Gujarat High Court
Bhartiben N Patel & vs Arvindbhai R Patel & 4 on 29 April, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/MCA/697/2016 CAV JUDGMENT
IN THE HIGH Court OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 697 of 2016
in
MISC. CIVIL APPLICATION NO. 2825 of 2013
in
SPECIAL CIVIL APPLICATION NO. 11883 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
BHARTIBEN N PATEL & 1....Applicants
Versus
ARVINDBHAI R PATEL & 4....Respondents
==========================================================
Appearance:
MR DHAVAL DAVE, SENIOR ADVOCATE WITH MR ANAL S SHAH, ADVOCATE for
Applicant No. 1
MR SHALIN N MEHTA, SENIOR ADVOCATE WITH MR TARAK DAMANI, ADVOCATE for
Applicant No. 2
MR SAURABH N SOPARKAR, SENIOR ADVOCATE WITH MR MANAV A MEHTA,
ADVOCATE for the Respondents Nos. 1 - 2
MR RS SANJANWALA, SENIOR ADVOCATE WITH MR DIPEN DESAI, ADVOCATE for
Respondent No. 3
MR DHAVAL G NANAVATI, ADVOCATE for Respondents Nos. 4 - 5
==========================================================
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 29/04/2016
C.A.V. JUDGMENT
1. Rule. Mr.Manav A.Mehta, learned advocate,
waives service of notice of Rule for
respondents Nos.1 and 2, Mr.Dipen Desai,
learned advocate, waives for respondent
No.3 and Mr.Dhaval G.Nanavati, learned
advocate, waives for respondents Nos.4
and 5.
2. The present application has been
preferred for the review and/or recall of
the order dated 19.12.2013, passed by
this Court in Miscellaneous Civil
Application No.2825 of 2013, which had
been preferred by respondents Nos.13
herein, for the recall of the order dated
18.01.2013, passed by this Court in
Special Civil Application No.11883 of
2012 and to hear the said petition on
merits.
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3. The chequered history of the litigation
between the parties, which emerges from
the record and has been elaborated by
learned counsel for the respective
parties, necessitates the narration of
some relevant background facts, in order
to place the present application in its
proper perspective.
4. The applicants and respondents Nos.1 to 3
are heirs of deceased Rambhai Patel, who
died in 1994. Three legal heirs, being
two sons and the widow of the deceased
are not parties to the present
litigation. There has been extensive
litigation in the Civil Court between the
parties, the documents regarding which
have been placed on record. The
applicants are daughters of deceased
Rambhai. According to respondents Nos.1
3, the applicants (sisters) released
their shares in the properties of
deceased Rambhai in favour of the three
brothers, that is, respondent No.1,
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Pravinbhai Patel and Hasmukhbhai Patel.
There was an agreement between the
brothers that was challenged by Manguben
(widow of the deceased), who passed away
during the pendency of the suit, as well
as by the applicants, by filing Regular
Civil Suit No.399 of 1999.
5. In the said suit, an application was
filed at Exhibit 5, for the grant of an
interim injunction, (i) restraining the
defendants from selling, mortgaging or
gifting the land; (ii) creating third
party rights; (iii) using the land for
any other use except as a godown; (iv)
changing the use of land as well as the
building and (v) maintaining statusquo
in respect of the land in question.
6. Initially, an exparte order was passed by
the Trial Court, granting all the above
prayers. However, after biparte hearing,
the Trial Court limited the exparte
injunction by an order dated 08.05.2000,
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confining it only to an injunction
prohibiting the defendants (respondents
Nos.13 herein) from selling and
transferring the land in question till
the final disposal of the suit. The
other, wider, prayers were not granted.
Respondents Nos.1 to 3, being aggrieved
by the above order of the Trial Court
restraining them from transferring or
selling the land, preferred Miscellaneous
Appeal No.39 of 2000 before the District
Court. However, the applicants did not
choose to challenge that part of the
order, whereby the other prayers sought
by them had been rejected. The appeal
preferred by respondents Nos.13 herein
was allowed by the District Court,
Ahmedabad, by an order dated 24.02.2006.
The order of the Trial Court restraining
them from transferring or selling the
land in question, was set aside.
7. Being aggrieved by the order passed by
the District Court, the applicants herein
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filed Special Civil Application No.6111
of 2006, before this Court, seeking the
following prayers:
"(A) The Honourable Court may be
pleased to issue a writ of
certiorari or any other
appropriate writ, order or
direction quashing and setting
aside the impugned order at
Annexure:`A' hereto; and
consequently restoring the order
passed by the Trial Court at
Annexure: `D' hereto;
... ... ..."
8. Apart from praying for the restoration of
the order dated 08.05.2000 of the Trial
Court, restraining respondents Nos.13
from selling or transferring the
property, no other relief was sought by
the applicants.
9. During the hearing of Special Civil
Application No.6111 of 2006, respondents
Nos.13 agreed not to transfer or sell
the property in question and a statement
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was made on their behalf by their
counsel, which is recorded in the order
dated 31.08.2006 passed by this Court,
reference to which would be made at a
later stage.
10. Thereafter, admittedly, respondents
Nos.13 made several changes on the land
in question. The existing construction
was partly demolished and partly
redeveloped. Eventually, respondents
Nos.13 decided to construct two
bungalows on the land which, according to
them, would cover less than 1/3 r d of the
total area of the land. For this purpose,
plans were submitted to the respondent
Ahmedabad Municipal Corporation.
11. Several documents have been placed on
record by the parties, regarding the
consideration of the said plans by the
respondent Corporation. The applicants
have produced the entire record they
obtained as a result of their queries
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under the Right to Information Act, 2005
("the RTI Act"). During the
consideration of the plans submitted by
respondents Nos.13 to the Corporation,
there was an interse discussion within
the Corporation as to whether,
respondents Nos.13 were required to
carve out 1/3 r d area of land and give an
undertaking that they would not transfer
or develop that area, or not. It was the
contention of respondents Nos.13 that
since the proposed construction did not
cover more than 1/3 r d area and since
there is no restriction on the use and
development of the land for personal
purposes, the demand of the Corporation
that 1/3 r d area be carved out and kept
separate, is unacceptable. However, as
the Corporation insisted that 1/3 r d area
be carved out before the application for
Development Permission was considered, a
communication dated 25.04.2012 was issued
in this regard. Respondents Nos.13
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herein preferred Special Civil
Application No.11883 of 2012, with the
following prayers:
"(A) Issue appropriate writ order
or direction to quash and set
aside the letter dated 25.04.2012
issued by respondent No.2 and
direct the respondents to not to
insist upon giving a notarized
concession certificate;
(B) Issue appropriate writ order
or directing commanding the
respondent authorities to grant
permission as sought by the
petitioners;
(C) Grant such other and further
relief as the Hon'ble Court may
deem fit and necessary in the
interest of justice;"
12. In the said petition, the only
respondents were the Ahmedabad Municipal
Corporation and its officers and the
subjectmatter of the petition was the
abovementioned dispute between
respondents Nos.13 and the Corporation.
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After the issuance of notice in the
petition by this Court, the Corporation
entered appearance and filed an
affidavitinreply dated 17.01.2013. In
paragraphs 7 and 8 of the said affidavit,
it was stated as under:
"7. It is stated that the
answering respondent - Corporation
is ready and willing to process
the development permission
application if the application and
plans so submitted by the
petitioners are found eligible in
accordance with provisions of Act
and GDCR and have followed all the
prescribed procedure and more
particularly upon presentation of
the undertaking by the parties
i.e. present petitioner will not
claim any equity or damages from
the answering respondent -
Corporation in any manner what so
ever and 1/3rd portion will not be
transferred and/or alienate in any
manner what so ever in terms of
the order dated 31.08.2006 passed
in Special Civil Application
No.6111 of 2006. Since there were
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no restrictions the Corporation is
bound to act in fare manner and
the answering respondent
Corporation is within its rights
to demand an undertaking from the
petitioner in terms of the order
dated 31.08.2006 passed in Special
Civil Application No.6111 of 2006.
8. It is stated that the
application of the petitioner if
found in accordance with the
provisions of the Act and GDCR,
can be consider for process and
upon presentation of the specific
undertaking and after receiving
the specific undertaking from the
present petitioner stating that
the petitioner will not claim any
equity or damages from the
answering respondentCorporation
in case of party to the litigation
loose the battle before the Civil
Court or any other Court of Law in
India besides the specific
undertaking stating that 1/3rd
portion will not be transferred
and /or alienate in any manner
what so ever in terms of the order
dated 31.08.2006 passed in Special
Civil Application No.6111 of 2006,
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the answering respondent
Corporation will consider and
process the application in
accordance with law and grant
permission if found eligible as
per the provision of the GDCR."
13. In view of the stand taken by the
Corporation in the said affidavit,
respondents Nos.13 filed a Purshis,
seeking permission to withdraw the
petition with a view to filing a fresh
undertaking, as required by the
Corporation as per its affidavitin
reply. The said petition was permitted to
be withdrawn, by an order dated
18.01.2013.
14. Thereafter, respondents Nos.13 filed the
undertaking, as required by the
Corporation. However, the Corporation, in
a volte face from the stand taken before
this Court as stated in the affidavitin
reply, continued to insist upon an
undertaking to carve out 1/3 r d area of
the land in question and separate the
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same. Under the circumstances,
respondents Nos.13 filed Miscellaneous
Civil Application No.2825 of 2013, in
Special Civil Application No.11883 of
2012, for the recall of the order dated
18.01.2013 passed by this Court, whereby
the petition was permitted to be
withdrawn and for the hearing of the
petition on merits. During the course of
hearing of Miscellaneous Civil
Application No.2825 of 2013, the
Corporation again went back to its
original stand as taken in the affidavit
inreply. Under the Circumstances,
Miscellaneous Civil Application No.2825
of 2013 was disposed of by this Court
vide the order dated 19.12.2013, as not
pressed, with liberty to revive the
application in case of difficulty. It is
this order of which review/ recall is
being sought by the applicants.
15. Earlier, the applicants had sought leave
to appeal to file a Letters Patent Appeal
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against the order dated 19.12.2013 passed
in Miscellaneous Civil Application
No.2825 of 2013. The Letters Patent
Appeal was withdrawn with liberty to file
an application for review. As there was
delay, an application for condonation of
delay in filing the review application
was preferred by the applicants, which
came to be rejected by this Court, by an
order dated 16.10.2015. The applicants
preferred Letters Patent Appeal No.1420
of 2015 along with an application for
leave to appeal for challenging the order
dated 16.10.2015. During the hearing of
the Letters Patent Appeal, respondents
Nos.1 to 3 agreed for the condonation of
delay and the hearing of the review
application on merits. They also agreed
not to develop 1/3 r d area of the land in
question, till the application for review
is heard and decided. This is how the
matter stands presently.
16. Detailed, extensive and exhaustive
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submissions have been advanced by
Mr.D.C.Dave, learned Senior Counsel
appearing with Mr.Anal S.Shah, learned
advocate for the applicants.
17. It is contended that the applicants were
proper and necessary parties in Special
Civil Application No.11883 of 2012 as
well as Miscellaneous Civil Application
No.2825 of 2013 but they were not joined
as such by respondents Nos.13. It is
submitted that for this reason, the order
dated 19.12.2013 is required to be
recalled. According to learned Senior
Counsel, this Court has "interpreted"
the order dated 31.08.2006 passed in
Special Civil Application No.6111 of
2006, wherein the applicants were
parties, which order was based on a
consensus between the applicants and
respondents Nos.13 based on a statement
made by respondents Nos.13, therefore,
when the said order came up for
consideration, the applicants were
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required to be heard. As they could not
be heard, not being impleaded, the said
order deserves to be recalled.
18. It is further urged that the words "deal
with", used in the order dated 31.08.2006
passed in Special Civil Application
No.6111 of 2006 prohibit the use and
development of the property by
respondents Nos.13, who are required to
carve out 1/3 r d area, in case they desire
to utilize and develop the same.
19. The above two submissions are the main
grounds on which learned Senior Counsel
for the applicants has urged the Court to
recall the order dated 19.12.2013.
Though several other submissions have
been advanced which shall be referred to
hereinafter, they all revolve around the
above two grounds.
20. Learned Senior Counsel for the applicants
has pointed out, in detail, the entire
record of the internal correspondence
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between the officers of the respondent
Corporation that has been obtained by the
applicants under the RTI Act. Emphasis
has been laid on the aspect that the
respondent Corporation was reluctant to
grant Development Permission to
respondents Nos.13 and took the opinion
of one of its advocates, who opined that
respondents Nos.13 were required to
first carve out 1/3 r d area of land and
keep it separate. It was repeatedly
underlined by learned Senior Counsel that
the advocate for the Corporation has
opined that the words "deal with"
occurring in the order dated 31.08.2006
would necessitate such a course of
action. It is submitted that there is
also a conflicting opinion from another
advocate of the very Corporation, on the
basis of which a stand was taken by the
Corporation in the affidavitinreply
filed in Special Civil Application
No.11883 of 2012, that if the respondents
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file an undertaking that they would not
alienate or transfer 1/3 r d land in
question then the Development Permission
can be granted, if permitted by Rules.
21. Learned Senior Counsel for the applicants
has painstakingly traced the movement of
the files of the respondent Corporation
from desk to desk, pointing out the
endorsements made thereupon by different
authorities. It is sought to be suggested
by Mr.D.C.Dave, learned Senior Counsel,
that had it not been for the order of
this Court dated 19.12.2013, the
respondent Corporation would not have
granted Development Permission to
respondents Nos.13.
22. It is further submitted that when the
Corporation declined to grant Development
Permission to respondents Nos.13 for the
entire land, a right was created in
favour of the applicants who, therefore,
ought to have been joined in the petition
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filed by respondents Nos.13, challenging
the decision of the Corporation. That,
the interpretation of the order dated
31.08.2006 passed in Special Civil
Application No.6111 of 2006 sought to be
made by respondents Nos.13 and the
respondent Corporation, as evident from
the reply filed by the Corporation in
Special Civil Application No.11883 of
2012, is erroneous. This could have been
pointed out by the applicants, had they
been joined as party respondents in the
said petition.
23. It is submitted that though, in the
present application for review/ recall of
the order, the true import of the words
to "deal with" the property, as stated
in the order dated 31.08.2006 passed in
Special Civil Application No.6111 of
2006, is not required to be gone into,
however, without prejudice to this
contention, even if it is considered in
the present proceedings, the said words
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ought to be read to mean that respondents
Nos.13 have no right to ask for the
development of the entire land, without
separating 1/3 r d portion thereof.
24. In support of the contentions regarding
nonjoinder of parties, learned Senior
Counsel for the applicants has placed
reliance on a judgment of the Supreme
Court in the case of Pohla Singh alias
Pohla Ram (D) by Lrs & Ors. v. State of
Punjab & Ors. reported in (2004) 6 SCC
126 .
25. Another judgment relied on is that in the
case of Dattatreya & Ors. v. Mahaveer &
Ors. , (2004)10 SCC 665.
26. Mr.Shalin Mehta, learned Senior Advocate
has appeared for applicant No.2 with
Mr.Tarak Damani, learned advocate, and
has submitted that the applicants are
prejudicially affected by the order
sought to be reviewed, as they were not
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joined as parties. It is submitted that
the respondent Corporation has "played
mischief" by taking a stand in the
affidavitinreply filed by it in Special
Civil Application No.11883 of 2012,
leaving out the words "deal with",
occurring in the order dated 31.08.2006.
This Court, therefore, has been misled by
the Corporation and respondents Nos.13,
and the order may be recalled.
27. Mr.S.N.Soparkar, learned Senior Advocate
has appeared with Mr.Manav A. Mehta,
learned advocate for respondents Nos.1
and 2. He has strongly opposed the
submissions advanced on behalf of the
applicants and has contended that the
present proceedings are not in the nature
of a petition where the applicants seek
to challenge the action of the
Corporation, but are review proceedings,
which have to be examined within the
parameters of review jurisdiction under
Order 47 Rule 1 of the Code of Civil
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Procedure, 1908 ("CPC" for short). It is
submitted that the provisions of Order 47
Rule 1 speak of a decree passed, or an
order, made against a person. In the
present case, no decree has been passed
or order made against the applicants. The
dispute which necessitated the filing of
Miscellaneous Civil Application No.2825
of 2013, was between the present
respondents Nos.13 and the Corporation,
which had not acted in accordance with
its affidavitinreply filed in Special
Civil Application No.11183 of 2012, the
said petition had not been pressed by
respondents Nos.13 on the basis of the
stand taken in the reply. It is submitted
that neither is the case of the
applicants to the effect that new or
important evidence has been discovered or
that there is an error apparent on the
face of the order sought to be recalled.
No grounds for the review or recall of
the order of this Court are made out.
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28. It is further submitted that the
applicants have not challenged the action
of the Corporation in granting
Development Permission to respondents
Nos.13 till date. This action,
therefore, cannot be challenged in the
present proceedings. What has not been
done directly cannot be permitted to be
done indirectly.
29. Mr.Soparkar, learned Senior Counsel, has
contended that respondents Nos.13 had
filed the petition against the
Corporation, in which the Corporation
filed an affidavit, on the basis of which
the petition was withdrawn. It is only
when the Corporation did not act as per
the stand taken in the said affidavit,
that respondents Nos.13 filed the
Miscellaneous Civil Application for the
recall of the order disposing of the
petition as withdrawn and for its
revival. The Corporation again took the
same stand as it had taken in the
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affidavit filed before this Court,
therefore the application was withdrawn.
It is contended that the dispute was
between respondents Nos.13 and the
Corporation. The applicants cannot seek
review of the order by which the
application of respondents Nos.13 was
permitted to be withdrawn.
30. It is emphasized by learned Senior
Counsel that, in fact, there is no order
on merits; therefore there is nothing to
be reviewed in the order of this Court.
It is contended that the aspect whether,
as per the applicants, the Corporation
wrongly understood the order dated
31.08.2006, or wrongly granted
Development Permission to them, cannot
become the subjectmatter of the present
review proceedings as this action has
never been challenged by the applicants
at any point of time. All these aspects
are, therefore, wholly irrelevant in
review proceedings. It is submitted that
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the present application for review is
totally devoid of merit and deserves to
be rejected.
31. Learned Senior Counsel has further
contended that it is the specific case of
respondents Nos.13, stated on oath in
the affidavitinreply, that the
applicants were aware of the filing of
Special Civil Application No.11883 of
2012 and Miscellaneous Civil Application
No.2825 of 2013. After the issuance of
notice a learned advocate, whose name is
mentioned in Paragraph 3 of the
affidavitinreply (at running page 206),
appeared on the returnable date and
stated, on instructions, that he would be
appearing in the matter and filing an
application for joining as parties to the
proceedings. The matter was adjourned at
his request. However, this fact has been
suppressed by the applicants, with a view
to misleading the Court. Later on, no
application was preferred, in spite of
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knowledge on the part of the applicants
regarding the pendency of the
proceedings. Having such knowledge, the
applicants cannot be permitted to reopen
the proceedings on the ground of not
having been joined as parties or not
being heard. It is submitted that the
fact that the learned advocate did appear
has not been denied by the applicants. It
is only stated in the rejoinder that the
applicants had not instructed him to
appear. It is contended by learned Senior
Counsel that the applicants have
suppressed material facts and the present
application is a gross abuse of the
process of law.
32. Learned Senior Counsel further contends
that the applicants have relinquished
their rights in the land in question and
a revenue entry has been recorded in this
regard. The applicants have also made
statements before the revenue authorities
in this regard, duly signed by them.
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Applicant No.2, who lives abroad, has
sent a notarized statement from the USA.
Learned Senior Counsel has referred to
the record annexed by respondents Nos.13
in this regard and stated that the
applicants have been issued notices under
Section 135D of the Bombay Land Revenue
Code, which have been received by them.
No challenge was made by them to the
notices. The applicants have waived their
rights in the property before the
Mamaltdar and have also made a
declaration to this effect.
33. Learned Senior Counsel has further
pointed out that the applicants have
challenged the order of the Deputy
Collector in RTS proceedings, regarding
deletion of their names from the record,
before the Collector. The revision
application was rejected. The order of
the Collector was challenged by the
applicants before the State Government
but the challenge failed and the matter
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has not been carried any further and has
attained finality. It is submitted that,
though revenue entries are made for
fiscal purposes and would not decide the
rights of parties, it is necessary to
point out these undisputed facts to show
that the applicants have failed in the
revenue proceedings. They cannot,
therefore, be heard to say that any
rights of theirs are being affected by
the order of this Court. The said order
does not decide the rights of any person
and it does not contain any decision on
merits.
34. Learned Senior Counsel has further
submitted that Special Civil Application
No.6111 of 2006 was filed by the
applicants with a prayer to restore the
order of injunction granted by the Trial
Court which, admittedly, only extended to
the transfer and sale of the property and
not to its use or development. They have
accepted the order of the Trial Court,
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which did not grant the wider relief
prayed by them and granted by the exparte
injunction earlier. Such wider relief was
rejected and the applicants never
challenged this part of the order. The
statement made by respondents Nos.13, as
recorded in the order dated 31.08.2006,
has to be read and understood in that
context. Respondents Nos.13 would never
give a concession wider than the prayers
sought by the applicants. Referring to
the "Advanced Law Lexicon", Mr.Soparkar,
learned Senior Counsel, has submitted
that the words "deal with" in the
statement of respondents Nos.13, as
recorded in the order dated 31.08.2006,
mean analogous to, or flowing from,
`transfer' or `alienate'. The words are
analogous to an Agreement to Sell or
creation of third party rights. The words
"deal with" have to be seen and
understood in the context of the
controversy before the Court. The
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applicants had never sought an injunction
against the use or development of the
property in Special Civil Application
No.6111 of 2006, therefore, they cannot
attempt to do so in the present
proceedings. Learned Senior Counsel has
further contended that there was no
injunction against the use or development
of the property from the date of the
order of the Trial Court till the
petition was filed by the applicants in
which the prayers were only confined to
the restoration of the order of the Trial
Court, whereby respondents Nos.13 were
restrained from selling or transferring
the property. The use or development of
the property was never in issue. It is
contended that the entire statement as a
whole, recorded in the order dated
31.08.2006, has to be read and its
meaning understood in the proper context.
Two words, "deal with", cannot be picked
up and read or interpreted out of context
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as the applicants are attempting to do.
It is submitted that even today, more
than 1/3 r d of the land is open. The stage
of separating 1/3 r d land has not
arrived, as there has been no transfer or
alienation of the land by respondents
Nos.13. The said respondents are only
developing the land and constructing two
bungalows, after permission to do so has
been accorded by the Corporation.
35. It is submitted that the applicants were
neither necessary nor proper parties in
Special Civil Application No.11883 of
2012 or Miscellaneous Civil Application
No.2825 of 2013. Respondents Nos.13 were
constrained to file the petition in view
of the stand taken by the Corporation.
The dispute was purely between
respondents Nos.13 and the Corporation.
Merely because the order dated 31.08.2006
was the subjectmatter of discussion,
would not make the applicants either
proper or necessary parties.
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36. It is submitted that there is no error
apparent on the face of the order of
which review is sought. In fact, there is
no order on merits as the application was
permitted to be withdrawn. The
Corporation has maintained its earlier
stand in the application, that led to its
withdrawal by respondents Nos.13. The
observations made in the order are
correct and in consonance with the order
dated 31.08.2006. The grievance of the
applicants against the Corporation cannot
be made the subjectmatter of the present
review proceedings.
37. In support of his contentions, learned
Senior Counsel Mr.Soparkar has relied
upon the judgment of the Supreme Court in
the case of Parsion Devi & Ors v.
Sumitri Devi & Ors., (1997)8 SCC 715 .
38. Mr.R.S.Sanjanwala, learned Senior
Advocate has appeared for respondent No.3
with Mr.Dipen Desai, learned advocate.
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39. While adopting the submissions advanced
on behalf of respondents Nos.1 and 2,
Mr.Sanjanwala, learned Senior Advocate
has, in addition, submitted that for the
applicants to succeed in the review
proceedings, they must first show that
they were necessary parties and there is
an error apparent on the face of the
order.
40. It is submitted that respondents Nos.13
filed Special Civil Application No.11883
of 2012 because of the contrary stand
taken by the respondent Corporation.
Their dispute was with the Corporation
alone. It is contended that it cannot be
said that when an earlier order of the
Court comes up for consideration in
later, collateral proceedings, all
parties are required to be joined even
though no relief is sought against them.
There was no prayer for the clarification
or modification of the order dated
31.08.2006. The stand of the Corporation,
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based upon its reading of the order, was
under consideration, on the two
contentions made by respondents Nos.13
that (i) the demand of the Corporation to
carve out a separate 1/3 r d area is
premature and misconceived as respondents
were proposing to raise constructions
over an area less than 1/3 r d area and
(ii) in any case, the order does not
prohibit the development and use of the
land by respondents Nos.13 for their own
purposes. In such proceedings, the
applicants cannot claim to be either
necessary or proper parties. It is
contended that, in any case, the
applicants had taken time through a
learned advocate to file an application
for impleadment but had, thereafter, not
chosen to do so. The applicants are,
therefore, not entitled to file or
maintain the present application on the
ground of their not being joined as
parties.
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41. Mr.R.S.Sanjanwala, learned Senior
Counsel, further submits that there is no
error apparent on the face of the order
passed by this Court. The order dated
31.08.2006 is to be construed in the
background of the facts leading to the
filing of the petition which were, that
the Trial Court had not granted any
injunction in favour of the applicants
and against respondents Nos.13, for
development or use of the property by
respondents Nos.13. The injunction was
limited to the transfer or sale of the
property or creation of third party
rights. It is contended that respondents
Nos.13 made the statement that is
recorded in the order dated 31.08.2006,
in which the words "deal with" are
stated as being analogous to `transfer'
or `alienate'. The true meaning and
import of the order was clear to the
applicants, who did not raise any
objections when respondents Nos.13
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removed the godown on the property. It is
only when the applicants realized that
some Officers of the Corporation, on the
strength of the opinion of one of their
lawyers, had interpreted the words "deal
with", to include use and development,
did they decide, in an opportunistic
manner, to latch on to such
interpretation to suit their own
purposes. The interpretation that is now
being placed on the said words by the
applicants, is thus an afterthought,
which cannot be countenanced. It is
submitted that there is no error apparent
on the face of the order and as the
applicants have failed to make out
sufficient grounds for reviewing/
recalling the order of this Court, the
application be rejected.
42. Mr.Dhaval G.Nanavati, learned advocate,
has appeared for the respondent
Corporation and has submitted that the
applicants have not challenged the action
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of the Corporation in granting
Development Permission to respondents
Nos.13. Insofar as the review petition
is concerned, according to the learned
counsel, it is a dispute between the
applicants and respondents Nos.13.
43. While making submissions in rejoinder,
Mr.D.C.Dave, learned Senior Advocate for
the applicants, has reiterated his
earlier submissions and pointed out that,
as stated in the affidavitinrejoinder,
the applicants had not instructed any
advocate to appear in the earlier
proceedings.
44. He has further submitted that the
provisions of Order 47 Rule 1 of CPC
cannot be strictly applied to writ
proceedings and this Court is only called
upon to apply principles analogous to the
CPC in the present proceedings. In
support of this contention, Mr.Dave,
learned Senior Advocate has cited a
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judgment of the Division Bench of this
Court, dated 23.10.2015 in the case of
Collector v. Liquidator - Petrofils
Cooperative Limited And Ors
Miscellaneous Civil Application No.1412
of 2015 and connected matters.
45. It is reiterated by Mr.Dave that an order
affecting the rights of parties would
constitute an error apparent and the
principles of Order 47 Rule 1 are elastic
enough to encompass such an error.
46. Reliance has been placed upon a judgment
of the Supreme Court in Board of Control
for Cricket in India and Anr. v. Netaji
Cricket Club and Ors., (2005)4 SCC 741 .
47. It is contended that if one looks at the
order sought to be reviewed
"sequentially", the withdrawal of the
application appears to be innocuous.
However, it is not so. The Corporation
took time to take instructions and then
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changed its stand, therefore it is not a
case of withdrawal, simpliciter.
48. It is submitted that the revenue
proceedings referred to by respondents
Nos.13 have only fiscal value and do not
decide the rights of parties.
49. Insofar as the prayers made in Special
Civil Application No.6111 of 2006 by the
applicants are concerned, it is submitted
that the order dated 31.08.2006 was a
consensus order which cannot be
interpreted only in light of the prayers
in the petition.
50. Lastly, it is contended that the order
granting Development Permission to
respondents Nos.13 by the Corporation is
an "outcome" of the order of the Court
dated 19.12.2013, which is sought to be
reviewed.
51. On the above grounds, it is reiterated on
behalf of the applicants, that the
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application be allowed and the said order
be recalled.
52. This Court has heard learned counsel for
the respective parties at great length
and detail and carefully considered the
rival submissions.
53. At the very outset, it is required to be
kept in mind that the present application
has been filed for the review/ recall of
the order dated 19.12.2013, passed by
this Court in Miscellaneous Civil
Application No.2825 of 2013 that had been
preferred by the present respondents
Nos.13 against respondent No.4
Corporation. The details of the
litigation between the parties and how
the application came to be filed, have
already been narrated. The application
had been filed for the revival of Special
Civil Application No.11883 of 2012, by
recalling the order dated 18.01.2013,
passed in the said petition, whereby the
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petition had been permitted to be
withdrawn. Miscellaneous Civil
Application No.2825 of 2013 was disposed
of, as not pressed, as the Corporation
decided to adhere to its earlier stand
taken in Special Civil Application
No.11883 of 2012. The application was,
therefore, not decided on merits. The
order sought to be reviewed is not an
order on the merits of the application
and no decision has been rendered by the
Court. However, it has been contended by
Mr.D.C.Dave, learned Senior Counsel for
the applicants, that the said order is
not an "innocuous" order but is an order
that prejudicially affects the rights of
the applicants.
54. One may examine, in the background of the
rival submissions advanced before this
Court as detailed hereinabove, what are
the purported rights of the applicants
that, according to learned Senior
Counsel, have been adversely affected by
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the order of this Court. As is evident
from the pleadings and documents on
record, civil litigation is going on
between the applicants and respondents
Nos.13, who are members of the same
family. It is this civil litigation that
led the applicants to approach this Court
by filing Special Civil Application
No.6111 of 2006, which was directed
against the order of the District Court,
Ahmedabad, whereby the appeal filed by
respondents Nos.13 against the order of
injunction made by the Trial Court was
allowed. The history of the civil
litigation between the parties is an
admitted fact, as also the fact that the
Trial Court had granted an order of
injunction restraining respondents Nos.1
3 from transferring or selling their
property only. No injunction was granted
in terms of the much wider prayer sought
by the applicants. Even the limited
injunction against the transfer and sale
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of the property was lifted by the
District Court, which led to the filing
of Special Civil Application No.6111 of
2006. The prayers made in that petition
were only for the restoration of the
order of the Trial Court. The refusal of
the wider relief sought in the
application for injunction before the
Trial Court was never challenged by the
applicants. The issue then was only that
confined to the sale and transfer of the
property and not its use or development
by respondents Nos.13. The above
petition was disposed of as withdrawn by
the applicants, in view of the statement
made on behalf of respondents Nos.13, as
recorded in the order dated 31.08.2006,
as below:
"Date : 31/08/2006
ORAL JUDGMENT
By filing this petition, the petitioners, who are the original plaintiffs of Regular Civil Suit No. 399/1999 have Page 43 of 84 HC-NIC Page 43 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT challenged the order passed by Presiding Officer, Fast Track Court No.5, Ahmedabad (Rural) in Misc. Civil Appeal No.39/2000 by which the appeal of respondents No.1 to 3 is allowed by setting aside the order of injunction granted by Civil Judge (J.D.), Ahmedabad (Rural) in Regular Civil Suit No.399/1999.
During the course of hearing learned advocate Mr.Kavina appearing for respondents No.1 and 3 and learned advocate Mr.Pujara appearing for respondent No.2 have submitted that in case their respective clients decide to transfer, alienate or deal with the suit property in any manner or to create right in favour of any third party, at that time, 1/3rd area of the land in question will be carved out and kept separately and the same will not be subject matter of transfer, alienation in any manner till the suit is decided finally. It is also submitted that respondents No.1 to 3 will be free to deal with the rest of the property, however, such transaction shall be subject to the decision of the suit. In short, as indicated above, any transaction in connection with disputed property shall be subject to the result of pending suit. It is further submitted that this concession is made only in order to see that the interim controversy is put to an Page 44 of 84 HC-NIC Page 44 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT end, however, it is submitted that the respondents No.1 to 3 reserve their right to take all points, including the point that the plaintiffs have no right, title or interest in suit property and they are not entitled to get any relief in the suit.
Aforesaid concession given by respondents No.1 to 3 is acceptable to the petitioners. Therefore, the parties are directed to act as per the aforesaid arrangement.
It is clarified that this concession is only for the purpose of interim arrangement during the pendency of the suit and learned trial Judge shall decide the suit in accordance with law by considering the points raised by the parties, without being influenced by the concession made before this Court.
Considering the fact that it is an unfortunate litigation between the family members, learned trial Judge may give top priority to the suit and may dispose of the same as early as possible and latest within a period of one year from today. It is also agreed between the parties that they will cooperate with early hearing and disposal of the suit.
Page 45 of 84 HC-NIC Page 45 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT In view of what is stated herein above, Mr.A.J.Patel, learned advocate for the petitioners wants permission to withdraw this petition.
Permission is granted.
Accordingly, this petition is disposed of as withdrawn. Rule is discharged. Interim relief, if any, granted earlier stands vacated."
55. It has been emphatically submitted by learned Senior Counsel for the applicants that the words "deal with" in the statement should be read to mean the use and development of the property, in addition to its transfer or sale. According to the applicants, in the order sought to be reviewed, the Court has not taken into consideration the words "deal with", therefore, the said order is prejudicial to their rights.
56. Insofar as the purported rights of the applicants are concerned, apart from the Page 46 of 84 HC-NIC Page 46 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT civil litigation that is still going on, the record reveals that there were revenue proceedings, as well. It has come on record that the applicants had relinquished their rights in the property and had given statements and filed declarations before the revenue authorities in this regard. Notices under Section 135D of the Bombay Land Revenue Code were issued and served upon the applicants and their names came to be deleted from the record. The applicants challenged this action of the revenue authorities, unsuccessfully, and the final order of the State Government against the applicants has attained finality. It is, no doubt, true that revenue entries are made only for fiscal purposes and it is only the Civil Court that would ultimately decide the rights of the parties. The civil litigation is still pending. As can be seen from the order dated 31.08.2006, the statement Page 47 of 84 HC-NIC Page 47 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT recorded therein and the direction issued to parties by the Court to abide by it, is but an interim arrangement during the pendency of the suit. The final decision would be rendered by the Civil Court.
57. There would not have been any requirement to refer to anything other than the order under review, but for the submissions advanced by learned Senior Counsel for the applicants to the effect that the order of the Court prejudicially affects the rights of the applicants.
58. The order dated 31.08.2006 has to be read in the context of the dispute between the parties that was before the Court when it was passed. The fact that it is an order of consensus does not confer on the applicants any right to which they were not held entitled by the Civil Court. The petition was an outcome of the order of the Civil Court. The statement made by respondents Nos.13, therefore, is Page 48 of 84 HC-NIC Page 48 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT required to be understood in the context of the dispute between the parties that was before this Court.
59. Connected with this submission is the contention that the applicants were not joined as parties to Special Civil Application No.11883 of 2012 and Miscellaneous Civil Application No.2825 of 2013. According to the applicants, had they been joined, they could have pointed out the meaning and import of the words "deal with" occurring in the order dated 31.08.2006, to which they were parties. As per the applicants, they were necessary parties and ought to have been joined.
60. In the view of this Court, the order dated 31.08.2006, is required to be read as a whole and not in a piecemeal manner. It is only when the order is read as a whole will its true meaning and import be evident. It is also meant to be Page 49 of 84 HC-NIC Page 49 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT read in the proper factual and legal context. By picking up two words -
"deal with" - out of context and attempting to infuse them with a particular meaning, as is being done by the applicants, is not the proper manner of reading the said order.
61. This Court, while passing the order dated 19.12.2013 sought to be reviewed, has focused only on the litigation it was called upon to decide - which was whether, or not, to accept the prayer made by respondents Nos.13 in Miscellaneous Civil Application No.2825 of 2013, to review Special Civil Application No.11883 of 2012. The grievance of respondents Nos.13 was purely against the respondent Corporation that had taken a certain stand in its affidavitinreply filed in the petition, as already discussed hereinabove. According to respondents Nos.13, the Corporation had not acted in accordance Page 50 of 84 HC-NIC Page 50 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT with the said stand, stated on oath, that led to the filing of the Miscellaneous Civil Application. However, before this Court could render any decision, the Corporation reverted to its original stand taken in Special Civil Application No.11883 of 2012, resulting in the application being disposed of, as not pressed. The Court has referred to the order dated 31.08.2006 only in the context of the dispute between respondents Nos.13 and the Corporation and has, by no stretch of imagination, interpreted the said order or rendered any `finding' regarding it, as has been argued on behalf of the applicants. The Court is not precluded from referring to an order which is related to a dispute in collateral proceedings. Nothing more has been done. The words "deal with" cannot, therefore, be introduced or imported in the order of this Court of which review is sought when they were not used in the Page 51 of 84 HC-NIC Page 51 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT first place, colouring them with the particular meaning that the applicants want to give. The reference to the order dated 31.08.2006 in the order sought to be reviewed is made only in the context of the dispute between respondents Nos.1 3 and the Corporation, more especially as the Corporation had deviated from its earlier stand stated on oath before this Court. In any event, the order does not decide any rights of the applicants, which will be decided by the Civil Court in accordance with law. This Court, therefore, is of the view that the submissions advanced by Mr.D.C.Dave, learned Senior Counsel, that the rights of the applicants have been prejudicially affected by the order, are devoid of any merit.
62. The occasion for filing Miscellaneous Civil Application No.2825 of 2013 was the change in stand of the respondent Corporation. The dispute was one between Page 52 of 84 HC-NIC Page 52 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT respondents Nos.13 and the Corporation. As such, it cannot be said that the applicants were going to be affected and were necessary parties in the context of the said dispute, without ever objecting to any action of the Corporation.
63. It has been stated on oath in the reply filed by respondent No.3 to the present application, that the applicants had knowledge of the proceedings as a learned advocate had appeared on their behalf and stated that he had instructions to file an application for impleadment. According to respondent No.3, the applicants, being aware of the proceedings, cannot now say that they are necessary parties and as they were not joined, the order may be recalled. To this, the applicants have replied in the affidavitinrejoinder, stating that they have never instructed any learned advocate to appear on their behalf, but have not denied that an advocate may have appeared before the Page 53 of 84 HC-NIC Page 53 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT Court. From the above submissions and countersubmissions, it is not possible for this Court to ascertain whether the applicants had knowledge of the proceedings and wanted to file an application for joining, or not. Suffice it to say that this Court has not decided any issue on merits in the order dated 19.12.2013, therefore, as there is no decision and the application has, simply, not been pressed, the issue regarding whether the applicants were necessary parties or not, cannot be a reason for recalling the said order.
64. Another aspect that requires consideration is that the use of the property by respondents Nos.13 was not objected to by the applicants when the godown on the land in question was pulled down. It has been submitted on behalf of respondents Nos.13 that even now, more than 1/3rd land is open and only two bungalows have been constructed. This has Page 54 of 84 HC-NIC Page 54 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT not been denied by the applicants.
65. At no point of time, except from 07.07.1999 to 09.05.2000, when the exparte injunction of the Trial Court operated, were the applicants prohibited from using the land in question for their own use. The wider exparte injunction was lifted by the Trial Court and restricted to the sale or transfer of the property. It has remained thus, to this day. The Development Permission pertains to the use of the property by respondents Nos.1 3, which was never prohibited. Even the order dated 31.08.2006 contains no such prohibition, therefore, the Court has committed no error in passing the order sought to be reviewed. The applicants cannot seek to get a wider relief through these proceedings, by attempting to get the Court to interpret the words "deal with", as they want, than what they have been granted. The fact that the order dated 31.08.2006 was passed on consensus, Page 55 of 84 HC-NIC Page 55 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT cannot take it out of the context of the actual dispute between the parties, which was the cause of action for filing the petition by the applicants.
66. This Court, therefore, fails to understand, or perceive, the socalled prejudice that has purportedly been caused to the applicants by the order of this Court.
67. The applicants cannot be permitted to use the present review proceedings to challenge the action of the Corporation in granting Development Permission to respondents Nos.13. This is exactly what the attempt appears to be on their part. No action of the Corporation has ever been challenged by the applicants, including that of granting Development Permission to respondents Nos.13, in any proceedings. Despite this, it is sought to be canvassed before this Court that it is only because of the order dated Page 56 of 84 HC-NIC Page 56 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT 19.12.2013 passed by this Court, that the Corporation granted such permission. This submission is factually incorrect, to the knowledge of the applicants. The affidavitinreply in Special Civil Application NO.11883 of 2012 was affirmed on 17.01.2013, wherein a stand was taken in Paragraphs 7 and 8 that respondents Nos.13 are to give an undertaking that they would not transfer or alienate 1/3 r d portion of the land in terms of the order dated 31.08.2006 and upon the undertaking being given, Development Permission would be granted if permitted by Rules. This stand was taken by the Corporation much before this Court passed the order dated 19.12.2013. This clearly shows that the action of the Corporation in granting Development Permission is not an "outcome" of the order of this Court. The applicants appear to be challenging the said action of the Corporation through the present review proceedings in Page 57 of 84 HC-NIC Page 57 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT an oblique manner.
68. Learned Senior Counsel for the applicants has produced the voluminous record obtained by him under the RTI Act and has taken the Court through it. He has submitted that one learned advocate of the Corporation had given an opinion that the words "deal with" include use and development of the land. However, another learned advocate has given a contrary opinion. Whatever may be the opinions given by the counsel of the Corporation, whether conflicting or not, is their internal matter and this Court has no concern with the internal proceedings of the Corporation. What is relevant and of importance is the stand taken by the Corporation on oath, before this Court. That was the subjectmatter of the order of this Court, which has been passed in the context of the volte face done by the Corporation after taking a stand in its affidavitinreply. That is the only Page 58 of 84 HC-NIC Page 58 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT context and perspective in which the order dated 19.12.2013 has been passed. Neither was the presence of the applicants required for the dispute before the Court to be resolved nor have any of their rights been decided by this order.
69. Learned counsel for the applicants proceeded to read the order dated 19.12.2013 "sequentially", to use his words, and has submitted that after this Court had recorded its observations in Paragraphs 10 to 12 of the order, it is recorded in Paragraph 13, that the learned advocate for the Corporation sought the permission of the Court in the morning session, to take appropriate instructions and report back in the second session. In Paragraph 14, it is recorded that the learned advocate submitted, on the basis of instructions that the communication dated 15.10.2013 would be recalled and the application of Page 59 of 84 HC-NIC Page 59 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT respondents No.13 for the grant of Development Permission for the entire property would be considered afresh.
70. Submissions have been advanced on behalf of the applicants that these instructions are an "outcome" of the order of the Court. Certain insinuations are sought to be made, which are not in good taste and are factually untrue and false to the record. As recorded in the order, upon taking instructions the Corporation had only reverted to its original stand taken in the affidavitinreply filed in Special Civil Application No.11883 of 2012. This affidavit was filed before the order of this Court was passed. The Corporation is capable of taking its own decisions and has done so. To cast aspersions on the order of this Court is nothing but a desperate attempt on the part of the applicants to twist facts subjectively, which cannot be permitted. Page 60 of 84 HC-NIC Page 60 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT
71. The scope of a review application cannot be extended beyond the scope of the petition from which it has arisen. There was no occasion to interpret the words "deal with" in Special Civil Application No.11883 of 2012, therefore, this Court does not propose to do so at this stage, especially in proceedings of this nature, even though learned counsel for the respective parties have made lengthy submissions in this regard.
72. Learned Senior Counsel for the applicants has not been successful in pointing out any error apparent on the face of the order. Merely by mentioning, cursorily, in the application, that there is an error apparent, the socalled error does not automatically become apparent. Any socalled error that requires a long process of reasoning cannot be considered to be an error apparent on the fact of the order, so as to necessitate its review or recall.
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73. The scope of review proceedings has been delineated by the Supreme Court in Parsion Devi & Ors v. Sumitri Devi & Ors. (supra), in the following terms:
"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh (1965 (5) SCR 174 at 186) this Court opined:
"What, however, we are not concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion that Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinct which is real, though it Page 62 of 84 HC-NIC Page 62 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT 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 corrected. but lies only for patent error."
(Emphasis ours)
8. Again, in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury (1995 (1) SCC 170) while quoting with approval a passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Sharma & Ors. (1979 (4) SCC 389), this Court once again held that review proceedings are not by way of an appeal and have to strictly confined to the scope and ambit of Order 47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise Page 63 of 84 HC-NIC Page 63 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."
(emphasis supplied)
74. As stated by the Supreme Court in the abovequoted judgment, an error which is not self evident and has to be detected by a long drawn out process of reasoning, as is being attempted in the present case, cannot be said to be an error. The error should be apparent on the face of the order. Read in this manner, this Court does not find any error apparent on the face of the order passed by this Court, necessitating its review or recall.
75. It is settled law that review proceedings cannot be used as an appeal in disguise. Not having challenged the action of the Page 64 of 84 HC-NIC Page 64 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT Corporation at any stage, the applicants cannot use the present proceedings to do so indirectly, in an oblique manner, by trying to get the Court to read the words "deal with" in the manner that they want. The Court has not interpreted those words in the order sought to be reviewed and would not do so in the present proceedings, the scope of which is much narrower.
76. Learned counsel for the applicants has relied upon the judgment of the Supreme Court in Pohla Singh alias Pohla Ram (D) by Lrs & Ors. v. State of Punjab & Ors. (supra), wherein it is held as below:
If a decision rendered in a writ petition adversely affects the interest of a third person who was not impleaded as a party in the writ petition, it is always open to him to ask for recall of the judgment which has been rendered without affording any opportunity of hearing to him. The basic Page 65 of 84 HC-NIC Page 65 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT grievance of the appellants was that though they were in possession since 1962 i.e. for nearly 18 years, but the order declaring the land as surplus had been set aside in a writ petition, wherein they were not impleaded as parties. The recourse taken to the second writ petition by the allottees, therefore, cannot be said to be illegal. In the circumstances of the case, the writ petition filed by the allottees was rightly allowed by the learned Single Judge.
(Paras 18.1 and 19)
77. This judgment speaks of a "decision rendered" which adversely affects the interest of a third person. In the order sought to be reviewed, there is no decision at all, much less any decision affecting the applicants. The application was not decided on merits, as it was not pressed. This judgment would, therefore, not aid the applicants in the present case.
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78. Another judgment relied on is that in the case of Dattatreya & Ors. v. Mahaveer & Ors.(supra), wherein the Supreme Court has held as below:
... The incumbent upon the respondents to have got the order reviewed or modified. By not impleading the present respondents as parties in the writ petition the appellants deprived the respondents of an opportunity to challenge that order; rather they were kept in the dark about the whole proceeding. Any order to consider the application of the appellants moved in 1985 was likely to affect the order of 1979 passed in favour of the respondents. The appellants knew it, being parties in the earlier proceedings. The fact thus remains that the material facts to be affected were avoided to be impleaded as parties. It was merely not a question of non impleadment of necessary parties technically and strictly in accordance with the provisions of the Code of Civil Procedure, Page 67 of 84 HC-NIC Page 67 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT rather was very much a question of proper parties being there before the Court particularly in proceedings under Article 226 of the Constitution. The Tribunal and the High Court also felt that the question of rights of the parties in that land stood decided in 1979 and there was no occasion to reopen that matter, still it was reopened in view of the direction to dispose of the application on merits given by the Single Judge in the absence of the respondents as parties in the writ petition. The direction never meant that the application moved in 1985 could not be disposed of saying that the matter had already been decided in respect of the same land in the presence of the same parties or the land was no more available for passing an order to register occupancy. The appellants cannot be allowed to claim any bona fides in not impleading the respondents as parties in that writ petition or about nondisclosure of the earlier order of 1979 in respect of the same land and within their knowledge on the ground that it Page 68 of 84 HC-NIC Page 68 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT was not necessary to disclose it. They knew well that if any order is passed in their favour the respondents would be the affected persons. The respondents were deprived from raising this point before the Single Judge regarding a preexisting order relating to the same land and nondisclosure of the same. The conduct of the appellants had been far from being fair if not fraudulent. It was a deliberate suppression of material fact which caused prejudice to the respondents. Fair play is the basic rule to seek relief under Article 226 of the Constitution.
(Para 10)
79. This judgment, rendered on the facts of the case before the Apex Court, would not be relevant in the context of the present matter, as there is no suppression of material facts or fraudulent conduct and the rights of the parties were never reopened.
80. Reference has also been made by the Page 69 of 84 HC-NIC Page 69 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT learned Senior Counsel for the applicants to an order dated 23.10.2015 of a Division Bench of this Court in Collector v. Liquidator - Petrofils Cooperative Limited And Ors Miscellaneous Civil Application No.1412 of 2015 and connected matters, wherein it has been observed as below:
"29. Coming to the question of limitation under Order XLVII Rule 9, we may notice that the Constitution Bench of the Supreme Court in case of Shivdeo Singh (supra), held that the High Court has inherent powers to review its own judgements to prevent miscarriage of justice or to correct grave and palpable errors committed by it. It was held as under :
"It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a 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.
30. This view has been reiterated in several decisions later. In case of Page 70 of 84 HC-NIC Page 70 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT Gujarat University v. Sonal P. Shah reported in 1982 AIR GUJ 58, Full Bench of this Court had held that the provisions of the Code of Civil Procedure, Order XLVII, are not applicable to the High Court's power of review in the proceedings under Article 226 of the Constitution. It was however, recognized that such inherent powers are not treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order XLVII Rule 1. N.H. Bhatt, J. in his judgement which through separate reasons, was concurred by other two members forming the Bench, observed as under :
"So I find that the following legal propositions stand firmly established: (1) The provisions of the civil procedure Code in Order 47 are not applicable to the High Court's power of review in proceedings under Art. 226 of the Constitution:
(2) The said Powers are to be exercised by the High 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 Page 71 of 84 HC-NIC Page 71 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT and ratiocination).
(3) The inherent powers, though ex facie Plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 471 Rule 1;
namely;
(i)discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made, despite exercise of due diligence. (ii) existence of some mistake or error apparent on the face of the record, and (iii) existence of any analogous ground. (These are the very three grounds referred to in order 47 Rule I Civil P. C. and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court's power.) ""
81. In Paragraph 31 of the said judgment, the Division Bench has held thus:
"31. We are conscious that in later judgements, the Supreme Court has with greater emphasis laid down that the scope of the review by the Supreme Court under Article 226 would be confined to the review powers under Rule 1 of Order XLVII namely, to correct the Page 72 of 84 HC-NIC Page 72 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT error apparent on the face of the record. These observations were made by the Supreme Court in case of Meera Bhanja(Smt.)(supra) as pointed out by the learned senior counsel Shri Chidambaram as also in case of B. Valluvan and others (supra). These observations however, were made more to highlight that even while exercising such inherent plenary powers of review, the High Court would not be justified in reversing its earlier decision on reconsideration of the entire evidence taking a different view on merits. In other words, if two views are possible, it would not be a ground for reviewing the earlier judgement. "
(emphasis supplied)
82. The principles enunciated by the Division Bench above have been culled out after discussing several judgments of the Supreme Court on the issue of review jurisdiction. Applying the above principles to the present case, it Page 73 of 84 HC-NIC Page 73 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT transpires that review jurisdiction can be invoked in proceedings arising out of writ petitions, on grounds analogous to the grounds mentioned in Order 47 Rule 1. None of those grounds are made out in the present case. Under Article 226 of the Constitution the High Court would confine the powers of review to correct an error apparent on the face of the record. No error apparent has been successfully pointed out in the order. Even while exercising the inherent, plenary powers of review, the High Court would not be justified in reversing its earlier decision on reconsideration of the entire evidence, taking a different view on merits. Considered from this angle, the order sought to be reviewed does not disclose any such apparent error that necessitates its recall. As clearly stated by the Division Bench, if two views are possible, it would not be a ground for reviewing the earlier Page 74 of 84 HC-NIC Page 74 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT judgment.
83. Another judgment relied on by the applicants is that of the Supreme Court in the case of Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors. (supra) , wherein it is observed as follows:
"89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute Page 75 of 84 HC-NIC Page 75 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
84. According to learned Senior Counsel for the applicants, as review powers are wide enough to include a misconception of fact or law by the Court, as stated in the above judgment, the order of this Court ought to be reviewed. However, what is the "misconception of fact or law" in the said order has not been pointed out. No decision was rendered and no law laid down by the said order. This judgment, therefore, would not take the case of the applicants any further.
85. Mr.Shalin N.Mehta, learned Senior Counsel appearing for one of the applicants has relied upon a decision of the Supreme Page 76 of 84 HC-NIC Page 76 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT Court in the case of Ram Chandra Mahadev Jagpat & Ors. v. Chief Executive Officer & Ors., (2006)11 SCC 661, on the point of nonjoinder of necessary parties. In that case, the facts were on a different footing, in the context of which the proper and necessary party was not joined, as can be seen by the following extract of the judgment:
After the dismissal of the special leave petition thereagainst, the order of the High Court dated 11.3.2005 attained finality and there was no proposal of Keya before SRA on 13.4.2006 and, therefore, there was no question of SRA considering the proposal made by the new developer. In any subsequent proceedings where the termination of the agreement of applicant Sigtia with the Society and replacement of Sigtia by a new developer was a subjectmatter, Sigtia was a proper and necessary party to it. The applicant Sigtia has also the right to have a hearing before SRA along with Page 77 of 84 HC-NIC Page 77 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT Keya, the new appointee. Hence Sigtia was a necessary and proper party to Writ Petition No.1277 of 2006 and to Special Leave Petition No.10281 of 2006 as it was directly affected by any order appointing Keya as developer. The Society has also entered into an agreement and also executed an irrevocable general power of attorney wherein it expressed its satisfaction with the progress in the work made by Sigtia and also by an undertaking where the Society undertook to continue with Sigtia as developer till the completion of the SRA project.
(Para 40)
86. The above judgment is a judgment rendered on the facts of the case. In the present case, the order sought to be reviewed does not decide any issue on merits, therefore, this judgment would not be applicable in the present case.
87. Mr.R.S.Sanjanwala, learned Senior Counsel for respondent No.3 has relied upon the Page 78 of 84 HC-NIC Page 78 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT judgment of the Supreme Court in the case of Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992)2 SCC 524 wherein, it is held as below:
"13. A clear distinction has been drawn between suits relating to property and those in which the subjectmatter of litigation is a declaration as regards status or legal character. In the former category, the rule of present interest as distinguished from the Commercial interest is required to be shown before a person may be added as a party.
14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved that would only Page 79 of 84 HC-NIC Page 79 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT make him a necessary witnessand not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally, that is, by curtailing his legal rights. it is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action."
88. Seen in light of the above pronouncement, in the application filed by respondents Page 80 of 84 HC-NIC Page 80 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT Nos.13 which was disposed of by the order of this Court that is the subject matter of the present proceedings, no relief had been claimed against the applicants. No order has been passed against the applicants. As stated earlier, the order is not one on merits as the application was disposed of, as not pressed.
89. It is difficult to accept that in any subsequent proceedings if an order comes up for consideration in order to adjudicate a limited issue, as can happen in any proceedings, the Court is precluded from doing so only because some of the parties are not involved in the dispute and against whom no relief is claimed, have not been joined. In the present case, no adverse order has been passed against the applicants and no decision has been taken, therefore the question of applicants being prejudiced by the order does not arise.
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90. The culmination of the entire discussion on all the issues raised by the parties collectively is that, in the considered view of this Court, there exists no error apparent on the face of the order sought to be reviewed and none has been successfully pointed out. A long drawn out process of reasoning, in order to fish out an error is not permissible. The error should be palpable on the face of the record, easily discernible at a glance. The order suffers from no such error.
91. The order sought to be reviewed is not an order on merit and, therefore, does not decide any rights of any parties, much less those of the applicants. The rights of the parties will be decided by the Civil Court and the interim arrangement contemplated by the Court in the order dated 31.08.2006, subsists till then.
92. The applicants have not brought the full Page 82 of 84 HC-NIC Page 82 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT facts on the record regarding the civil and revenue litigations between the parties, while harping on their "rights" which are under adjudication before the Civil Court. On the other hand, they have produced the internal documents of the Corporation obtained by them under the RTI Act, which are of no relevance in the context of review jurisdiction. The applicants have remained unsuccessful in making out a case for the review/ recall of the order of this Court.
93. Considering the case of the applicants from all possible angles and for reasons stated hereinabove, this Court is of the firm view that the present application, being devoid of merit, deserves to be rejected.
94. The application is, accordingly rejected.
Rule is discharged. Parties to bear their own costs.
Page 83 of 84 HC-NIC Page 83 of 84 Created On Sat Apr 30 03:00:40 IST 2016 C/MCA/697/2016 CAV JUDGMENT (SMT. ABHILASHA KUMARI, J.) sunil Page 84 of 84 HC-NIC Page 84 of 84 Created On Sat Apr 30 03:00:40 IST 2016