Gujarat High Court
Sun vs State on 10 February, 2011
Author: M.D.Shah
Bench: Md Shah
Gujarat High Court Case Information System
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MCA/3645/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR DIRECTION No. 3645 of 2010
In
SPECIAL
CIVIL APPLICATION No. 22819 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
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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 ?
=========================================================
SUN
PHARMACEUTICAL INDUSTRIES LTD. THRO SENIOR MANAGER(ACC.) -
Applicant(s)
Versus
STATE
OF GUJARAT & 3 - Opponent(s)
=========================================================
Appearance
:
MR
AMIT PANCHAL FOR MS SHIVANI RAJPUROHIT
for
Applicant(s) : 1
MR LR PUJARI, AGP for Opponent(s) : 1 - 2
MR
PRANAV G DESAI for Opponent(s) : 3
MR AJ PATEL for Opponent(s) :
4
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CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 10/02/2011
ORAL
JUDGMENT
This Misc. Civil Application has been filed by the applicant seeking the following main reliefs:
"(A) This Hon'ble Court under Article 215 of the Constitution of India would be pleased to issue suitable directions in pursuance of the Oral Order dated 27.04.2007, in Special Civil Application No.22819 of 2005 with Civil Application No.10610 of 2006 in Special Civil Application No.22819 of 2005 with Civil Application No.3716 of 2007 in Special Civil Application No.22819 of 2005, passed by this Honourable Court, and be pleased to modify the same by directing the opponent no.2 to make deduction of non-agricultural land in the final plot allotted to the applicant as required under law, and as per the norms laid down for the same by the opponent no.1;
(B) This Honourable Court would be pleased to direct the opponent no.3 to identify the plots for public purpose, which may be available, of an area which is equivalent to the plots, which are sought to be allotted for public purpose, after making deductions in the Non-agricultural land of the final plot allotted to the applicant, as required under law and the norms laid down for the same by the opponent no.1 and permit the applicant to offer the same in lieu of the plots allotted for public purpose under the Town planning Scheme."
Heard learned advocate, Mr.Amit Panchal for Ms.Shivani Rajpurohit for the applicant, learned AGP, Mr.L.R.Pujari, for the respondent Nos.1 and 2, learned advocate, Mr.Pranav Desai for the respondent No.3 and learned Senior Counsel, Mr.A.J.Patel for the respondent No.4.
It is submitted by learned advocate, Mr.Amit Panchal that the applicant is not seeking any relief against the opponent No.4 but trying to bring to the notice of this Court that while final plot was allotted to the opponent No.4 for her agricultural land, deduction made in final plot of non-agricultural land allotted to the applicant appeared to have been made under bona fide mistake. It is further submitted that as measurement has been made not as per the norms laid down by the authorities, proper opportunity of hearing ought to have been given to the applicant before making the deduction. It is further submitted that while disposing of Special Civil Application No.22819 of 2005 on 27-4-2007, this Hon'ble Court (Coram: D.N.Patel,J.) directed to give possession of the plot by giving different number to the applicant of this applicant and other persons as joint plot was handed over to them by the competent authority in reference to the T.P.Scheme finalized. In pursuance of said order, notification dated 13-4-2010 has been issued by the competent authority whereby preliminary Town Planning Scheme No.24 for redistribution of Final Plot No.27 has been sanctioned. Said notification has been challenged by the applicant by way of preferring Special Civil Application No.6110 of 2010 inter alia contending that said notification has been issued without affording an opportunity of hearing and without complying with the order passed by this Court hereinabove referred to. Said petition was dismissed by this Court (Coram: K.S.Jhaveri,J.) vide CAV judgment dated 19-10-2010. Thereafter, the applicant preferred Letters Patent Appeal No.2596 of 2010 which is pending for disposal. It is therefore requested that the order in question be suitably modified without disturbing the rights of the opponent No.4 and without prejudicially affecting public interest by directing the opponent No.2 to make deduction of non-agricultural land in the final plot allotted to the applicant and directing the opponent No.3 to identify the equivalent available plots for public purpose and upon affording an opportunity of personal hearing to the applicant by the opponent No.2 for submitting the correct measurements, offer alternative plots in lieu of plots meant for public purpose in the area of final plots allotted to the applicant. According to him, this Court is a Court of record and under Article 215 of the Constitution of India, this Court can rectify its mistake.
In this connection, he has relied on a decision of the Apex Court in the case of M.M.Thomas Vs. State of Kerala and another reported in (2000)1 Supreme Court Cases page 666 wherein it has been held in paragraph No.14 as under:
"14.
High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr, [1966] 3 SCR 744=AIR (1967) SC 1 a nine Judge Bench of this Court has recognised the aforesaid superior statue of the High Court as a court of plenary jurisdiction being a Court of Record."
He has drawn my attention towards para 17 of the said judgment wherein it has been held as under:
"If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down, Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record."
He has also relied on another decision of the Apex Court reported in M/s Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi reported in AIR 1980 Supreme Court page 674.
It is submitted by learned Senior Counsel, Mr.A.J.Patel that pursuant to the order passed by this Court on 27-4-2007, Town Planning Scheme No.24 of Tandalja was finalized in 2000 by the State Government by issuing notification and redistribution statement and it has become final. It is further submitted that when the applicant had purchased the property in question in 2001, scheme which was finalized in 2000 was in existence and although the applicant filed Special Civil Application No.6110 of 2010 challenging the said notification, it was dismissed. According to him, all the points raised in this application were there before the Court (Coram: K.S.Jhaveri,J.) while deciding Special Civil Application No.6110 of 2010 and the Court decided all these issues vide judgment and order dated 19-10-2010 and since present application is not tenable under the law, it requires to be dismissed.
Learned advocate, Mr.Pranav Desai, appearing for the opponent No.3, drawing attention of this Court towards the reliefs sought for by the present applicant in Special Civil Application No.6110 of 2010, has submitted that identical reliefs have been sought by filing the present application and all these aspects have been decided by the Court and hence, this application may not be entertained. It is further submitted that order in review is passed on 27-4-2007 whereas the present application is filed in December, 2010 i.e. after a long lapse of time and, therefore also, the present application deserves to be dismissed.
This Court has gone through the order dated 27-4-2007 passed by the Court in Special Civil Application No.22819 of 2005 with Civil Application No.10610 of 2006 in Special Civil Application No.22819 of 2005 with Civil Application No.3716 of 2007 in Special Civil Application No.22819 of 2005 as well as order dated 19-10-2010 passed in Special Civil Application No.6110 of 2010. It is pertinent to note that Letters Patent Appeal No.2596 of 2010 preferred by the present applicant against the judgment dated 19-10-2010 passed in Special Civil Application No.6110 of 2010 is yet to be finally decided.
This Court has also gone through the affidavit-in-reply affirmed by Shri Nitin Trivedi, Legal Officer of the applicant Company. It is inter alia contended therein that the Honourable Court has not in any manner suggested that the land belonging to the opponent No.4, which was undisputedly agricultural land, and the land belonging to the applicant, which was non-agricultural land, should be dealt with the same yardsticks while allotting separate final plot numbers. According to him, such a direction would be contrary to the norms prescribed by the Government for making deductions in agricultural vis-a-vis non-agricultural lands and hence, applying a common yardstick for both the agricultural and non-agricultural lands could not have directed by the Honourable Court. It is therefore submitted that since the said error is apparent, this application under Article 215 of the Constitution of India has been filed. Reliance is placed on the case of Kunhayammed and other Vs. State of Kerala and another reported in (2000)6 SCC p.359 apart from relying on the case of M.M.Thomas Vs. State of Kerala and another (supra).
It appears from the said reply that the contentions raised in this Misc. Civil Application and the submissions made by the learned advocate for the applicant, Mr.Amit Panchal, have been reiterated in the said reply and hence, said contentions are not being dealt with repeatedly.
It appears from the record that in pursuance of the afore referred order dated 27-4-2007 passed by this Court, notification dated 13-4-2010 was published sanctioning variation in the preliminary Town Planning Scheme No.24 after considering the objections received the concerned parties for redistributing joint final plot No.27 and as per the said T.P.Scheme, final plot was allotted to the present applicant and hence, it will have the effect enacted by the Gujarat Town Planning and Urban Development Act, 1976. Though the said notification was challenged by way of Special Civil Application, it was dismissed. Letter Patent Appeal preferred against the same is pending for final disposal. In the said circumstances, if this application is entertained, since the reliefs prayed for in Special Civil Application No.6110 of 2010 are identical to the reliefs sought for in the present application, it amounts to sitting in appeal over the judgment and order passed in Special Civil Application. Apart from the above, no error apparent on the face of the record appears to have been committed by the Court while passing the impugned order requiring modification by this Court in the present application.
As regards judgments relied on by the learned advocate for the applicant are concerned, as no error apparent on the face of the record appears to have been noticed by this Court, no benefit of the decisions relied on by the learned advocate for the applicant can be given to the applicant. As regards the case of Kunhayammed and other Vs. State of Kerala and another reported in (2000)6 SCC p.359 relied in the reply filed by the Legal Officer of the applicant is concerned, facts of the case are different from facts of the case on hand and hence, benefit of said judgment also cannot be given to the applicant. Thus, there is no substance in this application and, hence, same is required to be dismissed and is accordingly dismissed. Rule is discharged. Status quo granted earlier stands vacated.
(M.D.SHAH,J.) radhan Further order After pronouncement of this judgment, learned advocate, Mr.Amit Panchal, for the petitioner requests to continue the order of status quo granted by the Court for a week. Learned Senior Counsel, Mr.A.J.Patel objects to the sme. However, looking to the facts and circumstances, order of status quo granted earlier is continued for one week. No further extension will be granted.
(M.D.SHAH,J.) radhan Top