JUDGMENT : Arindam Sinha, J. Ref: Civil Misc. Review Application No.6 of 2021. 1. The review application is for hearing and disposal. Review-applicant is the State. It seeks review of judgment dated 22nd January, 2015 of a Division Bench, none of the learned judges in which are at present available. Hence, we as the regular Bench are dealing with the review. 2. The application was earlier heard on 12th August, 2025 by a Bench, to which one of us was party (Arindam Sinha, J.). Preliminary objection was raised on behalf of writ petitioners, opposing the review, contending State had filed Special Leave to Appeal petition (SLP) in the Supreme Court, dismissed on order dated 4th December, 2019. It then filed for review on delay. It is an abuse of the process. 3. Mr. Srivastava, learned advocate and Standing Counsel appears on behalf of review-applicant (State). He relies on judgment dated 18 August, 2023 of the Supreme Court in Civil Appeal no.1434 of 2023 (Experion Developers Private Limited Vs. Himanshu Dewan, Sonali Dewan and others), paragraphs 26 to 28 in Indian Kanoon print. He submits, the SLP having had been dismissed by the Supreme Court, it does not cause nd merger, for said judgment dated 22 January, 2015 as can be said to have been confirmed, thereby barring right of review. 4. He draws attention to ground no.1 in the review application to submit, there is error apparent in the judgment. It is reproduced below. "1. Because, the Hon'ble Division Bench while allowing the petition appears to have proceeded on a wrong premise regarding the date of possession, recording it as 06.01.2003. However the date of possession in the present matter is 04.08.1992. The possession had also been transferred to the Kanpur Development Authority in the year 2003. The name of the Urban Ceiling / State Government was recorded in the Revenue Records, in the year 2003. Therefore it is apparent that an error has crept in, and which invites attentions of this Hon'ble Court for Review of the judgment dated 22.01.2015." (emphasis supplied) He submits, by said judgment dated 22nd January, 2015 the Division Bench had made error apparent in recording the date of possession to be 6th January, 2003. It was taken long before on 4th August, 1992. He then relies upon a paragraph in said judgment, reproduced below. It was taken long before on 4th August, 1992. He then relies upon a paragraph in said judgment, reproduced below. "It is stated that from record it appears that the petitioners also inspected the record of the office of the Competent Authority and found that a certificate of possession of 6.1.2003 had, been prepared by the authorities whereby they have shown to have transferred the possession of the excess vacant land of the petitioners to the employees of the Kanpur Development Authority, Kanpur. However, a perusal of the said certificate of possession clearly show that the land of plot nos.68,69,70,47 and 125M was shown under cultivation of the petitioners even at the time of preparation of certificate while constructions were shown on the remaining land. This fact itself establishes that purported possession of respondents vide certificate dated 6.1.2003 was a mere paper transaction and petitioners had actual physical possession over the land in dispute even thereafter and uptill now." (emphasis supplied) Mr. Srivastava submits, the delay be condoned and as there is error apparent in the judgment under review, it be recalled. The writ petition be posted for hearing once again. 5. Mr. Sanjay Goswami, learned advocate appears on behalf of petitioners in the writ petition. He opposes only the review application on submission, State itself said in its SLP that advice from the legal department was to file SLP. He reiterates his clients’ contention that after the SLP stood dismissed on order dated 4th December, 2019 of the Supreme Court, State cannot now turn around and press for review. 6. Preliminary objection that the review is abuse of the process is based on review applicant having unsuccessfully petitioned the Supreme Court for Special Leave to Appeal against judgment dated 22 January, 2015 and then moving this Court, for review of it. The Supreme Court in Experion Developers (supra) referred to, inter alia, Khoday Distilleries Ltd. vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. reported in (2019) 4 SCC 376 , paragraphs 16 to 18 in which dealt with situations as may arise on SLPs dismissed and reviews filed in the lower Court thereafter. The Supreme Court in Experion Developers (supra) referred to, inter alia, Khoday Distilleries Ltd. vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. reported in (2019) 4 SCC 376 , paragraphs 16 to 18 in which dealt with situations as may arise on SLPs dismissed and reviews filed in the lower Court thereafter. In paragraph 16, [Khoday Distilleries Ltd. (supra)] there was reference made to an earlier decision of said Court in Abbai Maligai Partnership Firm vs. K. Santhakumaran reported in (1998) 7 SCC 386 , wherein the Supreme Court had disapproved of the High Court entertaining a review filed after dismissal of the SLP. In said paragraph (16) stands quoted paragraph 4 from Abbai Maligai Partnership Firm (supra). The extracted and reproduced paragraph 4 is also reproduced below. "4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 7-1-1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 7-4-1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs 10,000 as costs.” (emphasis supplied) 7. We find from order dated 4th December, 2019, whereby the Supreme Court dismissed review-applicant’s SLP [(petition for special leave to appeal(c) no.33292 of 2015, State of U.P. and another vs. Shiv Ratan Dixit and others)], it was made upon hearing the counsel. Said order bears record of appearance showing both petitioners and respondents were represented before the Supreme Court. This is because on earlier order dated 27th November, 2015 there was direction for notice, after which by order dated 13th November, 2017 it was recorded that all the respondents had already filed counter affidavits. Text of said order of dismissal made thereafter on 4th December, 2019 is reproduced below. “The application for discharge of previous Advocate-on-Record is allowed in terms of the prayer made. Heard learned counsel for the parties. The special leave petition is dismissed. As a sequel to the above, pending interlocutory applications also stand disposed of.” (emphasis supplied) 8. As aforesaid, in Experion Developers (supra), the Supreme Court referred to paragraph 20 in Khoday Distilleries Ltd. (supra), reproduced below. “20. The Court thereafter analysed number of cases where orders of different nature were passed and dealt with these judgments by classifying them in the following categories: (i) Dismissal at the stage of special leave petition - without reasons - no res judicata, no merger. (ii) Dismissal of the special leave petition by speaking or reasoned order - no merger, but rule of discipline and Article 141 attracted. (iii) Leave granted - dismissal without reasons - merger results.” (emphasis supplied) To our mind the proceeding before the Supreme Court in applicant’s SLP, had directions given for issuance of notice, respondents filed counter affidavits and upon hearing counsel the review dismissed on said order dated 4th December, 2019. It would bring the dismissal under instance (ii) given in paragraph 20 of Khoday Distilleries Ltd. (supra) read with paragraph 4 in Abbai Maligai Partnership Firm (supra). It would bring the dismissal under instance (ii) given in paragraph 20 of Khoday Distilleries Ltd. (supra) read with paragraph 4 in Abbai Maligai Partnership Firm (supra). We say so because the SLPs referred to in Abbai Maligai Partnership Firm (supra) were preferred against orders dated 7th January, 1987 of the High Court. The petitions for special leave to appeal (civil) nos.4039-4040 of 1987 were dismissed by the Supreme Court on order dated 16th September, 1987 upon hearing the counsel. Text of the order is reproduced below. “Special leave petitions are dismissed.” The Supreme Court answering the reference in Khoday Distilleries Ltd. (supra) said in paragraph 21 as reproduced below. 21. It may be pertinent to mention here that while laying down the second principle mentioned above, the Court took note of the judgment in Abbai Maligai Partnership Firm and discussed it in the following manner: (Kunhayammed case, SCC pp.377, para 26) "26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing SLP after hearing counsel for the parties is discernible from a recent three-Judge Bench decision of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran. In the matter of eviction proceeding initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the Senior Advocates representing them. The special leave petitions were dismissed. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions. This Court observed that what was done by the learned Single Judge was “subversive of judicial discipline”. The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However the learned Judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. However the learned Judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. A careful reading of this decision brings out the correct statement of law and fortifies us in taking the view as under.” (emphasis supplied) 9. Nevertheless, to first address applicant's ground for review, applicant's contention is presence of error apparent because according to it, possession was taken on 4th August, 1992 but the Division Bench referred to possession with State as purportedly evidenced by certificate dated 6th January, 2003. In relied upon paragraph reproduced above, we see clear finding of a fact that when possession was shown to be given to Kanpur Development Authority vide certificate dated 6th January, 2003, the Division Bench, from perusal of the certificate of possession itself, said it clearly showed that the lands were under cultivation of (writ) petitioners even at the time of preparation of the certificate, while constructions were shown on the remaining land. The Bench went on to say that it establishes, purported possession of respondents (review's applicant) vide certificate dated 6th January, 2003 was a mere paper transaction. Writ petitioners had actual physical possession over the land in dispute even thereafter and till the date of judgment. The Division Bench was dealing with petitioners’ claimed possession at the time it prepared the certificate. On perusal of it, said Bench appreciated review applicant to be in purported possession inasmuch as, it sought to deliver the possession to Kanpur Development Authority. By relied upon paragraph in the judgment, the Division Bench did not say review applicant had come into possession vide said certificate dated 6th January, 2003, for us to conclude error apparent. Those were findings of facts and inferences drawn thereupon. It follows, State being aggrieved by the findings was advised to prefer SLP for grant of leave by the Supreme Court, to admit the matter as an appeal before it. There is no disclosure by review-applicant, on discovery subsequent to passing of the judgment which even by due diligence it could not lay its hands upon earlier. Thus, the urged upon ground, said to be for review, is neither based on new materials subsequently discovered nor error apparent. 10. For reasons aforesaid, the delay is condoned and the review application, admitted. It is dismissed.