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Kamalamma and Others Vs. The State of Karnataka, Rep. By Its Secretary, Bangalore and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberReview Petition No. 1275 of 2014 in Writ Petition No. 1845 of 1990 (LA)
Judge
AppellantKamalamma and Others
RespondentThe State of Karnataka, Rep. By Its Secretary, Bangalore and Others
Excerpt:
.....clarification from the learned government advocate made the order of clarification. 3. the review petitioners who claim to be aggrieved by such clarification order made, though were not parties to the earlier proceedings are before this court since according to them, the clarification issued has affected their right. in that regard it is their contention that they have purchased the sites formed in sy.no.93 (old no. 26/4) of nagadevanahalli which was also a part of the notification and have also put up constructions. the said land was therefore not available for the benefit of the third respondent herein as the notification had been quashed in its entirety. hence, they seek that the clarification order be set aside and the position be restored. 4. though the instant petition is.....
Judgment:

(Prayer: This petition filed under Order 47 Rule 1 of CPC, praying to review the order dated:07/11/2014 passed on IA No. 1/2014 in W.P.No.1845/1990, on the file of the High Court of Karnataka, Bangalore.)

1. The petitioners are before this Court seeking review of the order dated 07.11.2014 passed by this Court on IA No. 01/2014 in the disposed of petition in W.P.No.1845/1990. By the said order this Court had clarified the order dated 18.01.2000 passed in W.P.No.1845/1990 limiting it to the extent of the challenge made to the notification in the writ petition.

2. The brief facts are, the lands included in the notifications dated 09.02.1988 and 15.03.1989 were proposed to be acquired for the benefit of the third respondent- Society. The land belonging to the fourth respondent herein bearing Sy.No.119 of Nagadevanahalli, Kengeri Hobli was one of the lands included in the notification. The fourth respondent claiming to be aggrieved had filed the petition in W.P.No.1845/1990. This Court by the order dated 18.01.2000 allowed the writ petition and quashed the impugned notifications. The position remained so for nearly a decade and half. At that stage, the fourth respondent herein filed an application dated 04.06.2014 under Section 152 of Civil Procedure Code seeking clarification that the order dated 18.01.2000 passed in the writ petition is applicable only to the extent of the challenge made in the writ petition in relation to Sy.No.119 measuring 01 acre 05 guntas of Nagadevanahalli. The fourth respondent herein, namely the writ petitioner therein though notified did not appear. As such this Court on securing clarification from the learned Government Advocate made the order of clarification.

3. The review petitioners who claim to be aggrieved by such clarification order made, though were not parties to the earlier proceedings are before this Court since according to them, the clarification issued has affected their right. In that regard it is their contention that they have purchased the sites formed in Sy.No.93 (Old No. 26/4) of Nagadevanahalli which was also a part of the notification and have also put up constructions. The said land was therefore not available for the benefit of the third respondent herein as the notification had been quashed in its entirety. Hence, they seek that the clarification order be set aside and the position be restored.

4. Though the instant petition is only a review petition, the papers are voluminous due to the intervening litigation interse between the parties. Hence I have elaborately heard Ms. Vidyulatha, learned counsel for the review petitioners, Sri. S.P.Shankar, learned senior counsel for the third respondent, Sri Laxminarayana, learned Government Advocate for the first and second respondents and perused the petition papers.

5. On the factual aspect relating to the notifications dated 09.02.1988 and 15.03.1989 being issued for acquisition, the lands bearing Sy. Nos.119 and 93 (Old No.26/14) as also certain other lands of Nagadevanahalli being notified and that the petitioner in W.P.No.1845/1990 being the owner of only Sy.No.119, there is no dispute. In that light, the learned senior counsel for the third respondent society has cited the decision of the Hon'ble Supreme Court in the case of Om Prakash -vs- Union of India and others (AIR 2010 SC 2430) to contend that it has been held therein that when a declaration under Section 6 of the Land Acquisition Act is quashed by any Court, it would only enure to the benefit of those who had approached the Court and will not extend the benefit to those who had not approached the Court or who might have gone into slumber. The learned counsel for the review petitioners would however refer to the decision of the Hon'ble Supreme Court in the case of H.M.T. House Building Co-Operative Society -vs- Syed Khader and others [(1995)2 SCC 677] referred in the order dated 18.01.2000 in the writ petition, to contend that it is held therein that if the scheme of development is not framed and is not approved by the Government, the notification itself will not be sustainable and as such the quashing of the notification in its entirety was in accordance with law. The decision in the case of Bangalore City Co-Operative Housing Society Limited -vs- State of Karnataka and others [(2012) 3 SCC 727] to the same effect is also relied upon. Further, the decision of the Hon'ble Supreme Court in the case of Vyalikaval House Building Co-Op. Society -vs- V.Chandrappa and others [ILR 2007 Kar 1810(SC)] is also relied to contend that once the notification goes, no benefit could be derived by the beneficiary.

6. Though having noticed the contentions in that regard and the position of law as enunciated in the decisions cited, I am of the considered opinion that a pronouncement on that aspect in a review petition of the present nature would neither be prudent nor appropriate. That is for the reason, the basic question herein is as to whether an application for clarification after nearly 15 years from the date of the order was justified and whether there is error in the manner of consideration made by this Court in the process. That apart, in addition to the lands to which reference is made hereinabove, other lands were also the part of the same notification and certain rights are likely to have arisen in respect of the said lands in the same manner as is being claimed by the review petitioners herein and orders if any passed in their absence will also not be justified. Therefore, those contentions are best left open to be urged in appropriate proceedings to be noted for the purpose of reckoning the order in the appropriate manner as the right acquired in respect of the lands in the meanwhile and the civil rights in that view will also arise for consideration in such proceedings. All rights acquired should not therefore be nullified in a proceedings of the present nature.

7. In that view, what requires consideration is as to whether this Court committed an error in entertaining the application under Section 152 of CPC at such belated stage and as to whether the order under review indicates any error apparent. The question is also as to whether even otherwise this Court committed an error in entertaining the application in the absence of the persons who would be affected ?

8. Though the above aspects arise for consideration, since the learned senior counsel for the third respondent has referred to the limited scope available to the Court in a review petition and since it is contended that interference is called for only if there is an error apparent on the face of the order, the learned counsel for the petitioner by pointing out that the instant review petition is filed by also invoking the power and discretion available to this Court under Article 226 of the Constitution has relied in that regard on the following decisions;

(i) The case of Shivdeo Singh and others -vs- State of Punjab and others (AIR 1963 SC 1909) wherein it is held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In that case the second petition entertained to review the order as the petitioners were not parties to the earlier petition, was upheld by the Hon'ble Supreme Court. .

(ii) The case of Ramachandra Ganpat Shinde and another -vs- State of Maharashtra and others (AIR 1994 SC 1673) wherein it is held that the faith of the people in the efficacy of judicial process would be disillusioned if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the Court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of fountain of justice. In the facts arising therein, it was held that the High Court alone had to correct the order by exercising its power under Article 226 of the Constitution to prevent such abuse of judicial process and should exercise its power of high responsibility to undo injustice done to the adversary by undoing the effect of the order.

(iii) The case of Food Corporation of India and another -vs- SEIL Ltd. and others (AIR 2008 SC 1101) wherein it is held that a writ Court exercises its power of review under Article 226 of the Constitution itself. While exercising such jurisdiction, it not only acts as a Court of law, but also as a Court of equity. A clear error or omission on the part of the Court to consider a justifiable claim on its part would be subject to review, amongst others on the principle of actus curiae neminem gravabit.

(iv) The case of Indian Bank -vs- M/s. Satyam Fibres (India) Pvt. Ltd. (AIR 1996 SC 2592) wherein it is held that the Courts have the inherent power to set aside an order obtained by fraud. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, a Court has the inherent power to recall its order.

(v) The case of Board of Control for Cricket in India and another -vs- Netaji Cricket Club and others [(2005) 4 SCC 741] wherein it is held that a mistake on the part of the Court which would include a mistake in the nature of undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason there for. What would constitute sufficient reason would depend on the circumstance and is wide enough to include a misconception of fact or law by a Court or even by an Advocate and actus curiae neminem gravabit should be invoked. Law has to bend before justice, as stated in an earlier case was noticed therein.

9. The learned senior counsel for the third respondent society however contended that none of the contentions urged by the review petitioners is required to be noticed by this Court since the petitioners are purchasers subsequent to the date of the acquisition notification dated 09.02.1988 and in that regard has referred to the date of the sale deeds under which the petitioners purchased the sites as at Annexures - B to G which are all subsequent thereto i.e. from the year 2004 onwards. The decision in the case of Rajasthan State Industrial Development and Investment Corporation -vs- Subash Sindhi Co- Operative Housing Society, Jaipur and others [(2013) 5 SCC 427] wherein it is held that the sale made after the notification issued under Section 4(1) of the Land Acquisition Act will be void and no right can be claimed is cited. However the said position, in my opinion will not be applicable to the present facts. That is for the reason that in the instant facts the acquisition notification though dated 09.02.1988, it was questioned and quashed on 18.01.2000. The review petitioners on considering it as the quashing of the entire notification have made the purchase as a land not being the subject matter of acquisition. Though on that aspect a decision may still be open in an appropriate proceedings as observed above, in any event it is not a case where the contentions of the review petitioners should be declined to be entertained on that ground in this petition.

10. If in that background the decisions cited by the learned counsel for the review petitioners as enlisted supra are taken into consideration, the decision relied on by the learned senior counsel for the third respondent society, in the case of Dr.Subramaniam Swamy -vs- State of Tamil Nadu and others [(2014) 5 SCC 75] relating to the principle of res judicata and that the power of review is to be exercised only when there is an error apparent will lose its relevance in the present context.

11. In the above backdrop, it is time to closely examine the order dated 07.11.2014, the review of which is sought herein, as at Annexure- A to the review petition. This Court should be candid enough to state that not only there is error in the manner in which it was considered but even in content of the order there is more than an error apparent. Firstly, though care was taken to serve the original writ petitioner on the application in IA No.01/2014, it should have been obvious that the original writ petitioner in any case will not be interested since in any event the order would not be disturbed in respect of the land owned by him. On the other hand the reason put forth in the application at paragraphs 5 and 6 was with reference to the other survey numbers which were part of the notification and an averment was made that certain persons claiming to be purchasers have secured revenue entries. Neither the details were disclosed nor was it insisted upon by this Court so as to notify such persons. The memo dated 18.01.2016 filed in this proceedings on 27.01.2016 by the third respondent society and the documents enclosed therein will disclose that though the third respondent was engaged in several litigations such as Appeal No.727/2004 dated 10.01.2014 before KAT and civil suits in O.S. No.4323/2010 and connected matter and the judgment was dated 30.09.2010, the details of all this was not disclosed before this Court, but made it appear as if an innocuous clarification was sought through the application.

12. Further, though this Court made some attempt to know the ground situation at that point through the learned Government Advocate, this Court failed to notice the clarification provided is not based on any subsequent document but was based on irrelevant documents which are dated prior to the date of the initial order in the writ petition, rather even prior to the date of the impugned notification itself. Above all, this Court should have been circumspect before acceding to such clarification being sought after nearly 15 years which is manifest of not only inordinate delay but laches where several developments have taken place and rights have accrued including constructions having been put up in the meanwhile. In such circumstance even the interpretation relating to the manner in which the order dated 18.01.2000 is to be understood was a matter which is to be taken note in such proceedings where the rival rights are claimed and such clarification as sought through the application at such belated stage was not justified.

13. For all the above stated reasons, the following

ORDER

i. The review petition in R.P.No.1275/2014 is allowed.

ii. The order dated 07.11.2014 passed on IA No.01/2014 in disposed of W.P.No.1845/1990 is reviewed and accordingly recalled.

iii. Consequently the IA No.01/2014 is rejected in terms of the observations made above, with no order as to costs.


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