JUDGMENT
Swatanter Kumar, J.
1. The Petitioners raise challenge to the notification dated 7th March, 1988 issued by the appropriate Government under Section 4 of the Land Acquisition Act, (hereinafter referred to as the Act) and notification dated 12th April, 1988 wherein the respondent official was directed to take possession of the acquitted land by invoking emergency provisions of Section 17 of the Act and also prayed for quashing of the acquisition proceedings in regard to the property of the Petitioner measuring 11 biswas in the revenue estate of Village Azadpur, Delhi.
2. This Writ Petition was dismissed by a Division Bench of this Court of which one of us (A.K. Sikri, J.) was a party, vide judgment dated 31st May, 2004 wherein the Court held as under :-
“23. In view of the aforesaid legal position, this writ petition is without any merit. The petitioners are precluded from challenging the acquisition on the grounds mentioned above, namely, there was no compliance of the mandatory provisions of Section 4 of the Act or that there was no satisfaction of the Lt. Governor under Section 17(4) of the Act or that there was no application of mind by the Land and Building Department or the Competent Authority regarding need of the land for acquisition. The various judgments cited by learned counsel for the petitioners in support of the aforesaid submission would also be of no avail.
24. The writ petition is accordingly dismissed. Rule is discharged. There shall, however, be no orders as to costs.”
3. The present application has been filed for recalling and modification of the above judgment on the ground that certain issues were not appropriately argued before the Court. The Petitioners were in possession of the land in question and were never dispossessed on 22nd March, 1990. As such the finding recorded by the Court suffer from an error apparent on the face of the record. There was no application of mind by the Competent Authority for invoking the provisions of Section 14 and 4 of the Act which took away the salutary and most valuable right given by the Legislature to the objector under Section 5(a) of the Act. The possession report of the Respondents is sought to be belied on the ground that there were 70-80 eucalyptus trees of ripe age, standing on the land in question and this vitiates the report. Lastly, certain judgments were not considered by the Court. On all these grounds the applicant presses before the Court that the judgment should be recalled and acquisition proceedings be quashed as prayed.
4. At the very outset, we would mention that the writ petition was argued at great length by Mr. Lala Ram Gupta, Sr. Adv. assisted by three advocates while the present application has been filed by the applicant after changing his counsel. Now, both, the counsel who argued the matter and the counsel who filed the present application were not counsel in the main writ petition. They would hardly be aware what was argued before the Court and what law was cited. We are unable to appreciate this practice and in fact are of the opinion that such practice should be deprecated particularly when the subsequent application is filed without even taking no objection from the previous counsel. In this application the applicant has not even stated that he was present in the Court during the course of arguments and understand the Court proceedings so as to swear the affidavit in support of the averments made in the application.
5. Accepted norms of fair practice at the Bar would require that filing of application in the present manner may be avoided unless the facts and circumstances of the case compels the litigant to take recourse to such procedure. Exception to the general practice should be carved out in exceptional circumstances, that too in accordance with law otherwise it is likely to damage the fine fabric of faith in judicial administration. While emphasising the need for adherence to this salutary rule in the case of Tamil Nadu Electricity Board and Anr. v. N. Raju Reddiar and Anr., JT 1997 (1) SC 486, the Supreme Court held as under :-
“Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the advocate-on-record. This practice of changing the advocates and filing repeated petitions should be deprecated with heavy hand for purity of administration of law and salutary and healthy practice.”
6. In the present application the applicant controverter and has stated the facts which were never mentioned even in the original writ petition. In the entire writ petition it was nowhere stated by the petitioner that there are eucalyptus trees on the land in question. In the award annexed to the writ petition it has been stated “Mahavir Prasad (present petitioners are sons of Mahavir Prasad) did not produce any proof in support of the price of the land claimed by him”. No reference has been made to eucalyptus trees even in the award. Again in the writ petition which was filed in the year 1990 which was amended in the year 2002 again the petitioner had made no averment that they were in possession of the land in question. The main plea taken by the petitioner was that as there is being construction on the land in question, it could not be acquired. The petitioner, of course had made some vague averments in that behalf in the rejoinder filed to the counter affidavit of respondent No.4. Now, the petitioner terms the possession report of the respondent as a fabricated document and that the notification issued under Section 22(1) of the Delhi Development Act, 1957 was published, but again was a end-product of manipulated document.
7. It is interesting to note that in regard to possession itself, the petitioner in the application under consideration has stated “That in the face of the objection raised in the counter that disputed questions (regarding taking of possession of land) arose which cannot be decided in summary proceedings adopted in writ petition, merits of the question of existence of emergency and taking of possession of land should have been handled with scrupulous care.” Firstly, in its judgment the Division Bench had categorically considered the question of possession on the basis of the record before the Court and the challenge to the veracity of the possession report was not proper and there was no reason to disbelief the report more particularly when, that the award was made immediately thereafter on 29th March, 1990. The award also recorded the factum of taking possession of the land on 22nd March, 1990 as stated. We fail to understand how can the petitioner re-agitate this issue by filing the present application. In any case if we take note of the averments of the petitioner as above recorded the writ petition in any case would be liable to be dismissed. The Court recorded its findings in regard to all the pleas which were raised by the petitioners in their writ petition and a considered judgment was passed. It is unfortunate that the applicant has chosen to file the application for review primarily with the object of re-agitating the contentions which were duly considered and rejected by the Court. The scope of the review jurisdiction of the Court is a very limited one. The applicant cannot pray for review of a judgment merely because some of the judgments have not been noticed by the Court particularly when the judgments were not even referred to before the Court at that stage and in any case the applicant will be in no position to say so. Furthermore, the jurisdiction of review does not extend for substituting a view taken by the Court on merits or otherwise of the contentions raised before the Court on the facts and circumstances of a case. The applicant is essentially praying before the Court that the view taken by the Court on different facets of the case – legal and factual – should be substituted primarily because another view was possible. The power to review normally is the creation of a statute. However, in exercise of powers by the High Court under Article 226 of the Constitution of India, the Court can take recourse to the power of review by necessary implication. Such power of review has a limited scope and is normally used for the correction of a mistake but not to substitute a view in law. Such mistake or error contemplated under this rule must be such which is apparent on the face of the record and not a correction of an error which requires long drawn process of reasoning. The limitation on the powers of the Court under Order 47 Rule 1 are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India. With caution the Court has to ensure that such power is not exercised like entertaining an ‘Appeal in disguise’. Where conceivably there may be two opinions and an error has to be established by a long drawn process it is not an error apparent on the face of the record. Reference in this regard can be made to the judgment in the case of R.S. Rajanna v. Sri Basavaiah and Ors., AIR 1997 Karnataka 245 Para 11 and in the case of Prem Dutt v. Punjab State, 1998 Vol. 1 PLR 444.
8. In the case of Parsion Devi and Ors. v. Sumitri Devi and Ors., JT 1997 Vol. 8 SC 480 the Supreme Court has held as under :-
‘It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC.
Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”.
9. An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record.
10. This principle was reiterated by the Supreme Court in the case of Lily Thomas, etc. etc. v. Union of India and Ors., JT 2000 Vol.5 SCC 617 further with a clear caution that in exercise of power of review the Court may correct the mistake but not to substitute the view. The mere possibility of two views on the subject, is not a ground for review.
11. It is obligatory on an applicant to establish on record that there was an error or a mistake apparent on the face of the record or there was such other material available with the applicant which if not taken into consideration would cause miscarriage of justice.
12. Attempt of the applicant by filing the present application is only to re-agitate the issues. No error much less an error apparent on the face of the record has been pointed out by the applicant. From the record and even from the averments made in this application it is clear that the possession of the land has been taken by the appropriate Government and once the possession is taken, judgment is pronounced, it is a settled principle of law that the land vests in the Government free of all encumbrances as contemplated under Section 16 of the Act. The applicant specifically even admits in this application that there was ‘unexplainable delay and laches in taking possession of the land ……..’ which clearly indicate that the petitioner has been dispossessed of the land in question for which the award has also been pronounced.
13. In the application under consideration after referring to the grounds taken up in the Writ Petition, the facts and the prayer therein, the applicant has raised issues in regard to purpose of acquisition, interim order of the Court dated 29th April, 1990, possession of the applicant and non-application of mind by the Competent Authority in issuing the notification under the provisions of the Act. The intention of the Petitioner is primarily to re-agitate all these issues which were considered by the Court and a view taken in its judgment dated 30th May, 2004.
14. It is a settled position of law that once the possession is taken and kabza karvai or panchnama for taking possession is prepared and it is also shown that the possession was delivered to the beneficiary, the land would vest in the Government free of encumbrances and even subsequent possession would tantamount to illegal or unlawful possession. In given facts and circumstances, taking of symbolic possession would be enough. Reference can be made to the judgment of the Supreme Court in the case of Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and Ors., 1996 (4) SCC 212 and Nagin Chand Godha v. Union of India and Ors. 2003 (70) DRJ 721. The Courts have repeatedly held that once the land owner has been divested of his land in accordance with the provisions of the Act and an Award is passed he would hardly have any right to question the validity or legality of the acquisition proceedings.
15. We may also notice that the judgment of the present case was pronounced on 31st May, 2004 and the applicant has filed the present application in the Registry of this Court for the first time on 9th February, 2005. The application has been titled as an application under Section 151 of the Code of Civil Procedure but the prayer made in the application is for recalling or modifying the judgment dated 31st May, 2004. In substance this is an application seeking review of the judgment in the garb of the provisions of Section 151 of the CPC. In addition to all of the above factors this application at the face of it is barred by time and in any case suffers from the defect of unexplained delay.
16. In view of the above reasoning, we are of the considered view that present application is an abuse of the process of law. We find no reason whatsoever to modify or recall the judgment of the Division Bench dated 31st May, 2004. Thus, this application is dismissed with costs of Rs. 5,000/-.