HIGH COURT OF ORISSA: CUTTACK
RVWPET No. 128 of 2011
In the matter of an application for review of the judgment dated 09.03.2011 passed by this Court in W.P.(C) No. 20433 of 2009. ----------
Orissa Industries Limited
through its Director Mr. Mohan Kumar Jhunjhunwala S/o Late Bishan Dayal Jhunjhunwala,
At- Barang, Dist: Cuttack ... Petitioner -Vrs-
Director General,
Archaeological Survey of India,
At-Janpath, New Delhi and others ... Opp. parties For Petitioner : M/s. S. Routray, P.K. Mishra, B.N. Behera, G. Samantray &
M/s. Biplab Mohanty,
T.K. Patnaik, A. Patnaik, S. Patnaik,
M.S. Rizul, B.S. Rayguru .
For Opp. Parties : Mr. S.D. Das, (A.S.G.)
(For O.P.No.1)
M/s. P.K. Rath, P.K.Satpathy,
R.N. Parija, A.K. Rout,
S.K.Pattnaik, D.P. Pattnaik,
(For Intervener)
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P R E S E N T:
THE HON'BLE THE CHIEF JUSTICE V. GOPALA GOWDA
AND
THE HON'BLE MR. JUSTICE B.N. MAHAPATRA
-------------------------------------------------------------------------------------- Date of Judgment: 02.02.2012
-------------------------------------------------------------------------------------- B.N. Mahapatra, J. The present review petition has been filed seeking review of the judgment dated 09.03.2011 passed by this Court in W.P. (C) No. 20433 of 2009.
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2. Mr. S. Routray, learned counsel appearing for the review petitioner submitted that this Court has failed to appreciate the fact that the constitution of Expert Advisory Committee and decisions taken by it in its meetings dated 18th & 19th August, 2009 are contrary to the statutory provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the Ancient Monuments and Archaeological Sites and Remains Rules, 1959. As per the judgment dated 30.10.2009 in L.P.A. No. 417 of 2009 passed by a Division Bench of the High Court of Delhi in the case of M/s. EMCA Construction Company vs. ASI & others, the constitution of the Expert Advisory Committee of the ASI is de hors the Act, 1958 and the same is illegal. Therefore, all decisions of the Expert Advisory Committee are contrary to the statute. Rejection of the application of the petitioner by opposite party nos. 1 and 2 relying upon the decision of the Expert Advisory Committee, the constitution of which is de hors the statutory provision, is not sustainable in law. The petitioner was not aware of the judgment dated 30.10.2009 in LPA No.417 of 2009 passed by the High Court of Delhi in the case of M/s. EMCA Construction Company vs. ASI & Ors. and therefore, the same could not be brought to the notice of this Court at the time of passing of order dated 09.03.2011, which the petitioner discovered afterwards. Opposite party no.1 in fact concealed the fact of passing of the Delhi High Court judgment dated 30.10.2009 in LPA No. 417 of 2009 from this Court.
3. The Government of India vide Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 3
2010 (in short, "Act, 2010") attempted to validate only all the past sanctions/permissions given by the Expert Advisory Committee of ASI in order to bypass the judgment dated 30.10.2009 in LPA No.417/2009 and not all decisions including rejection passed by the said Expert Advisory Committee. The Act, 2010 only validated the sanctions/permission given by the Expert Advisory Committee of ASI. The Act, 2010 never validated all the decisions regarding the rejection of application passed by the said Expert Advisory Committee. Therefore, the decision of the Expert Advisory Committee in rejecting the application of the petitioner is not validated by Act, 2010 and the same is de hors the statute. The ASI took the decision of rejecting the petitioner's application on the basis of decision of the Expert Advisory Committee dated 18th & 19th August, 2009 without application of mind. There are many modern constructions in the protected monument and even the same observation finds place in the minutes of the meetings of Expert Advisory Committee held on 18th & 19th of August, 2009. This Court has not considered the fact that the map issued by the ASI in pursuance of the meeting held on 17.01.2005 under the Chairmanship of the Minister of Culture was patently wrong and self contradictory. It is pertinent to mention that the fortification wall was demarcated after a survey conducted by the concerned departments. The protected area of acres is shown beyond the fortification wall. Thus, the same deserves to be reviewed in the interest of justice.
4. There is an error apparent on the face of the record and in the interest of justice the impugned judgment deserves to be reviewed. 4
This Court erred in ignoring the fact that the opposite parties 1 and 2 never denied the submissions of the petitioner that the Government of India Notification dated 23.02.1951 was issued contrary to the statutory provisions of sub-section (2) and (3) of Section 3 of the Ancient Monuments Preservation Act, 1904 (in short, "the Act, 1904"). In fact, the said notification dated 23.02.1951 was preliminary in nature under Section 3(1) of the Act, 1904. Further, there is no document filed by the Archaeological Survey of India, (in short, "ASI") to satisfy as to whether the provisions of Section 3(2) pertaining to calling for objection and Section 3(3) pertaining to confirmation of the Notification dated 23.02.1951 were complied with or not. Therefore, opposite party nos.1 and 2 cannot rely upon the said Notification dated 23.02.1951 since the same was issued de hors the Act, 1904. Placing reliance upon the decisions of the Supreme Court in the cases of Khub Chand vs. State of Rajasthan, AIR 1967 SC 1074; Hindustan Petroleum Corporation Limited vs. Darius Shapur Chenai & others, AIR 2005 SC 3520 and State of Mysore Vs. Abdul Razak Sahib, AIR 1973 SC 2361, it is contended that the Notification dated 23.02.1951 being de hors the Act, 1904 is illegal and void.
5. This Court failed to appreciate that the Notification dated 23.02.1951 arbitrarily brought under notified area as protected monument includes the whole of Churangada even the fortification wall is situated 1085 metres away from the said land of the petitioner. This Court has erred in not directing the opposite party no.1 to de-notify the land of the petitioner from the Notification dated 23.02.1951 under 5
Section 36 of the Act, 1958 because opposite parties nos.1 and 2 relied upon the decision of the Expert Advisory Committee which is declared illegal. The Court has also ignored the notice published in the Oriya newspaper "The Samaja" on 18th September, 2003 by the ASI about construction or reconstruction of building in Churangada and surrounding area whereby the ASI sought to bring to the notice of the public that the Churangada fort and the fortification wall around it are centrally protected archaeological site under the purview of the Act, 1958 and Rules, 1959. Therefore, the opposite parties cannot turn around and say that protected archaeological site is beyond Churangada fort and the fortification wall around it. This Court also failed to take into account that the Government of Orissa, Housing & Urban Development Department vide Notification No. TP-MP-3/03- 27670/HUD dated 20.06.2003 brought additional 37 revenue villages in the Cuttack Development area including mouza Dadhapatna and accordingly, development of infrastructure has been taken place since 2003 in the area of Dadhapatna, Barang. Concluding his argument learned counsel submitted that the impugned judgment deserves to be reviewed otherwise the review petitioner shall suffer an irreparable loss.
6. Mr. S.D. Das, learned Assistant Solicitor General, submitted that the judgment of Delhi High Court in the case of M/s. EMCA Construction Company vs. ASI & Ors., in LPA No.417 of 2009, relates to decision of the Expert Advisory Committee with regard to prohibited area but the present case relates to protected area. Therefore, the decision referred to supra, cannot be taken into consideration for 6
the purpose of review of the impugned judgment. All other grounds taken by the review petitioner were raised in the writ petition and considered. Therefore, that cannot be a ground for review of the impugned judgment. It is further argued that the petitioner has not made out a case under Order 47, Rule 1 C.P.C. and there is not even any pleading to this effect by the petitioner. Hence, the review petition is liable to be dismissed.
7. In the instant case, the petitioner is a company having right, title and interest over the landed properties in question. The petitioner had filed writ petition bearing W.P.(C) No. 20433 of 2009 seeking for quashing of the order of opposite party No.2 rejecting the petitioner's application for issuance of "No Objection Certificate (NOC)" for construction of a multistoried building for commercial and residential purpose over the land in question and for a further direction to opposite party No.2 to issue NOC in favour of the petitioner or alternatively to hold that NOC is not required from the ASI and to direct opposite party No.3 to proceed with for grant of permission and approval of the petitioner's proposal without insisting NOC from ASI. The said writ petition was dismissed inter alia with the following observations:-
".......... The expert committee, after careful consideration of the various reports, maps and other relevant documents referred to supra and taking into consideration the relevant provisions of the Act and Rules and Notifications issued by the Government of India from time to time has taken a decision which cannot be termed as arbitrary or unreasonable. Therefore, in our view, it is not fit case for this Court to interfere with the impugned order Annexure-14. 7
Hence, this writ petition is devoid of merit and is accordingly dismissed."
8. Before proceeding further, it will be useful to have an idea about the scope of review.
Section 114 read with O.47, R.1 of the Code of Civil Procedure, 1908 (hereinafter called 'the CPC') prescribes the limitations for entertaining a review petition. These limitations are that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence, which was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or 'for any other sufficient reason.
9. The Hon'ble Supreme Court in Haridas v. Smt. Usha Rani Banik & others, AIR 2006 SC 1634 held that a perusal of the Order 47, Rule 1, CPC shows that review of a judgment or an order could be sought : (a) from the discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. Therefore, some mistake or error, if made ground for review, it must be apparent on the face of record and if a party files an application on the ground of `some other sufficient reason', it has to satisfy that the said 8
sufficient reason is analogous to the other conditions mentioned in the said rule i.e. discovery of new and important matter or evidence which it could not discover with due diligence or it was not within his knowledge and, thus, could not produce at the initial stage. Apparent error on the face of record has been explained to include failure to apply the law of limitation to the facts found by the Court or failure to consider a particular provision of a statute or a part thereof or a statutory provision has been applied though it was not in operation. Review is permissible if there is an error of procedure apparent on the face of the record e.g. the judgment is delivered without notice to the parties, or judgment does not effectively deal with or determine any important issue in the case though argued by the parties. There may be merely a smoke-line demarcating an error simpliciter from the error apparent on the face of record. But there cannot be a ground for entertaining the review in the former case. "Sufficient reason" may include disposal of a case without proper notice to the party aggrieved. Thus, if a person comes and satisfies the Court that the matter has been heard without serving a notice upon it, review is maintainable for the "sufficient reason" though there may be no error apparent on the face of record. The expression 'any other sufficient reason' contained in O.47 R.1, CPC means "sufficient reason" which is analogous to those specified immediately to it in the provision of O. 47, R. 1, CPC.
10. In Chhajju Ram Vs. Neki & Ors, AIR 1922 PC 112, it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of new and 9
important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground. The same view has been reiterated in Debi Prasad & Ors Vs. Khelawan & Ors, AIR 1957 All. 67; and Mohammad Hasan Khan Vs. Ahmad Hafiz Ahmad Ali Khan & Anr., AIR 1957 Nag. 97.
11. In S. Nagraj & Ors. Vs. State of Karnataka & Anr., 1993 Supp (4) SCC 595, the Hon'ble Supreme Court explained the scope of review observing as under:-
"Review literally and even judicially means
re-examination or re-consideration. Basic
philosophy inherent in it is the universal
acceptance of human fallibility. Yet in the
realm of law the courts and even the statutes
lean strongly in favour of finality of decision legally and properly made. Exceptions both
statutorily and judicially have been carved
out to correct accidental mistakes or
miscarriage of justice ... ... The expression, `for any other sufficient reason' in the clause has been given an expanded meaning and a
decree or order passed under mis-
apprehension of true state of circumstances
has been held to be sufficient ground to
exercise the power."
The Court further held that the purpose of review is rectification of an order which stems from the fundamental principle that justice is above all and it is exercised only to correct the error which has occurred by some accident without any blame. While deciding the said case the Hon'ble Supreme Court placed reliance upon a large number of judgments including Raja Prithwi Chand Lal Choudhury Vs. Sukhraj Rai & Ors., AIR 1941 FC 1; and Rajunder 10
Narain Rae Vs. Bijai Govind Singh (1836) 1 MOO PC 117. The same view has been reiterated by the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. & Anr. Vs. Gokulprasad Maniklal Agarwal & Anr. (1999) 7 SCC 578.
12. In Sow. Chandra Kanta & Anr. Vs. Sheik Habib, AIR 1975 SC 1500 the Hon'ble Supreme Court dismissed a review application observing as under:-
"...........thus, making out that a review
proceeding virtually amounts to a re-hearing.
May be ........... a review thereof must be
subject to the rules of the game and cannot
be lightly entertained. A review of a judgment is a serious stop 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."
Similar view has been reiterated by the Hon'ble Supreme Court in Sajjan Singh & Ors Vs. The State of Rajasthan & Ors, AIR 1965 SC 845; Girdhari Lal Gupta Vs. D.N. Mehta & Anr, AIR 1971 SC 2162; M/s. Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, AIR 1980 SC 674; Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma & ors., AIR 1979 SC 1047; and Green View Tea & Industries Vs. Collector, Golaghat & Anr. (2002) 1 SCC 109.
13. In Devaraju Pillai Vs. Sellayya Pillai, AIR 1987 SC 1160, the Hon'ble Supreme Court held that if a party is aggrieved by a judgment of a Court, the proper remedy for such party is to file an appeal against that judgment. A remedy by way of an application for 11
review is entirely misconceived and if a Court entertained the application for review then it has totally exceeded its jurisdiction in allowing the review merely because it takes a different view in construction of the document.
14. In Delhi Administration Vs. Gurdip Singh Uban & Ors., AIR 2000 SC 3737, the Hon'ble Supreme Court deprecated the practice of filing review application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bypass the procedure prescribed for hearing a review application. The Court also rejected the argument that review application should be entertained to do justice in the case, observing as under:-
"The words 'justice' and 'injustice', in our
view,. are sometimes loosely used and have
different meanings to different persons,
particularly to those arrayed on opposite
sides..... Justice Cardozo said, 'The Web is
tangled and obscure, shot through with a
multitude of shades and colours, the skeins
irregular and broken. Many hues that seems
to be simple, are found, when analysed, to be
complex and uncertain blend. Justice itself,
which we are wont to appeal to as a test as
well as an ideal, may mean different things to different minds and at different times.
Attempts to objectify its standards or even to describe them, have never wholly succeeded."
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15. In Subhash Vs. State of Maharashtra & Anr., AIR 2002 SC 2537, the Hon'ble Supreme Court emphasized that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review.
Thus, in the garb of review, a party cannot be permitted to reopen the case and to gain a full fledged innings for making submission nor review lies merely on the ground that it may be possible for the Court to take a view contrary to what had been taken earlier. If the case has been decided after further argument made by learned senior counsel, he cannot be permitted, even in the garb of doing justice or substantial justice to engage the Court again to decide the controversy already decided. If a party is aggrieved by a judgment, it must approach the Higher Court, but entertaining a review to re-consider the case would amount to exceeding its jurisdiction, conferred under the limited jurisdiction for the purpose of review. Therefore, courts cannot be persuaded to entertain a review application to do justice unless it lies only on the grounds mentioned in the statutory provisions.
16. In Union of India & Ors. Vs. Mohd. Nayyar Khalil & Ors., (2000) 9 SCC 252, the Hon'ble Supreme Court rejected a review application which was filed on the ground that the High Court had decided the case placing reliance upon the decision of the Hon'ble 13
Supreme Court, the correctness of which had been doubted and the matter had been referred to the Larger Bench of the Supreme Court. Subsequently, the Larger Bench had taken a contrary view. The review petition was dismissed on the ground, inter alia, that the situation had not been pointed out by the counsel to the Bench when the matter was initially heard.
17. In the instant case, admittedly the decision of the Delhi High Court in the case of M/s. EMCA Construction Company (supra) was not brought to the notice of this Court when the writ petition was heard and this Court had no occasion to consider such judgment. Therefore, non-mentioning of the said judgment cannot be a ground for review of the impugned judgment.
Moreover, Mr. Das, learned Asst. Solicitor General contended that the judgment of Delhi High Court in the case of M/s. EMCA Construction Company (supra), relates to the decision of the Expert Advisory Committee with regard to the prohibitory area but the present case relates to the protected area.
18. The other grounds taken in the review petition are that without application of mind, the Expert Advisory Committee arbitrarily rejected the application of the petitioner; the Government of India Notification dated 23.02.1951 and the decision of the Expert Advisory Committee taken in its meetings dated 18th and 19th August, 2009 were issued contrary to the statutory provisions of sub-sections (2) and (3) 14
of Section 3 of the Ancient Monuments Preservation Act, 1904 and the effect of the Act, 2010 and the plea regarding non-demarcation of fortification wall around Churangada Fort at the relevant time. The self same grounds were also taken in the original writ petition and this Court considering the grounds taken in the writ petition and after careful perusal of the original record produced by learned Asst. Solicitor General in relation to this case, examined the correctness of Annexure-4 by which the proposal of the petitioner has been rejected by the Expert Advisory Committee of ASI. From the notification dated 23.02.1951 this Court noticed that the proposed area of the petitioner is covered under the protected monument area. A detailed inspection of the site was conducted by the Officers and Superintending Archaeologist, ASI, Bhubaneswar. A detailed proposal was sent to the Office of the Director General of ASI, New Delhi in prescribed format to be placed before the Expert Advisory Committee Meeting and accordingly, the same was placed before it on 18th and 19th August, 2009. After detailed examination of the proposal, the Expert Advisory Committee came to the conclusion and recorded a finding by holding that the proposed area is coming within the protected area. While coming to such conclusion, this Court has taken into consideration Section 2(i) of the Act, 1958 which provides that the protected area means any archaeological site and remains which is declared to be of National importance by or under the Act. Section 19 of the Act, 1958 provides for restrictions on enjoyment of property rights in protected areas. The Court further rejected the petitioner's stand that the 15
proposed site is 4 ½ K.M. distance by road and about 3 K.M. distance in air from Churangada Fort and held that the said locality is situated within the protected area/notifying area of archaeological site and that has been clearly shown in the site plan of Churangada and that the petitioner's proposed area does not come in prohibited or regulated area. Therefore, the notification dated 16th June, 1992 has no application in support of the contention of the petitioner. This Court has taken into consideration Rule 33 of the Rules as well as Sections 20-A and 20-B of the Ancient Monuments and Archaeological Sites and Remains (Amended and Validation) Act, 2010 while adjudicating the issue involved in the writ petition. This Court has also examined the claim of the petitioner with reference to the format filed by the petitioner and held that the Expert Advisory Committee after careful consideration of various reports, maps and other relevant documents and taking into consideration the relevant provisions of the Act and Rules and Notifications issued by the Government of India from time to time has taken a decision, which cannot be termed as arbitrary or unreasonable.
19. At this juncture, it would be useful to refer the judgment of the Hon'ble Supreme Court in M/s. Jain Studios Ltd. Vs. Shin Satellite Public Co. Ltd, AIR 2006 SC 2686, wherein it is held 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 review of old and overruled argument is not enough to reopen concluded 16
adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
20. Therefore, the self same grounds already taken in the writ petition and considered by this Court cannot be the grounds for review of the impugned judgment.
21. In view of the above, it is clear that no case for review under Order 47, Rule-1, CPC is made out in this case. The well-known parameters of review as indicated above having not been fulfilled, there is no scope for review and, accordingly, the review petition is dismissed. .............................
B.N. Mohapatra,J.
V. Gopala Gowda, C. J. I agree
.................................
V. Gopala Gowda,C.J.
Orissa High Court, Cuttack
The 2nd February, 2012/ssd