Auth. Sign., Golden Tobacco ... vs Prl Secy, Minorities Welf Dept, ...
2023 Latest Caselaw 135 AP

              THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                           AND
           THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI


                              Review I.A.No.1 of 2020
                                            in
                                W.A.No.1658 of 2017


ORDER: (Per Hon'ble Sri Justice C.Praveen Kumar)

       Review Petition is filed, seeking indulgence for review of the order

dated 27.08.2019, passed in W.A.No.1658 of 2017, wherein, this Court

dismissed the Writ Appeal filed by the Petitioner herein, giving liberty to

raise the factual and legal contentions before the authority under Section 51

of the Waqf Act, by submitting reply to the Show Cause Notice.


2.     The facts, in issue, are as under:

       (a) Writ Petition No.24370 of 2017 came to be filed by the Petitioner,

before the Learned Single Judge, challenging the Show Cause Notice, dated

28.06.2017

, issued by the A.P. State Waqf Board, as being wholly illegal and

totally without jurisdiction.

(b) The averments in the Writ Petition are that the subject land to an

extent of Ac.11.57 cents in the survey fields of Sy.Nos. 500/1, 504, 504/3B,

504/3C, 505, 505/2A and 505/2B of Guntur village was originally part of

larger extent of Ac.85.02 cents of land that had been granted to an

individual by name Mir Ameen Ali Abdul Raha Amanullah Sahib, for public

service i.e., 'calling Mussalmans daily for reading Namaz in that village'. This

grant has been confirmed by way of Title Deed No.980, dated 02.02.1861, by

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

the Inam Commissioner of the Government of the erstwhile province of

Madras, which was 'Nirkhi' Inam. The original grant was of personal grant in

nature and was not a grant in favor of any particular religious institution.

(c) On account of fact that Inamdar had alienated inam land and such

alienation being prohibited, the Government resumed major part the said

service inam [Ac.52.89 cents] (originally comprised of an extent of Ac.85.02

cents), by order of the Collector, Guntur, dated 30.1.1924 vide R.Dis.No.12-

24-A2. The land was assessed to Revenue by fixing assessment of Rs.99-3-

00 by the said order.

(d) While things stood thus, the Government issued G.O.Ms.No.892,

Revenue (UC-III) Department, dated 17.08.1994, granting exemption from

the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, in

relation to an extent of 16,709.81 square meters of land in Sy.Nos.504/1 &

2 and 505/1 of Guntur. Though, the land was resumed by the Government

during the year 1924 and lost its character as Inam, again the same was

being treated as Inam in the control of the A.P. State Waqf board on the

strength of an erroneous and invalid notification published in the A.P.

Gazette on 28.06.1962 showing the property as Waqf property.

(e) Since the land is classified as Inam by virtue of Notification dated

28.6.1992 in the A.P. Gazette, the land is shown in the list specified under

Section 22-A(1)(c) of Registration Act. Due to inclusion of subject lands in

the prohibitory list under Section 22-A (1)(c) of the Registration Act, much

hardship is being caused to the Writ Petitioner-Company, as the bankers of

Writ Petitioner-Company addressed a letter dated 1.8.2016 on the subject

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

seeking clarification on the allegations made by Waqf authorities. Waqf

Board also issued a Show Cause Notice in F.No.10/Prot/GNT/2016, dated

28.6.2017 for conducting an enquiry under Section 51 of the Waqf Act, 1995

read with Rule 22 of the A.P. Waqf Rules, 2000 on the ground that it was

alienated by third parties. This Show Cause Notice was challenged in

W.P.No.24370 of 2017.

3. In view of the availability of alternative remedy and dispute is with

regard to title, held that the issue can be decided by Wakf Tribunal

constituted under Section 83 of the Act, as per law laid down in "Board of

Wakf, West Bengal v. Anis Fatma Begum and another"1, the learned

Single Judge disposed of the Writ Petitions by common order, giving liberty

to the petitioner to avail the remedy within a period of 60 days.

4. Against the Order of Learned Single Judge, Writ Appeal 1658 of 2017

was filed in which the Division Bench of this Court, placing reliance on

"Sayyed Ali and Others v. A.P.Waqf Board, Hyderabad and Others"2

and various judgments of Hon'ble Apex Court, dismissed the appeal and

gave liberty to Writ Appellant to raise factual and legal contentions before

the authority under Section 51 of the Waqf Act.

5. Against which, the present Review came to be filed by the Petitioner,

wherein, Sri P. Roy Reddy, would contend that the Order dated 27.08.2019

requires to be reviewed, in view of non-consideration of aspects that are

crucial for the purpose of determination of the issue involved in the lis. The

2011 (1) ALD 61 SC

(1998) 2 SCC 642

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

learned Counsel would contend that the Judgment of the Hon'ble Supreme

Court in "P. Kaliamuthi and another v. Five Gori Thaikal Wakf"3,

which had been cited by the Appellant, was not noticed by the Hon'ble

Division Bench. He further submits that the summary proceedings initiated

by the Waqf Board under Section 51 of Waqf Act, 1995, are demonstrably

barred by limitation and Section 107 of the Waqf Act, 1995, does not have

the effect of reviving a barred claim or extinguished right, as held by the

Hon'ble Supreme Court in P.Kaliamuthi and Another (cited 3 supra) .

6. Sri P. Veera Reddy, learned Senior Counsel, appearing on behalf of the

A.P.Waqf Board submits that the Scope of Review under Section 114 of Civil

Procedure Code, 1908 can be invoked only when there is an error apparent

on the face of record. An authority being not considered cannot be a ground

to entertain a Review Petition.

7. Learned Senior Counsel would contend that learned Single Judge also

disposed of the Writ Petitions, in view of alternate remedy available, and

granted liberty to the petitioner to approach Waqf Tribunal. However,

without approaching Tribunal, a Writ Appeal had been filed. He took us

through the findings of the Judgment in Writ Appeal, where the Division

Bench of this Court placed reliance on Sayyed Ali and Other (cited 2 supra),

wherein, it was held that, a Waqf is a permanent dedication of property for

purposes recognized by Muslim Law as pious religious or charitable and the

property having been found as waqf would always retain its character as

waqf. In other words, once a waqf always a waqf and the grant of patta in

(2008) 9 SCC 306

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

favor of Mokhasadar under the Inams Act, does not, in any manner, nullify

the earlier dedication made in respect of the property constituting the same

as waqf and also held that the grant was in favor of institution, governed by

Waqf Act, but not as a personal grant.

8. Learned Senior Counsel also brought to the notice of this Court, the

finding of Division Bench in regard to contention raised by the

petitioner/appellant that third parties cannot approach the Tribunal,

wherein this Court held that amendment made to Section 7(1) of the Waqf

Act, which came into effect from 29.10.2013 includes "every person

aggrieved" and therefore the contention that this appellant cannot approach

the Tribunal is without any substance.

9. Learned Senior Counsel further submitted that the decision

P.Kaliamuthi and Another (cited 3 supra), relied upon by the Review

Petitioner, was decided in the year 2008. Subsequently, on 29.10.2013, an

amendment came into effect enabling third parties to approach Tribunal,

thus the judgment relied upon by the Review Petitioner has no effect. He

also placed his reliance on "Rajasthan Wakf Board v. Devki Nandan

Pathak and Other"4 wherein the Hon'ble Supreme Court held that the

matters falling under Sections 51 and 52 of the Act are required to be

decided by the Tribunal and hence jurisdiction of the Civil Court to decide

such matters is also barred by virtue of provisions contained in Section 85

of the Act.

2017 (4) ALD 106 (SC)

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

10. Learned Senior Counsel also submitted that the Petitioner has

maintained silence from the year 1964 and approached the Court only when

Section 51 proceedings were initiated, as there is serious dispute over the

title of property. He also pleads that though Petitioner challenged the show

cause notice under Section 51 of the Waqf Act and raised several

contentions, he invited findings as if it is claim for declaration of title. Since

the said aspects cannot be decided in Writ Jurisdiction, the Division Bench

of this Court dismissed the Appeal. Hence, no prejudice is caused to the

Petitioner and no interference is required in this review.

11. Before proceeding further, it would be just and proper to deal with the

scope of Review Application filed under Order 47 Rule 1 C.P.C.

12. In A. Prabhavathi vs. State of Andhra Pradesh and others5, the

Division Bench of this Court, to which one of us was a Member, has

elaborately discussed the principles relating to review. After referring to the

order in T.D. Dayal vs. MadupuHarinarayana, Hari Babu [2013 (6) ALD 734

(DB)] and Mohammadiya Educational Society vs. Union of India [2016 (4)

ALD 464 (DB)], the Court held as under:-

"17. Summoning up the principles, as discussed in the above two cases of the Division Bench, after undertaking the exercise of detailed survey of law on the scope of review, the essence of the observations made in the above two cases may be stated in a condensed version as follows:

52020 (2) ALD 557

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

"Review, literally and judicially, means re-examination or reconsideration. The basic philosophy inherent in it is the universal acceptance of human fallibility. Yet, in the realm of law, Courts lean strongly in favour of the finality of a decision legally and properly made. Exceptions have been carved out to correct accidental mistakes or to prevent miscarriage of justice or to avoid abuse of process. So, the power of review would be exercised only to remove the error and not to disturb the finality. There are definitive limits to exercise the power of review. The same can be exercised on the discovery of a 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 can also be exercised where some mistake or error apparent on the face of the record is found. But, it may not be exercised on the ground that a 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 the appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate Court. The review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.

18. Thus, as per the law enunciated in the aforesaid judgments, and as per the principles culled out from the above observations made by the Division Bench after considering all the earlier precedents on the subject, the legal position relating to the scope of interference in review proceedings which are extremely limited can be summarised as follows:-

(1) A review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility".

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

(2) When a new or important matter or evidence is discovered which was not within the knowledge of the person seeking review at the time of hearing the case earlier or which could not be produced by him when the order was made.

(3) The normal principle is that a judgment pronounced by the Court is final, and departure from the principle is justified only when circumstances, of a substantial and compelling character, make it necessary to do so.

(4) Review is not a rehearing of an original matter. The power of review cannot be confused with the appellate power which enables the appellate Court to correct all errors committed by a subordinate Court.

(5) A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

(6) 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 the record justifying exercise of the power of review.

(7) There is a clear distinction between an "erroneous decision" and "an error apparent on the face of the record". While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. So, the earlier order cannot be reviewed unless the Court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(8) If the judgment is vitiated by an error apparent on the face of the record, in the sense that it is evident on a mere look at the record

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

without a long-drawn process of reasoning, a review application is maintainable. If there is a serious irregularity in the proceeding, such as violation of theprinciples of natural justice, a review application can be entertained.

13. In Sow Chandra Kante and others vs. Sheikh Habib6, the Hon'ble

Supreme Court observed as under:-

"May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should "not be a routine affair or a habitual step. It is neither fairness to the court which has decided nor awareness of the precious public time lost what with a huge back-log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin

(1975) 1 SCC 674

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ground but review of an earlier order which has the normal feature of finality"

14. In Ram Sahu (Dead) Through LRs and others vs. Vinod Kumar

Rawat and others7, the Hon'ble Supreme Court observed as under:-

"35. The principles which can be culled out from the above noted judgments are:

(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.

(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.

(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.

(vii) While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for

2020 SCC Online SC 896

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

declaring the initial order/decision as vitiated by an error apparent.

(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such 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/tribunal earlier."

15. From the above Judgments, it is clear that this Court can entertain

review application only when there is an error apparent on face of the record

and not to disturb the finality of the judgment.

16. As observed earlier, Writ Petition No.24370 of 2017 came to be filed by

Petitioner questioning the Notice issued by A.P. Waqf Board under Section

51 of Waqf Act. The Learned Single Judge disposed of the Writ Petition

giving liberty to the Petitioner to pursue alternate remedy. However, instead

of exhausting the alternate remedy, the Petitioner preferred Writ Appeal

under Clause 15 of Letter Patent Appeal, where Division Bench of this Court

gave liberty to raise factual and legal contentions before the authority, as

there is a serious dispute with regard to the title of the property and that

this Court cannot decide the same under Writ Jurisdiction, against which,

Review is filed.

17. In the present Review, the only contention advanced by the review

Petitioner that the judgment of Hon'ble Apex Court in P. Kaliamuthi and

Another (cited 3 supra), which was relied upon by the petitioner to support

his case, was not at all considered by this Court in its order dated

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27.08.2019, passed in W.A.No.1658 of 2017, which is a crucial aspect for a

just decision of the case.

18. The Division Bench vide its order dated 27.08.2019, to which, one of

us is a Member, dismissed the Writ Appeal giving liberty to the Petitioner

herein to approach the authority under Section 51 of the Waqf Act, as it

involves serious dispute to title which cannot be decided under Writ

Jurisdiction. However, under guise of challenging the Show Cause Notice

issued under Section 51 of the Waqf Act, the petitioner raised several

contentions for declaration of his title. The Judgment P. Kaliamuthi and

Another (cited 3 supra) relied upon by the petitioner was also to establish

his title, but not with regard to the relief, as sought for, in the Writ Petition.

This Court under Writ jurisdiction has no power to declare the title and has

to limit itself to the relief claimed in the Writ Petition. The relief claimed in

Writ Petition, was already dealt with by granting liberty to the Petitioner to

approach the authority and to raise all objections in proper Forum. As there

is no patent prejudice is caused to the Petitioner and the Order dated

27.08.2019, illegality or infirmity in the order passed in W.A.No.1658 of

2017, the same warrants no interference.

19. For the above stated reasons, we see no merit in the Review Petition.

Accordingly, the Review Petition is dismissed. There shall be no order as to

costs.

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

Miscellaneous petitions pending, if any, shall stand closed.

______________________________ JUSTICE C.PRAVEEN KUMAR

_____________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI

Date:06.01.2023

MS

CPK, J & BVLNC, J Review I.A.No.1 of 2020 in W.A.No.1658 of 2017

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

Review I.A.No.1 of 2020 in Writ Appeal No.1658 of 2017 (per the Hon'ble Sri Justice C. Praveen Kumar)

Date: 06.01.2023

MS