18 November 2019


Judgments

Supreme Court

Sivakami and Ors. Vs. State of Tamil Nadu and Ors.

MANU/SC/0236/2018

12.03.2018

Land Acquisition

What was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application

Present appeals are against the final judgment passed by the High Court whereby the Division Bench of the High Court dismissed the review application filed by the Appellants herein as not maintainable and also on merits and order whereby the Division Bench set aside the order passed by the Single Judge of the High Court which was in favour of the Appellants herein.

The Appellants claim to be the owners of the land in question admeasuring around 1.52 acres situated at Ganapathi Village. The land in question was the subject matter of land acquisition proceedings under the Land Acquisition Act, 1894 in the year 1985 at the instance of State of Tamil Nadu, which had issued notifications under Sections 4 and 6 of the Act for its acquisition. The Appellants, felt aggrieved of the acquisition of their land in question, filed Writ Petition in the High Court and questioned therein the legality and correctness of the entire acquisition proceedings including the orders in G.O. Ms. No. 1119, Social Welfare Department dated 15th May, 1985 and G.O. Ms. No. 1536, Social Welfare Department dated 18th June, 1986. The Single Judge, by order, allowed the Appellants' writ petition and quashed G.O. Ms. No. 1119 dated 15th May, 1985 and G.O. Ms. No. 1536 dated 18th June, 1986.

The State felt aggrieved and filed intra Court appeal before the Division Bench out of which these appeals arise. By impugned order, the Division Bench allowed the State's appeal and while setting aside the order of the Single Judge dismissed the Appellants' writ petition. In other words, the acquisition proceedings were upheld by the Division Bench as being legal and proper. Against the said order, review application was filed by the Appellants herein but it was dismissed. It is against these two orders of the Division Bench, the writ Petitioners felt aggrieved and filed instant appeals by way of special leave in this Court.

In instant case, the Division Bench, however, simply allowed the State's appeal and, in consequence, dismissed the writ petition and upheld the acquisition proceedings as being legal and proper and that too without assigning any reason in support thereof. It was for the Division Bench to deal with all the grounds raised by the parties while reversing the order of writ Court and to record their own findings by assigning reasons in support of the conclusion. It was, however, not done.

This appears to be a case where the Single Judge (writ Court) allowed the Appellants' writ petition without assigning any reason and without dealing with any of the grounds raised by the parties except placing reliance on one decision for allowing the writ petition whereas the Division Bench allowed the State's appeal without dealing with any of the issues raised by the parties in the writ petition and without assigning any reason as to why the writ petition deserved to be dismissed. What the Division Bench was required to do while deciding the appeal, it was done by the Division Bench while deciding the review application.

The scope of the appellate powers and the review powers are well defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record. The power of review is not to be confused with the appellate power. The review petition/application cannot be decided like a regular intra court appeal. On the other hand, the scope of appeal is much wider wherein all the issues raised by the parties are open for examination by the Appellate Court.

A fortiori, what was not decided in appeal by the Division Bench could not be decided by the Division Bench while deciding the review application. The orders passed by the High Court, i.e., (writ Court and Division Bench) are bad in law and cannot be legally sustained for want of any reason, discussion and finding on any of the grounds/issues raised by the parties in support of their respective contentions. Since the matter is pending for the last three decades, it is just and proper to remand the case (writ petition) to the Division Bench for its decision afresh on merits in accordance with law instead of remanding it to the Writ Court. The impugned orders are set aside and the writ petition is remanded to the Division Bench for its decision afresh on merits in accordance with law. The appeals succeed and are accordingly allowed.

Tags : Application Review Maintainability

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