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2022 DIGILAW 38 (MEG)

Seven City Developers Pvt. Ltd. v. State of Meghalaya

2022-03-08

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - This is an utterly frivolous review petition made in complete waste of time and almost an affront to the intelligence of the Bench. 2. It has become fashionable to try and take a second bite of the cherry after failing by way of a special leave petition in the Supreme Court. Review petitions are filed, apparently, on the ground that there is some error apparent on the face of the record in the order under review but, really, to challenge the perceived erroneous findings. And so it has been in this case. Despite Counsel repeating ad nauseam that the grounds urged reveal that there are errors apparent on the face of the order under review, merely perceived erroneous findings have been referred to over and over again. 3. The facts are not much in dispute and may be captured in a nutshell. A plot of land in a tribal area has been permitted by the so-called tribal authority to be used by the petitioner and the petitioner applied for sanction of the transfer thereof in accordance with the Meghalaya Transfer of Land (Regulation) Act, 1971. The writ petition was filed since express sanction had not been accorded in terms of the said Act of 1971. The parallel case run in the writ petition was that a declaration should be issued in favour of the writ petitioner that sanction was deemed to have been granted since, in terms of Section 4 of the said Act of 1971, no objections were received to the grant of sanction within the statutory period of six months. 4. According to the review petitioner, the most glaring error apparent on the face of the record would be evident from the fact that though the said Act expressly permits sanction to be accorded for transfer of tribal land, the Division Bench of this Court found that there was an absolute bar to any transfer. The second ground canvassed is that the Division Bench failed to take into account that the relevant sub-section in Section 4 of the said Act, in fact, provided for a mechanism for deemed sanction and deemed transfer. The second ground canvassed is that the Division Bench failed to take into account that the relevant sub-section in Section 4 of the said Act, in fact, provided for a mechanism for deemed sanction and deemed transfer. The third ground urged is that the Division Bench fell into error in holding that the review petitioner had not acted upon the deemed transfer though the deemed transfer should be seen to have taken place in 2010 or, at any rate, pursuant to an order passed by the Gauhati High Court in the year 2012. The fourth point asserted is that the Court equated sanction with transfer; overlooking the fact that a sanction was required prior to the transfer and the mere sanction would not amount to transfer. The fifth ground addressed is that the Division Bench read much into the fact that the registration had not been effected. The submission on such count is that since there was no transfer there could have been no registration. The sixth ground pressed into service is that neither Section 6 nor Section 4 of the said Act requires the proposed nature of land use to be a basis for considering whether the sanction should be accorded; and, the Division Bench committed an error apparent on the face of the record in holding otherwise. A further submission is made to the effect that the land was found to be a forest land and a report was called for, but the sample size taken into consideration in the report was contrary to the governing statute. 5. A minor detail has to be mentioned at the outset. The review petition was lodged some 1220 days after the order under review was pronounced. The primary excuse proffered is that a special leave petition was carried and such petition was dismissed at the admission stage without the Supreme Court exercising any appellate authority, whereupon, the petition for review was filed. It is also submitted that in view of the judgment reported at (2000) 6 SCC 359 (Kunhayammed vs. State of Kerala), when a special leave petition is dismissed at the admission stage without the merits of the matter being gone into, a review carried to the High Court thereafter may be maintainable. 6. There is a distinction between the maintainability of a petition and as to whether it makes out any grounds in support thereof. 6. There is a distinction between the maintainability of a petition and as to whether it makes out any grounds in support thereof. A bare-bodied petition with no allegation in support of the prayer may be maintainable, but the same may fail on merits. Merely because the petition for review may be maintainable, it would not imply that the jurisdiction of review has to be metamorphosed into one of revision or appeal to address the perceived errors of finding under the guise of there being errors apparent on the face of the order under review. Qualitatively, a review is quite distinct from an appeal or a revision. Essentially, a review may be maintained when there is some error apparent on the face of the record or the order under review; or, when some material which was before the adjudicating authority was not taken into account despite it having a significant bearing on the issues involved; or, when, despite exercise of best diligence, the review petitioner could not produce some material before the adjudicating authority that would have had a bearing on the process or outcome of the adjudication; or, on some similar reasons that would warrant a relook into the matter. 7. Of the three principal classes of grounds that may be invoked in course of a review, the most common is the first count of there being an error apparent on the face of the order. The kind of error that can be regarded as an error within the meaning of the expression 'error apparent on the face of the order' is a mistake which is obvious and which, ordinarily, is not required to be brought out with reference to any other material, but the same is self-evident in the sense that it is evident upon a plain reading of the order itself. It must also be added that the fourth class of grounds has to be seen to be ejusdem generis with the three classes of grounds that precede it. In short, any or every mistake or any or every error, particularly an error in the interpretation or an error in the analysis or perception may not be an appropriate ground to invoke the jurisdiction of review. 8. For the completeness of the discussion, it must also be pointed out that a review, like an appeal, is a creature of statute. 8. For the completeness of the discussion, it must also be pointed out that a review, like an appeal, is a creature of statute. However, a High Court being a Court of records has inherent jurisdiction to entertain a review petition and even to correct its own apparent mistake suo motu. 9. When a Court spells out the facts in such detail as in the order under review herein, copiously quotes specific provisions of the statute which are relevant for adjudication and deals with several features which weigh with the Court as relevant considerations, the Court may still end up committing an error, whether in erroneously applying a provision or in erroneously interpreting another provision or in committing an error of judgment in arriving at the conclusion; but such errors would not constitute grounds that can be canvassed in a review before the same forum for the matter to be revisited. Errors in findings, as in error of judgment, need to be carried for correction to a superior forum, whether in the revisional or appellate jurisdiction, depending on the scope of the revision and the extent of authority to be exercised in the appeal. Certain provisions for revision set down the parameters for assessment at such level, whereas the appellate provisions indicate whether the appeal would be both on facts and law or purely on law. 10. In the judgment and order under review dated March 31, 2015, the Court referred to Sections 3 and 4 of the said Act, on which much emphasis has been placed on behalf of the petitioner. In fact, both the provisions have been quoted in the judgment under review. It is not as if the Division Bench was unmindful of the fact that a sanction for transfer could be accorded; however, what it perceived was that the grant of a sanction was an exception to the rule and not the general rule as such. It is in such sense that the relevant finding in the impugned judgment has to be read and not as if the adjudication was made de hors the statute. It also weighed with the Court that a relevant consideration for according sanction under the applicable provision was as to whether the person applying for sanction - the non-tribal - required the relevant land for his residence. It also weighed with the Court that a relevant consideration for according sanction under the applicable provision was as to whether the person applying for sanction - the non-tribal - required the relevant land for his residence. Indeed, Section 4 of the said Act provides the circumstances and stipulates the considerations which are relevant. Clause (a) of sub-section (1) of Section 4 of the Act deals with whether the non-tribal holds any other land in Meghalaya. Clause (b) deals with whether there is any other tribal willing to take the land on transfer at the market value. Clause (c) deals with the matter as to whether it is necessary for the applicant to reside in the area, amongst others. Clause (d) pertains to whether the proposed transfer is likely to promote the economic interests of the scheduled tribes in the locality. 11. Thus, on a reading of Section 4 (1) (c) of the said Act, it cannot be said that an altogether outlandish consideration weighed with the Division Bench in passing the impugned judgment; or, whether or not it was necessary for the applicant to reside in the area, was not a part of the consideration for the purpose of according sanction under Section 4 of the Act. It is conceivable that there is another interpretation. It is possible that the manner in which Section 4(1)(c) was read by the Division Bench may have been inappropriate, but it does not follow that an altogether irrelevant consideration was taken into account or a relevant consideration was overlooked or that there is an error apparent on the face of the order in the discussion relating to such aspect of the matter. 12. Similarly, the Division Bench considered the nature of the land involved and found, even if erroneously, that it would be deemed to be a forest and the sanction of the Central Government would be necessary for such purpose. It is possible, as the review petitioner urges, that such a conclusion could not have been drawn from the facts and by applying the relevant statute; but that would be an error of a judgment amenable to correction in appeal or revision, not capable of being subjected to a review. 13. The Division Bench also noticed that in respect of a forest land, agriculture would be permissible as long as such activity was needed to be taken up by the local tribals. 13. The Division Bench also noticed that in respect of a forest land, agriculture would be permissible as long as such activity was needed to be taken up by the local tribals. According to the Division Bench, as evident from the impugned judgment, a non-tribal desiring the transfer of the land in his favour could not seek sanction for transfer on the ground that the land would be put to use for agricultural purpose. That is how the Division Bench perceived the law to apply to the facts of the case. Again, it may have been an error of judgment; but surely not an error which is capable of correction before a coordinate Bench in course of a belated review. 14. This was an avoidable misadventure and the review petitioner was put on notice at the outset. Yet, the matter was pursued with considerable vigour for which the review petitioner should be appropriately rewarded. It must be recorded, in all fairness, that despite the obvious impatience of the Court, the matter was impeccably conducted on behalf of the petitioner. However, the lengthy exercise was eminently avoidable and amounted to no more than flogging a dead horse. 15. In the light of the review petition having been found to be devoid of any merit for reconsideration of the matter by way of review, and without going into the veracity of the findings rendered in the judgment and order under review, the present petition is dismissed. Since the merits of the matter have been gone into, the application for condonation of delay is disposed of upon the same being deemed to have been allowed. Review petition No.5 of 2022 pertaining to WA No.46 of 2013 is dismissed with costs assessed at Rs.2 lakh to be paid to the State in course of a fortnight. In default, the State will be entitled to proceed against the writ petitioner and its assets by way of execution as in arrears of land revenue.