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PETITIONER: REVENUE DIVISIONAL OFFICER & ORS.

       Vs.

RESPONDENT: A. ARUNA & ORS.

DATE OF JUDGMENT:       05/08/1998

BENCH: S.B. MAJUMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                 THE 5TH DAY OF AUGUST, 1998 Present:               Hon’ble Mr. Justice S.B.Majmudar               Hon’ble Mr. Justice M.Jagannadha Rao A.  Raghuvir,   Sr.  Adv.,   C.  Balasubramani,  Ms.  Santhi Narayanan, Asha G.Nair, K. Ram Kumar, Advs. with him for the appellants. P.P.Rao, Sr. Adv., D.Ramakrishna Reddy, Mrs.D. Bharathi Reddy, Advs. with him for the Respondents                       J U D G M E N T S.B. Majmudar,J.      The following Judgment of the Court was delivered:      Leave granted.  We have  heard learned  counsel for the parties finally.  This appeal  arises out  of  the  decision rendered by  a Division  Bench of  the High  Court of Andhra Pradesh upsetting  the  majority  view  arrived  at  by  two members  of   the  Special   Court  functioning   under  the provisions of the A.P. Land Grabbing (Prohibition) Act, 1982 (hereinafter referred  to as  ’the Act’). The appellants are the authorities  functioning under  the said  Act. They  had moved the  Special court  on the ground that the respondents were in  illegal possession and were land grabbers of a plot of land  being  plot  no.9  situated  at  Jubilee  Hills  in Hyderabad city. That application was moved in 1991. The Full Bench of  the Special  Court consisting  of the Chairman and the two  Members decided  the said application after hearing the parties  and after  considering the evidence led by them and came  to the  conclusion that  though the appellants had established their  title  to  plot  no.9  it  was  adversely possessed by the respondents and, therefore, no relief could be granted  to the  appellants in the said proceedings. That decision was  rendered on  31st October 1995. An application for review  under Section  17A of  the Act  was moved by the appellants before the Special Court. In the said application two grounds  were sought  to be  relied upon  - (i) that the Special court had relied upon Ex. B-12 which was not legally admissible on  the record  of the  case; and  (ii) that  the decision rendered  by the  Court suffered  from an  error of fact. The  said Review  Petition was heard by the Full Bench of the Special Court. The learned Chairman who presided over

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the Bench,  took the  view that  there was  no  question  of invoking the  review jurisdiction  and,  therefore,  he  was inclined to  dismiss the said proceedings. However the other two Members  took a  contrary view  and held  that the order sought  to   be  reviewed   required  re-consideration  and, therefore, they  were inclined  to  re-hear  the  matter  by granting the  review application.  Accordingly  by  majority Review  Petition  was  allowed.  That  resulted  in  a  writ petition on behalf of the respondents before the High Court.      The Division  Bench of  the High  Court by the impugned order  dated   25th  November  1996  held  that  the  review jurisdiction  was  wrongly  sought  to  be  invoked  by  the appellants and  review proceedings were not maintainable. It was  held   that  the  first  ground,  namely,  Ex.B-12  was inadmissible  in   evidence,  could  not  be  sustained  for supporting the  review petition  as it  was admitted  in the evidence earlier without any objection. On the second ground it was  held by  the High court that the earlier judgment on 31st October 1995 was based on the relevant facts, both oral and documentary, namely Ex.B-12 and B-13 and B-15 which were earlier judgements  of the Special Court wherein it was held that for  plot no.  9 situated  at Jubilee  Hills the  State authorities had  no title  and the  plot was a fully paid up plot belonging  to the  erstwhile occupants and consequently the earlier proceedings filed under the very same Act by the same appellants  seeking eviction  of  alleged  unauthorised occupants of  this very  plot were  dismissed.  It  is  also pertained to note that nothing was brought out on the record of these  proceedings to  show that the earlier decisions of the very  same Court  at Ex.B-13  and B-15 which were relied upon by  it while passing the order dated 31st October 1995, were ever  carried higher  up or  were sub judice before any other higher authority. In fact such was not even the ground on which  review was  sought by  the  appellants.  The  High Court, therefore,  took  the  view  that  when  the  earlier decision was rendered on consideration of all relevant facts and on  appreciation of evidence, both oral and documentary, it could  not be  said that  the said decision suffered from any patent  error of  fact  which  could  have  enabled  the appellants to  seek review  of the  said order under Section 17A of  the Act.  Consequently the writ petition was allowed and the  majority decision  of the  Special Court seeking to review its earlier order was set aside.      Learned  senior   counsel  Shri  A.  Raghuvir  for  the appellants fairly  stated that  he was pressing the case for review of  the earlier order of the Special Court not on the ground that  Ex.B-12 was wrongly held admissible in evidence but the  strongly relied  upon  second  ground  for  review, namely, that  the earlier  decision suffered  from  a  clear error of  fact which in his view was a glaring one and could be said  to be  an apparent  or a patent error. He submitted that Ex.B-12  which was  earlier relied  upon by the Special Court in  coming to the conclusion that it had referenced to plot no.9.  in fact  did not refer to plot no.9 at all which was the  disputed plot  but it was concerned with plot no.10 which was  an adjoining  plot. That  is one  patent error of fact which h ad crept in the earlier decision of the Special Court dated  31st October 1995. It was next contended by the learned senior  counsel for  the appellants  that even  that apart, the  decision sought  to be  got reviewed relied upon two earlier judgments of the Special Court Ex.B-13 and B-15, which might  have referred  to plot no.9 but those decisions had held that plot no.9 did not belong to the Government but was a  fully paid  up plot  which had  passed on to the then occupant of  the plot  and id not remain in the ownership of

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the erstwhile  municipality and  consequently could not have been available  to the  State to  claim  its  title  thereon through the  said erstwhile defunct municipality. Therefore, the finding reached by the Special Court in the present case on 31st  October 1995  when it  decided that  the said  plot belonged to  the Government could not have been based on the earlier judgments Ex.B-13 and B-15 which clearly held to the contrary. This was another patent error of fact. It was next submitted that  the High  Court  wrongly  assumed  that  the Special Court while passing the impugned judgment seeking to review the  earlier decision  had already  set it  aside  on merits and  that while  granting  the  review  petition  the entire matter  was finally  disposed of by the Court. On all these grounds  it was  vehemently contended  that the review proceedings which  were at  the stage  of hearing before the Special Court  could not  have been  intercepted by the High Court, in  exercising powers  under Articles  226 and 227 of the Constitution of India.      On the  other hand learned senior counsel Shri P.P. Rao for the respondents submitted that review jurisdiction is by no means  an appellate  jurisdiction. That jurisprudentially speaking, a review lies to the same authority only on patent errors of  law and  if the  power of review can also take in its fold errors of fact the errors of fact must be such that they would  go to  the root  of the  matter,  otherwise  the reviewing authority  would almost  be able  to exercise full appellate powers  which would  be completely contrary to the well settled  connotation of  review jurisdiction.   It  was also submitted  that the  High Court was justified in taking the view  that earlier decision was rendered on appreciation of evidence  on record then led by both the parties and even if there  was any error in coming to any final conclusion it could be  corrected only by an appellate or higher authority in the  hierarchy of  proceedings and could not be corrected by the  same authority  by invoking the review jurisdiction. That mere  error  of  appreciation  of  evidence  cannot  be equated with  a patent error of fact even on the ground that under Section  17A of  the Act  on an  error of  fact review powers could  be invoked.  It was, therefore, contended that the impugned  order of  the High Court suffers from no error and calls  for no  interference under  Article  136  of  the Constitution of India.      Having given  our anxious  and careful consideration to these rival  contentions we have come to the conclusion that on the peculiar facts of this case it could not be said that the High  Court had  committed any error in interfering with the order  of the  majority of  the Members  of the  Special Court and in quashing the review proceedings.      In  order   to  resolve  the  controversy  between  the parties, it  will be  necessary to have a look at the review jurisdiction conferred  on the  Special Court  under Section 17A of the Act. It reads as under:      "17A. Review  - The  Special  Court      may  in   order  to   prevent   the      miscarriage of  justice review  its      judgment  or   order  passed  under      Section 8  but no such review shall      be entertained except on the ground      that it  was passed under a mistake      of fact,  ignorance of any material      fact or  an error  apparent on  the      face of the record;      Provided that  it shall  be  lawful      for the  Special Court  to admit or      reject    review    petitions    in

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    circulation  without   hearing  the      petitioner;      Provided further  that the  Special      Court shall  not allow  any  review      petitions   and   set   aside   its      previous order  or judgment hearing      the parties affected."      A mere  look at  the said  provision shows  that review jurisdiction can be invoked by the Special Court mainly with a view  to prevent  miscarriage of justice. Consequently the order sought  to be  reviewed must  appear to  have resulted into miscarriage  of  justice  and  not  merely  might  have occasioned dissatisfaction  to the  party that  loses before the Special court in the first instance. But even apart from that, as  Section 17A  clearly lays  down, review  shall  be entertained only  on the  grounds mentioned therein, meaning thereby it  is not  a full-fledged power of re-consideration of the  entire case  as if  it was a second innings on facts and law  permitted by  the Legislature  to the Special court once it  decided a  lis between  the  parties  earlier.  The grounds of  review are  limited as  mentioned  in  the  said Section. It is, of course, true that these grounds are wider than the  grounds on  which review  is allowed  under  Order XLVII Rule  1, CPC,  because even  on the mistake of fact or even on ignorance of material fact a review is permitted. It is also  true that  error apparent on the face of the record is a  separate ground  for reviewing  the order  of  special Court as laid down under Section 17A of the Act. However, it cannot be gainsaid that there is a clear distinction between review power and appellate power. A review can never be said be an appeal in disguise. Therefore, in order to effectively invoke the  jurisdiction of  Special Court in proceedings it has to be shown that the mistake of fact which is alleged by the review  petitioner should  be such that it gets directly embedded in  the final  order, in  the sense  it goes to the root of  the matter.  The Phrases, ’judgment or order passed on a mistake of fact’ shows that the mistake of fact must be so patent  that it  directly results  in an  erroneous order sought to  be reviewed.  In other words, the mistake of fact must have  a direct  nexus with the ultimate order which but for such  a patent  mistake would not have been so rendered. It has  to be  shown that  but for  such a mistake of fact a contrary result  might  have  followed.  It  is,  therefore, obvious that  before a  review petitioner can invoke section 17A of  the Act  it should be shown that the mistake of fact is a  patent mistake  and not a latent one. Mere mistakes in appreciation of  evidence or  in any  inferences drawn  from facts could be corrected only in proceedings before a higher forum and  not in  review proceedings. It is, therefore, not possible to  agree with  the learned  senior counsel for the appellants that  once a  mistake of  fact is pointed out and once it  is shown  that the inference of fact is drawn which is conjectural,  that by itself would be a ground for review under Section  17A of the Act. Shri Raghuvir, learned senior counsel for  the appellants  submitted that  in the  earlier judgment it  was observed  by the  Chairman speaking for the Special Court  that because  plot no.9  was  adjoining  plot no.10, the  owner of  plot no.10  might have encroached upon the adjoining plot no. 9 and even his vendee also would have accordingly trespassed  on this  land.  This  was  purely  a conjecture. It must be kept in view that as a court of first instance even  if inference  is drawn from available data of facts and  if that inference is found fault with unless that inference is  of such  a nature  that but for that inference the ultimate  result would have been difference it would not

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amount to any glaring mistake of fact on which such judgment can be  sought to  be reviewed under Section 17A of the Act. In our  view, the  High Court was right when it held that on the facts  of the  present case the earlier decision of 31st October 1995  was arrived at by the Court on appreciation of oral and documentary evidence and the conclusion was reached on facts  that the respondents were in adverse possession of plot no.9  even though  the title of the appellants was held proved. As  this finding  was  reached  on  appreciation  of number of  documents on  record and also on consideration of oral evidence  it could  not be said that there was any such mistake of  fact which  was so  patent  that  but  for  such mistake the  final conclusion  about adverse  possession  of respondents  would   have  been   different.   Under   these circumstances, therefore, we cannot find fault with the High Court when it took the view that the majority of the Members were not justified in re-opening the earlier decision of the Special Court.      We may,  however, mention  that learned  senior counsel for  the   appellants,  Shri  Raghuvir  was  right  when  he contended that  the High  Court  wrongly  assumed  that  the Special Court  had not only re-opened the earlier matter but had already  decided it  in review  proceedings. Even if the learned senior  counsel is right to that extent the ultimate decision rendered  by the  High Court  on the  facts of  the present case cannot be said to be in any way erroneous.      We make  it clear  that as  learned senior counsel Shri Raghuvir had  not pressed  review proceeding  on the  ground that there  was a  patent error  also in connection with the admissibility of  Ex.B-12 we  are not expressing any opinion on this question.      In the  result, this  appeal fails and is dismissed. In the facts  and circumstances  of the  case there  will be no order as to costs.