Mahatma Gandhi Road vs Sri Dipendra Adhikari And 10 Ors
2021 Latest Caselaw 2636 Gua

                                                            Page No.# 1/12

GAHC010088382019




                     THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                          Case No: Review.Pet./106/2019

         THE DEPUTY COMMISSIONER
         KAMRUP (METRO) DISTRICT

         MAHATMA GANDHI ROAD
         PANBAZAR
         GUWAHATI-1.


          VERSUS

         SRI DIPENDRA ADHIKARI AND 10 ORS.
         S/O- LATE UPENDRA ADHIKARI AND LATE CHINMOYEE ADHIKARI AND
         GRAND-SON OF LATE RADHIKA NANDA CHOUDHURY AND LATE SAROJ
         KUMARI CHOUDHURY
         R/O- H/NO. 129
         ADHIKARI HOUSE
         CHINMOYEE ADHIKARI PATH
         BYE LANE NO. 4
         GOPINATH NAGAR
         GUWAHATI- 781016
         DIST.- KAMRUP(M)
         ASSAM.

         2:SRI RAJIB CHERIAN
         SON AND GRAND DAUGHTER OF LATE DR. PREM JOHN CHERIAN AND
         LATE DR. RAMALA ADHIKARI (CHERIAN) AND GRANDSONS AND
         DAUGHTER OF LATE UPENDRA ADHIKARI AND LATE CHINMOYEE
         ADHIKARI AND GREAT GRAND-SONS AND GRAND DAUGHTER OF LATE
         RADHIKA NANDA CHOUDHURY AND LATE SAROJ KUMARI CHOUDHURY.
          3:SRI SANDEEP CHERIAN
         SON AND GRAND DAUGHTER OF LATE DR. PREM JOHN CHERIAN AND
         LATE DR. RAMALA ADHIKARI (CHERIAN) AND GRANDSONS AND
         DAUGHTER OF LATE UPENDRA ADHIKARI AND LATE CHINMOYEE
                                                  Page No.# 2/12

ADHIKARI AND GREAT GRAND-SONS AND GRAND DAUGHTER OF LATE
RADHIKA NANDA CHOUDHURY AND LATE SAROJ KUMARI CHOUDHURY.
4:SMTI. GAYATRI CHERIAN
SON AND GRAND DAUGHTER OF LATE DR. PREM JOHN CHERIAN AND
LATE DR. RAMALA ADHIKARI (CHERIAN) AND GRANDSONS AND
DAUGHTER OF LATE UPENDRA ADHIKARI AND LATE CHINMOYEE
ADHIKARI AND GREAT GRAND-SONS AND GRAND DAUGHTER OF LATE
RADHIKA NANDA CHOUDHURY AND LATE SAROJ KUMARI CHOUDHURY.
5:ON THE DEATH OF MANIKA ADHIKARI HER LEGAL HEIRS ARE
KAMRUP (M)
5.1:BANASHREE BOSE BANERJEE
D/O LATE MANIKA ADHIKARI
W/O SRI CHAMPAK BANERJEE
R/O HOUSE NO. 43
KASTURBA ASHRAM ROAD
NEAR ISKON MANDIR
SOUTH SARANIA
ULUBARI
GUWAHATI 7
DIST. KAMRUP (M)
ASSAM.
5.2:SMT. JAYASHREE BOSE DAS

D/O LATE MANIKA ADHIKARI
W/O SRI CHAMPAK BANERJEE
R/O HOUSE NO. 43
KASTURBA ASHRAM ROAD
NEAR ISKON MANDIR
SOUTH SARANIA
ULUBARI
GUWAHATI 7
DIST. KAMRUP (M)
ASSAM.
6:SMTI. NAMITA ADHIKARI
W/O- LATE JOTIRMOY KAKATI AND DAUGHTER OF LATE UPENDRA
ADHIKARI AND LATE CHINMOYEE ADHIKARI AND GRAND DAUGHTER OF
LATE RADHIKA NANDA CHOUDHURY AND LATE SARIJ KUMARI
CHOUDHURY.
7:SMTI. ANIMA ADHIKARI
W/O- SRI PALLAB BOSE AND DAUGHTER OF LATE UPENDRA ADHIKARI
AND LATE CHINMOYEE ADHIKARI AND GRAND DAUGHTER OF LATE
RADHIKA NANDA CHOUDHURY AND LATE SAROJ KUMARI CHOUDHURY
RESPONDENTS NOS. 2 TO 7 AT PRESENT RESIDENTS OF NEAR ISKON
MANDIR
ULUBARI
GUWAHATI-7 BEING REP. BY OPPOSITE PARTY NO. 1 SRI DIPENDRA
ADHIKARI BEING POWER OF ATTORNEY HOLDER.
8:THE STATE OF ASSAM
                                                          Page No.# 3/12

REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
REVENUE AND DISASTER MANAGEMENT DEPARTMENT
DISPUR
GUWAHATI-6.
9:THE SECRETARY TO THE GOVT .OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-6.
10:THE SECRETARY TO THE GOVT. OF ASSAM
RAJBHAWAN
MAHATMA GANDHI ROAD
UZANBAZAR
GUWAHATI-1.
11:THE ESTATE OFFICER

THE GOVERNOR SECRETARIAT
RAJBHAWAN
MAHATMA GANDHI ROAD
UZANBAZAR
GUWAHATI-1.
------------
Advocate for : MR. D SAIKIA
Advocate for : GA
ASSAM appearing for SRI DIPENDRA ADHIKARI AND 10 ORS.


            Linked Case No. : Cont.Cas(C)/236/2019

DIPENDRA ADHIKARI AND 7 ORS.
S/O. LT. SMT. CHINMOYEE ADHIKARI WIFE OF LT. UPENDRA ADHIKARI,
R/O. HOUSE NO. 129, ADHIKARI HOUSE, CHINMOYEE ADHIKARI PATH,
BYE LANE NO. 4, GOPINATH NAGAR, GUWAHATI- 781016, DIST. KAMRUP
(M), ASSAM.

2: RAJIB CHERIAN
 S/O LT. DR. RAMALA ADHIKARI (CHERIAN) W/O.- LT. DR. PREM JOHN
CHERIAN AND GRANDSON OF LT. CHINMOYEE ADHIKARI WIFE OF LT.
SRI UPENDRA ADHIKARI. AT PRESENT RESIDENTS OF NEAR ISKON
MANDIR
 ULUBARI
 GUWAHATI- 781007. REP. BY PETITIONER NO. 1 SRI DIPENDRA ADHIKARI
 BEING POWER OF ATTORNEY HOLDER.

3: SANDEEP CHERIAN
 S/O LT. DR. RAMALA ADHIKARI (CHERIAN) W/O.- LT. DR. PREM JOHN
CHERIAN AND GRANDSON OF LT. CHINMOYEE ADHIKARI WIFE OF LT.
SRI UPENDRA ADHIKARI. AT PRESENT RESIDENTS OF NEAR ISKON
                                                          Page No.# 4/12

MANDIR
ULUBARI
GUWAHATI- 781007. REP. BY PETITIONER NO. 1 SRI DIPENDRA ADHIKARI
BEING POWER OF ATTORNEY HOLDER.

4: GAYATRI CHERIAN
 D/O LT. DR. RAMALA ADHIKARI (CHERIAN) W/O.- LT. DR. PREM JOHN
CHERIAN AND GRAND-DAUGHTER OF LT. CHINMOYEE ADHIKARI WIFE
OF LT. SRI UPENDRA ADHIKARI. AT PRESENT RESIDENTS OF NEAR ISKON
MANDIR
 ULUBARI
 GUWAHATI- 781007. REP. BY PETITIONER NO. 1 SRI DIPENDRA ADHIKARI
 BEING POWER OF ATTORNEY HOLDER.

5: BANASHREE BOSE BANARJEE
 D/O- LT. MANIKA ADHIKARI
AT PRESENT RESIDENTS OF NEAR ISKON MANDIR
 ULUBARI
 GUWAHATI- 781007. REP. BY PETITIONER NO. 1 SRI DIPENDRA ADHIKARI
 BEING POWER OF ATTORNEY HOLDER.

6: JAYASHREE BOSE DAS
 D/O. LT. MANIKA ADHIKARI. ASSAM. AT PRESENT RESIDENTS OF NEAR
ISKON MANDIR
 ULUBARI
 GUWAHATI- 781007. REP. BY PETITIONER NO. 1 SRI DIPENDRA ADHIKARI
 BEING POWER OF ATTORNEY HOLDER.

7: NAMITA ADHIKARI
W/O. LT. JOTIRMOY KAKATI
 D/O. LT. CHINMOYEE ADHIKARI
W/O LATE UPENDRA ADHIKARI
AT PRESENT RESIDENTS OF NEAR ISKON MANDIR
 ULUBARI
 GUWAHATI- 781007. REP. BY PETITIONER NO. 1 SRI DIPENDRA ADHIKARI
 BEING POWER OF ATTORNEY HOLDER.

8: ANIMA ADHIKARI
W/O MR. PALLAB BOSE
 D/O. LT. CHINMOYEE ADHIKARI
WIFE OF LT. UPENDRA ADHIKARI
AT PRESENT RESIDENTS OF NEAR ISKON MANDIR
 ULUBARI
 GUWAHATI- 781007. REP. BY PETITIONER NO. 1 SRI DIPENDRA ADHIKARI
 BEING POWER OF ATTORNEY HOLDER

VERSUS
                                                                                   Page No.# 5/12

            BISWAJIT PEGU AND ANR.
            DY. COMMISSIONER, KAMRUP(M), GHY.- 781001.

            2:RATUL PATHAK
            ADDL. DY. COMMISSIONER
             LAND ACQUISITION BRANCH
             KAMRUP(M)
             GHY.- 781001

Advocate for the Petitioner   : MS. A BHATTACHARYYA

Advocate for the Respondent : MR. R BORPUJARI

                                          BEFORE
         THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
                           ORDER

01.11.2021 Heard Mr. R. Borpujari, the learned counsel for the review petitioners, the State of Assam through its officials. Also heard Mr. S. Banik, the learned counsel for the respondent Nos. 1 to 7.

This review application is filed against the order dated 11.07.2018 passed in WP(C)/3131/2016 for the following amongst other grounds:-

"(ii) For that, despite exercise of due diligence, the aforesaid actual facts and evidences which came to be known upon exhaustive enquiry conducted after disposal of the instant writ petition being W.P.(C) No. 3131 of 2016, were not within the knowledge of the Review Petitioner and could not be produced at the time when the impugned order dated 11.07.2018 was passed by this Hon'ble Court. Therefore, this Hon'ble Court would be pleased to review the impugned order dated 11.07.2018.

(iii) For that, subsequent to disposal of the instant writ petition being W.P.(C) No. 3131 of 2016, an exhaustive enquiry has been conducted and it has been found that land measuring 22 Bighas of Dag No. 121 of Patta No. 45 years grant in village Sahar Kharghuli under Ulubari Mouza, which is in possession Page No.# 6/12

of Raj Bhawan was mutated in the name of Sri Prafulla Ch. Baruah vide chitha order of Assistant Settlement Officer, Guwahati on 25.07.1962, the record of which has been corrected on 10.02.1963. The total area of land covered by Dag No. 121 is 22 Bighas and the entire plot of land under Dag No. 121 is mutated in the name of Sri Prafulla Ch. Baruah, which is supported by certified copy of Sadar Jamabandi dated 03.01.2019, and as such, Late Saroj Kumari Choudhury can have no claim over the land covered by Dag No.

121. Therefore, this Hon'ble Court would be pleased to review the impugned order dated 11.07.2018.

(iv) For that, regarding Dag No. 122, the available record reveals that a plot of land measuring 3 Bighas - 4 Kathas - 15 Lessas owned by ITC was acquired and payment of compensation of Rs. 1,08,080.45 was paid to ITC Ltd. on 05.04.1979. Further, an area of 11 Bighas - 0 Katha - 11 Lessas from the said Dag was requisitioned for construction of Raj Bhawan, whch was also owned by ITC Ltd. A total area of 15 Bighas - 0 Katha - 6 Lessas of land covered by Dag No. 122 of Patta No. 45 years grant of village Sahar Kharghuli under Ulubari Mouza owned by ITC Ltd. was handed over to PWD for construction of Raj Bhawan and the said land is in possession of Raj Bhawan, and no additional land of Dag No. 122 have been occupied by Raj Bhawan, except the aforesaid land measuring 15 Bighas - 0 Katha - 6 Lessas owned by ITC Ltd. which was partly acquired and partly requisitioned, and as such, Late Saroj Kumari Choudhury has no rightful claim on the land covered by Dag No. 122, which is in possession of Raj Bhawan. Therefore, this Hon'ble Court would be pleased to review the impugned order dated 11.07.2018.

(v) For that, a plot of land measuring 2 Bighas - 2 Kathas - 9 Lessas covered by Dag No. 3663 was acquired vide L.A. Case No. 15/1985 which was jointly owned by 3 (three) pattdars, namely (i) Smti Saroj Kumari Choudhury, (ii) Sri Baidyanath Mukherjee, and (iii) Smti Nirmala Medhi, and compensation was Page No.# 7/12

fixed at Rs. 4,24,296.00 and out of the three pattadars, the share of Smti Nirmala Medhi has already been collected on 03.06.2002, and the balance compensation for the remaining two pattadars has been deposited under Head of Account "8443" Revenue Deposit. Thus, it is revealed that no land of Late Saroj Kumari Choudhury was acquired or requisitioned for construction of Raj Bhawan except for the land covered by Dag No. 3663. Therefore, this Hon'ble Court would be pleased to review the impugned order dated 11.07.2018.

(vi) For that, upon exhaustive enquiry as stated hereinabove it has become evidently clear that Late Saroj Kumari Choudhury was not the owner of land under Dag No. 121 since 25.07.1962 and no part of her land under Dag No. 122 was acquired or requisitioned for the purpose of construction of Raj Bhawan at Guwahati, except her share over the plot of land covered by Dag No. 3663 of 45 years grant of village Sahar kharghuli under Ulubari Mouza, Guwahati. Therefore, this Hon'ble Court would be pleased to review the impugned order dated 11.07.2018".

It is submitted by Mr. Borpujari that in terms of the order passed by this court impugned in this review petition, an exhaustive search was made with the records available in the office of the petitioner No. 4 and subsequently it was discovered that Saroj Kumari Choudhury, the predecessor-in-interest of the respondents was entitled for the compensation in respect of land covered by Dag No. 3663 only which was acquired in LA Case No. 15/1985. The said land was jointly held by three pattadar and as such Late Saroj Kumari Choudhury was entitled for her share out of the total compensation assessed in LA Case No. 15/1985. Mr. Borpujari relied the case laws in BCCI - Vs- Netaji Cricket Club & Ors reported in (2005) 4 SCC 741, Lily Thomas & Ors -Vs- Union of India & Ors reported in (2000) 6 SCC 224 and Dhanani Shoes Ltd. & ors -Vs- State of Assam & Ors reported in (2008) 3 GLT 361.

Page No.# 8/12

In BCCI - Vs- Netaji Cricket Club & Ors (supra) it was held that a mistake on the part of the court which would include a mistake in the nature of the undertaking of an advocate may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reasons therefore. What would constitute sufficient reasons would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. In Lily Thomas & Ors -Vs- Union of India & Ors (supra), it was held that review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules of procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. In Dhanani Shoes Ltd. & ors - Vs- State of Assam & Ors (Supra) this Hon'ble Court also relied the aforesaid decisions of the Apex Court and held that judgment passed on misunderstanding the nature of undertaking given by an Advocate also falls within the scope of review. This court also held that while exercising the power of review, subsequent events can be taken note of and that in exceptional cases, the court may have to rectify the error committed by it by invoking the doctrine of 'actus curiae neminem gravabit', i.e., an act of a court shall prejudice none. As per the said decisions the grounds urged have force for which Mr. Borpujari seeks for allowing the review petition.

On the other hand Mr. Banik vehemently objected the submission of Mr. Page No.# 9/12

Borpujari for invoking of the review jurisdiction of this court on the ground that the facts were narrated and supported by an affidavit sworn by the competent officials of the State in the writ petition on the basis of which the order was passed, which is the subject matter of this review petition. Now the petitioners cannot urge for exercising the jurisdiction of this court on facts which were not at all pleaded before this court during the pendency of the writ petition. It is the fair submission of the learned counsel that if at all there is any grievance for any subsequent events, the review jurisdiction is not appropriate inasmuch as the jurisdiction under review as stipulated under Order 47 Rule 1 of the CPC cannot replace the jurisdiction of an appellate court. In support of the said contention Mr. Banik relied the case of Nehali Panjiyara and Others -Vs- Shyama Devi and Others reported in (2002) 10 SCC 578 and submits that anything which was not canvassed before the court passing the said order, the same cannot be canvassed and forms a ground of review. Further it is his contention that in the true sense the plea of subsequent facts is totally unbelievable inasmuch as it is the interpretation of the documents what the officials did at the time of filing the affidavit-in-opposition and put on record. In view of the same, this review petition merits no consideration by the Court.

I have given due consideration to the submissions made by the learned counsel. In order to appreciate the submissions of both the learned counsel, it would be proper to extract the relevant portion of the order dated 11.07.2018 which read as:-

"4. The respondent State appeared and the Deputy Commissioner, Kamrup (M) filed an affidavit-in-opposition on 16.08.2017. In the said affidavit-in- opposition it is stated that as per available records in the said office of the Deputy Commissioner, Kamrup, Late Saroj Kumari Choudhury was the Page No.# 10/12

recorded pattadar of land measuring 19 B 2K covered by Dag No. 3663, 15 B 0K 6L covered by Dag No. 122 and 22 Bighas covered by Dag No. 121 of R. S. Grant Patta No. 1. The said total land measuring 56B 2K 6L was acquired for construction of the Raj Bhawan vide L.A. Case No. 37/1975. In addition to that, land measuring 2B 2K 9L covered by Dag No. 3663 of R.S. Grant Patta No. 1 was acquired for construction of Staff Quarters of Raj Bhawan at village Kharghuli. It is further stated in the affidavit-in-opposition that the said land measuring 60B 0K 15 Ls vide LA Case No. 37/1975 was notified in the Assam Gazette dated 08.11.1975 but as per minutes discussed on 26.03.1976 in the office chamber of the Chief Secretary to the Government of Assam, Dispur, the same had to be modified as some of the notified land were involved in the urban land ceiling cases. Accordingly, a fresh survey was conducted by the Settlement Officer, Guwahati and the site map was furnished by the Governor of Assam under his Memo No. U/O No. GSA.1/74 dated 02.06.1976. As per said report of the Settlement Officer, Guwahati, an area of land measuring 3B 4 K 15 Ls covered by Dag No. 122 (Kha) of village New Town Kharghuli, Mouza Ulubari was acquired vide declaration dated 07.08.1976 and was notified under Section 4(1) of the Land Acquisition Act, 1984. It is also stated in the said affidavit-in-opposition that the remaining area of land measuring 11 Bighas of the said village covered by Dag No. 122, land measuring 1 Bigha under Dag No. 3668, 1 Kath under Dag No. 3667 and 1K 5Ls under Dag No. 3667(Kha) totaling an area of 12 B 3 K 11 Ls of the said village was requisitioned on 23.061976 by the Deputy Commissioner, Kamrup (M) under the Assam Land (Requisition and Acquisition) Act, 1964 for construction barracks and staff quarters and approach road etc".

Now if considering the said contents from the affidavit-in-opposition of the Deputy Commissioner, Kamrup (M) as recorded hereinabove and the grounds referred hereinabove in this review petition more specifically the reason "that despite exercise of due diligence, the actual facts and evidences which came to Page No.# 11/12

be known upon exhaustive enquiry conducted after disposal of the writ petition", the same cannot be considered inasmuch as the facts which the petitioner wants to bring on record by filing this review petition were not at all placed before the disposal of this writ petition.

In BCCI - Vs- Netaji Cricket Club & Ors (supra) it was held that the word "sufficient reason" as stipulated under Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. In the present case in hand, it is on the basis of the affidavit of the petitioner that the order was passed and there was no misrepresentation on the part of the learned counsel conducting the case on behalf of the present petitioner. Moreover, the learned counsel for the petitioner failed to show that there was any mistake/ misconception of facts or law of this court drawn on the basis of the stand in the affidavit-in-opposition of the petitioners. In Lily Thomas & Ors -Vs- Union of India & Ors (supra) it was held that if the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the court from ratifying the error. The "erroneous assumption" stipulated in the said finding is the inference drawn on the basis of the facts on record by a court but not by the party who filed the affidavit-in-opposition which forms part of the record.

Similarly in the decision of this court in Dhanani Shoes Ltd. & ors -Vs- State of Assam & Ors (supra) it speaks of the errors made by the Court which are required to be corrected on the principle that an act of the court shall prejudice none. Upon consideration of the aforesaid decisions of the Apex Court Page No.# 12/12

and this court, I am of the considered view that the facts in all these decisions are not similar to the one pleaded by the petitioners in this review petition. It is repeated again that it is after the order was passed in the writ petition, a thorough search was made by the concerned officials that too after an exhaustive enquiry, the subsequent facts as pleaded in the review petition were discovered. This cannot form grounds of review as there was no appreciation of the said facts at the time of passing the order as they doesnot form the part of the records.

In view of the same, if this review petition is entertained, the writ petitioners respondents would be highly prejudiced inasmuch they would not get any scope to bring out their defence and to put the same on records.

In view of the same, I am not inclined to exercise the jurisdiction of review. Accordingly, this review petition stands dismissed. However, there are provisions under the Code of Civil Procedure (CPC) though it is not applicable in a writ jurisdiction, but its principle can be taken by a writ court and as such, if at all the petitioners are aggrieved they may prefer an appeal against the order which is the subject matter of this review petition subject to law of limitation.

This review petition is disposed of. No costs.

JUDGE

Comparing Assistant