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2012 DIGILAW 578 (GUJ)

Charla Mandal of Mumbai v. Khetshi Hirji Shah

2012-08-03

BHASKAR BHATTACHARYA, J.B.PARDIWALA

body2012
JUDGMENT : J.B. PARDIWALA, J. 1. Both the above captioned applications for review arise from judgment and order passed by this Court dated 27th June, 2012 in Writ Petition (PIL) No. 19 of 2011 and other allied matters and as common questions of fact are involved in both the applications, they were heard together and are being disposed of by this common judgment and order. 2. Misc. Civil Application No. 1798/12 has been preferred by the original respondents Nos. 25, 26, 29, 44 and 46 of the Writ Petition (PIL) No. 19 of 2001, for review of our judgment and order dated 27th June, 2012 passed in Writ Petition (PIL) No. 19 of 2011 and other allied matters. 3. Misc. Civil Application No. 1817/12 has been preferred by the original respondent No. 6 of the Writ Petition (PIL) No. 19 of 2001, for review of our judgment and order dated 27th June, 2012 passed in Writ Petition (PIL) No. 19 of 2011 and other allied matters. 4. This Court vide order dated 27th June, 2012, disposed of Writ Petition (PIL) No. 19 of 2011 and other allied matters by issuing following directions:- (1) The respondents in whose favour land came to be allotted by the Panchayat and upon such allotment whoever has made construction of any nature be it a temple or "ashramshala" or a bungalow or a flat or residential complex are directed to remove the construction. For this purpose the Collector, Kutch-Bhuj, District Kutch shall prepare a list of all allottees and actual occupiers of the premises and serve individual notice to such persons within a period of fortnight and also affix the notice at a conspicuous part of each of the premises directing them to remove the construction within six weeks from the date of the notice at their cost. (2) In the event if the respondents fail to remove the construction on their own within the stipulated period as fixed above, then in that case, the Collector, Kutch-Bhuj, District Kutch shall see to it that all such constructions are demolished with the help of State machinery and the cost of which shall be recovered from the individual-allottees within a period of four weeks thereafter. (3) The Collector, Kutch-Bhuj, District Kutch is hereby directed to see that after the structures are erased/removed, vacant possession of the land is taken over by drawing necessary panchnama. (3) The Collector, Kutch-Bhuj, District Kutch is hereby directed to see that after the structures are erased/removed, vacant possession of the land is taken over by drawing necessary panchnama. (4) Even if the construction has not been put up and the land is vacant, then in that case, the Collector, Kutch-Bhuj, District Kutch shall takeover the possession of vacant land by drawing a panchnama. (5) The Secretary, Revenue department and the Secretary, Panchayat department shall jointly constitute a committee under their supervision to fix the liability of the erring officers responsible for such arbitrary and highhanded action of allotting land by keeping the State Government and other authorities completely in dark. This exercise shall be undertaken and completed within a period of three months from today. 5. Mr. Premal Nanavati, learned counsel appearing for the applicants of Misc. C.A No. 1798 of 2012 (original respondents Nos. 25, 26, 29, 44 and 46) has alleged two points as mistakes apparent on the face of the record justifying a review. The first is, that the Court, while issuing directions as referred to above, has left no remedy for the applicants to persuade the State Government to regularise the construction. According to Mr. Nanavati, this Court ought to have left the option open for the State Government to consider as to whether it was legally permissible and feasible to regularise the construction, more particularly when it was not the stand of the State Government at any point of time that they would not like to regularise the construction. According to Mr. Nanavati, this is an error apparent on the face of the judgment delivered by us disposing of the main petition. 6. The next point urged is that the applicants bona-fide believed that the land in question was of the ownership of State of Maharashtra and accordingly requested the Panchayat to allot in their favour. Mr. Nanavati also submitted that even the Panchayat was under a bona-fide belief that the land belongs to the State of Maharashtra and, therefore, it was permissible for the Panchayat to allot on the strength of the permission which was granted by the State of Maharashtra vide letter dated 22nd September, 2003. Under such circumstances, as per the submission of Mr. Nanavati, this Court ought not to have passed directions for demolition of the construction. According to Mr. Under such circumstances, as per the submission of Mr. Nanavati, this Court ought not to have passed directions for demolition of the construction. According to Mr. Nanavati, this could also be termed as an error apparent on the face of the judgment and order. Mr. Nanavati urged that we should review our judgment on these two aspects and modify the directions by allowing the applicants to approach the Government of Gujarat for grant of ex-post facto sanction regularising the land allotted to the applicants. 7. Mr. Shalin Mehta, learned counsel appearing for the applicants of Misc. C.A. No. 1817 of 2012 (original respondent No. 6 of Writ Petition (PIL) No. 19 of 2011) alleged four points as mistakes patent on the face of the record justifying a review. The first is that the valuable right of his client to contest the notice issued by the Sarpanch, which was a subject matter of challenge in SCA No. 11 of 2011 could be said to have been infringed thereby violating Article 21 of the Constitution. The sum and substance of Mr. Mehta's submission is that pursuant to the notice issued by the Sarpanch for demolition of the construction, the said notice was challenged by filing SCA No. 11 of 2011 and the said writ petition was also clubbed with Writ Petition (PIL) No. 19 of 2011 and were heard together. According to Mr. Mehta, since SCA No. 11 of 2011 was also clubbed with the main writ petition (PIL), his right to contest the notice was infringed. This, according to Mr. Mehta is an error apparent on the face of the record. 8. The second point submitted by Mr. Mehta is that the petition was barred by principle of res-judicata and this Court has failed to take into consideration the earlier order passed by the Division Bench of this Court while disposing of SCA No. 19858 of 2007. According to Mr. Mehta, this is also an error apparent on the face of the record. 9. The third point submitted is that the land belongs to the State of Maharashtra as observed by the Division Bench of this Court while disposing of SCA No. 19858 of 2007. According to Mr. According to Mr. Mehta, this is also an error apparent on the face of the record. 9. The third point submitted is that the land belongs to the State of Maharashtra as observed by the Division Bench of this Court while disposing of SCA No. 19858 of 2007. According to Mr. Mehta, in the light of the observations made in the earlier round of litigation, the finding recorded by this Court that State of Maharashtra could not be said to be the owner of the land in question is an error apparent on the face of the record. 10. The last point urged is that the original petitioner of Writ Petition (PIL) No. 19 of 2011 has misled this Court to believe that on the land in question residential flats and bungalows have also been constructed. 11. Having heard learned counsel for the respective parties and having gone through the materials on record, the only question which falls for our consideration in these two Review Applications is as to whether the applicants have been able to point out any palpable error in our judgment and order dated 27th June, 2012, which could be termed as an error apparent on the face of the record justifying review. 12. Before entering into the merits of these Applications, it will be profitable to look into the provisions of Order 47, Rule 1 Civil Procedure Code. Order 47, Rule 1 Civil Procedure Code reads as follows: “REVIEW 1. Application for review of judgment - (1) Any person considering himself aggrieved:- (a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred. (b) by a decree or order from which no appeal is allowed. (c) by a decision on a reference from a Court of Small Causes and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review or judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation - The fact that the decision on question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. 2. [Repealed by Act 66 of 1956].” 13. In order to appreciate the scope of a review, Section 114 Civil Procedure Code has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it “may make such order thereon as it thinks fit.” The parameters are prescribed in Order 47 Civil Procedure Code and for the purposes of this lis, permit the party to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. 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. 14. 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. 14. The Apex Court in M/s. Thungabhadra Industries Ltd. vs. Government of Andhra Pradesh, AIR 1964 SC 1372 , held as follows: “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......where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” 15. In Meera Bhanja vs. Smt. Nirmala Kumari Choudary, AIR 1995 SC 455 , the Supreme Court held that: “It is well settled law that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 Civil Procedure Code. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, AIR 1979 SC 1047 speaking through Chinnappa Reddy, J. has made the following pertinent observations: “It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be in the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of error committed by the subordinate court.” 16. A perusal of Order 47, Rule 1 Civil Procedure Code shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. 17. We may only say that during the course of hearing of the main writ petition being PIL No. 19 of 2011 and other allied matters, the counsel for the respective parties were heard at length. The grounds which have been pressed into service for review of our judgment and order were the same grounds which were urged during the course of hearing of the main writ petitions and on each of the grounds, we have recorded our findings in detail. It is apparent from the submissions which have been made by the respective counsel for the applicants that they are seeking rehearing of the entire matter, which is not permissible in the guise of review. 18. It is apparent from the submissions which have been made by the respective counsel for the applicants that they are seeking rehearing of the entire matter, which is not permissible in the guise of review. 18. We may also state that during the course of hearing of the two Review Applications, the learned counsel also tried to introduce new facts with which we are not concerned, as the main petition has been decided on a pure question of law that mere merger of the acquired land with the Gamthal of the Panchayat land would not confer any right, title or interest on the Panchayat so as to confer any power or legal right to allot such land in favour of different individuals or institutions. 19. If the applicants are dissatisfied with our judgment and order, then the appropriate remedy would be to challenge the decision before the higher forum. We are of the view that the parameters required for bringing in application under Order 47, Rule 1 Civil Procedure Code are absent in the present case. 20. In the aforesaid view of the matter, we hold that there is no merit in both the Review Applications and the same deserve to be rejected. 21. We, accordingly, reject both the Review Applications. The order of status-quo passed by us is vacated forthwith. On the facts and in the circumstances of the case, there shall be no order as to costs. Review Application Rejected.