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2011 DIGILAW 12 (KAR)

M. Sanjeeve Gowda v. State of Karnataka

2011-01-03

ASHOK B.HINCHIGERI

body2011
ORDER ASHOK B. HINCHIGERI, J.—The petitioners have sought review of the order, dated 20-10 2010 passed in Writ Petition Nos. 29831-833/2010 and W.P. No. 30887/2010. 2. The petitioners’ grievance in the writ petitions was over the cancellation of the allotment of shop units. Considering the facts and circumstances of the case, this Court deemed it fit and just to grant about one year’s period to the petitioners to vacate and handover the vacant possession to the respondent No. 4 subject to the following terms and conditions: (i) The petitioners shall vacate and handover the vacant possession of the premises on or before 1.11.2011. In this regard, the petitioners’ side has filed, the memo undertaking to vacate the premises on or before 1.11.2011. The same is taken on record. (ii) The petitioners are also at liberty to take out all the detachable objects laid in their shops. (iii) The respondent No. 4 shall refund the entire security deposit/premium amount to the petitioners. It is made clear that the respondent No. 4 shall not retain any portion of the said amount or forfeit any amount. (iv) The petitioners are directed, to restore the shop units to the respondent No. 4 in the same condition in which they took their possession. (v) The petitioners shall keep clearing the monthly rent, as and when they fall due till they vacate and handover the vacant possession to the respondent No. 4. (vi) The petitioners shall also keep clearing the electricity and water charges in respect of the shop units till they vacate the premises. (vii) It is open to the petitioners to take part, in the tender process, which the respondent No. 4 is going to initiate for allotting the shop units afresh at the end of one year. Further, other things remaining the same (if the efforts made by the petitioners and the fresh applicants or any other persons/applicants are for the same amount), the respondent No. A shall accept the petitioners offers. 3. Sri S.R. Hegde Hudlamane, the learned counsel for the petitioners submits that certain documents were not produced in the writ petitions. He submits that it was not brought to the notice of the Court, that what was auctioned was only the non-refundable deposits. He also submits that no loss whatsoever is caused to the fourth respondent-Municipality. 3. Sri S.R. Hegde Hudlamane, the learned counsel for the petitioners submits that certain documents were not produced in the writ petitions. He submits that it was not brought to the notice of the Court, that what was auctioned was only the non-refundable deposits. He also submits that no loss whatsoever is caused to the fourth respondent-Municipality. He further submits that as many as 14 parties participated in the auction proceedings and not merely five persons, as was erroneously submitted before this Court at the time of disposal of the writ petitions. He submits that the Court was misled, as certain documents were not brought to its notice. 4. Sri Hegde Hudlamane has the grievance over the pick and choose tactics resorted to by the fourth respondent. The learned counsel submits that the action is being initiated only against the three persons (petitioners herein). 5. He has relied on this Court’s decision in the case of M.M. Yargatti vs. Shri Vasant Siddoji and others, ILR 1977 Kant. 1262. He read out the Head Note portion of the said judgment, which is extracted herein-below: “Civil Procedure Code 1908 (Central Act No. 4 of 1908)—Order 47, Rule 1—Limitation to exercise such power—A mistake of statement of fact was made in the decision and wrong decision was arrived at on the basis of that mistake of statement of fact—That mistake can be corrected by exercising powers under review having regard to the plenary jurisdiction conferred on the High Court—Judgment given under Section 50, Karnataka Rent Control Act can be reviewed.” 6. Nextly, the learned counsel sought to draw support from this Court’s decision in the case of Bangalore Development Authority, by its Commissioner, Bangalore and others vs. P. Anjanappa and others, ILR 2003 Kant. 1471, wherein it is held that nothing precludes this Court from rectifying the error which is apparent on the face of the record; if there is mis-appreciation or misrepresentation of the facts, the Court can review its own orders. 7. The learned counsel also brings to my notice the Apex Court’s decision in the case of M/s. Green View Tea and Industries vs. Collector, Golaghat, Assam and another, AIR 2004 SC 1738 . 7. The learned counsel also brings to my notice the Apex Court’s decision in the case of M/s. Green View Tea and Industries vs. Collector, Golaghat, Assam and another, AIR 2004 SC 1738 . The portion below Head Note ‘B’ read out by him is extracted herein-below:- “Review petition—‘Error apparent on face of record’—Material on record escaped, notice of High Court while considering question of compensation to be awarded in Land Acquisition case—In fairness and interest of justice—Matter remitted to High Court for second look to its own judgment.” 8. Nextly, the learned counsel also relied on the Apex Court’s judgment in the case of Board of Control for Cricket, India and another vs. Netaji Cricket Club and others, AIR 2005 SC 592 . The portion below the Head Note ‘C’ read out by him is extracted herein-below: “Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words ‘sufficient reason’ in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’. 9. Sri S.B. Shahapur, the learned Additional Government Advocate appearing for the respondent Nos. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’. 9. Sri S.B. Shahapur, the learned Additional Government Advocate appearing for the respondent Nos. 1 to 3 submits that the petitioners, more particularly, the petitioner No. 1 is estopped from filing the review petition, since he has filed an undertaking before this Court to vacate the premises on or before 1.11.2011. He further submits that all the documents placed on the record were minutely perused by this Court before disposing off the writ, petitions. 10. Sri A.V. Gangadharappa, the learned counsel appearing for the respondent No. 4 submits that, no auction whatsoever had indeed taken place. The records were manipulated only to show that the semblance of auction had taken place. He submits that in the earlier auction, the three shop units in question were fetching rent of about Rs. 48,000/-. In the subsequent allotment, on the basis of which the petitioners claim, the three units are fetching a meagre rent of about Rs. 7,500/-. 11. Sri Gangadharappa also submits that the petitioners’ versions regarding the enhancement in the non-refundable deposit is also not correct. According to him, there is no proportionate increase in the non-refundable deposit amount. Now the non-refundable deposit amount collected is Rs. 16 lakhs; where earlier it was Rs. 7.50 lakhs. He submits that, all the arguments being advanced by Sri Hegde Hudlamane were canvassed by the earlier learned counsel for the petitioners in writ petitions, Sri B.T. Indushekar. Sri Gangadharappa submits that all the relevant information sought by the Court was furnished. There was no misleading of this Court by any Advocate. 12. To decide this review petition, it is beneficial to refer to the Apex Court’s decision in the case of Satyanarayan Laxminarayan Hegde and others vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , wherein it is held that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. 13. It is also profitable to refer to the Apex Court’s decision in the case of Harinagar Sugar Mills Ltd. and another vs. State of Bihar and others, (2006) 1 SCC 509 , wherein the Hon’ble Supreme Court has reiterated the impermissibility of re-agitating of the points already decided. 13. It is also profitable to refer to the Apex Court’s decision in the case of Harinagar Sugar Mills Ltd. and another vs. State of Bihar and others, (2006) 1 SCC 509 , wherein the Hon’ble Supreme Court has reiterated the impermissibility of re-agitating of the points already decided. 14. The Hon’ble Supreme Court in the case of Haridas Das vs. Smt. Usha Rani Banik and others, AIR 2006 SC 1634 , is of immense value for disposing of this review petition. It is held therein that Order 47, Rule 1 of C.P.C. does not postulate rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcibly and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. The Hon’ble Supreme Court has further held that where the order in question is appealable, the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. 15. Further, in the case of S. Bagirathi Ammal vs. Palani Roman Catholic Mission, (2009) 10 SCC 464 , the Hon’ble Supreme Court has held that, an error contemplated under Rule 1 of Order 47, of C.P.C. for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. If the error is so apparent that without; further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie. Under the guise of review, the parties are not entitled to rehearing of the same issue. If the order is vitiated by an apparent error or it is a palpable wrong and if the error is self-evident, review is permissible. When I apply these principles, I find myself unable to accept the arguments of Sri Hedge Hudlamane. 16. In the instant case, this Court does not find any error, much less an error apparent on the face of the record. Particularly, the first petitioner, who has filed an undertaking to vacate the premises, cannot be permitted to rise up and re-argue the case. 17. In the result, this review petition is rejected. No order as to costs.