P.Suresh, S/O.Periasamy, v. The Superintendent Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserving the Judgment Date of pronouncing the Judgment 06.12.2021 20.01.2022 CORAM :

THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA AND THE HONOURABLE MR.JUSTICE P.VELMURUGAN in W.A(MD)No.199 of 2017 1.Thomas Victor, S/o. Brigadier Late A.D.T.Victor, Old No.769, New No.392, Poonamalle High Road, Kilpauk, Chennai, Represented by his power of attorney agent Sheila Sebastian, D/o.Brigadier Late A.D.T.Victor, Old No.769, New No.392, Poonamalle High Road, Kilpauk, Chennai.

2.Sheila Sebastian .. Petitioners/Respondents 1 and 2 Vs 1.The Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi.

2.The Project Director, The National Highways Authority of India, Door No.14, Travellers Bunglow Road, Kamaraj Nagar 1st Street, Valliyoor Post, Tirunelveli District.

... Respondents 1 & 2/ Appellants 1 & 2 3.The Competent Authority and Special District Revenue Officer Land Acquisitions-National Highways 299/A1A2, 3rd Middle Street, Thiagaraja Nagar, Sivandipatti Road, Tirunelveli-627 011.

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4.The District Collector, Tirunelveli District.

..Respondents 3 & 4/ Respondents 3 & 4 PRAYER : Review Application is filed under Order 47 Rule 1 and 2 and Section 114 of C.P.C., to review the order dated 18.04.2017 made in W.A.(MD)No.199 of 2017.

Prayer in WA(MD). 199/ 2017 :

To prefer this Memorandum of Writ Appeal against the order passed by His Lordship Mr.Justice A.Selvam made in W.P.(MD)No.9443 of 2008 dated 16.3.2016 on the file of this Honourable Court. Prayer in WP(MD). 9443/ 2008 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a Writ of Certiorari, to call for the records on the file fo the 3rd respondent in G.O 182 dated 22/02/2007 under sec. 3D(1) of the Act and further the award no. 33/2007 and dated 26/11/2007 and quash the same.

For Petitioners : Mr.S.Ramesh For R1 and R3 : No Appearance For R2 : Mr.C.Arulvadivel @ Sekar For R4 : Mr.P.Subbaraj Special Government Pleader

ORDER

********** P.VELMURUGAN, J.

This review application is filed to review the order, dated 18.04.2017 made in W.A.(MD)No.199 of 2017, filed by the petitioners/respondents 1 and 2.

2. Originally, the petitioners filed a writ petition before this Court to quash the notification issued by the third respondent in G.O.No.182, dated 22.02.2007 under Section 3D(1) of the Act and that further, the award No.33 of 2007, dated 26.11.2007. The writ Court while allowing the writ petition, quashed the impugned notification, dated 22.02.2007 and also the award dated 26.11.2007. Challenging the said order of this Court, the respondents 1 and 2 filed an intra-Court writ appeal in W.A(MD)No.199 of 2017 before this Court and this Court, after hearing the arguments and considering the facts and circumstances, allowed the writ appeal and issued the directions. Though the petitioners/respondents 1 and 2 have not challenged the said judgment of this Court in filing appeal 2/9

and they filed the present review application.

3. It is not in dispute regarding publication of the Notification dated 22.02.2007 and award dated 26.11.2007.

Admittedly, the lands in S.Nos.1777/1A2 and 1778/2B belong to the mother of the petitioners/respondents 1 and 2 and that their mother passed away on 12.07.2000. The above said lands were acquired for the purpose of laying National Highways. Before acquisition, a Notification was issued in the name of mother of the petitioners/respondents 1 and 2. The said Notification was issued on 06.09.2005. From the date of death till the date of Notification, the petitioners/respondents 1 and 2 had not taken any steps to transfer the revenue records in their name. Therefore, on the date of Notification, it was found that the above said lands were in the name of their mother.

4. The main contention of the learned counsel for the petitioners/respondents 1 and 2 that since the Notification was issued in the name of dead person, the Notification dated 22.02.2007 and subsequent award dated 26.11.2007 are null and void. Therefore, a fresh Notification has to be issued and fresh award has to be passed with reference to the above said lands. This Court considered the facts and circumstances of the case and based on the decision of the Hon'ble Supreme Court, allowed the writ appeal and further protected the interest of the review petitioners/respondents 1 and 2.

5. The learned counsel for the review petitioners would submit that no notice was issued to the present pattadhar as legal heirs of earlier pattadhars, despite having knowledge of their right over the property and which is against the provisions under Section 3 of National Highways Act and the decision of allowing the writ appeal is against the well settled principles of law laid down by the Hon'ble Supreme Court in the case of Competent Authority Vs. Barangore Jute Factory reported in (2005) 13 SCC 477. The proceedings of the respondents in attempting to exclude petitioners at the crucial stages of acquisition and calling upon them to collect compensation, which is, unjust and illegal.

The direction of this Court in the writ appeal will in no way substitute the petitioners' loss of compensation, if they were to be compensated in terms of the then prevalent not particularly as on date of the said Notification in G.O.No.182, dated 22.02.2007. The learned Single Judge quashed the Notification and subsequent award in respect of survey numbers belonging to the petitioners alone and the same would not in any way prejudice by issuing a fresh Notification in respect of survey numbers of the properties belong to the petitioners alone.

6. This Court while deciding the appeal, considered the entire submissions and the points raised by the review applicants in the writ appeal and passed the order in detail and also protected the 3/9

interest of the review applicants. This Court does not find any error apparent on the face of the records to entertain the review application and this Court cannot re-hear and re-visit its own judgment in this regard.

7. In this regard, it is relevant to refer to the following decisions of the Hon'ble Supreme Court:- (i) In the case of Tamil Nadu Electricity Board and another Vs. N.Raju Reddiar and another reported in (1997) 9 SCC 736, it has been held that "When an appeal is dismissed, except in rare cases where error of law or fact is apparent on the records, no review can be filed."

(ii) In the case of Vinay Sharma and Another Vs. State (NCT of Delhi) and Others reported in (2018) 8 SCC 186. The relevant portion of the judgment is extracted hereunder:- "...20. Before we enter into the submissions raised in these review petitions, it is useful to recapitulate the scope and grounds available for exercise of jurisdiction by this Court under Article 137. Order XLVII Rule 1 of the Supreme Court Rules, 2013 dealing with review is as follows: "1.The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record."

21. An application to review a judgment is not to be lightly entertained and this Court could exercise its review jurisdiction only when those grounds are made out as provided in Order XLVII Rule 1 of the Supreme Court Rules, 2013 framed under Article 145 of the Constitution of India. This Court in Sow Chandra Kante and another v. Sheikh Habib, (1975) 1 SCC 674 speaking through Justice V.R. Krishna Iyer on review has stated the following in para 11:

11. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.

22. As per rule, review in a criminal proceeding is permissible only on the ground of error apparent on the face of the record. This Court in P.N.Eswara Iyer and others v. Registrar, Supreme Court of India, (1980) 4 SCC 680 while examining the review jurisdiction of this Court vis a vis criminal and civil proceedings had made the following 4/9

observations in paras 34 and 35:

"34 . The rule, on its face, affords wider set of grounds for review for orders in civil proceedings, but limits the ground vis-a-vis criminal proceedings to errors apparent on the face of the record. If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the deceased shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the court helpless to review and set aside the sentence of hanging? We think not.

The power to review is in Article 137 and it is equally wide in all proceedings. The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the test. Here record means any material which is already on record or may, with the permission of the court, be brought on record. If justice summons the Judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessitous.

35. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40 Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression record is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the court, it will embrace subsequent events, new light and other grounds which we find in Order 47 Rule 1, CPC. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source."

23. The scope of review jurisdiction has been considered by this Court in a number of cases where well settled principles have been reiterated time and again. It is sufficient to refer to judgment of this Court in Kamlesh Verma vs. Mayawati and others (2013) 8 SCC 320, where this Court has elaborately considered the scope of review. In paras 17, 18, 20.1 and 20.2 following has been laid down: 5/9

17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto.

This Court in Kerala SEB V. Hitech Electrothermics and Hydropower Ltd. held as under: (SCC p. 656, para 10)

10. In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.

18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., held as under: (SCC pp. 504505, paras 11-12)

11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded 6/9

adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of second innings which is impermissible and unwarranted and cannot be granted.

20.1. When the review will be maintainable:

(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;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words any other sufficient reason have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius 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.

20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case.

(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. (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.

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

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

(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. (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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24. This very Bench speaking through one of us (Justice Ashok Bhushan) had occasion to consider the ambit and scope of the review Jurisdiction in a criminal proceeding in Vikram Singh alias Vicky Walia and another vs. State of Punjab and another (2017) 8 SCC 518. In para 23 of the judgement following has been stated:

"23. In view of the above, it is clear that scope, ambit and parameters of review jurisdiction are well defined. Normally in a criminal proceeding, review applications cannot be entertained except on the ground of error apparent on the face of the record. Further, the power given to this Court under Article 137 is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 read with Order 40 Rule

1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice."

(iii)Further, in another recent decision of the Honourable Supreme Court reported in (2020) 2 SCC 338 (Yashwant Sinha and Others Vs. Central Bureau of Investigation through its Director and Another).

The relevant portion of the Judgment is extracted hereunder:- "..96.As far as the judicial review of the award of the contract is concerned, apart from the fact that a review does not permit reappreciation of the materials, there is the aspect of the petitioner seeking judicial review approaching the court late in the day. There is also the aspect relating to the Court's jurisdiction not extending to permit to so sit in judgment over the wisdom of the Government of the day, particularly in matters relating to purchase of the good involved in this case. Therefore, in regard to review, sought in relation to the findings relating to the judicial review, they cannot be found to be suffering from palpable errors."

8. Considering the facts and circumstances of the case, we do not find any grounds that there is a discovery of any new and 8/9

important point, error apparent on the face of the record or any other sufficient reason to allow the review application. Therefore, the Review Application is dismissed. No costs. Sd/- Assistant Registrar (CS-III) // True Copy // / /2022 Sub Assistant Registrar(CS) sji Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To 1.The District Collector, Tirunelveli District.

2. The Secretary, Ministry of Shipping, Road Transport and Highways, New Delhi.

+1 CC to M/s.C.ARUL VADIVEL SEKAR, Advocate ( SR-1821[F] dated 20/01/2022 ) +1 CC to M/s.SPL.GP ( SR-2035[F] dated 21/01/2022 ) +1 CC to M/s.V.RAGHAVACHARI, Advocate ( SR-1852[F] dated 20/01/2022 ) REV.APLC(MD)No.222 of 2017 in W.A(MD)No.199 of 2017 20.01.2022 RD(03.02.2022) 9P 6C 9/9