Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Bimal Sardar & Ors on 22 September, 2022
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shekhar B. Saraf
R.V.W 271 of 2017
IA No. CAN. 1 of 2017 (Old No. CAN 11258 of 2017)
IA No. CAN. 2 of 2017 (Old No. CAN 11259 of 2017)
In
W.P.A. 25094 of 2016
With
W.P.C.R.C. 172 of 2017
STATE OF WEST BENGAL & ORS.
VERSUS
BIMAL SARDAR & ORS.
For the Applicants/Respondents : Mr. Chandi Charan De, Adv.,
Mr. Rabindra Narayan Dutta, Adv.,
Mr. Hare Krishna, Adv.
For the Respondents/Writ Petitioners
: Mr. Debasis Sur, Adv.
Mr. Himadri Sekhar Paul, Adv.
Last Heard on : September 08, 2022
Judgment on : September 22, 2022
Shekhar B. Saraf, J.:
1. This review application has been filed by the State against an order
dated April 10, 2017 passed by Justice R.K. Bag in W.P. No. 25094(W)
of 2016.
2. The facts of the present matter are as follows :
a. The Applicant/Respondent is the State of West Bengal, service
through the Secretary, Department of Land & Land Reforms,
Government of West Bengal and others.
b. The Respondent no. 1/ Writ Petitioner is Bimal Sardar. He is the
recorded owner of Plot No. 492 (area - 1.13 acres) Plot No. 493
(area 0.04 acres) and Plot No. 494 (area 66 decimals) of Mouza -
Baunia Abad, J.L. No. 20, Khaitan No. 3041 and 4741 under P.S.
Sandeshkhali, District - North 24 Parganas.
c. The plot was agricultural land and the Respondent/ Writ
Petitioner had khas possession of the plot. He was cultivating this
using his own men, bullocks and family members. In 2009, due to
Cyclone Aila, Sunderbans were affected and the embankment was
demolished, where the Writ Petitioner resided. Due to the damage
and the Respondent was no longer able to cultivate the land.
d. After the Cyclone Aila, in order to protect the local area and
residential houses in the area, the Applicants/Respondents
decided to prepare a ring bandh to prevent further flooding. In lieu
of this, the Applicants acquired land, including the land of the
Respondent/Writ Petitioner, under the provisions of the Land
Acquisition Act, 1894.
e. The Respondent/Writ Petitioner states that the
Applicant/Respondent had acquired and took over possession of
the demarcated land. The acquisition of the Respondent's/Writ
Petitioner's land was registered as L.A. Case No. LA-4/116 of
2012-2013 and an award was made in connection with this case.
f. Subsequently, a dispute between the parties arose regarding the
payment of compensation owed to the Respondent/Writ Petitioner,
for the land that was acquired from them under the provisions of
the Land Acquisition Act, 1894, and in connection with L.A. Case
No. LA-4/116 of 2012-13. The Respondent/Writ Petitioner
contends that the award associated with the case has not been
paid. The impugned order dated April 10, 2017 of Justice R.K. Bag
also observed that there was nothing on record to indicate that the
payment had been made to the Respondent/Writ Petitioner.
g. From December 7, 2010 to September 1, 2016, the
Respondent/Writ Petitioner approached various authorities to
disburse the compensation amount owed to him. He approached
the Sub-Divisional Officer, Haroa, Irrigation Sub-Division,
Basirhat, North 24 Parganas, Executive Engineer, Basirhat
Irrigation Division duly recommended by Pradhan, Nazat-I Gram
Panchayat, Sandeshkhali - I, ADM (LO) Land Executive, North 24-
Pargananas, Barasat, Project Directorate - I, the Deputy Secretary
of the Govt of West Bengal as well as the Superintending Engineer,
Eastern Circle, Irrigation and Waterways Directorate. Despite this,
no action was taken by any of the concerned authorities to release
the said compensation.
h. On February 21, 2013 the Executive Engineer submitted a
proposal in the aforesaid LA Case No. LA-4/116 of 2012-2013 to
Additional District Magistrate and District Land and Land Reforms
Office and conveying the fact that relevant estimate of land in
question was sanctioned by the appropriate authority in
connection with the said L.A. case for placement of fund as per
provision of the Land Acquisition Act, 1894.
i. On February 27, 2013, The Executive Engineer also solicited
before the Additional District Magistrate and District Land and
Land Reforms Officer, Barasat for compensation to be released
under Act-I of 1894 through the Basirhat Irrigation Division, with
regard to the acquisition of more or less 0.552 acres.
j. The Respondent/Writ Petitioner did not receive compensation
despite filing numerous applications before the concerned
authorities and proceeded to send a demand letter dated
September 1, 2016, to the concerned authorities, for the
compensation and the interest thereto for the purpose of Aila,
through his learned advocate on record.
k. Being aggrieved by the inaction of the concerned authorities,
despite approaching them on multiple occasions, serving a
demand of justice, repeated prayers and remainders, the
Respondent/Writ Petitioner preferred a writ petition under Article
226 of the Constitution, registered as W.P. 25094 of 2016. The
Respondent/Writ Petitioner prayed for direction upon the
Applicants/Respondents to make payment of compensation for
acquisition of land in connection with L.A. Case No. LA-4/116 of
2012-2013.
l. The Counsel for the Respondent/Writ Petitioner stated before the
learned Judge that the Respondent/Writ Petitioner will be satisfied
with the award assessed under the provisions of the Land
Acquisition Act, 1894.
m. After hearing the Writ Petition, Justice R.K. Bag passed an order
dated April 10, 2017 directing the Additional District Magistrate
and District Land and Land Reforms Officer, Barasat to pay the
amount of award in connection with L.A. Case No. LA-4/116 of
2012-13 to the petitioner within a period of 8 weeks from the date
of the order.
n. Justice R.K. Bag also observed that the Applicants/Respondents
prayed for accommodation, however, since the
Applicants/Respondents has notice of the case since October,
2016, he refused the prayer for accommodation. In light of this,
the learned Judge directed the Additional District Magistrate and
District Land and Land Reforms Officer, Barasat to disburse the
amount of award to the petitioner in connection with the L.A.
Case.
o. Aggrieved by this order, the Applicants/Respondents filed an
application on June 16, 2017, for recalling or modifying the said
order. However, this application was rejected in a hearing on
November 3, 2017, by Justice R.K. Bag. The
Applicants/Respondents were granted the liberty to file an appeal
or a review application against the order.
p. On June 16, 2017, the Applicants/Respondents preferred the
present review application against an order dated April 10, 2017,
passed by Justice R.K. Bag.
q. The Applicants/Respondents also filed a C.A.N Application No.
11258/2017 on November 30, 2017 praying for condonation of
delay in filing the review petition. The petition was filed on the
grounds that they did not have knowledge about the order dated
April 10, 2017 and the pendency of recalling application led to an
unintentional and unavoidable seven and half month delay in
filing the review matter.
r. The Applicants/Respondents also filed CAN Application
No.11259/2017 on November 30, 2017 praying for a stay on the
order dated April 10, 2017 or that appropriate order be passed
keeping the contempt proceedings being W.P.C.R.C. 172 of 2017 in
abeyance till the disposal of the instant review matter.
3. Mr. Rabindra Narayan Dutta, counsel appearing on behalf of the
Applicants/Respondents has made the following arguments :
a. The counsel contends that it is a settled position of law that
parties to a matter should be allowed to submit their applications
and have all those applications heard by the Court. He submits
that the order was passed without calling for the records of the
alleged Land Acquisition case or any affidavits, thereby vitiating
this order as there is an error apparent on the face of the record.
b. The counsel also questions the very existence of the land
acquisition case. He submits that the land acquisition lapsed and
no notice of acquisition proceedings was published in the
newspaper or in the Government Gazette. The counsel argued that
the Applicants/Respondents under the statute has no power or
authority to pay compensation and to proceed with the said
acquisition case and more specifically there is no existence of the
alleged acquisition case.
c. Continuing his arguments, the counsel states that the Land
Acquisition No. 4/116 of 2012 - 2013 is wholly wrong. He further
submits that the Respondent/Writ Petitioner had suppressed
material facts that would have otherwise provided a clear picture
of how much land the Respondent/Writ Petitioner actually owned
and how much of it was being acquired by the State. The counsel
claims that there was no acquisition in respect of the Plot Nos.
492, 493 and 494 as mentioned by the Respondent/Writ
Petitioner, rather only 0.15 acre or 1.5 decimals of the plot was
under notice of acquisition and the acquiring authority after
completion of the proceedings under Section 9 of the Land
Acquisition Act, 1894. He further submits that the
Respondent/Writ Petitioner did not own plot no. 492 and 493
Mouza - Baunia Abad under J.L. No. 3041 and 4741, Police
Station - Sandeshkhali, District - North 24 - Parganas and that
these facts were not brought to the notice of the learned Judge
when he was passing the said impugned order. Concluding his
arguments, the counsel submits that the Respondent/Writ
Petitioner and other co-sharers are still in possession and
occupation of the said land in question and hence the judge erred
in passing this order with an error apparent on the face of record.
4. Mr. Debasis Sur, counsel appearing on behalf of the Respondent/Writ
Petitioner has made the following arguments:
a. The counsel argues that it is a settled principle of law that when
land is acquired by the State, then the owner is entitled to
compensation under the provisions of the Land Acquisition Act,
1894. He states that the Applicant/Respondent had acquired and
took over possession of the demarcated land and this included the
Respondent's/Writ Petitioner's plots. The acquisition of the
Respondent's/Writ Petitioner's land was registered as L.A. Case
No. LA-4/116 of 2012-2013 and that an award was made in
connection with this case. However, such compensation has not
been paid for a prolonged period of time. He contends that the
Respondent/Writ Petitioner is entitled to get compensation with
reasonable interest for delayed disbursement of their
compensation.
b. The counsel contends that there was no embargo on the
authorities to release the compensation as Respondent No.5 in the
writ petition, i.e., the Executive Engineer, Irrigation and Water
Ways Directorate, Basirhat, Irrigation Division, had already
accepted the proposal for compensation notwithstanding the fact
that for last six years no amount of compensation has been paid.
Furthermore, he submits that the local land owners jointly
adopted resolution dated November 8, 2012 whereby in presence
of the local Pradhan the affected land owners gave a No Objection
Certificate so far as the lands of Mouja - Baunia Abad J.L. No.20
in favour of the State so that ring bandh be made; a copy of this
NOC has been annexed with the Writ Petition. The counsel
elaborates upon this contention and states that the authorities
had accepted this No Objection Certificate and thereby completed
the project a long time ago. And that in light of this, there was no
bar to take a decision relating to the grant of compensation.
c. The counsel submits that the State has acted illegally by acting in
ignorance of the procedure laid down for payment of
compensation. The Executive Engineer had also submitted a letter
to the Additional District Magistrate and District Land and Land
Reforms Office, conveying the fact that the relevant estimate of the
land in question was sanctioned by the appropriate authority in
connection with the said L.A. Case for placement of fund as per
provisions of the Land Acquisition Act, 1894.
d. Lastly, the counsel for the Respondent/Writ Petitioner states in its
Affidavit in Opposition to CAN Application No. 11258/2017, that
the Executive engineer had informed the Superintending Engineer,
Eastern Circle, Irrigation and Waterways Directorate vide letter
dated March 19, 2015 wherein it re-submitted the land acquisition
and payment of LA compensation relating to the compensation.
The Respondent/Writ Petitioner also received a letter from the
Sub-Divisional Officer, Haroa, Irrigation Sub-Division, Basirhat, on
December 12, 2015 informing the Respondent/Writ Petitioner
about the completion certificate stating the acquisition of three
plots; a copy of this letter has been annexed in the said Affidavit of
Opposition to CAN Application No. 11258/2017.
Observation and analysis:
5. I have heard the counsel appearing for the respective parties and
perused the materials on record.
6. At the very outset, it would to apt to discuss the jurisdiction of this
Court to review its own judgment. I had the occasion to examine the
principles of review while sitting on the Division Bench with the Hon'ble
Justice Harish Tandon in the case of The State of West Bengal &
Anr. Vs. Confederation of State Government Employees & Ors.
reported in (2019) 3 WBLR (Cal) 39. After examining a catena of
Supreme Court Judgments [See Sasi (D through LRs -v-
Aravindakshan Nair reported in (2017) 4 SCC, paras 6-9; Haridas
Das -v- Smt. Usha Rani Banik reported in (2006) 4 SCC 78, paras
15-18; Parsion Devi -v- Sumitri Devi reported in 1997 (8) SCC 715,
paras 7-10; Aribam Tuleshwar Sharma -v- Aribam Pishak Sharma
reported in (1979) 4 SCC 389, para 3] I had culled out the principles
that emerge from a perusal of the land-mark Supreme Court
Judgments on the issue of review. The same are delineated below :-
a. The power to review is inherent in the High Court and the High
Court can review its own order/judgment passed in a writ petition.
b. This power of review is a limited power and would be governed by
the principles of Section 151 read with Order XLVII Rule 1 of the
Code of Civil Procedure.
c. Firstly, a Court can review its own judgment when there is
discovery of new and important matter or evidence that was in
spite of exercise of due diligence not within the knowledge or could
not be produced due to cogent reasons by the party seeking a
review. Secondly, the court may review its order or judgment on
account of some mistake or error apparent on the face of the
record. Thirdly, a residuary clause in Rule 1 of Order XLVII
provides for a review 'for any other sufficient reason.' It is to be
noted that the Apex Court on several occasions has held that the
third condition "for any other sufficient reason" has to be read
within the four corners of the first two conditions.
d. An error which is not self-evident and has to be detected by a
process of reasoning is not an error apparent on the face of the
record.
e. A review petition has a limited purpose and cannot be allowed to
be "an appeal in disguise". There is a sharp distinction between an
erroneous decision that can be only appealed against and an error
apparent on the face of the record that is subject to review.
7. Given the limited scope of review as elucidated in the principles above, I
am of the opinion that the contentions raised by the
Applicants/Respondents in this review application do not satisfy any of
the aforementioned principles regarding review by the Court of its own
judgment.
8. It is the contention of the Applicants/Respondents in this review
petition that there has been suppression of material facts by the
Respondent/Writ Petitioner in order to secure the impugned order
dated April 10, 2017 from this Court. The Applicants/Respondents
claimed that the Writ Petitioner/Respondent did not disclose to the
Court that the said land has not been acquired by the acquiring
authority and that the writ petitioner is not the owner of the entirety of
the said plots.
9. It is axiomatic that any petitioner in a writ petition has to approach the
Court with "clean hands" based on good faith and has to produce
before the Court all material facts that are relevant for adjudication of
the said matter. In Asiatic Engineering Co. -v- Achhru Ram and
others reported in AIR 1951 Allahabad 746 (Full Bench), the Court
observed that no relief can be granted in a writ petition under Article
226 which is based on misstatement or suppression of material facts.
As authored by Ruma Pal, J. in S.J.S. Business Enterprises (P) Ltd.
-v- State of Bihar and others reported in (2004) 7 SCC 166,
suppression of a material fact by a litigant disqualifies such litigant
from obtaining any relief. The relevant portion has been extracted
below:
"13. As a general rule, suppression of a material fact by a
litigant disqualifies such litigant from obtaining any relief.
This rule has been evolved out of the need of the courts to
deter a litigant from abusing the process of court by
deceiving it. But the suppressed fact must be a material one
in the sense that had it not been suppressed it would have
had an effect on the merits of the case. It must be a matter
which was material from the consideration of the court,
whatever view the court may have taken........"
10. In my view, this submission by the State is incorrect as there has been
no suppression of material facts whatsoever. Upon perusal of the
impugned order dated April 10, 2017, it is clear that this Court directed
the State to make payment of compensation for acquisition of land in
connection with the State's own assessment for land acquisition being
L.A. Case No. LA-4/116 of 2012-13. It is to be noted that in the
impugned order Justice R.K. Bag had observed that the
Respondent/Writ Petitioner did submit several applications before the
appropriate authorities for release of compensation and the same had
been placed on record. The No Objection Certificate given by the
affected land owners was also placed on record.
11. Furthermore, the Executive Engineer, Basirhat Irrigation Division
himself submitted a letter dated February 21, 2013 to the Additional
District Magistrate and District Land and Land Reforms Office,
requesting for the relevant estimate of the land in question as
sanctioned by the appropriate authority in connection with the said
L.A. Case for placement of fund as per provisions of the Land
Acquisition Act, 1894. The Respondent/Writ Petitioner has also stated
in their Affidavit in Opposition to CAN Application No. 11258/2017,
that the Executive Engineer, Basirhat Irrigation Division informed
Superintending Engineer, Eastern Circle, Irrigation and Waterways
Directorate vide a letter dated March 19, 2015 and re-submitted the
land acquisition and payment of LA compensation relating to the
compensation. In addition to this, the Respondent/Writ Petitioner
received a letter from the Sub-Divisional Officer, Haroa, Irrigation Sub-
Division, Basirhat, on December 12, 2015 which informed the
Respondent/Writ Petitioner about the completion certificate stating the
acquisition of three plots. Therefore, there exist no reasons to accept
the contention that there was suppression of material facts by the
Respondent/Writ Petitioner in the writ petition.
12. As far as the contentions by the Applicants/Respondents that the
impugned order was passed without calling for the records of the
alleged Land Acquisition case or any affidavits, it can be clearly seen
from the impugned order passed by Justice R.K. Bag wherein he
observed that the Applicants/Respondents had received the notice of
this case in the month of October, 2016 itself. He was not inclined to
give any more opportunity to the Applicants/Respondents for seeking
instructions to make effective submission in connection with this case.
This Court is also of the same opinion as there exists no grounds to
interfere with his findings.
13. The law on review is very clear wherein a party that files a review is
required to show that there is discovery of new and important matter or
evidence that was inspite of exercise of due diligence not within the
knowledge or could not be produced due to cogent reasons by the party
seeking a review. In this particular case, it is evident that there was
failure on the part of Applicants herein to produce relevant documents
at the time of hearing of the matter. Secondly, this review petition does
not concern an error which is self-evident and the review sought clearly
entails re-examination of new facts and further process of reasoning
which is not within the scope of a review petition. Lastly, one may recall
the exquisite words of Justice Krishna Iyer in P.N. Eswara Iyer -v- The
Registrar, Supreme Court of India reported in 1980 (2) SCR 889
wherein he laments and states :
".......... unchecked review has never been the rule. It must be
supported by proper grounds. Otherwise, every disappointed litigant
may avenge his defeat by a routine review adventure and thus
obstruct the disposal of the 'virgin' dockets waiting in the long queue
for preliminary screening or careful final hearing........."
Justice Iyer went on to further state as follows:
"Even otherwise, frivolous motions for review would ignite the
'gambling' element in litigation with the finality of judgments even
by the highest court, being left in suspense. If, every vanquished
party has a fling at 'review' lucky dip and if, perchance, notice were
issued in some cases to the opponent the latter-and, of course, the
former, -would be put to great expense and anxiety. The very
solemnity of finality, so crucial to judicial justice, would be
frustrated if such a game were to become popular."
Ergo, it can be said that review cannot be an appeal in disguise and
that review jurisdiction has to be exercised by the Court in rare cases
so that finality of judgements can be maintained.
14. Accordingly, for the reasons discussed above, this review petition is
dismissed. There shall be no order as to costs.
15. Urgent Photostat certified copy of this order, if applied for, should be
made available to the parties upon compliance with the requisite
formalities.
(Shekhar B. Saraf, J.)
