Delhi High Court
Aizaz Alam vs Union Of India (Uoi) And Ors. [Along With ... on 21 April, 2006
Equivalent citations: 130(2006)DLT63
Author: T.S. Thakur
Bench: T.S. Thakur, B.N. Chaturvedi
JUDGMENT T.S. Thakur, J.
1. All these review petitions, arise out of a common judgment and order passed by this Court in a batch of cases, challenging acquisition of land, owned by the petitioners for a public purpose. Messrs P.N. Lekhi and Ravinder Sethi, learned senior counsel appearing for the petitioners have, in the course of their extensive argument before us, urged that the judgment under review suffers from errors apparent on the face of the record in as much as this Court had not considered the following questions that fell for consideration in addition to the two questions that were formulated and answered by us:
(i) That no public purpose existed for the acquisition in question nor was there any material to support any such purpose;
(ii) That the total area required for "Anjuman Sher-E-Gul Faroshan" was limited to around 4000 sq.yds whereas the respondent had notified a much larger area measuring 72 bighas. There was, according to learned counsel, no requirement for such an extensive acquisition unrelated to any other purpose - public or otherwise;
(iii) The judgment delivered by this Court in the previous round of litigation was legally unsustainable in as much as a common notification having been issued under Section 4 and 17(1) of the Land Acquisition Act, 1894, the Court was not justified in quashing the notification in part to the extent it was under Section 17(4) and upholding the part that was referable to Section 4 of the Act;
(iv) The Delhi Development Authority had proposed de-notification of the area under acquisition on the ground that it had no scheme for its development. In the absence of a scheme, the proposed acquisition was bad;
(v) The interpretation placed by this Court upon the decision of the Supreme Court in Padma Sunder Rao v. Union of India, was erroneous. The Court had overlooked the fact that if the interpretation which it had accepted was the true interpretation, then the owners of the land being acquired, would be deprived of interest during the extended period; and
(vi) That Badar Durrez Ahmed, J. who was a member of the Bench hearing the batch of cases ought to have recused himself from the hearing as he had done so when the present review petition had come up before his Lordship.
2. Reliance was in support of the above submissions, placed by the learned Counsel upon the decisions of the Supreme Court in Union of India v. Krishan Lal Arneja, ; State Bank of India v. Samarendra Kishore Endow and Anr., ; Ambala D.Bhatt v. State of Gujarat, ; Gardner v. Marsh & Parsons. (1997) 3 ALL ER 871; County Ltd. v. Girozentrale Securities, (1996) 3 ALL ER 834; Gujarat Steel Tubes Ltd. and Ors. v. Gujarat Steel Tubes Mazdoor Sabha, ; Union of India v. Mukesh Hans, ; BCCI v. Netaji Cricekt Club, & M.M. B. Catholicos v. M.P. Athanasius, AIR 1954 SC 526.
3. On behalf of the respondents, it was, on the other hand, argued by Ms.Geeta Luthra that the points which the petitioners are now urging, had never been urged at the time of hearing of the petitions in which only two issues were formulated and argued by counsel for the petitioners. The issues now sought to be raised having been abandoned by the petitioners, there was no question of testing the correctness of the judgment of this Court by reference to the same. She argued on the authority of the decisions of the Supreme Court that a review petition was not meant to be a re-hearing of the case but had to be confined to finding out whether the judgment under review suffered from any error apparent on the face of the record. Even in cases where a second view was possible, the Court that has taken one of the two possible views, cannot be called upon to review the order just because another view was also logically possible. The power of review, argued the learned counsel, was available only for correcting a mistake. It could not be invoked to substitute the view taken by the Court by another view as was being proposed by the petitioners. She also refered to the order of this Court passed in review application No.266 of 2005, disposed of on 21st September, 2005 and urged that this Court having already rejected a similar review petition, there was no room for taking a different view in the present batch of petitions.
4. We have given our anxious consideration to the submissions made at bar. As rightly pointed by Ms.Luthra, we have, by an order dated 21st September, 2005, already dismissed a review petition against the judgment under review. In that case also as in the present, the petitioners' grievance was that this Court had not adverted to three questions which the petitioners had raised in that petition. Two of the said questions are the very same questions as have been formulated even by the petitioners in this batch of review petitions, viz., that there was no public purpose for the acquisition in question and that the area required by "Anjuman Sher-E-Gul Faroshan" was just about 4000, sq yds. and no more. This Court, while dismissing the said petitions, held that only two points had been urged on behalf of the petitioners before the Court which points have been answered against the petitioners resulting in the dismissal of the writ petitions. This court made it clear that none of the points that were now sought to be put forth, had been argued or pressed at the hearing with the result that the Court had not adverted to the same nor was it necessary for the Court to advert to each and every point taken in the writ petition but abandoned at the hearing. The following passage from our order dated 21st September, 2005 in the earlier review petition apposite:
It is not the case of the petitioner in the review petition nor was it urged before us by learned Counsel appearing for him that apart from the above two points formulated by this Court, any one of the points now being urged in support of the review petition was ever argued and pressed at the time of hearing. The question whether there existed a public purpose, the question whether the area required for satisfying the said purpose was limited to 4000 sq. yds. the question whether the declaration under Section 6 of the Act was bad as it used the expression 'required' instead of the word 'needed', were never argued before the Court at the final hearing. Even assuming that these questions had been raised by the petitioner in his writ petition, it was open to the counsel appearing for the petitioner to abandon the same and confine his submission to what was actually argued and decided by the Court. The argument that since a point was taken in the writ petition, the same ought to have been decided by the Court even when it is not argued and pressed at the hearing, has not impressed us. There is no error apparent on the face of the record in the order passed by us to warrant review. The petition is, accordingly, dismissed.
5. The above position holds good even in the present batch of cases. Mr.Ravinder Sethi, learned senior counsel appearing for the review petitioners, who had argued even the writ petitions, fairly conceded that no point other than the two formulated by this Court had been urged before the Court. According to him, other points even though raised in the writ petitions, were not urged as the petitioners were confident of a judgment in their favor on the two questions which the Court had framed for determination. Be that as it may, the fact remains that arguments in the writ petitions were limited to the two questions were framed and answered by this Court in the judgment under review. The other issues now sought to be agitated were never raised or pursued by the petitioners. That being so, the correctness of the order cannot be judged by reference to the new points which the petitioners may now have been advised to raise. As observed by this Court in the order extracted above, it is not necessary for the Court to take up every point which a litigant may have raised in his pleadings and determine the same. It is open to a litigant to abandon any ground otherwise available to him and to limit his challenge or the prayer for relief to what he thinks or is advised would earn him a favorable judgment. Whether or not Planned Development of Delhi constituted a public purpose; whether or not acquisition of an area larger than what was needed by "Anjuman Sher-E-Gul Faroshan" was permissible; whether or not the Delhi Development Authority had a development scheme are issues which were never agitated at the hearing of the writ petition nor can they be agitated in a review petition, the scope whereof is limited to finding out whether the judgment under review suffers from any error apparent on the face of the record.
6. The legal position regarding the scope and nature of the power of review is settled by the decisions of the Supreme Court in a long line of decisions. In Parsion Devi v. Sumitri Deviu , where dealing with the scope of a review under Order 47 Rule 1 CPC, the Court declared:
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 fact 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". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
7. To the same effect is the decision of the Supreme Court in Ajit Kumar Rath v. State of Orissa & Ors., , where the Court said:
A review cannot be sought merely for a fresh hearing or arguments or correction of an erroneous view taken earlier. The power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it.
8. We may also gainfully extract the following passage from the decision of the Supreme Court in Meera Bhanja v. Nirmala Kumari Choudhury , where the Court, while dealing with the scope of review, has observed:
The 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. The review petition has to be entertained only on the ground of error apparent on the fact of the record and not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of courts under Order 47 Rule 1, CPC is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226.
9. Applying the above principles to the present review petitions, there is no gainsaying that the review of the order passed by this Court cannot be sought on the basis of what was never urged or argued before the Court. The review must remain confined to finding out whether there is any error apparent on the face of the record. As observed by the Supreme Court in Lily Thomas and Ors. v. Union of India & Ors., , the power of review can be used to correct a mistake but not to substitute one view for another. That explains the reason why Krishna Iyer, J. described a prayer for review as "asking for the moon" M/s.Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, .
10. In the light of what is stated above, we have no difficulty in holding that the prayer for review of the order passed by this Court is wholly misconceived if it is, as indeed it appears to be, based on issues that were never raised and questions that were never argued before the Court.
11. Having said that we may as well deal with the submission, which Mr.Lekhi forcefully urged on the authority of the Supreme Court in Union of India v. Krishan Lal Arneja, . It was contended by Mr.Lekhi that the Division Bench of this Court had in the previous round of litigation quashed the notification under Section 17(4) while upholding the same under Section 4 of the Land Acquisition Act. That order was, according to the learned counsel, legally unsound, no matter, the judgment delivered by this Court had been challenged before the Supreme Court and upheld in Union of India v. Mukesh Hans, . The argument was that this Court could, in a challenge to the fresh declaration issued by the respondents under Section 6 of the Act, examine the correctness of the view taken earlier and quash the declaration on the ground that notification under Section 4 of the Act could not have survived after the same notification, to the extent it purported to be under Section 17(4), was quashed by this Court. Mr.Lekhi was at pains to call in aid the doctrine of causa causans and argued that such a course was legally permissible.
12. We regret our inability to accept the submission of Mr.Lekhi. Even assuming that the point raised by the learned Counsel is examinable, yet since no such point had been urged before us in the writ petitions, there is no question of review of the judgment on that ground. More importantly the view taken by this Court that the illegality attached to the notification under Section 17(4) did not affect the validity of the notification under Section 4 and the direction to the authorities to entertain the objections of the owners and to examine the same for a fresh declaration under Section 6 could and ought to have been challenged by the petitioners if they considered the same to be illegal and unacceptable. That is not what the owners did. They remained content with the direction issued by this Court and filed objections before the Collector. It was only the Union of India, who had challenged the decision of this Court, quashing the notification under Section 17(4) in the Supreme Court. There is nothing in the judgment of the Supreme Court to show that the arguments now sought to be urged were at any stage advanced before their Lordships. The dismissal of the appeal by the Supreme Court gave finality to the view taken by the Division Bench of this Court in the earlier round of proceedings. That being so, it is difficult to see how in a fresh challenge to the fresh declaration issued pursuant to the previous decision, the petitioners could urge or the Court could examine whether or not the previous decision of a coordinate Bench was or was not correct. It is fairly well settled that even an erroneous decision would operate as res judicata between parties. The previous decision was, in the opinion of the petitioners, or on their understanding of the legal position contrary to any settled principle of law or decision of the Supreme Court would not, therefore, make any material difference so long as that decision had been allowed to attain finality and so long as that decision had remained undisputed in appeal filed by the opposite party. Beyond that we do not think it necessary for us to make any observation at this stage.
13. That leaves us with the question whether the interpretation of this Court on the decision of the Supreme Court in Padma Sundara Rao's case (supra) suffers from any error apparent on the face of the record. We have at considerable length heard Mr.Sethi, who made yet another attempt to persuade us to hold that the provisions of Explanation 1 to Section 6 will have no application to a fresh declaration issued after the earlier declaration is quashed. In our view, the provisions of the explanation do not make any distinction between the first or a second declaration after the first is quashed or withdrawn. For purposes of determining whether a declaration is within the time allowed by law for the same the Explanation (1) does not get obliterated from the statute book. If the first declaration is quashed, a second declaration would be within time provided it is within the period of one year from the date of the issue of notification under Section 4 after excluding the period during which the proceedings were stayed by the Court. The view taken by this Court on the above legal proposition is a considered view which does not, in our opinion, suffers from any error apparent or otherwise.
14. That brings us with the only other submission feebly urged by Mr.Sethi. It was contended that Badar Durrez Ahmed,J. should have recused himself since his Lordship's mother late Begum Abida Ahmed was at some stage associated with "Anjuman Sher-E-Gul Faroshan". There is no merit in that submission either. The petitioners have been fighting the litigation for a number of years now. The proceedings have been pending in this Court for a long time, in the first and the second round. If the petitioners had any real grievance against Justice Ahmed's hearing the matter, they ought to have pointed out the same at the beginning itself. This they did not do and allowed the matter to be argued for a number of days and then decided. There is no allegation that Justice Ahmed has been himself associated with "Anjuman Sher-E-Gul Faroshan" either directly or indirectly. Begum Abida Ahmed has passed away years ago. We, therefore, see no real basis for the argument that Justice Ahmed should not have been a part of the Bench that heard the matters. It was only when these review petitions came up and the issue brought up by some of the petitioners that Justice Ahmed had as a matter of propriety recused himself from the hearing of the review petitions. That does not necessarily mean that the judgment under review suffers from any vice of coram non judice or otherwise.
15. In the result, these review petitions fail and are hereby dismissed with costs assessed at Rs. 2000/- in each case.