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2019 DIGILAW 670 (MAD)

Saravanan v. P. Dinesh

2019-03-11

M.VENUGOPAL, S.VAIDYANATHAN

body2019
JUDGMENT : (Prayer: Review Application filed under Order 47 Rule I CPC r/w 114 C.P.C. praying to review the order dated 03.01.2018 made in W.P.No.9817 of 2017 in the light of the liberty granted by the Hon'ble Supreme Court by its Order dated 09.04.2018 in SLP (Civil) No.8247 of 2018. 1. Aggrieved by the order dated 03.01.2018 made in W.P.No.9817 of 2017 the Respondents No.3 to 6 have filed this Review petition seeking to review the same. 2. The Writ Petitioner, who is the First Respondent in this Review Application, originally filed W.P.No.9817 of 2017, seeking a direction to quash the Order of the The Commissioner, Arakkonam Municipality, Arakkonam/Second Respondent in the Writ Petition in Na.Ka.No.2292/F1/2015 dated 30.01.2017 and consequently direct the Commissioner, Arakkonam Municipality to remove the encroachments made by the Respondents 3 to 6 in the Writ Petition in T.S.No.36, Ward-B, Block-4 bearing Municipal Door No.9, Gandhi Road, Thiruttani Road, Arakkonam Town, Vellore District. 3. After hearing the Learned counsel on either side, this Court allowed the said Writ Petition on 03.01.2018, by holding as under: “6. A perusal of the impugned order shows that on the Eastern side of the Petitioner's property, there is a Government poramboke land, viz., T.S.No.37. However, during registration of the sale deed, Eastern side was wrongly shown as Gandhi Road -6, instead of Government Poramboke land. Further, the Respondents 4 and 5 have constructed a building measuring an extent of 440 sq.ft without obtaining any permission from the Municipality. The impugned order also says that the petitioner has access to his property through Rajendra Girisingh Street and the Respondents 3 and 4 have already given the pathway to the petitioner between their encroachment in T.S.No.37 and as and when it is required, the same will be removed depending upon the then existing situation. The learned counsel for the petitioner also relied upon a Scheme, namely, “Kalaigner Veetu Vasanthi Thittam' more particularly to Column 17. However, if the Order impugned in this Writ Petition is allowed to stand, all the persons / authorities will start asking the similar relief, i.e., permitting the existing encroachments to continue and that the same will be removed as and when the situation warrants and thereafter, they will seek for regularisation. The contention of the 5th respondent that they cannot be evicted, cannot be accepted. 4. The contention of the 5th respondent that they cannot be evicted, cannot be accepted. 4. The Respondents in the Writ petition have stated that the Writ Petitioner is not entitled to the Government Property and the Writ Petitioner along with his sister, had filed many litigations to raise the value of their property, which is adjacent to the main road in T.S.No.37 of Arakkonam Town. The Commissioner, Arakkonam Municipality/Second Respondent in the Writ petition stated that there is no disturbance to the traffic on the highway or even to the public and in case, the land is required for the Government in future, the same will be taken over and further stated that the occupation by the Respondents 3 to 6 are neither hindrance nor causing any nuisance to any body and consequently to defer any eviction, which is legal and valid. 5. In the Writ Petition, this Court relied upon the judgment of the First Bench of this Court in the case of K.K.Pudur Residents' Welfare Association and Others vs The District Collector, Coimbatore District and Others reported in 2017(2) CTC 392 , wherein, it was held that 'once it is not in dispute that road is a public road vesting with Local Authority, occupation / encroachment for any length of time cannot confer any kind of indestructible right to encroachers. Merely because money has been spent towards improvement of area for basic amenities, it cannot be said that encroachers have indestructible right. If anyone knowingly or unknowingly constructs a building by encroaching the public place, they shall not be shown any sympathy on the ground that money has been spent on illegal constructions. 6. This Court also held that if the Authorities have not removed all the encroachers in and around the subject property within a period of one month, disciplinary action will be taken against the concerned Officials and major punishment will be imposed and the same will be entered in their Service Records. 7. It is no doubt true that dismissal of Special Leave Petition is not a bar for filing Review Petition. The Apex Court by Order dated 09.04.2018 in SLP (Civil) No.8247 of 2018 has granted permission to approach this Court by way of Review Petition and that an Order of Status-Quo was granted for a period of four weeks on 10.04.2018. 8. The Apex Court by Order dated 09.04.2018 in SLP (Civil) No.8247 of 2018 has granted permission to approach this Court by way of Review Petition and that an Order of Status-Quo was granted for a period of four weeks on 10.04.2018. 8. Even though the Order was made ready on 11.04.2018, they did not choose to file any Review Petition within the time stipulated pursuant to the Order dated 03.01.2018 in W.P.No.9817 of 2017. However, the same has been filed within thirty days from the date of the Order of the Apex Court, which has been condoned now by a Separate Order in WMP No.6763 of 2019 dated 11.03.2019. 9. To maintain a Review Application, the Review Petitioner must satisfy the three requirements of Order 47 Rule 1 of C.P.C. i.e., (i) From discovery of new and important matter or evidence which after 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; (ii) There is some mistake (or) error apparent on the face of the record in the judgment under review; and (iii) or any other sufficient reasons. 10. The basic principle to entertain the Review under Order 47 Rule 1 C.P.C. is to correct the errors but not to substitute a view. The judgment under review cannot be reversed (or) altered taking away the rights declared and conferred by the Court under the said judgment; once a judgment is rendered, the Court becomes functus officio and it cannot set aside its judgment or the decree; no inherent powers of review were conferred on the Court; the review Court cannot look into the trial Court judgment; it can look into its own judgment for limited purpose to correct any error or mistake in the judgment pointed out by the review petitioner without altering or substituting its view in the judgment under review; the review court cannot entertain the arguments touching the merits and demerits of the case and cannot take a different view disturbing the finality of the judgment; the review cannot be treated as appeal in disguise, as the object behind review is ultimately to see that there should not be miscarriage of justice and shall do justice for the sake of justice only and review on the ground that the judgment is erroneous cannot be sustained. 11. 11. It is settled law that even an erroneous decision cannot be a ground for the Court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order under review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed. 12. In “Shanmuga Sundara Nadar vs. Tamil Nadu Housing Board, rep. by its Chairman, Madras and others”, reported in 1988 (2) L.W. 57 (MAD.), this Court held as under: "The power to review is a restricted power which authorises the Court to look through the judgment not in order to substitute a fresh or second judgment but in order to correct it or improve it, because some material which it ought to have considered has escaped consideration or failed to be placed before it for any other reason or because it suffers from a patent error which cannot be sustained by any process of reasoning. The Court cannot under cover of review arrogate to itself the power to decide the case over again because it feels then that the assessment of evidence, etc., done formerly was faulty or even incorrect. An erroneous view of evidence of law is not a ground for review. A wrong exposition of the law, a wrong application of the law and failure to apply the correct law have been held to be not a ground for review." 13. In “Meera Bhanja vs. Nirmala Kumari Choudhury” reported in (1995) 1 SCC 170 , the Supreme Court, while considering the scope of the power of review of the High Court under Order 47, Rule 1, C.P.C., held as under: "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 C.P.C. The review petition of error apparent on the face of the record and not on any other ground. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The limitation of powers on court under Order 47, Rule 1, C.P.C. is similar to jurisdiction available to the High Court while seeking review of the orders under Article 226." 14. Having regard to the above, this Court does not find any error apparent on the face of the order in order to entertain the present Review Application. 15. Accordingly, this Review Application is dismissed. No costs.