Rajesh Nandkishore Bhatt v. STATE — 1997 DIGILAW 286 (GUJ)

S. K. KESHOTE, J. ( 1 ) THE matter was called out for hearing in the first round, then in the second round and lastly in the third round, but none put appearance on behalf of the applicant. On 2-5-97 also none put appearance in this case and the matter stood over beyond vacation. Today also the position remains the same. ( 2 ) PRAYER has been made by the applicant in this Misc. Civil Application for recalling of the order dated February 26, 1991 passed in Special Civil Application No. 755 of 1989. ( 3 ) IN sum and substance the applicant made twofold prayers namely recalling or for review of the order. The ground given for recalling of the order is that the order has been made against a dead person. The Special Civil Application No. 755 of 1989 has been filed by Smt. Rukshmaniben H. Bhatt in the matter of Urban Land (Ceiling and Regulation) Act, 1976. This petition came to be decided by this Court under the order dated February 26, 1991. This application for recalling or review of the order, passed in the aforesaid petition has been made on 12th April 1996, i. e. after more than five years from the date of the order. However, learned counsel for the petitioner has stated in the note dated 27th April, 1997 that delay in filing of this application has been condoned by this Court (Coram : A. N. Divecha, J.), by an oral order dated 21st September 1996 passed in Civil Application No. 6027 of 1996. The papers of that CA were not on record, but I take it to be correct that delay has been condoned, but merely because delay has been condoned, it does not mean that this application deserves acceptance. ( 4 ) IT is true that there is nothing in Article 226 of the Constitution to preclude this Court from exercising power of review which inheres in every Court plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definite limits to the exercise of power of review by this Court sitting under Article 226 of the Constitution. But there are definite limits to the exercise of power of review by this Court sitting under Article 226 of the Constitution. This power may be exercised by this Court under Article 226 of the Constitution on discovery of new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review or could not be produced by him or her as the case may be at the time when the order sought to be reviewed was made. It may be exercised in cases where some mistake or error apparent on the face of the record is found by the Court. This power may also be exercised by this Court under Article 226 of the Constitution on any analogous ground but this Court may not exercise this power of review on the ground that the decision given by it was erroneous on merits. That would be the province of the Court of appeal. It is a settled law that power of review is not to be confused with the appellate power which may enable an appellate Court to correct all manners of errors committed by subordinate Court. It is a case where under the order impugned in the Special Civil Application No. 755 of 1989 by the petitioner therein, the competent authority held that the petitioner was holding excess land to the extent of 586. 24 sq. mts. Though the said land has been declared to be excess by the competent authority under the order dated 8th December 1988, for all these years, the said land remained in continuous possession of the petitioner in the Special Civil Application and after her death, with the applicant in this Misc. Civil Application. This Court has protected the petitioner in the Special Civil Application No. 755 of 1989 by granting interim relief in terms of para 7 (B) of the petition. Para 7 (B) reads as under :"your Lordships be pleased to stay the further implementation, execution and operation of the impugned order passed by the respondent No. 1 dated 8-12-1988 at Annexure h to the petition and further be pleased to direct the respondents, their agents and servants not to disturb the possession of the petitioner, in any manner, pending the admission, hearing and final disposal of this writ petition. " ( 5 ) THAT Special Civil Application has been decided by this Court on merits on 26th February 1991, but it appears from reading of this Misc. Civil Application that still the possession of the surplus land has not been given by the applicant to the competent authority nor the competent authority has taken over the same. The ground which has been given for reviewing or recalling of the order made in Special Civil Application is that the petitioner therein Smt. Rukshmaniben Bhatt has expired on 23rd February, 1991 and decision has been given against a dead person. It is stated that the petitioner in the Special Civil Application has expired before the date on which the same has been decided, but the question which calls for consideration of this Court is whether on this ground the order dated 26th February, 1991 is to be recalled? The Special Civil Application No. 755 of 1989 has been filed by the petitioner therein under Article 227 of the Constitution of India. So the power of superintendence of this Court under Article 227 of the Constitution was availed of by the petitioner therein. Under the order dated 26th February, 1991, this Court has decided the Special Civil Application on merits. The contention of the learned counsel for the petitioner who has been engaged by the petitioner therein has been considered. It is not the case where any decision has been given against dead person. It is a case where this Court has not considered it to be a case where it should exercise its powers under Article 227 of the Constitution in favour of the petitioner. No illegality whatsoever has been found in the order impugned in the petition. So even if the legal heirs of the deceased-petitioner have not been brought on record, only on this ground I fail to see any justification in the prayer made by the applicant herein for recalling or reviewing the order passed in the Special Civil Application. ( 6 ) THE petitioner has not mentioned the provision under which this Misc. Civil Application has been filed. The provisions of Civil Procedure Code, 1908, are not applicable to the proceedings under Article 226 or 227 of the Constitution and as such, this application can only be under Article 226 or 227 of the Constitution. ( 6 ) THE petitioner has not mentioned the provision under which this Misc. Civil Application has been filed. The provisions of Civil Procedure Code, 1908, are not applicable to the proceedings under Article 226 or 227 of the Constitution and as such, this application can only be under Article 226 or 227 of the Constitution. It is the extraordinary jurisdiction of this Court which has been invoked by the applicant herein and this power is not available as a matter of course of right. In a case where this Court finds that even if the contention raised by the applicant has substance, but there being no failure of justice caused to the applicant, this Court may decline to exercise its power conferred under Article 227 of the Constitution. The only ground of death of the petitioner in the Special Civil Application may not be a ground for review or recalling the order made by this Court on merits. The power of review under Article 226 or 227 of the Constitution may be exercised by this Court on discovery of new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the applicant herein seeking review or could not be produced by him at the time when the order was made. That is not the case here. It is not the case of the applicant that he has discovered new and important matter or evidence which was after exercise of due diligence, was not within the knowledge of the petitioner in the Special Civil Application when the matter has been decided on 26th February 1991. The other permissible grounds for review of the order are also not there in the present case. ( 7 ) THE applicant has failed to make out any case that some mistake or error apparent on the face of the record is there in the order dated 26th February 1991 made by this Court in the Special Civil Application No. 755 of 1989. It is a case where the applicant has made an attempt to delay further delivery of surplus land to the competent authority. This Court, sitting under Article 226/227 of the Constitution will not permit the applicant to frustrate the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. It is a case where the applicant has made an attempt to delay further delivery of surplus land to the competent authority. This Court, sitting under Article 226/227 of the Constitution will not permit the applicant to frustrate the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. It is an attempt made by the applicant to retain the possession of the surplus land for which he has not given out any justification. The Special Civil Application has been decided by this Court on merits after hearing the counsel who appeared for the petitioner. As stated earlier, the applicant has failed to make out any case of causing any prejudice to him for not bringing him on record as the legal heir of the petitioner in Special Civil Application. I do not find any ground for recalling or reviewing the order dated February 26, 1991, passed by this Court in Special Civil Application No. 755 of 1989. ( 8 ) IN the result, the Misc. Civil Application fails and the same is dismissed. .