Mr. H.K. Kapoor, S/O Sh. Thakur ... vs Union Of India (Uoi), Through ...
2005 Latest Caselaw 1070 Del

JUDGMENT

Swatanter Kumar, J.

CM No. 5964/2005 (condensation of delay)

1. This is an application under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure, filed by the petitioner praying for condensation of delay in filing the review application (Review Application No. 134/2005) wherein the petitioner has prayed for reviewing the order of the Division Bench dated 14th December, 2004 passed in Civil Writ Petition No. 1470/1986 vide which the writ petition of the petitioner was dismissed.

2. The order of the Division Bench was passed on 14th December, 2004. The applicant submitted his application for obtaining certified copy of the order on 6th January, 2005 which was ready on 17th January, 2005, but delivery thereof was given on 18th January, 2005, while the present review application was filed in the Registry of this court for the first time on 16th April, 2005. In the application for condensation of delay, no reasons have been given as to why the application was not filed immediately thereafter. The only excuse put forward by the applicant is that he was proposing to file a Special Leave Petition when he was advised to file a review, because in some other cases wherein Section 5A objections (under the Land Acquisition Act) had been filed, the matter had been referred to a Third Judge of this court. This is hardly any ground for condoning the delay. Even if we give the benefit to the applicant of not explaining each day's delay, still there should be some plausible and reasonable cause for condoning the delay. No details have been furnished in the application to indicate what the Petitioner/Applicant was doing during the interregnum period and in any case after 18th January, 2005, when he had admittedly received the certified copy of the order dated 14th December, 2004.

3. In our view, the applicant has failed to show any cause, much less a reasonable cause, on the basis of which the application of the applicant under Section 5 could be allowed. Consequently, we would dismiss this application.

RP No. 134/2005 in WP(C) No. 1470/1986

1. In face of our above order, the application for review hardly survives for consideration. Still we would proceed to discuss the merit or otherwise of this application.

2. The only ground taken in the application is in paragraphs 4 and 5 of the said application which reads as under:-

4. That the above petition came up for final disposal on 14.12.2004 Along with other writ petitions before this Hon'ble Court when the same was dismissed by the Hon'ble Court with the other listed Writ Petitions. It is pertinent to mention here that the petitioner realized a mistake of fact occurred in para 6 wherein it was erroneously state that though some land owners within the revenue estate of Village, wherein the land of the Petitioner is situated, filed objections under Section 5A of the Act, the Petitioner did not choose to file the said objections."

It would in the interest of justice to point out here that the Petitioner himself filed his 5-A Objection with regard to the land in question and inadvertently at the time of filing of the above said Writ Petition this fact could not be highlighted which culminated into dismissal of Writ Petition.

5. It is respectfully submitted here that the Petitioner has filed the objection under section 5A of the Land Acquisition Act, whose name is figured out at Serial Nos. 84 of the list of objectors."

3. On this premise, it is argued that the petitioner having filed objections under Section 5A of the Act, which fact was not stated in the writ petition and after its dismissal, the petitioner having come to know of the facts as afore-referred, wants to withdraw his statement in the writ petition and prays for re-hearing of the matter on that ground. The writ petition filed by the petitioner came up for hearing before the Bench and was heard on 14th October, 2004, while it was filed in the year 1986. For all these long years, the petitioner took no steps to amend the writ petition. It is unbelievable that an owner/purchaser of the land who had filed objections under Section 5A of the Land Acquisition Act, raising serious objections to acquisition of his land, would not even whisper this fact in the body of the writ petition. On the contrary, the petitioner had specifically stated in the writ petition and has even admitted in the writ petition that the land owners in the Revenue Estate of the Village, where the land of the Petitioner was situated, also received notices in the first week of January'84 purporting to be under Section 5A of the Act and directing them to appear before the Collector for a personal hearing on the objections.

4. Having made these specific averments in the writ petition, the petitioner cannot be permitted to withdraw the said admissions, that too to the prejudice of the other side. Normally, withdrawal of an admission is not permissible in law. At best, it could be explained unless there were such compelling circumstances which would persuade the court to permit the party to withdraw an admission. For such a permission, it is necessary for a party to place on record, proper and reasonable explanation for making such an admission. It will be contrary to the conduct of a party with common prudence, to not disclose in the writ petition that it had filed objections under Section 5A, as it is likely to be divested of its property with due process of law. The petitioner who claims to be owner of the land is certainly not an illiterate farmer or villager who can take shelter of lack of knowledge and legal procedure. The mere fact that in other cases record of the Land Acquisition Collector is alleged to have been filed, where name of the petitioner is shown in the list, would be no ground for review of the judgment because the said records were available to the petitioner, besides his own personal knowledge. The conduct of the petitioner in approaching the court after a delay of nearly 19 years, by itself would be a sufficient ground for rejecting this application for review. Case of the petitioner was heard in presence of the counsel for the petitioner and the writ petition was dismissed in the light of the judgment of the Supreme Court in the case of Abhey Ram v Union of India and Delhi Administration v Gurdeep Singh Uban & Ors, . Learned Counsel for the petitioner relied upon a Division Bench judgment of this court in WPC No. 1115/1987 decided on 27th April, 2005 wherein in some other matters, application under Order VI Rule 17 CPC was allowed and the petitioner was given opportunity to amend the writ petition incorporating the plea of filing objections under Section 5A and the acquisition proceedings being bad on that account. That case has no application to the present case. The application was filed in that case during the hearing of the writ petition itself, while in the present case writ petition has already been dismissed. In the present case, there was a specific averment on behalf of the petitioner that he did not file objections under Section 5A while in that case no such averment was made in the writ petition, but in the counter affidavit filed and the list placed on record, it was admitted that the petitioner had filed objections. In these circumstances, we cannot draw any parity, even on facts, with that case.

5. The attempt on the part of the petitioner is only to have the rehearing of the matter on this pretext. This attempt on the part of the petitioner again is not permissible in law. It is a settled principle of law that a party cannot be permitted to re-agitate its issues by filing a review petition and particularly contrary to the facts pleaded in the writ petition. Reference in this regard can be made to the judgment of this court in the case of Smt. Sarla Devi Jain v. Union of India and Ors. in RA No. 242/2004 in WPC No. 672/2004 decided on 7th July, 2005, where the court held as under:-

"...The argument that the grounds taken up in the writ petition have not been correctly decided by the Court is no ground for seeking review of the judgment.

4. Reference in this regard can be made to a recent judgment of this Court in the case of Anil Kumar Jain and Another v. Union of India, in CM No. 4274 in WP(C) No. 1246/1990 decided on 5th May, 2005 where the Court held as under:-

"The scope of the review jurisdiction of the Court is a very limited one. The applicant cannot pray for review of a judgment merely because some of the judgments have not been noticed by the Court particularly when the judgments were not even referred to before the Court at that stage and in any case the applicant will be in no position to say so. Furthermore, the jurisdiction of review does not extend for substituting a view taken by the Court on merits or otherwise of the contentions raised before the Court on the facts and circumstances of a case. The applicant is essentially praying before the Court that the view taken by the Court on different facets of the case - legal and factual - should be substituted primarily because another view was possible. The power to review normally is the creation of a statute. However, in exercise of powers by the High Court under Article 226 of the Constitution of India, the Court can take recourse to the power of review by necessary implication. Such power of review has a limited scope and is normally used for the correction of a mistake but not to substitute a view in law. Such mistake or error contemplated under this rule must be such which is apparent on the face of the record and not a correction of an error which requires long drawn process of reasoning. The limitation on the powers of the Court under Order 47 Rule 1 are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India. With caution the Court has to ensure that such power is not exercised like entertaining an 'Appeal in disguise'. Where conceivably there may be two opinions and an error has to be established by a long drawn process it is not an error apparent on the face of the record. Reference in this regard can be made to the judgment in the case of R.S. Rajanna v.. Sri Basavaiah and Ors., and in the case of Prem Dutt v. Punjab State, 1998. 1 PLR 444.

8. In the case of Parsion Devi and Ors. v. Sumitri Devi and Ors., the Supreme Court has held as under :-

'It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise".

9. An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record.

10. This principle was reiterated by the Supreme Court in the case of Lily Thomas, etc. etc. v. Union of India and Ors., JT 2000 5 SCC 617 further with a clear caution that in exercise of power of review the Court may correct the mistake but not to substitute the view. The mere possibility of two views on the subject, is not a ground for review."

5. Besides that this application is beyond the purview of provisions of Order 47 Rule 1 of the CPC, it must be noticed that the present application is also barred by time."

6. In view of the above discussion, we find no merit in the applications filed by the applicant which are hereby dismissed with costs which are assessed at Rs. 5000/-. Costs shall be paid to the other party.