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2024 SCC OnLine Cal 7239

In the High Court of Calcutta

(BEFORE DEBANGSU BASAK AND MD. SHABBAR RASHIDI, JJ.)

R.V.W. 101 of 2018

IA No. CAN 1 of 2018
(Old CAN 5251 of 2018)
CAN 3 of 2021
Union of India and Another
Versus
Terai Tea Company Limited and Others
In
FMA 755 of 2017
With
CPAN 1133 of 2017
R.V.W. 101 of 2018, IA No. CAN 1 of 2018, (Old CAN 5251 of
2018), CAN 3 of 2021, FMA 755 of 2017 and CPAN 1133 of 2017
Decided on August 1, 2024, [Hearing Concluded on : July 24,
2024]
Advocates who appeared in this case :
For the Appellants/U.O.I. Appellants : Mr. Pramod Kumar Drolia,
Adv.
Ms. Anamika Pandey, Adv.
For the Terai Tea Company Ltd. : Mr. Sagar Bandyopadhyay, Adv.
Mr. Niladri Banerjee, Adv.
Mr. Deepankar Thakur, Adv.
For the State : Mr. T. M. Siddiquie, Adv.
Mr. Soumitra Bandyopadhyay, Adv.
Mr. Priyabrata Batabyal, Adv.
Mr. Suddhadev Adak, Adv.
The Judgment of the Court was delivered by
DEBANGSU BASAK, J.:— Defence Estate Officer, Siliguri Circle, and
Union of India through the Secretary, Ministry of Defence (hereinafter
referred to as the review applicants for the sake of convenience) have
applied for review of the orders dated November 21, 2016 and
December 6, 2016 passed in MAT No. 1147 of 2015.
2. Review applicants have filed an application being CAN 1 of 2018
for condonation of delay in filing the review application and CAN 3 of
2021 for leave to review the order dated November 21, 2016 and
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December 6, 2016. Since the pending applications along with the

memorandum of review have been heard analogously over a number of
days by us, we propose to dispose of the pending applications along
with the memorandum of review by this judgment and order.
3. Learned advocate for the review applicants has submitted that,
the review applicants were not impleaded as parties in the writ petition
or in the appeal. Consequently, the review applicants were not aware of
the orders passed either by the writ court or by the Appeal Court. The
two orders of which review has been sought, adversely and prejudicially
affect the right title and interest of the review applicants. He has
contended that, the coordinate bench by an order dated February 24,
2021 condoned the delay in filing the review application. The review
applicants have complied with the direction for depositing the costs as
awarded by the order dated February 24, 2021.
4. Learned advocate appearing for the review applicants has
contended that, by a writing dated December 20, 1971 the Land
Acquisition Officer, Darjeeling had made over possession of 21.54 acres
of land to the predecessor in office of the review applicants No. 2. The
review applicants have been in possession over the subject property
ever since. The subject property has been utilised for the purpose of
construction of 220 residential quarters for defence personnel.
5. Learned advocate appearing for the review applicants has
submitted that, pursuant to directions issued by the District Magistrate
the amount of compensation has been deposited by the review
applicants. The opposite parties Nos. 1 and 2 had wrongfully and
illegally claimed ownership of 21.13 acres of land. Such opposite
parties had filed writ petitions being Matter No. 2193 of 1996 and WP
No. 15616 (W) of 2024. None of the review applicants had been made
parties to such writ petitions. WP No. 15616 (W) of 2004 was heard ex
parte and allowed by the learned single judge on November 29, 2014.
State Government had filed an appeal being MAT No. 1147 of 2015
(FMA No. 755 of 2017) challenging the order dated October 29, 2014.
Such appeal along with the application for condonation of delay had
been taken up for hearing on November 21, 2016. In such appeal,
advocate for the State government had consented for setting aside of
the acquisition of 21.13 acres of land acquired under the provisions of
the Land Acquisition Act, 1894. State government had through their
advocate submitted before the Appeal Court that the State was willing
to acquire 21.13 acres of land under the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. Such order had been communicated by the
State Government to the office of the review applicants No. 2 on
December 20, 2016 when the review applications became aware of the
orders under review. Thereafter, the review applicants had obtained
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legal opinion and filed the present memorandum of review. Relying

upon (2019) 18 SCC 586 (Union of India v. Nareshkumar Badrikumar
Jagad) learned advocate appearing for the review applicants has
submitted that the review applicants are aggrieved parties and are
therefore entitled to apply for review of the two orders passed by the
Appeal Court. He has contended that, a notification under section 4 of
the Act of 1894 was issued in which the predecessor in interest of Terai
Tea Co Ltd (hereinafter referred to as Terai Tea, for the sake of
convenience) filed an objection under section 5A (2) of the Act of 1894.
After disposal of such objection, declaration under section 6 of the Act
of 1894 was published on February 5, 1985. Terai Tea has lessee in
respect of 12.37 acres. Balance 8.76 acres is raiyati land and
compensation in respect thereof has been paid to different raiyats.
Therefore, Terai Tea is not entitled to any compensation as 12.37 acres
is owned by the State. Consequently, the two orders of the Appeal
Court directing compensation under the Act of 2013 requires to be
reviewed.
6. Learned advocate appearing for the Terai Tea has drawn the
attention of the Court to the provisions of the Requisition and
Acquisition of Immovable Properties Act, 1952 and in particular to the
preamble and sections 2 (b), 3 (a), 5 to 9 thereof. He has contended
that, the Act of 1952 is a complete code and that, although the review
applicants could have acquired the property concerned under the
provisions of the Act of 1952, they have not done so.
7. Learned advocate appearing for the Terai Tea has drawn the
attention of the Court to the writ petition being WP 15616 (W) of 2004.
He has contended that, the requisition notice issued under the Act of
1952 was under challenge. He has referred to the notification issued
under section 6 of the Act of 1894 and submitted that, the review
applicants exercised powers under Article 258 of the Constitution of
India and delegated the power of acquisition to the State Government.
State Government was a party to the writ petition. State Government
was also a party in the appeal. Actions taken by the State Government
who was duly authorised by the review applicants to undertake the
process of acquisition, are binding upon the review applicants. State
Government has conceded in the appeal that, the Act of 2013 applies
and that, Terai Tea is entitled to compensation under the Act of 2013.
Such concession is binding on the review applicants.
8. Relying upon (2014) 3 SCC 183 (Pune Municipal Corporation v.
Harakchand Misirimal Solanki) learned advocate appearing for Terai Tea
has contended that, as on the date of the orders of the Appeal Court,
the ratio of Pune Municipal Corporation (supra) was applicable.
Therefore, the Appeal Court has rightly directed the State Government
to either make over vacant possession of the property concerned or pay
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compensation under the Act of 2013.

9. Referring to Order 47 of the Civil Procedure Code, 1908, and in
particular to the proviso to Rule 1 thereof, learned advocate appearing
for Terai Tea has contended that, subsequent change of law is no
ground for review. The review applicants therefore cannot be allowed to
take the benefit of the overruling of Pune Municipal Corporation (supra)
subsequently in (2020) 8 SCC 129 (Indore Development Authority v.
Manoharlal). In support of such contention, he has relied upon (1997) 8
SCC 715 (Parsion Devi v. Sumitri Devi), (2019) 20 SCC 753 (Perry
Kansagra v. Smriti Madan Kansagra) and (2021) 3 SCC 1 (Beghar
Foundation v. Justice K.S. Puttaswamy). He has pointed out that, the
application for leave to review filed at the behest of the review
applicants is still pending.
10. Relying upon (1994) 5 SCC 239 (Inder Prashad v. Union of
India) learned advocate appearing for Terai Tea has contended that,
apportionment of compensation between the lessee and the owner in
respect of a property such as the subject property herein has been
settled.
11. Relying upon (1964) 5 SCR 294 (Jayantilal Amratlal Shodhan v.
F.N. Rana) learned advocate appearing for Terai Tea has contended
that, review applicants had exercised powers under Article 258 of the
Constitution of India and are bound by the action taken by the State
Government. The review applicants are not entitled to seek review of
the orders of the Appeal Court which had been passed in presence of
the State Government.
12. Relying upon (2007) 5 SCC 85 (Kunwar Pal Singh v. State of
U.P) learned advocate appearing for Terai Tea has contended that, the
prescribed period of limitation of 2 years from the date of publication of
the declaration for passing the award has to be reckoned from the last
of the dates of the 3 modes of publication prescribed under section 6
(2) of the Act of 1894. In the facts and circumstances of the present
case, he has contended that, a period in excess of 2 years had elapsed
from the date of publication of the declaration under section 6 of the
Act of 1894 and the date of publication of the award. Consequently, the
award was not published within the time period prescribed under
section 11 A of the Act of 1894.
13. Learned advocate appearing for Terai Tea has contended that,
the issue as to whether decisions rendered prior to Indore Development
Authority (supra) could be reopened has been considered and due to
difference of opinion the matter has been referred to a larger bench
(2023) 9 SCC 757 (Government of NCT of Delhi v. K.L. Rathi Steels
Limited).
14. Learned Additional Government Pleader appearing for the State
has contended that, possession of the 21.54 acres of land had been
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taken on March 16, 1972 from Terai Tea and made over to the review
applicants in connection with Requisition Case No. 5 of 1971-72 arising
out of section 3 (1) of the Requisition and Acquisition of Immovable
Properties Act, 1952. State authorities had decided to invoke the
provisions of the Act of 1894 and as such a notification under section 4
of the Act of 1894 with regard to 21.13 acres had been issued on
February 2, 1982. Declaration under section 6 of the Act of 1894 in
respect of 21.13 acres had been issued on February 5, 1985. Rate
report with regard to 21.13 acres of land had been prepared on
February 18, 1992. On August 14, 1992 District Magistrate, Darjeeling
had prepared estimate with regard to compensation to be awarded in
respect of 21.13 acres of land and intimated the same to the review
applicants. Proceedings under section 11 of the Act of 1894 in
connection with L A Case No. 4/5 of 1986-87 had been drawn up. In
such proceedings, an award had been passed. Corrigendum to the cost
of acquisition had been issued to the review applicants on December
29, 1992. The review applicants had forwarded bank draft towards cost
of compensation to the District Magistrate (Land Acquisition)
Department, Darjeeling on February 24, 1993.
15. Learned Additional Government Pleader has submitted that, on
January 8, 2004, the award passed on October 1, 1992 had been set
aside by the High Court with the direction to pass a fresh award within
the time stipulated therein. A fresh award had been passed on
September 30, 2004 but beyond the time period fixed by the order
dated January 8, 2004.
16. Learned Additional Government Pleader has contended that, the
delay in passing the fresh award was occasioned by the dilatory tactics
adopted by the Terai Tea in the award proceedings. In any event, the
fresh award dated September 30, 2004 was for a limited area as the
rest of the area was found to be vested.
17. Learned Additional Government Pleader has submitted that, in
the writ petition being WP No. 15616 (W) of 2004 the High Court had
set aside the notice dated February 2, 1982 issued under section 4 of
the Act of 1894 and all subsequent steps taken thereunder since the
acquisition proceedings was not completed within the time stipulated
under section 11 A of the Act of 1894. Being aggrieved by such
direction, State had preferred appeal which was numbered as MAT 1147
of 2015. In such appeal, learned advocate for the State had submitted
that the State would initiate fresh acquisition proceedings with regard
to the land in question under the Act of 2013.
18. Learned Additional Government Pleader has contended that,
possession of the land in question was taken on March 16, 1972.
Possession had been made over to the review applicants. Review
applicants had been in possession of the property in question since
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March 16, 1972. Question therefore of acquisition authorities taking

possession under the Act of 1894 when such provisions were invoked
for the purpose of acquiring the land in question did not arise.
Possession taken under the Act of 1952 continued when proceedings
under the Act of 1894 were undertaken. Consequently, according to
him, one of the two conditions laid down in Indore Development
Authority (supra) had been satisfied and therefore, the provisions of the
Act of 2013 would not be attracted.
19. Learned Additional Government Pleader has contended that,
both the State authorities as also the learned advocate appearing for
the State in course of hearing of the appeal had laboured under a
mistake as to fact and law and therefore proceeded to submit that,
proceedings under the Act of 2013 would be undertaken for the
purpose of acquiring the subject property.
20. Learned Additional Government Pleader has submitted that,
pursuant to the award passed in the acquisition proceedings under the
Act of 1894, compensation was deposited with the State authorities by
the review applicants. Consequently, the acquisition proceedings
undertaken under the Act of 1894 could not have been said to have
lapsed for the invocation of the Act of 2013.
21. Learned Additional Government Pleader has submitted that, the
review applicants are entitled to seek review of the two orders passed
in the appeal. According to him, there are errors apparent on the face of
the record for the Court to pass appropriate orders on review. In any
event, according to him, the orders passed by the Appeal Court of
which review has been sought were passed upon mistake as to fact and
law.
22. Terai Tea has claimed rights to receive compensation in respect
of land over which review applicants have constructed residential
quarters for defence personnel. Terai Tea has claimed right to claim
compensation in respect of acquisition of such land on the basis of a
deed of lease executed by the State Government under the provisions
of the West Bengal Estate Acquisition Act, 1953.
23. Terai Tea had been enjoying leasehold rights in respect of the
plot of land over which the review applicants have defence personnel
residential quarters. State Government had granted such leasehold
rights to Terai Tea under the provisions of the West Bengal Estate
Acquisition Act, 1953. Such leasehold rights had expired on August 25,
1972.
24. Under the provisions of the West Bengal Estate Acquisition Act,
1953 State Government can grant or renew a lease for a period not
exceeding 30 years in the event, land in question is used, inter alia, for
cultivation of tea.
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25. Admittedly, possession of the subject land had been taken from
the Terai Tea on March 16, 1972 and made over to the review
applicants, albeit under the provisions of the Recognition and
Acquisition of Immovable Properties Act, 1952. Possession of the
subject land had remained with the review applicants since then. None
of the parties have disputed such fact.
26. State Government had renewed lease under the provisions of the
West Bengal Estate Acquisition Act, 1952 in favour of the Terai Tea on
September 28, 1976 with retrospective effect from August 25, 1972
and valid till August 24, 2002. This renewal made on September 28,
1976 had included the subject land.
27. As on the date of renewal of the lease, that is, September 28,
1976 as also the date from which the renewal was sought to be given
retrospective effect to, that is, on and from August 25, 1972, Terai Tea
was not in possession of the subject land. Again, none of the parties
before us has disputed such fact.
28. By virtue of Terai Tea not being in possession of the subject land
and no tea cultivation being carried out on the subject land, on the date
of renewal or on the date of retrospective effect of the renewal, the
same could not have come within the purview of the provisions of the
West Bengal Estate Acquisition Act, 1953 for a lease thereunder to be
granted or extended.
29. Foundational basis of the Terai Tea to claim compensation in
respect of such subject land is the renewed lease. No lease could have
been granted or renewed on the date when the notification under
section 4 of the Act of 1894 was issued on February 2, 1982.
30. Lease had been renewed under the West Bengal Estate
Acquisition Act, 1953. The subject land had come out of the purview of
the Act of 1953 on the date of renewal of the lease. The review
applicants had been in possession of the subject land pursuant to
possession thereof being made over to them on March 16, 1972 under
the provisions of the Requisition and Acquisition of Immovable
Properties Act, 1952. Therefore on the date on which the notification
under section 4 of the Act of 1894 had been issued, the review
applicants being in possession of the land in question, the requirement
to put them in possession was not there.
31. In any event, no right legal or constitutional of the Terai Tea had
been violated by the proceedings initiated under the Act of 1894 on
February 2, 1982. Terai Tea had no right, title and interest in respect of
the subject land subsequent to March 16, 1972. On such date, the
subject land had come out of the purview of a tea estate for it to be
considered for renewal of lease under the provisions of the West Bengal
Estate Acquisition Act, 1953.
32. State Government and the learned counsel appearing for the
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State Government had accepted during the hearing of the appeal that
the State should proceed under the Act of 2013 when the Act of 2013
had no manner of application on the subject land.
33. Obligation has been cast upon the review applicants to pay
compensation under the Act of 2013 to the Terai Tea when Terai Tea
has no right, title and interest in respect of the subject land, due to the
stand taken by the State Government and the learned counsel
appearing for the State Government at the hearing of the appeal.
34. Consequently, the rights of the review applicants have been
affected prejudicially by the orders under review passed in the appeal.
The review applicants therefore can be considered as parties aggrieved
by the orders passed by the Appeal Court.
35. In Nareshkumar Badrikumar Jagad (supra) Supreme Court has
considered provisions of Order 47 of the Civil Procedure Code, 1908 and
is of the view that, it does not limit the remedy of review only to the
parties to the judgment under review. It has held that, even a third
party to the proceeding, if such party considers itself an aggrieved
person, may take recourse to the remedy of review. Such party however
has to establish that, it is aggrieved by the order under review in some
way.
36. The review applicants were not parties to the appeal in which the
orders under review had been passed. The right, title and interest of
the review applicants in respect of the subject land have been affected
by the orders under review and therefore, the review applicants can
justifiably be held to be persons aggrieved by the orders under review.
37. Consequently, the application of the review applicants for grant
of leave to apply for review of the orders under review is allowed.
38. In Parsion Devi (supra) Supreme Court has considered the scope
of jurisdiction of review under Order 47 Rule 1 read with section 114 of
the Civil Procedure Code, 1908. It has held that, a judgment may be
open to review inter alia, if there is a mistake or an error on the face of
the record. An error which is not self-evident and has to be detected by
a process of reasoning, can hardly be said to be an error apparent on
the face of the record justifying the court to exercise its power of
review. It has noted that, there is a clear distinction between an
erroneous decision and an error apparent on the face of the record. It
has observed that, while the first can be corrected by the higher forum,
the later can only be corrected by exercise of review jurisdiction. It has
also observed that, a review petition has a limited purpose and cannot
be allowed to be an appeal in disguise.
39. In Perry Kansagra (supra) Supreme Court has noted the earlier
authorities on the scope of review. It has held that an error which is
required to be detected by a process of reasoning can hardly be said to
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be an error apparent on the face of the record. It has also held that, to
justify exercise of review jurisdiction, the error must be self-evident. On
such parameters, it has found the exercise of review jurisdiction in the
facts and circumstances of such case to be erroneous.
40. Supreme Court in (2005) 4 SCC 741 (Board for Control of
Cricket in India v. Netaji Cricket Club) has held that, the words
“sufficient reason” in Order 47 Rule 1 of the Civil Procedure Code, 1908
are wide enough to include a misconception of fact or law by a court or
even an advocate. It has also observed that, what would constitute
sufficient reason would depend on the facts and circumstances of the
case. An application for review may be necessitated by way of invoking
the doctrine actus curiae neminem gravabit.
41. In the facts and circumstances of the present case, the review
applicants were not heard when the orders under review had been
passed as they were not parties to the appeal. The review applicants
therefore could not bring to the notice of the Court that, Terai Tea had
no right, title and interest to canvas over the subject land in the writ
petition and therefore was not entitled to any relief either in the writ
petition or in the appeal.
42. Absence of right, title and interest of Terai Tea is apparent from
the face of the record as, the relevant facts were not brought to the
notice of the Appeal Court by any of the parties to the appeal, by
mistake or otherwise. Mistake has been acknowledged to be a sufficient
ground to review an order. We are of the view that, in the facts and
circumstances of the present case, the review applicants have made out
sufficient ground for review of the orders passed by the Appeal Court.
43. In the event, the review as prayed for by the review applicants is
not allowed, then, a grave mistake would continue to remain after the
same has been discovered. Exercise of review jurisdiction should not be
refused on the ground that an appeal is available, after discovery of a
grave mistake in the order of which review has been sought. Orders
under review had been passed prejudicially affecting the review
applicants without hearing them as they were not parties to the appeal.
44. Inder Parshad (supra) has dealt with compensation of acquired
land under the provisions of the Act of 1894. Since we are of the view
that, Terai Tea has no right, title and interest in respect of the land of
the review applicants, the ratio laid down therein has no manner of
application.
45. Authority to delegate under Article 258 of the Constitution of
India has been considered in Jayantlal Amratlal Shodhan (supra) and
Kunwar Pal Singh (supra). Union of India had delegated the authority
to acquire the land in question, to the State Government. State
government had taken proceedings initially under the Requisition and
Acquisition of Immovable Properties Act, 1952 and thereafter under the
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Act of 1894 to acquire the land. The review applicants had been placed
in possession of the land in question under the Act of 1952. Acquisition
under the Act of 1894 had been completed thereafter. Union of India as
one of the review applicants has not authorised the State government
concede, labouring under an erroneous mistake of fact and law or
otherwise, that the provisions of the Act of 2013 are attracted. Nothing
has been placed on record to suggest, let alone establish, that the
review applicants authorised the State Government to make the
submission as recorded in the orders under review.
46. It is trite law that, where, the delegatee has acted beyond the
delegation, the delegator has the option not to accept such act of the
delegatee and that such action of the delegator does not bind the
delegator. In the facts and circumstances of the present case, State
Government as the delegatee had exceeded the delegation in recording
the submission as appearing from the orders under review. The review
applicants as delegator have opted not to accept such action of the
State Government beyond the delegation. The concessions made by the
State Government as has been recorded in the orders under review are
not binding on the review applicants.
47. Beghar Foundation (supra) has observed that, change in law or
subsequent decision of a coordinate or larger bench by itself cannot be
regarded as a ground for review. In K L Rathi Steels Limited (supra)
there was a divergence of the opinion of the Bench and therefore the
matter was placed before the Chief Justice of India for appropriate
orders.
48. The review applicants have not sought review of the orders of
the Appeal Court on the ground of change in law but on the grounds
that their right, title and interest in respect of the subject property
stood adversely affected by such orders.
49. We have not been called upon to decide whether the ratio of
Pune Municipal Corporation (supra) or the ratio of Indore Development
Authority (supra) would apply or not since Terai Tea has been found not
to be having any right, title and interest in respect of the subject land
on the date of initiation of the proceedings under the Act of 1894.
50. In view of the discussions above, the review applicants succeed.
Orders under review dated November 21, 2016 and December 6, 2016
of the Appeal Court requiring the State Government to initiate
proceedings under the Act of 2016 are recalled on review.
51. RVW No. 101 of 2018 along with the connected applications are
disposed of without any order as to costs.
MD. SHABBAR RASHIDI, J.:— I agree.
———
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