Karnataka High Court
Smt. S Honnamma vs State Of Karnataka on 6 February, 2023
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE Mr. JUSTICE S SUNIL DUTT YADAV
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
REVIEW PETITION No. 199/2021
BETWEEN :
1 . Smt. S Honnamma
aged about 72 Years,
D/o late K.Siddaiah
2 . Yathiraju
Aged about 66 Years,
S/o late K.Siddaiah
3 . Smt. Rukmini
Dead By LRs
Raghavendra
Aged about 27 Years,
All are residing At
in Sy No.59/1-2
55/1 & 53 Of
Nayandanahalli Village
Kengeri (Ho), Bengaluru South Taluk,
Bengaluru - 560 039.
...Petitioners
(By Sri Udaya Holla Senior Counsel For
Sri Bayya Reddy N, Advocate)
2
And:
1 . State of Karnataka
Represented by it's
Chief Secretary
Vidhana Soudha
Bengaluru-560 001.
2 . The Secretary
Department of Revenue
Government of Karnataka
Vidhana Soudha
Bengaluru - 560 001.
3 . The Special Deputy Commissioner
Bangaluru Urban District
Kandaya Bhavana, K.G.Road
Bengaluru -560 009.
4 . The Special Land Acquisiton Officer
Government of Karnataka
Vishweshwaraya Tower
Dr.Ambedkar Veedhi
Bengaluru - 560 001.
5 . The Secretary
ITI Employees Housing Co. Op. Society Ltd.
Dooravani Nagar, K R Puram
Bengaluru - 560 016.
6 . Inspector of Police
Chandra Layout Police Station
Chandra Lay out
Bengaluru - 560 040.
7 . Lokeshwaraiah
Aged about 66 Years
S/o Late K.Siddaiah
8 . S Nirmaladevi
Aged about 51 Years
3
D/o late K.Siddaiah
Both are residing at
in Sy.No.59/1-2, 55/1 & 53 Of
Nayandanahalli Village
Kengeri Hobli
Bengaluru South Taluk
Bengaluru - 560 039.
...Respondents
(By Sri R Subramanya, AAG For
Smt. M Nagashree, AGA For R1 To R4 & R6
Sri G L Vishwanath, Senior Counsel For
Sri Guru Murthy, Advocate For R5
Sri B J Mahesh, Advocate For R7
Sri M Narayana Bhat, Advocate For R8)
===
This Review Petition is filed under Order 47 Rule
1 r/w Section 114 of CPC, praying to review the order
dated 23/04/2021 passed in Writ Appeal No.
1089/2015 and restore the Wirt Appeal No.1089/2015
to the original file and etc.
This Review Petition having been heard and
reserved for orders on 09.11.2022 this day
Shivashankar Amarannavar J., passed the
following;
4
ORDER
This review petition is filed by appellant Nos. 2, 3 and 5 seeking review of the judgment dated 23.04.2021 passed in W.A. No. 1089/2015 and to restore the said writ appeal to the original file.
2. The gist of the petitioners case is that the lands bearing Sy.Nos.53, 55/1, 59/1 and 59/2 of Nayandahalli Village, Kengeri Hobli, Bengaluru South Taluk, measuring 3 acres 24 guntas, 37 guntas and 31 guntas respectively (hereinafter referred to as 'Schedule Property) originally belonged to Sri. K. Siddaiah namely father of petitioner Nos. 1 and 2 and grandfather of petitioner No. 3. He is said to have executed Deed of Conditional Sale dated 08.03.1973 in favour of one Sri. Lingaiah. It was further contended that on the same day said Sri. Lingaiah executed a registered deed of reconveyance in favour of Sri. K. Siddaiah agreeing to reconvey the schedule property.
5
3. A preliminary notification dated 22.02.1985 under section 4(1) of the Act came to be issued for acquiring several lands including schedule property for and on behalf of ITI Employees Home Building Co- operative Society Ltd., (for short 'Society') respondent No. 5 herein, followed by final notification dated 28.02.1986 issued under section 6(1) of the Act. An award came to be passed on 05.05.1987 and notification under Section 16(2) of the Act also came to be issued taking possession of the schedule lands.
4. Above said Sri. K. Siddaiah challenged the acquisition proceedings before the learned single judge in W.P. No. 7667/1989 which came to be dismissed on the ground he had no locus-standi to challenge the acquisition proposed as he had already sold the schedule lands. On the strength of a suit O.S. No. 476/1981 (O.S. No. 7/1974) filed by late Sri. K. Siddaiah, his wife and children against Sri. Lingaiah for specific performance of the deed of re-conveyance, suit came to be decreed on 27.03.2003 against which 6 an appeal was filed by Sri. Lingaiah in R.F.A. No. 564/2003 which ended in dismissal and Special Leave Petition (Civil) No. 266/2004 filed before the Hon'ble Apex Court also came to be dismissed on 04.10.2016 and as such they claimed that they have continued to be in physical possession of the schedule lands. In other words, it was contended that notwithstanding the notifications issued under Section 4(1), 6(1) and 6(2) of the Act, they were not divested of physical possession of the lands. By relying upon the annexures appended to the writ petitions and contending inter alia that they are in actual physical possession of the schedule lands, they sought for declaring the proceedings for acquisition as having lapsed by deeming fiction of Section 24(2) of 2013 Act. Petitioners also sought to rely upon the acquisition proceedings initiated by Bangalore Development Authority to acquire the schedule lands and suit filed by the petitioners, which ended in a compromise whereunder BDA had agreed to allot one site to the petitioners. Hence, contending these 7 developments would indicate the petitioners are in uninterrupted continued physical possession of the schedule lands and as such they are entitled to the protection available under sub-section (2) of Section 24 of 2013 Act, they sought for quashing of the notifications and acquisition proceedings. It was further pleaded in the writ petition that award amount has not been paid to them and as such reliefs prayed for in the writ petition ought to be granted.
5. Respondent No. 5 - Society filed its statement of objections and denied the averments made in the writ petition. It was contended that writ petition was not maintainable as it is barred by resjudicata, since father of petitioner Nos. 1 and 2 and grandfather of petitioner No.3 had challenged the acquisition on the ground that he did not have notice of acquisition; as on date of final notification schedule lands were standing in the name of Sri. Lingaiah in whose favour father of petitioner Nos. 1 and 2 and grandfather of petitioner No.3 had already sold the schedule lands 8 and said Sri. Lingaiah had unsuccessfully challenged the acquisition proceedings. It was also contended that ingredient of Section 24(2) of 2013 Act was not present in the instant case and even if possession of the lands continued with petitioners after issuance of notification under Section 16(2) of the Act, it would amount to trespass. Respondent No. 5 further contended that of father of petitioner Nos. 1 and 2 and grandfather of petitioner No. 3 had received monies from the Society and had consented for acquisition and had also participated in the award proceedings. On these amongst other grounds urged, pleas advanced and contentions raised in its statement of objections, respondent No. 5 sought for dismissal of the writ petition.
6. Learned Single Judge after having considered the rival contentions raised at the bar has held that in view of notification dated 16.02.1995 (Annexure-E) issued under Section 16(2) of the Act, which has also been gazetted, it would clearly demonstrate 9 possession of the schedule lands had been taken and therefore no further proof with regard to possession was required to be produced. It has been further held that notification issued under Section 16(2) would be conclusive proof of taking over possession of the land acquired and any other interpretation would be contrary to the spirit and object of Section 16(2) of the Old Act. Learned Single Judge has further held that documents in respect of schedule lands, which has been produced by the petitioners cannot have any supervening effect, particularly when they have come into existence subsequent to taking possession. On these amongst other reasons assigned learned Single Judge held petitioners are attempting to take undue advantage of sub-section (2) of Section 24 of 2013 Act and it is an abuse of process of law and in disguise they are challenging the acquisition proceedings yet again and hence, by imposing costs, writ petitions came to be dismissed.
10
7. Petitioners and respondent Nos. 7 and 8 had challenged the order passed by the learned Single Judge in W.A. No. 1089/2015 (LA-HS). After hearing the learned counsel for the parties, considering the contentions raised, perusing the original records, judgment came to be passed dismissing the writ appeal vide judgment dated 23.04.2021 which is sought to be reviewed in the instant petition.
8. We have heard the arguments of Sri. Uday Holla, learned Senior Counsel appearing for the petitioners, Sri. R. Subrahmanya, learned Additional Advocate General for respondent Nos. 1 to 4 and 6, Sri. G.L. Vishwanath, learned Senior Counsel for respondent No. 5 and Sri. M. Narayana Bhat, learned counsel for respondent No. 8 and perused the records of writ petition and writ appeal.
11CONTENTIONS OF LEARNED SENIOR COUNSEL FOR PETITIONERS
9. Learned Senior counsel appearing for the petitioners contends that the final notification is issued after lapse of more than one year from the date of issue of preliminary notification and therefore, the said notification is non-est in the eye of law. There are errors in the judgment regarding the building in the schedule properties coming up after the preliminary notification by the Court by referring to page Nos. 793 and 794 of the original records and the survey numbers referred in that document does not pertain to the petitioners which were the subject matter of the writ petition. It is further argued that there is error in the judgment that vouchers referred to in paragraph No. 32(c) of the judgment are prior to the preliminary notification. There is no deposit of balance award amount by respondent No. 5 - Society. There is no taking of possession of schedule properties by drawing the panchanama. It is his further submission that as 12 per the G.V.K. Rao's report in respect of respondent No. 5 - Society has appointed agents, the report of which is sought to be produced under I.A. No. 4/2021, considering the said report the Hon'ble Apex Court has quashed the acquisition proceedings in the case of HMT House Building Society Vs. Syed Khader reported in 1995 (2) SCC 677. The said G.V.K. Rao report is suppressed by respondent No. 5 - Society and the petitioners came to know regarding the said report recently. It is his further submission that non- disclosure of relevant material documents with a view to obtain advantage amounts to fraud and on that point he placed reliance on the decision of the Hon'ble Apex Court in the case of S.P. Changalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs and others, reported in 1994 (1) SCC 1. It is his further submission that this Court can consider all the above aspects in the purview of review. He has placed reliance on the following decisions. 13
1) Board of Control for Cricket in India and another Vs. Netaji Cricket Club and Others, 2005 (4) SCC 741
2) Amarjit Kaur Vs. Harbhajan Singh and another, 2003 (10) SCC 228
3) The Selection Committee for Admission to the Medical and Dental College, Bangalore Vs. M.P. Nagaraj, 1971 (2) Mys.L.J. 325
4) Mayuram Subramanian Srinivasan Vs. C.B.I., 2006 (5) SCC 752
5) Lily Thomas and Others Vs. Union of India and Others, 2000 (6) SCC 224
6) Rasiklal Manikchand Dhariwal and another Vs. M.S.S. Food Products, 2012 (2) SCC 196
7) United India Insurance Co. Ltd., Vs. Rajendra Singh and others, 2000 (3) SCC 581
8) Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd., 1996 (5) SCC 550
10) Yashwant Sinha and Others vs. Central Bureau of Investigation, through its Director and another, 2020 (2) SCC 338
11) Ashwin S Mehta and another Vs. Custodian and others, 2006 (2) SCC 385
12) Susana Rani David and another Vs. Esther Jaspher Swaminathan and Others, 2016 (16) SCC 795
13) Vyalikaval Housebuilding Coop Society by its Secretary Vs. V. Chandrappa and others, 2007 (9) SCC 304
14) Anil Kumar Gupta Vs. State of Bihar and Others, 2012 (12) SCC 443
15) S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jgannath (dead) by LRs. And Others, 1994 (1) SCC 1
16) P.K. Kalburqi Vs. State of Karnataka and Others, 2005 (12) SCC 489
17) Vijaya Bank Employees Housing Co- Operative Society Ltd., Vs. Assistant Commissioner, Bangalore South Sub-division, Bangalore and Another, ILR 2007 KAR 2167
18) Meenakshi Thimmaiah and Others Vs. State of Karnataka by its Secretary, Urban Development Department and Another, ILR 2010 KAR 62 15
19) H.M.T. House Building Cooperative Society Vs. Syed Khader and others, (1995) 2 SCC 677
20) Indore Development Authority Vs. Manoharlal and others, 2020 SCC Online SC 316 CONTENTIONS OF LEARNED COUNSEL FOR RESPONDENT No. 8 10. Learned counsel for respondent No. 8 supported the contentions of the learned Senior counsel for the petitioners and reiterated the said contentions. It is his further submission that the earlier writ petition and writ appeal filed by Lingaiah and Siddaiah and their legal representatives came to be dismissed on the ground of locus standi and therefore principles of resjudicata do not apply. The award came to be passed under Section 11(2) of the Act and therefore it is not a consent award to take into consideration the payments made by respondent No. 5 - Society to Siddaiah prior to the preliminary notification. The successors of Siddaiah are still in physical possession of the schedule properties and on 16 that point he placed reliance on the documents sought to be produced under I.A. No. 4/2021, namely, judgment passed in M.F.A. No. 202/1974, spot inspection report, endorsement dated 18.02.2015 issued on an application sought under the R.T.I. Act and on the above points urged, he placed reliance on the following decisions:
1) S Nagaraj Vs. State of Karnataka, 1993 Suppl. (4) SCC 595
2) Board of Control for Cricket in India and another Vs. Netaji Cricket Club, 2005 (4) SCC 741
3) Ram Gobinda Dawan Vs. Bhaktabala, 1971 (1) SCC 387
4) Syed Mohd. Vs. Mohd. Hanifa, 1976 (4) SCC 780
5) Canara Bank Vs. N.G. Subbaraya Setty, 2018 (16) SCC 228
6) Skypak Vs. Tata Chemicals, 2000 (5) SCC 294
7) State of Haryana Vs. Krishna Rice Mills, 1981 (4) SCC 148
8) Ambica Quarry Vs. State of Gujarat, 1987 (1) SCC 213 17
9) Bhavanagar University Vs. Palitana Sugar, 2003 (2) SCC 111
10) Bhusawal Municipality Vs. Nruvatthi Ramachandra Pathak, 2015 (14) SCC 327
11) Chairman Indor Vikas Vs. Pure Industrial Court, 2007 (8) SCC 705
12) Bharat Petroleum Vs. Maddula Ratnavalli, 2007 (6) SCC 81
13) Prabin Ram Vs. State of Assam, 2015 (3) SCC 605
14) Devinder Singh Vs. State of Punjab, 2008 (1) SCC 728
15) Ramji Veerji Patel Vs. RDO, 2011 (10) SCC 643
16) John Vallamattom Vs. UOI, 2003 (6) SCC 611
17) Indian handicrafts Vs. Union of India, 2003 (7) SCC 589
18) Motor General traders Vs. State of Andhra Pradesh, 1984 (1) SCC 222
19) Kapila Hongorani Vs. State of Bihar, 2003 (6) SCC 1
20) Greater Noida Vs. Devendra Kumar, 2011 (12) SCC 375
21) Vipul Bai Vs. Gujarat Co-operative Milk Marketing Federation Limited and others, 2015 (8) SCC 1 18
22) S P Changalvaraya Naidu Vs. Jagannath, 1994 (1) SCC 1
23) HMT House Building Society Vs. Syed Khader, 1995 (2) SCC 677
24) Prahalad Singh & Others Vs. U.O.I 2016, 2011 (5) SCC 386
25) A.R. Anthulay Vs. R.S. Nayak, 1988 (2) SCC 602
26) Canara Bank Vs. N.G. Subbaraya Setty, (2018) 16 SCC 228 CONTENTIONS OF LEARNED SENIOR COUNSEL FOR RESPONDENT No. 5
11. Learned Senior counsel appearing for respondent No. 5 would contend that this is the fourth round of litigation regarding the acquisition of the year 1985-86; first round by Sri. Siddaiah; second round by Ravi Prakash; third round by legal representatives of Siddaiah and fourth round is by the petitioners in this review petition. He placed reliance on the decision of the Hon'ble Apex Court in the case of Yashwanth Sinha (supra) (relied on by learned counsel for petitioners) regarding the scope of review. He 19 submitted that final notification issued under Section 6(1) of the L.A. Act dated 27.02.1986 and gazette notification dated 28.02.1986 is within the time of one year from the date of publication of notification under Section 4(1) of the L.A. Act in two daily newspapers, public notice issued by the Deputy Commissioner and last of the dates of publication of said notification is to be taken into consideration for computing the limitation as per the second proviso to Section 6(1) of the L.A. Act. On that point he placed reliance on the decision of the Hon'ble Apex Court in the case of State of West Bengal Vs. Bereshwar Estate Private Limited reported in 2020 (20) SCC 562. He has also placed reliance on the decision of the Hon'ble Apex Court with regard to the scope of review. He further argued that the petitioners have sought for production of certain documents under I.A. Nos.
4/2021 and 5/2021 and they have not made out any reasons/grounds to allow those applications. He further submitted that Siddaiah during his life time has admitted the acquisition proceedings in his 20 communication dated 10.05.1992 which has been referred to in paragraph No. 32 of the judgment. Referring to admission of the petitioners in their rejoinder regarding the acquisition proceedings, amount of compensation, taking of possession which is referred to in paragraph No. 29 of the judgment. Learned Senior counsel submits that the petitioners have not made out any grounds for review of the judgment.
CONTENTIONS OF LEARNED ADDITIONAL ADVOCATE GENERAL
12. Learned Additional Advocate General appearing for respondent Nos. 1 to 4 and 6 submits that there is no error apparent on the face of record. Grounds urged in the review petition are not the grounds urged either in the writ petition or in the writ appeal. The writ petition has been filed seeking lapse of acquisition proceedings under Section 24(2) of the L.A. Act (new Act). If new grounds are raised in the review petition there will be no end to litigation. The 21 judgment passed is not cryptic and the Court has considered the contentions of all the parties and also perused the original records made available to the Court. The grounds urged in this review petition were considered while passing the judgment. The finding regarding the taking of possession is a finding of fact and there is finding in that regard in W.P. No. 1096/2007 and other earlier proceedings. The G.V.K. Rao Committee report is not part of the writ petition or writ appeal. He placed reliance on the following decisions.
1) Ashrafidevi (Dead) Through Legal Representatives Vs. State Of Uttar Pradesh and Ors.,2019 (5) SCC 86
2) Sivakami and Ors. Vs. State of Tamil Nadu and Ors.,2018 (4) SCC 587
3) Kamalesh Verma Vs. Mayawati and Ors., 2013 (8) SCC 320
4) N Anantha Reddy Vs. Anshu Kathuria and Ors., 2013 (15) SCC 534
5) Ajit Kumar Rath Vs. State of Orissa and Others, 1999 (9) SCC 596 22
6) Meera Bhanja Vs. Nirmala Kumari Choudhury, (1995) 1 SCC 170
7) Lily Thomas and Others Vs. Union of India and Others, (2000) 6 SCC 224
8) N Veerabhadrappa Vs. Smt. Shivamma and Another, ILR 2001 KAR. 679
9) S Madhusudhan Reddy Vs. V Narayana Reddy and Others, 2022 SCC ONLINE SC 1034
10) Baswareddy S/o Sangareddy Vs. State of Karnataka and Another, R.P. No. 2577/2013
11) Delhi Development Authority Vs. Godfrey Phillips (I) Ltd. & Ors., 2022 SCC ONLINE SC 565
12) Delhi Administration Vs. Pawan Kumar, 2022 (7) SCC 470
13. We have carefully considered the arguments canvassed by the learned counsel for the parties, orders preceding the impugned judgment, gone through the records and given thoughtful consideration to the arguments advanced by the learned counsel for the parties. The only point that arises for consideration in this review petition is : 23
"Whether the petitioners have made out a case for reviewing the judgment dated 23.04.2021?"
14. The contours of review has been considered in the following decisions of the Hon'ble Apex Court. In the case of Board of Control for Cricket in India (supra), the Hon'ble Apex Court has considered the scope of review and has observed thus:
"89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would 24 constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
91. It is true that in Moran Mar Basselios Catholicos and Anr. v. The Most Rev. Mar Poulose Athanasius and Ors. [1955]1SCR520, this Court made observations as regard limitations in the application of review of its order stating :
"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 1 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 25 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. It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule."
but the said rule is not universal.
In the case of Lily Thomas (supra), the Hon'ble Apex Court has observed as under:
"52. The dictionary meaning of the word "review" is the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR1970SC1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also 26 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 a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error".
In the case of Yashwanth Sinha and others (supra), the Hon'ble Apex Court has observed as under:
"69. In Kamlesh Verma (supra), this Court in paragraph 20, laid down its conclusions, which reads as follows: (SCC pp.333-34) "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 27 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"
have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Mar Poulose Athanasius 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 v. Sandur Manganese & Iron Ores Ltd.
20.2. 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.28
(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."
"78. The view of this Court, in the decision in Girdhari Lal Gupta (supra) as also in Deo Narain Singh (supra), has been noticed to be that if the relevant law is ignored or an inapplicable law forms the foundation for the judgement, it would provide a ground for review. If a court is oblivious to the relevant statutory provisions, the judgment would, in fact, be per incuriam. No doubt, the concept of per incuriam is apposite in the context of its value as the precedent but as between the parties, certainly it would be open to urge that a judgment rendered, in ignorance of the applicable law, must be reviewed. The judgment, in such a case, becomes open to 29 review as it would betray a clear error in the decision."
"79. As regards fresh material forming basis for review, it must be of such nature that it is relevant and it undermines the verdict. This is apart from the requirement that it could not be produced despite due diligence."
15. The learned senior Counsel appearing for the petitioners would contend that to perpetuate an error is not heroism but to rectify it is the compulsion of the judicial conscience. On that point he placed reliance on the decision of the Hon'ble Apex Court in the case of Mayuram Subramanian Srinivasan (supra) wherein it is held as under:
"11. Incuria" literally means "carelessness".
In practice per incuriam is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law", as held in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting 30 Article 141 of the Constitution of India, 1950 (in short the 'Constitution') which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. and another v. Synthetics and Chemicals Ltd. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. The position was highlighted in Nirmal Jeet Kaur v. State of M.P."
In the case of United India Insurance Company Limited (supra), the Hon'ble Apex Court has held that fraud of high degree or misrepresentation can be a ground for recalling the order and has observed as under:
"16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim." The Hon'ble Apex Court in the case of Khoday Distilleries Limited (supra) has considered whether 31 suppression of material fact is a ground for review and has observed as under:
"29. In this case, we find that the special leave petition was dismissed with the following order passed on January 05, 2012:
"We find no ground to interfere with the impugned order. The special leave petition is dismissed."
Here also, special leave petition was dismissed in limine and without any speaking order. After the dismissal of the special leave petition, the respondent in this appeal had approached the High Court with review petition. Said review petition is allowed by passing order dated December 12, 2012 on the ground of suppression of material facts by the appellant herein and commission of fraud on the Court. Such a review petition was maintainable. Therefore, the High Court was empowered to entertain the same on merits. Insofar as appeal of the appellant challenging the order dated December 12, 2012 on merits is concerned, the matter shall be placed before the regular Board to decide the same." The Hon'ble Apex Court in the case of Ashwin S. Mehta (supra) has considered whether subsequent 32 events can be taken into consideration for the purpose of review and has observed thus:
"64. Furthermore, the orders of the appellate authority have been passed during pendency of this appeal. This Court, it is trite, can take into consideration the subsequent events. Such subsequent events could also be taken into consideration for the purpose of review.
"65. In Board of Control for Cricket in India and Another v. Netaji Cricket Club and Others [(2005) 4 SCC 741], this Court held:
"It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29-9- 2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake."33
The Hon'ble Apex Court in the case of Susana Rani David and another (supra) has considered whether production of documents to enable review - when warranted and has observed as under:
"2. In the course of hearing of these appeals, the appellants had relied upon a sale deed dated 29.06.2001 executed by Defendant 4, by virtue of which some property had been sold by her. The said document has not been exhibited before any court. The said sale deed is permitted to be placed on record so that it may be looked into by the High Court and consider its effects on the compromise deed entered into among some of the parties.
"3. In these circumstances, we dispose of these appeals with a direction that a review application shall be filed by the appellants within four weeks from today before the High Court and the High Court shall permit the appellants to do the needful to get the said document exhibited. The High Court shall consider the effect of the said sale deed after hearing the parties concerned and if necessary, may modify the impugned judgment and pass appropriate order in accordance with law."34
An error which is not self evident and has to be detected by process of reasoning can hardly be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII Rule 1 of CPC. This aspect has been considered by the Hon'ble Apex Court in the case of Shanti Conductors (P) Limited (supra) and has observed as under:
"25. Insofar as other submissions of Dr. Singhvi that Act, 1993 is retroactive in nature and further amount due at the time of the commencement of the Act ought to attract interest of the Act, 1993, all these submissions have been elaborately considered in the judgment dated 23.01.2019, which have been considered on merits. The scope of review is limited and under the guise of review, petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided. The scope of review has been reiterated by this Court from time to time. It is sufficient to refer the judgment of this Court in Parsion Devi Vs. Sumitri Devi, wherein in para 9 the following has been laid down:(SCC p.719).35
"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
16. In the light of the observations made by the Hon'ble Apex Court in the above decisions the case of the petitioners is required to be considered.
17. A preliminary notification under Section 4(1) of the L.A. Act (old Act) has been issued on 22.02.1985 and gazetted on 25.02.1985. It is followed by a final notification under Section 6(1) of the L.A. Act (old Act) dated 27.02.1986 and gazetted on 28.02.1986. By referring to second proviso to Section 6(1) of the L.A. Act it is contended that the final notification under Section 6(1) of the L.A. Act is issued 36 beyond the period of one year from the date of publication of preliminary notification and therefore, the land acquisition proceedings are a nullity. How time is to be computed under the provisions of Section 6 of the L.A. Act has been considered by the Hon'ble Apex Court in the case of State of West Bengal and others (supra) and has observed as under:
"4. Feeling aggrieved the appellants have filed this appeal by special leave. The appellants have challenged both the findings of the Division Bench. Therefore, two questions arise for our consideration.
(4.1) Whether the final declaration was made after the expiry of one year from the date of publication of preliminary notification? (4.2) Whether the Award was made beyond two years from the date of the publication of the final declaration?
Re : Question (i)
5. Section 4(1) of the Act provides that whenever it appears to the appropriate Government that land in any locality is needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in locality and the 37 Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality, the last of the dates of such publication and the giving of such public notice, being referred to as date of the publication of the notification. In this case the date of publication of the preliminary notification would be 30.6.1997, as that was the date of the public notice of the substance of the preliminary notification given at convenient places in the locality, and that was the last of the dates of publication and public notice.
6. In view of the above, though the date of preliminary notification is 4.3.1996 and was published in the Gazette on 25.3.1996, as public notice of the substance of the said notification was given in the locality only on 30.6.1997, the date of publication of the notification for the purpose of Section 4(1) of the Act, would be 30.6.1997 - the date on which the public notice was given in the locality. Final declaration was made on 12.8.1997 within two months from the date of publication of the preliminary notification. The contention that the final notification was made beyond one year from the date of publication 38 of the preliminary notification is therefore, without basis.
7. The High Court proceeded on a wrong assumption that the public notice of the substance of the preliminary notification should be published in the locality within one year from the date of publication in the Gazette. We find that there is no such requirement under Section 4(1) of the Act. Section 4(1) does not specify the period within which public notice of the substance of the notification should be put up in convenient places of the locality. The one year period referred to in Section 6 of the Act is the period within which the final declaration has to be made from the date of publication of the preliminary notification. Publication of the notification under section 4(1) of the Act is defined as the last of the three dates, that is
(i) publication in the Gazette, (ii) publication in two newspapers, and (iii) public notice of the substance of the notification in convenient places in the locality. If there is a gap of more than one year from the date of publication of preliminary notification in the Gazette and issue of public notice of the substance of such notification in the locality, it would not affect the validity of the preliminary notification but will only postpone the date of preliminary 39 notification for other purposes like determination of market value under section 23 of the Act. As 30.6.1997 is the date of publication of the preliminary notification and not 4.3.1996, the first ground on which the appellate Bench of the High Court has invalidated the acquisition cannot be sustained."
One year period referred to in Section 6 of the L.A. Act is the period within which final declaration has to be made from the date of publication of preliminary notification under Section 4(1) of the L.A. Act is defined as the last of three dates, i.e.,
i) publication of the gazette
ii) publication in two newspapers
iii) public notice of the substance of the notification at the convenient places in the locality.
If the said explanation is considered, then the contention of the learned counsel for the petitioners that the final notification has been issued after lapse of one year does not hold any substance. The said 40 contention regarding issue of final notification within one year from the date of preliminary notification has not been raised specifically by the petitioners either in the writ petition or in the writ appeal and for the first time it is raised in this review petition.
18. The second contention of the learned counsel for the petitioners is that the compensation is not paid or deposited. The said point has been urged by the learned counsel for the petitioners in the writ appeal and the same has been considered elaborately holding that there is payment of compensation. This Court by referring to the findings in W.P. No. 7667/1989 (Annexure R-14) and observations made in paragraph No. 2 has held that the compensation has been partly paid and received by Sri. Siddaiah. In Annexure R-12
- Indemnity bond and R-7 there is payment of Rs.2,30,000/- to Siddaiah. Thereafter, there is handing over of possession by the Government to 41 respondent No. 5 on 19.04.1995 and mutation of name of respondent No. 5 in respect of the acquired lands in the revenue records. There is also finding regarding payment of compensation in W.A. No. 7667/1989.
19. Even regarding the handing over of possession there is a detailed discussion in the judgment and there is a reference in paragraph No. 32 regarding the communication dated 10.05.1992 by Siddaiah - father of petitioner Nos. 1 and 2 and grandfather of petitioner No. 3 wherein he has admitted the acquisition of his lands, agreement to sell dated 08.07.1982, vouchers of payment of Rs.2,30,000/-, communication dated 25.06.1987 addressed to Special Land Acquisition Officer by Siddaiah wherein he has admitted that he has no objection for acquisition of survey No. 55/1 and 53 totally measuring 4 acres 21 guntas and has sought 42 retention of survey No. 59 measuring 1 acre 27 guntas for himself and his family members. Annexure R-9 is a memorandum whereunder possession of acquired lands was handed over to Special land Acquisition Officer on 12.01.1995. Annexure R-13 is a memorandum whereunder possession of the acquired lands was handed over on 19.04.1985 by Special Land Acquisition Officer to the President of respondent No. 5 - Society. The petitioners have admitted the proceedings for acquisition and the documents which are produced in the writ petition by respondent No. 5 which are at Annexure R-2 to R-16. There is also mutation of respondent No. 5 - society's name in revenue records of schedule property.
20. Sri. K. Siddaiah, father of petitioner Nos. 1 and 2 and grandfather of petitioner No. 3 had filed W.P. No. 7667/1989 challenging the preliminary notification, final notification and award passed by the SLAO dated 02.06.1988 and the same came to be dismissed by this Court by order dated 18.08.1989 43 (Annexure - R-14). The said writ petition is filed against SLAO, L. Shivalingaiah and Raviprakash, son of L. Shivalingaiah. Sri. K. Siddaiah, father of petitioner Nos. 1 and 2 and grandfather of petitioner No. 3 had challenged the said order of the learned Single Judge in W.A. No. 699/1990 which came to be dismissed by a Division Bench of this Court by order dated 28.05.1990 (Annexure -R-15). Neither the said Sri. K. Siddaiah nor Sri. L. Shivalingaiah or their legal heirs have challenged the said order passed in the writ appeal.
21. Sri. S. Raviprakash son of Sri. L. Shivalingaiah filed W.P. No. 40571/2001 seeking declaration that the entire acquisition proceedings is null, illegal and void, to quash the notification under Section 4(1) dated 22.02.1985 and the notification under Section 6(1) dated 27.02.1986, award dated 02.06.1988 and the proceedings of taking over possession of lands dated 12.01.1995. Children of 44 Sri. K. Siddaiah were respondents in the said writ petition. The said writ petition came to be dismissed by learned Single Judge by order dated 21.03.2007 holding that the acquisition proceedings were completed and Section 12(2) notice was also issued on 24.01.1995 and possession of the land was delivered by the Government on 19.04.1995 to the Society. The said order of the learned Single Judge was challenged in W.A. No. 1096/2007 which came to be dismissed by the Division Bench by judgment dated 02.06.2009 holding that the acquisition proceedings were completed and notice under Section 12(2) was issued to the petitioner on 24.01.1995 and possession of the land has been delivered by the Government on 19.04.1995 to the Society (Annexure R-16).
22. The Children of Sri. K. Siddaiah who were respondent Nos. 3 to 8 to the said writ appeal have not challenged the said judgment. Therefore, the finding of handing over the possession has become 45 final. The petitioner and respondent No. 8 who failed in their earlier round of litigations, taking advantage of the enactment of the new Act filed writ petition challenging the acquisition proceedings on the ground of non-payment of compensation and not taking over the possession and the same came to be dismissed. The appeal challenging the order of the learned Single Judge came to be dismissed affirming the order passed by the learned Single Judge. The petitioners, instead of challenging the order passed in W.A. Nos. 1089/2015, have filed this review petition, and are seeking to re-agitate the questions including possession that have attained finality in several rounds of litigation.
23. The contention regarding G.V.K. Rao report and HMT case are all points raised for the first time in the review petition. They are not the grounds urged in the writ petition or in the writ appeal. G.V.K. Rao report is of the year 1988 and HMT case is of the year 46 1985. Therefore these grounds for the first time can not be permitted to be raised in the review petition. The said G.V.K. Rao report and other documents are sought to be produced under I.A. No. 4/2021 and other documents under I.A. No. 5/2021. All the documents sought to be produced under I.A. Nos. 4/2021 and 5/2021 are dated prior to the writ petition proceedings or writ appeal. Mere discovery of new material or evidence is not a ground for review unless the party show that such additional material or evidence was not within its knowledge and even after exercise of due diligence the same could not be placed before the Court earlier. The same has been considered by the Hon'ble Apex Court in the case of Yeshwanth Sinha (supra) by referring to another decision in the case of State of West Bengal (supra) and has held as under:
"58. In State of W.B. vs. Kamal Sengupta, this Court, inter alia, held as follows:
"21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or 47 evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier."24. The reasons assigned in paragraph Nos. 4
and 5 of the affidavit filed in support of I.A. No. 4/2021 does not make out a case that in spite of exercise of due diligence the said documents could not be produced earlier. Even some of the documents sought to be produced under I.A. Nos. 4/2021 and 5/2021 were available with the petitioners during the pendency of the writ petition/writ appeal. The petitioners have not made out any grounds for 48 production of the documents sought under I.A. Nos. 4/2021 and 5/2021 at the stage of review petition.
25. Learned senior Counsel appearing for the petitioners and learned counsel for respondent No. 8 who has supported the petitioners have addressed elaborate arguments hours together on 4 to 5 occasions. The Hon'ble Apex Court in the case of Ajit Kumar Rath Vs. State of Orissa and others, reported in 1999 (9) SCC 596 has observed that review can be exercised only for correction of a patent error of law or fact which stares on face without any elaborate argument being needed for establishing it. The reports of the Revenue Inspector and survey Officer found at page Nos. 793 and 794 in paragraph No. 32(3) does not pertain to the schedule properties is a minor mistake of inconsequential importance. Learned Senior counsel for the petitioners and learned counsel for respondent No. 8 have put forth repetitive, old and overruled arguments and it is not enough to re-open the concluded adjudication. There are no 49 material errors apparent on the face of the judgment undermining its soundness or results in miscarriage of justice. There is no error apparent on the face of the record. Petitioners have not made out any grounds for review of the judgment dated 23.04.2021 passed in W.A. No. 1089/2015. Hence, review petition is dismissed.
26. Further, petitioners have not made out any case for allowing I.A. Nos. 4/2021 and 5/2021. Hence, they are dismissed.
Sd/-
JUDGE Sd/-
JUDGE LRS CT-SM