IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 978 of 2001 with LETTERS PATENT APPEAL NOS.989 to 1007 of 2001, 456/03, 600/03, 108/01, 979/01, 980/01, 981/01, 982/01, 984/01 to 988 of 2001 with CIVIL APPLICATIONS No. 12358/01, 12355/01, 9841/00, 12362/01, 9855/00, 9842/00, 12356/01, 9847/00, 12326/01, 12324/01, 9834/00, 9852/00, 12331/01, 9833/00, 12325/01, 9836/00, 12349/01, 12328/01, 9830/00, 12330/01, 9856/00, 9857/00, 12319/01, 9854/00, 12346/01, 9835/00, 12318/01, 9848/00, 12368/01, 9844/00, 12345/01, 9843/00, 12393/01, 9846/00, 12320/01, 9840/00, 12327/01, 12338/01, 9850/00, 12363/01, 12360/01, 9838/00, 12367/01, 9845/00, 9837/00, 12350/01, 9853/00, 12322/01, 1202/02. For Approval and Signature: HON'BLE MR.JUSTICE B.J.SHETHNA sd/- and HON'BLE MR.JUSTICE M.C.PATEL sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus SANKALCHAND P VACHHETA SINCE DECEASED THROUGH HIS HEIRS. -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 978 of 2001 & allied matters MR SN SHELAT, ADVOCATE GENERAL WITH MR.PR ABICHANDANI, AGP, for Appellant No. MR SB VAKIL for MR DC DAVE for Respondent No. 1 SERVED BY AFFIX.-(R) for Respondent No. 1/1-1/5 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE B.J.SHETHNA and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 29/07/2004 C.A.V. COMMON JUDGEMENT (Per : HON'BLE MR.JUSTICE B.J.SHETHNA) 1. All these matters are disposed of by this common Judgment and order, as common point is involved in all these matters. All these Appeals are arising out of the Judgments and orders passed by K.R.Vyas, J. in Special Civil Applications and Miscellaneous Civil Applications, filed in Special Civil Applications. 2. Learned Advocate General Shri Shelat appearing with learned A.G.P. Shri PR Abichandani for the Appellants submitted that the Appellant - State of Gujarat and Competent Authority and the Deputy Collector (ULC) were required to file all these Appeals against the orders passed by the learned Single Judge in writ petitions whereby the learned Single Judge of this Court disposed of all the writ petitions on the point of possession. He submitted that due to the connivance of the officials of the Government and the AGPs, who appeared in the writ petitions, with the original petitioners the Government has suffered loss running into crores of rupees as it has lost thousands of Acres of valuable lands worth crores of rupees which were already vested in the Government and the possession thereof was already taken over since long. Learned Advocate General also stated at the Bar that because of dereliction of duty the Government had also issued Notices to the concerned AGPs and, thereafter, they were sacked as AGPs. In view of the above serious allegations we have heard learned Advocate General Shri Shelat and other learned Counsel for the respondents to a great length. On the point of maintainability of the present LPA all these Appeals were seriously opposed by learned Senior Advocate Shri S.B.Vakil and all other Counsel, appearing for the respondents. It may also be stated that in some of the matters the learned Counsel Mrs.K.A.Mehta, Mr.A.J.Patel and others appearing for the respondents conceded that Appeals before this Court against the Judgments and orders passed by the learned Single Judge, were maintainable as their petitions were mainly under Article 226 of the Constitution of India. It may also be stated that all the learned Counsel for the respondents original petitioners also submitted that if this Court comes to the conclusion that the LPAs were maintainable then without expressing any opinion on merits, the matters be straightaway sent back to any other Single Judge for deciding the writ petitions afresh, strictly in accordance with law, on merits. 3. Learned Senior Advocate, Mr.Vakil and others had argued the point of maintainability of Appeals to a great length. In nut-shell we would like to reproduce the contentions of the ld. advocates on the maintainability all these Appeals, which are as under :- (i) That no LPA would be maintainable against the orders passed by the learned Single Judge in writ petitions which were filed under Article 227 of the Constitution. (ii) That the learned single Judge has not decided the writ petition on merits and determined the rights of the parties, therefore, it cannot be said that the orders passed in all the petitions were Judgments. Hence, the Appeals under clause : 15 of the LPA would not lie against such orders. (iii) That there was no judicial determination of any dispute between the parties as the learned Single Judge has simply given effect to the provisions of the Repeal Act of 1999 on the statement that the Government had not taken possession of an excess vacant land. (iv) That it was more or less a consent order, therefore, no Appeals would lie against such consent orders. (v) That no LPA would lie against an order passed by the learned Single Judge dismissing the review petitions, filed in main writ petition. 4. Before appreciating the aforesaid contentions raised by learned Counsel for the respondents - original petitioners, we would like to narrate few facts of, at least, one petition from the present group of matters, which are very essential for correct adjudication, therefore, facts of LPA No.978 of 2001 are narrated in nutshell, which are as under : By an order dated 14.3.1988 the Competent Authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, declared 9421 sq.mtrs. of land of the original land owner Shri Gabhaji Otaji and ordered to vest it in the Government. The said excess land was in possession of Shakalji Punjaji who claimed to have purchased the same under the registered Sale Deed dated 15.7.1960. Aggrieved by the order dated 22.2.1988, passed by the Competent Authority and Deputy Collector, Urban Land Ceiling, Ahmedabad, said Shri Shankalchand Punjaji had filed Appeal No.141 of 1991 before the Urban Land Tribunal at Ahmedabad (for short "Tribunal"), which was dismissed by the learned Tribunal on 27.4.1992, by holding that "..............the evidence on record that the possession of the suit land has been taken over by the State Government u/s.10 of the Act on 27.7.1990 and, therefore, the disputed land has been vested in the State Government free from all encumbrances ............ in other words the State Government has become the owner in respect of the suit land." The respondent - original petitioner Shri Shakalchand B. Vachheta died, therefore, his LRs challenged the impugned orders dated 14.3.1988 passed by the competent Authority and the Deputy Collector, Urban Land Ceiling, Ahmedabad, confirmed in Appeal on 27.4.1992 by the learned Tribunal by way of Special Civil Application No.539 of 1993 before this Court. The cause title of the petition shows that the petition was filed only under Article 226 of the Constitution. On the point of possession of the land a specific averments made by the original petitioners in Para : 5 of Special Civil Application No.539 of 1993 that "The Tribunal has also confirmed the order of the competent Authority and also ordered to initiate proceeding u/s.10 of the Land Ceiling Act for compensation and the possession of the land has been taken over by the State Government..........." The above petition of the respondents original petitioners were admitted and pending before this Court since long and during the pendency and final disposal of the said petition the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (Act No.15 of 1999) (for short "Repeal Act, 1999) came to be passed by the State Government repealing the main Urban Land (Ceiling & Regulation) Act of 1976 (for short "the Act") on 30.3.1999. Though, the Repeal Act was passed on 30.3.1999, Special Civil Application No.539 of 1993 was moved before K.R.Vyas, J. just on the eve of summer vacation i.e. on 12.5.1999 and the said petition was disposed of on 12.5.1999. It is a brief order which we would like to reproduce, which is as under: "The petitioner in this petition has challenged the order passed by the authorities under the Urban Land (Ceiling & Regulation) Act, 1976. The authorities have not taken the possession of the land in question from the petitioner, which is not in dispute. In view of the fact that the dispute involved in this petition is directly covered under the provisions of the urban Land (Ceiling & Regulation) Repeal Act, 1999 (Act No.15 of 1999) repealing the Urban Land (Ceiling & Regulations) Act, 1976, which is also adopted by the State Govt. by passing a resolution dated 30.3.1999, this petition has abated and consequently the impugned order passed against the petitioner also stands abated. Rule made absolute accordingly with no order as to costs." 5. We have already reproduced the specific findings recorded by the learned Tribunal on the point of possession of the suit land which was taken over by the State Government u/s.10 of the Act way back on 22.7.1990 and that vesting of the excess land in the State Government free from all encumbrances and the averments made by the respondents - petitioners themselves in Para : 5 of Special Civil Application No.539 of 1993 that the possession of the land had already been taken over by the State Government. Inspite of all this the learned Single Judge in his order dated 12.5.1999, passed in Special Civil Application No.539 of 1993, stated that ..."the Authority have not taken possession of the land from the petitioner which is not in dispute." (emphasis supplied). Accordingly, the learned Single Judge dismissed the petition as having been abated and also held that consequently the impugned orders passed against the petitioners also stands abated and thereby made Rule absolute. Be that as it may. 6. Coming to know about the aforesaid order dated 12.5.1999, passed by K.R.Vyas, J. in Special Civil Application No.539 of 1993, the State of Gujarat and competent Authority and Deputy Collector (ULC), Ahmedabad, filed Review Application being Miscellaneous Civil Application No.1503 of 1999 seeking review of an order dated 12.5.1999 mainly on the ground that the possession of the land was already taken over by the State Government way back in 1990, but some-how or the other the said fact was not brought to the notice of the learned Single Judge and neither the Officers from the concerned Department were called nor the original record was placed before the Court for its perusal. Along with the Application, Panchnama dated 27.7.1990, taking over possession of the excess vacant land was also produced at Annexure : B to the Review Application. It was also contended in the Review Application that reading Section 4 of the Repeal Act with Section 3(1)(A) of the Act all the proceedings which were finally concluded prior to commencement of Repeal Act i.e. 30.3.1999 will not get abated, therefore, the impugned order dated 15.7.1980 passed by the authority challenged in the writ petition can not be abated nor the writ petition, as observed by the learned Judge in his order dated 12.5.1999. 7. Learned Single Judge (K.R.Vyas,J.) had initially issued Rule on Review Application being Misc. Civil Application No.1503 of 1999 and 29 other Review Applications filed in other writ petitions and then dismissed all the 30 Review Applications by his common Judgment and order dated 10.9.1999, running into 8 typed pages, which we would like to reproduced, which is as under : CORAM : MR.JUSTICE K.R.VYAS Date of decision : 10.09.1999 ORAL JUDGMENT This Court on the repeal of Urban Land (Ceiling & Regulation) Act, 1976 disposed of many matters by passing the following order : "The petitioner in this petition has challenged the order passed by the authorities under the Urban Land (Ceiling & Regulation) Act, 1976. The authorities have not taken the possession of the land in question from the petitioner, which is not in dispute. In view of the fact that the dispute involved in this petition is directly covered under the provisions of the Urban Land (Ceiling & Regulation) Repeal Act, 1999 (Act No.15 of 1999) repealing the Urban Land (Ceiling & Regulation) Act, 1976 which is also adopted by the State Government by passing a resolution dated 30.3.1999 this petition has abated and consequently the impugned order passed against the petitioner also stands abated. Rule made absolute accordingly with no order as to costs." The State Government has filed the present application for review of the above order by alleging that the possession of the excess vacant land was taken over by the State before notice in the main Special Civil Application was issued. It is therefore the State wants this Court to delete this part of the order "the authorities have not taken possession of the land in question- from the petitioner, which is not in dispute." It is the contention of the State that the factual proposition to the effect that the possession of the excess vacant land was taken by the Government was not brought to the notice of the Court through inadvertence and mistake. Neither the Officers of the concerned department were called nor the original record was perused. That the petitioner has suppressed the fact that the possession was taken over by the Government before the petitioner filed the petition in this Court. In support of the say a copy of the panchnama taking possession of the excess vacant land is filed. Since the averments made in this application are common in all the matters, all these matters are heard together and are disposed of by this common order. Mr.D.N.Patel learned AGP appearing for the applicant submitted that in these group of matters, the State Government has in fact, taken possession of the excess vacant land and this fact was within the knowledge of the petitioners and the same was suppressed by the petitioners, and, therefore, the case requires review of the order by deleting the observations that "the authorities have not taken the possession of the land in question from the petitioner which is not in dispute." In the submission of Mr.Patel, this is a clear case of mistake or the error apparent on the face of the record which clearly attract the provisions of Order 47, Rule 1 of the Code of Civil Procedure. On the other hand, learned Counsels appearing for the opponents in their respective applications, while disputing the fact that the authorities have taken over the possession of the land in question from the petitioners submitted that none of the ingredients of Order 47, Rule 1 of the Code of Civil Procedure is satisfied and, therefore, the application itself is misconceived. Learned Counsels appearing for the opponents also raised a contention regarding the limitation by submitting that the application for review being time barred and in absence of the prayer of condonation of delay, the same is also required to be rejected on that ground. In view of the submissions advance before me, the important question is required to be decided is about the maintainability of the review application. This Court in exercise of powers under Article 226 of the Constitution of India is having inherent powers to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But as held by the Supreme Court in the case of A.T.Sharma v/s. A.P.Sharma, AIR 1979 P.1047 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 fact 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. It is not in dispute that in the main petition even though it is averred by the concerned petitioner that he is in possession of the land in question has not been refuted with filing of Affidavit. This Court, on the basis of the averments have protected the petitioner by passing interim orders, which continued for many years. No attempts were made to vacate the said order. Thus, the fact that the petitioner was in possession or not of the land in question was within the knowledge of the State Government. It is to be noted that the authorities were having not only the sufficient time, but were also having the entire record. It is not the case of the authority that they were prevented from producing the documents to controvert the averments made in the petition. It is not pleaded by the petitioner that the Court has committed mistake or error apparent on the face of the record and, therefore, order requires review. As observed by the Supreme Court in the case of AT Sharma (Supra) the power of review can be exercised where there is mistake or error apparent on the face of the record or any analogous ground. Having gone through the averments made in this Application carefully, I am of the opinion that the averments are too general and vague in nature. Nothing is mentioned as to who committed mistake of making a statement in the court regarding the question of possession of the land in question. As stated above, this is a clear case stained with negligence on the part of the authority by not filing proper replying the main petition dealing with the averments and more particularly on the question of possession of the land raised in the petition. The panchnama which is produced for the first time in the present application was very much there with the authority and they could have filed the panchnama along with the affidavit and disputed the question of possession. Having not done so, the dispute regarding possession having been taken for the first time cannot be agitated in the review application. In any case, the question of possession being highly disputed question of fact cannot be allowed to be raised in review application. This Court in the case of State of Gujarat & Anr. vs. Dr.B.J.Bhatt, reported in 18 GLR p. 173, has clearly ruled that it is not open to a person who applies for review to say that merely because he has found some additional evidence to support the case which he earlier pleaded, the judgment or order against which he complained should be reviewed. It appears that this is not only a case of no diligence having been exercised, much less due diligence, but this is a case of complete negligence and indifference,"this Court, therefore, has held that the petition is not maintainable under Rule 1 of Order 47 of the Code of Civil Procedure. The present case being more or less same, in my view, the ratio laid down would clearly apply to the present case, also. In view of this, I hold that none of the application is maintainable. Before parting, I may observe that in the application certain irresponsible and baseless averments are made, without verifying true facts. since it concerns institute, I think it is high time that Court must observe something with a view to prevent publicity of distorted version. It is averred in Para-5B of the application that the "possession of the excess vacant land was taken by the Government on 27.7.1980 was not brought to the notice of this court through inadvertence and mistake. Neither the officer of the concerned department was called nor the original record was perused." By making this averments, the deponent wants to convey that everybody may be advocate, may be Court without paying attention to the question of possession, disposed off the matter. Originally, it appears the petition was to be affirmed by one Mr.Hamendra J.Shah, joint secretary, Revenue Department, as his name is mentioned at the end of the petition below the word Affidavit, however, instead of the said Gentleman, one Mr.M.D.Raval, Deputy Secretary of the same department ultimately sweared the affidavit, wherein he has stated that what is stated in Para 1 to 4 is true and correct to the best of his knowledge, belief and information, derived from the official records and he believed to be true and correct. Admittedly, the aforesaid averments made in Para-5(B) is not part of his affidavit. In other words, the said Gentleman is not aware about the proceedings conducted in this Court when the main petition along with other petitions were heard on the day in question. It is not his say that he is the officer who remained present and witnessed the proceedings. Thus, irresponsible averments are made by the said Gentleman. When he states that neither officer of the concerned department was called nor the original record was perused, the same being not only vague and general in nature, but factually also not correct. All the petitions were heard and disposed off in 6 to 7 days. Separate board was prepared well in advance with a view to see that both the side advocates instructions. No matter where the question of possession was in dispute was heard and was adjourned. The concerned Ld.AGP, who were assisted by their own staff as well as the concerned Government Officers, who were specially called were only required to see the factual aspect regarding possession of the land from the records. After verifying the records, necessary instructions were in fact, passed on to the concerned AGP. The ld. AGP in fact, perused the record in presence of the court and ultimately made a statement. Thus, solely relying on the statements, this Court specifically mentioned in the order that the question of possession is not in dispute. The deponent Mr.Raval could have verified the correctness of the statement made in para 5(b) of the application before approaching the Press. With a hope that in future either Mr.Raval or any other officer shall act diligently and shall take utmost care and caution before making any statement in the Court, instead of taking any action for making incorrect statement, while deprecating the same, I close the chapter. In the result, all these Review Applications fail and are rejected. Rule discharged in all the applications with costs. Order of status-quo stands vacated. Sd/- (K.R.Vyas,J.) (Emphasis supplied) 8. Aggrieved by an order dated 12.5.1999, passed by the learned Single Judge in Special Civil Application No.539 of 1993 and common judgment and order dated 10.9.1999, passed in Review Applications i.e. Miscellaneous Civil Application No.1503 of 1999 and allied matters, the appellants have filed LPA No.978 of 2001 and other allied Letters Patent Appeals. 9. From the aforesaid common judgment and order dated 10.9.1999, passed by the learned Single Judge, in MCA No.1503 of 1999 and other allied Applications, it appears to us that after disposal of the writ petition and before filing the Review Applications, the Dy.Secretary Shri Raval seems to have approached the Press and questioned the orders passed by the learned Single Judge disposing of the writ petitions as having been abated and consequently the orders passed by the Tribunal also having been abated in view of the Repeal Act of 1999. This seems to have annoyed the learned Single Judge which is clear from the operative part of his order wherein the learned Single Judge stated that in future either Mr.Raval or any other officer shall not act in irresponsible manner and act diligently and take utmost care and caution before making any statement and by deprecating such a practice the chapter was treated to be