Gujarat High Court
General Manager vs District Collector on 2 April, 2025
NEUTRAL CITATION
C/AO/298/2010 ORDER DATED: 02/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 298 of 2010
With
R/APPEAL FROM ORDER NO. 299 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2010
In R/APPEAL FROM ORDER NO. 299 of 2010
With
R/APPEAL FROM ORDER NO. 300 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2010
In R/APPEAL FROM ORDER NO. 300 of 2010
With
R/APPEAL FROM ORDER NO. 301 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2010
In R/APPEAL FROM ORDER NO. 301 of 2010
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GENERAL MANAGER
Versus
DISTRICT COLLECTOR & ORS.
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Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1
MR JIGAR G GADHAVI(5613) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/04/2025
COMMON ORAL ORDER
1. All these appeals are arising out of the order of the reference court reviewed its judgment and decree dated 19th February 2000, whereby it has reviewed a paragraph 3 of the operative portion of such judgment and decree. The operative portion of such judgment and decree reviewed reads as under:
Page 1 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined "The claimant shall not be entitled to interest on the award of additional amount payable under Section 23(1)(a) of the Act and on the solatium under Section 23(2) of the Act and they shall also not be entitled for solatium on the additional amount under Section 23(1)(a) of the Act." 1.1 The details of each review application, date of respective order vis-à-vis the details are as under:
Sr. Review Sec 4 Ref. Ct. date and
AO No. LAR No.
No. App. No Sec 6 amount
2764 of 07.8.96 26.10.99
1 298/2010 1 of 2005
1996 22.12.97 Rs.10/- per sq. mtr.
2765 of 07.8.96 26.10.99
2 299/2010 2 of 2005
1996 22.12.97 Rs.10/- per sq. mtr.
2768 of 07.8.96 26.10.99
3 300/2010 3 of 2005
1996 22.12.97 Rs.10/- per sq. mtr.
2571 of 06.1.87 26.10.99
4 301/2010 4 of 2005
1996 Rs.10/- per sq. mtr.
1.2 The reference court has expressly denied interest on the amount of solatium under Section 25(2) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), and also held that claimants are not entitled to solatium on the additional amount. Later on, the Constitutional Bench of the Honourable Apex Court in the case of Sundar vs. Union of India reported in 2001 (7) SCC 211 : AIR 2001 SC 3516 held that claimants are entitled to get interest on the whole Page 2 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined amount, including solatium.
1.3 It appears that after noticing the aforesaid decision, original claimants tempted to file a review application before the reference court in the year 2005, and after hearing the parties, the reference court has reviewed its aforesaid judgment and decree, thereby deleting paragraph No. 3 of its operative portion of the judgment, and further held that claimants are entitled to receive interest under Sections 23(1A) and 23(2) of the Act.
1.4 Feeling aggrieved and dissatisfied by the impugned order passed in the impugned review application, a present appeals from order have been filed by the original judgment debtor.
2. Heard learned counsel Mr. Ajay Mehta for the petitioner and learned counsel Mr. Jigar Gadhavi for respondent No.3-original claimants, contesting respondent as well as learned assistant government pleader Mr. Aakash Chayya for respondent No.1 &
2 - State.
3. Submissions of appellant:
3.1 Learned counsel Mr. Ajay Mehta, appearing for the Page 3 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined appellant, has vehemently submitted that the reference court has committed serious error of law by allowing the impugned review application, contrary to the provisions of law, and the order passed by the court below is without jurisdiction. 3.2 Learned counsel Mr. Mehta would submit that there was no error on the face of the record pointed out by the claimants whereby, impugned application itself requires rejection. 3.3 Learned counsel Mr. Mehta would submit that only relying upon the decision of Honourable Apex Court in the case of Sundar (supra) could not be the ground to review the judgment and decree.
3.4 Learned counsel Mr. Mehta would further submit that subsequent judgment of Honourable Supreme Court in the case of Gurupreet Singh vs. Union of India reported in (2005) 8 SCC 457 wherein its paragraph-44, has already clarified the position of law and the applicability of the decision in the case of Sundar (supra) on disposed cases, which is totally unnoticed by the reference court.
3.5 Learned counsel Mehta would further submit that, as per Page 4 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined the settled legal position of law, any subsequent judgment of Honourable Apex Court clarifying any provision of law thereby laid down law would not be a ground to review any judgement/decree/order passed by the trial court much earlier in point of time than such subsequent judgement of Apex Court.
3.6 Learned counsel Mr. Mehta would further submit that claimants have not preferred any appeal against the judgment and decree passed by the reference court; then, under the guise of review, the reference court cannot modify its judgment and decree when there is no error apparent on face of record while passing judgement/decree. 3.7 Making the above submissions, Learned counsel Mr. Mehta requested this court to allow the appeal.
4. Submissions of respondent:
4.1 Per contra, learned counsel Mr. Jigar Gadhvi has opposed the present appeal, whereby contended that there is no error, much less any error on the face of record committed by the reference court while allowing the impugned application Page 5 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined thereby, this Court should not interfered with impugned order while exercising its limited appellate power.
4.2 Learned counsel Mr. Gadhvi would further submit that the subsequent ruling, which is settled principle of law, if considered by reference court while allowing reviewing application, whereby it has not committed any error of law while modifying the judgment and decree.
4.3 Learned counsel Mr. Gadhvi would further submit that question of granting interest on solatium is an important part of the statute, but such position of law has been clarified by Honourable Apex Court in the case of Sundar (supra); thereby, reference court was well within its jurisdiction to grant it by reviewing its judgement/decree.
4.6 Learned counsel Mr. Gadhvi lastly submitted that appellant has selectively filed present appeals against the order of review passed by the reference court having not challenged all similar orders passed by reference court. It is submitted that in some of the cases, appellant has accepted the order of review passed by the reference court. So, according to Mr. Gadhvi, as per Page 6 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined principle of estopple/waiver, present appeals require to be dismissed.
4.5 To buttress his arguments, learned counsel Mr. Gadhvi would rely upon following decisions:
(1) In the case of State of Maharashtra vs. Pandu Rama Udar (Since deceased) through L.Rs. and others reported in 2017 SCC Online Bombay 766, the observations of the Bombay High Court in paragraph 10 to 12 held as under :
" 10. As regards the first issue, the submission advanced by learned A.G.P. is that, once the Award was passed by the Trial Court on 11th September, 1984 in Land Reference No.11 of 1984, the Trial Court has become functus officio and it has no jurisdiction or power to review the same, except for some clerical or minor errors. According to learned A.G.P., the Trial Court has no power either to review or amend its own Award substantially by increasing the amount of interest, as the Award was converted into Decree under Section 26(2) of the Land Acquisition Act. Here in the case, it is submitted by A.G.P. that the Trial Court has substantially modified its own Award by enhancing the rate of interest and thus the Trial Court has exceeded its jurisdiction in passing the impugned judgment and award on the Review/Miscellaneous Civil Application of the Respondents-Claimants.
11. However, in my considered opinion, this submission Page 7 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined of learned A.G.P. cannot be accepted for the simple reason that the Review Application was filed by the Respondents-Claimants in view of the amendments in the Land Acquisition Act. It is pertinent to note that, though the Award was passed by the Trial Court on 11th September, 1984, immediately thereafter Amended Act came into force on 29th April, 1984. In the Amended Act, some additional benefits were given to the Claimants and by way of introducing transitional provisions, these additional benefits were extended even to those Claimants to whom compensation amount was not paid before 30th April, 1982. Therefore, in fact, it was necessary for the Trial Court to take a note of these amended provisions and act suo motu to give benefit of those provisions to the Respondents- Claimants. Respondents-Claimants have, by filing the Review Application, brought those facts to the notice of the Trial Court. By passing the impugned order, the Trial Court has only corrected its Award to bring it in tune with amended legal provisions. Hence, it cannot be said that the Trial Court has acted beyond its jurisdiction or exceeded its authority in passing the impugned order.
12. As a matter of fact, as held by the Hon-- ble Apex Court in the case of Shree Vijay Cotton & Oil Mills Ltd. v. State of Gujarat (1991) 1 SCC 262 : (AIR 1991 SC
656), the interest can be claimed by the Claimants at any stage of the proceedings under the Land Acquisition Act. Award of interest being obligatory and consequential to the application of Section 34 of the Land Acquisition Act, such interest can be claimed even in the Appeal filed by the State and it is not necessary to file separate Appeal or cross-objection. According to Page 8 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined the Hon-- ble Apex Court, substantive right, under the Land Acquisition Act, to get the interest cannot be affected by the procedural rules, as procedural rules are, after all, hand-maiden of justice. The procedural rules cannot come in the way of substantive right subsisting under the Land Acquisition Act. "
(emphasis supplied) (2) Honourable Apex Court in the case of Girdhari Lal Gupta vs. D. N. Mehta and another reported in AIR 1971 SC 2162 wherein it is held as under, " 16. The learned counsel for the respondent State urges that this is not a case fit for review because it is only a case of mistaken judgment. But we are unable to agree with this submission because at the time of the arguments our attention was not drawn specifically to sub-section 23C(2) and the light it throws on the interpretation of sub-section (1). "
(emphasis supplied) (3) Honourable Apex Court in the case of Patel Joitaram Kalidas vs. Spl. Land Acquisition Officer reported in 2007 (2) SCC 341 wherein it is held as under, " 18. Having regard to the submissions urged on behalf of the respondents we could have remitted the matter to the High Court to give an opportunity to the claimants to make a claim of interest before the High Court. That however, would only be a formality because having regard to the law laid down in Sunder, Page 9 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined the High Court is bound to award the interest on the additional amount payable under Section 23(1A) and solatium payable under Section 23 (2) of the Act.
Moreover, grant of interest on these amounts is consequential and automatic and involves only arithmetical calculation and not application of judicial mind or exercise of judicial discretion. It is no doubt true that the appellants ought to have made such a claim before the High Court, even in the appeals preferred by the State. But in fairness to the appellants it must be conceded that during the pendency of the appeals before the High Court the law as laid down in Prem Nath Kapoor held the field and, therefore, it would have been futile for them to claim interest. The claimants could have filed such an application before the High Court if the judgment in Sunder was pronounced when the appeals were pending before the High Court. Unfortunately, they could not do so because the judgment in Sunder and the impugned judgment in the appeals preferred by the State before the High Court were pronounced on the same day. Having regard to these facts, peculiar to 5 2007 66 All LR 833(SC) this case, we are persuaded to allow the appeals preferred by the appellants as a special case in the interest of justice. Accordingly, we hold that the appellants are entitled to interest on the amounts payable to them under Section 23 (1A) and Section 23 (2) of the Land Acquisition Act. We direct the Collector to calculate the interest payable and pay the same to the appellants without further delay. These appeals are accordingly allowed. No order as to costs. "
(emphasis supplied) Page 10 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined
5. Rejoinder submission of appellant 5.1 Learned counsel Mr. Mehta would submit that considering the amount involved in the other cases wherein financial burden was not much more than present cases, it was not thought it fit to challenge those orders, but that could not be a ground to dismiss the present appeal having merit. No other and further submissions are made being made by any of respective learned advocates.
6. Analysis:
6.1 The short question falls for my consideration is, Whether Reference Court, after passing judgment and decree in the year 2000, could have entertained the review application filed by the original claimants on the ground of subsequent judgment passed by the Constitution Bench of the Supreme Court in the case of Sundar (supra)?
6.2 As such, reply to the aforesaid question is empathetically 'No'. As the position of law is well settled that court cannot review its judgment and order on the ground that there is subsequent ruling of the higher court that came later in point Page 11 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined of time clarifying/laying down some law.
6.3 After going through the impugned order, what was weighed with the reference court was the subsequent judgment of Supreme Court in the case of Sundar (supra), whereby it has been held by the Honourable Apex Court that landowners/farmers/claimants are entitled to get interest on solatium.
6.4 No other and further observations were made by the reference court while allowing review applications. Such a recourse adopted by the reference court is out of scope and ambit of Order 47 Rule 1 of CPC.
"ORDER XLVII REVIEW Rule 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, (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 Page 12 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined 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 applied 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.]"
The plain reading of explanation to rule 1 of Order 47 of CPC would exclude the court to review its judgement on ground of reversal of its decision on question of law by subsequent Page 13 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined decision of a superior Court in any other case. When statute itself in clear terms state that the court not to review its judgement on said ground, if review application is entertained by court on such ground would amounting to transgress its jurisdiction which is not vested in it. 6.5 At this stage, it is apposite to refer to the observations made by the Honourable Supreme Court in paragraph-44 of Gurpreet Singh (supra) wherein held thus:
"44. One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in Courts all over the country, we permitted counsel to address us on that question. That question is whether in the light of the decision in Sunder (supra), the awardee/decree holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the reference court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder (supra) on the ground that the execution court cannot go behind the decree. But if the Page 14 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined award of the reference court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the reference court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder (supra) and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder (September 19, 2001) and not for any prior period. We also clarify that this will not entail any re-appropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question. "
(emphasis supplied) So far present cases are concern, it is undisputed that after passing of judgment and decree by the reference court, execution was neither filed nor pending; then the question of applying the ratio of Sundar (supra) was out of place that too Page 15 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined in review jurisdiciton, more particularly when the reference court itself has expressly denied interest on solatium.
6.6 So, in view of the aforesaid provision of law as well as decision in the case of Gurpreet Singh (supra), reference court could not have allowed the impugned review application.
6.7 Moreover, the scope of review is well defined by numerous decisions of Honourable Supreme Court but it is apt to refer and rely upon following decisions which may be appropriately applied to the facts germane from the matter.
(1) In a case of Lily Thomas Vs. Union Of India reported in (2000) 6 SCC 224 it is held as under:
"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before Page 16 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 held :
"Review literally and even judicially means re- examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Prithwi Chand Lal Choudhury v. Sukhraj Rai, AIR 1941 FC 1 the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court has final and could not be altered.
". . . . . . . .nevertheless, if by misprison in embodying the judgments, by errors have been introduced, these Page 17 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in. . . . . The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under :
It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevaling to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferrred the substantive power to review any judgment or order by Art. 137 of the Constitution. And Cl. (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In Page 18 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest in justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.
56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier Page 19 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."
(emphasis supplied) (2) So also in a case of Sanjay Kumar Agarwal vs. State Tax Officer and Anr. Reported in (2024) 2 SCC 362 , it has been so held by Honourable Supreme Court that subsequent decisions of Apex Court declaring and or clarifying law would not ipso facto become ground to review the decision which is already decided by Court and accepted by parties to lis unless its pending before higher court. It has been held thus:
"15. It is very pertinent to note that recently the Constitution Berich in Beghar Foundation v. K.5. Puttaswamy (Aadhaar Review-5 J., held that even the change in law or subsequent decision/judgment of coordinate Bench or larger Bench by itself cannot be regarded as a ground for review.
16. The gist of the afore stated decisions is that:
16.1. A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
16.2. A judgment pronounced by the court is final, and Page 20 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
16.3. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.
16.4. In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected".
16.5. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
16.7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
16.8. Even the change in law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review." (emphasis supplied) Page 21 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined Thus, view it from any stand point of view, order impugned in the appeal is not only erroneous one, perverse but bad in law having passed by trial Court exceeding its jurisdiction so vested in it.
6.8 The judgments cited by learned counsel Mr. Gadhvi would not be applicable to the facts of the case for the reason that in the case of Penderyn (supra), there was an amendment of the provision of law, which was unnoticed, and on such basis review application was filed and the same was allowed, which is not the case on hand.
6.9 So far as Girdharlal (supra), again Honourable Apex Court was specifically brought to the notice of the provisions of law, which was unnoticed at the time of submission, and thereby, considering the provisions of law and its interpretation, Apex Court has passed appropriate order.
6.10 Lastly, in case of Patel (supra), the matter was sub-judice before Honourable Apex Court when the decision in the case of Sundar (supra) came and considered such facts and circumstances. Benefit of decision in the case of Sundar (supra) Page 22 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined was granted to the claimants.
6.11 So, in view of the aforesaid position of law as well as provisions of law, the order impugned in the appeal is ex-facie bad in law, without jurisdiction, and requires to be quashed and set aside.
7. Lastly, the argument so canvassed by learned advocate Mr. Gadhvi that appellant has selectively challenged orders passed by executing Court in these group of cases and in similar type of other matters the award remained unchallenged. Such argument has no legs to stand because, it is settled legal position of law that there is no estopple against law thereby appellant being arm of 'State' can well within its right to decide to challenge award/order as per its policy considering financial implication involved therein. But there is no bar under law not to challenge order which is otherwise contrary to law having greater ramification than order not challenged unless any malafide proved on record which is not the case on hand.
7.1 As such, the issue is no longer remain res integra covered Page 23 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined by decision of Honourable Apex Court in a case of COL (RETD ) B J Akkara vs. Government Of India reported in (2006) 11 SCC 709 wherein held thus, "[10] On the contentions urged, the following questions arise for consideration :
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(iii) Whether the respondents having accepted and implemented the decision of the Delhi High Court (in Dr. K.C. Garg vs. Union of India C.M.P. No. 7322/2001 and connected cases decided on 18.5.2002) on a similar issue, are required to extend a similar treatment to Defence Service Medical Officers also, by cancelling the Circular dated 11.9.2001.
[25] A similar contention was considered by this Court in State of Maharashtra vs. Digambar [1995 (4) SCC 683]. This Court held :
"Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in Writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where S.L.Ps are filed by the State against judgments of High Court, such S.L.Ps may not be entertained by this Court in exercise of its discretionary Page 24 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some S.L.Ps in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an S.L.P. or S.L.Ps in other similar matters where it is considered on behalf of the State that non-filing of such S.L.P. or S.L.Ps and pursuing them is likely to seriously jeopardize the interest of the State or public interest."
[26] The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realized, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others . Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick and choose' method only to exclude petitioners on account of malafides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res Page 25 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined judicata nor the principle of estoppel is attracted. The Administrative Law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29.10.1999 (corresponding to the Defence Ministry circular dated 11.9.2001) has been upheld and that decision has attained finality will not come in the way of State defending or enforcing its circular dated 11.9.2001. "
(emphasis supplied) 7.2 So, arguments canvassed by learned advocate Mr. Gadhvi requires to be set at naught being contrary to settled position of law.
7.3 It remained undisputed that no appeal has been filed by the original claimants challenging judgment and decree passed by the reference court, but after about 5 years of passing of such decree, review application came to be filed, which was erroneously and arbitrarily allowed by the reference court.
8. Conclusion:
8.1 Thus, in view of the aforesaid observations, discussion and reasons, the impugned order in the appeal requires to be interfered with by this court while exercising powers under Order 43 of the CPC, as it is passed not only without jurisdiction but has not appropriately exercised the jurisdiction Page 26 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025 NEUTRAL CITATION C/AO/298/2010 ORDER DATED: 02/04/2025 undefined so vested in it, and the impugned order is beyond the scope of Order 47 of the CPC.
8.2 All these factors lead to only one conclusion that the impugned order dated 30.08.2008 passed in Review Application No.1 to 4 of 2005 by the learned Presiding Officer and Additional District Judge, 5th Fast Track Court, Mahesana, is bad in law, without jurisdiction, erroneous, perverse and arbitrary so requires to be quashed and set aside. Accordingly, the same is hereby quashed and set aside. All appeals are allowed accordingly. No order as to cost.
8.3 In view of disposal of main appeals, civil applications are also disposed of accordingly.
(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 27 of 27 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Sat Apr 26 02:16:30 IST 2025