8. The Act provides for a reference being made at the instance of a person who has appeared or participated in the award, proceedings before the Collector under Section 18, but this must be done within the period prescribed. 8. This court has also taken into consideration the scope of the provision of sub-section 2 of Section 50 which undoubtedly give right not only to appear and lead evidence in support of case but also to cross-examine the witnesses produced by the claimants and as such the right conferred upon the beneficiary under the provision of sub-section (2) of Section 50 is akin to the right given to a person by Order 1 Rule 10 of CPC, the somewhat lesser to its content. 9. This court after discussing these legal aspects and after putting reliance upon the judgment rendered by the Constitution Bench of Hon’ble Apex Court in the case of U.P. Awas and Vikas Parisahd (supra) has refused to interfere with the order, however, with a liberty to the petitioner to avail the right provided under sub-section 2 of Section 50 of the Act. 10. This court has passed the said order on the basis of the ratio laid down by the Constitution Bench of Hon’ble Apex Court at paragraph 25 of the said judgment. 11. Learned counsel representing the petitioner has submitted by placing reliance upon column 6 of the said judgment as quoted therein at para 6 and para 9 of the judgment that in view of the specific conclusion, the petitioner being beneficiary is to be impleaded as a party to the proceeding. But according to our conscious view, the conclusion arrived at by Hon’ble Apex Court by its Constitution Bench Judgment at paragraph 25 is to be read out in its entirety and not in piecemeal manner and we, after going through paragraph 25 in entirety which contains conclusion in tens no of subparagraphs, have found that the Hon’ble Apex Court has made conclusion after taking into consideration the legislative intention of inserting the provision U/s.50(2), otherwise there would be no meaning of inserting a provision U/s.50(2) of the Land Acquisition Act and it is settled that none of the provision incorporated in a statute can be said to be redundant and there is specific meaning in incorporating a statutory provision under the Act. 12. 12. If the contention of the learned counsel for the petitioner would be accepted by allowing the beneficiary to be impleaded as party to the proceeding, in that circumstances there would be no difference in between the principle laid down under Order 1 Rule 10 of CPC read with Section 18 or Section 30 of the Land Acquisition Act. The Legislature, for the obvious reason that the land acquisition Act is a beneficial legislation, has not granted the right to be impleaded as a party to the reference before the competent court for the obvious reason that the beneficiary would frustrate the basic objective of incorporating the Land Acquisition Act which has been incorporated for giving compensation to the displaced persons who have been displaced due to acquisition of their land under the authority of the Act and on each and every case the frivolous litigation would be filed questioning the quantum of compensation, but however, simultaneously the interest of the beneficiary has also been protected by allowing them to adduce their evidence and cross-examine the witnesses and if they will think that the quantification of compensation is exorbitant, they can also make an application before the competent court by filing an appeal, but with the leave of the Court, meaning thereby it is up to the Court to see that the beneficiary would be granted leave questioning the quantification of amount of compensation so that there may not be any unnecessary delay making payment of amount of compensation in lieu of acquisition of land to be paid in favour of the displaced persons and taking into consideration this aspect of the matter the Legislation has provided specific provision as contained in Section 50 (2) of the L.A. Act which has been interpreted by Hon’ble Apex Court by its Constitution Bench in the case of U.P. Awas and Vikas Parisahd (supra). 13. We after taking into consideration all these aspect of the matter have passed the judgment and after hearing learned counsels for the petitioner found no new facts or error apparent on the face of the record or no other sufficient reason, as such, according to our considered view, there is no reason for us to review the judgment passed in W.P. (C) Nos. 8034 of 2016 and 18082 of 2016. Accordingly the review petitions are devoid of merit. In the result the same are dismissed.