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U.P.STATE SUGAR CORP.LTD.THRU ITS G.M. versus SPL.JUDGE(E.C.ACT)/A.D.J.,BIJNOR & OTHERS

High Court of Judicature at Allahabad

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U.P.State Sugar Corp.Ltd.Thru Its G.M. v. Spl.Judge(E.C.Act)/A.D.J.,Bijnor & Others - WRIT - C No. 39057 of 1999 [2004] RD-AH 1233 (27 October 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved/AFR

Civil Misc. Review Application No. 115610 of 2002.

U.P. State Sugar Corporation Ltd. Unit Bijnor

District Bijnor through its General Manager...............Applicant/Petitioner

Versus

Special Judge (E.C. Act)/Additional District

Judge, Bijnor and others....................................... Respondents.

IN

Civil Misc. Writ Petition No. 39057 of 1999

U.P. State Sugar Corporation Ltd. Unit Bijnor

District Bijnor through its General Manager...............Petitioner

Versus

Special Judge (E.C. Act)/Additional District

Judge, Bijnor and others....................................... Respondents.

Along with:

Civil Misc. Review Application No. 115603 of 2002.

U.P. State Sugar Corporation Ltd. Unit Bijnor

District Bijnor through its General Manager...............Applicant/Petitioner

Versus

Special Judge (E.C. Act)/Additional District

Judge, Bijnor and others....................................... Respondents.

IN

Civil Misc. Writ Petition No. 39060 of 1999

U.P. State Sugar Corporation Ltd. Unit Bijnor

District Bijnor through its General Manager...............Petitioner

Versus

Special Judge (E.C. Act)/Additional District

Judge, Bijnor and others....................................... Respondents.

----------

Hon'ble R.B. Misra, J.

In both the above cases, heard Sri R.D. Khare, learned Counsel for the petitioners, Sri Deoraj, learned Counsel for the private respondent no. 5 (Vikram Singh and Raj Pal) and learned Standing Counsel for the State respondents, on the Review Application No. 115610 of 2002 intending to review the order dated 17.05.2002 passed in Writ Petition No. 39057 of 1999 as well as on the Review Application No. 115603 of 2002 intending to recall the order dated 17.05.2002 passed in Writ Petition No. 39060 of 1999.

(1) The above review applications have been filed on the ground that the petitioner could not present at the time of hearing for the reasons disclosed in the review application, therefore, the order dated 17.05.2002 should be recalled, however, the grounds taken in the review applications have been seen and it is better to deal and decide the review applications in reference to the written arguments filed by both the sides.

(2) In both the above writ petitions, review applications intending to review the order dated 17.05.2002 could be dealt with in the light of the provisions given under Order 47 Rule 1 C.P.C. read with Chapter-V Rule 12 of the Allahabad High Court Rules, 1952.

Order XLVII of C.P.C. dealing with the review provides as below :

"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 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 applies 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 Chapter-V-Rule 12 of the Allahabad High Court Rules, 1952 provides as below :

"12. Application for review. -An application for the review of a judgement shall be presented to the Registrar, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered along with an office report as to limitation and sufficiency of court-fees. If such Judge or Judges or any one or more of such Judges be no longer attached to the court, the application shall be laid before the Chief Justice who shall, having regard to the provisions of Rule 5 of Order XLVII of the Code, nominate a Bench for the hearing of such applications :

(Provided that an application for the review of a judgment of one Judge who is precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a single Judge, and that an application for the review of a judgment of two or more Judges, any one or more of whom is or are precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a Bench consisting of the same or a greater number of Judges.)

(Explanation.- For the purposes of this rule the expression 'no longer attached to the Court' shall be deemed to include absence from the permanent place of sitting on account of the directions given under rule 17 of this Chapter, illness or any other cause.)"

(3) In the order dated 17.05.2002 in its paragraph Nos.-3, 4 and 5 this Court has already noted, as under:-

"(3) The brief facts necessary for adjudication of the case are that the petitioner is a unit of U.P. State Sugar Corporation Ltd. engaged in the manufacture of white crystal sugar by vacuum pan process. The State of U.P. had acquired the land which included the land of respondent no.5 for modernization and expansion of the petitioner unit and in reference to acquisition award No. 16 dated 23.11.87 was passed by the respondent No.2 (Special Land Acquisition Officer, Bijnor district Bijnor). The respondent No. 5 (Raj Pal Singh) filed an application under Section 18 of the Land Acquisition Act for enhancement of the compensation awarded by respondent No. 2 and in these proceedings, the petitioner was not made a party and an application under Section 18 of the Land Acquisition Act was moved before Special Judge (EC Act/ Additional District Judge, Bijnor). The respondent No. 5 initiated execution case No. 6 of 1993 before the Respondent No. 1 for execution of the decree dated 29.9.93 (Annexure 3) in pursuance of the judgment of same date. The respondent No. 1 started to recovery proceeding against the petitioner, therefore, the petitioner was constrained to file an objection on 26.9.98 under Section 47 CPC categorically stating therein that the petitioner was not made a party either in the award reference case No. 88 of 1988 as well as in execution case No. 6 of 93, therefore, the decree cannot be executed against the petitioner. The respondent No. 1 on 21.7.99 (Annexure-4) passed the impugned order whereby the Special Land Acquisition Officer, Bijnor was directed to recover the amount under the decree also. It appears that U.P. State Sugar Corporation Ltd. has been declared sick by the Board of Industrial and Financial Reconstruction (BIFR) by order dated 21.08.1995 (Annexure-6) now the order dated 21.7.1999 (Annexure-4) has been challenged in the present case. In order dated 21.7.1999 the Special Judge (EC Act)/ Additional District Judge noted that in the order dated 21.7.1999, despite the decree passed on 29.9.93, the amount of award has not been paid to the concerned authority whereas agriculture land has been acquired on the expenses of petitioner. It has also noted that only State Government has been made a party. Therefore, the decree is to be executed against the State Government. In the light of the above observations the Special Judge (EC Act)/ Additional District Judge in its order datd 21.7.1999 has directed that the Special Land Acquisition Officer, Bijnor to proceed for realization of amount of compensation from U.P. State Sugar Corporation Ltd. and to deposit the same on 1.9.1999 to the Court and for realization of such compensation amount the recovery was also directed to be issued against the U.P. State Sugar Corporation Ltd., Bijnor in accordance with law.

(4) A counter affidavit has been filed by respondent No. 5. According to para 5 of the counter affidavit, it also appears that the award was made in favour of the contesting respondent dated 29.9.1993 and an execution application on behalf of the contesting respondent was filed which was registered as execution case No. 6 of 1993 and in the said execution application dated 4.4.1997 was moved on behalf of the petitioner requesting therein that 33% of the money of the enhanced compensation be accepted and the proceedings of execution be stayed. In para 6 of the counter affidavit, it has been mentioned that Sri Harpal Singh, Advocate, who is District Government Counsel (Civil) is also representing the State Sugar Corporation Unit, Bijnor and an application D-35 was also moved on behalf of the petitioner which was decided by the executing Court by his order dated 16.5.1998 (Annexure CA-3). In para-7 of the counter affidavit it has been asserted by respondent No.5 that the petitioner was having the knowledge of the award made by learned Additional District Judge, Bijnor and he failed to file an appeal under Section 54of the Land Acquisition Act and by moving the application dated 4.4.1997, the petitioner has submitted to the award. Therefore, according to respondent No. 5 petitioner cannot claim that he was not pleaded as party.

(5). Supplementary counter affidavit was filed by respondent no. 5 and para -2 of same indicates that petitioner was represented by Sri O.P. Goel, Advocate, who had filed vakalatnama duly signed by General Manager, U.P. State Sugar Corporation Unit, Bijnor and also moved adjournment application; A true copy of the vakalatnama is enclosed as SA-1 to the supplementary counter affidavit. In para-3 of supplementary counter affidavit it also appears that the petitioner participated in the reference therefore has got no right to file the present writ petition on the plea that the notice was not issued to them in spite of the fact the several applications were moved for seeking time to deposit the amount of award."  

(4) According to the learned Counsel for the Corporation Sri R.D. Khare, the land in question was acquired by the State Government of Uttar Pradesh for private respondents for the purposes of modernization and expansion of Bijnor unit of the Corporation and award was passed on 23.11.1987 by the Special Land Acquisition Officer, Bijnor, where only State of U.P. was a party and the Corporation was not made party. The private respondent filed an application under Section 18 of the Land Acquisition Act for enhancement of compensation individually, in reference thereto also the corporation was not made a party, however, reference was allowed by the Special Judge (E.C. Act)/ Additional District Judge, Bijnor by its order dated 29.09.1993. The above order was also indicated against the State of U.P. and not against the Corporation and on the instance of the private respondent the execution proceedings i.e. Case No. 6 of 1993 for executing decree was initiated only against the State of U.P. and not against the Corporation. In these circumstances, direction of Special Judge (E.C. Act)/ Additional District Judge, Bijnor dated 21.07.1999 directing for recovery of the amount involved in the decree against the Corporation was not legally justifiable.

(5) To strengthen his argument Sri R.D. Khare, learned Counsel for the petitioner, has placed reliance on A.I.R. 1990 SC 1321 (Neelagangabai and another Vs. State of Karnataka and others), where the Supreme Court has held that failure to issue notice to Corporation, in whose favour acquisition was being made, is bad and further directed to reopen the proceedings and decide afresh by providing a chance to the corporation to lead the evidence on the question of valuation.

(6) Learned Counsel for the petitioner has also placed reliance on 1998 (2) LACC 113 (Phusan Devi Vs. State of Haryana), where the Punjab and Haryana High Court has observed that the beneficiary, for whom the land was acquired, has valid and justifiable cause to be impleaded as party and, as such, Haryana Dairy Development Corporation, the beneficiary, was to be impleaded as party.

(7) In 2001 (2) LACC 251 (Dayal Singh College Trust Society Vs. The Land Acquisition Collector, Amritsar), the Punjab and Haryana High Court has held that beneficiary of the land acquired was not made a party to the proceedings, therefore, the matter was remanded to implead the beneficiary as necessary party and to afford him opportunity to lead evidence.

(8) In view of the above submissions, learned Counsel for the petitioner has submitted that in whose favour the land was acquired being beneficiary was necessarily to be made party and is not expected to be precluded from leading its evidence and to own the liability of the proceedings, where the corporation was not a party.

(9) According to Sri Deoraj, learned Counsel for the private respondents, all these aspects and materials were earlier before this Court while adjudicating the above two writ petitions and no new material has been brought by the learned Counsel for the petitioner, whereby the order dated 17.05.2002 could be reviewed.

(10) According to learned Counsel for the respondents, it is not necessary that all new facts support the petitioner's case rather it go against the petitioner, where it became evident that the petitioner has not come to this Court with clean hands and in all circumstances the petitioner was aware of the acquisition proceedings and through the agents, legal representatives, and learned Advocate engaged by the Corporation. The case was not only contested, but even the first appeals, namely, 293 of 1994 and 294 of 1994, were preferred before this Court. According to the respondents, Section 20 of the Land Acquisition Act  provides as below:-

"Service of Notice:- The Court shall thereupon cause a notice, specifying the day on which the Court will proceed to determine the objection, the directing their appearance before the Court on that day, to be served on the following persons, namely:-

(a) the applicant;

(b) all persons interested in the objection, except such (if any), of them as have consented without protest to receive payment of the compensation awarded; and

(c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector."

According to the respondents, in view of Section 20 of the Land Acquisition Act, notice is necessary to the petitioner, but conduct of the writ petitioner/corporation was not fair while preferring writ petitions by concealing the fact that first appeals were filed on behalf of Corporation under Section 54 of the Act read with Section 96 of C.P.C. before this Court, even beyond time with an application for condonation of delay and the respondents were not even aware of filing of these first appeal Nos. 293 of 1994 and 294 of 1994 prior to 10.04.2003 till the listing of these two first appeals. From the memo and ground of above two first appeals it becomes apparent that the Corporation/ petitioner has no scope to take any plea that they had no notice as required under Section 20 of the Land Acquisition Act. In both the land acquisition references, namely, 88 of 1998 filed by Ram Pal Singh and 89 of 1998 filed by Vikram Singh, though the Corporation was not impleaded as party, but notices were issued and the petitioner's unit of Corporation engaged Sri O.P. Goyal as its Counsel, who also sought adjournment in both the references and these aspects have already been noted in paragraph-5 of the judgment dated 17.05.2002 of this Court.

(11) For the sake of argument if it is presumed that no notice was issued to the petitioner, however, the petitioner was aware of proceedings of both the references and, as such, the provisions contained under Order 5 Rule 12 C.P.C. bars on corporation being a party that no notice was necessary to be issued. The Corporation has appeared as defendant and has engaged counsel in both the above references. According to the respondents, in A.I.R. 1997 NOC 251 (All.) (Har Pd. Singh and others Vs. Ram Swarup and others) this Court has indicated that impleadment of all defendants is not mandatory though desirable in reference to Order 9 Rule 9 and Order 1 Rule 10 of Code of Civil Procedure.        

(12) According to the respondents, in view of the judgment of the Supreme Court in A.I.R. 1991 SC 695 (State of Gujarat and another Vs. Kasturchand Chhotalal Shah), where the binding effect of the decision was said not to be ignored merely because there was some procedural irregularity like non issuing of notice to the State Governments, where concerned State Governments were parties and were duly represented before the Court, the notice was not necessary to be issued to the petitioner when he was fully aware about the proceedings and put in appearance.

(13) In respect of review it is relevant to mention that In AIR 1980 Supreme Court 674(M/s Northern India Caterers (India) Ltd., Vs. Lt. Governor of Delhi), it was held by the Supreme Court that the review is not for the purpose of a re-hearing or for making a fresh decision. The normal principle is that the judgment pronounced by the Court is final. The Supreme Court has observed in para-8 which reads as below :

"8. It is well settled that a party is not entitled to seek a review of a judgement delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh Vs. State of Rajasthan, (1965) 1 SCR 933 at page 948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will revise its judgment, G.L. Gupta, Vs. D.N. Mehta, (1971) 3 SCR 748 at page 760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N. Mohindroo Vs. Dist. Judge, Delhi, (1971) 2 SCR 11 at page 27. Power to review its judgements has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record.(Order XL, R. 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'. Chandra Kanta Vs. Sheikh Habib, (1975) 3 SCR 933."

(14) In (1975) 3 SCR 933 (Chandra Kanta Vs. Sheikh Habib), the Supreme Court has held that the review cannot be equated with the original hearing of the case, and it could be exercised only where a glaring omission or patent mistake has occurred in the order.

(15) In (1995) 1 S.C.C. 170 (Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhury (Smt)), it was held that the review is to be made when there is error apparent on the face of the record.

In this case, the Supreme Court has observed in para-8 which reads below :

"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma (1979) 4 SCC 389: AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) :

"It is true as observed by this Court in Shivdeo Singh Vs. State of Punjab 2 AIR 1963 SC 1909, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was 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; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court."

The Supreme Court has observed in the case of Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tirumale 3 AIR 1960 SC 137: (1960) 1 SCR 890, wherein K.C. Das Gupta, J., speaking for the Supreme Court has made the following observations in connection with an error apparent on the face of the record :

An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.

Relying on the above judgements the Supreme Court in (1995) 1 SCC 170 Meera Bhanja (Smt) Vs. Nirmala Kumari Choudhury (Smt) has held as below :

"The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. The review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers of court under Order 47 Rule 1, CPC is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226."

(16) In (1997) 8 S.C.C. 715 (Parsion Devi and others Vs. Sumitri Devi and others), the Supreme Court has indicated that the error which is self-evident and not to be detected by process of reasoning can hardly be a matter of review.  

In this case, the Supreme Court has observed in para-7 which reads as below :

"review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. Vs. Govt. of Andhra Pradesh AIR 1964 SC 1372 : (1964) 5 SCR 174 (SCR at page 186) the Supreme Court opined :

"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error".

The Supreme Court in (1997) 8 S.C.C. 715 (Parsion Devi and others Vs. Sumitri Devi and others), has held :

"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". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

(17) In AIR 2000 Supreme Court 1650( Lily Thomas Vs. Union of India and others), the Supreme Court has held that mistake apparent on the face of the record cannot mean error which has to be fished out and searched. The words "any other sufficient reason" has been elaborated and it means that "a reason sufficient on grounds at least analogous to those specified in the rule" and it was observed in para 52, para 55 and para 57 which reads as below :

"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 Vs. Pradyumansinghji Argunsinghji, 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 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 Vs. 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 or process or miscarriage of justice. In Prithwi Chand Lal Choudhury Vs. 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 Vs. 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 misprision in embodying the judgments, by errors have been introduced, these 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 judgements; 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 prevailing 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 Article 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 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 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.

55. It follows, therefore, that the power of review can be exercised for correction of a mistake and 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 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 Art. 136 or Art. 32 of the Constitution and upon satisfaction that the earlier judgements 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.

57. Otherwise also no ground as envisaged under Order 40 of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal's case (1995 AIR SCW 2326 : AIR 1995 SC 1531 : 1995 Cri.LJ 2926). It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgement. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any other sufficient reason appearing in Order 47, Rule 1, C.P.C." must mean "a reason sufficient on grounds at least analogous to those specified in the rule,"as was held in Chhajju Ram Vs. Neki Ram, AIR 1922 PC 112 and approved by this Court inMoran Mar Bassellos Catholics Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa Vs. Nagappa, AIR 1954 SC 440 this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath Vs. Ahmad Ishaque, AIR 1955 SC 233 it was held (para 23) :

". . . . . . . . . .It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record ? Learned counsel on either side were unable to suggest any clear cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in 'Batuk K. Vyas Vs. Surat Borough Municipality,' AIR 1953 Bom 133 ( R), that no error could be said to be apparent on the face of the record. It it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one-Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Art. 137 read with Order 40 of the Supreme Court Rules and Order 47, Rule 1 of the C.P.C. for reviewing the judgment in Sarla Mudgal's case (1995 AIR SCW 2326). The petition is misconceived and bereft of any substance.

(18) I have heard learned Counsels for the parties. After going through the records it reveals that all the materials were already discussed in the order dated 17.05.2002, as these were part of the main record, however, filing of first appeals by the petitioner itself goes against the petitioner and it becomes evident that the petitioner was all along aware of the proceedings and has participated in the references and has filed the appeals before this Court and for and on his behalf the State Government the case was already contested before the Special Judge by engaging learned Counsel Sri O.P. Goyal. In view of the above observations, no material or point could be raised, which was left out for consideration while adjudicating the main writ petition. In these circumstances, the review applications are rejected.

Dated: 27.10.2004

SKT/-  


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