Gujarat High Court
Azaliya Enterprise Pvt.Ltd vs Heerabhai Valabhai Rava & on 22 August, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
AZALIYA ENTERPRISE PVT.LTD.....Applicant(s)V/SHEERABHAI VALABHAI RAVA C/MCA/3303/2012 CAV ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 3303 of 2012 In WRIT PETITION (PIL) NO. 30 of 2012 ================================================================
AZALIYA ENTERPRISE PVT.LTD.....Applicant(s) Versus HEERABHAI VALABHAI RAVA &
3....Opponent(s) ================================================================ Appearance:
MR BHARGAV HASURKAR, ADVOCATE for the Applicant(s) No. 1 MS.
VACHA DESAI, ASSISTANT GOVERNMENT PLEADER for the Opponent(s) No. 2 -3
DR.
MUKUL SINHA, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :22/8/2013 CAV ORDER (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This is an application for review of our judgment and order dated 8th November, 2012, at the instance of the original respondent No.4 of a writ-petition (PIL) No. 30 of 2012. Vide our judgment and order dated 8th November, 2012, we disposed of the public interest litigation filed by the opponent No.1 herein, by issuing certain directions.
2. Before entering into the merit of this application, we may give a fair idea about the public interest litigation, which was filed before us. The main writ-application was filed by a resident of village Titva, situated in Wankaner, Tal. Dist. Rajkot, having a population of around 8,000. In the said village, there are around 125 families of Maldhari Community (cattle breeders), who depend on the cattle breeding and on the sale of milk and milk produces, for their livelihood. According to the 18th Livestock Census carried out by the Gujarat State, the village had 1795 buffaloes, 1676 cattle, 1595 sheep, 1316 goats and thus the total number of animals were 9543.
The original petitioner brought to our notice that the Government of Gujarat has allotted 34 hectors of land in favour of the applicant herein for the purpose of setting up a Windmill project. The Windmill project proposed to be set up by the applicant herein would generate 50 Mega Watts of electricity and the Gujarat Energy Development Agency (GEDA) has also granted the approval for setting up of the 50 Mega Watts Windmill.
3. It was brought to our notice that the land, which has been allotted in favour of the applicant herein, for the purpose of construction of a road is a gaucher land and if such a vast area of gaucher land is occupied for the road and the project, the cattle in the village, around 10,000 will hardly be left with any pasture land to graze. It was also brought to our notice that for the setting up of the Windmill project, the applicant will be constructing a temporary road by using a technique known as water bound MCADAM (WBM), which is an ecofriendly method, for the purpose of transport of equipments in huge trucks and other vehicles.
4. In such circumstances, it was prayed by the original petitioner-opponent No.1 herein that the applicant herein be restrained from constructing any approach road or any transmission towers in any of the gaucher land situated in the village.
5. After taking into consideration all the relevant aspects of the matter, we noticed that the only question for our consideration was whether the applicant should be permitted to undertake the process of constructing a temporary road passing through the gaucher land for the purpose of transporting equipments and the machineries at the sanctioned locations to erect the Windmill towers.
We disposed of the public interest litigation by issuing following directions:-
(i) The respondent No.4 shall commence the work of construction of temporary road by using the technique known as water bound MCADAM (WBM), which is considered to be ecofriendly causing least possible damage to the land and as undertaken by the respondent No.4, at the earliest and complete the same within a period of five months from today.
(ii) The width of the road shall not exceed more than 15 feet.
(iii) After the road is completed, the respondent No.4 shall not claim any right over the said road and it will be open for the villagers to use the said road for the purpose of gaucher.
(iv) So far as Location No.7 is concerned, we direct the respondent No.4 not to undertake any work at Location No.7. The State- respondent is directed to allot any other land to the respondent No.4 admeasuring 900 sq.mtrs., which is not a part of the gaucher land and which is also not close to Gamtal. Such allotment shall be made within a period of two months from today."
6. In this application for review, it has been prayed that the direction No.(ii) referred to above deserves to be reviewed or modified to the extent that the applicant should be permitted to construct the road with a width of minimum 25 feet since with a width of 15 feet, it will not be possible for the applicant to transport the equipments and machinery at the sanctioned locations for the purpose of erecting the Windmill towers.
Thus, according to the applicant, there is an error apparent on the face of the judgment and order so far as direction No. (ii) is concerned.
7. Mr. Hasurkar, the learned Advocate appearing for the applicant submitted that it is virtually impossible to transport the equipments in huge vehicles through a road having a width of only 15 feet. It is only after the construction of the road having a minimum width of 25 feet is completed that the applicant will be in a position to carry the equipments in huge vehicles at the sanctioned locations for erection of the Windmills. Mr. Hasurkar very assiduously submitted that the whole project has come to a standstill as his client has not been able to construct the road with the required width. He also submitted that his client has by now invested lacs of rupees in the project and ultimately, the project of Windmill, which will generate electricity, is in public interest. Thus, according to Mr. Hasurkar, the direction No. (ii) which we have issued in our judgment and order dated 8th November, 2012, deserves to be reviewed and/or modified in the interest of justice.
8. Dr. Mukul Sinha, the learned Senior Counsel appearing for the opponent No.1 (original petitioner) has vehemently opposed this application submitting that the application for review is not maintainable as there is no error, not to speak of any error of law, in the judgment and order passed by this Court dated 8th November, 2012. Dr. Sinha submitted that if additional 10 feet width is permitted to be used for the purpose of construction of the road, it will amount to using additional portion of gaucher land, which otherwise also is not sufficient in the village, considering the population of the cattle. In such circumstances, Dr. Sinha submits that there being no merit in this review application, the same deserves to be rejected.
9. Having heard the learned counsel for the respective parties and having gone through the judgment and order passed by us dated 8th November, 2012, the only question that falls for our consideration is whether there is any error apparent on the face of the order warranting any correction in this review application.
10. 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".
11. 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).
12. 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.
13. 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."
14. Having regard to the principles of law explained by the Supreme Court so far as the power of review in proceeding under Article 226 of the Constitution of India is concerned, we are of the view that there is no error, not to speak of any error of law, in our judgment and order dated 8th November, 2012. After giving due considerations to the issues involved, we decided to issue a specific direction that the width of the road shall not exceed more than 15 feet. At the time when we issued such direction, the only thing in our mind was that if extra 10 feet as suggested by the applicant herein is permitted to be used for the construction of the road, then, having regard to the length of the road, substantial portion of gaucher land would be occupied, thereby depriving the 10,000 cattle in the village to graze freely. While deciding the public interest litigation, we tried to balance the public interest vis-a-vis the private interest of the applicant. Since the applicant has already invested a substantial amount for the project and the land has also been allotted by the State Government, we did not deem fit to set aside the allotment of the land, but rather issued a specific direction so as to protect the public interest. It is in such circumstances that direction No.(ii) was issued by us.
15. In the present case, no plea has been taken for discovery of new and important matter or evidence or some mistake or error apparent on the face of the record. What could be understood from the submission of the learned counsel for the applicant is that a road with 15 feet width will not serve the purpose. No plea has been taken in the present review application that there is a misconception of fact or law committed by this Court. It is a settled law that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for 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.
16. For the aforesaid reasons, we do not find any merit in this application for review and the same is, accordingly, rejected.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas After this order is passed, the learned Advocate for the petitioner prays for stay of operation of our order.
In view of what has been stated above, we find no reason to stay our order. Prayer is rejected.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Page 11 of 11