IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :29.07.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM R.A.Nos. 58, 59 & 60 of 2000 The Tamilnadu Small Industries Development Corporation Ltd, Rep.by its General Manager. ... Applicant/3rd respondent in all appeals
Vs.
1.Venkittammal
2.The Government of Tamilnadu
Rep. by its Secretary,
Industries Department,
Fort St. George Chennai 9.
3.The Revenue Divisional Officer,
Erode. ...Respondents/Petitioners in R.A.No.58 of 2000
1.K.Andimarappa Gounder (deceased)
2.K.Muthusamy Gounder
3.K.Muthusamy
4.K.Periyasamy
5.The Government of Tamilnadu
Rep. by its Secretary,
Industries Department,
Fort St. George Chennai 9.
6.The Revenue Divisional Officer,
Erode.
7.Manickam
8.Nataraj ...Respondents/Petitioners in R.A.No.59 of 2000
R7&R8 are substituted as legal representatives
of deceased R1 as per order dated 26.07.2010
in W.P.M.P.No.2624/2007 in R.A.No.59/2000
1.Nachimuthu Gounder
2.Ramasamy Gounder (Deceased)
3.K.Chinnaswamy
4.Minor Karuppasamy
Minor Rajamanickam
5.The Government of Tamilnadu
Rep. by its Secretary,
Industries Department,
Fort St. George Chennai 9.
6.The Revenue Divisional Officer,
Erode.
7.Muthayal
8.Sarasayal
9.Palanisamy ...Respondents/Petitioners in R.A.No.59 of 2000
R7 to R9 are substituted as legal representatives
of deceased R2 as per order dated 26.07.2010
in W.P.M.P.No.2625/2007 in R.A.No.60/2000
Common Prayer : Review applications have been against the orders made in W.P.No.15612 of 1992 dated 04.08.1999, W.P.No.15885 of 1991 dated 04.08.1999 and W.P.No.15886 of 1991 dated 04.08.1999.
For Applicant : Mr.S.Ramasamy Addl.Advocate General for Mr.V.P.Sengottuvel
For Respondents :Mr.N.Manokaran
COMMON ORDER
Since the issue involved in all these petitions are common, they are heard and disposed of by a common order.
2. The Tamil Nadu Small Industries Corporation Limited is the petitioner in all these review applications. The respondents are the writ petitioners. The writ petitions were filed for issuance of writ of Certiorari to quash the notification issued under Section 4(1) of the Land Acquisition Act under G.O.Ms.No.514, Industries Dated 02.08.1989, the declaration issued under Section 6 in G.O.Ms.No.950, Industries Department, dated 06.09.1990 and the award in award No.2 of 1991, dated 16.09.1991, in so far as the lands belonging to the writ petitions.
3. In the affidavit filed in support of the writ petition, it was contended that the acquisition proceedings is bad in law, since there is a delay of more than one year between the notification issued under Section 4(1) and the declaration under Section 6, that Rule 3-B of the Tamil Nadu Acquisition Rules has been violated, since, the objections raised against the acquisition were not communicated to the requisitioning body and the remarks of the requisitioning body were not communicated to the land owners. That the Revenue Divisional Officer himself over ruled the objections raised by the land owners. Further, it was stated that the names of the owners of the land were not mentioned in the Section 4(1) notification.
4. The petitioners/respondents filed counter affidavits contending that the notification under Section 4 (1) was approved by G.O.Ms.No.514, dated 02.08.1989, published in the Government Gazette on 16.08.1989 and in two local dailies dated 18.08.1989 and substance of the notification was published in the locality on 07.09.1989. The notice for Section 5(A) enquiry was served on the owners on 11.10.1989, directing them to send objections within 15 days from the date of receipt of notice and none of the writ petitioners submitted their objections. On the date of enquiry i.e., 30.10.1989, most of the land owners appeared and conveyed their objections. The remarks of the requisitioning body was called for on the objections raised by the land owner and the requisitioning body sent their remarks on 22.05.1990, which was communicated to the land owners on 08.06.1990, with a notice calling for their objections on the remarks. The enquiry was thereafter posted to 29.06.1990. The land owners appeared and objected to the land acquisition the raising the same contention. The proceedings under Section 5(A)(2), dated 09.07.1990 was issued after careful consideration of the objections and other circumstances. The draft declaration under Section 6 was sent to the Government and it was approved in G.O.Ms.No.950, dated 06.09.1990, and was published in the Government Gazette dated 06.09.1990 and in two dailies on 07.09.1990. The local publication was also made on 06.09.1990. The enquiry under Section 11 was conducted on 03.05.1991 and an award was passed on 16.09.1991.
5. The writ petitions came up for hearing before this Court and the learned Judge, who heard the matter passed the following order dated 04.08.1999, allowing the writ petitions:-
“In these cases, notification under Section 4(1) of the land acquisition act was issued on 02.08.1999 to the petitioners. Enquiry under Section 5-A was conducted on 30.08.1989. Declaration under Section 6 of the Act was made on 06.09.1990. Learned counsel for the petitioner argued that even though the petitioners have filed their objections, the objection have been forwarded to the acquisitioning body but the remarks offered by the acquisitioning body were not furnished to the owners of the lands petitioners as required under rule 3(B) of the Land acquisition rules.
2. On a directions from this Court, learned Government Advocate produced the records. A perusal of the records revealed that the remarks as required under rule 3(B) of the rules have not been furnished to the owners.
3.This court is Balkis Banu Vs. State of Tamilnadu [1997 (1) CTC 427] has held that the land acquisition proceedings are liable to be quashed for non compliance of the provisions of rule 3(B) of the Land acquisition Rules. In these cases also, the remarks have not been furnished by the acquisitioning body to the owners of the lands. Under the circumstances, the land acquisition proceedings are liable to be quashed and accordingly the acquisition proceedings are quashed. The writ petitioner are allowed. No costs. However liberty is granted to the respondents to proceed afresh as per law.”
6. It is seen from the above order that on a direction issued by the Court, the Government produced the records and on perusal of the records, it was seen that the remarks as required under Rule 3B of the Rules have not been furnished to the land owners. It is to be noted that in the counter affidavit filed in the writ petitions, it was stated that the remarks of the requisitioning body was communicated to the land owners on 08.06.1990. However, the learned Judge on perusal of the files recorded a specific finding that Rule 3B of the Rules was not followed, since the remarks were not furnished to the land owners. Based on such factual conclusion by relying upon the decision of this Court in Balkies Banu Vs. State of Tamil Nadu 1997 1 CTC 427, allowed the writ petition and quashed the acquisition proceedings. As against the order dated 04.08.1999, allowing the writ petitions, the above review applications were presented on 03.02.2000. In the grounds of the review applications, it has been stated that the learned Judge ought to have seen that the requirement under Rule 3B of the Rules has been fully complied with and the remarks of the acquisition body were sent to the land owners and duly acknowledged by them and that the learned Judge ought not to have allowed the writ petitions in its entirety on the sole ground that Rule 3B has not been followed and since, there is an error apparent on the face of the record, the order has to be reviewed.
7. From the order sheet in Review Application No.58 of 2000, it is seen that the review application was admitted on 15.11.2000 and since the land owners in Review Applications 59 & 60 of 2000 had died, W.P.M.P.Nos.2624 & 2625 of 2007 was filed to substitute the proposed respondents 2 to 9 as legal heirs of the deceased and notice was ordered in W.P.M.P.2624 & 2625 of 2007 on 08.02.2008, private notice has been taken and Mr.N.Manokaran, learned counsel appearing for the second respondent in Review Application No.59 of 2000 and respondents 1,3 &4 in Review Application 60 of 2000 takes notice for the proposed respondents and accordingly, the miscellaneous petitions were ordered.
6. Before proceeding with the merits of the contentions in the Review Applications, this Court requested the learned Additional Advocate General to make his submissions as regards the scope of the Review Applications and whether in the facts and circumstances of the present case such Review Application could be entertained. The learned Additional Advocate General would submit that the very same notification was challenged by other land owners in W.P.No.5499 and 14697 of 1991 by order dated 24.06.1999 and this Court had dismissed the writ petitions and in the said order a clear finding has been recorded that there has been full compliance of the procedural requirement under the Land Acquisition Act and Rules framed thereunder and that the land owners filed W.A.No.2163 & 2164 of 1999 against the order in the writ petitions and the Hon’ble First Bench of this Court by order dated 02.02.2000, dismissed the writ appeals. Therefore, the learned Additional Advocate General would submit that the order passed in these writ petitions, which are subject matter of these Review Applications requires to be recalled and the writ petitions have to be dismissed. The learned Additional Advocate General relied on the decision of the Hon’ble Supreme Court in Food Corporation of India and Another Vs. Seil Ltd and Others 2008 3 SCC 440, State of West Bengal and Others Vs. Kamalsengupta and another 2008 8 SCC 612 and Oriental Insurance Company Ltd Vs. Kalawati Devi and Others (2009) 13 SCC 767 in support of his contentions.
7. The limitation of the exercise of the powers of review is well settled. The primary requirement for entertaining a review application is that the order, review of which is sought for suffers from error apparent on the face of the order and if the order is allowed to stand, it would lead to failure to justice, if there is no error apparent on the face of the record the finality attached to such judgment or order cannot be disturbed. Further, the Hon’ble Supreme Court has held that the power of review can also be exercised by Court in the event of discovery of new and important matter or evidence, which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced, when the matter was heard and orders passed. Further, an application for review would also lie if the order has been passed on account of some mistake. The Review Court does not sit in appeal over its own order and rehearing of the matter has been held to be impermissible. In other words, it has been held that review is not an appeal in disguise. The Hon’ble Supreme Court in Thungabhadra Industries Limited Vs. Government of Andhra Pradesh, AIR 1964 SC 1372 stated that there was a real distinction between a mere erroneous decision and decision, which could be characterize as vitiated by error apparent and that a review was by no means an appeal in disguise. This legal position was also reiterated by the Hon’ble Supreme Court in the subsequent decision. The Hon’ble Supreme Court in Lily Thomas Vs. Union of India, AIR 2000 SC 1650 held that the power of review can be exercised for correction of a mistake and not to substitute a view. Further, the Hon’ble Supreme Court in S.Bagirathi Ammal Vs. Palani Roman Catholic Mission, 2007 5 CTC 881, after analyzing Order 47 Rule 1 CPC held that review is permissible under following circumstances:-
“5……. (a) from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the fact of the record or is a palpable wrong; (d) any other sufficient reason.”
Therefore, what is required to be seen in the present case is whether there is any error apparent in the order passed in the writ petitions calling for exercise of jurisdiction of review.
8. As observed earlier one of the ground raised in the writ petitions is regarding non-compliance of Rule 3B, which requires that the remarks of the requisitioning body be communicated to the land owner. This ground raised in the writ petition was specifically denied in the counter affidavit by stating that the remarks of the requisitioning body was communicated and acknowledged by the land owners. On hearing the rival submissions at the time of disposal of the writ petitions, this Court called for the entire records relating to the acquisition proceedings. The learned Judge in paragraph 2 of the order has specifically recorded the same. After perusal of the records, this Court has recorded a factual finding that the records revealed that the remarks as required under Rule 3B has not been furnished to the land owners and therefore, by applying that decision of this Court in the case of Balkis Banu, allowed the writ petitions. The contention of the learned Additional Advocate General is that in two other writ petitions, which were filed challenging the very same acquisition, this Court dismissed the writ petitions having been satisfied with the full compliance of the procedures and the order in the writ petitions was also confirmed in appeal.
9. It is to be noted that whether the remarks of the requisitioning body was served on the land owner concerned is a question of fact. The learned Judge while disposing of the present writ petitions recorded a specific finding that on perusal of the files, it revealed that the remarks of the requisitioning body were not communicated to the land owners Therefore, it could hardly be stated that this fact could not be brought for the consideration of the Court despite due diligence or an account of some mistake or that the error is apparent on the face of the record or for any other sufficient reason. As held by the Hon’ble Supreme Court, the error should appear on the face of the record, which would not required any long drawn process of reasoning on the points where there may be conceivable two opinions.
10. In my view, the error, which is pointed out by the petitioners herein is not an error which is apparent on the face of the record or apparent on the mere looking at the order. To appreciate the point raised by the Review petitioners, it is necessary that the matter has to be reheard and as held by the Hon’ble Supreme Court, the review is not an appeal in disguise.
11. In the light of the above factual position, the decisions relied on by the learned Additional Advocate General in the case of Food Corporation of India, State of West Bengal and Others and Oriental Insurance Company, referred above does not in any manner advance the case of the Review Applications as it is not a case where the additional evidence or material was not within the knowledge of the review petitioners and even after due diligence, the same could not be produced before the Court earlier. As already observed for considering the point raised by the Review Petitioners, the entire writ petitions has to be reheard, which is impermissible and beyond the scope of the review jurisdiction.
12. In the result, the Review Applications fail and are dismissed. No costs.
29.07.2010
Index : Yes/ No
Internet:Yes/No
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To
1.The Government of Tamilnadu
Rep. by its Secretary,
Industries Department,
Fort St. George Chennai 9.
3.The Revenue Divisional Officer,
Erode.
T.S.SIVAGNANAM, J.
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Pre-Delivery Order in
R.A.Nos. 58, 59 & 60 of 2000
29.07.2010