Telangana High Court
Smt. Beeboo Begum vs The Special Deputy Collector on 19 June, 2023
ASR,J
CRP Nos.2394_2396_2392_2019
1
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CIVIL REVISION PETITION Nos.2394, 2396 and 2392 of 2019
COMMON ORDER:
CRP No.2394 of 2019 is filed to set aside the order dated 03.06.2019 in I.A.No.1413 of 2018 in I.A.OP No.1322 of 2013 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad.
CRP No.2396 of 2019 is filed to set aside the order dated 03.06.2019 in I.A.No.03 of 2019 in I.A.No.1413 of 2018 in I.A.OP No.1322 of 2013 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad.
CRP No.2392 of 2019 is filed to set aside the order dated 03.06.2019 in I.A.No.04 of 2019 in I.A.No.1413 of 2018 in I.A.OP No.1322 of 2013 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad.
2. All these three revisions are filed by petitioners - claimant Nos.1 to 6 and 9 in LAOP No.1322 of 2013 on the file of IX Additional Chief Judge, City Civil Court, Hyderabad. Since all the three revisions arose out of the same proceedings, they are heard together and disposed of by way of common order.
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3. The facts relevant for consideration of the present revisions in brief, are as under:
The Greater Hyderabad Municipal Corporation (GHMC), Hyderabad has acquired the properties of the petitioners for the purpose of road widening and construction of flyover on the Musi River from Golnaka to Malakpet and the GHMC awarded certain compensation to the petitioners. Being not satisfied with the same, the petitioners filed an application for reference under Section 18 of the Land Acquisition Act, 1894 (for short "the LA Act") and the same was numbered as LAOP No.1322 of 2013 on the file of IX Additional Chief Judge, City Civil Court, Hyderabad. The petitioners -
claimants filed their claim statements in the reference Court seeking for enhancement. During enquiry, claimant Nos.7 and 9 examined as PWs 1 and 2 and marked Exs.P1 to P6. The respondents examined RW1 and marked Exs.B1 to B3. On consideration of the evidence on record, the reference Court by order dated 01.02.2018 dismissed the said LAOP No.1322 of 2013 mainly inter alia on the ground that the parties to the documents are not examined in proof of the sale deeds relied on by the claimants.
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4. Aggrieved by the same, the petitioners herein filed review application in I.A.No.1413 of 2018 in LAOP No.1322 of 2013 seeking to review the order and decree dated 01.02.2018 in LAOP No.1322 of 2013 as amended by orders dated 11.07.2018 in I.A.No.742 of 2018 passed by the IX Additional Chief Judge, City Civil Court, Hyderabad, contending that there is an error apparent on the face of the order as per Section 51-A of the Act. The documents in Exs.P1, P2, P4 and P5 were got marked without any objection and they are not properly considered and appreciated by the Court. The petitioners further contended that the aspects with regard to solatium benefit of 30% on the land value and also structural value, further 12% additional market value on the total amount of compensation etc., are not properly considered and apart from that the interest has to be paid on all the components i.e. land value, value of constructions/buildings, 30% solatium on both these amounts under Section 23(2), 12% additional market value on the components under Section 23(1-A) of LA Act. Therefore, the claimants are entitled all these benefits @12% interest towards additional market value on the balance amount from 21.11.2007 till the date of actual payment and to that interest @9% per annum under Section 28 of LA Act from the date of acquisition till payment. However, the reference Court once again considered the material ASR,J CRP Nos.2394_2396_2392_2019 4 evidence on record and the contentions raised in the review application, dismissed the same on 03.06.2019. The claimants also filed I.A.No.4 of 2019 in I.A.No.1413 of 2018 to receive certified copies of the registered sale deeds by way of additional evidence and also filed another application in I.A.No.3 of 2019 in I.A.No.1413 of 2018 to recall PW2 for further examination in the review application. Both these applications were also dismissed by the reference Court in view of the dismissal of the review application. Challenging the said orders, the petitioners - claimants filed the present three revisions.
5. Learned counsel for the petitioners contended that there is an error apparent on the face of the order of the reference Court and the grounds have been clearly raised before the reference Court and the reference Court committed error by dismissing the review application and also not permitting to recall PW2 for further examination and to receive the certified copies of registered sale deeds by way of additional evidence. Learned counsel further contended that the error apparent on the face of the orders in LAOP No.1322 of 2013 with regard to grant of interest under Section 34 of the LA Act, which is compulsorily payable on all components till the entire amounts are deposited. The reference Court has not ASR,J CRP Nos.2394_2396_2392_2019 5 considered the settled principles, statutory provisions which constitute a mistake/error apparent on the face of record and there are sufficient grounds to invoke its jurisdiction under Section 114 read with Order 47 Rule 1 of CPC.
6. Learned counsel for the petitioners has placed reliance on the following judgments:
1. Gulam Abbas & others v. Mulla Abdul Khader
2. Sunil Vasudeva & others v. Sundar Gupta
3. Sundar v. Union of India
4. Ranvir Singh v. Union of India
5. jayachandra mahopatra v. Land Acquisition officer
7. Per contra, learned Government Pleader for respondent No.1 has submitted that there is no error apparent on the face of the orders passed by the reference Court, while dismissing the LAOP No.1322 of 2013. He further submitted that there are no merits in the contentions of the review petitioners that the reference Court has not considered the statutory provisions, relevant case laws, settled principles of law. He further submitted that there are no sufficient grounds to invoke the jurisdiction of the review, as such the reference Court has rightly dismissed the review application and also other two applications. He further submitted that there are no justified grounds to interfere with the orders of the reference Court, and as such prayed to dismiss the three revisions.
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8. I have heard the learned counsel for the parties and perused the material available on record.
9. I would like to refer the scope and ambit of the powers of Court under Section 114 read with Order XL VII Rule 1 of CPC as under:
10. Section 114 of C.P.C which is the substantive provision, deals with the scope of review and states as follows:
Review:- Subject as aforesaid, any person considering himself aggrieved:-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred;
(b) by a decree or order from which no appeal is allowed by this Code; or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
11. The grounds available for filing a review application against a judgment have been set out in Order XLVII of C.P.C in the following words:
1. Application for review of judgment -
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, ASR,J CRP Nos.2394_2396_2392_2019 7
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or Order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]
12. A glance at the aforesaid provisions makes it clear that a review application would be maintainable on (i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason.
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13. In Sunil Vasudeva's case (2 Supra), the Hon'ble Supreme Court at para No.28 observed as under:
"28. The basic principles in which the review application could be entertained have been eloquently examined by this Court in Kamlesh Verma v. Mayawati (2013) 8 SCC 320, wherein this Court held as under:
"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337.
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.
(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 ASR,J CRP Nos.2394_2396_2392_2019 9 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 negative".
14. Taking note of the exposition of the above principles, let me consider the facts on record. In the present case, it is not in dispute that the properties of the petitioners acquired for road widening by GHMC and the compensation was awarded. The petitioners are not satisfied with the compensation awarded, sought for a reference under Section 18 of the LA Act and the reference was numbered as LAOP No.1322 of 2013. The land acquisition officer under the award dated 29.01.2018 in Award No.AA/795/2007 awarded certain amounts which are as follows:
Date of Section 4(1) notification : 18.11.2007 Date of Section 6 draft declaration : 19.11.2007 Date of Award : 29.01.2008 Compensation warded : Land acquisition officer fixed the compensation @Rs.9,900/- per Square yard for the area of 272.86 Sq.Yard and value of the structure at Rs.5,30,602/-. The LAO also awarded solatium only on land value under Section 23(2) of LA Act and 12% AMV only on the land value from 21.11.2007 to 23.01.2008 i.e. the date of notification to the date of award under Section 23(1-A) of the LA Act.
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15. The petitioners have filed their claim statements in the reference Court seeking for enhancement, where under claimant Nos.7 and 9 evidence was also recorded and they have filed the documents under Exs.P1 to P6. On consideration of the material on record, the reference Court dismissed the said LAOP No.1322 of 2013. A perusal of the orders would indicate that PW1 claimed compensation @Rs.20,000/- per square yard and at the rate with 30% solatium and the value towards the structure totaling to Rs.26,42,160/- along with interest. PW1 filed Exs.P1 and P2 sale deeds, Ex.P4 gift settlement deed, Ex.P5 partition deed and also market value certificate under Ex.P3. However, the reference Court held that Exs.P1 and P2 relate to the transactions of 1987 and 1975 and so also Exs.P4 and P5 which are not the sale deeds showing that the properties in the vicinity of the acquired properties are sold at a particular rate.
16. As regards, the claim of PW2 i.e. claimant No.9, he claimed to award compensation of Rs.30,000/- per square yard and in support of his case, he filed the market value certificate under Ex.P6 and the same was not accepted by the reference Court expressing doubt about its validity. On a consideration of the documents and oral evidence, the reference Court has ordered that the claimants are ASR,J CRP Nos.2394_2396_2392_2019 11 not entitled for enhanced compensation, accordingly, dismissed the claim petition. The revision petitioners have filed review application in IA No.1413 of 2018 and the reference Court dismissed the said application on the ground that the power of review can be exercised for correction of the mistake, but not to substitute a view. Since the petitioners failed to show error apparent on the face of the order, the review petitions are not maintainable and the said applications were dismissed by the reference Court.
17. Coming to the first contention raised by the learned counsel for the petitioners that the reference Court has not properly appreciated the documents i.e. sale deeds. It appears that the contention raised by the counsel for the petitioners in this regard has got some force, which is quite evident on a reading of the orders of the reference Court in LAOP No.1322 of 2013. The reference Court has categorically held at para No.6 that the documents cannot be looked into, as none of the parties connected to said documents are examined.
18. On the said contention, it is necessary to refer Ranvir Singh's case (4 supra) which is quite relevant for proper appreciation of the documentary evidence in the land acquisition matters. In the said ASR,J CRP Nos.2394_2396_2392_2019 12 judgment, the Hon'ble Supreme Court at para Nos.22 and 23 held as under:
"22. Concededly, the High Court in its impugned judgment did not place any reliance whatsoever upon the sale instances whereupon strong reliance has been placed by the parties solely on the ground that neither the vendors nor the vendees thereof had been examined as witnesses. It has also not placed any reliance upon any other judgment or award filed by the parties. The High Court while arriving at the said finding evidently took into consideration the law as it then stood. The correctness of the decisions wherein the aforementioned view had been taken was doubted and the matter was referred to a larger Bench. A Constitution Bench of this Court in Cement Corporation of India Ltd., (2004) 8 SCC 270, opined:
"25.Section 51A of the Land Acquisition Act seeks to make an exception to the aforementioned rule.
26. In the acquisition proceedings, sale deeds are required to be brought on records for the purpose of determining market value payable to the owner of the land when it is sought to be acquired.
27. Although by reason of the aforementioned provision the parties are free to produce original documents and prove the same in accordance with the terms of the rules of evidence as envisaged under the Indian Evidence Act, the L.A. Act provides for an alternative thereto by inserting the said provision in terms whereof the certified copies which are otherwise secondary evidence may be brought on record evidencing a transaction. Such transactions in terms of the aforementioned provision may be accepted in evidence. Acceptance of an evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record. Acceptance of evidence by a court would be dependent upon the facts of the case and other relevant factors. A piece of evidence in a given situation may be accepted by a court of law but in another it may not be.
28. Section 51 A of the L.A. Act may be read literally and having regard to the ordinary meaning which can be attributed to the term 'acceptance of evidence' relating to transaction evidenced by a sale deed, its admissibility in evidence would be beyond any question. We are not oblivious of the fact that only by bringing a documentary evidence in the record it is not automatically brought on the record. For bringing a documentary evidence on the ASR,J CRP Nos.2394_2396_2392_2019 13 record, the same must not only be admissible but the contents thereof must be proved in accordance with law. But when the statute enables a court to accept a sale deed on the records evidencing a transaction, nothing further is required to be done. The admissibility of a certified copy of sale deed by itself could not be held to be inadmissible as thereby a secondary evidence has been brought on record without proving the absence of primary evidence. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, therefore, has been conferred upon a court to be exercised judicially, i.e., upon taking into consideration the relevant factors."
In view of the said latest pronouncement of this Court, thus, the High Court was required to consider the deeds of sale in their proper perspective for determining the market values of the acquired land.
23. The contention of Mr. Nariman that the Xerox copies of the deeds of sale produced by the parties were not admissible in evidence in terms of Section 51A of the Land Acquisition Act is stated to be rejected. The provisions of the Indian Evidence Act postulate that secondary evidence can be led by the parties in the event primary evidence is not available. In a case of this nature, however, the claimant-respondents may be aware of the transactions. Indisputably, they did not raise any objection as regard admissibility of the said deeds of sale. The Xerox copy of the deeds of sale were marked exhibits without any objection having been taken by the Respondents herein. Such an objection cannot, therefore, be taken for the first time before this Court. [See R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752 & Dayamathi Bai (Smt.) vs. K.M. Shaffi - (2004) 7 SCC 107]. What would be their evidentiary value may ultimately fall for consideration by the Court but the said deeds of sale cannot be rejected only on the ground that only Xerox copies thereof had been brought on records..."
19. The above decision is quite relevant to the facts of the present case that the certified copies of sale deeds can be admitted in the evidence and its relevancy and admissibility, a discretion has been conferred upon the Court to exercise the same ASR,J CRP Nos.2394_2396_2392_2019 14 judicially i.e. on taking into consideration of the facts and circumstances of a particular case. When the documents are admitted without any objection, as regards the admissibility of the sale deeds and in those circumstances, the evidentiary value may ultimately fall for consideration and the Court shall not reject the same and that has to be considered in support of the contention of the claimants.
20. In the instant case, it appears that there is no proper appreciation of the documents filed by the petitioners while considering the reference and before passing the orders in LAOP No.1355 of 2013 and the provisions of Section 51-A of the LA Act are also not properly taken into consideration.
21. The second contention raised by the revision petitioners is that the interest under various components was not awarded. In the instant case, the solatium and 12% additional market value was paid only on land value (not structures) and further 12% additional market value has to be paid on value of the land + value of structures + 30% solatium (not on land value alone). It appears 12% interest was for the first year and thereafter @12% p.a. till payment was not awarded.
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22. A perusal of the material on record would indicate that the reference Court has not properly considered by keeping in view the statutory provisions and binding precedents of the Hon'ble Supreme Court on the interest. Now it is relevant to consider Sundar's case (3 supra) wherein the Hon'ble Supreme Court at Para Nos.14 and 24 held as under:
"14. Question of payment of interest would arise only when the compensation is not paid or deposited on or before the date of taking possession of the land. It is inequitable that the person who is deprived of the possession of the land, on account of acquisition proceedings is not given the amount which law demands to be paid to him, any delay thereafter would only be to his detriment. There must be a provision to buffet such iniquity. It is for the purpose of affording relief to the person who is entitled to such compensation when the payment of his money is delayed that the provision is made in Section 34 of the Act. That section is extracted below:
"34. Payment of Interest.- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited.
Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry."
24. The proviso to Section 34 of the Act makes the position further clear. The proviso says that "if such compensation" is not paid within one year from the date of taking possession of the land, interest shall stand escalated to 15% per annum from the ASR,J CRP Nos.2394_2396_2392_2019 16 date of expiry of the said period of one year "on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry". It is inconceivable that the solatium amount would attract only the escalated rate of interest from the expiry of one year and that there would be no interest on solatium during the preceding period. What the legislature intended was to make the aggregate amount under Section 23 of the Act to reach the hands of the person as and when the award is passed, at any rate as soon as he is deprived of the possession of his land. Any delay in making payment of the said sum should enable the party to have interest on the said sum until he receives the payment. Splitting up the compensation into different components for the purpose of payment of interest under Section 34 was not in the contemplation of the legislature when that section was framed or enacted."
23. Keeping in view of the above decision and a perusal of the record, it appears that the contention raised by the petitioners has got force and I am of the view that, in the facts and circumstances the review application is maintainable.
24. Coming to the crucial aspect, whether in a review application, the reference Court can pass any appropriate orders on the contentions raised by the petitioners.
25. To answer the said issue, it is relevant cite the judgment in Jayachandra Mahopatra's case (5 supra), wherein the Hon'ble Supreme Court at para Nos.8 and 11 held as under:
"8. In law, there is no bar in filing applications for review successively if the same are otherwise maintainable in law. The Civil Court herein admittedly had not granted to the Appellant the benefit of solatium at the rate of 30% of the amount of ASR,J CRP Nos.2394_2396_2392_2019 17 enhanced compensation as also the additional amount and interest as contemplated under the Amending Act of 1984. To the said benefits, the Appellant was entitled to in terms of Section 23(1A), Section 23(2) as also Section 28 of the Act. It is one thing to say that the omission to award additional amount under Section 23(1A), enhanced interest under Section 28 and solatium under Section 23(2) may not amount to clerical or arithmetical mistake in relation whereto an executing court will not be entitled to grant relief but it is another thing to say that the grant thereof would be impressible in law even if the Reference Court on an appropriate application made in this behalf and upon application of its mind holds that the statutory benefits available to the claimant had not been granted to him and pass an order in that behalf by directing amendment of decree. In a case of former nature, an executing court may not have any jurisdiction to pass such an order on the ground that it cannot go behind the decree, but in law there does not exist any bar on a Reference Court to review its earlier order if there exists an error apparent on the face of the record in terms of Order 47, Rule 1 of the Code of Civil Procedure. Such a jurisdiction cannot be denied to the Reference Court. The Act 68 of 1984 is a beneficial statute and, thus, the benefits arising thereunder cannot ordinarily be denied to a claimant except on strong and cogent reasons.
11. In Savitri Cairae Vs. U.P. Avas Evam Vikas Parishad and Another [(2003) 6 SCC 255] a question arose before a three- judge Bench of this Court as to whether the benefits of 1984 Amending Act were available to the claimants in relation to the acquisitions made under U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. This Court, while holding that such benefits are available, granted such reliefs holding:
"26. ...Once the High Court had held that the amending Act of 1984 was applicable for the grant of compensation, it appears that some clerical error crept into the judgment of the High Court in not awarding additional compensation. In fact, in accordance with the conclusion at which we have arrived, the claimants are also entitled to the additional compensation under Section 23(1-A) of the Land Acquisition Act. Further, the claimants are also entitled to interest at the rate of 9 per cent for the first year and 15 per cent for the subsequent years."
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26. Having regard to the above Judgment, in view of the facts and circumstances of the present case, in the ends of justice it would be appropriate to set aside the impugned orders passed in all the IAs in LAOP No.1322 of 2013 and to direct the reference Court to dispose the applications afresh on merits, after taking into consideration of the judgments of the Hon'ble Supreme Court and the provisions of the Land Acquisition Act and a proper appreciation of the principles therein and apply the statutory provisions of the land acquisition Act.
27. In the result, all the three civil revision petitions are allowed. The orders in I.A.No.1413 of 2018 in LAOP No.1322 of 2013 and I.A.Nos.3 and 4 of 2019 in I.A.No.1413 of 2018 in LAOP No.1322 of 2013 dated 03.06.2019 are hereby set aside. The reference Court is directed to dispose of the review application afresh on merits.
Miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.
___________________________ JUSTICE A.SANTHOSH REDDY Date: 19.06.2023 ns