M/S. Ijm Lingamaneni Township ... vs The State Of Andhra Pradesh,
2023 Latest Caselaw 2188 AP

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     IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

         THE HON'BLE SRI JUSTICE NINALA JAYASURYA

                         I.A.Nos.1 & 2 of 2020 in

                  WRIT PETITION No.32631 of 2018

Between:-

The State of Andhra Pradesh,
represented by its Principal Secretary,
Revenue (Stamps & Registration)
Department & 4 others                   .... Review Petitioners/R.1 to R.5

                                    And

M/s IJM Lingamaneni Township Private
Limited, represented by its Authorized
Signatory T.Siva Kumar                 ....     Respondent/Writ Petitioner

Counsel for the Petitioners : Learned Addl. Advocate General

Counsel for the Respondent : M/s Indus Law Firm

COMMON ORDER:

Heard Mr.C.Sashibhushan Rao, learned Special Government

Pleader attached to the Office of the Learned Additional Advocate

General appearing for the petitioners/R.1 to R.5 and the learned

counsel appearing for the respondent/writ petitioner.

2. The present Review Petition is filed against the Order dated

27.11.2018 passed by a Learned Judge of the erstwhile High Court of

Judicature at Hyderabad for the State of Telangana and the State of

the Andhra Pradesh in W.P.No.32631 of 2018, wherein the following

relief is sought for:-

"..... to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent in including the petitioner's land in an extent of Ac.2.50 cents in Survey No.142/1B, an extent of Ac.5.00 cents in Survey No.143/2B, 2C1 and 2C2 and an extent of Ac.5.13 cents in Survey No.144/1B of Kantheru Revenue Village, Tadikonda Mandal, Guntur District in the Prohibited Property Register as illegal, arbitrary and violative of Articles 14, 21 and 300-A of the Constitution of India and consequently set aside the same."

3. The Learned Judge after setting out the facts of the case and

referring to the Counter Affidavit filed on behalf of the 4th respondent

as also a detailed written instructions placed before the Court, allowed

the Writ Petition with costs of Rs.50,000/- while recording the following

conclusions:-

"From the above averments made in the writ affidavit and the written instructions, the aspect of acquiring the land by the Government on payment of compensation and subsequent sale of the said land by VGTMUDA to M/s Lingamaneni Estates Pvt. Ltd., Hyderabad is admitted. This shows that the authority, who included subject land in the list of prohibited properties, has done without any application of mind and in totally arbitrary manner.

Even after filing writ petition respondents have not rectified the same, which is arbitrary. When sale is in the year 2002 and 2004 why process of deletion of subject land from the list of prohibited properties is still kept pending is not explained. VGTMUDA also registered subject properties in favour of the petitioner's vendor and who in turn hold (sic. sold) to the petitioner through registered sale deed. So far as land in Survey No.143/2B, 2C is concerned in the writ affidavit, it is stated as Ac.2.15 cents as far as sale deed dated 18.06.2004 vide document No.1525/2004, but in the prayer, it is mentioned as Ac.5.00."

4. Seeking review of the said order to the extent of deletion of

Ac.2.15 cents in Sy.No.143/2B, 2C of Kantheru Village and awarding

costs of Rs.50,000/- to be recovered from the concerned officer, who

had included the subject matter property in the List of Prohibited

Properties by conducting enquiry by the 1st respondent, the

respondents in the Writ Petition filed the present review on 04.02.2020.

The review petitioners also filed I.A.No.2 of 2020 seeking suspension of

operation of the said order dated 27.11.2018.

5. The learned Special Government Pleader submits that the land of

an extent of Ac.2.15 cents situated in Sy.No.143/2C,2B was classified

as „Rail-Road Poramboke‟ in Revenue Re-Settlement Register and the

public in the vicinity had been using the said land as Donka i.e., Road.

He submits that the said land is meant for communal purpose and the

same cannot be alienated by the Government. He submits that the

then District Collector had issued Proceedings for issuance of advance

possession in favour of Vijayawada Guntur Tenali Mangalagiri Urban

Development Authority (for short "VGTMUDA) and the same is without

jurisdiction, in as much as, the District Collector is not empowered to

alienate the community lands. Emphasizing more on ground Nos.4 &

8(iv), the learned counsel contended that a duty is cast on the State to

preserve the community lands, which are meant for the use of public at

large. He submits that the land in question as per Section 53(1) of

A.P.Panchayat Raj Act is vested with the Gram Panchayat and the

Government alone is competent to exclude such property from the

operation of the Act and therefore, the advance possession order

issued by the then District Collector is contrary to the provisions of the

A.P. Panchayat Raj Act. He submits that as the Learned Judge passed

the order without considering the said aspects, the present review is

filed. He submits that public interest at large would suffer, unless the

Order dated 27.11.2018 is reviewed in the facts and circumstances of

the case. Accordingly, he prays for allowing the Review Petition.

6. Per contra, the learned counsel appearing for the

respondent/writ petitioner while refuting the said submissions contends

that the present Review Petition is filed without any petition to condone

the abnormal delay of more than one year. He submits that the

Learned Judge after detailed consideration of the matter and after

taking note of the undisputed fact that the proposals for removal of an

extent of Ac.2.15 cents in Sy.No.143/2C, 2B of Kantheru Village from

the Prohibited Properties List is under process, issued direction in the

Writ Petition and the same therefore warrants no interference by this

Court, much less, in the present Review Petition. Contending that

„Donka Poramboke‟ is not road as sought to be contended by the

review petitioners, the learned counsel draws the attention of this

Court to the Counter filed in W.P.No.16775 of 2007, wherein it is

inter alia stated as follows:-

"I deny the averment that the villagers of neighbouring villages are using this land in Sy.No.143/2(c) and 2(b) as pathway or cart track. It is respectfully submitted that this land is never used by the villagers as a pathway or cart track. In fact, the then MRO has conducted a personal inspection and submitted the report categorically stating that there is no thorough fare through this land and neither villagers nor the cattle have used this land as pathway and therefore, I deny the averments in this regard."

7. He submits that as the subject matter land is not in public use

and as it is forming in part of the land acquired by VGTMUDA, the then

District Collector considered the alienation proposal, which is within his

jurisdiction and the successor Collector cannot take a different stand,

contrary to the record. He submits that the earlier litigation in respect

of the subject matter property is well within the knowledge of the 1st

respondent and the concerned officers and in such circumstances, in

the absence of discovery of new facts or evidence, which was not

produced earlier despite due diligence, the order cannot be reviewed.

He submits that no plea to the effect that new facts/material was

discovered or that the order of the Learned Single Judge suffers from

error apparent on the face of the record was raised. Placing reliance on

the Judgment of the Hon‟ble Supreme Court in S.Madhusudhan

Reddy vs. V.Narayana Reddy & Others [Civil Appeal Nos.5503-

04 of 2022 dated 18.08.2022], the learned counsel urges for

dismissal of the Review Petition.

8. In order to appreciate the rival contentions, it may be

appropriate to refer to the relevant provisions dealing with the review

petitions.

"Section 114 of the CPC:

Review:- Subject as aforesaid, any person considering himself aggrieved:-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred;

(b) by a decree or order from which no appeal is allowed by this Code; or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit." Order XLVII of the CPC:

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) ............

1[Explanation - .............."

9. From a reading of the above provisions of Law, it is to be noted

that an order would be open to review when any new or important

matter of evidence has emerged after the order is passed, subject to

the condition that such evidence was not within the knowledge of the

party seeking review or could not be produced by it when the order

was made, despite undertaking an exercise of due diligence. It is also

settled Law that the scope of Review is limited and the error must be

apparent on the face of the record. In the Affidavit filed in support of

the Review Petition and in the grounds, no plea is taken to the effect

that the review petitioners/respondents found new material or

evidence, which was not within their knowledge when the order was

passed by the Learned Judge, while disposing of the Writ Petition or

that the said material could not be placed before the Court after

exercising due diligence before passing of the order. As opined by the

Hon‟ble Supreme Court in S.Madhusudhan Reddy supra, "in order to

satisfy the requirements prescribed in Order XLVII Rule 1 CPC, it is imperative

for a party to establish that discovery of the new material or evidence was

neither within its knowledge when the decree was passed, nor could the

party have laid its hands on such documents/evidence after having exercised

due diligence, prior to passing of the order."

In the instant case, no ground is raised to the effect that the

order under review suffers from an error apparent on the face of the

record, either.

10. In State of West Bengal and Others vs. Kamal Sengupta

and Another [(2008) 8 SCC 612], the Hon‟ble Supreme Court

emphasized the requirement of the review petitioner who approaches a

Court on the ground of discovery of a new matter or evidence,

to demonstrate that the same was not within his knowledge and dealt

with the term „mistake or error apparent‟. The expression of the

Hon‟ble Supreme Court, as set out in Paras 21 & 22 is extracted for

ready reference hereunder:-

"21. At this stage it is apposite to observe that when 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, if might have altered the judgment. In other words, mere discovery of new or important matter of 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 pointy of fact or law. In any case, while exercising the power or review, the court/tribunal concerned cannot sit in appeal over its judgment/decision".

(emphasis added)

11. In Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma

[1979 (4) SCC 389], the Hon‟ble Supreme Court was dealing with an

order passed by the Judicial Commissioner, who was reviewing an

earlier judgment that went in favour of the appellant, while deciding a

review application filed by the respondents therein who took a ground

that the predecessor Court had overlooked two important documents

that showed that the respondents were in possession of the sites

through which the appellant had sought easementary rights to access

his homestead. The Hon‟ble Supreme Court allowed the said appeal

with the following observations:-

"3...It is true as observed by this Court in Shivdeo Singh and Others vs. State of Punjab [AIR 1963 SC 1909], 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 pulpable errors committed by its. 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 or 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 added)

12. In the light of the expressions of the Hon‟ble Supreme Court in

the decisions referred to above and as the review petitioners failed to

satisfy the requirements of the Order XLVII Rule 1 of CPC, this Court is

of the opinion that the relief sought for by the review petitioners merits

no consideration. Further, various other grounds raised and sought to

be urged including those with reference to the powers of the District

Collector vis a vis Section 53 of the Panchayat Raj Act, if at all, may fall

within the domain of the appellate Court.

13. In view of the aforesaid conclusions, no case is made out for

reviewing the order as sought for. Accordingly, I.A.No.1 of 2020 is

dismissed. Consequently, I.A.No.2 of 2020 also stands dismissed.

There shall be no order as to costs. As a sequel, pending applications,

if any, shall stand closed.

_______________________ JUSTICE NINALA JAYASURYA Date: 21.04.2023

IS

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

I.A.Nos.1 & 2 of 2020 in

WRIT PETITION No.32631 of 2018

Date: 21.04.2023

IS