Gujarat High Court
Railway Corridor Virodh vs Union Of India & on 17 October, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
RAILWAY CORRIDOR VIRODH KISHAN SANGH - THROUGH PRESIDENTV/SUNION OF INDIA C/MCA/2194/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION NO. 2194 of 2013 In WRIT PETITION (PIL) NO. 173 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ RAILWAY CORRIDOR VIRODH KISHAN SANGH -
THROUGH PRESIDENT &
4....Applicant(s) Versus UNION OF INDIA &
5....Opponent(s) ================================================================ Appearance:
MR VIKRAM J THAKOR, ADVOCATE for the Applicant(s) No. 1 - 5 MS.
VACHA DESAI, ASSTT. GOVERNMENT PLEADER for the Opponent(s) No. 6 MR I.H SYED, ADVOCATE for the Opponent(s) No. 1 MR PRASHANT G. DESAI, SR. COUNSEL with MR RAVI KARNAVAT, ADVOCATE for the Opponent(s) No. 2 - 5 NOTICE NOT RECD BACK for the Opponent(s) No. 2 - 6 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :17/10/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This is an application at the instance of the original petitioners of writ-petition (PIL) No. 173 of 2012, for review of our judgment and order dated 22nd February, 2013, substantially on the ground that this Court, while deciding the main writ-petition, failed to consider a binding precedent of a Five Judge Bench decision of the Supreme Court, reported in (2002) 3 SCC 533, thereby resulting in an error apparent on the face of the order. The facts leading to the filing of this Review Application may be summarized as under:-
2. The applicants came before this Court with a writ-petition in the nature of a public interest litigation, praying for the following reliefs:-
"(A) Be pleased to admit and allow this petition;
(B) Be pleased to issue writ of mandamus or writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the notification under Section 20A dated 22nd July, 2011, order dated 15th February, 2012, passed by the Competent Authority to reject the objections submitted by the farmers and final notification under Section 20(E) of the Railway Act, 1989 dated 4th April, 2012, and be pleased to hold and declare the action of the respondents to change the alignment of DFC from Pansar instead of continuing it to take parallel upto Sabarmati Railway Station is illegal, arbitrary, discriminatory and contrary to policy decision taken by Union of India;
(C) During the pendency and till final disposal of this petition, by way of interim relief, be pleased to restrain the respondents from taking any further steps in pursuance of notification dated 4th April, 2012 and be pleased to direct the respondents not to disturb the actual physical possession of the farmers of the lands covered by the notification under Section 20E with further direction to stay the further proceeding of acquisition of lands in pursuance of final notification under Section 20E of the Railway Act;
(D) Any other relief deemed just and proper may please be granted in the interest of justice."
3. Taking into consideration the rival submissions canvassed on either side and the materials on record, we framed the following three questions for our determination.
1. Whether the present petition in the form of a Public Interest Litigation (PIL) is maintainable or not?
2. Whether the competent authority vested with the powers to hear the objections of the affected persons under Section 20D of the Railways Act, 1989, could be said to have considered and decided the objections objectively?
3. Having regard to the materials on record could it be said that the competent authority under Section 20D abdicated its power while considering the objections and thereby, rendered the hearing given to the farmers a mere empty formality?
4. In our judgment dated 22nd February, 2013, we took the view that the Competent Authority had failed to apply its mind independently while considering the objections of the petitioners under Section 20D of the Railways Act, 1989 (for short "the Act"), and had acted solely on the basis of the communications at the end of the acquiring body. We took the view that it was a case of abdication of power, as according to Section 20D of the Act, it is the Competent Authority alone who is obliged to hear and consider the objections and thereafter, pass order either allowing or disallowing the objections. Accordingly, we made the following observations in paragraphs 45 and 46, which are reproduced below:-
"45. In such circumstances, we are left with no other alternative but, to set-aside the order dated 15.02.2012, passed by the competent authority under Section 20D of the Act and also the consequent notification dated 04.04.2012 passed under Section 20E of the Act, 1989.
46. We are of the opinion that this is a fit case wherein we should direct the competent authority to once again undertake the exercise of considering all the objections raised by the farmers with proper & independent application of mind on each and every aspect including the aspect of alignment and pass a reasoned order afresh."
5. We passed final order as contained in paragraph 47, observing as follows:-
"47. For the foregoing reasons, we set-aside the order dated 15.02.2012, passed by the competent authority under Section 20D of the Act and also the consequent notification dated 04.04.2012 issued under Section 20E of the Act, 1989. The competent authority is directed to undertake a fresh exercise to consider all the objections raised by the farmers including the objections as regards the alignment and pass a fresh reasoned order without being influenced in any manner by any of the observations made by this Court in this judgment or by any earlier communications at the end of the acquiring body. If necessary the competent authority may once again hear the farmers in person on the same objections which they had raised on 05.08.2011 and 09.08.2011 respectively. The competent authority shall complete this exercise within a period of four weeks from the date of receiving of certified copy of this judgment. Rule is made absolute to the aforesaid extent."
6. Thus, we set aside the order dated 15th February, 2012, which was passed by the Competent Authority under Section 20D of the Act, and also the consequent Notification dated 4th April, 2012, which was issued by the authority under Section 20E of the Act. We directed the authority to give a fresh opportunity of hearing to the farmers and also directed to consider their objections afresh without being influenced in any manner by any of the observations which were made by this Court, or by any earlier communications at the end of the acquiring body.
7. The tenor of our order was that the authority shall consider the objections afresh and pass necessary order under Section 20D of the Act, followed by a fresh Notification under Section 20E of the Act.
8. It appears that two Special Leave Petitions were filed before the Supreme Court against our judgment and order dated 22nd February, 2013, one by the Dedicated Freight Corridor Corporation of India Limited, being SLP No. 13758 of 2013, and the other one by the applicants herein, being SLP No. 13261 of 2013. So far as the SLP filed by the Dedicated Freight Corridor Corporation of India Limited is concerned, the same was dismissed vide order dated 12th April, 2013. So far as the SLP filed by the applicant herein is concerned, the same was disposed of as withdrawn in the following terms:-
"Shri Ahmadi, learned senior counsel appearing for the petitioner brings to our notice that the High Court has not considered the effect of the provisions of Section 20E of the Railway Act, 1989. For that purpose, he intends to file an appropriate Review Petition before the High Court and, therefore, seeks permission of this Court to withdraw the Special Leave Petition.
Permission sought for is granted.
The Special Leave Petition is disposed of as withdrawn.
Liberty is reserved to the petitioner to approach this Court, if he so desires in the event of the Review Petition is disposed of one way or the other.
However, we clarify that we have not expressed any opinion on the merits of the submissions made by learned senior counsel for the parties."
9. It appears that before the Supreme Court, it was argued that in our judgment and order dated 22nd February, 2013, we failed to consider the effect of Section 20E of the Act, inasmuch as if the Notification under Section 20E of the Act was ordered to be quashed and set aside, then whether the authority is empowered to issue a fresh Notification under Section 20E of the Act after giving opportunity of hearing under Section 20D of the Act, more particularly when the Notification under Section 20E had outlived its life as provided under the Section. In any view of the matter, the Supreme Court did permit the applicants to file such a Review Petition before us and, accordingly, the present Review Application has been filed.
10. Mr. Vikram J. Thakore, the learned Advocate appearing for the applicants submitted that the Court should have quashed the Notification under Section 20A of the Act, as prayed for in the petition, on the legal premise that once the Notification under Section 20E of the Act was set aside, then in such circumstances, the Notification under Section 20A also ought to have been quashed, since the statutory period of limitation had expired by the time the judgment was delivered.
11. The sum and substance of the submission of Mr. Thakore is that when a declaration under Section 20E of the Act is quashed by a Court, a fresh declaration could be issued, but within the same limitation period prescribed under Section 20E of the Act. The period prescribed under Section 20E (3) of the Act cannot be construed to commence from the date of receipt of the order of the Court quashing the declaration, in view of the clear language of the provisions of Section 20E of the Act.
Therefore, according to Mr. Thakore, in such circumstances, the Court should have quashed the entire acquisition proceedings including the first Notification issued under Section 20A of the Act. In support of his submission, Mr. Thakore has relied on a Constitution Bench decision of the Supreme Court in the case of Padma Sundara Rao Vs. State of Tamil Nadu, reported in (2002) 3 SCC 533.
Mr. Thakore, in such circumstances, prays that there being merit in this application for review, the same may be allowed and the error deserves to be rectified.
12. This application has been opposed by the opponent No.2, Dedicated Freight Corridor Corporation of India Limited.
Mr. Prashant G. Desai, the learned Senior Advocate appearing for the opponent No.2 vehemently submitted that there being no error, not to speak of any error of law in the judgment of this Court dated 22nd February, 2013, the application for review deserves to be rejected.
13. Mr. Desai submitted that it was open for the applicants to raise this issue of the consequence of quashing the Notification under Section 20E of the Act, and the power of the Authority to once again issue a fresh Notification under Section 20E of the Act, as directed by this Court, keeping the original Notification issued by the Authority under Section 20A of the Act intact, and since such a plea was not raised, the same cannot be raised by way of this review application, on the principle of constructive res-judicata.
According to Mr. Desai, it cannot be said that there is a discovery of new and important matter or evidence so as to make this application for review maintainable in law.
Mr. Desai submitted that it is a settled law that a review by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error where, without any elaborate argument, one could point to the error and say, here is the substantial point of law which stares the one in the face.
14. Mr. Desai submitted that when the petition was filed before this Court, the Notification under Section 20A of the Act was published in the Gazette dated 12th July, 2011, and was published in the newspaper on 22nd July, 2011. The objections were filed by the applicants on 5th August, 2011, and 9th August, 2011. The Competent Authority decided the objections under Section 20D of the Act on 15th February, 2012, and the Notification under Section 20E of the Act was gazetted on 4th April, 2012, and 11th April, 2012 respectively. According to Mr. Desai, Section 20E Notification was therefore, issued at the time when the petition was filed and the same was within the time period as prescribed under Section 20E of the Act. In such circumstances, the Court committed no error while quashing only the Notification issued under Section 20E of the Act.
Mr. Desai also submitted that pursuant to the order passed by this Court, the applicants actually appeared before the Competent Authority and lodged their objections afresh. They were given an opportunity of hearing, and therefore, now having once availed of the benefit of the order passed by this Court dated 22nd February, 2013, they should not be permitted to challenge the same by filing this review application. According to Mr. Desai, the applicants could be said to have acquiesced their right in filing the review application, and they could be said to have waived their right to object to Section 20A Notification.
Mr. Desai also tried to convince us that if this review application is entertained, then it will further delay the entire public project undertaken by the Railways, and therefore, even in the larger public interest, this application for review should not be entertained and deserves to be rejected.
15. Mr. Desai, in support of his submission, has relied upon the following decisions of the Supreme Court:-
1. Kamlesh Verma Vs. Mayawati and ors., reported in 2013 (3) G.L.H. 143;
2. Usha Stud and Agricultural Farms Private Limited and ors. Vs. State of Haryana and ors. reported in (2013) 4 SCC 210.
16. Having heard the learned counsel appearing for the parties and having gone through the judgment and order passed by us dated 22nd February, 2013, the only question that falls for our consideration in this application for review is, whether there is any error apparent on the face of the order which, if not corrected, would lead to miscarriage of justice?
17. Before we proceed to answer the afore-noted question, it is necessary for us to consider the scope of entertaining a review application in exercise of power under Article 226 of the Constitution of India.
18. Considering the amendment made in Section 141 of the Civil Procedure Code in the year 1976, the provisions of Order 47 of the Code relating to review are not applicable to the proceedings before the High Court under Article 226 of the Constitution of India. The powers of this Court to review its own judgment are the powers which every Court of plenary jurisdiction inheres. The Supreme Court in the case of Shivdeo Singh Vs. State of Punjab, reported in AIR 1963 SC 1909, held that it is sufficient to say that 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. Thus, although the Supreme Court by necessary implication negatived the attraction of the provisions of Order 47 of the Civil Procedure Code to the writ jurisdiction of the High Court, it firmly established the existence of such powers, but it clarified that such inherent powers could be invoked "to prevent miscarriage of justice or to correct grave and palpable errors committed by the High Court".
19. The aforesaid judgment of the Supreme Court came to be followed by the Bench of two Judges of the Supreme Court in the case of A.T. Sharma Vs. A.P. Sharma reported in AIR 1979 SC 1047, which reiterated the existence of inherent powers of the High Court to review its earlier decision in exercise of inherent powers. The Supreme Court in that case, however, clarified the ambit and scope of the power of review because in Shivdeo Singh's case (supra) the Supreme Court considered the existence of the power of review and the purpose of exercising that power alone. The Supreme Court in paragraph 3 observed as under:-
"It is true there is nothing in Article 226 of the Constitution to preclude the 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 of 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 power which may enable an appellate court to correct all manner of errors committed by the subordinate Court." (Emphasis supplied).
20. Thus, the following legal propositions are discernible from the two decisions of the Supreme Court referred to above:-
(1) The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court's power of review in proceedings under Art.226 of the Constitution.
(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet "palpable" means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).
(3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47 Rule 1, namely.
(i) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence;
(ii) existence of some mistake or error apparent on the face of the record; and
(iii) existence of any analogous ground.
These are the very three grounds referred to in order 47 Rule 1 Civil P.C. and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court's power.
21. In Meera Bhanja v. Smt. Nirmala Kumari Choudary, reported in AIR 1995 SC 455, the Supreme Court held that :
"It is well settled law that 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. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, the apex Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [AIR 1979 SC 1047] speaking through Chinnappa Reddy, J. has made the following pertinent observations:
It is true there is nothing in Article 226 of the Constitution to preclude the 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 of 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 in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court."
22. In a very recent pronouncement of the Supreme Court in the case of Kamlesh Verma Vs. Mayawati and ors. (supra), on which strong reliance has been placed by Mr. Desai, the Supreme Court has laid down few grounds of review.
"Summary of the principles:-
Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:-
(A) 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, (1955) 1 SCR 520, 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. JT 2013 (8) SC 275.
(B) 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."
23. Bearing the aforesaid principles in mind, we now proceed to consider the application on merits.
24. Following is the chronology of events, which deserves to be noted:-
(i) On 22nd July, 2011, Notification under Sec. 20A of the Act was issued;
(ii) On 15th February, 2012, the objections which were lodged by the applicants before the authority were over-ruled and accordingly, an order was passed in that regard;
(iii) On 4th April, 2012, Notification under Section 20E of the Act was issued;
(iv) The main writ-application was filed on 7th August, 2012;
(v) This Court passed the first interim order on 16th August, 2012;
(vi) The Notification under Section 20E was quashed vide our judgment and order dated 22nd February, 2013.
25. Section 20E of the Act, 1989 reads as under:-
20E.
Declaration of acquisition:- (1) Where no objection under subsection (1) of section 20D has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objections under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification, that the land should be acquired for the purpose mentioned in sub-section (1) of section 20A.(2)
On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.(3)
Where in respect of any land, a notification has been published under sub-section (1) of section 20A for its acquisition, but no declaration under sub-section (1) of this section has been published within a period of one year from the date of publication of that notification,the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period during which may action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 20A is stayed by an order of a court shall be excluded.(4)
A declaration made by the Central Government under subsection (1) shall not be called in question in any court or by any other authority.
26. Section 20E (3) makes it very clear that if the Notification under the said Section is not published within a period of one year from the date of publication of the Notification under Section 20A(1), then in such an event, the Notification under Section 20A shall cease to have any effect. There is a proviso for the purpose of computing the period of one year and according to the proviso, if the action or proceedings to be taken in pursuance of the Notification issued under sub-section (1) of Section 20A is stayed by an order of the Court, then such period of stay should be excluded for the purpose of computing the period of one year as provided under sub-section (3) of Section 20A.
27. By our judgment and order, we quashed and set aside the Notification under Section 20E of the Act, and directed the authority to give a fresh opportunity of hearing to the applicants and thereafter, pass the necessary order which would include a fresh Notification under Section 20E of the Act, without touching the original Notification issued under Section 20A of the Act.
Whether such a course was available with us, is the moot question.
To put it in other words, as we quashed the Notification under Section 20E of the Act, whether the authority could have issued a fresh Notification under Section 20E of the Act, which would definitely have been beyond the period of one year from the date of the Notification under Section 20A of the Act. The answer has to be in the negative, in view of a five Judge Bench decision of the Supreme Court in the case of Padma Sundara Rao (supra).
In the said case, a Notification under Section 4(1) of the Land Acquisition Act was issued and a declaration under Section 6(1) of the Act was made prior to the substitution of the then existing proviso to Section 6(1) of the Act by Act 68 of 1984, with effect from 24th August, 1984. The Notification under Section 4(1) of the act was issued before the commencement of the Land Acquisition (Amendment) Act, 1984, but after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 [replaced by the Land Acquisition (Amendment and Validation) Act, 1967. But the substituted proviso was in operation on the date of the impugned judgment. In such circumstances, the period of three years from the date of publication of the Notification under Section 4(1) of the Act contemplated under Clause (1) of the first proviso to Section 6(1) applied. In the said case, indisputably the Notification under Section 6(1) of the Act was made and published in the official gazette within the period of three years prescribed under the proviso thereto, but the same had been quashed by the High Court in an earlier proceeding.
28. The question which fell for the Supreme Court to consider was, whether after quashing of the Notification under Section 6 of the Act, a fresh period of limitation was available to the State Government to issue another Notification under Section 6 of the Act?
In the said case before the Supreme Court, such a subsequent Notification issued under Section 6 of the Act was questioned before the Madras High Court as being barred by limitation. The High Court of Madras, relying on the decision of the three Judge Bench in N. Narasimhaiah Vs. State of Karnataka (1996) 3 SCC 88 held that the same was validly issued. In appeal, a two Judge Bench of the Supreme Court, noticing cleavage in views expressed in several decisions rendered by Benches of three Judges, referred the matter to a Bench of three Judges, and by order dated 30th October, 2001, the matter was directed to be placed before a Constitution Bench, and that is how the whole issue was considered by the Constitution Bench.
29. Before the Constitution Bench, it was contended on behalf of the appellant that the declaration under Section 6 of the Act had to be issued within the specified time, and merely because the Court had quashed the declaration concerned, an extended time period could not have been provided. The Supreme Court accepted such a contention and disposed of the appeal observing thus:-
"5. Learned counsel for the appellant submitted that a bare reading of Section 6 of the Act as amended by Act 68 of 1984, leaves no manner of doubt that the declaration under Section 6 has to be issued within the specified time and merely because the Court has quashed the concerned declaration an extended time period is not to be provided. Explanation 1 (appended to the Section) specifically deals with exclusion of periods in certain specified cases. If the view expressed in Narasimhaiah s case (supra) is accepted, it would mean reading something into the statute which is not there, and in effect would mean legislation by the Court whereas it is within the absolute domain of the legislature. Per contra, learned counsel appearing for the State of Tamil Nadu submitted that the logic indicated in Narasimhaiah s case (supra) is in line with the statutory intent. Placing reliance on the decision in Director of Inspection of Income Tax (Investigation) New Delhi and Anr. Vs. Pooran Mal and Sons and Anr. (1975 (2) SCR 104), it was submitted that extension of the time limit is permissible. Apart from Pooranmal s case (supra), reliance was placed on two decisions rendered in relation to proceedings under the Income Tax Act, 1961 (in short the IT Act ), to contend that there is scope for extension of time though there was fixed statutory time prescription. The decisions relied on are Commissioner of Income Tax, Central Calcutta vs. National Taj Traders ( 1980 (1) SCC 370) and Grindlays Bank Ltd. vs. Income Tax Officer, Calcutta and Ors. (1980(2) SCC 191). It was, however, frankly conceded that in Grindlays s case (supra), question of limitation was not necessary to be gone into as the impugned action was taken within the prescribed time limit. It was contended that at the most, this can be considered to be a case of casus omissus, and the deficiency, if any, can be filled up by purposive interpretation, by reading the statute as a whole, and finding out the true legislative intent. Strong reliance was placed on a Full Bench decision of Madras High Court in K. Chinnathambi Gounder and Anr. vs. Government of Tamil Nadu and Anr. (AIR 1980 Madras 251) to contend that the view in the said case has held the field since long and the principles of stare decisis are applicable. Residually, it was submitted that many acquisitions have become final and if the matters are directed to be re- opened, in case a different view is taken, it would cause hardship.
6. Section 6(1) of the Act so far as relevant reads as follows:
"Declaration that land is required for a public purpose:- (1) Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under Section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1), irrespective of whether one report or different reports has or have been made (wherever required) under section 5-A, sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification under section 4, subsection (1)-
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification;
or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
[Explanation
1.- In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by an order of a Court shall be excluded."
7. As the factual scenario shows, in the case at hand the Notification under Section 4(1) of the Act was issued and the declaration was made prior to the substitution of the existing proviso to Section 6(1) by Act 68 of 1984 with effect from 24.8.1984. In other words, the Notification under Section 4(1) was issued before the commencement of Land Acquisition (Amendment) Act 1984, but after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (replaced by Land Acquisition (Amendment and Validation) Act 1967 (Act 13 of 1967). But the substituted proviso was in operation on the date of the impugned judgment. In terms of the proviso, the declaration cannot be made under Section 6 in respect of any land covered by the Notification under Section 4(1) of the Act after the expiry of three years or one year from the date of its publication, as the case may be. The proviso deals with two types of situations. It provides for different periods of limitation depending upon the question whether (i) the notification under Section 4(1) was published prior to commencement of Land Acquisition (Amendment and Validation) Ordinance, 1967, but before commencement of Land Acquisition (Amendment) Act, 1984, or (ii) such notification was issued after Land Acquisition (Amendment) Act, 1984. In the former case, the period is three years whereas in the latter case it is one year. Undoubtedly, the Notification under Section 6(1) was made and published in the official gazette within the period of three years prescribed under the proviso thereto, and indisputably, the same had been quashed by the High Court in an earlier proceeding. It has to be noted that Explanation 1 appended to Section 6(1) provides that in computing the period of three years, the period during which any action or proceeding to be taken in pursuance of the Notification under Section 4(1), is stayed by an order of the Court, shall be excluded. Under Tamil Nadu Act 41 of 1980, w.e.f. 20.1.1967, the expression used is "action or proceeding..is held up on account of stay or injunction", which is contextually similar.
8. Learned counsel for the respondents referred to some observations in Pooranmal s case (supra), which form the foundation for decisions relied upon by him. It has to be noted that Pooranmal s case (supra) was decided on entirely different factual and legal background. The Court noticed that assessee who wanted the Court to strike down the action of the Revenue Authorities on the ground of limitation had himself conceded to the passing of an order by the authorities. The Court, therefore, held that the assessee cannot take undue advantage of his own action. Additionally, it was noticed that the time limit was to be reckoned with reference to the period prescribed in respect of Section 132(5) of the IT Act. It was noticed that once the order has been made under Section 132(5) within ninety days, the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income-Tax Officer to pass a fresh order. That is the distinctive feature vis--vis Section 6 of the Act. The Court applied the principle of waiver and inter alia held that the period of limitation prescribed therein was one intended for the benefit of the person whose property has been seized and it was open to that person to waive that benefit. It was further observed that if the specified period is held to be mandatory, it would cause more injury to the citizens than to the Revenue. A distinction was made with statutes providing periods of limitation for assessment. It was noticed that Section 132 does not deal with taxation of income. Considered in that background, ratio of the decision in Pooranmal s case (supra) has no application to the case at hand.
9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vs. British Railways Board (1972) 2 WLR 537.Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
10. What appears to have weighed with the three-Judge Bench in Narasimhaiah s case (supra) is set out in paragraph 12 of the judgment, which reads as under:
"12. Having considered the respective contentions, we are of the considered view that if the construction as put up by the learned counsel for the appellants is given acceptance i.e., it should be within one year from the last of the dates of publication under Section 4(1), the public purpose would always be frustrated. It may be illustrated thus: In a given case where the notification under Section n4(1) was published, dispensing with the enquiry under Section 5-A and declaration was published within one month and as the urgency in the opinion of the Government was such that it did not brook the delay of 30 days and immediate possession was necessary, but possession was not taken due to dilatory tactics of the interested person and the court ultimately finds after two years that the exercise of urgency power was not warranted and so it was neither valid nor proper and directed the Government to give an opportunity to the interested person and the State to conduct an enquiry under Section 5-A, then the exercise of the power pursuant to the direction of the court will be fruitless as it would take time to conduct the enquiry. If the enquiry is dragged for obvious reasons, declaration under Section 6(1) cannot be published within the limitation from the original date of the publication of the notification under Section 4(1). A valid notification under Section 4(1) become invalid. On the other hand, after conducting enquiry as per court order and, if the declaration under Section 6 is published within one year from the date of the receipt of the order passed by the High Court, the notification under Section 4(1) becomes valid since the action was done pursuant to the orders of the court and compliance with the limitation prescribed in clauses (i) and (ii) of the first proviso to sub-section (1) of the Act would be made."
11. It may be pointed out that the stipulation regarding the urgency in terms of Section 5-A of the Act has no role to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of Notification under Section 4(1). Section 11 provides that the valuation of the land has to be done on the date of publication of Notification under Section 4(1). Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the Notification under Section 4(1) of the Act. The prescription of time limit in that background is, therefore, peremptory in nature. In Ram Chand and Ors. Vs. Union of India and Ors. (1994 (1) SCC 44), it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non-est and was effaced. It is fairly conceded by learned counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is, however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh Notification under Section 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that count.
12. The rival pleas regarding re-writing of statute and casus omissus need careful consideration. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous.
A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).
13. In Dr. R Venkatchalam and Ors. etc. vs. Dy. Transport Commissioner and Ors. etc. (AIR 1977 SC 842) it was observed that Courts must avoid thedanger of apriori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused andsubjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC 515)]. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah s case (supra). In Nanjudaiah s case (supra), the period was further stretched to have the time period run from date of service of High Court s order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.
15. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. I.R.C. (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".]
16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K Chinnathambi Gounder (supra) was rendered on 22.6.1979 i.e. much prior to the amendment by the 1984 Act. If the Legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curia neminem gravibit highlghted by the Full Bench of the Madras High Court has no application to the fact situation of this case.
17. The view expressed in Narasimhaiah s case (supra) and Nanjudaiah s case (supra), is not correct and is over-ruled while that expressed in A.S. Naidu s case (supra) and Oxford s case (supra) is affirmed.
18. There is, however, substance in the plea that those matters which have obtained finality should not be re-opened. The present judgment shall operate prospectively to the extent that cases where awards have been made and the compensations have been paid, shall not be reopened, by applying the ratio of the present judgment. The appeals are accordingly disposed of and the subsequent Notifications containing declaration under Section 6 of the Act are quashed."
30. If we apply the ratio of the afore-noted decision of the Supreme Court, then there is no escape from the fact that in the present case also, once we having quashed the Notification under Section 20E of the Act, the Notification under Section 20A of the Act also should have been quashed as a consequence of the same, having regard to the statutory time period prescribed under Section 20E(3) of the Act.
31. To the aforesaid extent, we are of the opinion that there is definitely an error so far as the final relief granted by us in our order dated 22nd February, 2013 is concerned, because our order permits the authority to issue a fresh Notification under Section 20E of the Act, after reconsidering the objections of the applicants, keeping in tact the Notification issued under Section 20A of the Act, dated 22nd July, 2011.
32. If any Notification is issued today under Section 20E of the Act, it would definitely be beyond a period of one year, which is not permissible in view of the provisions of Section 20E(3) of the Act. As on today, Section 20A Notification in substance ceases to have any effect. If that be the position, then there is no question of issuing a fresh Notification under Section 20E of the Act.
33. We are not impressed by the submission of Mr. Desai, the learned Senior Advocate appearing for the opponent No.2 that it is not permissible for the applicants to raise this issue by way of a review application, as the same would be hit by the principle of constructive res-judicata.
34. The principle of constructive res-judicata would have applied, had this plea been raised in some other proceedings between the same parties. To put it in other words, proceedings independent of the main writ-petition (PIL) No. 173 of 2011. In the present case, the applicants thought fit to first raise this issue before the Supreme Court by filing an SLP and the Supreme Court, permitted the applicants to withdraw the SLP with a liberty to file a review petition so as to enable them to take up this plea, which in fact, was not argued before us. However, only because this plea was not raised before us at the time of hearing of the main writ-application should not preclude us from taking into consideration such a plea in this review application, since the plea goes to the root of the matter.
35. We are also not impressed by the submission of Mr. Desai that pursuant to our order dated 22nd February, 2013, the applicants appeared before the competent authority and the competent authority gave them an opportunity of hearing, as directed by this Court, and having once availed of the benefit of the order dated 22nd February, 2013, now at this stage the applicants cannot turn around and contend that there is an error in the order passed by this Court.
36. It is a settled law that there cannot be any waiver of a legal right conferred by a statute for the benefit of a person who seeks to enforce the same. Every party has a right to waive the advantage of a law made solely for his benefit and protection. However, there can be no waiver of a statutory requirement which is imposed in public interest. If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, Quilibet protest renuntiare juri pro se introducto ("An individual may renounce a law made for his special benefit").
37. As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court." (See Craies on Statute Law Seventh Edition, page 269).
Thus it is clear that a waiver, i.e. an intentional relinquishment of a known right conferred by a statute will be inoperative and void if it would be against public policy. This principle was approved by the Supreme Court in Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300. The relevant observations read :
"Where the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interest, but in the interest of the party that waives it."
In this judgment the Supreme Court approved the workable test which has been laid down by Justice Coleridge in Holmes v. Russell, (1841) 9 Dowl 487 which read :
"It is difficult sometimes to distinguish between an irregularity and a nullity but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection, if he can waive it, it amounts to an irregularity, if he cannot it is a nullity."
38. We are conscious of the fact that the project is a very important one in the public interest, but at the same time, only on the ground of such public project getting delayed, we should not ignore the error which is apparent on the face of the record, and if not corrected, would lead to serious miscarriage of justice.
39. Mr. Desai also tried to convince us that this Review Application is not maintainable as our order dated 22nd February, 2013 got merged with the order of the Supreme Court. According to Mr. Desai, this application should be rejected on the doctrine of merger.
We are afraid there is no merit in this submission of Mr. Desai, as it is apparent that no leave was granted by the Supreme Court and the SLP was permitted to be withdrawn with liberty to file an application for review before this Court. In such circumstances, the doctrine of merger has no application.
40. It is well-settled that the omission of the Court to advert to a binding precedent of the Supreme Court falls within the ambit of "error apparent on the face of the record" and would also be "other sufficient cause". There is a well recognized maxim of equity, namely, actus curiae neminem gravabit which means an act of the court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform.
41. In the aforesaid context, we may profitably refer to a Supreme Court decision in the case of Commissioner of Sales Tax, Jammu & Kashmir Vs. Pine Chemicals Limited, reported in (1995) 1 SCC 58. In the said case, petitions were filed by the Commissioner of Sales Tax, Jammu & Kashmir, before the Supreme Court, seeking the review of the Court's order dated 16th January, 1992, in the matter between Pine Chemicals Limited Vs. Assessing Authority, which is a reported decision in (1992) 2 SCC
683. The matter was under the Jammu & Kashmir General Sales Tax Act, and the Central Sales Tax Act. By the said judgment, the Supreme Court allowed the appeals which were preferred by the dealers (Pine Chemicals Limited), setting aside the judgment of the Jammu & Kashmir High Court. In the review application, the question before the Supreme Court was whether the Bench, which decided Pine Chemicals Limited (supra) was right in holding that the benefit of the sub-section (2-A) of Section 8 of the Central Sales Tax Act was available even where the goods were exempted with reference to industrial unit and for a specified period, namely, period of five years from the date relevant unit would go in to production. It was brought to the notice of the Supreme Court in the review application that while deciding Pine Chemicals (supra), the Court omitted to consider two earlier decisions of the Supreme Court binding in nature, in the case of Indian Aluminium Cables Limited Vs. State of Haryana reported in (1976) 4 SCC 27 and International Cotton Corporation Limited Vs. CTO reported in (1975) 3 SCC 585.
It was submitted by the learned counsel opposing the review application that in the judgment, which was under review, the error was not one which could be termed as an error apparent on the face of the record and that the view, which was taken by the Supreme Court in Pine Chemicals could be termed as a possible view and in any event, it could not be said that the view taken in the judgment under review was a view which could not have been possibly taken.
The submission of the learned counsel did not find favour with the Supreme Court, and the Supreme Court took the view that in the light of the said binding decisions referred to above, it was not open to the Bench deciding Pine Chemicals (supra) to place the interpretation it did on the sub-section. Saying so, the Supreme Court set aside the judgment in Pine Chemicals (supra) in so far as the interpretation of Section 8(2A) of the Central Sales Tax Act was concerned. Accordingly, the judgment under review was set aside and the appeals which were preferred by the dealers - assesses were ordered to be dismissed.
42. From the aforesaid decision of the Supreme Court, it is discernible that if the interpretation of law adopted by a Bench is found to be inconsistent with the earlier decisions delivered by a coordinate Bench and a larger Bench, and if such a fact is brought to the notice of a Court by way of a review application, then it amounts to an error apparent on the face of the record.
In the present case, our judgment and order is in conflict with a five Judge Bench decision of the Supreme Court.
43. A writ Court exercises its power of review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a Court of law but also as a Court of equity. A clear omission on the part of the Court to take into consideration a binding precedent of the Supreme Court directly applicable to the facts of the case would definitely be subjected to review on the principle of the maxims afore-noted.
44. In such circumstances, we are of the opinion that we should correct our order dated 22nd February, 2013 accordingly, and more particularly the final relief granted by us, as contained in paragraph 47. We, accordingly, review our order to the extent of paragraph 47 only, and pass the modified order in the following terms:-
"For the afore-noted reasons, the public interest litigation is allowed. We set aside the order dated 15th February, 2012, passed by the competent authority under Section 20D of the Act, and also the consequent Notification dated 4th April, 2012, issued under Section 20E of the Act, 1989. Since we have quashed the Notification dated 4th April, 2012, issued under Section 20E of the Act, 1989, the Notification dated 22nd July, 2011, issued under Section 20A of the Act, 1989, is also quashed and set aside."
45. In view of the modified order passed by us referred to above, it is now not necessary for the competent authority to undertake a fresh exercise for the purpose of taking into consideration the objections raised by the farmers including the objections as regards the alignment as directed by us in our judgment and order dated 22nd February, 2013. In that view of the matter, it is also not necessary now for the competent authority to pass a fresh reasoned order on the objections which have been raised by the farmers within a period of four weeks, as directed by us in our judgment and order dated 22nd February, 2013. However, if such exercise has already undertaken pursuant to our earlier order and a fresh order has been passed under Section 20D of the Act, 1989, then the same should be ignored.
It will be open for the authority to undertake a fresh exercise of acquisition in accordance with law.
46. The Review Application is, accordingly, allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas After this order is passed, Mr. P.G. Desai, the learned Senior Advocate appearing on behalf of the respondent prays for stay of operation of our order. In view of what has been stated above, we find no reason to stay our order. However, certified copy of this order be supplied to Mr. Desai, if his client applies for it, by tomorrow.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 35 of 35