General Manager(Technical),Nhai, Khordha Vs Ajaya Gupta

After going through the averments taken in the interim application and on hearing the learned counsel for the respective parties, we are inclined to condone the delay in filing the RVWPET.

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Accordingly, the delay is condoned.

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I.A. stands disposed of.

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( S.K. Sahoo) Judge

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( Chittaranjan Dash)

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Judge

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RVWPET No.293 of 2024

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This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

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The petitioner, who was the opposite party no. 2 in the writ petition i.e. W.P.(C) No. 22228 of 2024 filed by the opposite party Ajay Gupta has sought for review of the order dated 05.09.2024 passed by this Bench while disposing of the writ petition.

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The operative portion of the order dated 05.09.2024 is extracted herein below for ready reference:-

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“In view of the letter of the Collector, Bargarh under Annexure-3 and the valuation report furnished by the Executive Engineer, R & B, Bargarh under Annexure-4 and after hearing the learned counsel for the Union of India, we direct the NHAI authorities to take immediate steps for payment of compensation to the petitioner as per the valuation report under Annexure-4 within a period of one month from the date of production of a certified copy of this order before taking any steps for vacating the premises. The NHAI authorities shall also communicate the order to the concerned authorities for compliance.”

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Mr. Umesh Chandra Mohanty, learned counsel appearing for the review petitioner strenuously argued that the direction for

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payment of compensation amount to the writ petitioner is an error apparent on the face record even though the original compensation amount was duly paid to the opposite parties nos. 6 to 8. He further submitted that a remedy lies to the land loosers to redress their grievance by filing arbitration application under section 3G(5) of the National Highways Act, 1956 (in short, ‘Act, 1956’) even if the opposite party no.1 (writ petitioner) is entitled to any compensation within the scope and ambit of section 3-G(1) & (2) of the Act, 1956. Learned counsel further submitted that in the land acquisition proceeding, the compensation has already been assessed and paid to the original land owners, who have interest in the land and the writ petitioner had never raised any objection at the relevant period nor filed any claim in course of assessment of compensation amount under section 3-G(1),(2), (3) & (4) of the Act, 1956 and therefore, the impugned order is required to be reviewed.

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Ms. Sailabala Jena, learned counsel appearing for the opposite party no.1 (writ petitioner) submitted that after hearing the learned counsel for the parties and taking into consideration the letter of the Collector, Bargarh under Annexure-4 so also the valuation report furnished by the Executive Engineer, (R & B), Bargarh, this Court has passed the impugned order, which needs no interference.

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Order XLVII of Code of Civil Procedure, 1908 (hereafter ‘CPC’) deals with review of judgment. An order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 of CPC. The review proceedings are not by way of an appeal nor can an appellate power be exercised in the guise of power of review. Review is not re-hearing of an original matter. The power of review jurisdiction cannot be exercised as an inherent power and can be exercised for the correction of a mistake and not to substitute a view. Every error whether factual or legal cannot be

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made subject matter of review under Order 47 Rule 1 of CPC though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of CPC, the error/mistake must be apparent on the face of the record of the case.

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In the case of Parsion Devi and Ors. -Vrs.- Sumitri Devi and Ors. reported in (1997) 8 Supreme Court Cases 715 , the Hon’ble Supreme Court held as under:

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“9. Under Order 47 Rule 1 Code of Civil Procedure, a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 Rule 1 Code of Civil Procedure. In exercise of the jurisdiction under Order 47 Rule 1 Code of Civil Procedure, it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise.”

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In Haridas Das -Vrs.- Usha Rani Banik (Smt.) and Ors. reported in (2006) 4 Supreme Court Cases 78 , the Hon’ble Supreme Court held as follows:

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“13....The parameters are prescribed in Order 47 Code of Civil Procedure and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the Rule deals with a situation attributable to the applicant, and the latter to a jural

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action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable, the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection....”

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In the case of State of West Bengal and Ors. -Vrs.Kamal Sengupta and Anr. reported in (2008) 8 Supreme Court Cases 612 , the Hon’ble Supreme Court held as follows:

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“21. At this stage, it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could

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not be produced before the Court earlier.”

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In the case of Kamlesh Verma -Vrs.- Mayawati and Ors. reported in (2013) 8 Supreme Court Cases 320 , the Hon’ble Supreme Court after analysing number of decisions on scope of review, laid down its conclusions, which read as follows:-

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“Summary of the principles

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Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:

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(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

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(ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason.

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The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki : AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius: AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. : (2013) 8 SCC 337.

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20.2. When the review will not be maintainable:

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(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

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(ii) Minor mistakes of inconsequential import.

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(iii) Review proceedings cannot be equated with the original hearing of the case.

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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

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(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

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(vi) The mere possibility of two views on the subject cannot be a ground for review.

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(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

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In the case of Sanjay Kumar Agarwal -Vrs.- State Tax Officer (1) and another reported in (2024) 2 Supreme Court Cases 362 wherein the Hon’ble Supreme Court held as follows : “16. The gist of the afore-stated decisions is that: 16.1 A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. 16.2 A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.

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16.7 An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of

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reasoning on the points where there may conceivably be two opinions.”

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In the case at hand, admittedly, the Collector, Bargarh, opposite party no.3 addressed a letter dated 18.06.2019 to the General Manager, Technical, NHAI (petitioner herein) under Annexure-4, which has not been challenged by the review petitioner. Further, the structural value, assessed by Executive Engineer, (R & B), Bargarh, as per Annexure-4 to the writ petition, which is stated to be on higher side, has also not been challenged by the review petitioner. The letter of the Collector clearly reveals that there were structures in existence over the acquired lands which have been constructed by other persons who were residing there since long. The land owners of the acquired lands have been provided with land compensation, but no structural compensation has been paid to the persons who have constructed it and occupying it. It is also not the case of the review petitioner that structural compensation has been paid. Our order was specific for payment of structural compensation, existence of which is no way doubtful in view of the report of the Tahasildar, Bargarh as well as joint enquiry conducted by R.I., NHAI, Bargarh and R.I., Kalapani which would be evident from the letter of the Collector dated 18.06.2019. Thus, we are of the view that the order which is sought to be reviewed in this review petition, has been passed after perusing the letter of the Collector, Bargarh under Annexure-4 so also the valuation report furnished by the Executive Engineer, (R & B), Bargarh, which cannot be said to be erroneous or that there is any error apparent on the face of record.

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In view of the ratio as discussed above and on hearing the learned counsel for the petitioner, we do not find any error apparent on the face of record warranting review of our order as aforesaid.

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In the result, the RVWPET fails and the same stands dismissed.

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( S.K. Sahoo)

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Judge

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( Chittaranjan Dash) Judge

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PKSahoo