SIVAKAMI & ORS. versus STATE OF TAMIL NADU & ORS. on 12 March 2018

[2018] 3 S.C.R. 633

SIVAKAMI & ORS.

v.

STATE OF TAMIL NADU & ORS.

(Civil Appeal Nos. 2749-2750 of 2018)

MARCH 12, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Judgment/Order:

Non-reasoned order – Sustenance of – Writ petition beforeHigh Court, challenging land acquisition proceeding, allowed bySingle Judge of High Court – Division Bench of High Court in writappeal set aside the order of Single Judge on the ground that theorder was non-reasoned – Review petition dismissed – On appeal,held: Division Bench rightly set side the order of Single Judgeholding it to be non-reasoned, but Division Bench also failed togive its own reasoning on all the issues while deciding the appeal –It was necessary for the Division Bench to deal with all the groundsraised by the parties while reversing the order of writ court and torecord their own findings by assigning reasons – Matter remitted toDivision Bench of High Court – Land Acquisition.

Code of Civil Procedure, 1908:

Or. XLVII r. 1 – Review jurisdiction – Scope of – Distinctionfrom appellate jurisdiction – Held: Power of review is very limited– It cannot be decided like a regular intra-court appeal, scopewhereof is much wider, wherein all the issues raised by the partiesare open for examination by the appellate court.

Allowing the appeals, the Court

HELD: 1. Division Bench of High Court in writ appealhaving rightly observed that the Single Judge neither discussedany issue nor gave his reasoning and nor even dealt with any ofthe grounds raised by the parties in support of their case and yetallowed the writ petition and quashed the acquisitionproceedings, erred in not dealing with any of the issues arising inthe case. [Para 14] [637-A]

633

A

B

CD

E

F

G

H

A2. Division Bench should have either dealt with all theissues raised by the parties and given its own reasoning on allsuch issues while deciding the appeal or remanded the case tothe writ Court (Single Judge) for deciding the appellants’ writpetition afresh on merits and to pass a reasoned order dealingwith all the grounds raised by the parties in support of theirBrespective contentions. [Para 15] [637-F-G]

3. It was necessary for the Division Bench to deal with allthe grounds raised by the parties while reversing the order ofwrit Court and to record their own findings by assigning reasonsin support of the conclusion. It was, however, not done.C[Para 17] [638-A]

4. What the Division Bench was required to do whiledeciding the appeal, it was done by the Division Bench whiledeciding the review application. The order in review applicationruns into 10 pages whereas the order in appeal runs into 6 pages.DSuch approach of the Division Bench cannot be countenancedwhile deciding the appeal and the review application. The scopeof the appellate powers and the review powers are well defined.The power of review under Order 47 Rule 1 of the Code of CivilProcedure, 1908 is very limited and it may be exercised only ifEthere is a mistake or an error apparent on the face of the record.The power of review is not to be confused with the appellatepower. The review petition/application cannot be decided like aregular intra court appeal. On the other hand, the scope ofappeal is much wider wherein all the issues raised by the partiesare open for examination by the Appellate Court. What was notFdecided in appeal by the Division Bench, could not be decided bythe Division Bench while deciding the review application. It isfor this reason, review order is also set aside. [Paras 19, 20 and21] [638-D-E, G]

5. Thus, the orders passed by the High Court, i.e. (writGCourt and Division Bench) are bad in law and cannot be legallysustained for want of any reason, discussion and finding on any ofthe grounds/issues raised by the parties in support of theirrespective contentions. Since the matter is pending for the lastthree decades, it is just and proper to remand the case (writ H

petition) to the Division Bench for its decision afresh on merits,in accordance with law instead of remanding it to the Writ Court.[Paras 22 and 23] [638-H; 639-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.2749-2750 of 2018.

From the Judgment and Order dated 13.03.2013 of the High Courtof Judicature at Madras in Review Application No. 77 of 2012.

A. Mariarputham, Sr. Adv., Ms. Aruna Mathur, P. Malaichamy,Avneesh Arputham (for M/s. Arputham Aruna and Co.), Advs. for theAppellants.

Subramonium Prasad, Thomas P. Joseph, Sr. Advs., B. VinodhKanna, M. Yogesh Kanna, Ms. Sujatha Bagadhi, P. V. Yogeswaran,Ashish Kumar Upadhyay, Bhuwan Jayant, B. Balaji, K. V. Vijayakumar,Ms. Maitreyee Mishra, Advs. for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are directed against the final judgment and orderdated 13.03.2013 passed by the High Court of Judicature at Madras inReview Application No.77 of 2012 in W.A. No.868 of 2011 whereby theDivision Bench of the High Court dismissed the review application filedby the appellants herein as not maintainable and also on merits and orderdated 02.09.2008 in WA No.868 of 2001 whereby the Division Benchset aside the order dated 06.01.1997 passed by the Single Judge of theHigh Court which was in favour of the appellants herein.

3. These appeals involve a short point. Few facts need mentioninfra to appreciate the point involved in the appeals.

4. The appellants herein are the writ petitioners before the HighCourt in the writ proceedings out of which these appeals arise.

5. The appellants claim to be the owners of the land in questionadmeasuring around 1.52 acres in Survey No.142/1A situated at GanapathiVillage, Coimbatore Taluk.

6. The land in question was the subject matter of land acquisitionproceedings under the Land Acquisition Act, 1894 (hereinafter referredto as “the Act”) in the year 1985 at the instance of State of Tamil Nadu, A

B

C

D

E

F

G

H

Awhich had issued notifications under Sections 4 and 6 of the Act for itsacquisition. The appellants, felt aggrieved of the acquisition of their landin question, filed Writ Petition No.5220 of 1987 in the High Court atMadras and questioned therein the legality and correctness of the entireacquisition proceedings including the orders in G.O. Ms. No.1119, SocialWelfare Department dated 15.05.1985 and G.O.Ms. No.1536, SocialBWelfare Department dated 18.06.1986.

7. The challenge to the acquisition proceedings was on severalgrounds as is clear from the grounds taken by the appellants (writpetitioners) in the writ petition and the SLP.

C8. The writ petition was contested by the State wherein it defendedthe acquisition proceedings as being legal, proper and in conformity withthe provisions of the Act.

9. The Single Judge, by order dated 06.01.1997, allowed theappellants’ writ petition and quashed G.O.Ms. No.1119 dated 15.05.1985Dand G.O. Ms. No. 1536 dated 18.06.1986.

10. The State felt aggrieved and filed intra court appeal beforethe Division Bench out of which these appeals arise. By impugned order,the Division Bench allowed the State’s appeal and while setting asidethe order of the Single Judge dismissed the appellants’ writ petition. InEother words, the acquisition proceedings were upheld by the DivisionBench as being legal and proper. Against the said order, review applicationwas filed by the appellants herein but it was dismissed. It is againstthese two orders of the Division Bench, the writ petitioners felt aggrievedand filed these appeals by way of special leave in this Court.

F

F

11. Heard Mr. A Mariarputham, learned senior counsel for theappellants and Mr. Thomas P. Joseph, learned senior counsel, Mr. B.Balaji and Mr. K.V. Vijaya Kumar, learned counsel for the respondents.

12. Having heard the learned counsel for the parties and on perusalGof the record of the case, we are inclined to allow the appeals and whilesetting aside the impugned orders, remand the case to the Division Benchfor deciding the writ petition filed by the appellants afresh on merits.

13. In our considered opinion, the reasons to remand the case tothe Division Bench are more than one, which are set out hereinbelow.

H

14. First, the Division Bench in Paras 4 and 5 of its main orderdated 02.09.2008 in W.A.No.868 of 2001 having rightly observed thatthe Single Judge neither discussed any issue nor gave his reasoning andnor even dealt with any of the grounds raised by the parties in support oftheir case and yet allowed the writ petition and quashed the acquisitionproceedings erred in not dealing with any of the issues arising in thecase, It is apposite to reproduce paras 4 and 5 hereinbelow:

“4. From the impugned order passed by the learned SingleJudge, it would be evident that the learned Single Judge,without discussing the relevant facts of the case pertainingto the writ petitioners (respondents 1 to 4 in this writ appeal)and without analyzing the relevant proposition of law laiddown by a Single Judge of this Court in the decisionreported in 1994 Writ L.R. 764 (Seethalakshmi/Ramakrishnanda vs. Special Tahsildear (LA) II, BharathiyarUniversity, Coimbatore and another) and withoutconsidering the question as to whether the case of the writpetitioners, was similar to the one reported in 1994 WritL.R. 764 (supra), merely allowed the writ petition based onthe submission made by the learned counsel appearing forthe respective parties.

5. In the facts and circumstances, as contended by thelearned counsel appearing for the appellant-State, theimpugned order passed by the learned Single Judge, canbe held to be not a reasoned order, erroneous and notsustainable in the eye of law. We accordingly set aside theimpugned order passed by the learned Single Judge.”

15. Second, in the light of afore-mentioned findings, the DivisionBench should have either dealt with all the issues raised by the partiesand given its own reasoning on all such issues while deciding the appealor remanded the case to the writ Court (Single Judge) for deciding theappellants’ writ petition afresh on merits and to pass a reasoned orderdealing with all the grounds raised by the parties in support of theirrespective contentions.

16. The Division Bench, however, simply allowed the State’sappeal and, in consequence, dismissed the writ petition and upheld theacquisition proceedings as being legal and proper and that too withoutassigning any reason in support thereof.

AB

C

D

E

F

G

H

A17. Third, it was necessary for the Division Bench to deal with allthe grounds raised by the parties while reversing the order of writ Courtand to record their own findings by assigning reasons in support of theconclusion. It was, however, not done.

18. In our considered opinion, this appears to be a case where theBSingle Judge (writ Court) allowed the appellants’ writ petition withoutassigning any reason and without dealing with any of the grounds raisedby the parties except placing reliance on one decision for allowing thewrit petition whereas the Division Bench allowed the State’s appealwithout dealing with any of the issues raised by the parties in the writpetition and without assigning any reason as to why the writ petitionCdeserved to be dismissed.

19. In our view, what the Division Bench was required to do whiledeciding the appeal, it was done by the Division Bench while decidingthe review application. We find that the order in review application runsinto 10 pages whereas the order in appeal runs into 6 pages. We cannotDcountenance such approach of the Division Bench while deciding theappeal and the review application.

20. The scope of the appellate powers and the review powers arewell defined. The power of review under Order 47 Rule 1 of the Codeof Civil Procedure, 1908 is very limited and it may be exercised only ifEthere is a mistake or an error apparent on the face of the record. Thepower of review is not to be confused with the appellate power. Thereview petition/application cannot be decided like a regular intra courtappeal. On the other hand, the scope of appeal is much wider whereinall the issues raised by the parties are open for examination by theFAppellate Court

21. A fortiori, what was not decided in appeal by the DivisionBench could not be decided by the Division Bench while deciding thereview application. It is for this reason, we are also constrained to setaside the review order.G22. In the light of foregoing discussion, we are of the view that

22. In the light of foregoing discussion, we are of the view thatthe 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 partiesin support of their respective contentions.

H

23. Since the matter is pending for the last three decades, weconsider it just and proper to remand the case (writ petition) to the DivisionBench for its decision afresh on merits in accordance with law insteadof remanding it to the Writ Court.

A

24. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. The impugned orders are set aside and theBwrit petition is remanded to the Division Bench for its decision afresh onmerits in accordance with law.

25. We, however, make it clear that having formed an opinion toremand the case to the Division Bench, we did not apply our mind to themerits of the controversy. We, therefore, request the High Court (DivisionBench) to decide the writ petition in accordance with law preferablywithin six months uninfluenced by any of our observations.

C

Kalpana K. Tripathy

Appeals allowed.

D

E

F

G

H