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2020 Supreme(All) 1221
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Sudhir Agarwal, Virendra Kumar-II, JJ.
Ram Das - Appellants
Vs.
State of U.P.- Respondent
Review Application No. 96775 of 2019 in Misc. Bench No. 8650 of 2008
Decided On : 12-02-2020
For the Appellant : G.S. Verma and Dwijendra Nath Pandey
For the Respondents: C.S.C. and Amitabh Rai
Headnote:
Land Acquisition Act, 1894 - Urban Land Repeal Act, 1999 - Section 3 – Civil Procedure Code - Order 47 - Rule 1 - Constitution of India, 1950 - Article 226 - Physical possession of surplus land – Condo nation of delay – Acquisition of land - Petitioner filed aforesaid writ petition seeking a writ of mandamus commanding respondents not to interfere in peaceful possession of petitioner over land bearing measuring situate in village - Petitioner also sought a writ of mandamus commanding respondent-2 to delete the name of State Government from Revenue Record and substitute petitioner's name - Aforesaid land of petitioner was declared surplus under the provisions of U.P. Urban Land Act, 1976 but petitioner claimed that no actual physical possession of surplus land was taken and therefore entire proceedings stood abated under Section 3 of Urban Land Repeal Act, 1999 hence petitioner was entitled to continue with possession and respondents in making effort to dispossess petitioner are acting illegally and should be restrained from doing so - This Court while entertaining writ petition passed interim order pursuant where to petitioner has continued in possession of land in dispute – Held, Limitations on exercise of power of review are well settled - First and foremost requirement of entertaining a review petition is that order review of which is sought suffers from any error apparent on face of the order and permitting the order to stand will lead to failure of justice - In absence of any such error, finality attached to the judgment/order cannot be disturbed - Review is not an appeal in disguise - Rehearing of the matter is impermissible in the garb of review - It is an exception to the general rule that once a judgment is signed or pronounced, it should not be altered - Such powers can be exercised within limits of the statute dealing with the exercise of power - Aforesaid view is reiterated in Underhand - Review proceedings are not by way of an appeal and have to be strictly confined to scope and ambit of Order 47 Rule 1 of CPC - In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same - As long as point is already dealt with and answered parties are not entitled to challenge impugned judgment in guise that an alternative view is possible under review jurisdiction – Order accordingly
ORDER :
1. Heard Sri Amitabh Rai, learned Standing Counsel for Review-Applicants and Sri Dwijendra Nath Pandey, learned counsel for Respondent-Petitioner.
2. This is an application seeking review of the judgment dated 19.12.2017 passed in Writ Petition No. 8650(MB) of 2008 whereby writ petition was allowed.
3. Petitioner-Ram Das filed aforesaid writ petition seeking a writ of mandamus commanding respondents not to interfere in the peaceful possession of petitioner over land bearing Khasra No. 1714, measuring 0.449 hectare and Khasra No. 2557, measuring 0.2820 hectare, situate in village Haivatmau, Mavaiya, Lucknow. Petitioner also sought a writ of mandamus commanding respondent-2 to delete the name of State Government from Revenue Record and substitute petitioner's name.
4. Aforesaid land of petitioner was declared surplus under the provisions of U.P. Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "Act, 1976") but petitioner claimed that no actual physical possession of surplus land was taken and, therefore, entire proceedings stood abated under Section 3 of Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter referred to as "Act, 1999"), hence, petitioner was entitled to continue with possession and respondents in making effort to dispossess petitioner are acting illegally and should be restrained from doing so.
5. This Court while entertaining writ petition passed interim order dated 24.09.2008 pursuant whereto petitioner has continued in possession of land in dispute.
6. Writ petition was ultimately allowed vide judgment dated 19.12.2017. It appears that Review-Applicants filed Special Leave to Appeal before Supreme Court which was barred by limitation and it was dismissed on the ground of delay on 01.02.2019.
7. This Review Application has been filed stating that possession of land in question was taken by issue of notice under Sections 10(3) and 10(5) of Act, 1976, copies whereof have been filed collectively as Annexure-3 to Review Application and possession was handed over to U.P. Avas Evam Vikas Parishad (hereinafter referred to as "UPAEVP"), therefore judgment needs review.
8. We have gone through the alleged notice issued under Section 10(5) which requires owner of the land to hand over possession of surplus land, voluntarily. It also says that in case, voluntary possession is not given, proceedings under Section 10(6) for taking possession forcibly shall be initiated. This document nowhere shows that voluntary possession was actually handed over by owner to Prescribed Authority/Collector at any point of time. No document showing actual physical possession of land in dispute taken by State at any point of time has been placed either along with counter affidavit in writ petition or in Review Application. It is only the correspondence stating therein that possession was handed over to UPAEVP which is relied though no material has been shown as to how and when actual physical possession was taken by Competent Authority/Prescribed Authority under Act, 1976.
9. The submission that issue of notice under Section 10(5) means possession was taken is thoroughly misconceived. In the context of Land Acquisition Act, 1894 (hereinafter referred to as the "Act, 1894") the question as to when it can be said that actual possession of land has been taken by State has been considered by Courts time and again.
10. In the chain of precedents we first come to the Supreme Court's authority in Balwant Narayan Bhagde Vs. M.D. Bhagwat and others,: 1976 (1) SCC 700. It is a three Judges judgment. The majority view is the opinion expressed by Hon'ble Bhagwati, J for himself and Hon'ble Gupta, J. while contrary view was expressed by Hon'ble Untwalia, J. His Lordship Untwalia, J. observed that taking possession means taking of possession on the spot. It is neither a possession on paper nor symbolical possession. The Act is silent on the point as to what is the mode of taking possession. Unless possession is taken by w
