Swatanter Kumar, J.
1. Nb. Sub. Raj Pal Singh had filed a petition under Article 226 of the Constitution of India praying for issuance of appropriate writ, order or directions with a prayer that the order of discharge dated 31st August, 2002 be quashed.
2. The petitioner who was enrolled in JAT regiment on 9.3.1980, was promoted to the rank of Nb. Subedar. On 24.10.2001, he was placed in low medical category P-2 (Permanent). On 27.2.2002, he was issued a show cause notice stating that he was in low medical category and no sheltered appointment was available. On 22.4.2002, he was subjected to Release Medical Board and he was discharged on 31.8.2002. The writ petition was contested by the respondents who had stated before the court that the petitioner was discharged on medical grounds under Rule 13(3) I (iii) (c) read with Rule 13(2)(A) in accordance with Army Order 46/1980 and as such, the petitioner was not entitled to the relief prayed for in the writ petition. Vide detailed judgment dated 7th October, 2005, the Division Bench allowed the writ petition and directed reinstatement of the petitioner. The respondents did not prefer any appeal against the said judgment of the Division Bench but filed a review application being RP No. 307/2006 praying for review of the judgment of the court and stating that there was no requirement of holding an invaliding medical board inasmuch as the petitioner was discharged in low medical category by a release medical board as no sheltered appointment was available. According to the respondents, Rule 11 ordains that once a person becomes entitled to discharge, the same would not be delayed and a discharge certificate would be issued. Under Sub-rule (2A) of Rule 13, there is a special provision for discharge of a member subject to the Forces. Merely that a wrong provision might have been mentioned in the order of discharge would not by itself vitiate the exercise of power so long as the power is vested and existed under the Law. Reference in this regard was made to the judgments in the cases of N. Mani v. Sangeetha Theatre (2004) 12 SCC 278 and B.S.E. Broker's Forum v. SEBI : AIR2001SC1010. It is also the case of the respondents that after decision as to person/class of person and conditions of discharge are decided upon by the competent authority, the Sub Rule merely enjoins upon the Commanding Officer the responsibility to implement such a decision of the Central Government/the Chief of Army Staff. The petitioner was of a low medical category personnel and was discharged under Sub Rule (2A) of Rule 13 on the decision of the Central Government in terms of Army Order 46/1980. In these circumstances, it is contended that the judgment of the court is liable to be reviewed and the petition of the petitioner should be dismissed.
3. CM No. 10708/2006 has been filed by the respondents/applicants praying for stay of operation of the judgment of the court dated 7.10.2005.
4. The application for review was filed in the Registry of this Court on 10th August, 2006 and as such, the same was barred by time. The respondents have, thus, filed an application under Section 5 of the Limitation Act for condensation of delay being CM No. 10709/2006, in filing the review application. Reply to this application was filed on behalf of the petitioner who stated that there was inordinate unexplained delay of over 300 days in filing the review application and no reasons much less a sufficient cause had been shown for condensation of delay.
5. It may be noticed that hardly any sufficient cause has been shown by the applicants for condensation of delay. The pendency of the file in the same department i.e. JAG's office, would be no reason to condone the delay. The application for condensation of delay has been filed in a most casual manner. Even in the prayer clause of the application as well as in the application, the applicants have not even stated as to how many days delay's condensation they pray for before this Court. In our considered opinion, no sufficient cause has been reflected by the applicants for condoning the delay of more than 270 days in filing the review application. We would, thus, decline to condone the delay and dismiss the application for condensation of delay on that ground itself.
6. Even if, it was to be assumed for the sake of argument that in the facts and circumstances of the case, we should condone the delay, even then, there is no merit in the review application. The writ petition was allowed by a detailed judgment of a Division Bench of this Court which while relying upon the judgment of the Apex Court in the case of Virender Kumar Singh v. UOI : AIR1981SC947 , held as under:
19...The petitioner could be discharged on medical grounds only pursuant to a recommendation of Invalidating Board in the facts and circumstances that he is unfit for further service and not on the basis of AO 46/1908 contemplating in what circumstances unfit army personnel can be retained in the army in the public interest. The order stipulates that if the retention is justified in public interest and retention does not exceed the sanctioned strength, on availability of sheltered appointment, a person can be retained commensurating with his medical category. This, however, can not substitute the opinion of the Invalidating Board contemplated under rules. An army order in the present facts and circumstances will not change and can not change the requirement of Army rules framed under powers conferred under the Army Act, 1954. Considering it under any perspective, it is inevitable to infer that the petitioner could be discharged on account of his low medical category only on the recommendation of the Invalidating Board under Army Rule 13(3)I(ii) on the ground that he has been found to be medically unfit for further service and in no other manner in the present facts and circumstances.
20. Since we have already held that the discharge of the petitioner could be pursuant to the opinion of the Invalidating board under Army Rule 13(3)I(ii) that he has been found to be unfit for further service, we do not dwell as to who was the competent authority as the respondents themselves have taken conflicting stand regarding competent authority in their counter affidavit.
7. The respondents had filed a counter affidavit and argued the matter at great length, resulting in passing of the said judgment. In the discharge certificate, it was recorded that the petitioner was being discharged under Rule 13(3)I(III)(i) read in conjunction with Rule 13(2A) of Army Rule, 1954 in low medical category S1H1A1P2E1(Permanent). The Bench hearing the case had taken a view upon the records produced before it at that time and the pleading of the parties. If the respondents are aggrieved from the judgment of the court, they are expected to take recourse to proper legal remedy. Merely because another view was possible or could have been taken by the court would be no ground for the court to review its judgment.
8. At this stage we may also refer to the judgment of a Division Bench of this Court in the case of Anil Kumar Jain and Anr. v. UOI and Ors. : 122(2005)DLT431 , wherein the court while discussing the law in relation to review, held as under:
7...The limitation on the powers of the Court under Order 47 Rule 1 are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India. With caution the Court has to ensure that such power is not exercised like entertaining an 'Appeal in disguise'. Where conceivably there may be two opinions and an error has to be established by a long drawn process it is not an error apparent on the face of the record. Reference in this regard can be made to the judgment in the case of R.S. Rajanna v. Sri Basavaiah and Ors. : AIR1997Kant245 Para 11 and in the case of Prem Dutt v. Punjab State 1998 1 PLR 444.
8. In the case of Parsion Devi and Ors. v. Sumitri Devi and Ors. : (1997)8SCC715 the Supreme Court has held as under:
It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC a judgment may be open to review inter alias if there is a mistake or an error apparent 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 under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'.9. An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record.
10. This principle was reiterated by the Supreme Court in the case of Lily Thomas, etc. etc. v. Union of India and Ors. : 2000CriLJ2433 further with a clear caution that in exercise of power of review the Court may correct the mistake but not to substitute the view. The mere possibility of two views on the subject, is not a ground for review.
11. It is obligatory on an applicant to establish on record that there was an error or a mistake apparent on the face of the record or there was such other material available with the applicant which if not taken into consideration would cause miscarriage of justice.
12. Attempt of the applicant by filing the present application is only to re-agitate the issues. No error much less an error apparent on the face of the record has been pointed out by the applicant. From the record and even from the averments made in this application it is clear that the possession of the land has been taken by the appropriate Government and once the possession is taken, judgment is pronounced, it is a settled principle of law that the land vests in the Government free of all encumbrances as contemplated under Section 16 of the Act. The applicant specifically even admits in this application that there was 'unexplainable delay and laches in taking possession of the land ...' which clearly indicate that the petitioner has been dispossessed of the land in question for which the award has also been pronounced.
13. In the application under consideration after referring to the grounds taken up in the Writ Petition, the facts and the prayer therein, the applicant has raised issues in regard to purpose of acquisition, interim order of the Court dated 29th April, 1990, possession of the applicant and non-application of mind by the Competent Authority in issuing the notification under the provisions of the Act. The intention of the Petitioner is primarily to re-agitate all these issues which were considered by the Court and a view taken in its judgment dated 30th May, 2004
14. It is a settled position of law that once the possession is taken and kabza karvai or panchnama for taking possession is prepared and it is also shown that the possession was delivered to the beneficiary, the land would vest in the Government free of encumbrances and even subsequent possession would tantamount to illegal or unlawful possession. In given facts and circumstances, taking of symbolic possession would be enough. Reference can be made to the judgment of the Supreme Court in the case of Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and Ors. : [1996]2SCR643 and Nagin Chand Godha v. Union of India and Ors. : 2003(70)DRJ721. The Courts have repeatedly held that once the land owner has been divested of his land in accordance with the provisions of the Act and an Award is passed he would hardly have any right to question the validity or legality of the acquisition proceedings.
9. We may also refer to a judgment of another Division Bench of this Court in the case of H.K. Kapoor v. UOI and Ors. 122 (2005) DLT 455, wherein a review application was barred by time and the applicant had no case on merits like the present, as the case was not squarely falling within the provisions of Order 47 Rule 1 of the CPC. In that case, the court held as under:
3. In our view, the applicant has failed to show any cause, much less a reasonable cause, on the basis of which the application of the applicant under Section 5 could be allowed. Consequently, we would dismiss this application. RP No. 134/2005 in WP(C) No. 1470/1986
4. In face of our above order, the application for review hardly survives for consideration. Still we would proceed to discuss the merit or otherwise of this application.
5. The only ground taken in the application is in paragraphs 4 and 5 of the said application which reads as under:
4. That the above petition came up for final disposal on 14.12.2004 Along with other writ petitions before this Hon'ble Court when the same was dismissed by the Hon'ble Court with the other listed Writ Petitions. It is pertinent to mention here that the petitioner realized a mistake of fact occurred in para 6 wherein it was erroneously state that 'though some land owners within the revenue estate of Village, wherein the land of the Petitioner is situated, filed objections under Section 5A of the Act, the Petitioner did not choose to file the said objections.
It would in the interest of justice to point out here that the Petitioner himself filed his 5A Objection with regard to the land in question and inadvertently at the time of filing of the above said Writ Petition this fact could not be highlighted which culminated into dismissal of Writ Petition.
5. It is respectfully submitted here that the Petitioner has filed the objection under Section 5A of the Land Acquisition Act, whose name is figured out at Seriall Nos. 84 of the list of objectors.
6. On this premise, it is argued that the petitioner having filed objections under Section 5A of the Act, which fact was not stated in the writ petition and after its dismissal, the petitioner having come to know of the facts as afore-referred, wants to withdraw his statement in the writ petition and prays for re-hearing of the matter on that ground. The writ petition filed by the petitioner came up for hearing before the Bench and was heard on 14th October, 2004, while it was filed in the year 1986. For all these long years, the petitioner took no steps to amend the writ petition. It is unbelievable that an owner/purchaser of the land who had filed objections under Section 5A of the Land Acquisition Act, raising serious objections to acquisition of his land, would not even whisper this fact in the body of the writ petition. On the contrary, the petitioner had specifically stated in the writ petition and has even admitted in the writ petition that the land owners in the Revenue Estate of the Village, where the land of the Petitioner was situated, also received notices in the first week of January'84 purporting to be under Section 5A of the Act and directing them to appear before the Collector for a personal hearing on the objections.
7. Having made these specific averments in the writ petition, the petitioner cannot be permitted to withdraw the said admissions, that too to the prejudice of the other side. Normally, withdrawal of an admission is not permissible in law. At best, it could be explained unless there were such compelling circumstances which would persuade the court to permit the party to withdraw an admission. For such a permission, it is necessary for a party to place on record, proper and reasonable Explanationn for making such an admission. It will be contrary to the conduct of a party with common prudence, to not disclose in the writ petition that it had filed objections under Section 5A, as it is likely to be divested of its property with due process of law. The petitioner who claims to be owner of the land is certainly not an illiterate farmer or villager who can take shelter of lack of knowledge and legal procedure. The mere fact that in other cases record of the Land Acquisition Collector is alleged to have been filed, where name of the petitioner is shown in the list, would be no ground for review of the judgment because the said records were available to the petitioner, besides his own personal knowledge. The conduct of the petitioner in approaching the court after a delay of nearly 19 years, by itself would be a sufficient ground for rejecting this application for review. Case of the petitioner was heard in presence of the counsel for the petitioner and the writ petition was dismissed in the light of the judgment of the Supreme Court in the case of Abhey Ram v. Union of India : [1997]3SCR931 and Delhi Administration v. Gurdeep Singh Uban and Ors. : 2000CriLJ373. Learned Counsel for the petitioner relied upon a Division Bench judgment of this Court in WPC No. 1115/1987 decided on 27th April, 2005 wherein in some other matters, application under Order VI Rule 17 CPC was allowed and the petitioner was given opportunity to amend the writ petition incorporating the plea of filing objections under Section 5A and the acquisition proceedings being bad on that account. That case has no application to the present case. The application was filed in that case during the hearing of the writ petition itself, while in the present case writ petition has already been dismissed. In the present case, there was a specific averment on behalf of the petitioner that he did not file objections under Section 5A while in that case no such averment was made in the writ petition, but in the counter affidavit filed and the list placed on record, it was admitted that the petitioner had filed objections. In these circumstances, we cannot draw any parity, even on facts, with that case.
8. The attempt on the part of the petitioner is only to have the rehearing of the matter on this pretext. This attempt on the part of the petitioner again is not permissible in law. It is a settled principle of law that a party cannot be permitted to re-agitate its issues by filing a review petition and particularly contrary to the facts pleaded in the writ petition. Reference in this regard can be made to the judgment of this Court in the case of Smt. Sarla Devi Jain v. Union of India and Ors. in RA No. 242/2004 in WPC No. 672/2004 decided on 7th July, 2005, where the court held as under:.The argument that the grounds taken up in the writ petition have not been correctly decided by the Court is no ground for seeking review of the judgment.
4. Reference in this regard can be made to a recent judgment of this Court in the case of Anil Kumar Jain and Anr. v. Union of India in CM No. 4274 in WP(C) No. 1246/1990 decided on 5th May, 2005 where the Court held as under:
The scope of the review jurisdiction of the Court is a very limited one. The applicant cannot pray for review of a judgment merely because some of the judgments have not been noticed by the Court particularly when the judgments were not even referred to before the Court at that stage and in any case the applicant will be in no position to say so. Furthermore, the jurisdiction of review does not extend for substituting a view taken by the Court on merits or otherwise of the contentions raised before the Court on the facts and circumstances of a case. The applicant is essentially praying before the Court that the view taken by the Court on different facets of the case - legal and factual - should be substituted primarily because another view was possible. The power to review normally is the creation of a statute. However, in exercise of powers by the High Court under Article 226 of the Constitution of India, the Court can take recourse to the power of review by necessary implication. Such power of review has a limited scope and is normally used for the correction of a mistake but not to substitute a view in law. Such mistake or error contemplated under this rule must be such which is apparent on the face of the record and not a correction of an error which requires long drawn process of reasoning. The limitation on the powers of the Court under Order 47 Rule 1 are similar and applicable to the jurisdiction available to the High Court under Article 226 of the Constitution of India. With caution the Court has to ensure that such power is not exercised like entertaining an 'Appeal in disguise'. Where conceivably there may be two opinions and an error has to be established by a long drawn process it is not an error apparent on the face of the record. Reference in this regard can be made to the judgment in the case of R.S. Rajanna v. Sri Basavaiah and Ors. : AIR1997Kant245 Para 11 and in the case of Prem Dutt v. Punjab State 1998 1 PLR 444. In the case of Parsion Devi and Ors. v. Sumitri Devi and Ors. : (1997)8SCC715 the Supreme Court has held as under:
It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC.Under Order 47 Rule 1 CPC a judgment may be open to review inter alias if there is a mistake or an error apparent 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 under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise.'
9. An error which is not self evident and has to be dictated by a process of reasoning can hardly be said to be an error apparent on the face of the record.
10. This principle was reiterated by the Supreme Court in the case of Lily Thomas, etc. etc. v. Union of India and Ors. JT 2000 5 SCC 617 further with a clear caution that in exercise of power of review the Court may correct the mistake but not to substitute the view. The mere possibility of two views on the subject, is not a ground for review.5. Besides that this application is beyond the purview of provisions of Order 47 Rule 1 of the CPC, it must be noticed that the present application is also barred by time.
10. The applicants, in the present case, are also seeking a rehearing of their case in the garb of the review application. The concept of finality of judgment has to be enforced with its normal rigours. If the practice adopted by the applicants in the present case, is permitted to grow, it will amount to undermining the concept of finality as in every case, the party who is not satisfied with the judgment, would seek a rehearing of the matter in the disguise of review. In our considered view, such a modus operandi would not be permissible in law. The court has taken a view that the order of discharge of the petitioner was not in conformity with the rules and as such, set aside the order while further directing reinstatement of the petitioner. It is a settled canon of law that merely because a party is not satisfied with the judgment of the court or it was possible to take another view on reasonable interpretation on law and facts would by itself be no ground for review of a judgment. We find that the review application besides being barred by time is also beyond the purview and scope of Order 47 Rule 1 of the CPC and is an attempt on the part of the applicants to have the rehearing of the matter on merits.
11. Consequently, all these applications are dismissed while leaving the parties to bear their own costs.