The Special Land vs Maktumsab S/O Dadusab Chopadar
2022 Latest Caselaw 9461 Kant

                          1

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 23RD DAY OF JUNE, 2022

                     PRESENT


 THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                         AND

        THE HON'BLE MR.JUSTICE E.S.INDIRESH

              RP NO. 100018 OF 2021
                        IN
           MFA NO.102711 OF 2020 (LAC)

BETWEEN:

THE SPECIAL LAND
ACQUISITION OFFICER
KARNATAKA INDUSTRIAL
AREA DEVELOPMENT BOARD
LAKKAMANAHALLI LAYOUT
DHARWAD - 580 011
                                        ... PETITIONER

(BY SRI BASAVARAJ SABARAD, SENIOR ADVOCATE FOR
   SRI. SHASHANK S.HEGDE, ADVOCATE)

AND:

  1. MAKTUMSAB S/O DADUSAB CHOPADAR

  2. SMT. MAKTUMBI W/O HUSAINSAB GOVANAKOPPA

  3. KASHIMSAB HATELSAB CHOPADAR

  4. DADUSAB MAKTUMSAB CHOPADAR
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  5. SMT. BIBIJAN MAKTUMSAB CHARAK

  ALL ARE MAJOR, OCC: AGRICULTURE
  R/O MUMMIGATTI, TALUK-DHARWAD
  DISTRICT: DHARWAD - 580 011
                                   ... RESPONDENTS
(BY SRI SUNANDA P PATIL, ADVOCATE FOR R1;
   SRI DINESH M KULKARNI, ADVOCATE FOR R2 TO R5)

     THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 R/W SECTION 114 OF CPC, PRAYING TO REVIEW AND RECALL
THE JUDGMENT AND ORDER DATED 09.04.2021 PASSED IN
MFA NO.102711/2020 (LAC) IN SO FAR AS IT RELATES TO THE
DIRECTION TO THE APPELLANT-PETITIONER TO DEPOSIT A
SUM OF RS.30 CRORES WITHIN 8 WEEKS BEFORE THE
REFERENCE COURT WITH LIBERTY TO THE CLAIMANTS TO
WITHDRAW THE SAID AMOUNT BY EXECUTING INDEMNITY
BOND OF UNDERTAKING.

      THIS REVIEW PETITION COMING ON FOR ADMISSION
THIS DAY, E.S.INDIRESH J., MADE THE FOLLOWING:

                       ORDER

This Review Petition is filed by the appellant in MFA

No.102711 of 2020, seeking to review the judgment and

award dated 09.04.2021.

2. We have heard Sri Basavaraj Sabarad, learned

Senior counsel appearing for the petitioner; Smt Sunanda

P. Patil, learned counsel appearing for respondent No.1

and Sri Dinesh M. Kulkarni, learned counsel appearing for

the respondents 2 to 5/claimants.

3. Sri Basavaraj Sabarad submits that while

remanding the case to the reference court, this court

directed the petitioner to deposit Rs.30 crores. He submits

that this direction is to be reconsidered for two reasons,

firstly that as the case is remanded, the reference court

has to determine the compensation payable to the

respondent, and as such there is no award in the eye of

law. In that view, the petitioner should not have been

directed to deposit Rs.30 crores. Secondly, the acquiring

authority paid Rs.22,55,612/- on 16.6.2008 and

Rs.34,10,000/- on 22.1.2014 to the respondents in terms

of the award passed by the Land Acquisition Officer on

4.3.2008. This being the fact, the petitioner should not

have been directed to deposit Rs.30 crores, and the

respondents should not have been given liberty to

withdraw Rs.30 crores. This is an error in the judgment,

which requires to be reviewed.

4. Per contra, Sri Dinesh M.Kulkarni seeks to

justify the impugned order and submits that the

claimants/respondents have filed Execution petition No. 73

of 2020 before the Civil Judge, Dharwad claiming

Rs.79,35,53,445/- and therefore, the petitioner herein was

directed to deposit Rs.30 crores with liberty to the

respondents/claimants to withdraw the same and as such,

there is no ground to review the judgment.

5. Smt Sunanda P. Patil, learned counsel

appearing for respondent No.1 supported the argument

advanced by the learned counsel appearing for

respondents 2 to 5.

6. We have carefully considered the submissions

of the learned counsel and the factual aspects. This court

by order dated 09.04.2021, allowed the appeal filed by the

petitioner herein and remanded the matter to the

Reference Court for fresh disposal after affording an

opportunity to the petitioner/appellant to file its statement

of objections/written statement for proper adjudication of

the matter on merits. Taking into consideration the finding

recorded by us in paragraph 4 of the judgment, we do not

find any acceptable grounds to review the judgment as we

do not find any error apparent on the face of the record.

It is useful to refer to the law declared by the Hon'ble Apex

Court in the case of Kamlesh Verma vs. Mayawati [AIR

2013 SC 3301] where the Hon'ble Apex Court has laid

down certain principles as to when review can be

permitted. The relevant paragraphs of the said judgment

are 15, 16, 17 and 18 and same are reproduced as under:

"15.Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.

Summary of the Principles:

16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

   A)   When      the          review   will    be
   maintainable:-

   (i)    Discovery   of   new    and   important
   matter or evidence which, after the

exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275.

B) When the review will not be maintainable:-

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on

the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

17) Keeping the above principles in mind, let us consider the claim of the petitioner and find out whether a case has been made out for interference exercising review jurisdiction.

18) Mr. Shanti Bhushan, learned senior counsel for the petitioner, once again took us through various earlier orders passed by this Court in respect of Taj Corridor Project and submitted that even if there is any invalidity of

investigation and breach of mandatory provision, it is the duty of the Court exercising jurisdiction under Article 32 of the Constitution of India to take necessary steps by ordering the investigating agency to proceed further and take action in accordance with law. For the same, he relied on the judgments of this Court in H.N. Rishbud & Inder Singh vs. The State of Delhi, 1955 (1) SCR 1150 at page 1164 and Vineet Narain & Ors. vs. Union of India & Anr.,, (1998) 1 SCC 226. In H.N. Rishbud (supra), the following observation/conclusion is pressed into service:

".....It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for."

7. If the grounds urged in this petition and

submissions of Sri Basavaraj Sabarad are considered, we

may state that they do not fall within the ambit of

principles enunciated by the Hon'ble Supreme Court in the

decision referred to above. While deciding the appeal, MFA

102711/2020, we found a case for review as the appellant

was denied of defending its case in view of improper

service of notice on him. Remand order is the principal

decision about which the petitioner has no grievance.

Direction given by us to deposit Rs.30 crores was with a

view to doing justice to the respondents who are the land

losers. They cannot be made to wait for the compensation

that they are entitled to. We are aware of the position

that once a case is remanded to the Reference Court for

fresh adjudication, there exists no award for enhancement.

Notwithstanding this position, it cannot be said that the

appellate court is powerless to direct the petitioner to

make some payment keeping in mind the fact that the

award passed by the Land Acquisition Officer initially may

have to be modified by the Reference Court. It was in this

view, we directed the petitioner to deposit Rs.30 crores.

Now, if the petitioner has already made certain payments,

which was not brought to our notice while we were hearing

the appeal, and in view of this payment, the amount

directed to be deposited needs to be reduced, we may

modify the direction; review for the purpose of

modification of the direction cannot be granted. It was

enough if the petitioner had made an application for

modification of the direction.

8. Now after hearing both sides, we find that the

direction can be modified. The total extent of land

acquired is 28 acres which includes 17 acres of kharab. It

is not in dispute that the petitioner has already made

certain payments. The reference court while disposing of

the reference petition, LAC 3/2016 on 2.2.2019, fixed the

market value on per gunta basis. Sri Basavaraj Sabarad

and Sri Dinesh Kulkarni submitted that any reasonable

amount can be fixed to balance the interest of both side

parties. Therefore having regard to overall facts and

circumstances, we find that the review petitioner can be

directed to deposit Rs.10 crores instead of Rs.30 crores.

9. Therefore we dismiss the review petition with a

modification in the direction issued by us in our judgment

in MFA 102711/2020. The petitioner is hereby directed to

deposit Rs.10 crores within a period of eight weeks from

today before the Reference Court.

10. It is also made clear that on deposit being

made by the petitioner herein, the respondents/claimants

are at liberty to withdraw the amount in deposit by

executing an indemnity bond undertaking that they would

repay the excess amount from the deposit of Rs.10 crores,

in case the compensation to be awarded by the Reference

Court works out less than the amount already paid plus

Rs.10 crores.

11. Taking note of the fact that the land was

acquired in the year 1999 and that there should not be

further delay in determination of the compensation

payable to the respondents, we direct the Reference Court

to dispose of the reference petition within an outer limit of

six months from the date of receipt of copy of this order.

In view of disposal of Revision Petition, applications

if any, do not survive for consideration. Accordingly, same

are disposed of.

The registry is directed to forward a copy of this

order to the Reference Court immediately.

Sd/-

JUDGE

Sd/-

JUDGE

SB