Smt. Sita Rani vs Union Of India & Ors.
2009 Latest Caselaw 1396 Del

                               Reportable
*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+           RP No. 433/2004 and CM Nos. 14041/2004, 9445/2005
                    1000/2006 in WP (C) No. 2389/1986
                                  and
        CM Nos. 7588-7589/2006 & 2543/2008 in WP (C) No. 464/1987


%                                                  Reserved on: February 13, 2009
                                                    Pronounced on : April 15, 2009

1.     RP No. 433/2004 in WP (C) No. 2389/1986

Smt. Sita Rani                                             . . . Petitioner

                   through :                    Mr. S.K. Mehra with
                                                Ms.Mamta Mehra, Advocates

              VERSUS

Union of India & Ors.                                      . . . Respondents

                   through :                    Mr. Anoop Bagai with
                                                Mr.Davendra Nautiyal, Advocates
                                                for the MCD.
                                                Mr. Sanjay Poddar, Advocate
                                                for the respondent Nos. 2 & 3.


2.     CM Nos. 7588-89/06 & 2543/08 in WP (C) No. 464/1987

Prakash Chand                                              . . . Petitioner

                   through :                    Mr. Ajay Tandon with
                                                Mr. Krishan Kumar and
                                                Mr. Deepak Vogra, Advocates

              VERSUS

Union of India & Ors.                                      . . . Respondents

                   through :                    Mr. Sanjeev Sabharwal, Advocate
                                                for the MCD.
                                                Mr. Sanjay Poddar, Advocate
                                                for the respondent No. 4.

CORAM :-
    THE HON‟BLE MR. JUSTICE A.K. SIKRI
    THE HON‟BLE MR. JUSTICE SURESH KAIT

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
RP No. 433/2004 in WP (C) No. 2389/1986   nsk                                 Page 1 of 14
        3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. The writ petition, by means of WP (C) No. 2389/1996, had sought

quashing of Award No. 21/86-87 dated 12.9.1986 passed by the Land

Acquisition Collector (LAC) in respect of her land bearing khasra No.

520 of 487 measuring 0.4 biswas situate in village Ghondali, Krishna

Nagar, Delhi - 110051. She also made a prayer not to dispossess her

from the said land. It was, inter alia, averred in the writ petition that

in April 1982, threats were extended by the officials of the MCD to

forcibly dispossess the petitioner from the said plot of land without

service of any notice for giving opportunity of hearing. In order to

restrain the MCD from resorting to forcible action of dispossession,

she had instituted a suit in the civil court. MCD appeared and

though it denied the allegation of any attempt to forcibly dispossess

the petitioner, at the same time, admitted the ownership of the

petitioner over the plot in question. On this basis, vide its judgment

dated 26.5.1986, the civil court held that though the petitioner‟s

ownership over the land was not disputed, but since there was no

apparent threat from the MCD to forcibly dispossess the petitioner,

no action, by way of grant of injunction, was warranted. According

to the writ petition, the consideration which weighted with the civil

court at the time of passing the judgment dated 26.5.1986 is that, as

per the contention of MCD, a notification under Section 4 of the

Land Acquisition Act (hereinafter referred to as the „Act‟) in respect of

21-B and 17-B had already been issued on 30.11.1981 and the said

land was required for public purpose in order to widen the road to

have a link road between Krishna Nagar and Ram Nagar.

2. After the publication of notice under Section 4, the respondents

herein issued notice under Section 6 on 2.4.1982 in respect of land

measuring 21 bigha 17 biswas. However, the respondents were

required to give and service notice under Sections 9 & 10 of the Act

in order to enable the interested persons to file the objections. No

such notice was received by the writ petitioner. However, on

29.10.1986, officials of the MCD came at site in order to take

possession of the land. At that stage, it transpired that award had

been made on 12.9.1986 by the LAC. The perusal of the award

indicated that the petitioner‟s land measuring 0.4 biswas had also

been acquired along with the total area of 21 bigha 17 biswas. The

writ petitioner, in these circumstances, filed the writ petition

challenging the award on various grounds which need not be spelt

for the purpose of this order.

3. This writ petition came up for hearing on 11.11.1986 and stay of

dispossession was granted. This interim order was extended from

time to time. In the year 1993, CM No. 850/1993 was filed by one

Vaishno Das Khanna under Order XXII Rule 10 of the Code of Civil

Procedure, 1908 claiming that he had purchased the land from the

Ms. Sita and his name be substituted. This application was allowed

vide orders dated 17.5.1994 impleading Mr. Vaishno Das Khanna as

petitioner No.2. When this matter was taken up on 12.8.2002, a

Division Bench of this Court noted the arguments of the petitioners

that the scheme under which the area was sought to be acquired in

order to widen the road and to have a link road between Krishna

Nagar and Ram Nagar had been abandoned since the link road

between Krishna Nagar and Ram Nagar was not to be constructed.

It was, thus, submitted by the petitioners that due to the changed

circumstances, the land was not required for the purpose for which it

was sought to be acquired. The Division Bench noted that no reply

was filed on this precise point and, therefore, another opportunity

was granted to the respondent No.4 to place on record the reply

affidavit, failing which it was observed that the court would presume

that the land was not required for the said purpose. The respondent

No.4 filed affidavit dated 20.11.2002, pursuant to the aforesaid

orders, stating as under :-

"1. That the deponent is working as A.D.C. (Land & Estate) at M.C.D. Town Hall, Chandni Chowk, Delhi.

2. That the deponent states that he has been directed to file a short affidavit with regard to the land measuring khasra No. 520/487 Village Ghondali, Krishna Nagar, Shahdara, New Delhi.

3. That the deponent states that this land belongs to D.L.F.

Ltd. and the MCD has no right over the same."

4. When the matter came up on the following day, i.e. on 21.11.2002

for hearing, on the basis of the aforesaid fact the writ petition was

allowed quashing the impugned award pertaining to the land of the

petitioner. Since this is the order which is sought to be reviewed by

the MCD by filing the instant writ petition, we deem it proper to

reproduce the said short order in its entirety :-

"CWP 2389/86

Rule. With the consent of the parties the matter is taken up for hearing today.

Learned counsel appearing on behalf of respondent-4 seeks leave to file affidavit of Shri P.R. Sethi, A.D.C. (Land & Estate), MCD, Delhi. He is permitted to do so.

Affidavit states that the land bearing Khasra No. 520/487, Village Ghondali, Krishna Nagar, Shahdara, Delhi is not sought to be acquired by MCD.

Petitioner in this petition has sought quashing of proceedings to acquire land bearing Khasra No. 520/487 measuring 4 biswas and conseqruently Award dated 21/86-87 dated 12th September, 1986 passed by the Collector, Land Acquisition.

Plot in question was purchased by the petitioner‟s husband who raised a construction thereupon on an area measuring 170 sq.yd. thereby leaving an area admeasuring 122.1/10 per sq.yd with him. During his lifetime, constructed portion was sold by him to Shri Tara Chand Jain. Thus the vacant land continued to remain with the husband of the petitioner No.1 who expired on 24th September, 1978. Learned counsel for the petitioner states that upon the death of the husband of the petitioner No.1 the land was transferred in favour of petitioner No.2/Shri Vaishno Das Khanna. Land in question was sought to be acquired for the benefit of MCD for construction of link road for which Notification under Section 4 of the Land Acquisition Act was issued on 30th November, 1981 which was followed by declaration under Section 6 on 2nd April, 1982 and with the passing of the Award in question. One of the grounds seeking quashment of the acquisition proceeding was that some other link road had been constructed and it was not necessary to construct the road on the land in question. Reference was made by the petitioner to Resolution dated 19th May, 1981 adopted by the Standing Committee of the MCD and also revised layout plan. The petition had been pending for quite some time and learned counsel for the MCD was asked to seek appropriate instructions. Today affidavit has been filed and in view of what has been stated by the respondent-4 the land is not required now for the purpose for which it was earlier required. We proceed to allow the Petition and quash acquisition proceedings in the impugned Award in so far as it pertains to the petitioner‟s land measuring 122-1/10 per sq.yd., being part of Khasra No. 520/487 situated in Village Ghondali, Krishna Nagar, Shahdara, Delhi.

Accordingly, the Petition and Cms. stand disposed of.

(emphasis supplied)"

5. As mentioned above, the MCD has filed the review petition seeking

review of the aforesaid order on the ground that the order was

passed on the premise that in the affidavit filed by the MCD it was

stated that land was not required by it for the purpose for which it

was acquired, though no such averment was made in the affidavit.

This submission of the MCD is perfectly justified. We have already

reproduced the entire text of the affidavit filed. It only states that

the land belongs to DLF and the MCD has no right over the same.

Nowhere it is mentioned in the said affidavit that the land was not

required for the purpose for which it was acquired, i.e. for

construction of link road between Krishna Nagar and Ram Nagar.

There is an obvious error in recording that the affidavit stated so

even when there is no such averment in the affidavit to this effect.

6. In the review application, the MCD has stated in detail the need for

this land and has also explained that the earlier affidavit was filed

under bona fide belief that the land belonged to DLF society and

MCD had no right over the same, because, by that date, possession

of the land had not been taken over by the land acquisitioning

authorities and handed over to the MCD.

Be that as it may, these are the aspects which can be gone into

by hearing the writ petition afresh on merits. We are of the view

that the order needs to be recalled in view of the aforesaid error

crept therein.

7. However, at this stage, it would be necessary to deal with CM No.

14041/2004, which is an application for condonation of delay in

filing the review application as the MCD has to cross that hurdle

before the review application is allowed.

8. There is a delay of about two years in filing the review application.

The review is sought of orders dated 21.11.2002, for which review

application was filed on 17.11.2004. In fact, this delay of two years

has been perceived by the counsel for the writ petitioner as abnormal

and Mr. S.K. Mehra, Advocate with all his vehemence, opposed this

application. His submission was that there was no sufficient cause to

condone this delay. In fact, when this review petition came up for

hearing on 7.1.2005, finding that the necessary averments seeking

condonation of delay were not made in the application, this Court

had granted time to the MCD to file additional affidavit. Thereafter,

additional affidavit was filed on 6.5.2005. The explanation offered

by the review petitioner/MCD is that after the MCD acquired

knowledge of the said order dated 21.11.2002, the concerned officer

under bona fide mistake assigned the file pertaining to this writ

petition to the record room. The officer thought that there was no

immediate likelihood of the matter being taken up by the MCD for

construction of pakka road between Krishna Nagar and Ram Nagar

and also because of heavy work load.

9. However, in the meantime, another writ petition was filed, titled as

Rakesh Kumar v. MCD (WP (C) No. 6189/2003) on 16.9.2003 with

a prayer to set aside the order dated 21.11.2002 passed in this writ

petition. It may be noted that this is the writ petition filed by the

residents of the said colony alleging that the writ petition was

wrongly allowed, in connivance with the officials of the MCD.

According to the MCD, when this writ petition came up before the

Court on 24.2.2004, and the Court asked the MCD to seek

clarification in WP (C) No. 2389/2006 (i.e. the present writ petition),

the MCD realized that the impugned orders were passed in the

present writ petition. A counter affidavit was prepared containing

the factual position to be filed in WP (C) No. 6189/2003. Before

that, on 17.2.2004, the site was inspected by the patwari and the

draftsman and a rough site plan showing the link roads was

prepared. The said site plan clearly showed that there are two link

roads in the colony adjoining Krishna Nagar and Ram Nagar along

with the Kachcha Rasta available in the disputed land. It was told by

the survey staff of the Land and Estate Department of MCD that an

authenticated site plan is required for technical physical report, which

was necessary for filing the review petition. In the month of August

2004, Town Planner was asked to provide an authenticated layout

plan. This plan was prepared only after a meeting was held in the

Chamber of Standing Committee Chairman on 15.9.2004.

Therefore, the concerned officer, vide his note dated 14.10.204, sent

the file to higher authorities and to contact the panel lawyer.

Opinion of the panel lawyer was obtained and ultimately decision

was taken to file the review application. On 27.10.2004, the review

petition was prepared and filed on 17.11.2004.

10. The writ petitioners are not prejudiced because possession is still with

them. Moreover, the petitioners can be compensated in terms of

costs.

11. We are, thus, of the opinion that the delay should be condoned in

the present case. As a result, delay in filing the review petition is

condoned. This would, however, be subject to payment of costs of

Rs.10,000/- to be paid by the MCD to the writ petitioners.

12. With this we revert back to the review petition. We have already

indicated above that it is the case of error apparent on the face of

record inasmuch as order in question was passed solely on the basis

of affidavit filed by the respondent No.4, namely, as per the

respondent No.4, land is not required for the purpose for which it

was earlier required. However, fact is that there is no such averment

made by the respondent No.4 in the said affidavit.

13. Mr. Mehra, however, made a fervent plea that the review

application should not be allowed as the scope of review was limited

and the present case did not come within any of the parameters of

review. In support of this submission, following cases were relied

upon by the learned counsel :-

14. Lily Thomas v. Union of India, AIR 2000 SC 1650.

In this case, the Supreme Court held that mistake apparent on

the face of record would not mean error which has to be fished out

and searched. Further, what is "any other sufficient reason" would

mean "a reason sufficient on grounds at least analogous to those

specified in the Rule". His submission was that there is no error

which can be discerned from the impugned order. Following

observations therefrom were specifically relied upon :-

"55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practiced. However, this Court in exercise of its powers under Art. 136 or Art. 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."

In the same judgment, the Court observed that "error

contemplated under Rules must be such which is apparent on the

face of the record and not an error which is to be fished out and

searched. It must be an error of inadvertence". The present case is a

clear case of an error of inadvertence as what is noted in the order is

not what the affidavit of MCD stated. It is, thus, not a case of

changing the view taken earlier on merits. It is not a case which can

be stated to be "an appeal in disguise whereby an erroneous decision

is reheard and corrected".

15. It is explained by the Supreme Court that „error apparent on face of

record‟ means an error which strikes one on merely looking on

record and would not require any longer drawn process of reasoning

on points where there may conceivably be two opinions. It must be

error so manifest and clear that no court would permit such an error

to remain on record. It is also trite that „error as contemplated by

this Rule" may be one of fact. When we apply these principles, it is

clear that there is an error on fact and it is manifest on the record,

which could not be allowed to remain and needs to be corrected.

Consequently, the review petition is also allowed and the order

dated 21.11.2002 is recalled.

CM No. 14041/2004 and RP No. 433/2004 are disposed of.

16. CM No. 9445/2005

This application is filed by Shri Rakesh Kumar, one of the

applicants in WP (C) No. 6189/2003. As pointed out above, the said

writ petition is filed for recalling orders dated 21.11.2002. Since we

have allowed the review petition and recalled that order, it is not

necessary to implead the applicant in this writ petition.

Application is accordingly disposed of.

17. CM No. 1000/2006

On 16.9.2005, in the review petition, statement of counsel for

the LAC was noted to the effect that compensation has already been

deposited by the MCD with the Reference Court. In the present

application, clarification of the said order is sought by the LAC. It is

mentioned that, in fact, the compensation is not deposited with the

Reference Court but is lying in the Revenue Deposit. This is because

of the reason that there is a dispute between the parties as to who is

entitled to receive the compensation. Order dated 16.9.2005 is,

accordingly, modified and it is noted that the compensation amount

is lying in the Revenue Deposit.

Application is disposed of in these terms.

18. WP (C) No. 2389/1986

List before the Regular Bench, as per Roster, on 13th May 2009.

19. CM Nos. 7588-89/06 & CM No. 2543/08 in WP (C) No. 464/1987

This writ petition was listed along with WP (C) No. 2389/1986

as it was stated that there is similarity in the subject matter of the two

writ petitions. In WP (C) No. 2389/1986, MCD had moved an

application for recall of orders dated 21.11.2002, which has been

allowed. That writ petition is to be heard afresh and the matter is

directed to be listed before the Regular Bench on 13th May 2009.

However, in the present case, we find that on 18.4.2006 the writ

petition was dismissed in default and application for restoration of

the writ petition (CM No. 7588/2006) filed by the petitioner is still

pending. It is stated in the application that the counsel for the

petitioner was waiting for his matter outside the court room and due

to malfunctioning of the display board, he could not reach the court

room in time. Other application, i.e. CM No. 7589/2006 is for

condonation of delay as there is a delay of few days, inasmuch as the

writ petition was dismissed in default on 18.4.2006 and the

application was moved on 25.5.2006.

20. We find that the petitioner had been pursuing his case rigorously and

had been arguing the matter on the previous dates of hearing. In

fact, order sheet reveals that the matter was entertained on merits

even otherwise during the pendency of these applications without

restoring the writ petition in the first instance.

21. For the reasons stated in these applications, we allow the prayers

made therein. Accordingly, delay in filing the application for

restoration is condoned and order dated 18.4.2006 is also recalled

and the writ petition restored to its original number.

These applications are disposed of accordingly.

22. WP (C) No. 464/1987

List before the Regular Bench on 13th May 2009.

23. CM No. 2543/2008

Since the matter is to be heard afresh, order dated 20.2.2008

directing personal presence of the Commissioner of MCD is recalled

and he is exempted from personal appearance for the time being.

This application is also disposed of.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE April 15, 2009 nsk

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CM Nos. 7588-7589/2006 & 2543/2008 in WP (C) No. 464/1987

% Reserved on: February 13, 2009 Pronounced on : April 15, 2009

Prakash Chand . . . Petitioner

through : Mr. Ajay Tandon with Mr. Krishan Kumar and Mr. Deepak Vogra, Advocates

VERSUS

Union of India & Ors. . . . Respondents

through : Mr. Sanjeev Sabharwal, Advocate for the MCD.

Mr. Sanjay Poddar, Advocate for the respondent No. 4.

CORAM :-

THE HON‟BLE MR. JUSTICE A.K. SIKRI THE HON‟BLE MR. JUSTICE SURESH KAIT

1. Whether Reporters of Local newspapers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

For orders, see RP No. 433/2004 in WP (C) No. 2389/1986.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE April 15, 2009 nsk