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2007 DIGILAW 2927 (ALL)

VED PRAKASH BATHLA v. NAINITAL

2007-12-05

RAJESH TANDON

body2007
RAJESH TANDON, J. ( 1 ) HEARD Sri Sudhir Kumar, Counsel for the petitioner and Sri T. Phartiyal, Counsel for the respondent No. 3 and 4. ( 2 ) PRESENT application has been filed for reviewing the order dated 22nd December, 2006 on the following ground.- "3. Because although under law it is not permissible to delegate the delegated powers but assuming, not admitting, that the powers can be delegated there is no delegation of powers by the District Magistrate Udham Singh Natar to the Sub-Divisional Magistrate Kashipur to exercise the powers under section 21 (8) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 4. Because in absence of delegation of powers by the District Magistrate Udham Singh Nagar to the Sub-Divisional Magistrate, Kashipur to exercise the powers under section 21 (8) of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 the order passed by the Sub-Divisional Magistrate Kashipur is null and void. 5. Because if there was a valid delegation power by the District Magistrate Udham Singh Nagar to the Sub Divisional Magistrate Kashipur to exercise the powers under section 21 (8) of the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 the matter should have been remanded to the lower Appellate Court to decide the appeal on merit. 6. Because while enhancing the rent of the accommodation in question the Honble Court has not taken into consideration that only a part of the house is under tenancy of the Power Corporatsion. " ( 3 ) COUNSEL for the petitioner has filed an objection against the said review stating therein to the following effect.- "1. That the application is based on wrong facts and is not legally maintainable. 2. That the above named writ petition was decided after hearing the Counsel for the parties and the Counsel for the review petitioner was also heard on merits of the case. 3. That the matters now raised by the respondent/review petitioner have been dealt with by the Honble Court in the judgment under review. " ( 4 ) IN my judgment dated 22. 12. 2006, I have already observed in paragraphs 16, 18 and 19 as under.- "16. 3. That the matters now raised by the respondent/review petitioner have been dealt with by the Honble Court in the judgment under review. " ( 4 ) IN my judgment dated 22. 12. 2006, I have already observed in paragraphs 16, 18 and 19 as under.- "16. Further, taking into consideration the findings of the Appellate Authority, no ground of interference by the Appellate Court is made out on the following two fold grounds.- (i) No notification has been pointed out so as to exclude the jurisdiction of the Rent Control and Eviction Officer, Kashipur for deciding the application under section 21 (8) of the Act. (ii) Even assuming the Rent Control and Eviction Officer at Kashipur has no jurisdiction, the District Judge has power to decide the appeal on merits. 18. Coming to the merits of the present case, as will appear from the report of the value given by respondents Nos. 3 and 4, the following valuation has been given.-"this is to certify that the cost of the constructed building for office Assistant Engineer Electric Testing Laboratory, Patel Nagar, Bazpur Road, Kashipur, Distt. Udham Singh Nagar, Area of building is approximately 110. 44 sq. mt. at rates 2100. 00 per sq. mt. Now cost of building is turns out approximately i. e. 2,31,924. 00. Hence building is 30 to 40 years Old. Now depreciation 30% in The building cost i. e. 59,577. 20 i. e. value of building Say 1,62,300. 00 1,62,346. 80 ( 5 ) SO far as valuation report is concerned, the petitioner has given the cost of the valuation of the land as well as building to the following effect.- E. 1. 5% for electric fans = Rs. 3,397. 79 Total cost of construction = (A+c+d+e) 8 = Rs. 2,57,099. 74 - 20,386. 76 = Rs. 2,36,712. 98 F. Cost of land @ Rs. 300/ sq. ft. according to prevalent market rates in Patel Nagar mixed zone Land cost = 1132. 598 x 300 = Rs. 3,39,799. 40 Total valuation of property = Rs. 2,36,712. 98 + 3,39,799. 40 = Rs. 5,76,492. 38 ( 6 ) THE application was filed in the year, 1997 and since 1997, 10 years have already passed and the landlord is entitled to get the enhancement at least twice. 598 x 300 = Rs. 3,39,799. 40 Total valuation of property = Rs. 2,36,712. 98 + 3,39,799. 40 = Rs. 5,76,492. 38 ( 6 ) THE application was filed in the year, 1997 and since 1997, 10 years have already passed and the landlord is entitled to get the enhancement at least twice. ( 7 ) AS will appear from the provisions of section 21 (8) of the U. P. Act No. XIII of 1972 to the following effect.- "21 (8) Nothing in clause (a) of sub-section (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognized educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is applicable : provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable from the commencement of the month of tenancy following the date of the application : provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement. " ( 8 ) IN Board of Basic Education,u. P. Allahabad and others v. VIth Addl. District and Sessions Judge, Kanpur Nagar and others, 2007 (3) ARC 591. High Court of Allahabad has observed as under.- "20. The order of enhancement of rent was passed by the 8th Additional District Judge, Kanpur Nagar and the Board of Basic Education has not paid the rent for more than 10 years and in view of proviso II of section 21 (8) of U. P. Act No. 13 of 1972 the rent is further revisable after expiry of 5 years, hence further revision of the rent has not become due with effect from 5. 7. 2007 which would be recoverable as per the market rent on the aforesaid date. " ( 9 ) SO far as, the merit of the review petition is concerned, the review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the order was passed. " ( 9 ) SO far as, the merit of the review petition is concerned, the review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the order was passed. ( 10 ) THE Honble Apex Court in the case of M/s Northern India Cateres (India) Liu. v. Lt. Governor of Delhi, (1978) 4 SCC 36 . has observed as under.- "it is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so-Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment-G. L. Gupta v. D. N. Mehta. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice-O. N. Mohindroo v. Distt. Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order XLVII Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order XL, Rule 1, Supreme Court Rules, 1966 ). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility"-Sow. Chandra Kante v. Sheikh Habib, (1975) 3 SCR 935 . ( 11 ) IN the case Parison Devi v. Sumitri Devi, (1997) 8 SCC 715 . Chandra Kante v. Sheikh Habib, (1975) 3 SCR 935 . ( 11 ) IN the case Parison Devi v. Sumitri Devi, (1997) 8 SCC 715 . Honble Supreme Court has held that while exercising power under Order XLVII, Rule 1 of the Code of Civil Procedure it is not permissible for erroneous decision to be reheard and corrected and the power of review cannot be exercised to be an appeal in disguise. Honble Supreme has observed as under.-It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order XLVII Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of AP. (SCR at p. 186) this Court opined.- "what, however, we are now concerned with is whether the statement in the Order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier Order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. " under Order XLVII Rule 1 CPC a judgment may be open to review inter alia 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 XLVII Rule 1 CPC. In exercise of the jurisdiction under Order XLVII 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". In exercise of the jurisdiction under Order XLVII 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". ( 12 ) IN the case Union of India v. Paul Manicram, AIR 2003 SC 4622 . the preposition of law discussed as above has been consistently upheld by the Apex Court : "as noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the Court is satisfied that ah attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. Whenever a representation is made to the President and the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case at hand. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but the day-to-day administration at respective levels is carried on by the Heads of the Departments/ministries concerned and the designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but the day-to-day administration at respective levels is carried on by the Heads of the Departments/ministries concerned and the designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly immediately concerned with such consideration. " ( 13 ) CONSEQUENTLY, Review Applications dismissed along with all the pending applications. Applications Dismissed. .