Allahabad High Court
Preetam Singh vs State Of U.P. & Others on 2 April, 2010
Bench: Sunil Ambwani, Virendra Singh
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Court No. 29
CIVIL MISC. REVIEW APPLICATION NO. 82115 OF 2010
IN
WRIT - C No. 48110 OF 2009
Preetam Singh
Vs.
State of U.P. and Others
****
Hon'ble Sunil Ambwani, J.
Hon'ble Virendra Singh, J.
Heard Sri V.B. Upadhayay, Senior Advocate assisted by Sri Ramendra Pratap Singh for Greater Noida Industrial Development Authority - Respondent No. 4 to condone the delay in filing the review application and to review our judgement dated 18.12.2009 by which we had allowed the writ petition and other connected writ petitions, only to the extent that all the petitioners who have not been paid 20% of the compensation, shall get 20% compensation with 9% interest from 30.10.2000 to 29.10.2001, and thereafter at the rate of 15% up to the date of judgment, within one month from the date when they apply, without any benefit of compounding.
The review application has been filed on the ground that the petitioner's had voluntarily entered into separate agreements with the respondent authorities for determination of the amount in lieu of compulsory acquisition of their land. Paragraph 3 of the agreement dated 07.11.2000 did not provide for any amount other than the agreed compensation. The petitioner's consequently waived their right to receive any amount other than compensation including interest. It is submitted that 80% amount was deposited by Greater 2 Noida Industrial Authority (GNIDA) in two installments on 13.07.1999 and 07.02.2000, and was received on 28.07.2000. All the petitioners had accepted 80% compensation. The remaining amount of 20% was also deposited by GNIDA in two installments on 02.11.2000 and 22.03.2001, before the expiry of one year of the deposit of 80%. The petitioners did not come forward to collect the remaining amount.
Sri V.B. Upadhayay has relied upon State of Assam vs. Jitendra Kumar Senapati 1981 (2) SCC 221 and State of Gujarat vs. Devrajbhai Chahganbhai 1996 10 SCC 273 in submitting that in case of an agreement to receive compensation, the parties cannot go beyond the terms of the agreement and claim compensation at the rate prescribed under Section 34 of the Land Acquisition Act 1894. Sri Upadhayay has also relied upon Union of India vs. Pramod Gupta AIR 2005 4 SCC 3708 paragraph 105 to 118 in submitting that by entering into an agreement the petitioners had waived their rights. Even mandatory provision of law can be waived unless public interest is involved. The right to interest was expressly waived under the agreement. He submits that under Article 226 of the Constitution of India, the High Court cannot allow interest if the petitioners have expressly waived their rights in the agreement.
The delay in filing the review application has been sufficiently explained is accordingly condoned.
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In our judgement under review, we found that there was no justification for the GNIDA to delay the actual payment of 20% of the compensation, agreed to be paid to the land owners. The agreement to pay compensation was executed in the year 2000. The petitioners were paid only a part of the compensation i.e. 80% in the year 2002. The award u/s 11(2) in respect of the other land owners was not made until 09.09.2000. The petitioners had repeatedly demanded the payment of remaining amount but the GNIDA or the Special Land Acquisition Officer did not pay the remaining amount of 20% of the compensation to them. There was no notice or offer made to the petitioners to receive the amount on which they were compelled to file the writ petition. The petitioners were then entitled to interest on the amount denied to them.
So far as the rate of interest is concerned, we only drew inference from the statutory provision of Section 34 of the Act, providing the rates and relied upon the constitutional bench judgement in the case of Sunder vs. Union of India 2001 (7) SCC
211. Sri A. Prasad appearing for the petitioner-opposite party in the review application submits that no ground has been made out to review the judgement. The court should not while hearing review petition rehear the submissions or sit in appeal over its own judgement. He relies upon Inderchand Jain (D) through LRS vs. 4 Motilal (D) through LRS 2009 JT (9) 552. In this case, the Supreme Court held in para 9 and 10 as follows: -
(9) SECTION 114 of the Code although does not prescribe any limitation on the power of the court but such limitations have been provided for in order 47 of the Code; Rule 1 whereof reads as under:
"17. The power of a civil court to review its judgment/decision is traceable in Section 114 CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under, "1. Application for review of judgment. - (1) Any person considering himself aggrieved - (a) 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."
An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai ([IR 2003 SC 2095], this Court held:
"The limitations on exercise of the pwoer of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and 5 permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed."
The power of review can also be exercised by the court in the event discovery of new and important matter of evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall lie for any other sufficient reason.
(10) IT is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronouncced, it should not be altered. it is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. Reveiw is not appeal in disguise. in Lily Thomas v. Union of India [AIR 2000 SC 1650], this Court held:
"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise."
We do not find that there is any mistake or error apparent on the face of the record or that any such material has been brought to our notice, which could not be discovered even after exercise of due diligence or was not within the knowledge of the respondents to review our judgement.
The review application is rejected.
Dt. 02.04.2010 Jaideep/-