Allahabad High Court
Ram Das S/O Lakshmandas vs State Of U.P. Through Principal ... on 12 February, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 4 Review Application No. 96775 of 2019 IN Case :- MISC. BENCH No. - 8650 of 2008 Petitioner :- Ram Das S/O Lakshmandas Respondent :- State Of U.P. Through Principal Secretary Revenue Counsel for Petitioner :- G.S. Verma,Dwijendra Nath Pandey Counsel for Respondent :- C.S.C., Amitabh Rai Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
1. Heard Sri Amitabh Rai, learned Standing Counsel for Review-Applicants and Sri Dwijendra Nath Pandey, learned counsel for Respondent-Petitioner.
2. This is an application seeking review of the judgement dated 19.12.2017 passed in Writ Petition No. 8650(MB) of 2008 whereby writ petition was allowed.
3. Petitioner-Ram Das filed aforesaid writ petition seeking a writ of mandamus commanding respondents not to interfere in the peaceful possession of petitioner over land bearing Khasra No.1714, measuring 0.449 hectare and Khasra No.2557, measuring 0.2820 hectare, situate in village Haivatmau, Mavaiya, Lucknow. Petitioner also sought a writ of mandamus commanding respondent-2 to delete the name of State Government from Revenue Record and substitute petitioner's name.
4. Aforesaid land of petitioner was declared surplus under the provisions of U.P. Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "Act, 1976") but petitioner claimed that no actual physical possession of surplus land was taken and, therefore, entire proceedings stood abated under Section 3 of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as "Act, 1999"), hence, petitioner was entitled to continue with possession and respondents in making effort to dispossess petitioner are acting illegally and should be restrained from doing so.
5. This Court while entertaining writ petition passed interim order dated 24.09.2008 pursuant whereto petitioner has continued in possession of land in dispute.
6. Writ petition was ultimately allowed vide judgement dated 19.12.2017. It appears that Review-Applicants filed Special Leave to Appeal before Supreme Court which was barred by limitation and it was dismissed on the ground of delay on 01.02.2019.
7. This Review Application has been filed stating that possession of land in question was taken by issue of notice under Sections 10(3) and 10(5) of Act, 1976, copies whereof have been filed collectively as Annexure-3 to Review Application and possession was handed over to U.P. Avas Evam Vikas Parishad (hereinafter referred to as "UPAEVP"), therefore judgement needs review.
8. We have gone through the alleged notice issued under Section 10(5) which requires owner of the land to hand over possession of surplus land, voluntarily. It also says that in case, voluntary possession is not given, proceedings under Section 10(6) for taking possession forcibly shall be initiated. This document nowhere shows that voluntary possession was actually handed over by owner to Prescribed Authority/ Collector at any point of time. No document showing actual physical possession of land in dispute taken by State at any point of time has been placed either along with counter affidavit in writ petition or in Review Application. It is only the correspondence stating therein that possession was handed over to UPAEVP which is relied though no material has been shown as to how and when actual physical possession was taken by Competent Authority/ Prescribed Authority under Act, 1976.
9. The submission that issue of notice under Section 10(5) means possession was taken is thoroughly misconceived. In the context of Land Acquisition Act, 1894 (hereinafter referred to as the "Act, 1894") the question as to when it can be said that actual possession of land has been taken by State has been considered by Courts time and again.
10. In the chain of precedents we first come to the Supreme Court's authority in Balwant Narayan Bhagde Vs. M.D. Bhagwat and others, 1976 (1) SCC 700. It is a three Judges judgment. The majority view is the opinion expressed by Hon'ble Bhagwati, J for himself and Hon'ble Gupta, J. while contrary view was expressed by Hon'ble Untwalia, J. His Lordship Untwalia, J. observed that taking possession means taking of possession on the spot. It is neither a possession on paper nor symbolical possession. The Act is silent on the point as to what is the mode of taking possession. Unless possession is taken by written agreement of party concerned, the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that authority has taken possession on land. It may be in the form of declaration by beat of drum or otherwise or by hanging a written declaration on the spot. Presence of owner or occupant of land to effectuate taking of possession is not necessary. When possession has been taken, owner or occupant of land is dispossessed. Once possession has been taken land vests in Government.
11. The majority judgment delivered by Hon'ble Bhagwati, J. disagreeing with Hon'ble Untwalia, J. said that when State proceed to take possession of land acquired, it must take actual possession of land since all interests on land are sought to be acquired by it. There can be no question of taking symbolical possession in the sense understood by judicial decisions under the Code of Civil Procedure (hereinafter referred to as the "CPC"). Nor would possession merely on paper be enough. The Court further said:
"What the Act contemplates as a necessary condition of vesting of the Land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."
(emphasis added)
12. In General Manager, Telecommunication and another Vs. Dr. Madan Mohan Pradhan and others, 1995 Supp.(4) SCC 268, it was claimed on behalf of State that possession was taken on 12.04.1976 and handed over to Union of India. With regard to mode and manner of possession, Court said:
"It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognized usual practice in all the acquisition proceedings."
(emphasis added)
13. In State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, 1996(7) SCC 269, Court said:
"Possession of the acquired land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the Government nor vested under Section 16 divested in the illegal occupant."
14. The question as to how physical possession of land is to be taken, then was considered in Balmokand Khatri Educational and Industrial Trust Vs. State of Punjab, 1996(4) SCC 212, wherein Court said in para 4 of the judgment as under:
"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession".
(emphasis added)
15. The majority opinion of Balwant Narayan Bhagde (supra) was considered in Tamil Nadu Housing Board Vs. A. Viswam, 1996 (8) SCC 259 wherein also a dispute of actual possession was raised. Court, relying on memorandum of Panchnama prepared by Land Acquisition Officer for taking possession of acquired land and also the letter written by respondent wherein he admitted title of respondent but sought allotment of an alternative site, held that there was no question of requesting for alternative site if according to respondents title still vested in him and has not been vested in the State by taking possession. Paras 9 and 10 of the judgment relevant for our purpose is reproduced as under:
"9. It is settled law by series of judgement of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not co-operate in taking possession of the land.
10. It is seen that in a letter written by the respondent himself, admitting the title of the Board to the land in the said survey number, he sought for allotment of alternative site. In other words, unless possession is taken and he is divested of the title and the same is vested in the appellant, he cannot make request to the appellant for providing him alternative site. It is not his case that at that stage he was still continuing to have title to the land in dispute. The admission is inconsistent with and incongruous to his interest. He was also aware that award was made and the possession obviously should have been taken thereunder......."
(emphasis added)
16. The next authority is Larsen and Toubro Ltd. Vs. State of Gujrat and others, 1998 (4) SCC 387. Therein, Court referred to Panchnama prepared by Deputy Collector showing that possession was taken and found it sufficient to hold that possession of land in question in that case was taken as contemplated under Act, 1894.
17. In P.K. Kalburqi Vs. State of Karnataka, 2005(12) SCC 489, Court referred to the observations of Hon'ble Bhagwati, J. in Balwant Narayan Bhagde (supra) and said, when there is no crop or structure on the land, only symbolic possession would be taken.
18. In Sita Ram Bhandar Society, New Delhi Vs. Lt. Governor, Government of N.C.T. Delhi and others, 2009(10) SCC 501, Court after referring to earlier decisions, said, that while taking possession, symbolic and notional possession is not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Where a large area of land with a large number of owners is subject matter of possession, Court said, that, it would be impossible for Collector or Revenue officials to enter each bigha or biswa and take possession thereof. Pragmatic approach has to be adopted by Court. It further said:
"...one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government." (emphasis added)
19. Similarly in Brij Pal Bhargava and others Vs. State of U.P. and others, 2011(5) SCC 413 accepting possession Court upheld the issue of possession on the basis of possession receipts and said that mere fact that in revenue record there is no mutation or that erstwhile owner actually is still occupying acquired land would make no difference.
20. After having a retrospect of earlier authorities, in Banda Development Authority, Bana Vs. Moti Lal Agarwal and others, 2011(5) SCC 394, Court crystallized certain principles to determine when possession taken would be held to be actual physical possession by authorities and it reads as under:
"37. The principles which can be culled out from the above noted judgments are:
(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken." (emphasis added)
21. In Jagdish and others Vs. State of U.P. and others, 2008(5) ADJ 5, (a Division Bench judgment of this Court) wherein one of us (Hon'ble Sudhir Agarwal, J.) was a member, Court referred to an authority letter of Special Land Acquisition Officer containing endorsement of Executive Engineer taking possession. It was held that possession was taken by revenue authorities.
22. In the present case, this fact has not been disclosed at all though this was the actual dispute in writ petition and petitioner had categorically come with specific averment that he is in actual physical possession even in 2008, therefore, proceedings have abated and review-applicant could not dislodge the claim set up by petitioner either when matter was decided by this Court or even in this review application. Hence, we are satisfied that there is no error apparent on the face of record warranting review of judgement.
23. Further, an application for review cannot be treated to be an opportunity to argue the case on merits afresh. In the garb of a review application reargument on merits of the case cannot be allowed.
24. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh AIR 1964 SC 1372 the Court said:
"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."
25. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4) SCC 389 the Court said:
"... there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate powers which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
26. Again, in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
27. In Parsion Devi and others Vs. Sumitri Devi and others 1997 (8) SCC 715 it was held that an error, which is not self evident and has to be detected by process of reasoning, can hardly be said to be error apparent on the face of the record justifying the court to exercise powers of review in exercise of review jurisdiction.
28. In Rajendra Kumar Vs. Rambai, AIR 2003 SC 2095, the Apex Court has observed about limited scope of judicial intervention at the time of review of the judgment and said:
"The limitations on exercise of the power 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 permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgement/order cannot be disturbed."
29. Thus, Review is not an appeal in disguise. Rehearing of the matter is impermissible in the garb of review. It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. In Lily Thomas Vs. Union of India AIR 2000 SC 1650, the Court said that power of review can be exercised for correction of a mistake and not to substitute a new. Such powers can be exercised within limits of the statute dealing with the exercise of power. The aforesaid view is reiterated in Inderchand Jain Vs. Motilal (2009) 4 SCC 665.
30. In Kamlesh Verma Vs. Mayawati and others 2013 (8) SCC 320, the Court said:
"19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 (8) SCC 337.
22.2. When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
(emphasis supplied)
31. In view of above discussion, this application is rejected.
Order Date :- 12.02.2020 AK Court No. - 4 Delay Condonation Application No. 96774 of 2019 IN Review Application No. 96775 of 2019 IN Case :- MISC. BENCH No. - 8650 of 2008 Petitioner :- Ram Das S/O Lakshmandas Respondent :- State Of U.P. Through Principal Secretary Revenue Counsel for Petitioner :- G.S. Verma,Dwijendra Nath Pandey Counsel for Respondent :- C.S.C., Amitabh Rai Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
1. Heard.
2. Delay in filing review application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.
Order Date :- 12.02.2020 AK