Per incuriam; Kashibhai Ishwarbhai Patel Vs. Special Land Acquisition Officer [Gujarat High Court, 12-08-2016]

Contents

Per incuriam – Rule of – A decision is per incuriam when a Court has acted in ignorance of its own previous decision or of a decision of a Court of coordinate jurisdiction or of a superior Court on the same issue or, further, has omitted to consider any statute while deciding the issue.


# IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MS JUSTICE SONIA GOKANI

Date : 12/08/2016

MISC. CIVIL APPLICATION NO. 959 of 2015 in FIRST APPEAL NO. 631 of 2005

KASHIBHAI ISHWARBHAI PATEL & 2 …. Applicants Versus SPECIAL LAND ACQUISITION OFFICER & 2

Appearance: MR MAYUR R. SHAH, ADVOCATE, FOR MR PM LAKHANI, ADVOCATE WITH MRS R P LAKHANI, MR JAIVIK UDAY BHATT, ADVOCATES for the Applicant(s) No. 1 – 2.6 , 3 – 3.3 MR NIRAJ ASHAR, ASSISTANT GOVERNMENT PLEADER for the Respondents MS MEGHA JANI, AMICUS CURIAE

JUDGMENT

(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)

1. This application has been preferred by the applicants with a prayer to declare that the judgment dated 03.10.2006 passed in First Appeals Nos.629 to 631 of 2005 is per incuriam and, further, to recall and correct the said judgment.

2. The brief factual background in which the application has been made, would be necessary. The State Government issued a Notification under

# Section 4 of the Land Acquisition Act, 1894

(“the Act”) for the acquisition of certain lands mentioned therein, situated at village Valad, Taluka and District: Gandhinagar, for the public purpose of the Dhanap Muthiya Kans Project. The said Notification was published in the Official Gazette on 18.12.1992. A Declaration under Section 6 of the Act was published on 16.03.1993. In the proceedings before the Special Land Acquisition Officer, the claimants appeared and claimed compensation at the rate of Rs.500/­ per square meter. The Special Land Acquisition Officer, by his award dated 18.03.1994, offered compensation to the claimants at the rate of Rs.31/­ per square meter. The claimants, therefore, filed applications under Section 18 of the Act, requiring the Special Land Acquisition Officer to refer the matter to the Court for the determination of the just amount of compensation payable to them. Accordingly, references were made to the District Court, Gandhinagar, which were numbered as L.A.Q. Case No.677/1998 to 679/1998. After appreciation of the oral and documentary evidence, the Reference Court awarded additional compensation to the claimants at the rate of Rs.160/­ per square meter, over and above Rs.31/­ per square meter awarded by the Special Land Acquisition Officer, making it Rs.191/­ per square meter in all, by a judgment and award dated 19.02.2006. Against the above judgment, the State Government preferred appeals before this Court which were numbered as First Appeals No.629/2005 to 631/2005. This Court (Coram: J.M.Panchal [as His Lordship then was] and Smt.Abhilasha Kumari, JJ), by a judgment dated 03.10.2006, allowed the appeals preferred by the State Government and modified the judgment and award passed by the Reference Court by holding that the claimants would be entitled to a total amount of compensation at the rate of Rs.80/­ per square meter, for their acquired lands.

3. Applicant No.1 (Kashibhai Ishwarbhai Patel) filed a Special Leave Petition before the Supreme Court against the judgment and order of this Court, which came to be dismissed, by an order dated 30.03.2007.

4. Applicant No.1, thereafter, filed a Review Petition, being Review Petition (C) No.29033/2010 in SLP (C) No.6735/2007. The Review Petition was dismissed by the Supreme Court both on the ground of delay and also on merits, by an order dated 25.08.2011.

5. It appears that some of the other applicants also preferred a petition for Leave to Appeal in the Apex Court against the judgment of this Court, which was dismissed on the ground of unexplained delay. On merits, as well, the Supreme Court was satisfied that this Court has rightly reduced the compensation payable to the petitioners by relying upon an earlier judgment of a co­ordinate Bench passed in First Appeal Nos.2481 to 2507 of 1997 which, in turn, was based on a judgment of the Supreme Court in Civil Appeal Nos.923­967 of 1998. This order was passed by the Supreme Court on 14.12.2012. The Review Petition preferred by these applicants also came to be rejected by an order dated 10.07.2013.

6. Applicant No.1 thereafter, preferred a Curative Petition before the Supreme Court. By an order dated 21.01.2014, the Supreme Court rejected the said petition on the ground that no case is made out within the parameters indicated in the decision in the case of

# Rupa Ashok Hurra v. Ashok Hurra & Anr. reported in (2002) 4 SCC 388

7. In the above background, Mr.Mayur R. Shah, learned advocate for Mr.P.M.Lakhani, learned advocate for the applicants has advanced elaborate and lengthy submissions, the gist of which is as follows:

8. That the judgment of this Court dated 03.10.2006, ought to be recalled as it has been obtained by the State Government by suppressing an important document in the shape of the Notification regarding Circle Rates issued in the year 1999, fixing the Circle Rates of the area in question at Rs.500/­ per square meter. It is submitted that when the Circle Rate was declared on 01.09.1999, it reflected the average price of the lands during 1992­93 to 1997­98. The applicants, being agriculturists, were unaware of the same and the respondent Government authorities deliberately withheld this information at the time of hearing before the Reference Court. The Government authorities, being the guardians of the rights of citizens, ought to have disclosed the complete material before the Reference Court in order to enable it to arrive at a just conclusion. Had the Government authorities disclosed this vital information, the Reference Court would have assessed the market price of the lands in question at a much higher price and awarded at least Rs.500/­ per square meter as compensation. Moreover, had the Circle Rates been disclosed, this Court would not have reduced the compensation from Rs.191/­ per square meter to Rs.80/­ per square meter. Rather, it would have increased it to at least Rs.500/­ per square meter. The acquiring body cannot act like a private litigant. It has an inherent obligation to act fairly and reasonably, for the best interest of the citizens and in furtherance of the principles of social welfare and equal justice as enshrined in the Preamble to the Constitution of India. It is contended that the suppression of the vital document regarding Circle Rates vitiates not only the judgment dated 19.02.2006 passed by the Reference Court, but also the judgment of this Court that is sought to be recalled.

9. In support of the above submissions, reliance is placed upon the judgment of the Supreme Court in

# Badami (Deceased) By Her LR v. Bhali ­ (2012) 11 SCC 574

wherein it has been held that a judgment and decree obtained by fraud would be a nullity.

10. Another judgment relied upon on behalf of the applicants is that in the case of

# S.P.Chengalvaraya Naidu (Dead) By Lrs v. Jagannath (Dead) By LRs And Others, (1994) 1 SCC 1

wherein the same principle of law has been reiterated that a judgment or decree obtained by fraud is to be treated as a nullity and can be questioned even in collateral proceedings.

11. It is further submitted that this Court has inherent power to recall its own judgment which was obtained by fraud or misrepresentation, as has been held by the Andhra Pradesh High Court in

# P.Satyanarayana v. The Land Reforms Tribunal and others, AIR 1980 AP 149

12. Another judgment on this issue relied upon on behalf of the applicants is in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal – AIR 1962 SC 527.

13. Reference has also been made to the judgment of the Constitution Bench of the Supreme Court in the case of

# A.R. Antulay v. R.S. Nayak and another,  AIR 1988 SC 1531

(1), by submitting that in rectifying an error, no procedural inhibitions should debar the Court as no person should suffer by reason of any mistake of the Court.

14. Reliance has also been placed upon a judgment of this Court in

# Soni Vrajlal Jethalal v. Soni Jadavji Govindji and others, AIR 1972 Gujarat 148

to buttress the submission regarding the inherent powers of the Court which ought to be exercised for setting aside the orders that were wrongly passed.

15. Reliance has been placed upon the judgment of this Court in

# Amratlal Manilal Modi v. Chachraji Dalaji And Another,  1967 VIII GLR 429

wherein it has been held that the Agricultural Lands Tribunal, which is a quasi­ judicial authority, is entitled to inquire into the fraud and rehear the proceedings.

16. On the point that the Land Acquisition Officer is bound to exercise his own judgment as to the correct basis of valuation and the District Judge must also exercise his own judgment in reference proceedings, reliance has been placed upon a judgment of the Privy Council in the case of

# M. Samiullah v. Collector of Aligarh reported in AIR (33) 1946 Privy Council 75

17. It is next submitted that a judgment obtained by fraud is nothing but a tortuous wrong, hence, by virtue of Section 22 of the Limitation Act, 1963, no period of limitation would apply. In support of this submission, reliance has been placed upon

# Surajmal Chunilal v. Manekchand Kapurchand, BLR VI 704

18. It is contended that even if the factor of limitation is to be considered, it would run from the date when knowledge is gained. In the present case, the claimants gained knowledge of the Circle Rates for the first time only in May 2013, when the litigation was not completely over. The applicants filed a Curative Petition before the Supreme Court in which the plea regarding Circle Rates was raised. However, the same was summarily rejected. In the year 2014­ 15, upon legal advice, the applicants filed the present application before this Court, for recalling the judgment passed in the First Appeals, for which no limitation has been prescribed under the Statute. There is, therefore, no impediment before this Court in entertaining the application on the ground of maintainability, as well as on limitation.

19. It is further submitted that in view of the summary dismissal of the Special Leave Petitions, review petitions and the Curative Petitions by the Apex Court, the applicants are entitled to file the present application for review/ recall of the judgment of this Court, as the summary dismissal of the said petitions would not operate as res judicata. In support of this submission, reliance has been placed upon a judgment of the Supreme Court in the case of

# Kunhayammed And Others v. State of Kerala, (2000) 6 SCC 359

which has been followed in

# Palani Roman Catholic Mission v. S.Bagirathi Ammal, (2009) 16 SCC 657

wherein it is held that the dismissal of an SLP by a non­speaking order does not constitute res judicata and does not culminate in the merger of the impugned decision. Hence, it would not, by itself, preclude the aggrieved party from seeking relief under the writ jurisdiction or review jurisdiction of the High Court.

20. It is contended that in the present case, the plea of the judgment having been obtained by fraud has not been raised before this Court in appeal nor was it raised before the Supreme Court in the SLP. It was raised for the first time in the review proceedings before the Supreme Court, but was not considered. It is submitted that a Curative Petition is not an appellate remedy but has been evolved by the Apex Court by exercising power under Article 142 of the Constitution. Hence, the dismissal of a curative petition, that too summarily, would not operate as res judicata or attract the doctrine of merger. In the present case, the curative petition was dismissed on the ground that it does not satisfy the test laid down in Rupa Ashok Hurra v. Ashok Hurra & Anr. (supra), which provides that for a curative petition to be maintainable, the grounds raised in it must have been raised in the review petition. The curative petition was, therefore dismissed as not being maintainable. There is no bar in agitating the plea for recall of the judgment dated 03.10.2006 before this Court and for rehearing the First Appeal, taking into consideration the fact that the document regarding Circle Rates was suppressed.

21. Learned counsel for the applicants has further submitted that the judgment of this Court sought to be recalled is per incuriam and is liable to be set aside on this ground. It was the duty of the State Government to disclose all material at the time of the Reference, in order to enable the Court to arrive at a just decision to pay compensation to the affected parties. Failure in this duty amounts to the commission of a continuing wrong, for which no period of limitation would apply. In support of this submission, reliance is placed upon the case of Badami (Deceased) By Her LR v. Bhali (supra). Reliance has also been placed upon

# Firm Ganpat Ram Rajkumar v. Kalu Ram and others, AIR 1989 SC 2285

in order to buttress the submission that till a tortuous wrong is redressed it remains a continuing wrong and for such continuing wrong, no limitation would apply by virtue of Section 22 of the Limitation Act.

22. It is next submitted that for the very same land in question, bearing Survey No.256, there was another Notification under Section 4 of the Act in, or around, the year 1993, for which the Reference Court, on 19.02.2004, decided the claim amount of Rs.238/­ per square meter. Against this, an appeal was filed by the State Government before this Court, being First Appeal No.3248 of 2006, which was dismissed by a learned Single Judge of this Court by a judgment dated 01.08.2011. Till date, no appeal has been filed before any Court of law, including the Apex Court against this judgment. The State Government has accepted the market value of the said land at the rate of Rs.236/­ per square meter, keeping in mind its own Circle Rates. It is submitted that by virtue of the said judgment of the learned Single Judge dated 01.08.2011, there are two conflicting judgments for the same parcel of land, being Survey No.256, pertaining to the same period of acquisition. The judgment dated 01.08.2011 supports the claim of the applicants for compensation at the rate of Rs.500/­ per square meter on the basis of the Circle Rates.

23. Reference has also been made to the judgment of the Supreme Court in the case of

# Bai Dosabai v. Mathurdas Govinddas and others, AIR 1980 SC 1334

in order to submit that events and changes in law occurring during the pendency of the appeal can be taken into consideration.

24. On the strength of the above submissions, it is urged that the application be allowed.

25. Ms.Megha Jani, learned amicus curiae, has submitted that the judgment dated 03.10.2006, which is sought to be declared as per incuriam cannot be considered to be so, for the reason that the rule of per incuriam can only be applied where a Court omits to consider a binding precedent of the same Court or of the superior Court rendered on the same issue, or where a Court omits to consider any statute while deciding that issue. In the instant case, it is not the case of the applicants that the judgment dated 03.10.2006, sought to be declared per incuriam, was passed in ignorance of a binding precedent of this Court or of the Supreme Court, or that this Court omitted to consider any statute while deciding the issue involved in the appeal. Thus, no case is made out for the grant of the prayer to declare the judgment dated 03.10.2006 per incuriam. The question as to whether a decision rendered per incuriam can be reviewed between the same parties or not, however, does not arise in the present case as the basic requirements that renders a decision per incuriam are not satisfied.

26. In support of this submission, reliance has been placed upon a judgment of the Supreme Court in

# State of Bihar v. Kalika Kuer alias Kalika Singh And Others,  (2003) 5 SCC 448

27. It is further submitted by learned amicus curiae that in a given case, if a party establishes that a judgment is per incuriam, the Court may review it in the same proceedings, as has been held by the Supreme Court in the case of

# A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

In the said case, the Supreme Court reopened the question as the earlier directions were found to be violative of the limits of jurisdiction, resulting in the deprivation of fundamental rights (Paragraphs 42 to 48). The Court also acted on the principles of actus curiae neminem gravabit – the act of the Court shall prejudice no man and ex debito justitiae – On account of justice. (Paragraphs 57, 75).

28. It is submitted by learned amicus curiae that in substance, the present application is one for review. No case is made out for entertaining the said application as such, as it is barred by the law of limitation. The order dated 03.10.2006 is sought to be recalled / reviewed by filing an application in the year 2016, and that too, without filing an application for condonation of delay. Further, the application fails to establish that the applicant has discovered any new or important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made, or on account of some mistake or error apparent on the face of the record or any other sufficient reason for the review of the judgment. The present application cannot be treated as one for review, considering that the applicant has not even made the necessary averments for the review of the judgment on the grounds available under

# Order XLVII Rule 1 of the Code of Civil Procedure, 1908

(“the Code”).

29. Learned amicus curiae has further submitted that even on merits, no case is made out on the basis of the three grounds canvassed on behalf of the applicant. Insofar as the first ground regarding Circle Rates is concerned, it is the contention of the applicant that the Circle Rates were declared by the Deputy Collector, Stamp Duty Valuation, Gandhinagar, on 01.09.1999 and the said rates ought to have been considered and compensation been awarded on that basis, at the rate of Rs.500/­ per square meter. It is contended that the Circle Rates declared on 01.09.1999 would not have any bearing on the present case, as the relevant date for determining the compensation under Section 23 of the Act is the date of the publication of the Notification under Section 4, which is 18.12.1992, much prior to the declaration of the Circle Rates. The award was made by the Collector on 18.03.1994, before the circle rates were notified. Apart from the above, the land in question is described as agricultural land. There is nothing on record to indicate that it was converted into non­agricultural land. The rate for agricultural land, even as per the Circle Rates notified on 01.09.1999, would be Rs.350/­ per square meter. Moreover, as held by the Supreme Court in the case of

# Government (NCT of Delhi) And Others v. Ajay Kumar And Others, (2014) 13 SCC 734

Circle Rates do not constitute the sole criteria for fixing the market value of the acquired land and the Land Acquisition Collector is required to make determination by taking into consideration the relevant factors and the evidence which may, in an appropriate case, include Circle Rates.

30. Insofar as the second reason regarding the sale instance in favour of Valad Dudh Utpadak Sahakari Mandali Limited is concerned, the contention of the applicants is that this sale instance indicates the rate of Rs.200/­ per square meter and hence, the compensation to the applicants should have been awarded accordingly. The letter in favour of the Chairman, Valad Dudh Utpadak Sahakari Mandali Limited is again of 24.09.1999. In the circumstances, the said rate is not a relevant consideration for awarding compensation for the acquisition in question.

31. Learned amicus curiae has further submitted that the third ground canvassed on behalf of the applicants regarding the contrary view taken by the High Court in the judgment and order dated 01.08.2011 passed in First Appeal No.3248 of 2006, is also not relevant to further the contention that the judgment of this Court be declared per incuriam. The said contention is fallacious, as a learned Single Judge of this Court, vide the judgment and order dated 01.08.2011, has upheld the award of an additional amount of compensation at the rate of Rs.190/­ per square meter, over and above the amount of Rs.48/­ per square meter awarded by the Special Land Acquisition Officer in respect of a similar case pertaining to land forming a part of the same survey number, and the said judgment would not have any binding effect on the Division Bench. The said judgment is rendered subsequent to the judgment sought to be declared per incuriam. Moreover, it has been passed by a learned Single Judge.

32. Learned amicus curiae has further contended that the application may also not be entertained, considering that the review petition filed before the Supreme Court on the ground that the judgment of the High Court is per incuriam and the Curative Petition seeking review on the ground of non­consideration of Circle Rates and the effect of judgment of the learned Single Judge dated 01.08.2011 in First Appeal No.3248 of 2005, were dismissed on 25.08.2011 and 21.01.2014, respectively. Under the circumstances, the application may not be entertained on the ground of delay, laches, acquiescence and even on merits.

33. Mr.Niraj Ashar, learned Assistant Government Pleader, has submitted that he would adopt the arguments advanced by the learned Amicus Curiae and has pressed for the rejection of the application on the very same grounds as canvassed by her. In addition, learned Assistant Government Pleader has relied upon the following judgments on the scope of review jurisdiction: (1)

# Gujarat University v. Miss Sonal P. Shah, 1982(1) GLR 171

FB, (2)

# Promoters & Builders Assn. of Pune v. Pune Municipal Corpn. and Others, (2007) 6 SCC 143

and (3)

# Haridas Das v. Smt. Usha Rani Banik and Ors.,­ AIR 2006 SC 1634

34. It is submitted that no grounds of review are made out by the applicants and the judgment of this Court sought to be reviewed does not suffer from any error apparent on the face of the record, therefore it cannot be said to be per incuriam and the present application may be rejected.

35. We have heard learned counsel for the applicants at length, over an extended period of time, considered the submissions advanced by him, learned amicus curiae and learned Assistant Government Pleader and have thoughtfully perused the material on record. We have also given our anxious consideration to the oral and written submissions advanced before us.

36. It would be appropriate, at the outset, to examine whether, despite the dismissal of the Special Leave Petitions, Review Petitions and Curative Petition by the Supreme Court, the applicants would be entitled to maintain the present application before this Court. Applicant No.1 (Kashibhai Ishwarbhai Patel) filed a Special Leave Petition, being Special Leave to Appeal (Civil) No. …../2007 CC 2814/07 against the judgment and order dated 03.10.2006, passed by this Court in First Appeal No.631 of 2005, which has been summarily dismissed by the Supreme Court by an order dated 30.03.2007. Thereafter, applicant No.1 preferred a review petition, being Review Petition (C) No.D29033/2010 in SLP (C) No.6735/2007, which has been dismissed on the ground of delay and on merits by an order dated 25.08.2011, passed by the Supreme Court. The Curative Petition filed by this applicant, being Curative Petition (Civil) No.427 of 2013 in Review Petition (Civil) No.2183 of 2011 in Special Civil Leave Petition (Civil) No.6735 of 2007, has been dismissed by an order dated 21.01.2014. The Supreme Court has stated in the said order that no case is made out within the parameters indicated in its decision in

# Rupa Ashok Hurra v. Ashok Hurra & Anr. reported in 2002(4) SCC 388

37. Other claimants filed a Special Leave Petition being Special Leave to Appeal (Civil) …../2010 (CC 15587­15588/2010), which has been dismissed on the ground of delay, as well as on merits, by an order dated 14.12.2012. The Review Petitions filed by the applicants being Review Petition (C) Nos.1117­1118 of 2013 in S.L.P. (C) Nos.39115­39115 of 2012 have been dismissed by an order dated 10.07.2013 passed by the Supreme Court holding that the order of which review has been sought does not suffer from any error apparent.

38. It is submitted on behalf of the applicants that the order of dismissal of the SLPs by a non­ speaking order would not constitute res­ judicata and would not culminate in the merger of the impugned decision. Similarly, according to the learned counsel for the applicants, the summary dismissal of the review and curative petitions would not attract the rule of res­ judicata or doctrine of merger.

39. At this juncture, it would be pertinent to advert to the legal position in this regard.

40. In the case of Kunhayammed And Others v. State of Kerala (supra), the Supreme Court has held as below:

Dismissal of SLP by non­speaking or speaking order: Effect A petition for leave to appeal to the Supreme Court may be dismissed by a non­ speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non­speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, the Supreme Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by the Supreme Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. [Paras 27, 40, 44(iv) and (v)]

41. Further, in Palani Roman Catholic Mission v. S.Bagirathi Ammal (supra), following the view in Kunhayammed And Others v. State of Kerala (supra), the Supreme Court has held as under:

“4. This Court in Kunhayammed v. State of Kerala has taken the view that an order of the nature made in the special leave petition arising out of the order of the High Court, which is a non­speaking order, does not attract the doctrine of merger and it would not substitute the order impugned in the special leave petition proceedings with the result that the Court was not inclined to exercise its discretion so as to allow the appeal to be filed.

5. This Court has in the said decision proceeded to state that a review can be filed in such a case even after special leave petition is dismissed inasmuch as no leave had been granted to file an appeal and until there is no appeal in the eye of the law in the superior court, review can be preferred in the High Court.”

42. Taking into consideration the aspect that the Special Leave Petitions, Review Petitions and Curative Petitions have been dismissed summarily by non­speaking orders, without giving any reasons, in view of the principles of law enunciated by the Supreme Court in the above two judgments, we find that the bar of res­judicata would not apply to the present application and the doctrine of merger would not be attracted. Hence, the applicants are entitled to maintain the present application for the review/ recall of the judgment of this Court.

43. We may now examine the submissions advanced on behalf of the applicants, on merits.

44. One of the main grounds in support of the prayer for the recall of the judgment of this Court, as canvassed by learned counsel for the applicants is that, a Notification regarding the fixation of Circle Rates in the area in question at the rate of Rs.500/­ per square meter (for non­ agricultural land), was issued on 01.09.1999, reflecting the average price of the lands for the past five years, during 1992­93 to 1997­98. According to the applicants, the compensation awarded to them ought to have been assessed keeping in mind the said Circle Rates and the failure on the part of the respondent authorities to do so, amounts to a suppression of facts and playing fraud with the Court. It has been strenuously argued by Mr.Mayur Shah, learned advocate for the applicants, that the judgment ought to be recalled as it has been obtained by playing fraud with the Court by suppressing the vital document regarding Circle Rates. As per the submission, had this document been before the Reference Court or, for that matter, this Court, the compensation awarded to the applicants would have been much more and this Court may not have reduced it by the judgment sought to be reviewed.

45. It is noteworthy that the Notification regarding Circle Rates has been issued under Section 32A of the Bombay Stamp Act, 1958. Being a Notification issued under the statute, we find that there can be no question of its suppression by any authority of the State Government. It is a public document, published by the concerned authority. On the contrary, it was for the applicants, themselves, to bring the Notification before the Reference Court in order to enhance their own claim. The submission that the applicants, being agriculturists, were unaware of the Notification cannot be considered as a valid ground to cover up their failure to do so. It is a settled position of law that ignorance of law is no excuse. The Notification regarding Circle Rates is dated 01.09.1999, whereas the judgment of the Reference Court is dated 19.02.2004. The said Notification is a public document which has been issued under the statute. Under the circumstances, it cannot be said that the authorities have suppressed it in order to play fraud with the Court. The applicants cannot take advantage of their own purported ignorance or carelessness, on the basis of an afterthought, by contending that this document has been deliberately suppressed by the respondents. When the applicants have themselves failed to assert their claim on the basis of the document regarding Circle Rates which was available in the public domain at the relevant point of time, the respondents cannot be held responsible for their own negligence in putting forth the best evidence available in furtherance of their claim.

46. Great emphasis has been laid on behalf of the applicants on the ground of fraud. According to learned counsel for the applicants, the alleged suppression of the Circle Rates by the respondents amounts to fraud being played upon the Court and as per his submission, the judgment of this Court has been obtained by fraud. It is contended that on this ground alone, the said judgment is liable to be declared per incuriam.

47. In support of this contention, reference has been made to the case of Badami (Deceased) By Her LR v. Bhali (supra), wherein it has been held that a judgment and decree obtained by playing fraud on the Court would be a nullity. The relevant extract of this judgment is reproduced below:

“31. A person whose case is based on falsehood has no right to approach the Court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.”

The facts in the case before the Supreme Court were quite convoluted and the issue was regarding a family settlement and a consent decree, allegedly obtained by fraud. The factual matrix of the case is best illustrated in the words of the Supreme Court as below:

“36. When the second suit was filed in 1984 for title and the third suit was filed for possession thereafter, the courts below had routinely followed the principles relating to consent decree and did not dwell deep to find out how the fraud was manifestly writ large. It was too obvious to ignore. The courts below have gone by the concept that there was no adequate material to establish that there was fraud, though it was telltale. That apart, the foundation was the family arrangement. We have already held that it was not bona fide, but, unfortunately the courts below as well as the High Court have held that it is a common phenomenon that the people in certain areas give their property to their close relations. We have already indicated that by giving the entire property and putting him in possession she would have been absolutely landless and would have been in penury.

37. It is unimaginable that a person would divest herself of one’s own property in entirety in lieu of nothing. No iota of evidence has been brought on record that Bhali, the respondent herein, had given anything to Badami in the arrangement. It is easily perceivable that the rustic woman was also not old. Though the decree was passed in 1973 wherein it was alleged that the defendant was already in possession, she lived up to 1992 and expired after 19 years. It is a matter of record that the possession was not taken over and inference has been drawn that possibly there was an implied agreement that the decree would be given effect to after her death.

38. All these reasonings are absolutely non­plausible and common sense does not even remotely give consent to them. It is fraudulent all the way. The whole thing was buttressed on the edifice of fraud and it needs no special emphasis to state that what is pyramided on fraud is bound to decay. In this regard we may profitably quote a statement by a great thinker:

“Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indicts the warrant for his own arrest”.”

48. From a perusal of the above factual matrix of the case before the Supreme Court, it is clear that there is no parallel to the facts obtaining in the present application. The allegation of fraud levelled by the applicants is not against any particular person or authority but is a general and blanket allegation spanning two decades. All the concerned authorities, from time to time, could not have played fraud with the Court. No specific pleadings have been made to pinpoint the perpetrator of the fraud or illustrate the mala fide intention to play fraud with the object of cheating the applicants. Moreover, it cannot be assumed that the Court was swayed by any allegedly fraudulent considerations, except the material before it while passing the judgment.

49. It is a settled position of law that to prove fraud, there have to be specific allegations against specified persons. In the present case, there are only bald and general allegations against the authorities at large. The mala fide intention to play fraud by deliberately suppressing the document regarding Circle Rates has to be proved. Such an intention can only be formed by a particular person or authority. It cannot be a general and vague intention of all concerned authorities to play fraud from the year 1999 when the Circle Rates were notified, to the year 2013, when the applicants purportedly gained knowledge of the said Circle Rates. This submission on the part of the applicants has no basis to stand on and cannot be accepted. The principles of law enunciated by the Supreme Court in Badami (Deceased) By Her LR v. Bhali (supra), though not disputed in the context of the factual scenario of that case, would not, in our view, be applicable to the facts of the present case.

50. In S.P.Chengalvaraya Naidu (Dead) By LRs v. Jagannath (Dead) By LRs And Others (supra), also relied upon by the applicants, the Supreme Court has elaborated upon the meaning of fraud as below:

A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. (Para 6)

51. Tested on the touchstone of the above principles of law, the submissions regarding fraud advanced by learned counsel for the applicants do not pass muster as they fail to prove that the ingredients of fraud, as described by the Supreme Court, exist in the present case. It has not been specified by learned counsel for the applicants which authority is guilty of the alleged suppression of the Notification regarding Circle Rates. The said Notification is not a secret document to be hidden from the public or the Court. It was open to the applicants to make use of it as it was in existence when the matter was before the Reference Court and this Court. The applicants had produced sale instances and other documents in order to enhance their claim for compensation. Similarly, they could have produced the Circle Rates as well. Their own negligence, or failure, to do so cannot be blamed upon the respondents or termed as `cheating’ or `fraud’, on the basis of wisdom gained through hindsight.

52. There can be no doubt that this Court has the power to recall its own judgment, if it arrives at a conclusion that the said judgment has been obtained by fraud or misrepresentation, as held by the Andhra Pradesh High Court in P. Satyanarayana v. The Land Reforms Tribunal and others (supra).

53. There is also no doubt regarding the power of this Court, under Section 151 of the Code, to make orders necessary to meet the ends of justice. However, such power is to be exercised only in appropriate cases. We do not find the present case to be an appropriate one, requiring the exercise of power to recall the judgment of this Court on the ground of fraud, as we are unable to agree with the submission that it was obtained by playing fraud on the Court.

54. In Soni Vrajlal Jethalal v. Soni Jadavji Govindji and others (supra), relied upon by the applicants, this Court has held as below:

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression `the act of the Court’ is used, it does not mean merely the act of the Primary Court or of any intermediate Court of appeal but the act of the Court as a whole, from the lowest Court which entertains Jurisdiction over the matter upto the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court. (1871)3 P.C. 465 Relied on (Para 8)

55. The principles of law enunciated in the said decision cannot be disputed in the context of the facts and circumstances of that case, which were that the plaintiff, who was a minor at the time of the institution of the suit, had to run from pillar to post, with the result that fifteen years after its institution, the suit had not been entertained by any Court. Under the circumstances, this Court held that it was a fit case in order to exercise the power under Section 151 of the Code to advance the cause of substantial justice. Such are not the facts in the present case, therefore, the above principles of law would not be applicable. Here, the applicants have had recourse to the appropriate legal remedy upto the Supreme Court.

56. It is the case of the applicants that they were unaware of the Circle Rates which were notified in the year 1999, upto the time of filing the review petitions before the Supreme Court in the year 2013. At the same time, the allegation is that the Circle Rates were suppressed by the authorities before the Court. This was not one of the grounds taken by the applicants in the SLP, but appears to have been taken in the review petitions filed before the Supreme Court, that have been rejected. The applicants are now trying to unravel the entire litigation on the ground that they gained knowledge of the Circle Rates in the year 2013, despite the fact that they were fixed in the year 1999. Who can be blamed for this situation but the applicants themselves? The statutory Notification regarding Circle Rates was there for all to see. It was the responsibility of the applicants, themselves, to have presented their own case before the courts. Their own carelessness at the relevant point of time cannot be converted into an advantage by hindsight, as is sought to be done in the present case.

57. In the judgment of Amratlal Manilal Modi v. Chachraji Dalaji And Another (supra), relied upon by the applicants, it has been held that the Agricultural Lands Tribunal, being a quasi­ judicial authority, is entitled to inquire into fraud and rehear the proceedings. We do not see how this judgment is applicable in the present case, as it is a judgment of this Court that is sought to be reviewed.

58. Reliance has also been placed upon a judgment in Surajmal Chunilal v. Manekchand Kapurchand (supra). Learned counsel for the applicants has placed reliance upon Section 22 of the Limitation Act, 1963, regarding continuing breaches and torts, by submitting that in a case of a continuing breach of contract or continuing tort, a fresh period of limitation begins to run at every moment during which the breach or the tort, continues. The submission that the suppression of the Circle Rates is a continuous tort giving rise to fresh period of limitation at every moment during the continuance of such tort is difficult to accept. The present application is essentially one for the review / recall of the judgment of this Court, which ought to have been filed within a specific period of time. There is a gross delay in filing the application which is not even accompanied by an application for condonation of delay. The plea regarding fraud and gaining knowledge of the alleged suppression of Circle Rates in the year 2013 appears to be designed to overcome the obstacle of limitation but it has no legal force to do so. The Notification regarding Circle Rates is a public document available to all concerned. No case of breach of contract or tort is made out on the ground of its alleged suppression, therefore, there is no “continuing wrong” to overcome the law of limitation.

59. With regard to the submission that the judgment of this Court is per incuriam, we may refer to the principles of law enunciated by the Supreme Court in the case of State of Bihar v. Kalika Kuer alias Kalika Singh And Others (supra), referred to by the learned amicus curiae, wherein it has been held as below:

“5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsburry’s Laws of England (4th Edition) Vol.26: Judgment and Orders Judicial Decisions as Authorities (pp 297­ 98, para 578) we find it observed about per incuriam as follows:

“A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction while covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.”

Lord Godard CJ in Huddersfield Police Authorities case observed that where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

6. In a decision of this Court reported in

# Govt. of A. P. v. B. Satyanarayana Rao,  (2000) 4 SCC 262

it has been held as follows: (SCC pp. 264­65, para 8)

“The rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. …. We, therefore, find that the rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law.”

7. According to the above decision, a decision of the coordinate Bench may be said to be ceased to be good law only if it is shown that it is due to any subsequent change in law.

8. In

# State of U.P. v. Synthetics and Chemicals Ltd. ­ (1991)4 SCC 139

this Court observed:

40. `Incuria’ literally means `carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law’ is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority’. (Young versus Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law”.

60. We find much weight in the submissions of learned amicus curiae that a decision is per incuriam when a Court has acted in ignorance of its own previous decision or of a decision of a Court of coordinate jurisdiction or of a superior Court on the same issue or, further, has omitted to consider any statute while deciding the issue. In the present case, while rendering the judgment dated 03.10.2006, this Court has not omitted to take into consideration any judgment of the superior Court or of the coordinate Bench on the same issue which is a binding precedent, or failed to consider the relevant statute. The elements required to satisfy the Court that the judgment under consideration ought to be declared per incuriam are not satisfied by the applicants.

61. Reliance has been placed by learned counsel for the applicants upon a judgment of the learned Single Judge dated 01.08.2011, passed in First Appeal No.3248 of 2006, pertaining to the same area and survey number, wherein the learned Single Judge has awarded Rs.238/­ per square meter as compensation, in all. This judgment has been rendered in the year 2011, whereas the judgment of this Court that is sought to be recalled has been passed much earlier, in the year 2006. Moreover, the judgment of the learned Single Judge cannot have a retrospectively binding effect on the Division Bench, as is sought to be canvassed. In any case, the said judgment was not even in existence at the time when this Court passed the judgment sought to be reviewed. On the contrary, it seems that the judgment of this Court was not brought to the notice of the learned Single Judge while passing the judgment dated 01.08.2011 in First Appeal No.3248 of 2006.

62. It may be noted that while dismissing the Special Leave Petition preferred by some of the applicants by the order dated 14.12.2012, the Supreme Court has observed as under:

” … On merits also, we are satisfied that the High Court had rightly reduced the compensation payable to the petitioners by relying upon the earlier judgment of the co­ ordinate Bench in First Appeal Nos.2481 to 2507 of 1997 which, in turn, was based on the judgment of this Court in Civil Appeal Nos.923­967 of 1998…”

It is, therefore, clear that the judgment of this Court sought to be recalled is based upon the earlier judgment of a co­ordinate Bench in First Appeal Nos.2481 to 2507 of 1997 which, in turn, is based upon the judgment of the Supreme Court in Civil Appeal Nos.923­967 of 1998. In this view of the matter, it cannot be said that the judgment of this Court is per incuriam.

63. Emphasis has been laid by learned counsel for the applicants upon the case of A.R. Antulay v. R.S. Nayak and another (supra), in which the Constitution Bench of the Supreme Court has held, by majority, that the High Court had no jurisdiction to suo motu direct the withdrawal of a case from the Court of the Special Judge and transfer it to itself for speedier Trial. In the above context, it is held as below:

“74. Article 134(1)(b) does not recognise in every High Court power to withdraw for trial cases from any Court subordinate to its authority. At least this Article cannot be construed to mean where power to withdraw is restricted, it can be widened by virtue of Article 134(1)(b) of the Constitution. Section 374 of the Code undoubtedly gives a right of appeal. Where by a specific clause of a specific statute the power is given for trial by the Special Judge only and transfer can be from one such Judge to another Special Judge, there is no warrant to suggest that the High Court has power to transfer such a case from a Judge under Section 6 of the Act of 1952 to itself. It is not a case of exclusion of the superior Courts. So the submissions made on this aspect by Shri Jethmalani are not relevant.

75. Dealing with the submission that the order of the Constitution Bench was void or non­est and it violated the principles of natural justice, it was submitted by Shri Jethmalani that it was factually incorrect. In spite of the submissions the appellant did not make any submission as to directions for transfer as asked for by Shri Tarkunde. It was submitted that the case should be transferred to the High Court. The Court merely observed there that they had given ample direction. No question of submission arose after the judgment was delivered. In any case, if this was bad the fact that no objection had been raised would not make it good. No question of technical rules or res judicata apply, Shri Jethmalani submitted that it would amount to an abuse of the process of the Court. He referred us to

# Re Tarling, (1979) 1 All ER 981

at p.987;

# Ali v. Secretary of State for the Home Department, (1984) 1 All E.R. 1009

at 1014 and Seervai’s Constitutional Law, Vol. 1, pages 260 to 265. We are of the opinion that these submissions are not relevant. There is no abuse of the process of the Court. Shri Jethmalani submitted that there was no prejudice to the accused. There was prejudice to the accused in being singled out as a special class of accused for a special dispensation without room for any appeal as of right and without power of the revision to the High Court. There is prejudice in that. Reliance placed on the decision of this Court in

# Romesh Chandra Arora v. The State, (1960) 1 SCR 924

at p.927 : (AIR 1960 SC 154 at pp. 156­157) was not proper in the facts of this case.”

The above observations of the Supreme Court are based on the facts and circumstances of the case before it, as can be garnered from the perusal of the above extract of the judgment. They would have no bearing on the facts of the present case.

64. The applicants are now claiming that compensation at the rate of Rs.500/­ per square meter, as per the Circle Rates dated 01.09.1999, ought to have been paid to them. If the Notification regarding the Circle Rates, annexed as Annexure­P/7 to the application, is perused, it is clear that Rs.500/­ per square meter is the rate for non­agricultural land. The rates for non­irrigated and irrigated land are Rs.325/­ and Rs.350/­ per square meter, respectively. The Notification under Section 4 of the Act, in the present case, has been issued on 18.12.1992, much prior to the declaration of the Circle Rates. Apart from that, the land in question is described as agricultural land, for which the Circle Rates are fixed at Rs.325/­ and Rs.350/­ for non­irrigated and irrigated lands. The land in question is not described as non­ agricultural land for which the rate is Rs.500/­ per square meter, as is being claimed.

65. Circle Rates are notified under the statute for the object of calculation of the stamp duty so that the proper value of the land would be declared for the purpose of transactions under the Stamp Act and there would be no loss of revenue. Though Circle Rates can be one of the factors to be considered while deciding upon the compensation for land acquired, they cannot be the sole factor. In Government (NCT of Delhi) And Others v. Ajay Kumar And Others (supra), this aspect has been dealt with by the Supreme Court in the following terms:

“7. We have heard Shri L.N.Rao, learned Additional Solicitor General appearing for the appellants and Shri P.S. Narasimha, learned Senior Advocate appearing for the respondents. Though, we appreciate the anguish expressed by the High Court over the abysmally low market value determined by the Land Acquisition Collectors in almost all cases, a phenomenon which is prevalent all over the country, it is not possible to approve the exercise undertaken by the high Court for forcing the administration to prescribe circle rates as the criteria for fixing market value or for determination of compensation. The 1894 Act contains a comprehensive mechanism for fixing market value and determination of the compensation payable. Any person, who feels aggrieved by the award of the Land Acquisition Collector or the determination made by the Reference Court can avail remedy either by filing an application under Section 18 of the 1894 Act or by filing an appeal under Section 54 thereof. Therefore, there was no justification for the High Court to have compelled the Government to adopt the circle rates as an important factor for fixing market value of the acquired land. The power vested in the Collector to determine market value of the acquired land cannot be controlled by a judicial fiat and each case has to be decided by the authority concerned by application of objective criteria.”

(emphasis supplied)

The above pertinent observations of the Supreme Court would be applicable in the present case.

66. Apart from the above­mentioned submissions, there are no averments in the application to the effect that the judgment of this Court suffers from an error apparent, necessitating its recall and review. Though the application is ostensibly one for the recall of the judgment of this Court it is, in essence, an application for review. However, no grounds for the review of the judgment are made out.

67. In Haridas Das v. Smt. Usha Rani Banik and Ors. (supra), cited by Mr.Niraj Ashar, learned Assistant Government Pleader, the Supreme Court has held as below:

“14. In

# Meera Bhanja v. Smt. Nirmala Kumari Choudary, AIR 1995 SC 455

it was held that:

“It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1, CPC. In connection with the limitation of the powers of the Court under Order XLVII, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma speaking through Chinnappa Reddy, J. has made the following pertinent observations:

It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the Subordinate Court.”

The Notification regarding Circle Rates dated 01.09.1999 existed at the time when the applicants approached the Reference Court and this Court. It was very much available to them, at the relevant point of time. The purported gaining of knowledge regarding this Notification only in the year 2013, cannot be termed as the discovery of new or important evidence justifying the recall of the judgment.

68. The other judgments cited by the learned Assistant Government Pleader are also on the point of review, wherein similar principles have been enunciated.

69. The applicants claim to have been oblivious of the Notification regarding Circle Rates upto the time when the Review Petitions were filed before the Supreme Court. In the SLP against the judgment of this Court, the ground regarding Circle Rates was not taken. The purported ignorance, negligence or carelessness of the applicants cannot vitiate a judgment of this Court or unravel the entire legal procedure that has culminated in the rejection of the cases filed by the applicants by the Supreme Court, which is the highest Court in the land. Moreover, the judgment of this Court has been confirmed by the Supreme Court.

70. After examining all facets of the matter, we find no force in the submissions of the applicants that the judgment of this Court has been obtained by fraud or suppression of a document. We are, therefore, unable to accede to the prayers made in the application.

71. We place on record our appreciation and gratitude to Ms.Megha Jani, learned amicus curiae, for the valuable assistance rendered to us in the present case.

72. In conclusion, we hold that the application being devoid of merit, deserves to be rejected. It is, accordingly rejected. Notice is discharged.

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