Bombay High Court
K. S. Chamankar Enterprises And Anr vs The State Of Maharashtra And 7 Ors on 6 February, 2019
Bench: R. M. Borde, R. G. Ketkar
1
RPWL-28-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION (L) NO. 28 OF 2018
IN
WRIT PETITION NO. 1324 OF 2018
K. S. Chamankar Enterprises
And another ...Petitioners
Versus
The State Of Maharashtra
And others ...Respondents
....
Mr.A.Y. Sakhare, Senior Advocate a/w. Kiran Jain, Ish Jain, Amita Kamble
i/b. Kiran Jain & Co. for the Petitioners.
Mrs. Jyoti Chavan, AGP, for Respondent No.1- State.
Mr. V.D. Patil, Advocate for Respondents No.2 & 3.
Mr. Pravin Samdani, Senior Advocate a/w. Mr. Arun Panickar, Advocate
for Respondent No.4.
Mr. V.S. Kapse, Advocate for Respondent No.6.
....
CORAM : R. M. BORDE &
R. G. KETKAR, JJ.
DATE : 06th FEBRUARY, 2019 [IN CHAMBERS at 5:15 P.M.] P.C.
1. Heard Mr.A.Y. Sakhare, learned Senior Counsel appearing for the petitioners, Mrs. Jyoti Chavan, learned AGP for respondent No.1- State, Mr. V.D. Patil, learned Counsel for respondents No.2 & 3, Mr.Pravin Samdani, learned Senior Counsel for respondent No.4 and Mr. V.S. Kapse, learned Counsel for respondent No.6, at length. 1/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 2
RPWL-28-18.doc
2. By this Petition, the petitioners seek review of the order dated 27.3.2018 passed by this Court in Writ Petition (L) No.3563/2017. The petitioners have prayed for setting aside the order dated 27.3.2018 passed by this Court in Writ Petition, the order dated 28.11.2017 passed by the Apex Grievance Redressal Committee (for short, 'Committee') as also the order dated 19.6.2017 passed by the Chief Executive Officer, Slum Rehabilitation Authority (for short, 'CEO, SRA').
3. In support of Review Petition, Mr. Sakhare submitted that the petitioners have sought review of the order dated 27.3.2018 on following grounds :
"2(Q) By an order dated March 27, 2018 this Hon'ble Court failed to appreciate the jurisdictional issue raised by the review petitioner herein and have failed to take notice of the fact that Section 13(2) of the Slum Act can only be invoked against the owner of the Property and not against the Developer.
3(d) This Hon'ble Court failed to appreciate that the order dated 19/06/2017 was beyond the scope of powers conferred upon the SRA under the provisions of Section 13(2) of the Slum Act in the peculiar facts and circumstances of the present case. It is pertinent to note that in terms of agreement dated 27/11/2006 the Review Petitioners had to carry out certain Development work for the State of Maharashtra in lieu of the FSI/BUA to be made available to it under the Scheme under the Slum Act. The scope of work to be executed by the Review Petitioners for the State of Maharashtra was beyond the purview of the provisions of the Slum Act. It was a composite transaction whereby the Review Petitioners were to be compensated for the 2/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 3 RPWL-28-18.doc development work carried out by the Review Petitioners for the State of Maharashtra by grant of FSI/BUA under the Scheme under the Slum Act. The Hon'ble High Court in the impugned order has chosen not to consider the aspect of the Review Petitioners having spent more than 100 crores for completing the work pursuant to the agreement dated 27/11/2006 while upholding the order of terminating the Review Petitioners as Developer. It is respectfully submitted that taking into consideration the composite and inseparable nature of transaction the same fell beyond the scope of section 13(2) of the Slum Act.
3(l) That on behalf of the Petitioners, the Ld. Counsel has given all the dates and events showing causes of alleged delay which could not have been attributed to the Petitioners. All the dates and events are undisputed fact by any of the Respondents, however the Hon'ble Division Bench has not considered the said dates and events while delivering the judgment dated 27th March, 2018, therefore this Review Petition is maintainable."
4. Mr. Sakhare submitted that aggrieved by the decision dated 27.3.2018 in W.P. (L) No.3563/2017 passed by this Court, the petitioners had instituted Special Leave to Appeal (C) No.13053/2018 on 26.4.2018. Pending that S.L.P., they filed present Review Petition in this Court on 5.5.2018. By order dated 22.5.2018, the Apex Court permitted the petitioners to withdraw the S.L.P.. He, therefore, submitted that dismissal of S.L.P. as withdrawn will not come in the way of the petitioners in prosecuting Review Petition. He submitted that the order under review suffers from several errors of law apparent on the face of record and, 3/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 4 RPWL-28-18.doc therefore, the same is required to be recalled.
5. On the other hand, Mr. Samdani strenuously opposed the Review Petition. He relied upon following decisions :
(i) Parsion Devi Vs. Sumitri Devi, (1997) 8 SCC 715; &
(ii) K. Rajamouli Vs. A.V.K.N. Swamy, (2001) 5 SCC 37.
6. Mr. Samdani submitted that the ground 2(Q) is not at all a ground seeking review. That is a narration of fact. Apart from that no case is made out for reviewing the order dated 27.3.2018. He submitted that this Court also declined to exercise plenary powers under Article 226 of the Constitution of India. The Review Petition is totally silent on this aspect. As this Court was of the view that it was not a fit case for invocation of plenary powers under Article 226 of the Constitution of India, even otherwise no case is made out for reviewing the order.
7. Mr. Patil submitted that by order dated 19.6.2017, CEO, SRA terminated the appointment of M/s. K.S. Chamankar Enterprises as developers in respect of Anna Nagar, Kasam Nagar and Vitthal Rakhumai SRA Co-operative Housing Society by exercising powers under Section 13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The CEO, SRA directed holding of General Body meeting of the slum dwellers on the site in the presence of Joint Registrar (Co-operation) and decide appointment of new builder by 4/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 5 RPWL-28-18.doc all the three societies by way of election with 70% consent.
8. Aggrieved by that decision, applications were filed before the Committee. By order dated 28.11.2017, the Committee upheld the order passed by CEO, SRA and modified direction No.2 in the order dated 19.6.2017. The Committee directed that the General Body meeting of the slum dwellers shall be taken on the site in the presence of Joint Registrar (Co-operation) and the new builder excluding M/s. K.S. Chamankar Enterprises and any entity associated with Developer that has been black listed by SRA shall be decided by all the three societies by way of election with 70% consent of eligible slum dwellers.
9. After the petition was disposed of, the resolution was passed by the General Body of the three societies appointing new developer. He submitted that even L.O.I. is issued. In short he submitted that the orders dated 19.6.2017 passed by the CEO, SRA and 28.11.2017 of the Committee have been implemented.
10. Mr. Kapse submitted that appointment of the new developer among others is challenged by instituting proceeding in this Court and the same is pending.
11. We have considered the rival submissions advanced by the learned Counsel appearing for the parties. We have also perused the material on record. By order dated 27.3.2017 Writ Petition (L) 5/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 6 RPWL-28-18.doc No.3563/2017 and other companion Writ Petitions were dismissed. Aggrieved by that decision, the petitioners instituted Special Leave to Appeal (C) No.13053/2018 before the Apex Court on 26.4.2018. Pending that S.LP., they filed present Review Petition on 5.5.2018. On 22.5.2018, Apex Court disposed of S.L.P. by passing following order :
" Having heard learned counsel for the parties at length, we are not inclined to interfere with the order impugned in the special leave petitions.
After this order is dictated, learned counsel appearing for the petitioners submits that the petitioners be permitted to withdraw the special leave petitions.
The special leave petitions are dismissed as withdrawn"
12. During pendency of the S.L.P., the petitioners have instituted Review Petition in this Court. Thus the grounds that were available in the Review Petition were also available to the petitioners while prosecuting S.L.P. before the Apex Court. The grounds raised by the petitioners in the present Review Petition were, therefore, deemed to have been agitated before the Apex Court.
13. That apart, in the case of Parsion Devi (supra), the Apex Court observed in paragraph-10 that, "There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction." Even if we 6/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 7 RPWL-28-18.doc accept the submissions of petitioners, at the highest the decision dated 27.3.2018 can be treated as an erroneous consideration. We do not find that there was any mistake or any error apparent on the face of the record while passing the order dated 27.3.2018.
[Emphasis supplied]
14. In the case of Suman Dattatraya Kadam Vs. Shobha Kailas Bonekar & Ors., 2007(3) Bom. C.R. 518, more particularly in paragraph-4 thereof, the Special Bench comprising of five learned Judges of this Court, in which one of us (R.M. Borde,J.) was a member, referred to the decision of Apex Court in Aribam Tuleshwar Sharma Vs. Ariban Pishak Sharma and Ors., A.I.R. 1979 S.C. 1047 dealing with the scope and ambit of power of the High Court while entertaining an application for review. The relevant portion reads thus :
"It is true that there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inhere in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be 7/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 8 RPWL-28-18.doc exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Side Court to correct all manner of errors committed by the Subordinate Court."
15. In paragraph-5, the Special Bench referred to the decision of Lily Thomas Vs. Union of India and Ors., A.I.R. 2000 S.C. 1650, where the Apex Court was dealing with the powers of review in reference to Article 137 and under the Supreme Court Rules. The Special Bench extracted paragraphs-53 and 55 as under :
"It is well settled that a party is not entitled to seek review of a judgment delivered by this Court merely for the purpose of a rehearing and fresh decision of the case. Normal principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so."
"...But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility."
"It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review."8/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 ::: 9
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16. In the case of Kamlesh Verma Vs. Mayawati, AIR 2013 SC 3301, the Apex Court has considered the scope of review and has observed thus :
"The jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is 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 its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of C.P.C. "
17. Applying the tests laid down by the Apex Court in the above decisions to the facts of the present case, we are more than satisfied that no ground is made out for review of the order dated 27.3.2018. Hence, Review Petition fails and the same is dismissed. Order accordingly.
(R. G. KETKAR, J.) (R.M. Borde, J.) Deshmane (PS) 9/9 ::: Uploaded on - 11/02/2019 ::: Downloaded on - 16/03/2019 07:35:57 :::