Madras High Court
The Commissioner vs A.R.Nageshwara Rao … on 19 August, 2024
2024:MHC:3138
Review Appln. (Writ) No.185 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2024
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
Review Appln. (Writ) No.185 of 2012
The Commissioner,
Corporation of Chennai,
Ripon Building,
Chennai – 600 003. ... Petitioner/3rd respondent
vs.
1.A.R.Nageshwara Rao … Respondent/Writ Petitioner
2. The Deputy Secretary to Government,
Public Works Department,
Fort St. George,
Chennai – 600 009.
3. The Tahsildar,
office of the Tahsildar,
Perambur – Purasawakkam,
Perambur, Chennai – 600 011. ... Respondents/Respondents
PRAYER: Review Application filed under Order XIV Rule 1, r/w. Section
114 of Code of Civil Procedure, to review the order passed in WP.No.20836
of 2010 dated 19.01.2011 and to allow this Review Application.
For Petitioner : Mrs.P.T.Ramadevi,
Standing Counsel for Corporation.
1/10
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Review Appln. (Writ) No.185 of 2012
For Respondents : Mr.R.Manickavel (for R1)
ORDER
The petitioner herein seeks review of the order passed by this Court
dated 19.01.2011 in W.P.No.20836 of 2010.
2. The writ petition was filed seeking a direction to the respondents
therein to pay the compensation for the land belonged to the petitioner
situated in S.No.4, 6, 7 and 10, corresponding T.S.Nos.22/2 and 23 in Block
No.4 of Sembiam Village, Perambur-Purasaiwalkam Taluk.
3. When the writ petition came up for hearing, after recording the
stand of the review applicant/3rd respondent in the writ petition, this Court
passed the following order, which is sought to be reviewed.
“4. The learned standing counsel appearing for the third respondent-
Corporation would submit that the legal heirs of late A.N.Kupparam are
entitled to receive the compensation and unless the assessment of
compensation is made by the second respondent, they are not in a position to
pay the same to the legal representatives of late A.N.kupparam.
5. Mr.R.Neelakantan, learned Additional Government Pleader for the
respondents 1 & 2 would submit that the second respondent may be directed to
do the said exercise within a stipulated period so as to enable the third
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Review Appln. (Writ) No.185 of 2012
respondent to pay the compensation.
6. In the result, this Court directs the third respondent to send the
proposal for payment of compensation in respect of the land in question within
a period of four weeks from the date of receipt of a copy of this order to the
second respondent and the second respondent, on receipt of such a proposal
from the third respondent, is directed to consider the same and pass orders
within a period of six weeks thereafter and also communicate the same to the
petitioner as well as to the third respondent. The writ petition is disposed of
accordingly. No costs.”
4. Now, the present review application is filed mainly on the ground
that at the time of hearing of the writ petition, certain vital records were not
traceable and now only the review applicant found that the land in dispute is
classified as 'Boosthi Odai' and used for drainage of flood water.
5. The learned counsel for the review applicant/3rd respondent by
taking this court to the Sale Deed in favour of the petitioner of the year 1959
submitted that even in the said document, while describing the subject
matter of the sale deed, 'odai' was shown as western boundary and therefore,
the disputed land is only an 'odai' and as a result, the petitioner is not
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Review Appln. (Writ) No.185 of 2012
entitled to any compensation.
6. It is settled law that discovery of new facts or new document per se
is not a ground for seeking review of the order. The person who seeks to
review the order on the ground of discovery of new and important matter or
evidence, must establish that it was not within his knowledge or could not be
produced by him at the time the order was passed, notwithstanding exercise
of due diligence by him. In this regard, it would be appropriate to refer to
the observation of the Division Bench of Allahabad High Court in Banaras
Electric Light and Power Co. Ltd. v. The Collector, Varanasi and others,
reported in AIR 1982 All 355 : MANU/UP/0304/1982, which reads as
follows:
“9. Coming to the facts of the instant case it would be seen that here
the review is sought not on the ground that a glaring omission or a patent
mistake or like grave error has crept in earlier by judicial infallibility nor on the
ground that this Court committed by grave and palpable error in deciding the
writ petition. It has been filed only on the ground of discovery of new and
important evidence. As has been emphasised by the Supreme Court in
A.T.Sharma's case (A. T. Sharma v. A. P. Sharma MANU/SC/0058/1978 )
which has been followed by the Full Bench of the Gujarat High Court in the
case of Gujarat University (Gujarat University v. Sonal P. Shah
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Review Appln. (Writ) No.185 of 2012
MANU/GJ/0064/1982 ) before a review application can be entertained this
ground it has to be established by the applicant in the review application that
the additional evidence which is sought to be relied on was after the exercise of
due diligence not within the knowledge of the person seeking the review or
could not be produced by him at the time when the order was made. In the
instant case there is no averment to this effect either in the affidavit filed in
support of the review application or even in the rejoinder affidavit. In the
affidavit filed along with the review application what has been stated is that
after the judgment was delivered in the writ petition the Superintending
Engineer, Electricity Supply Undertaking, State Electricity, Varanasi had the
occasion to appear before the Special Officer Electricity to the State
Government and in that connection while wading through the old files in the
office of the Electrical Inspector to the State Government he found the
document referred to in the review application. As pointed out above the sheet
anchor of the review application is a notice sent by the petitioner to the State
Government and the U. P. State Electricity Board itself on January 24, 1972.
This notice, therefore, was apparently with the U. P. State Electricity Board
which is an applicant in the review application even at the time when the
counter-affidavit in the writ petition was filed and the writ petition was heard
and decided. The only averment in this behalf in the rejoinder affidavit is that
the officers dealing with the case had no knowledge and had no occasion to
know about this notice given by the petitioner-Company and, therefore, could
not bring it to the notice of this Court at the time when the writ petition was
heard. It would thus be seen that neither in the affidavit filed along with the
review application nor in the rejoinder affidavit it has been stated that even
after exercise of due diligence these documents were not within the knowledge
of respondents 2 and 3 or could not be produced by them at the time when the
writ petition was heard and decided. The requirement of the "exercise of the
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Review Appln. (Writ) No.185 of 2012
diligence" at the appropriate "time constitutes the very basis for maintaining a
review application filed on the ground of discovery of new and important
matter of evidence. In Pyare Lal v. Chhotey Lal MANU/UP/0111/1941 : AIR
1942 All 82 while dealing with the power of review under Order 47, Rule 1, C.
P. C. on the basis of discovery of new or important evidence it was held that
Order 47. Rule 1. C. P. C. requires a high standard of diligence and that the
person who wants a review should prove strictly diligence he claims to have
exercised. The same view was taken in an earlier decision in Kariya Mahto v.
Ram Sarup AIR 1917 All 107. ”
[emphasis supplied by this Court]
7. In the case on hand, as mentioned earlier, the order was passed by
this Court by recording the submission of the review applicant/3rd
respondent therein that writ petitioner were entitled to receive the
compensation and unless assessment of compensation was made by the 2 nd
respondent therein, the review applicant could not pay compensation to the
writ petitioner. Having taken such a stand, admitting the right of the
petitioner, the review applicant is not entitled to maintain this review
application, based on new materials he acquired in which it is stated that the
land in question was classified as 'Boosthi Odai'.
8. In the review grounds, it was stated by the review applicant that at
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Review Appln. (Writ) No.185 of 2012
the time of passing orders, vital documents were not within the knowledge of
the Corporation and only after verifying facts from the revenue department,
the applicant came to know that the disputed land is 'Odai' running on
private land. It was also admitted by the review applicant that the officials
of the applicant Corporation informed the Standing Counsel without
knowing facts inadvertently. Therefore, based on the grounds raised by the
applicant, it is clear, the applicant failed to exercise due diligence at the time
the writ petition was heard. Further, the ground raised by the review
applicant now would amount to withdrawing earlier admissions made by
him.
9. Therefore, I do not find any acceptable ground to review the order
passed in the writ petition. Accordingly, the review application stands
dismissed. No costs.
19.08.2024
Index : Yes/No
Speaking order:Yes/No
Neutral Citation:Yes/No
ars
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Review Appln. (Writ) No.185 of 2012
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Review Appln. (Writ) No.185 of 2012
S.SOUNTHAR, J.
ars
To
1. The Deputy Secretary to Government,
Public Works Department,
Fort St. George,
Chennai – 600 009.
2. The Tahsildar,
office of the Tahsildar,
Perambur – Purasawakkam,
Perambur, Chennai – 600 011.
Review Appln. (Writ) No.185 of 2012
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Review Appln. (Writ) No.185 of 2012
19.08.2024
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