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GAUHATI HIGH COURT
P.K. Musahary, J.
Smt. Maya Dolo —Petitioner
versus
Vijoy Tachang and Ors. —Respondents
Review Petition No. 29 of 2010
Decided on 21.4.2011
For the Petitioners:N. Saikia, N.J. Dutta and Mrs. W. Sultana, Advocates.
For the Respondents:Smt. M. Bora, GA, A. Kashyap and S.K. Deori, Advocates.
IMPORTANT POINT
Scope of review is only for correction of mistake and not to substitute views taken by Court and mistake must be one, which is apparent on face of record.
Headnote:Civil Procedure Code, 1908— Order XLVII, Rule 1— Section 114—Review of judgment—No pleading to effect that there was discovery of new and important matter or evidence or some mistake or error apparent on face of record—Plea that matter involved customary law of local tribe not pointed to Court—Plea of applicability of customary law never taken before—Rehearing of entire matter in garb of review not permissible—A review of an earlier order not permissible unless Court is satisfied that material error, manifest on face of order, undermines its soundness or results in miscarriage of Justice-No good grounds for review of judgment—Petition dismissed. (Paras 5, 8, 9 and 10)
Result: Petition dismissed.
P.K. Musahary J.—Heard Mr. N.N. Saikia, learned Senior Counsel assisted by Mr. N.J. Dutta, learned Counsel for the review petitioner. Mrs. M. Bora, learned Govt. Advocate for respondent Nos. 5 to 12 and Mr. A. Kashyap, learned Counsel appearing for respondent Nos.1 to 4.
2. This application has been filed seeking review of the judgment and order dated 7.4.2010 passed by this Court in WP (C) No.20 (AP) 2009 by which the aforesaid writ petition was allowed and the respondent Deputy Commissioner. East Kameng District was directed to cancel the land possession certificates issued to the respondent No.7, the present review petitioner within 30 days from the date of receipt of the judgment and order presently sought to be reviewed. The writ petition was contested by the respondent No.7/Review petitioner by filing affidavit-in-opposition and the judgment and order was passed after hearing the parties concerned. The review has been sought for on the following ground:
(1) The review petitioner realized that certain vital issues were not pointed out by the learned Counsel during the course of hearing. There was an omission on the part of the review petitioner to point out that in terms of the Rule 7 of Chapter-IV of the Gauhati High Court Rules; all matters pertaining to Customary Laws are to be heard ordinarily by a Division Bench. The review petitioner as well as the Respondents/Writ petitioners belong to Nishi Tribe, which is a notified Scheduled Tribe in the State of Arunachal Pradesh and the land in question is a private land inherited by the review petitioner and the question of inheritance of private land is governed by the Customary law of the Nishi Tribe.
(2) The writ petition was filed initially by 5 (five) writ petitioners and one of them, who was shown as Petitioner No.1, withdrew from the said writ proceeding and his name was deleted. Pursuant to the withdrawal and deletion of the name of petitioner No. 1, no further affidavit supporting the said writ proceeding was sworn by any of the remaining other petitioners. Under such circumstances, the aforesaid WP (C) No. 20 (AP) 2009 was heard and disposed of vide judgment and order under review without having affirmed by an affidavit, which is in contravention of the Code of Civil Procedure as well as Rule7, Chapter-IV of the Gauhati High Court Rules.
(3) While allowing the writ petition and cancelling the land possession certificates granted by the Respondent-Deputy Commissioner in favour of the review petitioner, completely ignored the field verification report passed by the Circle Officer concerned and no reason has been recorded for not taking into consideration the Circle Officer’s report although a Co-ordinate Bench relied on the said report at the time of passing the interim orders.
(4) The writ petitioners earlier field WP (C) No.496 (AP) 2008 for the same cause of action: which was dismissed and as such, filing of another WP (C) No.20 (AP) 2009 was barred under the principle of constructive res judicata and as such, the aforesaid WP (C) No.20 (AP) 2009, which was filed subsequently, ought not to have been allowed.
(5) The earlier writ petition being WP (C) No.496 (AP) 2008 was filed with a specific prayer for stoppage of construction of tourist lodge on the land donated by the review petitioner whereas in the writ petition namely WP (C) No.20 (AP) 2009, the prayer was for quashing the land possession certificates issued in favour of the re-view petitioner. There was no prayer for stoppage for construction of tourist lodge in the subsequent WP (C) No.20 (AP) 2009 but while passing the judgment and order dated 7.4.2010, direction was issued for cancellation of the land possession certificates amounting to stoppage of construction and/or usage of the tourist lodge, which is beyond relief sought for in the writ petition.
(6) The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter called in short, “Fore
