Lucknow Development ... vs Smt. Saroj Rani & Anr. ( M/B ...
2017 Latest Caselaw 3197 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 7
 
Case :- REVIEW PETITION DEFECTIVE No. - 82 of 2009
 

 
Petitioner :- Lucknow Development Authority, Lucknow Thru V.C.
 
Respondent :- Smt. Saroj Rani & Anr. ( M/B 2889/1992 )
 
Counsel for Petitioner :- Nadeem Murtaza, Shobhit Mohan Shukla
 
Counsel for Respondent :- Sudeep Seth
 

 
Hon'ble Shabihul Hasnain,J.

Hon'ble Satya Narain Agnihotri,J.

(Delivered by S.N. Agnihotri)

1. The instant Review Petition has been filed by the Lucknow Development Authority (herein after referred to as "L.D.A.") against Smt. Saroj Rani and one other to review the order and judgment dated 15.12.2008 passed by coordinate Bench, whereby the writ petition no. 2889 of 1992 of review opposite party Smt. Saroj Rani was allowed to hand over the possession of property which was neither acquired nor requisitioned and to pay Rs. two lacs as damages.

2. The relevant facts for the disposal of this review petition are that writ petitioner Smt. Saroj Rani filed a writ petition no. above alleging that she had purchased 20 bighas land bearing Khasra nos. 440, 448 situated in Village Aurangabad Khalsa from the earlier owner. Later on this Village was brought under consolidation of holding (here in after referred to as C.H.) proceedings and C.H. Form No. 23 was prepared. The area of the holding of writ petitioner was shown less than the actual holding in C.H. Form No. 23, against this writ petitioner preferred a consolidation case in the Court of consolidation officer and the same was dismissed by consolidation officer. Feeling aggrieved she filed an appeal no. 239 in the Court of Settlement Officer Consolidation which was decided in favour of writ petitioner and the matter was remanded back for disposal afresh. The matter was again prosecuted in the Court of consolidation officer and the consolidation officer after measurement, ordered to be recorded the holdings of writ petitioner 15 Bighas, 06 Biswa 06 Biswansies. This order was not complied with by the authorities of the opposite party no. 2, thats why the writ petitioner Smt. Saroj Rani submitted an application dated 27.04.1988 before consolidation officer, Lucknow for the implementation of the order dated 16.06.1982. Consolidation Officer, Lucknow issued an order for Amaldaramad on 27.04.1988. It is also contended by the review opposite party that the orders dated 16.06.1982 and 27.04.1988 passed by Consolidation Officer were not challenged by any person, thats why these both orders noted above became final. Consolidation proceedings concluded in the year 1985 with the publication of the notification under Section 52 of U.P. Consolidation of Holdings Act 1953.

3. It is also contended by the review opposite party Smt. Saroj Rani that the Consolidation Officer ordered that the area of opposite party Smt. Saroj Rani be recorded as 15 Bigha, 06 Biswa and 06 Bishwansi in New Gata No. 298, which was alloted to her after C.H. operation.

4. Heard Shri O.P. Srivastava, learned Senior Advocate assisted by Shri Shobhit Mohan Shukla, learned counsels for the Lucknow Development Authority and Shri Sudeep Seth, learned counsel for the review opposite party/writ petitioner and gone through the entire record with the judgement and order passed by this Court dated 15.12.2008.

5. As per the submissions and averments of L.D.A., the Writ Petition No. 2889 of 1992 (M/B) Smt. Saroj Rani Vs. Lucknow Development Authority and another was disposed of by this Court ignoring the fact that the petitioner herself averred in her petition's paragraph no. 5 that the Consolidation Authorities alloted land to the petitioner new Gata No. 298 measuring 13 Bighas and 08 Biswansies after reducing the land from 20 Bighas. Thus it is evident from this averment that the Consolidation Authorities alloted only 13 Bighas and 08 Biswansies land to the writ petitioner Smt. Saroj Rani, but the Court oversight this fact and passed the judgment dated 15.12.2008, ordering to review petitioner/writ opposite party to hand over 2 Bigha, 5 Bishwa and 18 Bishwansi rest land and compensation of Rs. 2 lacs for use and occupation of the land.

6. Writ petitioner pleaded that the opposite party/review petitioner acquired only 13 Bighas and 8 Biswansies land and is using 2 Bighas, 5 Bishwas and 18 Bishwansies land without acquiring or requisitioning.

7. It is admitted fact that the opposite party/review petitioner L.D.A. acquired only 13 Bighas and 8 Biswansies land of the writ petitioner. The review petitioner submitted that when the property of the writ petitioner/review opposite party Smt. Saroj Rani was acquired by it, at that very time the proceedings of Consolidation were concluded and it has acquired land according to C.H. proforma nos. 41 and 45 in which the writ petitioner/review opposite party Smt. Saroj Rani was recorded tenure holder of 13 Bighas and 08 Bishwansies land. Review petitioner/writ opposite party L.D.A. filed photocopies of these documents which are annexure nos. SA.1, SA.2 and the copy of Khatauni. All these three documents disclose that new Gata No. 298 was recorded in the name of writ petitioner Smt. Saroj Rani in which the area recorded is 13 Bighas and 08 Bishwansies. In writ petition, writ petitioner/review opposite party Smt. Saroj Rani herself discloses that she has been alloted only 13 Bighas and 08 Bishwansies land after the conclusion of the consolidation proceedings. Either this fact was not brought in the knowledge of the Court or it overlooked this fact. Thats why due to inadvertant and oversight the judgment and order dated 15.12.2008 was passed.

8. The writ petitioner/review opposite party Smt. Saroj Rani averred in her petition that appeal no. 239 which was filed in the Court of Settlement Officer Consolidation was decided on 13.11.1981 and the Consolidation Officer was ordered to decide the matter afresh in compliance of the order in appeal. The Consolidation Officer again, after hearing the matter, disposed it on 16.06.1982 and ordered to correct the C.H. Form 23 annexure 2 and it was also ordered that the correct area of land of writ petitioner be recorded.

9. It is admitted fact that this order was not carried out and the writ petitioner/review opposite party Smt. Saroj Rani again approached to the Court of Consolidation Officer who passed an order on 27.04.1988 for "Amal-Dramad" for the compliance of the order dated 16.06.1982. Thus after the conclusion of the consolidation proceedings order dated 27.04.1988 was passed which was never carried out or complied with and before compliance of this order, the order of this Court was passed on 15.12.2008 which is erroneous at the face of it.

10. After hearing and considering the submissions of the parties this fact also came in the notice that the review petitioner/writ opposite party L.D.A. has filed an appeal in the Court of Settlement Officer Consolidation bearing appeal no. 722 of 2013/14, under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 in which the Consolidation Authorities passed an order dated 14.02.2014 staying the order of Consolidation Officer dated 16.06.1982 and 27.04.1988. Thus the order which was the basis of writ petition of the petitioner bearing no. 2889 of 1992 (M/B) has no force in the eyes of law.

11. The writ petitioner/review opposite party Smt. Saroj Rani raised a legal objection that as per Chapter IX Rule 14 of the High Court Rules, the review petition is not maintainable, because the review petitioner fails to disclose any new fact which was not in the knowledge of the review petitioner at the time of disposal of the writ petition no. 2889 of 1992 (M/B). Hence, the review is liable to be dismissed. In view of the above submission we have perused the referred provision of High Court Rules, 1952. For convenience Rule 14 of Chapter IX of the High Court Rules, 1952 is reproduced;-

14. Contents of review application :- An application for review on the ground of the discovery of new and important matter or evidence shall state in clear terms what such new or important matter or evidences, the affect or purpose thereof, how the same after the exercise of due diligence was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order made and how and when he came to know of it or became able to produce it and the affidavit accompanying it shall be made by the applicant himself.

12. As per the above provision it is true that at the time of hearing this fact was already brought on record but due to oversight and inadvertance of the Court, this point was not considered by the Court that writ petitioner/review opposite party Smt. Saroj Rani was alloted only 13 Bighas and 08 Bishwansies land in lieu of her 20 Bighas land, as alleged by the review petitioner/writ opposite party L.D.A. that Consolidation Officer after valuing the land of the writ petitioner and after addition and deletion alloted only 13 Bighas and 08 Bishwansies land which was acquired by review petitioner and the compensation of the same was paid to the writ petitioner. Consolidation Officer without hearing to the review petitioner L.D.A. the order dated 16.06.1982 was passed, though it was ordered by the Settlement Officer Consolidation, that affected parties were also be summoned and arraigned in the matter, which was not complied with by the writ petitioner and the consolidation officer and the review petitioner/writ opposite party was never informed about the pendency of any C.H. case. That's why no objection was filed in the Court of Consolidation Officer. In these circumstances, we are of the opinion that the review petition is not barred by the provisions of Chapter IX Rule 14 of the High Court Rules.

13. The provisions for review has been incorporated in order 47 Rule 1 of Civil Procedure Code for ready reference are being quoted below;-

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 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.

14. According to Rule-1 of order 47 of Civil Procedure Code, an application for review can be maintained by any party on the any condition mentioned in the Rule-1.

15. Learned counsel for writ petitioner/review opposite party Smt. Saroj Rani cited two case laws which are (1) Puttagangama Vs. Varija (2010) 15 SCC 404 in which Hon'ble The Apex Court opined in para 7 as follows;-

"The high Court did not consider whether the agreement sought to be introduced by way of the review application by the respondents should have at all been admitted. It appears to have proceeded on the basis that the appellant had "admitted that the copy of the agreement to sell was a true copy of the original". The question whether a document is true or not can only arise only after the document is held to be admissible in evidence in accordance with the provisions of law. Where a document, according to the respondents' own statement in their application for review, did not form part of the records of either the trial Court or the High Court and where there is no reason, let alone a sufficient one, as to why the document was not produced earlier, the High Court should not have admitted the same at all under any purported power of review. Incidentally, the predecessor-in-interest of the appellant in whose favour the alleged agreement is said to have been executed by the appellant, had appeared as a witness in a respondents' case before the Rent Controller. Therefore, the alleged agreement could have been produced without any difficulty whatsoever."

(2) Haryana State Industrial Development Corporation Limited Vs. Mawasi and Others (2012) 7 SCC 200 of which paragraphs 35 and 36 are being quoted below;-

"35. In State of West Bengal v. Kamal Sengupta (2008) 8 SCC 612, the Court considered the question whether a Tribunal established under the Administrative Tribunals Act, 1985 can review its decision, referred to Section 22(3) of that Act, some of the judicial precedents and observed: (SCC p. 633, paras 21-22)

"21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.

22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment / decision.

36. In the light of the propositions laid down in the aforementioned judgments, we shall now examine whether the petitioner has succeeded in making out a case for exercise of power by this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC. This consideration needs to be prefaced with an observation that the petitioner has not offered any explanation as to why it did not lead any evidence before the Reference Court to show that sale deed Exhibit P1 was not a bona fide transaction and the vendee had paid unusually high price for extraneous reasons. The parties had produced several sale deeds, majority of which revealed that the price of similar parcels of land varied from Rs. 6 to 7 lakhs per acre. A reading of the sale deeds would have prompted any person of ordinary prudence to make an enquiry as to why M/s. Duracell India Pvt. Ltd.(vendee) had paid more than Rs.2,42,00,000/- for 12 acres land, which have been purchased by the vendor only a year back at an average price of Rs.6lakhs per acre. However, the fact of the matter is that neither the advocate for the petitioner nor its officers/officials, who were dealing with the cases made any attempt to lead such evidence. This may be because they were aware of the fact that at least in two other cases such parcels of land had been sold in 1993 for more than Rs.13 lakhs and Rs.15 lakhs peracre and in 1996, a sale deed was executed in respect of the land of village Naharpur Kasan at the rate of Rs.25 lakhs per acre. This omission coupled with the fact that the petitioner's assertion about commonality of the management of two companies is ex-facie incorrect leads to an irresistible inference that judgment dated 17.8.2010 does not suffer from any error apparent on the face of the record warranting its review. Surely, in guise of seeking review, the petitioner cannot ask for de novo hearing of the appeals."

16. According to both these case laws, the High Court has ample power to review its order or judgment if it think it just and proper, and arrive at the conclusion that the judgment and order passed by it, suffers apparent error of law and facts on its face, but the High Court is not empowered to re-open and re-hearing of the case.

17. On the contrary, learned counsel for the review petitioner/writ opposite party L.D.A. cited the case of Board of Control for Cricket in India and another Vs. Netaji Cricket Club and Ors. (2005) 4 SCC 741 of which paragraph 88 is being reproduced:-

"We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit."

Another case cited by L.D.A. is Usha Bharti Vs. State of U.P. and Ors. (2014) 7 SCC 763 paragraph 68 in which Hon'ble Apex Court opined as under:-

"68. We have no hesitation in accepting the submission of Mr. Bhushan that the High Court or this Court, in exercise of its powers of review can reopen the case and rehear the entire matter. But we must hasten to add that whilst exercising such power the court cannot be oblivious of the provisions contained in Order 47 Rule 1 of CPC as well as the rules framed by the High Courts and this Court. The limits within which the Courts can exercise the powers of review have been well settled in a catena of judgments. All the judgments have in fact been considered by the High Court in Pages 16 to 23. The High Court has also considered the judgment in S. Nagaraj & Ors. Vs. State of Karnataka & Anr. (supra), which reiterates the principle that: (SCC p. 619, para 19)

"19. 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................."

18. In all these cases above cited, Hon'ble the Apex Court opined that the High Court or any other Court has plenary power to review its judgment and order, if it finds that the order or judgment which was passed has error apparent on its face and it will cause miscarriage of justice. From the conjoint reading of above noted provisions of Rule 14 of Chapter IX of High Court Rules and Order 47 Rule 1 of Civil Procedure Code and case laws, it is clear that if any mistake or error is committed by Court, then the court suo moto or on the application of any party correct such mistake or error in the interest of justice, because no party can claim benefit of the erroneous order of the Court. Petitioner pleaded in paragraph 5 of writ petition that after conclusion of the consolidation of holdings, the land was allotted to her 13 Bigha and 8 Bishwansies finally. After the conclusion of the C.H. operation she approached to consolidation authorities to make entries in the C.H. Form No. 23, which was not corrected till the judgment in writ petition dated 15.12.1988. Thus it is evident when the judgment was passed she was not recorded tenure holder of 15 Bighas 6 Bishwas and 6 Biswansies. Since the area of land was not recorded in her name, as she claimed.

19. We have with utmost regard perused these case laws and arrived at the conclusion that the petitioner herself averred in paragraph 5 of her writ petition that after the conclusion of consolidation of holding proceedings, finally she was allotted 13 Bighas and 8 Bishwansies land. She also averred in other paragraphs that the fact of conclusion of consolidation of holding has been notified as per Section 52 of U.P. Consolidation of Holdings Act, 1953. In the writ Courts, it is the obligation of both parties to place correct facts before the Court for the adjudication of the matter, when writ petition was filed by the writ petitioner Smt. Saroj Rani and till the judgment, she has not placed C.H. Form Nos. 41 and 45 before the Court. If these documents were placed before the Court with the writ petition or were brought in the knowledge of the court at the time of judgment then certainly the judgment and order passed by the Court on 15.12.2008 was never passed.

20. We are of the view that the order was passed by the Co-ordinate Bench of this Court on 15.12.2008 while disposing of the writ petition on the pleadings of the petitioner, in which the petitioner did not mention the complete facts rather it was filed on erroneous grounds not mentioning Form Nos. 23, 41 and 45 where there is correct mentioned of the land acquired by the petitioner, which left to be considered by the Division Bench, for the reason of fact that no counter-affidavit was filed by the L.D.A. even after a lapse of seventeen years and no prayer for the same was made, therefore, in these situation, due to oversight and inadvertence, the Court could not consider the fact that the consolidation proceedings have already been finalized and as per C.H. Form Nos. 41 and 45, the petitioner was allotted only 13 Bighas and 8 Bishwansies land in lieu of 20 Bighas land after addition and deletion of land as per the provisions and procedure of Consolidation of Holdings Act.

21. Since the error committed by this Court is for the reason that the petitioner has come up before the Court with incomplete and erroneous grounds coupled with the fact that since no counter-affidavit was filed by the L.D.A. even after a lapse of seventeen years and no prayer for the same was made, therefore, the Court had to proceed only on the basis of the erroneous averments made in the writ petition and correct facts were concealed. In such a situation, no party shall be allowed to reap the fruit by the error or mistake of the Court. Hence, the order of the Court dated 15.12.2008 has a patent and manifest error of facts and law and is liable to be set aside.

22. It is submitted by learned counsel for the writ petitioner/opposite party in review Smt. Saroj Rani that these documents should have been produced by the review petitioner/L.D.A. at earliest and since it has failed to discharge its duty, the judgment and order dated 15.12.2008 should not be reviewed.

23. True, L.D.A. fails to discharge its duty but it should also be remembered that the State operates its activities through Authorities, Tribunals and its instrumentalities. If officers and employees of any legal entity did not try to search these documents which are being submitted with review petition and the counter affidavit was not submitted by the Authority then it was the fault and mistake on the part of the officers and employees of the L.D.A. Equally the writ petitioner was under obligation to place these documents with the writ petition for the substantial and final adjudication of the controversy which was not placed by her and the Court pronounced the order which was not in consonance with the facts and circumstances of the case. Before parting, we may express that the L.D.A. shall enquire and look into the matter that who was the delinquent officer or employee due to which counter affidavit was not submitted and the documents C.H. Form Nos. 41 and 45 were not placed before the Court, due to which the Court was constrained to pass order which is not only erroneous but suffers with manifest error, which is apparent on its face.

24. Not only this, the Court passed an order for damages which was never prayed by the writ petitioner. Though the writ court is empowered to pass any order in the interest of justice but the hearing of the opposite party was essential before passing any order against such party. The judgment sounds that the opposite party L.D.A. was not heard on this point.

25. In view of above discussions, we are of the opinion that the judgment/order dated 15.12.1988 is suffering with apparent mistake on its face, which has arose due to concealment of facts and ambiguous pleadings and failure of the parties by not placing essential documents on record. No party is entitled to reap the crop which is nourished due to erroneous judgment/order passed by Court. Hence review petition is liable to be allowed.

26. Consequently, review petition is allowed and the objections raised by the writ petitioner/review opposite party Smt. Saroj Rani is hereby rejected. Writ petition is also dismissed. No order for cost.

 
Order Date :-   11.08.2017
 
M. Ahmed/Anand
 

 

 

 
	           ( S.N. Agnihotri, J.)                             (Shabihul Hasnain, J.)