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2021 DIGILAW 167 (UTT)

Narendra Kumar v. State Of Uttarakhand

2021-03-16

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT Alok Kumar Verma, J. - The applicants, Purshottam Maheshwari and Lalit Maheshwari, filed an application, namely Civil Miscellaneous Impleadment Application No. 14001 of 2021, along with an application, namely Civil Miscellaneous Review Application No. 14000 of 2021, contending that they are necessary party in this matter. Therefore, they may be impleaded as respondents to the proceedings. They are also seeking review of the order dated 24.02.2021 passed in this writ petition. 2. The respondents Nos. 3 to 7 herein have also filed a review application, bearing no. 14002 of 2021, seeking review of the aforementioned order dated 24.02.2021. 3. The brief facts of the case which are necessary to notice for deciding these applications are: This writ petition has been filed seeking a writ, order or direction in the nature of mandamus commanding the respondent Nos. 1 & 2 to construct the proposed drain on Jhabrera-Jaatole road immediately and to open the blockage on two approaching roads so as to safeguard life and health of the residents of the area. 4. The case of the writ-petitioner is that in absence of proper drain system in the locality of Jhabrera town of District Haridwar, dirty and rain water over flows. Hence, the residents of the locality are bound to live in an unhygienic condition with apprehension of epidemic. Apart from this, due to blockage of two approaching roads, residents of the locality are unable to enter into the locality; instead, they have to travel through a long route. Consequently, students are reaching school late, and the residents of the area are not reaching their houses timely and safely. 5. The respondent No. 2, Nagar Palika Jhabrera filed its counter affidavit contending that the respondent No. 2 is not against the cause for which the writ petition has been filed. In fact, on the initiation of the respondent No. 2 itself, Revenue Officials inspected the area, and found encroachments on the road. Thereafter, public notices were issued on 04.05.2019 for removing the encroachments. The notices were served to the encroachers with a request to remove their unauthorized constructions like slab, wall, sheds etc. so the drain can be constructed, failing which the Nagar Panchayat will remove the unauthorized constructions. On the request of some of the encroachers including the respondent No. 3, the area in question was demarcated on 06.05.2019; it was found that there are encroachments over the Government land. so the drain can be constructed, failing which the Nagar Panchayat will remove the unauthorized constructions. On the request of some of the encroachers including the respondent No. 3, the area in question was demarcated on 06.05.2019; it was found that there are encroachments over the Government land. The respondent Nos. 3 to 7 were impleaded in this writ petition. They filed their counter affidavit. 6. On 14.12.2020, during the arguments in the writ petition, Mr. S.S. Chauhan, learned Deputy Advocate General for the State, submitted that within a period of ten days the Sub-Divisional Magistrate will demarcate the property-in-question and submit his report for consideration before the Court. Ms. Namami Bansal, Sub-Divisional Magistrate, Roorkee, District Haridwar filed her affidavit along with her survey report. According to the survey report, there is some encroachment on Jaatole Marg, area-inquestion. During the survey, it was found that the width of Jaatole Marg should be twelve meters. However, during survey, it was discovered that presently the width of the road is merely 9.45 meters. Thus, obviously, there is an encroachment of more than two meters on the road. On 24.02.2021, this Court asked the learned counsel for the Nagar Panchayat, respondent No. 2, with regard to any steps being taken by the Nagar Panchayat against the alleged encroachment and against the alleged encroachers. Then, the learned counsel for the Nagar Panchayat gave an undertaking before this Court that the Nagar Panchayat shall take strict actions against the alleged encroachers and shall remove the alleged encroachment within a period of fifteen days. 7. The learned counsel for the applicants in impleadment application submitted that the JhabreraJaatole road was not built by any department of the Government in a planned manner; the said road has existed since long as a kuttcha rasta (gohar) (chak road); the report of the Sub-Divisional Magistrate is erroneous; the property of the others are located adjacent to the road-in-question, and after that the property of the applicants is situated; the applicants desire to establish that the process of the Court is being misused in the name of the PIL; this PIL is motivated to achieve private vendetta between Mr. Manvendra, Chairperson of Town Area Committee, and Jodh Singh, the respondent No. 3. 8. On the other hand, the argument of Mr. Manvendra, Chairperson of Town Area Committee, and Jodh Singh, the respondent No. 3. 8. On the other hand, the argument of Mr. Vikas Bahuguna, learned counsel for the petitioner, is that the applicants are neither a necessary party, nor a proper party in this matter. Therefore, the application for impleadment should to be rejected. 9. The question as to whether an individual is a proper or necessary party to a case would depend upon the facts of the case, and the nature of relief claimed. A "necessary party" is a person who ought to have been joined as a party, and in whose absence no effective order can be passed by the Court; a "proper party" is a party, who though not a necessary party, is a person whose presence is considered appropriate for effective decision of the case. The learned counsel for the applicants is unable to show how the applicants have direct interest in the outcome of the present writ proceedings, and how their interest would be adversely affected. When a person is neither a necessary party, nor a proper party and his presence is not required for any complete and effective adjudication of the question involved in the matter, he cannot be impleaded merely because he wishes so. The application for impleadment lacks merit. It is, therefore, dismissed. 10. It is quite clear that no review application can be filed by a person who is not a party to the lis. At this stage, it is necessary to refer the provisions of Rule 1 of Order XLVII of the Code of Civil Procedure. Rule 1 of Order XLVII reads as under: "1. It is, therefore, dismissed. 10. It is quite clear that no review application can be filed by a person who is not a party to the lis. At this stage, it is necessary to refer the provisions of Rule 1 of Order XLVII of the Code of Civil Procedure. Rule 1 of Order XLVII reads as under: "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, or (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 of 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 of 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 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." 11. Explanation.- 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." 11. On a very reading of Rule 1, it is apparent that any person considered himself aggrieved by an order may apply for review provided he has to establish that he "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 order was made." The person applying for review the order has to satisfy that he is aggrieved by the order, and also that he was not in a position to bring the fact earlier. Therefore, the review application can be filed only by a party to the lis in which the order sought to be reviewed has been passed. The applicants are strangers to the lis in this writ petition. Hence, the review application cannot be preferred by them. The Review Application No. 14000 of 2021 has no merit. Therefore, the review application is liable to be dismissed, the same is dismissed. 12. Mr. M.S. Tyagi, learned Senior Counsel appearing on behalf of the respondent Nos. 3 to 7 submitted that the report of Ms. Namami Bansal, Sub-Divisional Magistrate, Roorkee, District Haridwar is erroneous because there is no encroachment on the road-in-question, at least from the side of the property of the respondent Nos. 3 to 7. 13. Per contra, Mr. Vikas Bahuguna, the learned counsel for the petitioner, refuted the submissions of Mr. M.S. Tyagi, learned Senior Counsel, and submitted that after taking sufficient opportunity to file objection to the report, filed by the Sub-Divisional Magistrate, the respondent Nos. 3 to 7 did not file any objection. Therefore, now, they have no right to raise any objection to the report of the SubDivisional Magistrate, Roorkee. 14. The right to review is the exception to the Latin term "Functus Officio". The power of review is very limited and it may be exercised only if there is a mistake or an error apparent on the face of record. The review application cannot be decided like a regular intra-court appeal. 15. On 08.01.2021, Mr. 14. The right to review is the exception to the Latin term "Functus Officio". The power of review is very limited and it may be exercised only if there is a mistake or an error apparent on the face of record. The review application cannot be decided like a regular intra-court appeal. 15. On 08.01.2021, Mr. M.S. Tyagi, the learned Senior Counsel, sought time to file counter to the report of the SubDivisional Magistrate, submitted by the State. But no counter was filed by him. On 24.02.2021, this Court dealt with the issues raised by the parties, and passed the order dealing with the grounds raised by the parties in support of their respective contentions. 16. When a question of fact is produced before the party, the party is free to deal with it in any way that he thinks proper. In the instant matter, the respondent Nos. 3 to 7 chose not to challenge the report of the Sub-Divisional Magistrate. Failure to raise a plea does not constitute an error apparent on the face of the record, or a ground for review. Failure to argue any point by the counsel is no ground for review; the grounds not taken earlier cannot be allowed to be taken in the review application. 17. In view of the ratio laid down by the Hon'ble Supreme Court in Patel Narshi Thakershi and others vs. Shri Pradyumansinghji, (1970) AIR SC 1273, the power of review can be exercised for correction of a mistake. Such power can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 18. In Lily Thomas vs. Union of India and others, (2000) AIR SC 1650, the Hon'ble Supreme Court has held that the power of review can be exercised for correction of a mistake, and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of this power. 19. It is settled position that the review applicant cannot re-argue the matter in the guise of review application. The review cannot be treated as an appeal in disguise. Such powers can be exercised within the limits of the statute dealing with the exercise of this power. 19. It is settled position that the review applicant cannot re-argue the matter in the guise of review application. The review cannot be treated as an appeal in disguise. The present review application does not come within the purview of Order XLVII Rule 1 of C.P.C. Under these circumstances, this Court is of the view that this is nothing but a frivolous and vexatious application bereft of any substance. It is an attempt to re-argue the matter. Therefore, the Review Application No. 14002 of 2021 is liable to be rejected; the same is dismissed.