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2019 DIGILAW 810 (MAD)

Government of Tamilnadu v. A. B. Somu

2019-03-29

T.S.SIVAGNANAM, V.BHAVANI SUBBAROYAN

body2019
JUDGMENT : T.S. Sivagnanam, J. 1. The Government of Tamil Nadu, represented by the Secretary to Government, Housing and Urban Development Department; the Tamil Nadu Housing Board (TNHB); the Special Deputy Collector (Land Acquisition), Tamil Nadu Housing Board Scheme; and the Member Secretary, Chennai Metropolitan Development Corporation (CMDA) are the petitioners in C.M.P. No. 4320 of 2018. This petition has been filed to recall the order dated 27.03.2013, made in Review Application No. 168 of 2011. The above referred petitioners have also filed W.M.P. No. 3212 of 2018 to condone the delay of 1741 days in filing the review application in Rev. Appl. SR No. 9499 of 2018 against the order dated 27.03.2013 made in W.P. No. 26035 of 2012. Review Application No. 168 of 2011 and W.P. No. 26035 of 2012 were allowed by a common order dated 27.03.2013. 2. We were of the prima facie view that if a decision is taken in C.M.P. No. 4320 of 2018, wherein prayer is made to recall the order in Rev. Appl. No. 168 of 2011, the same would cover the order in W.P. No. 26035 of 2012, as the said writ petition was allowed consequent upon review application being allowed. 3. Mr. K.M. Vijayan, learned Senior Counsel appearing for the respondents/review applicants raised a preliminary objection stating that C.M.P. No. 4320 of 2018, filed to recall the order in the review application, is not maintainable and the affidavit and petition in W.M.P. No. 3212 of 2018 to condone the delay in filing the review application against the order in W.P. No. 26035 of 2012 were served on the learned counsel for the respondents only on 26.03.2019, the respondents should be granted time to file their counter affidavit and make their submissions, as the delay is inordinate, apart from the prayer for reviewing the order in the writ petition being unjustified and not maintainable. Therefore, we are required to decide this question first and bearing this in mind, we commenced hearing. 4. Mr. Vijay Narayanan, learned Advocate General, assisted by Mr. Therefore, we are required to decide this question first and bearing this in mind, we commenced hearing. 4. Mr. Vijay Narayanan, learned Advocate General, assisted by Mr. V. Jayaprakash Narayanan, learned Government Pleader appeared on behalf of the State contending that the petition for recall of the order made in the review application is maintainable and since the writ petition was also allowed by a common order, the prayer for condonation of delay in filing the review application against the order passed in the writ petition should be allowed and the review application also to be heard together with the petition to recall. 5. The following facts would be essential for taking a decision in these petitions. The respondents before us were the erstwhile land owners of lands comprised in Survey Nos. 193/4, 193/8, 193/9, 194/1, 194/2 and 194/3 measuring a total extent of 3.88 acres in Koyambedu village, Egmore Taluk, Chennai, which were acquired for the purpose of the K.K. Nagar Extension Scheme Part II as conceived by the Government to be implemented by the TNHB. The acquisition proceedings culminated by passing of an award in Award No. 2 of 1982. The respondents filed a writ petition in W.P. No. 37037 of 2003 in the year 2003, that is, nearly after 20 years after the award was passed praying for a Writ of Mandamus to direct the petitioners before us to re-convey those lands in favour of the respondents by invoking the power under Section 48B of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”). 6. The learned Single Bench by order dated 20.10.2008, dismissed the writ petition holding that the respondents/writ petitioners were legal heirs of the original owners of the lands which were originally acquired for the purpose of K.K. Nagar Extension Scheme Part II and since the lands were not utilized by the Housing Board, the Government took a policy decision in G.O. Ms. No. 837, Housing, dated 15.06.1976 and handed over the same to the CMDA for locating the Peripheral Outstation Bus Terminus and market complexes. The Court further found that Award No. 2 of 1982 was passed as early as on 31.12.1982 and the lands were handed over to CMDA by the Acquisition Officer and the respondents/writ petitioners have filed the writ petition as if the lands are in possession of the Tamil Nadu Housing Board. The Court further found that Award No. 2 of 1982 was passed as early as on 31.12.1982 and the lands were handed over to CMDA by the Acquisition Officer and the respondents/writ petitioners have filed the writ petition as if the lands are in possession of the Tamil Nadu Housing Board. Further, it was held that the operation of Section 48B of the Act will arise only for the purpose for which it was acquired was not satisfied or if it is not liable for use for any other public purpose. Therefore, it was held that the question of considering the representation of the respondents/writ petitioners will not arise in the light of the counter affidavit dated 17.08.2005 and therefore, no case has been made out for invoking Section 48B of the Act. 7. The respondents/writ petitioners filed W.A. No. 1275 of 2011 challenging the said order. Before the Division Bench, the respondents/appellants contended that the prayer made in the writ petition was only to consider and dispose of the representation made for re-conveyance and instead of disposing of the writ petition with a direction to the petitioners before us to consider and dispose of the representation, the Writ Court had erroneously gone into the merits of the case and dismissed the writ petition. Noting this submission, the Division Bench observed that it would be appropriate to set aside the order passed by the learned Single Bench and direct the petitioners before us to dispose of the representation made by the respondents/appellants. Accordingly, by judgment dated 26.07.2011, the writ appeal stood disposed of by directing the petitioners before us to dispose of the representation dated 10.06.2003 within a time frame. 8. It appears that the respondents had filed Review Application No. 168 of 2011 to review the judgment dated 26.07.2011 in W.A. No. 1275 of 2011. In the meantime, the Government acted on the directions issued in W.A. No. 1275 of 2011 dated 26.07.2011 and vide letter dated 08.12.2011, rejected the request for re-conveyance of the lands on the ground that no land is kept unutilised. The respondents filed W.P. No. 26035 of 2012 challenging the Government Letter dated 08.12.2011. The review application in Rev. Appl. No. 168 of 2011 and the writ petition in W.P. No. 26035 of 2012 were clubbed and heard together by a Division Bench and by judgment/order dated 27.03.2013, Rev. Appl. The respondents filed W.P. No. 26035 of 2012 challenging the Government Letter dated 08.12.2011. The review application in Rev. Appl. No. 168 of 2011 and the writ petition in W.P. No. 26035 of 2012 were clubbed and heard together by a Division Bench and by judgment/order dated 27.03.2013, Rev. Appl. No. 168 of 2011 was allowed with certain directions, consequently, the Division Bench ordered that W.P. No. 26035 of 2012 also stands allowed setting aside the Government Letter dated 08.12.2011. 9. The State filed Special Leave Petitions in S.L.P.(C) Nos. 7555-7556 of 2014 and CMDA filed S.L.P.(C) Nos. 15015-15016 of 2013 against the final judgment and order dated 27.03.2013 in Rev. Appl. No. 168 of 2011 and W.P. No. 26035 of 2012. The Special Leave Petitions filed by CMDA were dismissed by order dated 18.10.2013 and the Special Leave Petitions filed by the Government of Tamil Nadu were dismissed by order dated 15.12.2015. The State as well as CMDA filed review applications before the Hon'ble Supreme Court which were dismissed by order dated 18.02.2014. These facts are not in dispute. 10. The respondents filed Contempt Petition No. 958 of 2014 for willful disobedience of the order in Rev. Appl. No. 168 of 2011. To be noted that no contempt petition has been filed alleging any disobedience of the order in W.P. No. 26035 of 2012, though the same was allowed in the common order dated 27.03.2013. It may not be germane to refer to what transpired before the Division Bench which heard the contempt petition, as orders have been passed by the Division Bench from time to time except to note that the State had proceeded on the basis that the order and direction issued in Rev. Appl. No. 168 of 2011 is to be implemented and what is the procedure to be followed etc. The last of the orders passed in the contempt petition is the order dated 21.11.2017. This order was put to challenge by the Government before the Hon'ble Supreme Court in S.L.P.(C) No. 33299 of 2017 in which, notice was ordered to the respondents and further proceedings in Contempt Petition No. 958 of 2014 was ordered to be deferred. 11. We are informed by the learned Advocate General that the said interim order continues till date. This order was put to challenge by the Government before the Hon'ble Supreme Court in S.L.P.(C) No. 33299 of 2017 in which, notice was ordered to the respondents and further proceedings in Contempt Petition No. 958 of 2014 was ordered to be deferred. 11. We are informed by the learned Advocate General that the said interim order continues till date. In the said Special Leave Petition, the Hon'ble Supreme Court passed an order on 05.03.2019 which reads as follows:- “Learned counsel for the respondent - State submitted that C.M.P. No. 4320 of 2018 was filed on 18th January, 2018 seeking recall of the order dated 27.3.2013 passed by the High Court of Judicature at Madras in Review Application No. 168 of 2011, Writ Petition No. 26035 of 2013 with M.P. Nos. 2 and 3 of 2012. It is submitted that the recall petition is not yet disposed of by the High court. We request the learned Chief Justice of the High Court of Judicature at Madras to place the application for recall before an appropriate Bench and further request the High Court to dispose of the same as early as possible and latest by 31st March, 2019. List this matter on 8th April, 2019.” 12. The Hon'ble Chief Justice, Madras High Court, directed the matter to be placed before the Division Bench dealing with Writ Appeal Roster. The Registry had brought to our notice on 20.03.2019 about the above referred direction issued by the Hon'ble Supreme Court and the order of the Hon'ble Chief Justice and accordingly, we listed the matter on 21.03.2019. On the said date, the learned counsel on either side expressed inconvenience and requested for time on the ground that they do not have the papers in the matter. Accordingly, we directed the learned Government Pleader to serve one set of papers on the learned counsel for the respondents and directed the matter to be listed higher on board on 26.03.2019 and heard the learned Advocate General for the State, the learned Additional Advocate General for CMDA and the learned Senior Counsel for the respondent/writ petitioners. As prefaced above, we first deal with the preliminary objection raised by Mr. K.M. Vijayan, the learned Senior Counsel. 13. As prefaced above, we first deal with the preliminary objection raised by Mr. K.M. Vijayan, the learned Senior Counsel. 13. It is the submission of the learned Senior Counsel that the order and direction issued by the Hon'ble Supreme Court is to decide C.M.P. No. 4320 of 2018 only, and the Court should defer hearing in W.M.P. No. 3212 of 2018, which has been filed by the State to condone the delay in filing the review application. 14. In response, the learned Advocate General submitted that the order is very clear that the Court has to consider and dispose of C.M.P. No. 4320 of 2018 and the order not only mentions the review application, but the writ petition as well and therefore, both the petition to recall and the petition to condone the delay in filing the review application should be considered. 15. The Hon'ble Supreme Court in its order and direction dated 05.03.2019 noted the submission made by the State that they have filed C.M.P. No. 4320 of 2018 on 18.01.2018 seeking to recall the order dated 27.03.2018 in Rev. Appl. No. 168 of 2011, W.P. No. 26035 of 2012 with M.P. Nos. 2 and 3 of 2012. 16. The order which is sought to be recalled and reviewed is a common order dated 27.03.2013. The substantive order is the order in the review application which was allowed to the extent indicated in the order dated 27.03.2013. As a consequence of the same, the writ petition was allowed. The fact that the respondents/writ petitioners have not filed any contempt petition alleging willful disobedience of the order in W.P. No. 26035 of 2012 will clearly show that the respondents/writ petitioners themselves understood that the substantive order which granted relief to them is the order in Rev. Appl. No. 168 of 2011. Therefore, in our considered view, a decision rendered in C.M.P. No. 4320 of 2018 will automatically apply to the prayer sought for by the State to review the order in W.P. No. 26035 of 2012, though the review application is in the SR stage, as there is a delay in filing the review application. 17. Thus, we reject the preliminary objection raised by the learned Senior Counsel for the respondents/writ petitioners and hold that the order to be passed by us in CM.P. No. 4320 of 2018 will cover Rev. Appl. SR No. 9499 of 2018. 18. 17. Thus, we reject the preliminary objection raised by the learned Senior Counsel for the respondents/writ petitioners and hold that the order to be passed by us in CM.P. No. 4320 of 2018 will cover Rev. Appl. SR No. 9499 of 2018. 18. Before we proceed to consider as to whether there was any error apparent on the face of the judgment passed by the Division Bench dated 26.07.2011 in W.A. No. 1275 of 2011, we should decide as to whether a petition to recall the order in Rev. Appl. No. 168 of 2011 is maintainable. 19. Mr. K.M. Vijayan, learned Senior Counsel would submit that the petition to recall the order is essentially a review and therefore, the petition is not maintainable. 20. The learned Advocate General referring to a decision of the Division Bench of this Court in the case of Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam and Ors. vs. M.R. Srinivasan and Ors., 2015-4-L.W. 741 : 2015 (5) CTC 225 submitted that the petition to recall is maintainable. 21. The learned Additional Advocate General referred to a decision of the Hon'ble Supreme court in Birla Institute of Technology vs. The State of Jharkhand & Ors. in Civil Appeal No. 2530 of 2012, dated 07.03.2019 to support his contention that the Hon'ble Supreme Court exercised its suo motu power to recall its earlier order dated 07.01.2019 passed in the said appeal. Therefore, it is submitted that there is inherent power for this Court to recall the order passed in Rev. Appl. No. 168 of 2011, as it suffers from patent errors which are apparent on the face of the order. 22. On the merits of the matter, it is the submission of the learned Advocate General that prayer for re-conveyance is not maintainable and cannot be granted, more particularly, when the Government has transferred the land to CMDA. In support of such contention, reliance was placed on the decisions of the Hon'ble Supreme Court in State of Kerala And Others vs. M. Bhaskaran, Pillai And Another, (1997) 5 SCC 432 ; Tamil Nadu Housing Board vs. Keeravani Ammal And Others, 2008-1-L.W. 15 : (2007) 9 SCC 225; and Commissioner, Corporation of Chennai vs. R. Sivasankara Mehta And Another, 2011-3-L.W. 121 : (2011) 13 SCC 285 . 23. 23. The learned Additional Advocate General while supplementing the submissions of the learned Advocate General submitted that in the present case, the review application filed by the respondents has been allowed and anticipating an objection that may be raised stating that in terms of the Code of Civil Procedure (for short “the Code”), a review application is not maintainable against an order passed in a review application, the petition to recall the order was filed and this Court has powers under Article 226 of the Constitution of India to recall the order and such power can be exercised suo motu as well. 24. Mr. K.M. Vijayan, learned Senior Counsel submitted that petition to recall the order is not maintainable, as the Special Leave Petitions filed by the State and CMDA against the order in Rev. Appl. No. 168 of 2011 dated 27.03.2013 were dismissed by the Hon'ble Supreme Court and the other review applications were also dismissed by the Hon'ble Supreme Court. 25. It is submitted that the decision in Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam (supra) is per incuriam, as the Division Bench did not notice Section 128 of the Code and when the High Court has not Exercised powers to frame Rules under Article 226, the Code would automatically apply and a second review application is not maintainable. Thus, it is the submission that a recall petition cannot be filed as a default petition and cannot be a method to disturb the finality of the earlier orders. Further, by referring to the decision of the Hon'ble Supreme court in P. Bandopadhya & Ors. vs Union of India & Ors., Civil Appeal No. 3149 of 2019, dated 15.03.2019, it is submitted that principles of res judicata would apply to writ proceedings. 26. The learned Senior Counsel would accept the fact that the order passed by the Division Bench dated 27.03.2013 is a composite order and the order passed in the review application is the substantive order. It is the submission that the Special Leave Petitions and the review applications having been dismissed by the Hon'ble Supreme Court, the petition to recall is not maintainable. Further, the orders passed in Contempt Petition No. 958 of 2014 were referred to, to impress upon us that the State agreed to implement the order passed by the Division Bench in Rev. Appl. No. 168 of 2011. Further, the orders passed in Contempt Petition No. 958 of 2014 were referred to, to impress upon us that the State agreed to implement the order passed by the Division Bench in Rev. Appl. No. 168 of 2011. Further, it is submitted that the order passed in the contempt petition dated 21.11.2017 is subject matter of appeal before the Hon'ble Supreme Court and therefore, this Court cannot go into the merits of the matter. 27. The question to be decided at the threshold is whether the petition as framed by the State to recall the order passed in the review application is maintainable. 28. The question which fell for consideration before the Division Bench in Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam (supra), was whether a review application was maintainable, as it was a second application for review and the attempt is to re-litigate and the petition is not maintainable on account of merger. The Court noted that they were not dealing with an application for review filed in a civil dispute, but a case where proceedings under Article 226 of the Constitution of India was invoked. The question which was framed for consideration was answered by the Division Bench on the following terms:- “54. The Court noted that they were not dealing with an application for review filed in a civil dispute, but a case where proceedings under Article 226 of the Constitution of India was invoked. The question which was framed for consideration was answered by the Division Bench on the following terms:- “54. Therefore, we are of the considered view that- (i) in the absence of a specific provision in the High Court Rules regulating the proceedings under Article 226, providing for the application of Order XLVII of CPC to writ proceedings, (ii) in the light of the express language of Order XLVII, Rule 9 of the Code, barring only an application for a review of an order passed on a review, but not barring a second application for review of the original order, (iii) in the absence of a provision in any of the Rules of the High Court, similar to the one in Order XL, Rule 5 of the Supreme Court Rules, 1966, barring a second application for review in the same subject matter, and (iv) in the light of the fact that this Court was constituted by virtue of the Letters Patent of 1862, issued by the Crown in exercise of the power conferred under the Indian High Courts Act, 1861 and the High Court continues to exercise a plenary jurisdiction in terms of the Letters Patent of 1862, later replaced by Amended Letters Patent of 1865, the power of the High Court to entertain a second application for a review of the original order passed by the Division Bench in an appeal arising out of an order passed in a writ petition under Article 226, is not curtailed.” 29. A word of caution was added in paragraph 55 of the judgment observing that the power to entertain a second review petition will be exercised only in extraordinary situations, where a gross injustice, so palpable to a normal person, had been done to the party and it is seen that remedying such an injustice is far more important than the sanctity of rules of procedure. 30. The submission of Mr. K.M. Vijayan, the learned Senior Counsel is that the Division Bench did not notice Section 128 of the Code. The said provision deals with matters for which rules may provide. 30.1. 30. The submission of Mr. K.M. Vijayan, the learned Senior Counsel is that the Division Bench did not notice Section 128 of the Code. The said provision deals with matters for which rules may provide. 30.1. Sub-Section (1) of Section 128 states that such rules shall not be inconsistent with the provisions in the body of the Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts. 30.2. Section 128 falls in Part X of the Code which is the chapter dealing with Rules. 30.3. Section 125 deals with power of other High Courts to make rules. Thus, the rules which are referred to are the rules under the Code which commences from Order I Rule 1. 31. So far as our High Court is concerned, by virtue of Article 225 of the Constitution of India, the High Court has framed rules to regulate proceedings under Article 226 of the Constitution which are found in Appendix III of the Madras High Court Appellate Side Rules. Under the said Rules, the procedure which are required to be followed in a proceedings under Article 226 of the Constitution have been enumerated. 31.1. Rule 8 of the said Rules states that the provisions contained in Rules 9 to 11 of Order IV of the Rules of the High Court, Appellate Side, 1965, relating to institution of proceedings, shall so far as may be applicable, apply to petitions under Article 226 of the Constitution. 31.2. Rules 9 to 11 of Order IV of the Appellate Side Rules deals with presentation of petitions, return of petitions for compliances, affixing stamps, fixing time limits etc. Therefore, it is incorrect to state that they are no rules framed by the High Court to regulate the proceedings under Article 226 of the Constitution of India. 32. Thus, the judgment of the Division Bench in Tamil Nadu Arasu Kooturuvuthurai Paniyalargal Sangam (supra), lays down the correct legal position, insofar as it relates to application for review against an order arising out of a proceedings under Article 226 of the Constitution of India. Thus, instead of filing a petition to recall, had the State filed a second review application to review the order in Rev. Appl. No. 168 of 2011, it would have been maintainable, in the light of the decision of the Division Bench referred above. Thus, instead of filing a petition to recall, had the State filed a second review application to review the order in Rev. Appl. No. 168 of 2011, it would have been maintainable, in the light of the decision of the Division Bench referred above. Therefore, we hold that the petition to recall is maintainable. 33. The next question is as to whether we should exercise the power to recall the order passed in the review application and whether the situation arising in the instant case demands exercise of jurisdiction. To decide this question, we are to necessarily apply the tests which have been laid down for exercise of the review jurisdiction. The settled legal principle is that a review is not an appeal in disguise. A party applying for review of an order has to necessarily establish that there is error apparent on the face of the judgment or order. This error should be so apparent that it should not require any long-drawn reasoning and it should not be a re-hearing of the case. To answer this question, we have carefully perused the order passed in Rev. Appl. No. 168 of 2011 to ascertain as to how the Division Bench was of the view that the review application needs to be entertained and ultimately allowed. Thus, we have to find out as to what was the error which was pointed out by the Division Bench which was apparent on the face of the judgment in W.A. No. 1275 of 2011, dated 26.05.2011. The answer can be gathered from paragraph 14 of the order in Rev. Appl. No. 168 of 2011, dated 27.03.2013, which reads as follows:- “14. Therefore, it is clear that the very prayer in the writ petition is for a Writ of Mandamus regarding re-conveyance. But, when the said writ petition was dismissed by the learned Single Judge, as extracted supra, an argument has been advanced on the part of the learned counsel for the appellants in the writ appeal before us, as it if was only a case of disposing of the representation of the writ petitioners, leading to a direction by us to the authorities concerned to dispose of the representation of the writ petitioners/appellants. As such, undoubtedly, a manifest error has crept into the order of this Court in the writ appeal, which, now explained by the learned counsel for the petitioners/review applicants, as inadvertent. As such, undoubtedly, a manifest error has crept into the order of this Court in the writ appeal, which, now explained by the learned counsel for the petitioners/review applicants, as inadvertent. Therefore, we have no doubt to hold that the above review application filed by the writ petitioners/appellants is very well maintainable.” 34. A reading of the above paragraph will make it evidently clear that the Division Bench opined that the learned counsel for the respondents/appellants before the Writ Court had made a submission that the respondents/writ petitioners wanted a direction to dispose of the representation of the writ petitioners' and undoubtedly, a manifest error has crept into the judgment passed in the writ appeal which was explained to be an inadvertent error. The question is whether this is an error apparent on the face of the judgment in W.A. No. 1275 of 2011 dated 26.07.2011. The answer to this question should be a definite 'no'. What the Division Bench has observed is an alleged inadvertent submission made by the learned counsel for the respondents/appellants before the Division Bench which heard the writ appeal. This can hardly be a ground to state that there is error apparent on the face of the judgment. Consequently, we have no hesitation to hold that the Division Bench could not have entertained a review application on such ground and to say the least, could not have allowed the review application with the directions contained in the order dated 27.03.2013. Thus, for the above reasons, the review application is liable to be rejected. Consequently, the order should be recalled. 35. The second aspect which we have to consider is whether the Division Bench could have issued a direction to re-convey the lands in Survey Nos. 193/4 part and 193/8 part. The Division Bench had rejected the prayer made by the respondents for re-conveyance of the lands in the other survey numbers. There are several hurdles which the respondents have to cross to be entitled to the relief of re-conveyance. 36. 193/4 part and 193/8 part. The Division Bench had rejected the prayer made by the respondents for re-conveyance of the lands in the other survey numbers. There are several hurdles which the respondents have to cross to be entitled to the relief of re-conveyance. 36. The Hon'ble Supreme Court in Keeravani Ammal (supra), held that once a piece of land has been duly acquired under the Act, the land becomes the property of the State, the State can dispose of the property thereafter and convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. Further, it was pointed out that Section 48B introduced into the Act in the State of Tamil Nadu is an exception to the Rule and such a provision has to be strictly construed and strict compliance with its terms insisted upon. 37. In R. Sivasankara Mehta (supra), it was held that the Government which had acquired the lands and taken possession in the year 1949 handed over the same to the Metro Rail Project which was also a public purpose and the erstwhile land owners have no case for re-conveyance under Section 48B of the Act. Further, it was held that Section 48B came to the statute book 1997 by Land Acquisition (Tamil Nadu Amendment) Act, 1996 and received assent of the President on 14.03.1997 and the said provision is not retrospective in operation, as it is a departure from Section 48 of the Act and can apply only prospectively. The above decisions if applied to the facts of the present case, it has to be necessarily held that there is no right vested with the respondents to seek for re-conveyance from the Government, as the lands stood transferred to CMDA. 38. The allegation made by the respondents is that the land has remained as unutilised. The Member Secretary, CMDA filed an additional counter affidavit in Rev. Appl. No. 168 of 2011, dated 23.08.2012 stating about the utilization of the land. For better appreciation, we quote paragraphs 4 and 5 of the counter affidavit as hereunder:- “4. 38. The allegation made by the respondents is that the land has remained as unutilised. The Member Secretary, CMDA filed an additional counter affidavit in Rev. Appl. No. 168 of 2011, dated 23.08.2012 stating about the utilization of the land. For better appreciation, we quote paragraphs 4 and 5 of the counter affidavit as hereunder:- “4. I further submit that it is relevant to mention that the Tamil Nadu Housing Board (TNHB) had acquired large extent of lands measuring an extent of 24.06 acres in Koyambedu Village that falls within the jurisdiction of Egmore-Nungambakkam Taluk and passed Award No. 2/1982 dated 31.12.1982. In this award, the petitioner's lands with a total extent of about 3.88 Acres were acquired along with all other lands for the purpose of creation of new neighborhood scheme known as “KK Nagar Part II Scheme” and the land which was acquired through the award was taken over by the CMDA on 07.01.1998 for the further development of Koyambedu Wholesale Market Complex (KWMC). While developing the KWMC project the parcel of land in the area known as Neelamegam Nagar in Nerkundram Village contiguous to the KMWC was required for the further extension of KWMC. As the land in Neelamegam Nagar was needed for extension of KWMC and acquired. However, there were houses at different sages of construction at Neelamegam Nagar. In order to develop all the entire area earmarked in the Neelamegam Nagar for the purpose of KWMC, it was decided to resettle the residents/flat owners of Neelamegam Nagar in the nearby area including part of the area covered in the writ petition. In G.O. Ms. No. 773, H&UB Dept., dated 14.08.1984, the Government had approved the resettlement plan of people of Neelamegam Nagar. In pursuant of this Government order, the plot owners of Neelamegam Nagar were resettled in the area that was acquired through the Award No. 2/1982. A major part of the property covered in the writ forms part of this area. The lands which was acquired through the Award No. 2/1982 have been utilised for the following three purposes. A sketch indicating the portion of the land covered in the writ and portion of the land utilised for different purposes indicated below, is attached as exhibit. 1. Resettlement area for the displaced persons from Neelamegam Nagar (Out of 3.88 Acres, 3.19 Acres are fully utilised for this purpose). 2. A sketch indicating the portion of the land covered in the writ and portion of the land utilised for different purposes indicated below, is attached as exhibit. 1. Resettlement area for the displaced persons from Neelamegam Nagar (Out of 3.88 Acres, 3.19 Acres are fully utilised for this purpose). 2. Formation of 'A' Road in KWMC (A piece of land measuring 0.13 Acre is fully utilised for this purpose). 3. Prime commercial area for the use of ancillary uses to KWMC (About 0.56 acres is deigned for utilisation as prime commercial plot as per the Master Plan of KWMC for accommodating connected and incidental service activities in this complex and this piece of land now transformed into development plots, that forms part of the overall scheme area). 5. I submit that presently in the above said process two such allotments were made, one on 09.5.2011 and second one on 26.3.2012. By order dated 09.5.2011, on Mr. K. Jayaraman was allotted a commercial plot measuring approximately 3600 sq.ft. bearing Plot No. 5A abutting 'A' Road and Nesappakam Road at Koyambedu Wholesale Market Complex. By a further order dated 26.3.2012 addressed to the Commissioner of Police, Greater Chennai City, an allotment was made to Department of Police prime commercial plots bearing No. 5 and 6 in 'A' Road at Koyambedu Wholesale Market Complex having an extent of 1170.57 sq.m (12600 sq.ft.) approximately at free of cost as per the Authority Resolution No. 53/2011 dated 11.07.2011 in lieu of the land allotted for the existing K-10 Police Station. I further humbly submit that the petitioner's lands have been fully utilised for different purposes of C.M.D.A. Hence it could not be possible to re-convey the lands to the petitioner as the lands have been utilised by C.M.D.A. in toto. I further enclosing a copy of the plan indicating the utilisation of the petitioner's lands (1) as Prime Commercial - 0.56 acres, (2) as road (A) Road - 0.13 acres, (3) Resettlement area - 3.19 acres, totally 3.88 acres covered in Survey No. 193/4, 8 and 9 and 194/1, 2 and 3 of Koyambedu village.” 39. The Division Bench had referred to and quoted the above paragraphs in its order dated 27.03.2013. The Division Bench had referred to and quoted the above paragraphs in its order dated 27.03.2013. Having done so, if the Division Bench was to grant a relief of re-conveyance, it should have rendered a finding that the averments set out in the counter affidavit regarding the utilization of the land is factually incorrect. The findings should be supported by adequate reasons, facts and figures. 40. On a reading of paragraphs 19 and 20 of the order in Rev. Appl. No. 168 of 2011, dated 27.03.2013, we find that there are no reasons assigned by the Division Bench as to why the averments set out in paragraphs 4 and 5 of the counter affidavit need to be eschewed or disbelieved. The Division Bench did not assign any reasons as to how it came to the conclusion that the lands were lying unutilised. What is to be borne in mind is that the lands which were initially acquired for a project of the Tamil Nadu Housing Board was transferred to the CMDA for development of a Peripheral Outstation Bus Terminus, wholesale fruit market, wholesale vegetable market, wholesale flower market, wholesale food grain market, etc., and facilities incidental and appurtenant thereto. Thus, the land was to be utilised for a project which obviously cannot come in a day or two and needs to be implemented in phases. In such fact situation, we find that the Division Bench committed serious error in stating that the lands were lying unutilised, when the CMDA had given full particulars as to how the entire extent of 3.88 acres were utilised. The problem appears to have been accelerated when an Advocate Commissioner was appointed in the contempt proceedings in Contempt Petition No. 958 of 2014 and surprisingly, the State filed a petition to appoint an Advocate Commissioner to inspect the property. We are at a lost to understand as to why the State should seek for appointment of an Advocate Commissioner, that too, in a contempt proceedings when the entire Revenue Administration is under the command of the State. 41. Be that as it may, the learned Advocate Commissioner in her report would accept that Survey No. 193/8 has been fully utilised, but has made an observation that S. No. 193/9 is lying vacant. We are of the prima facie view that the learned Advocate Commissioner has exceeded the scope of the warrant. 41. Be that as it may, the learned Advocate Commissioner in her report would accept that Survey No. 193/8 has been fully utilised, but has made an observation that S. No. 193/9 is lying vacant. We are of the prima facie view that the learned Advocate Commissioner has exceeded the scope of the warrant. We do not propose to make any further observations in this regard, as the correctness of the orders and directions issued by the Division Bench in Contempt Petition No. 958 of 2014 is now subject matter of appeal before the Hon'ble Supreme Court. Apart from that, the Division Bench held that the allotment in favour of beneficiaries, that is, those who were resettled upon being displaced after the acquisition proceedings and other allottees which are Government organizations, Police Department are not entitled to the benefit of such allotment and all such orders were held to be illegal. 42. To be noted that none of the beneficiaries or the Government Departments to whom allotments were made were heard in the matter. Though the Division Bench came to such a conclusion, ultimately held that the respondents/writ petitioners are entitled to re-conveyance only in respect of the lands in Survey Nos. 193/4 and 193/8. As mentioned above, the learned Advocate Commissioner herself had stated that Survey No. 193/8 has been fully utilised. The CMDA had gone on record by filing a counter affidavit, produced a map stating that Survey Nos. 193/4, 193/8 and 193/9, 194/1, 194/2 and 194/3 have been fully utilised. Thus, without any specific reasons assigned by the Division Bench to conclude that the request for re-conveyance was rejected on flimsy grounds is not sustainable. The Division Bench also made an observation that there is discrimination. To that effect, there was reference to lands in three survey numbers, viz., Survey Nos. 58/17 part, 188 part and 167. 43. The learned Advocate General submitted that these observations were made based on a typed statement produced by the respondents before the Division Bench during the course of hearing Rev. Appl. No. 168 of 2011. Copy of the said statement was placed before us and we find that there is no seal or signature to establish its authenticity. 43. The learned Advocate General submitted that these observations were made based on a typed statement produced by the respondents before the Division Bench during the course of hearing Rev. Appl. No. 168 of 2011. Copy of the said statement was placed before us and we find that there is no seal or signature to establish its authenticity. If for any reason, the Division Bench was to refer to the typed statement, then an exercise was required to be done by inviting response from the CMDA especially when CMDA has taken a definite stand that there has been no such re-conveyance. Even before us, the learned Additional Advocate General appearing for CMDA submits that there is no such re-conveyance, insofar as it relates to Survey Nos. 58/17 part and 188 part and they have filed an additional affidavit to substantiate their stand. The averments set out in the affidavit are as hereunder:- “2. I respectfully submit that in the order dated 27.03.2013 passed in Rev. Application No. 168 of 2011 in W.P. No. 26035/2012 with M.P. Nos. 2 & 3/2012, in para 20 a reference has been made to the unutilized land at survey Nos. 58/17 pt, 188 pt and 167 said to have been reconveyed to the original owners. 3. I submit, based on official records available that none of the above mentioned lands have been reconveyed. The detailed position in respect of these lands is as under:- (i) The lands in S. No. 58/17 of Koyambedu Village with an extent of 0.35 acres was acquired by CMDA in award no. 2/93 dt. 19.05.1993 for the purpose of the Development of Koyambedu Wholesale Market Complex. The Writ petitions in 12756 of 2015 filed by Thiru. S. Ganesan for lands to an extent of 1843 sq.ft. in S. No. 58/17 pt of Koyambedu & 12757 of 2015 filed by Thiru. Subramaniam for lands to an extent of 1943 sq.ft. in S. No. 158/17 pt of Koyambedu under sec. 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 are pending before the Hon'ble High Court. These lands are to be utilized for idle parking facilities for buses and passenger amenities. As per records available with CMDA no lands in S. No. 58/17 of Koyambedu Village was reconveyed. 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 are pending before the Hon'ble High Court. These lands are to be utilized for idle parking facilities for buses and passenger amenities. As per records available with CMDA no lands in S. No. 58/17 of Koyambedu Village was reconveyed. (ii) The lands in S.No. 188 of Koyambedu Village with an extent 3.93 acre was acquired by TNHB under award no. 1/85 dt. 14.06.1985 and subsequently handed over to CMDA. These lands were already been used for construction of Post Office, Fire Station, E.B. Sub-station and part of lands formed as 'B' Road. A small extent of the land in S. No. 188 pt is leased to CMRL for casting Yard/and other purposes. The other remaining lands in S. No. 188/pt have been utilized for construction of Tower III Office Complex by CMDA. The writ petition in W.P. No. 32965/2014 and 32745/2016 filed by the petitioner Tmt. Kareemabee & others in Hon'ble High Court in its common order dt. 16.03.2018 had disposed with the direction to the petitioners to approach the first respondent/Govt. with a fresh representation. Accordingly the petitioner made a representation to the Govt. H&UD Dept. and the same is being processed by the Government in H&UD Department. As per records available with CMDA no lands in S. No. 188 of Koyambedu Village was reconveyed. (iii) The lands in S. No. 167/1B pt, 2, 3, 4, 5, 6 of Koyambedu Village with an extent of 8.12 acres was acquired under award no. 2/83 dt. 28.02.1993 by TNHB was handed over to CMDA for development of Wholesale Market Complex at Koyambedu. These lands in S.No. 167/1B pt, 2, 3, 4, 5, 6 of Koyambedu Village was reserved for Textile Market. Subsequently the lands in S. No. 167/1B pt, 2, 3, 4, 5, 6 of Koyambedu Village with an extent of 8.12 acres was handed over to CMRL for the purpose of depot cum allied facilities as per G.O. Ms. No. 62 P&D and Spl. Initiatives (SI) Department dated 24.06.2009. As per records available with CMDA no lands in S. No. 167/1B pt, 2, 3, 4, 5, 6 of Koyambedu Village was reconveyed. No. 62 P&D and Spl. Initiatives (SI) Department dated 24.06.2009. As per records available with CMDA no lands in S. No. 167/1B pt, 2, 3, 4, 5, 6 of Koyambedu Village was reconveyed. Remaining lands in S. No. 167 of Koyambedu Village falls outside the boundary of Koyambedu Wholesale Market Complex.” Therefore, we are of the clear view that the finding rendered by the Division Bench that the request for re-conveyance was rejected on flimsy ground and there has been discrimination is not supported by any reasons, consequently, required interference. 44. In paragraph 22 of the order in Rev. Appl. No. 168 of 2011, dated 27.03.2013, the Division Bench has held that it is crystal clear that the lands were kept unutilised for decades and only after writ appeal proceedings were initiated, orders have been passed in a hurried and arbitrary manner allotting the lands to other purposes. 45. As pointed out earlier, the acquisition is not for a project which can be implemented in a day or a month or an year. The project was conceived to re-locate the wholesale markets from the heart of the city very near to the High Court and the project of such magnitude requires meticulous planning, as it is spread over an area of 295 acres and obviously requires to be implemented in a phased manner. 46. Thus, for the above reasons, we hold that no grounds have been made out by the respondents/writ petitioners to exercise the power of review, the Division Bench has not pointed out any error which is apparent on the face of the judgment in W.A. No. 1275 of 2011 dated 26.07.2011. Furthermore, no reasons have been assigned by the Division Bench as to why the stand taken by the petitioners before us that the entire lands have been utilised is factually incorrect. 47. Thus, for the above reasons, C.M.P. No. 4320 of 2018 is allowed. Consequently, the order passed in Rev. Appl. No. 168 of 2011, dated 27.03.2013 is recalled and Rev. Appl. No. 168 of 2011 is dismissed. 48. W.M.P. No. 3212 of 2018 has been filed by the State to condone the delay of 1741 days in filing the review application against the order dated 27.03.2013 made in W.P. No. 26035 of 2012. 49. As pointed out earlier, the order in the writ petition was a consequence to the order in Rev. Appl. 48. W.M.P. No. 3212 of 2018 has been filed by the State to condone the delay of 1741 days in filing the review application against the order dated 27.03.2013 made in W.P. No. 26035 of 2012. 49. As pointed out earlier, the order in the writ petition was a consequence to the order in Rev. Appl. No. 168 of 2011. The respondents do not dispute the fact that the substantive order is the order passed in Rev. Appl. No. 168 of 2011. The respondents themselves have reconciled with this position and that is precisely the reason they had filed Contempt Petition No. 958 of 2014 alleging willful disobedience of the order in Rev. Appl. No. 168 of 2011 alone and not the order in W.P. No. 26035 of 2012, though the said writ petition was also allowed by the same common order. Therefore, in our considered view, there would be no necessity to review the order in W.P. No. 26035 of 2012, more particularly, when we have held that no grounds have been made out to exercise review jurisdiction, as we have also examined the correctness of the decision of the Division Bench dated 27.03.2013 and rendered a finding that no case has been made out for re-conveyance. 50. In the result, (i) C.M.P. No. 4320 of 2018 is allowed; the order passed in Rev. Appl. No. 168 of 2011, dated 27.03.2013 is recalled; and the review application is dismissed. (ii) Consequently, W.M.P. No. 3212 of 2018 is closed, as no further orders are required. No costs.