Revenue
Divisional Officer & Ors Vs. A. Aruna & Ors [1998] INSC 388 (5 August 1998)
S.B.
Majumudar, M. Jagannadha Rao S.B. Majmudar,J.
ACT:
HEAD NOTE:
THE
5TH DAY OF AUGUST, 1998 Present:
Hon'ble
Mr. Justice S.B.Majmudar Hon'ble Mr. Justice M.Jagannadha Rao A. Raghuvir, Sr.
Adv., C. Balasubramani, Ms. Santhi Narayanan, Asha G.Nair, K. Ram Kumar, Advs.
with him for the appellants. P.P.Rao, Sr. Adv., D.Ramakrishna Reddy, Mrs.D. Bharathi
Reddy, Advs. with him for the Respondents
The
following Judgment of the Court was delivered:
Leave
granted. We have heard learned counsel for the parties finally. This appeal
arises out of the decision rendered by a Division Bench of the High Court of
Andhra Pradesh upsetting the majority view arrived at by two members of the
Special Court functioning under the provisions of the A.P. Land Grabbing
(Prohibition) Act, 1982 (hereinafter referred to as 'the Act'). The appellants
are the authorities functioning under the said Act. They had moved the Special
court on the ground that the respondents were in illegal possession and were
land grabbers of a plot of land being plot no.9 situated at Jubilee Hills in Hyderabad city. That application was moved in
1991. The Full Bench of the Special Court consisting of the Chairman and the
two Members decided the said application after hearing the parties and after
considering the evidence led by them and came to the conclusion that though the
appellants had established their title to plot no.9 it was adversely possessed
by the respondents and, therefore, no relief could be granted to the appellants
in the said proceedings. That decision was rendered on 31st October 1995. An application for review under
Section 17A of the Act was moved by the appellants before the Special Court. In the said application two
grounds were sought to be relied upon –
(i) that
the Special court had relied upon Ex. B-12 which was not legally admissible on
the record of the case; and
(ii)
that the decision rendered by the Court suffered from an error of fact. The
said Review Petition was heard by the Full Bench of the Special Court. The learned Chairman who presided
over the Bench, took the view that there was no question of invoking the review
jurisdiction and, therefore, he was inclined to dismiss the said proceedings.
However the other two Members took a contrary view and held that the order
sought to be reviewed required re-consideration and, therefore, they were
inclined to re-hear the matter by granting the review application. Accordingly
by majority Review Petition was allowed. That resulted in a writ petition on
behalf of the respondents before the High Court.
The
Division Bench of the High Court by the impugned order dated 25th November 1996 held that the review jurisdiction
was wrongly sought to be invoked by the appellants and review proceedings were
not maintainable. It was held that the first ground, namely, Ex.B-12 was
inadmissible in evidence, could not be sustained for supporting the review
petition as it was admitted in the evidence earlier without any objection. On
the second ground it was held by the High court that the earlier judgment on
31st October 1995 was based on the relevant facts, both oral and documentary,
namely Ex.B-12 and B-13 and B-15 which were earlier judgements of the Special
Court wherein it was held that for plot no. 9 situated at Jubilee Hills the
State authorities had no title and the plot was a fully paid up plot belonging
to the erstwhile occupants and consequently the earlier proceedings filed under
the very same Act by the same appellants seeking eviction of alleged unauthorised
occupants of this very plot were dismissed. It is also pertained to note that
nothing was brought out on the record of these proceedings to show that the
earlier decisions of the very same Court at Ex.B-13 and B-15 which were relied
upon by it while passing the order dated 31st October 1995, were ever carried
higher up or were sub judice before any other higher authority. In fact such
was not even the ground on which review was sought by the appellants. The High
Court, therefore, took the view that when the earlier decision was rendered on
consideration of all relevant facts and on appreciation of evidence, both oral
and documentary, it could not be said that the said decision suffered from any
patent error of fact which could have enabled the appellants to seek review of
the said order under Section 17A of the Act. Consequently the writ petition was
allowed and the majority decision of the Special Court seeking to review its
earlier order was set aside.
Learned
senior counsel Shri A. Raghuvir for the appellants fairly stated that he was
pressing the case for review of the earlier order of the Special Court not on
the ground that Ex.B-12 was wrongly held admissible in evidence but the
strongly relied upon second ground for review, namely, that the earlier
decision suffered from a clear error of fact which in his view was a glaring
one and could be said to be an apparent or a patent error. He submitted that
Ex.B-12 which was earlier relied upon by the Special Court in coming to the
conclusion that it had referenced to plot no.9. in fact did not refer to plot
no.9 at all which was the disputed plot but it was concerned with plot no.10
which was an adjoining plot. That is one patent error of fact which h ad crept
in the earlier decision of the Special Court dated 31st October 1995. It was
next contended by the learned senior counsel for the appellants that even that
apart, the decision sought to be got reviewed relied upon two earlier judgments
of the Special Court Ex.B-13 and B-15, which might have referred to plot no.9
but those decisions had held that plot no.9 did not belong to the Government
but was a fully paid up plot which had passed on to the then occupant of the
plot and id not remain in the ownership of the erstwhile municipality and
consequently could not have been available to the State to claim its title
thereon through the said erstwhile defunct municipality. Therefore, the finding
reached by the Special Court in the present case on 31st October 1995 when it
decided that the said plot belonged to the Government could not have been based
on the earlier judgments Ex.B-13 and B-15 which clearly held to the contrary.
This was another patent error of fact. It was next submitted that the High
Court wrongly assumed that the Special Court while passing the impugned
judgment seeking to review the earlier decision had already set it aside on
merits and that while granting the review petition the entire matter was
finally disposed of by the Court. On all these grounds it was vehemently
contended that the review proceedings which were at the stage of hearing before
the Special Court could not have been intercepted by the High Court, in
exercising powers under Articles 226 and 227 of the Constitution of India.
On the
other hand learned senior counsel Shri P.P. Rao for the respondents submitted
that review jurisdiction is by no means an appellate jurisdiction. That
jurisprudentially speaking, a review lies to the same authority only on patent
errors of law and if the power of review can also take in its fold errors of
fact the errors of fact must be such that they would go to the root of the
matter, otherwise the reviewing authority would almost be able to exercise full
appellate powers which would be completely contrary to the well settled
connotation of review jurisdiction. It was also submitted that the High Court
was justified in taking the view that earlier decision was rendered on
appreciation of evidence on record then led by both the parties and even if
there was any error in coming to any final conclusion it could be corrected
only by an appellate or higher authority in the hierarchy of proceedings and
could not be corrected by the same authority by invoking the review
jurisdiction.
That
mere error of appreciation of evidence cannot be equated with a patent error of
fact even on the ground that under Section 17A of the Act on an error of fact
review powers could be invoked. It was, therefore, contended that the impugned
order of the High Court suffers from no error and calls for no interference
under Article 136 of the Constitution of India.
Having
given our anxious and careful consideration to these rival contentions we have
come to the conclusion that on the peculiar facts of this case it could not be
said that the High Court had committed any error in interfering with the order
of the majority of the Members of the Special Court and in quashing the review
proceedings.
In
order to resolve the controversy between the parties, it will be necessary to
have a look at the review jurisdiction conferred on the Special Court under
Section 17A of the Act. It reads as under:
"17A.
Review - The Special Court may in order to prevent the miscarriage of justice
review its judgment or order passed under Section 8 but no such review shall be
entertained except on the ground that it was passed under a mistake of fact,
ignorance of any material fact or an error apparent on the face of the record;
Provided
that it shall be lawful for the Special Court to admit or reject review
petitions in circulation without hearing the petitioner;
Provided
further that the Special Court shall not allow any review petitions and set
aside its previous order or judgment hearing the parties affected." A mere
look at the said provision shows that review jurisdiction can be invoked by the
Special Court mainly with a view to prevent miscarriage of justice.
Consequently the order sought to be reviewed must appear to have resulted into
miscarriage of justice and not merely might have occasioned dissatisfaction to the
party that loses before the Special court in the first instance. But even apart
from that, as Section 17A clearly lays down, review shall be entertained only
on the grounds mentioned therein, meaning thereby it is not a full-fledged
power of re-consideration of the entire case as if it was a second innings on
facts and law permitted by the Legislature to the Special court once it decided
a lis between the parties earlier. The grounds of review are limited as
mentioned in the said Section. It is, of course, true that these grounds are
wider than the grounds on which review is allowed under Order XLVII Rule 1,
CPC, because even on the mistake of fact or even on ignorance of material fact
a review is permitted. It is also true that error apparent on the face of the
record is a separate ground for reviewing the order of special Court as laid
down under Section 17A of the Act. However, it cannot be gainsaid that there is
a clear distinction between review power and appellate power. A review can
never be said be an appeal in disguise. Therefore, in order to effectively
invoke the jurisdiction of Special Court in proceedings it has to be shown that
the mistake of fact which is alleged by the review petitioner should be such
that it gets directly embedded in the final order, in the sense it goes to the
root of the matter. The Phrases, 'judgment or order passed on a mistake of
fact' shows that the mistake of fact must be so patent that it directly results
in an erroneous order sought to be reviewed. In other words, the mistake of
fact must have a direct nexus with the ultimate order which but for such a
patent mistake would not have been so rendered.
It has
to be shown that but for such a mistake of fact a contrary result might have
followed. It is, therefore, obvious that before a review petitioner can invoke
section 17A of the Act it should be shown that the mistake of fact is a patent
mistake and not a latent one. Mere mistakes in appreciation of evidence or in
any inferences drawn from facts could be corrected only in proceedings before a
higher forum and not in review proceedings. It is, therefore, not possible to
agree with the learned senior counsel for the appellants that once a mistake of
fact is pointed out and once it is shown that the inference of fact is drawn
which is conjectural, that by itself would be a ground for review under Section
17A of the Act. Shri Raghuvir, learned senior counsel for the appellants
submitted that in the earlier judgment it was observed by the Chairman speaking
for the Special Court that because plot no.9 was
adjoining plot no.10, the owner of plot no.10 might have encroached upon the
adjoining plot no. 9 and even his vendee also would have accordingly trespassed
on this land. This was purely a conjecture. It must be kept in view that as a
court of first instance even if inference is drawn from available data of facts
and if that inference is found fault with unless that inference is of such a
nature that but for that inference the ultimate result would have been
difference it would not amount to any glaring mistake of fact on which such
judgment can be sought to be reviewed under Section 17A of the Act.
In our
view, the High Court was right when it held that on the facts of the present
case the earlier decision of 31st October 1995 was arrived at by the Court on
appreciation of oral and documentary evidence and the conclusion was reached on
facts that the respondents were in adverse possession of plot no.9 even though
the title of the appellants was held proved. As this finding was reached on
appreciation of number of documents on record and also on consideration of oral
evidence it could not be said that there was any such mistake of fact which was
so patent that but for such mistake the final conclusion about adverse
possession of respondents would have been different. Under these circumstances,
therefore, we cannot find fault with the High Court when it took the view that
the majority of the Members were not justified in re-opening the earlier
decision of the Special
Court.
We
may, however, mention that learned senior counsel for the appellants, Shri Raghuvir
was right when he contended that the High Court wrongly assumed that the Special Court had not only re-opened the earlier
matter but had already decided it in review proceedings. Even if the learned
senior counsel is right to that extent the ultimate decision rendered by the
High Court on the facts of the present case cannot be said to be in any way
erroneous.
We
make it clear that as learned senior counsel Shri Raghuvir had not pressed
review proceeding on the ground that there was a patent error also in
connection with the admissibility of Ex.B-12 we are not expressing any opinion
on this question.
In the
result, this appeal fails and is dismissed. In the facts and circumstances of
the case there will be no order as to costs.
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