JUDGMENT : J.B. Pardiwala, J. This is an application preferred by the applicants-original respondents Nos. 3 to 5 of the main petition being SCA No. 14529 of 2003 for review of judgment and order dated June 21, 2005 decided by Division Bench of this Court (Coram: Hon'ble Mr. Justice Kshitij R. Vyas & Hon'ble Mr. Justice Akshay H. Mehta, JJ. [as Their Lordships then were]), disposing of the petition preferred by respondent No.1 herein - the original petitioner by issuing appropriate directions in the matter. 2. The facts relevant for the purpose of deciding this application for review may be summarised as under:- 2.1 The applicants are the original owners of plot No. 138, sub-plan "A" of Town Planning Scheme No.4, Kokhra, Maninagar. Record reveals that they had purchased the plot at an public auction. After getting the land converted to Non Agricultural use, the applicants started constructing a shopping complex thereon in the name of "Vinay Arcade" in the year 1978-79. Record reveals that the applicants completed part construction of cellar, mezzanine and first floor of the building but thereafter they started facing financial problems. They sold the project i.e. right to construct and sell the rest of the constructed area along with right, title and interest in the said land to Messrs Purvi Construction by registered sale-deed in the year 1983. It appears that as per the original building plan the entire cellar was to be used for parking purpose. But prior to sale, the applicants had submitted revised building plan in respect of the cellar and sanction was granted to use a portion of the basement for commercial purpose. In view of permissibility to use for commercial purpose under revised sanction plan, Messrs Purvi Construction let out 9,700 square feet area in the cellar to State Bank of India for storing stationery/old records for an initial period of ten years in 1983. It appears that as this area of 9,700 square feet rendered to the Bank was in excess of the area sanctioned for commercial purpose, Messrs Purvi Construction made an application on February 27, 2002 with the Municipal Corporation for permission to change the use of additional area in the basement. It also appears from the record that an amount of Rs.1,50,000/- was deposited with the Corporation towards conversion charges (Impact Fee).
It also appears from the record that an amount of Rs.1,50,000/- was deposited with the Corporation towards conversion charges (Impact Fee). On May 8, 2002, respondent No.1 herein - original petitioner along with one another person purchased the entire cellar area of the building from Messrs Purvi Construction by a registered deed. 2.2 Record also reveals that as traders having shops at the building were creating nuisance in the use of cellar by respondent No.1 herein - original petitioner, he filed Civil Suit No. 2871 of 2002 against respondent No.2 herein and the Corporation. It appears that the relief against respondent No.2 herein was to the extent that he be restrained from interfering with the peaceful possession of the cellar portion of the building and relief prayed for against the Corporation was to the effect that till the application made earlier by Messrs Purvi Construction and now pursued by respondent No.1 herein as plaintiff for regularisation of the user is pending consideration before the Corporation, it should not take any action adverse to the interest of respondent No.1 - original petitioner and plaintiff in the Suit in respect of the area admeasuring 300.23 square meters at the instance of any third party. 2.3 Record reveals that mandatory injunction as prayed for by respondent No.1 herein was granted by the City Civil Court and an order was passed directing the Ahmedabad Municipal Corporation to consider the application expeditiously and till then to maintain status-quo as regards the nature, character and use of the property. Record also reveals that the present applicant preferred an application for being impleaded as party defendants in the above mentioned Suit filed by respondent No.1. The said application was allowed and the applicants herein were ordered to be brought on record of the Suit as defendants Nos. 3 to 5. 2.4 Aggrieved by the order passed by the trial Court allowing the impleadment application, respondent No.1 herein preferred Special Civil Application No. 14529 of 2003. During the pendency of the writ petition, respondent No.1 withdrew Civil Suit No. 2871 of 2002. It appears that in spite of the fact that Civil Suit came to be withdrawn, learned Single Judge of this Court passed an order holding that the Corporation has no power to regularise illegal construction and therefore, the question of regularisation on payment of Impact Fee would not arise.
It appears that in spite of the fact that Civil Suit came to be withdrawn, learned Single Judge of this Court passed an order holding that the Corporation has no power to regularise illegal construction and therefore, the question of regularisation on payment of Impact Fee would not arise. So holding, the learned Single Judge directed the Corporation to demolish partition walls put up by respondent No.1 for the Bank in the area sanctioned for use as commercial godown and to restore the entire cellar into a parking area. It appears that Letters Patent Appeal was preferred by respondent No. 1 against the order passed by learned Single Judge, but the appeal failed and was dismissed as not maintainable. 2.5 Respondent No.1 thereafter preferred Special Leave Petition before the Hon'ble Supreme Court, which came to be partly allowed and the matter was remanded to the High Court with certain directions, including examination of issue as to whether it was permissible for the Corporation to regularise illegal user or unauthorised construction on payment of fee. 2.6 After remand of the matter from the Supreme Court, this Court by an order dated December 20, 2004, directed the Corporation to decide the application of respondent No.1. The Corporation, by an order dated March 16, 2005, rejected the application of respondent No.1 on the grounds enumerated therein. By way of an amendment, respondent No.1 sought leave to challenge the said order of the Corporation and the prayer was accordingly granted. This Court after hearing the parties found that the reasons given by the Corporation for rejecting the application for conversion of parking area into commercial use area were erroneous in law and not tenable. However, in view of the fact that for considerable period part of the cellar was put to commercial use and was given on rent to the Bank to use it as it's godown and safe deposit vault, Court felt that no useful purpose would be served by directing respondent No.1 to put the whole cellar to the use of parking. 2.7 Record reveals that as on today, one Civil Suit No. 361 of 2003 is still pending and has progressed substantially before the City Civil Court. It is in this background of the entire matter the Division Bench after recording facts of a very chequered litigation, observed in paragraph 20 as under:- "20.
2.7 Record reveals that as on today, one Civil Suit No. 361 of 2003 is still pending and has progressed substantially before the City Civil Court. It is in this background of the entire matter the Division Bench after recording facts of a very chequered litigation, observed in paragraph 20 as under:- "20. However, it may be recalled here that M/s.Purvi Construction had submitted a revised plan on 4.10.1983 for converting 765.33 sq. metres of the 1231 sq. mtrs to be used for Bank Godown and Safe Deposit Vault and an area of 466.21 sq. mtrs was sanctioned for parking area. Considering the facts which have been narrated above and especially the fact that for considerable period, part of the cellar was put to commercial use and was given on rent to the Bank to use it as its godown and Safe Deposit Vault, no useful purpose would be served by directing the petitioner to put the whole cellar to the use of parking for the present. In our opinion, the petitioner can be permitted to use the cellar for parking of two wheelers in the area of 466.21 sq.mtrs of the cellar. Rest of the portion can be put to commercial use by the petitioner. We, therefore, direct that the seals which are applied to the cellar be removed and the petitioner be permitted to use the cellar for commercial purpose except for the area of 466.21 sq.mtrs which is required to be used as parking. We also clarify that our observations made in this order shall not come in the way of the trial court in deciding the suits filed by the petitioner or respondent no.3 on its merits. This judgment will not prejudicially affect the rights and contentions that may be raised by the petitioner or respondent no.3 in the Civil Suits. It is also clarified that our directions with regard to commercial use as well as parking use of the cellar is till the time the aforesaid suits are decided by the trial court and the same will be subject to the ultimate direction that may be issued by the trial court in the suits. Rule is made partly absolute to the aforesaid extent with no order as to costs.
Rule is made partly absolute to the aforesaid extent with no order as to costs. In view of the order passed in the main matter, no order on Civil Application No.9470 of 2004 and it is disposed of accordingly." 2.8 In paragraph 20 of the judgment, the Division Bench clearly observed that the petitioner i.e. respondent No.1 herein can be permitted to use the cellar for parking of two wheelers in the area of 466.21 square meters of the cellar, whereas rest of the portion can be put to commercial use by the petitioner i.e. respondent No.1 herein. It is this part of the judgment which is sought to be reviewed by the applicants herein almost after a period of 5 years from the date of the judgment and order passed by the Division Bench and by now almost after 8 years. 3. This part of the judgment is sought to be reviewed on the ground that there is an error apparent on the face of the record inasmuch as according to the applicants, on verification it is found that Ahmedabad Municipal Corporation has sanctioned the plan according to which total basement area (with walls) is 1,247.10 square meters out of which 363.03 square meters area has been sanctioned for godown for Bank (with walls) and 135.64 square meters area has been sanctioned for Safe Deposit Vault with walls and remaining portion 748.43 square meters area has been sanctioned for parking of two wheelers. According to the applicants therefore the area for parking of two wheelers should be read as 748.43 square meters and not 466.21 square meters. 4. We have heard learned Advocate Mr. N.V. Solanki for the applicants, learned Advocate Mr. Maulik G. Nanavati appearing for respondent No.1 - original petitioner, learned Advocate Mr. Bhavdatt H. Bhastt for respondent No.2, Mr. Asim Pandya, learned Advocate for H.L. Patel Associates for respondent No.3, learned Advocate Mr. Nikhilesh J. Shah for respondent No.5 and learned Assistant Government Pleader for respondent No.6. 5. This application has been contested tooth and nail. Before we proceed to decide this application, it would be expedient to consider the scope of a review application.
Asim Pandya, learned Advocate for H.L. Patel Associates for respondent No.3, learned Advocate Mr. Nikhilesh J. Shah for respondent No.5 and learned Assistant Government Pleader for respondent No.6. 5. This application has been contested tooth and nail. Before we proceed to decide this application, it would be expedient to consider the scope of a review application. It is a settled law that a review of the judgment is a serious step and reluctance to resort to it is proper unless where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. An application for review of a judgment may be made on any of the following grounds:- (i) Discovery of new and important matter or evidence, or (ii) Mistake or error apparent on the face of the record, or (iii) Any other sufficient reason. After the amendment in Section 141 of the Code and insertion of Explanation to that section, it is clear that the provisions of Order 47 of the Code do not apply to writ petitions filed under Articles 226 and 227 of the Constitution. There is nothing in Article 226 and 227 to preclude this 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. At the same time, however, there are definitive limits to the exercise of the power of review. It cannot be forgotten that a review is not an appeal in disguise whereby an erroneous decision is reheard and corrected. This general rule applicable to civil proceedings would apply to proceedings under Articles 226 and 227 of the Constitution as well. While exercising the power of review, this Court have to bear in mind the following principles:- (i) The provisions of the Civil Procedure Code in Order 47 are not applicable in exercising power of review by this Court in proceedings under Articles 226 and 227 of the Constitution; (ii) The said powers are exercised by this Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet 'palpable' means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination).
(The epithet 'palpable' means that which can be felt by a simple touch of the order and not which could be dug out after a long drawn out process of argumentation and ratiocination). (iii) The inherent powers, though ex-facie plenary, are not treated as unlimited or unabridged but they are invoked on the grounds analogous to the grounds mentioned in Order 47 Rule 1. The observations of the Supreme Court in the leading case of Northern India Caterers Limited V. Lt. Governor of Delhi, reported in AIR 1980 SC 674 , very succinctly explains the correct principle of law on the power of review and, therefore, are worth quoting:- "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. ...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." 6. Having heard learned counsel for the parties and having gone through the materials on record and the vehemence with which this application has been contested, it is manifest that there are highly disputed questions of fact involved in this application. What has disturbed us is the gross delay on the part of the applicants in preferring this review application. The judgment and order of which review is sought for is dated 21.6.2005. The application for review was first time preferred on October 27, 2005, but no explanation is forthcoming on record as to why the same was not circulated and it appears that it was numbered by the Registry only in 2008. Be that as it may, the fact is that there is a gross delay in filing this application for review. Apart from this, there is no reasonable explanation coming forward as to why from 2008 till date the application was not pressed for. Almost six years have passed since the time Division Bench passed the judgment and order. We can take judicial notice of the fact that Hon'ble Mr.
Apart from this, there is no reasonable explanation coming forward as to why from 2008 till date the application was not pressed for. Almost six years have passed since the time Division Bench passed the judgment and order. We can take judicial notice of the fact that Hon'ble Mr. Justice K.R. Vyas was in this High Court upto March, 2006 till the time His Lordship, [as he then was], elevated as Chief Justice of Bombay High Court and Hon'ble Mr. Justice Akshay H. Mehta retired in the year 2009. It was expected of the applicants to move this application at the earliest so that the Bench which heard the matter could have looked into the review application. It is always very much necessary that a party prefers the review application at the earliest so that the facts are fresh in the mind of Hon'ble Judges who have decided the matter. 7. It is not that there is any period of limitation for the Courts to exercise that power under Articles 226 and/or 227 of the Constitution, nor is it that there can never be a case where the Courts cannot interfere in a matter after a passage of certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 and/or 227 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. 8. It is true that provisions of Order 47 of the Code of Civil Procedure do not strictly apply to such an application to review or reconsider a decision under Article 226 and/or 227 of the Constitution of India. Similarly, Article 137 of the Limitation Act is not applicable to the writ proceedings. But even then if an application inviting this Court under Article 226 and/or 227 of the Constitution to review it's decision is filed after a long lapse of time without proper explanation for the delay, we are of the view that this Court would be justified in rejecting the application on that ground alone as would be sound exercise of discretion. 9.
9. In the case of State of Madhya Pradesh V. Bhailal Bhai, reported in AIR 1964 SC 1006 , the Supreme Court under para 21 of its judgment held ""The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period it will always be proper for the Court to hold that it is unreasonable." 10. Considering the ground on which review is prayed for, it cannot be said that there is an error apparent on the face of the order. For an error to be corrected in a review application, the same has to be palpable. On a mere look the Court should be convinced or satisfied that there is an error which deserves to be corrected in the interest of justice. Such is not the case over here. At the cost of repetition, we state that there are disputed questions of fact and we are not inclined to review as a Civil Suit is also pending before the Civil Court where the parties can lead oral and documentary evidence to resolve this controversy as regards the exact parking area. 11. In the above view of the matter, we reject this application. However, there shall be no order as to costs. Application dismissed.