Gujarat High Court
General Manager vs District Collector on 2 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 298 of 2010
With
R/APPEAL FROM ORDER NO. 299 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2010
In R/APPEAL FROM ORDER NO. 299 of 2010
With
R/APPEAL FROM ORDER NO. 300 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2010
In R/APPEAL FROM ORDER NO. 300 of 2010
With
R/APPEAL FROM ORDER NO. 301 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2010
In R/APPEAL FROM ORDER NO. 301 of 2010
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GENERAL MANAGER
Versus
DISTRICT COLLECTOR & ORS.
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Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1
MR JIGAR G GADHAVI(5613) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/04/2025
COMMON ORAL ORDER
1. All these appeals are arising out of the order of the
reference court reviewed its judgment and decree dated 19th
February 2000, whereby it has reviewed a paragraph 3 of the
operative portion of such judgment and decree. The operative
portion of such judgment and decree reviewed reads as under:
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"The claimant shall not be entitled to interest on the
award of additional amount payable under Section 23(1)(a)
of the Act and on the solatium under Section 23(2) of the
Act and they shall also not be entitled for solatium on the
additional amount under Section 23(1)(a) of the Act."
1.1 The details of each review application, date of respective
order vis-à-vis the details are as under:
Sr. Review Sec 4 Ref. Ct. date and
AO No. LAR No.
No. App. No Sec 6 amount
2764 of 07.8.96 26.10.99
1 298/2010 1 of 2005
1996 22.12.97 Rs.10/- per sq. mtr.
2765 of 07.8.96 26.10.99
2 299/2010 2 of 2005
1996 22.12.97 Rs.10/- per sq. mtr.
2768 of 07.8.96 26.10.99
3 300/2010 3 of 2005
1996 22.12.97 Rs.10/- per sq. mtr.
2571 of 06.1.87 26.10.99
4 301/2010 4 of 2005
1996 Rs.10/- per sq. mtr.
1.2 The reference court has expressly denied interest on the
amount of solatium under Section 25(2) of the Land
Acquisition Act, 1894 (hereinafter referred to as 'the Act'), and
also held that claimants are not entitled to solatium on the
additional amount. Later on, the Constitutional Bench of the
Honourable Apex Court in the case of Sundar vs. Union of
India reported in 2001 (7) SCC 211 : AIR 2001 SC 3516 held
that claimants are entitled to get interest on the whole
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amount, including solatium.
1.3 It appears that after noticing the aforesaid decision, original
claimants tempted to file a review application before the
reference court in the year 2005, and after hearing the parties,
the reference court has reviewed its aforesaid judgment and
decree, thereby deleting paragraph No. 3 of its operative
portion of the judgment, and further held that claimants are
entitled to receive interest under Sections 23(1A) and 23(2) of
the Act.
1.4 Feeling aggrieved and dissatisfied by the impugned order
passed in the impugned review application, a present appeals
from order have been filed by the original judgment debtor.
2. Heard learned counsel Mr. Ajay Mehta for the petitioner and
learned counsel Mr. Jigar Gadhavi for respondent No.3-original
claimants, contesting respondent as well as learned assistant
government pleader Mr. Aakash Chayya for respondent No.1 &
2 - State.
3. Submissions of appellant:
3.1 Learned counsel Mr. Ajay Mehta, appearing for the
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appellant, has vehemently submitted that the reference court
has committed serious error of law by allowing the impugned
review application, contrary to the provisions of law, and the
order passed by the court below is without jurisdiction.
3.2 Learned counsel Mr. Mehta would submit that there was no
error on the face of the record pointed out by the claimants
whereby, impugned application itself requires rejection.
3.3 Learned counsel Mr. Mehta would submit that only
relying upon the decision of Honourable Apex Court in the
case of Sundar (supra) could not be the ground to review the
judgment and decree.
3.4 Learned counsel Mr. Mehta would further submit that
subsequent judgment of Honourable Supreme Court in the case
of Gurupreet Singh vs. Union of India reported in (2005) 8
SCC 457 wherein its paragraph-44, has already clarified the
position of law and the applicability of the decision in the case
of Sundar (supra) on disposed cases, which is totally unnoticed
by the reference court.
3.5 Learned counsel Mehta would further submit that, as per
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the settled legal position of law, any subsequent judgment of
Honourable Apex Court clarifying any provision of law thereby
laid down law would not be a ground to review any
judgement/decree/order passed by the trial court much earlier
in point of time than such subsequent judgement of Apex
Court.
3.6 Learned counsel Mr. Mehta would further submit that
claimants have not preferred any appeal against the judgment
and decree passed by the reference court; then, under the
guise of review, the reference court cannot modify its
judgment and decree when there is no error apparent on face
of record while passing judgement/decree.
3.7 Making the above submissions, Learned counsel Mr. Mehta
requested this court to allow the appeal.
4. Submissions of respondent:
4.1 Per contra, learned counsel Mr. Jigar Gadhvi has opposed
the present appeal, whereby contended that there is no error,
much less any error on the face of record committed by the
reference court while allowing the impugned application
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thereby, this Court should not interfered with impugned order
while exercising its limited appellate power.
4.2 Learned counsel Mr. Gadhvi would further submit that the
subsequent ruling, which is settled principle of law, if
considered by reference court while allowing reviewing
application, whereby it has not committed any error of law
while modifying the judgment and decree.
4.3 Learned counsel Mr. Gadhvi would further submit that
question of granting interest on solatium is an important part
of the statute, but such position of law has been clarified by
Honourable Apex Court in the case of Sundar (supra); thereby,
reference court was well within its jurisdiction to grant it by
reviewing its judgement/decree.
4.6 Learned counsel Mr. Gadhvi lastly submitted that appellant
has selectively filed present appeals against the order of review
passed by the reference court having not challenged all similar
orders passed by reference court. It is submitted that in some
of the cases, appellant has accepted the order of review passed
by the reference court. So, according to Mr. Gadhvi, as per
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principle of estopple/waiver, present appeals require to be
dismissed.
4.5 To buttress his arguments, learned counsel Mr. Gadhvi
would rely upon following decisions:
(1) In the case of State of Maharashtra vs. Pandu Rama Udar
(Since deceased) through L.Rs. and others reported in 2017
SCC Online Bombay 766, the observations of the Bombay High
Court in paragraph 10 to 12 held as under :
" 10. As regards the first issue, the submission advanced
by learned A.G.P. is that, once the Award was passed
by the Trial Court on 11th September, 1984 in Land
Reference No.11 of 1984, the Trial Court has become
functus officio and it has no jurisdiction or power to
review the same, except for some clerical or minor
errors. According to learned A.G.P., the Trial Court has
no power either to review or amend its own Award
substantially by increasing the amount of interest, as
the Award was converted into Decree under Section
26(2) of the Land Acquisition Act. Here in the case, it
is submitted by A.G.P. that the Trial Court has
substantially modified its own Award by enhancing the
rate of interest and thus the Trial Court has exceeded
its jurisdiction in passing the impugned judgment and
award on the Review/Miscellaneous Civil Application of
the Respondents-Claimants.
11. However, in my considered opinion, this submission
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of learned A.G.P. cannot be accepted for the simple
reason that the Review Application was filed by the
Respondents-Claimants in view of the amendments in
the Land Acquisition Act. It is pertinent to note that,
though the Award was passed by the Trial Court on
11th September, 1984, immediately thereafter Amended
Act came into force on 29th April, 1984. In the
Amended Act, some additional benefits were given to
the Claimants and by way of introducing transitional
provisions, these additional benefits were extended even
to those Claimants to whom compensation amount was
not paid before 30th April, 1982. Therefore, in fact, it
was necessary for the Trial Court to take a note of
these amended provisions and act suo motu to give
benefit of those provisions to the Respondents-
Claimants. Respondents-Claimants have, by filing the
Review Application, brought those facts to the notice of
the Trial Court. By passing the impugned order, the
Trial Court has only corrected its Award to bring it in
tune with amended legal provisions. Hence, it cannot
be said that the Trial Court has acted beyond its
jurisdiction or exceeded its authority in passing the
impugned order.
12. As a matter of fact, as held by the Hon-- ble Apex
Court in the case of Shree Vijay Cotton & Oil Mills Ltd.
v. State of Gujarat (1991) 1 SCC 262 : (AIR 1991 SC
656), the interest can be claimed by the Claimants at
any stage of the proceedings under the Land Acquisition
Act. Award of interest being obligatory and
consequential to the application of Section 34 of the
Land Acquisition Act, such interest can be claimed even
in the Appeal filed by the State and it is not necessary
to file separate Appeal or cross-objection. According to
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the Hon-- ble Apex Court, substantive right, under the
Land Acquisition Act, to get the interest cannot be
affected by the procedural rules, as procedural rules
are, after all, hand-maiden of justice. The procedural
rules cannot come in the way of substantive right
subsisting under the Land Acquisition Act. "
(emphasis supplied)
(2) Honourable Apex Court in the case of Girdhari Lal Gupta
vs. D. N. Mehta and another reported in AIR 1971 SC 2162
wherein it is held as under,
" 16. The learned counsel for the respondent State urges
that this is not a case fit for review because it is only a
case of mistaken judgment. But we are unable to agree
with this submission because at the time of the
arguments our attention was not drawn specifically to
sub-section 23C(2) and the light it throws on the
interpretation of sub-section (1). "
(emphasis supplied)
(3) Honourable Apex Court in the case of Patel Joitaram
Kalidas vs. Spl. Land Acquisition Officer reported in 2007 (2)
SCC 341 wherein it is held as under,
" 18. Having regard to the submissions urged on behalf
of the respondents we could have remitted the matter
to the High Court to give an opportunity to the
claimants to make a claim of interest before the High
Court. That however, would only be a formality
because having regard to the law laid down in Sunder,
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the High Court is bound to award the interest on the
additional amount payable under Section 23(1A) and
solatium payable under Section 23 (2) of the Act.
Moreover, grant of interest on these amounts is
consequential and automatic and involves only
arithmetical calculation and not application of judicial
mind or exercise of judicial discretion. It is no doubt
true that the appellants ought to have made such a
claim before the High Court, even in the appeals
preferred by the State. But in fairness to the appellants
it must be conceded that during the pendency of the
appeals before the High Court the law as laid down in
Prem Nath Kapoor held the field and, therefore, it
would have been futile for them to claim interest. The
claimants could have filed such an application before
the High Court if the judgment in Sunder was
pronounced when the appeals were pending before the
High Court. Unfortunately, they could not do so
because the judgment in Sunder and the impugned
judgment in the appeals preferred by the State before
the High Court were pronounced on the same day.
Having regard to these facts, peculiar to 5 2007 66 All
LR 833(SC) this case, we are persuaded to allow the
appeals preferred by the appellants as a special case in
the interest of justice. Accordingly, we hold that the
appellants are entitled to interest on the amounts
payable to them under Section 23 (1A) and Section 23
(2) of the Land Acquisition Act. We direct the Collector
to calculate the interest payable and pay the same to
the appellants without further delay. These appeals are
accordingly allowed. No order as to costs. "
(emphasis supplied)
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5. Rejoinder submission of appellant
5.1 Learned counsel Mr. Mehta would submit that considering
the amount involved in the other cases wherein financial
burden was not much more than present cases, it was not
thought it fit to challenge those orders, but that could not be
a ground to dismiss the present appeal having merit.
No other and further submissions are made being made by any
of respective learned advocates.
6. Analysis:
6.1 The short question falls for my consideration is, Whether
Reference Court, after passing judgment and decree in the year
2000, could have entertained the review application filed by
the original claimants on the ground of subsequent judgment
passed by the Constitution Bench of the Supreme Court in the
case of Sundar (supra)?
6.2 As such, reply to the aforesaid question is empathetically
'No'. As the position of law is well settled that court cannot
review its judgment and order on the ground that there is
subsequent ruling of the higher court that came later in point
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of time clarifying/laying down some law.
6.3 After going through the impugned order, what was weighed
with the reference court was the subsequent judgment of
Supreme Court in the case of Sundar (supra), whereby it has
been held by the Honourable Apex Court that
landowners/farmers/claimants are entitled to get interest on
solatium.
6.4 No other and further observations were made by the
reference court while allowing review applications. Such a
recourse adopted by the reference court is out of scope and
ambit of Order 47 Rule 1 of CPC.
"ORDER XLVII REVIEW
Rule 1. Application for review of judgment.--
(1) Any person considering himself aggrieved-- (a) by a
decree or order from which an appeal is allowed, but
from which no appeal has been preferred, (b) by a decree
or order from which no appeal is allowed, or (c) by a
decision on a reference from a Court of Small Causes, and
who, from the discovery of new and important matter or
evidence which, after the exercise of due diligence was
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not within his knowledge or could not be produced by
him at the time when the decree was passed or order
made, or on account of some mistake or error apparent on
the face of the record or for any other sufficient reason,
desires to obtain a review of the decree passed or order
made against him, may apply for a review of judgment to
the Court which passed the decree or made the order.
2) A party who is not appealing from a decree or order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where
the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applied for
the review.
[Explanation.--The fact that the decision on a question of
law on which the judgment of the Court is based has
been reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a ground
for the review of such judgment.]"
The plain reading of explanation to rule 1 of Order 47 of CPC
would exclude the court to review its judgement on ground of
reversal of its decision on question of law by subsequent
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decision of a superior Court in any other case. When statute
itself in clear terms state that the court not to review its
judgement on said ground, if review application is entertained
by court on such ground would amounting to transgress its
jurisdiction which is not vested in it.
6.5 At this stage, it is apposite to refer to the observations
made by the Honourable Supreme Court in paragraph-44 of
Gurpreet Singh (supra) wherein held thus:
"44. One other question also was sought to be raised and
answered by this Bench though not referred to it.
Considering that the question arises in various cases
pending in Courts all over the country, we permitted
counsel to address us on that question. That question is
whether in the light of the decision in Sunder (supra), the
awardee/decree holder would be entitled to claim interest
on solatium in execution though it is not specifically
granted by the decree. It is well settled that an execution
court cannot go behind the decree. If, therefore, the claim
for interest on solatium had been made and the same has
been negatived either expressly or by necessary
implication by the judgment or decree of the reference
court or of the appellate court, the execution court will
have necessarily to reject the claim for interest on
solatium based on Sunder (supra) on the ground that the
execution court cannot go behind the decree. But if the
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award of the reference court or that of the appellate court
does not specifically refer to the question of interest on
solatium or in cases where claim had not been made and
rejected either expressly or impliedly by the reference
court or the appellate court, and merely interest on
compensation is awarded, then it would be open to the
execution court to apply the ratio of Sunder (supra) and
say that the compensation awarded includes solatium and
in such an event interest on the amount could be directed
to be deposited in execution. Otherwise, not. We also
clarify that such interest on solatium can be claimed only
in pending executions and not in closed executions and
the execution court will be entitled to permit its recovery
from the date of the judgment in Sunder (September 19,
2001) and not for any prior period. We also clarify that
this will not entail any re-appropriation or fresh
appropriation by the decree-holder. This we have indicated
by way of clarification also in exercise of our power
under Articles 141 and 142 of the Constitution of India
with a view to avoid multiplicity of litigation on this
question. "
(emphasis supplied)
So far present cases are concern, it is undisputed that after
passing of judgment and decree by the reference court,
execution was neither filed nor pending; then the question of
applying the ratio of Sundar (supra) was out of place that too
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in review jurisdiciton, more particularly when the reference
court itself has expressly denied interest on solatium.
6.6 So, in view of the aforesaid provision of law as well as
decision in the case of Gurpreet Singh (supra), reference court
could not have allowed the impugned review application.
6.7 Moreover, the scope of review is well defined by numerous
decisions of Honourable Supreme Court but it is apt to refer
and rely upon following decisions which may be appropriately
applied to the facts germane from the matter.
(1) In a case of Lily Thomas Vs. Union Of India reported in
(2000) 6 SCC 224 it is held as under:
"52. The dictionary meaning of the word "review" is "the
act of looking, offer something again with a view to
correction or improvement. It cannot be denied that the
review is the creation of a statute. This Court in Patel
Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR
1970 SC 1273 held that the power of review is not an
inherent power. It must be conferred by law either
specifically or by necessary implication. The review is also
not an appeal in disguise. It cannot be denied that justice
is a virtue which transcends all barriers and the rules or
procedures or technicalities of law cannot stand in the way
of administration of justice. Law has to bend before
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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 miscarriage of justice nothing would
preclude the Court from rectifying the error. This Court in
S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595
held :
"Review literally and even judicially means re-
examination or re-consideration. Basic philosophy
inherent in it is the universal acceptance of human
fallibility. Yet in the realm of law the Courts and even
the statutes lean strongly in favour of finality of
decision legally and properly made. Exceptions both
statutorily and judicially have been carved out to
correct accidental mistakes or miscarriage of justice.
Even when there was no statutory provision and no
rules were framed by the highest Court indicating the
circumstances in which it could rectify its order the
Courts culled out such power to avoid abuse of process
or miscarriage of justice. In Prithwi Chand Lal
Choudhury v. Sukhraj Rai, AIR 1941 FC 1 the Court
observed that even though no rules had been framed
permitting the highest Court to review its order yet it
was available on the limited and narrow ground
developed by the Privy Council and the House of Lords.
The Court approved the principle laid down by the
Privy Council in Rajunder Narain Rae v. Bijai Govind
Singh (1836) 1 Moo PC 117 that an order made by the
Court has final and could not be altered.
". . . . . . . .nevertheless, if by misprison in embodying
the judgments, by errors have been introduced, these
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Courts possess, by Common Law, the same power
which the Courts of record and statute have of
rectifying the mistakes which have crept in. . . . . The
House of Lords exercises a similar power of rectifying
mistakes made in drawing up its own judgments, and
this Court must possess the same authority. The Lords
have however gone a step further, and have corrected
mistakes introduced through inadvertence in the details
of judgments; or have supplied manifest defects in order
to enable the decrees to be enforced, or have added
explanatory matter, or have reconciled inconsistencies.'
Basis for exercise of the power was stated in the same
decision as under :
It is impossible to doubt that the indulgence extended
in such cases is mainly owing to the natural desire
prevaling to prevent irremediable injustice being done
by a Court of last resort, where by some accident,
without any blame, the party has not been heard and
an order has been inadvertently made as if the party
had been heard.'
Rectification of an order thus stems from the
fundamental principle that justice is above all. It is
exercised to remove the error and not for disturbing
finality. When the Constitution was framed the
substantive power to rectify or recall the order passed
by this Court was specifically provided by Art. 137 of
the Constitution. Our Constitution makers who had the
practical wisdom to visualise the efficacy of such
provision expressly conferrred the substantive power to
review any judgment or order by Art. 137 of the
Constitution. And Cl. (c) of Art. 145 permitted this
Court to frame rules as to the conditions subject to
which any judgment or order may be reviewed. In
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exercise of this power Order 40 had been framed
empowering this Court to review an order in civil
proceedings on grounds analogous to Order 47 Rule 1
of the Civil Procedure Code. The expression, 'for any
other sufficient reason' in the clause has been given an
expanded meaning and a decree or order passed under
misapprehension of true state of circumstances has been
held to be sufficient ground to exercise the power.
Apart from Order 40, Rule 1 of the Supreme Court
Rules this Court has the inherent power to make such
orders as may be necessary in the interest in justice or
to prevent the abuse of process of Court. The Court is
thus not precluded from recalling or reviewing its own
order if it is satisfied that it is necessary to do so for
sake of justice."
The mere fact that two views on the same subject are
possible is no ground to review the earlier judgment passed
by a Bench of the same strength.
56. It follows, therefore, that the power of review can be
exercised for correction of a mistake but 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 like 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 practised. However, this Court in exercise of
its powers under Article 136 or Article 32 of the
Constitution and upon satisfaction that the earlier
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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."
(emphasis supplied)
(2) So also in a case of Sanjay Kumar Agarwal vs. State Tax
Officer and Anr. Reported in (2024) 2 SCC 362 , it has been so
held by Honourable Supreme Court that subsequent decisions
of Apex Court declaring and or clarifying law would not ipso
facto become ground to review the decision which is already
decided by Court and accepted by parties to lis unless its
pending before higher court. It has been held thus:
"15. It is very pertinent to note that recently the
Constitution Berich in Beghar Foundation v. K.5.
Puttaswamy (Aadhaar Review-5 J., held that even the
change in law or subsequent decision/judgment of
coordinate Bench or larger Bench by itself cannot be
regarded as a ground for review.
16. The gist of the afore stated decisions is that:
16.1. A judgment is open to review inter alia if there is a
mistake or an error apparent on the face of the record.
16.2. A judgment pronounced by the court is final, and
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departure from that principle is justified only when
circumstances of a substantial and compelling character
make it necessary to do so.
16.3. 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 record justifying the
court to exercise its power of review.
16.4. In exercise of the jurisdiction under Order 47 Rule 1
CPC, it is not permissible for an erroneous decision to be
"reheard and corrected".
16.5. A review petition has a limited purpose and cannot
be allowed to be "an appeal in disguise".
16.6. Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions which
have already been addressed and decided.
16.7. An error on the face of record must be such an
error which, mere looking at the record should strike and
it should not require any long-drawn process of reasoning
on the points where there may conceivably be two
opinions.
16.8. Even the change in law or subsequent
decision/judgment of a coordinate or larger Bench by itself
cannot be regarded as a ground for review."
(emphasis supplied)
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Thus, view it from any stand point of view, order impugned in
the appeal is not only erroneous one, perverse but bad in law
having passed by trial Court exceeding its jurisdiction so vested
in it.
6.8 The judgments cited by learned counsel Mr. Gadhvi would
not be applicable to the facts of the case for the reason that in
the case of Penderyn (supra), there was an amendment of the
provision of law, which was unnoticed, and on such basis
review application was filed and the same was allowed, which
is not the case on hand.
6.9 So far as Girdharlal (supra), again Honourable Apex Court
was specifically brought to the notice of the provisions of law,
which was unnoticed at the time of submission, and thereby,
considering the provisions of law and its interpretation, Apex
Court has passed appropriate order.
6.10 Lastly, in case of Patel (supra), the matter was sub-judice
before Honourable Apex Court when the decision in the case
of Sundar (supra) came and considered such facts and
circumstances. Benefit of decision in the case of Sundar (supra)
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was granted to the claimants.
6.11 So, in view of the aforesaid position of law as well as
provisions of law, the order impugned in the appeal is ex-facie
bad in law, without jurisdiction, and requires to be quashed
and set aside.
7. Lastly, the argument so canvassed by learned advocate Mr.
Gadhvi that appellant has selectively challenged orders passed
by executing Court in these group of cases and in similar type
of other matters the award remained unchallenged. Such
argument has no legs to stand because, it is settled legal
position of law that there is no estopple against law thereby
appellant being arm of 'State' can well within its right to
decide to challenge award/order as per its policy considering
financial implication involved therein. But there is no bar
under law not to challenge order which is otherwise contrary
to law having greater ramification than order not challenged
unless any malafide proved on record which is not the case on
hand.
7.1 As such, the issue is no longer remain res integra covered
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by decision of Honourable Apex Court in a case of COL (RETD
) B J Akkara vs. Government Of India reported in (2006) 11
SCC 709 wherein held thus,
"[10] On the contentions urged, the following questions
arise for consideration :
................
(iii) Whether the respondents having accepted and
implemented the decision of the Delhi High Court (in Dr.
K.C. Garg vs. Union of India C.M.P. No. 7322/2001 and
connected cases decided on 18.5.2002) on a similar issue,
are required to extend a similar treatment to Defence
Service Medical Officers also, by cancelling the Circular
dated 11.9.2001.
[25] A similar contention was considered by this Court in
State of Maharashtra vs. Digambar [1995 (4) SCC 683].
This Court held :
"Sometimes, as it was stated on behalf of the State, the
State Government may not choose to file appeals against
certain judgments of the High Court rendered in Writ
petitions when they are considered as stray cases and not
worthwhile invoking the discretionary jurisdiction of this
Court under Article 136 of the Constitution, for seeking
redressal therefor. At other times, it is also possible for
the State, not to file appeals before this Court in some
matters on account of improper advice or negligence or
improper conduct of officers concerned. It is further
possible, that even where S.L.Ps are filed by the State
against judgments of High Court, such S.L.Ps may not be
entertained by this Court in exercise of its discretionary
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jurisdiction under Article 136 of the Constitution either
because they are considered as individual cases or because
they are considered as cases not involving stakes which
may adversely affect the interest of the State. Therefore,
the circumstance of the non-filing of the appeals by the
State in some similar matters or the rejection of
some S.L.Ps in limine by this Court in some other similar
matters by itself, in our view, cannot be held as a bar
against the State in filing an S.L.P. or S.L.Ps in other
similar matters where it is considered on behalf of the
State that non-filing of such S.L.P. or S.L.Ps and pursuing
them is likely to seriously jeopardize the interest of the
State or public interest."
[26] The said observations apply to this case. A particular
judgment of the High Court may not be challenged by the
State where the financial repercussions are negligible or
where the appeal is barred by limitation. It may also not
be challenged due to negligence or oversight of the
dealing officers or on account of wrong legal advice, or
on account of the non-comprehension of the seriousness or
magnitude of the issue involved. However, when similar
matters subsequently crop up and the magnitude of the
financial implications is realized, the State is not
prevented or barred from challenging the subsequent
decisions or resisting subsequent writ petitions, even
though judgment in a case involving similar issue was
allowed to reach finality in the case of others . Of course,
the position would be viewed differently, if petitioners
plead and prove that the State had adopted a 'pick and
choose' method only to exclude petitioners on account of
malafides or ulterior motives. Be that as it may. On the
facts and circumstances, neither the principle of res
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judicata nor the principle of estoppel is attracted. The
Administrative Law principles of legitimate expectation or
fairness in action are also not attracted. Therefore, the
fact that in some cases the validity of the circular dated
29.10.1999 (corresponding to the Defence Ministry circular
dated 11.9.2001) has been upheld and that decision has
attained finality will not come in the way of State
defending or enforcing its circular dated 11.9.2001. "
(emphasis supplied)
7.2 So, arguments canvassed by learned advocate Mr. Gadhvi
requires to be set at naught being contrary to settled position
of law.
7.3 It remained undisputed that no appeal has been filed by
the original claimants challenging judgment and decree passed
by the reference court, but after about 5 years of passing of
such decree, review application came to be filed, which was
erroneously and arbitrarily allowed by the reference court.
8. Conclusion:
8.1 Thus, in view of the aforesaid observations, discussion and
reasons, the impugned order in the appeal requires to be
interfered with by this court while exercising powers under
Order 43 of the CPC, as it is passed not only without
jurisdiction but has not appropriately exercised the jurisdiction
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so vested in it, and the impugned order is beyond the scope of
Order 47 of the CPC.
8.2 All these factors lead to only one conclusion that the
impugned order dated 30.08.2008 passed in Review Application
No.1 to 4 of 2005 by the learned Presiding Officer and
Additional District Judge, 5th Fast Track Court, Mahesana, is
bad in law, without jurisdiction, erroneous, perverse and
arbitrary so requires to be quashed and set aside. Accordingly,
the same is hereby quashed and set aside. All appeals are
allowed accordingly. No order as to cost.
8.3 In view of disposal of main appeals, civil applications are
also disposed of accordingly.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
