Karnataka High Court
The Bangalore Development Authority vs Sri A M Gopala Reddy on 15 November, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:47769
RP No. 217 of 2021
C/W RP No. 250 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REVIEW PETITION NO. 217 OF 2021
C/W
REVIEW PETITION NO. 250 OF 2021
IN R.P.No. 217/2021
BETWEEN:
1. THE BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST BENGALURU- 560 020
REPRESENTED BY ITS COMMISSIONER.
2. THE DEPUTY SECRETARY - III
BANGALORE DEVELOPMENT AUTORITY
T. CHOWDAIAH ROAD,
KUMARA PARK WEST
BENGALURU- 560 020.
...PETITIONERS
(BY SRI. B VACHAN.,ADVOCATE)
AND:
Digitally
signed by
LEELAVATHI
SR 1. SRI A M GOPALA REDDY
Location: S/O LATE SRI. MUNISWAMY REDDY
High Court AGED ABOUT 80 YEARS
of Karnataka
R/AT NO. 146, 1ST 'R' BLOCK
CHOWDESHWARI NILAYA,
HAREKRISHNA HILLS
RAJAJINAGAR
BENGALURU- 560 010.
1.(A) SMT. SEETHALAKSHMI
WIFE OF LATE SRI. A.M. GOPAL REDDY
AGED ABOUT 74 YEARS
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NC: 2024:KHC:47769
RP No. 217 of 2021
C/W RP No. 250 of 2021
1(b) SRI. A.G.SREEDHAR
S/o LATE A.M.GOPAL REDDY
AGED ABOUT 53 YEARS
1(c) SMT. A.G.BHARATHI
DAUGHTER OF LATE A.M.GOPAL REDDY
AGED ABOUT 51 YEARS
1(d) SRI. A.G.SURESH
SON LATE A.M.GOPAL REDDY
AGED ABOUT 49 YEARS
1(d) (i) T.G. RANJINI
W/O. LATE SRI. A.G. SURESH
AGED ABOUT 49 YEARS,
1(d) (ii) S. ADITI
D/O. LATE SRI. A.G. SURESH
AGED ABOUT 22 YEARS,
ALL ARE RESIDING AT
146, 1st R BLOCK
CHOWDESHWARI NILAYA,
HARE KRISHNA HILLS
RAJAJINAGAR,
BANGALORE - 560 010.
...RESPONDENTS
(BY SRI. SOMASHEKARA K M.,ADVOCATE)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1
OF CPC, PRAYING TO (A) REVIEW THE ORDER PASSED BY THIS
HON'BLE COURT VIDE ORDER DATED 26/11/2020 IN WRIT
PETITION NO. 13053/2020 (BDA) WHICH IS PRODUCED AS
ANNEXURE-R AND BE PLEASED TO DISMISS THE SAME AND ETC.
IN R.P.No. 250/2021
BETWEEN:
1. BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
BENGALURU-560 020
REPRESENTED BY ITS COMMISSIONER.
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NC: 2024:KHC:47769
RP No. 217 of 2021
C/W RP No. 250 of 2021
2. THE DEPUTY SECRETARY-II
THE BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD,
KUMARA PARK WEST
BENGALURU-560 020.
3. ASSISTANT EXECUTIVE ENGINEER
BANGALORE DEVELOPMENT AUTHORITY
2ND WEST SUB DIVISION
MRCR COMPLEX VIJAYANGAR
BANGALORE-560 040.
...PETITIONERS
(BY SRI. B VACHAN.,ADVOCATE)
AND:
1. SRI A M GOPALA REDDY
S/O LATE SRI MUNISWAMY REDDY
AGED ABOUT 80 YEARS,
R/AT NO.146 I R BLOCK
CHOWDESHWARI NILAYA
HAREKRISHNA HILLS
RAJAINAGAR
BENGALURU-560 010.
SINCE DECEASED REPRESENTED BY LRs
1.(a) SMT. SEETHALAKSHMI
WIFE OF LATE A.M.GOPAL REDDY
AGED ABOUT 74 YEARS.
1.(b) SRI. A.G.SREEDHAR
SON OF LATE A.M.GOPAL REDDY
AGED ABOUT 53 YEARS
1(c) SMT. A.G.BHARATHI
D/o LATE A.M.GOPAL REDDY
AGED ABOUT 51 YEARS
1(d) SRI. A.G.SURESH
SON OF LATE A.M.GOPAL REDDY
AGED ABOUT 49 YEARS
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NC: 2024:KHC:47769
RP No. 217 of 2021
C/W RP No. 250 of 2021
ALL ARE RESIDING AT 146,
1ST R BLOCK
CHOWDESHWARI NILAYA
HARE KRISHNA HILLS
RAJAJINAGAR
BANGALORE - 560 010.
...RESPONDENTS
(BY SRI. SOMASHEKARA K M.,ADVOCATE)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF
CPC, PRAYING TO (A) REVIEW THE ORDER PASSED BY THIS HON'BLE
COURT VIDE ORDER DATED 27/06/2013 IN WRIT PETITION NO.
26719/2013(BDA) WHICH IS PRODUCED AS ANNEXURE-P AND BE
PLEASED TO DISMISS THE SAME AND ETC.
THESE PETITIONS COMING ON FOR DICTATING ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In R.P.No.217/2021, petitioners seek for the following reliefs:-
" (a) Review the order passed by this Hon'ble Court vide order dated: 26.11.2020 in Writ Petition No. 13053/2020(BDA) which is produced as Annexure-R and be pleased to dismiss the same;
(b) Permit the petitioner No.1 to forfeit the sum of Rs.36,96,347/- (Rupees Thirty Six Lakh Ninety Six Thousand Three Hundred and Fourty Seven Only) paid by the Respondent and -5- NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 (C) to grant such other orders as this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity."
In R.P.No.250/2021, petitioners seek for the following reliefs:-
" (a) Review the order passed by this Hon'ble Court vide order dated: 27.06.2013 in Writ Petition No. 26719/2013 (BDA) which is produced as Annexure-P and be pleased to dismiss the same;
(b) to grant such other orders as this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity."
2. The brief facts giving rise to the present review petitions are as under:-
The review petitioners in both the review petitions is the BDA, which were arrayed as the respondents in the writ petition.
The respondents in both the review petitions was the writ petitioners.
2.1 A perusal of the material on record will indicate that the respondent purchased site No.146 situated at I 'R' Block, Rajajinagar, Bangalore, from one N.Krishna Raju, allottee from the BDA vide registered sale deed dated 17.11.1967, pursuant to -6- NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 which, the respondent became the owner in possession and enjoyment of the said site. On 20.01.1983, the BDA allotted the marginal land adjacent to the aforesaid site No.146 in favour of the respondent and a marginal land Agreement dated 01.03.1994 was executed in favour of the respondent by the BDA who also issued a possession certificate dated 18.04.1994 in his favour.
Subsequently, on 29.01.1996, the respondent submitted a representation for allotment of additional marginal land measuring about 3,000 sq.ft situated on the Northern side, pursuant to which, a spot inspection was conducted by the BDA and directions were issued to its Engineering Division to survey and prepare a sketch in respect of the said marginal land. On 15.02.1997, the Engineering Division prepared a sketch in relation to the marginal / additional land adjacent to site No.146 belonging to the respondent.
2.2 The Engineering Department of the BDA passed a demolition order dated 14.11.1997 purporting to invoke Section 321(3) of the Karnataka Municipal Corporations Act, 1976 r/w Section 33(2) of the Bangalore Development Authority Act, 1976, directing demolition of the alleged unauthorised construction said to have been put up by the respondent in the additional / marginal adjacent land by describing the same as site No.146/A, I 'R' Block, -7- NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 Rajajinagar, Bangalore (hereinafter referred to as 'subject marginal land'). The respondent filed a suit for permanent injunction and other reliefs in O.S.No.8211/1997 against the BDA before the civil court which passed an order of temporary injunction against the BDA restraining demolition of the subject marginal land. During the pendency of the said suit, the respondent filed an application under Order 23 Rule 1 CPC seeking withdrawal of the said O.S.No.8211/1997 with liberty to file a fresh suit on the ground that the BDA had given him an assurance that they would regularize the subject marginal land in favour of the petitioner. The said application was allowed by the XVI Addl.City Civil and Sessions Judge, Bangalore, vide final order dated 22.03.2002 disposing of the said suit by reserving / granting liberty in favour of the respondent to file a fresh suit.
2.3 Subsequently, the BDA issued an Endorsement dated 31.05.2003 rejecting the request of the respondent for allotment of the subject marginal land. The representation of the respondent to the State Government led to a direction issued to the BDA on 13.10.2006 to consider the said request of the respondent, pursuant to which, joint inspection was ordered by the Secretary, BDA on 04.06.2012, in pursuance of which, joint inspection was -8- NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 conducted and it was noted in the note sheet on 28.01.2013 that there was no access to the subject marginal land which was recommended to be allotted to the respondent and the file was forwarded to the Commissioner, BDA, who returned the file on 01.02.2013 directing the opinion from the BDA, Law Officer to be taken before proceeding further in the matter.
2.4 The BDA Law officer furnished his opinion on 06.02.2013 to the effect that the subject marginal land can be allotted to the respondent and the said opinion was approved and accepted by the Commissioner, BDA on 08.02.2013 as well as the Chairman, BDA on 18.02.2013, in pursuance of which, the BDA issued an Endorsement dated 28.03.2013 calling upon the respondent to pay a sum of Rs.1,59,08,841/- in respect of the subject marginal land.
2.5 Aggrieved by the said Endorsement dated 28.03.2013 issued by the BDA insofar as it related to demanding Rs.1,59,08,841/- towards allotment of the subject marginal land, the petitioner approached this Court in W.P.No.26719/2013 which was disposed of vide final order dated 27.06.2013 directing the BDA proceed further with the allotment in terms of an order passed -9- NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 by this Court under identical circumstances in the case of B.Lakshmi vs. BDA - W.P.No.40781/2010 dated 26.07.2012.
2.6 In pursuance of the aforesaid order passed by this Court in W.P.No.26719/2013 dated 27.06.2013, the BDA re-
calculated / re-assessed the amount payable by the petitioner towards allotment of the subject marginal land at Rs.26,96,347/-
and a demand notice in this regard dated 25.05.2016 was issued by the BDA to the respondent, who deposited the said amount of Rs.26,96,347/- on 26.05.2016.
2.7 Since the BDA did not execute a sale deed in favour of the respondent in relation to the subject marginal land, the respondent preferred W.P.No.13053/2020 against the BDA and the same came to be allowed by this Court vide final order dated 26.11.2020 directing the BDA to execute sale deed and other relevant documents in respect of the subject marginal land in favour of the respondent within a period of two months from the date of receipt of a copy of the order.
2.8 Since the BDA did not comply with the directions issued by this Court in W.P.No.13053/2020 and did not execute the sale deed and other documents, the respondent preferred civil contempt proceedings in CCC No.195/2021 before this Court, in which, the
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 BDA contended that it was not liable to execute a sale deed in favour of the petitioner since the subject marginal land was actually an independent site and not a marginal / additional land.
2.9 During the pendency of the said contempt proceedings, the BDA filed the instant R.P.No.217/2021 seeking review of the final order dated 26.11.2020 passed by this Court in W.P.No.13053/2020. So also, the BDA has filed the instant R.P.No.250/2020 on 27.08.2021 seeking review of the order dated 27.06.2013 passed by this Court in W.P.No.26719/2013 along with an application for condonation of delay of 2423 days in filing the review petition. Under these circumstances, the review petitioners
- BDA is before this Court by way of the present review petitions.
3. The respondent who was the writ petitioner in both W.P.No.13053/2020 as well as W.P.No.26719/2013 has opposed / contested both the review petitions and has filed statement of objections to the main review petitions as well as the application for condonation of delay of 2423 days filed by the BDA in R.P.No.250/2021 and has sought for dismissal of the review petitions.
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4. Heard learned counsel for the review petitioners and learned counsel for the respondents and perused the material on record.
5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the review petitioners submits that the orders passed by this Court in W.P.No.13053/2020 and W.P.No.26719/2013 contain errors apparent on the face of the record warranting interference in the present review petitions. It is submitted that the subject marginal land was an independent site and not a marginal land and could not have been allotted in favour of the respondent in contravention of Rule 5 of the BDA (Disposal of Corner Sites etc.,) Rules, 1984, and the BDA had already issued an Endorsement in this regard on 28.05.2003. It was submitted that the subject marginal land was to be sold only by way of public auction and not by way of allotment in favour of the respondent who had illegally encroached upon the same and was not entitled to claim any right over the subject marginal land. It was also submitted that the respondent was guilty of playing fraud in collusion with the BDA officials for the purpose of seeking allotment of the subject marginal
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 land and as such, the aforesaid orders passed by this Court deserve to be set aside. In support of his contentions, learned counsel for the review petitioners placed reliance upon the judgment of the Apex Court in the case of Badami vs. Bhali -
(2012) 11 SCC 574.
6. Per contra, learned counsel for the respondent - writ petitioner would support the orders passed by this Court and submit that there is no merit in the review petitions and that the same are liable to be dismissed, particularly since there was no error apparent on the face of the record and having regard to the limited scope of review under Section 114 r/w Order 47 Rule 1 CPC. It was also submitted that R.P.No.250/2021 seeking to challenge the order passed by this Court in W.P.No.26719/2013 dated 27.06.2013 was liable to be dismissed on account of long and unexplained inordinate delay and latches of 2423 days in filing the review petition, especially when neither valid nor sufficient ground had been made out by the BDA in this regard. In support of his contentions, learned counsel for the respondent placed reliance upon the following judgments:-
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(i) Ajit Kumar Rath vs. State of Orissa - (1999) 9 SCC 596;
(ii) Haridas Das vs. Usha Rani Banik - (2006) 4 SCC 78;
(iii) Action Committee, Un-aided Private Schools vs. Director of Education - 2009 AIR SCW 6136;
(iv) State of Telengana vs. Mohammed Abdul Qasim - 2024 INSC 310;
(v) Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma - (1979) 4 SCC 389;
(vi) Meera Bhanja vs. Nirmala Kumari Choudhary -
(1995) 1 SCC 170;
(vii) Parisan Devi vs. Sumithri Devi - (1997) 8 SCC 715;
(viii) Kamalesh Varma vs. Mayavathi - 2013 AIR SCW 4944;
(ix) Sasi vs. Arvindakshan Nair - AIR 2017 SC 1432;
7. I have given my anxious consideration to the rival submissions and perused the material on record.
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8. A perusal of the material on record will indicate that it is an undisputed fact that the respondent is the owner of site No.146 having purchased the same from his vendor, the allottee from the BDA as long back as on 17.11.1967. So also, the sequence of events from 1994 to 28.03.2013 and the documents in this regard indicating that the BDA issued an Endorsement calling upon the petitioner to pay Rs.1,59,08,841/- towards allotment of the subject marginal land in favour of the respondent clearly establishes that the said allotment was made by following due process of law involving not only the respondent but also the BDA and its officials over a period of almost 20 years. Though, it is sought to be contended that the proposed allotment in favour of the respondent was the outcome of fraud and collusion between the respondent and the BDA officials, neither valid nor sufficient material has been placed by the BDA in support of its contention; on the other hand, it is an undisputed fact that the BDA has not taken any steps / action against any of its officials even till today towards the alleged fraud and collusion which is not substantiated in a manner known to law.
9. Learned counsel for the BDA invited my attention to the original records of the BDA in order to point out that the same
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 would disclose that the respondent was guilty of fraud and collusion along with BDA officials; however, the said records having been examined by me, I am of the view that nothing in the said records which span over a period of almost 20 years indicate that the respondent is guilty of fraud or collusion, especially when material details / particulars in this regard and the names, details etc., of the alleged erring BDA officials have not been pointed out by the petitioner. Under these circumstances, I am of the considered opinion that the plea of fraud and collusion put forth by the review petitioner - BDA is not substantiated and the same cannot be accepted.
10. A perusal of the material on record will indicate that W.P.No.26719/2013 which was disposed of on 27.06.2013 is sought to be reviewed in R.P.No.250/2021; in this context, it would be necessary to refer to the said order passed in W.P.No.26719/2013, which reads as under:-
Sri. Praveen Kumar Raikote, learned counsel takes notice on behalf of respondents.
Heard.
2. The petitioner is aggrieved by the quantum fixed by the BDA in respect of marginal land allotted in favour of the petitioner. According to the petitioner, respondent
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 authority is not justified in quantifying the value of the marginal land as on the date of the allotment.
3. Sri. S.M. Chandrashekar, learned Senior Counsel appearing on behalf of the petitioner submits that the authority should have considered the price as it stood at the time of petitioner making the application. In other words, according to him, the relevant date would be the date on which the application is filed for seeking allotment of marginal land. In this case, application is said to have been made on 6.1.1996.
Be that as it may, this Court does not wish to enter into the merits at this stage, in view of the fact that the question involved in this writ petition is squarely covered by the judgment of this Court in W.P.No.40781/2010(BDA) dated 26.7.2012. This Court while disposing of W.P.No.40781/2010 has observed thus:-
"Hence, keeping the above aspects in view, the act of the respondent-BDA in unilaterally fixing the value as indicated vide Annexure-C is not sustainable. In order to enable the respondent-BDA to reconsider the matter in the light of the above, Annexure-C stands quashed. The respondent shall now reconsider the application of the petitioner dated 21.07.2007, keeping in view the earlier application dated 20.07.2000 which had remained pending and thereafter taking an overall view including the utility of the land fix the appropriate value in accordance with law. The further process shall be made as expeditiously as possible by the respondent after issuing notice to the petitioner."
Accordingly, this writ petition also stands disposed of in terms of the order dated 26.7.2012 passed in W.P.No.40781/2010(BDA)."
11. As can be seen from the aforesaid order under review, this Court has allowed the said petition in favour of the respondent
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- writ petitioner by placing reliance upon the earlier judgment of this Court in W.P.No.40781/2010 dated 26.07.2012, wherein it was held as under:-
" The petitioner is before this Court seeking that the endorsement dated 22.06.2009 as at Annexure-C be quashed and a further direction be issued to the respondent to allot the marginal land and execute sale deed after collecting the market price thereof at the rate of Rs.4,000/- per sq.mtr. as has been done in the case of the owners of site bearing Nos.1767 and 1768.
2. The case in brief is that the petitioner undisputedly is the auction purchaser of the site bearing st No.1770 in Kumaraswamy Layout, 1 Stage, Bangalore. Abutting the plot purchased by the petitioner, there is an area measuring East to West 15.50 +15.00/2 mtrs. and North to South 12.20 mts., in all measuring 197.64 sq. mts. Though the plot is sufficiently large, it is considered as a land which cannot be utilised by the Bangalore Development Authority ('BDA' for short) for forming an independent site as there is no approach road and considering the fact that the land is bifurcated from the road by Nala. Hence, the petitioner contends that the same being a marginal land abutting the land which has been purchased by her, she is entitled for allotment of the same.
3. In this regard, the petitioner is stated to have made an application seeking allotment of the said marginal land on 20.07.2000. The petitioner contends that despite the
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 application, no steps were taken by the respondent and as such, the petitioner made one more representation on 22.10.2005. Since the same also did not evoke any response, one more application was made on 21.07.2007. The said application was processed by the respondent and an order was passed on 22.07.2009 allotting the said marginal land and an endorsement dated 02.09.2009 was issued, which is at Annexure-E to the petition. Since the price imposed on the said land amounts to a sum of Rs.64,77,058/-, the petitioner is aggrieved by the fixation of the price for the marginal land and is therefore before this Court.
4. The respondent-BDA have filed their objection statement. The fact that the petitioner had made an application on 20.07.2000 is not disputed. However, it is contended that the petitioner thereafter had failed to turn up and pursue the said application, hence the same was not considered. The subsequent application made on 03.11.2005 did not correctly indicate the site number, which had been purchased by the petitioner as it was shown as site No. 1762 and as such, consideration of the marginal land thereto did not arise. It is their contention that when one more representation was made on 21.07.2007, the same was processed and a spot inspection was conducted on 29.02.2008. On noticing the extent of the land and though the same was of a larger extent than to be considered as marginal land, the said site could not be made use for any other purpose as there was no approach road. It is in that circumstance, the said land was considered as a marginal
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 land and the allotment order was issued on 17.04.2009, which was approved on 21.04.2009 by the Chairman. While considering the costs to be collected in respect of the said allotment, the procedure contemplated is to take the average costs secured in the same area in the immediately preceding auction conducted during the previous two years. In the instant case, since the allotment was on 21.04.2009, the value fetched in the auction for the year 2007-08 was taken into consideration and keeping in view the extent of the property presently allotted, the amount of Rs.64,77,058/- was demanded for payment. Hence, it is contended that the action initiated by the respondents is in accordance with law and the impugned endorsement does not call for interference. Accordingly, the respondent-BDA have prayed that the writ petition be rejected.
5. In the light of the rival contentions, I have heard the learned counsel appearing for the parties and perused the petition papers including the original records maintained by the BDA, which was made available at the time of hearing. From the facts noticed above and the papers enclosed thereto, the fact that the petitioner is the purchaser of the site bearing No.1770 in Kumaraswamy Layout, 1st Stage, is not in dispute. The fact that the sites bearing No.1767 and 1768 are adjacent lands is also not in dispute. Though the abutting land to the petitioner's property measures an extent of 197.64 sq.mts, the respondent-BDA have considered the same as a marginal land as no other person can use the said land as there is no approach road and since the connecting road and the sites are bifurcated by
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 a Nala. It is in that context, the respondent-BDA have considered the application of the petitioner as the same is a marginal land and to allot the same to the petitioner. To the extent of the respondent having considered the said land as marginal land and the same being allotted to the petitioner, the petitioner in fact supports the action of the respondent. However, the issue for consideration in the instant petition is only with regard to the costs that has been imposed on the said property.
6. In this regard, the petitioner contends that similarly placed persons were allotted lands in the neighbourhood have been allotted the marginal land in the year 2001 at a cost which was fixed at Rs.4,000/- per sq. mt. It is the case of the petitioner that the allottees of the said sites No.1767 and 1768 were favoured with the allotment in the year 1999 and their allotment for grant of the marginal land obviously is after 1999 and before 2001, when the order was made in their favour. It is therefore contended that when the petitioner had made her application for grant of the marginal land on 20.07.2000, it was incumbent on the part of the respondent-BDA to process the said application in accordance with law and if the said application had been processed at that stage, the allotment of the marginal land to the petitioner also would have been in and around the year 2001 and the petitioner would have been entitled to get the marginal land at the same rate as the adjacent owners have got the lands. The fact that the petitioner had made an application on 20.07.2000 is not in dispute. The respondent- BDA however contend that the petitioner had thereafter not
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 followed up the said application and therefore, the said application had not been considered. Though such contention has been put forth by the respondent, there is nothing placed on record in the instant writ petition to indicate that either the said application had been rejected or an endorsement was issued calling upon the petitioner to produce any documents by way of compliance.
7. Be that as it may, what is also to be noticed is, the fact that the petitioner had filed one more application on 22.10.2005 is not in dispute inasmuch as a copy of the same is produced along with the objection statement as at Annexure-R1. No doubt, as contended by the respondent, the said application does not correctly disclose the number of the land which has been purchased by the petitioner to consider the case for allotment of the marginal land thereto. But the main issue herein is that the respondent-BDA have thereafter taken into consideration the subsequent application which was made by the petitioner on 21.07.2007 and the said application has been processed in the manner as stated in the objection statement by holding a spot inspection on 22.09.2008. It is on the said basis, the grant of marginal land was ordered on 21.04.2009. What is relevant to be noticed from the original records is that the said application dated 21.07.2007 is on file and a perusal of the same would indicate that the petitioner refers to the application dated 20.07.2000 and has also enclosed a copy of the said application along with the application dated 21.07.2007 and necessary documents for consideration of the application have also been enclosed. The said
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 application is the one which has been considered by the respondent and the order has been ultimately passed. There is nothing on record to indicate as to whether the said application was considered in continuation to the application which was made on 20.07.2000 since as noticed it had not been rejected earlier. In such circumstance, the manner of calculating and collecting the value assumes significance if there was delay on the part of the respondent themselves in considering the said application.
8. Therefore, keeping these aspects in perspective and also keeping in view the fact that the adjacent lands have been granted at the prevailing value to the beneficiaries thereunder during the year 2001, the matter requires reconsideration by the respondent-BDA keeping all aspects in view and to arrive at the conclusion as to the appropriate value that has to be taken into consideration for the purpose of calculating the total price for the marginal land.
9. Hence, keeping the above aspects in view, the act of the respondent-BDA in unilaterally fixing the value as indicated vide Annexure-C is not sustainable. In order to enable the respondent-BDA to reconsider the matter in the light of the above, Annexure-C stands quashed. The respondent shall now reconsider the application of the petitioner dated 21.07.2007, keeping in view the earlier application dated 20.07.2000 which had remained pending and thereafter taking an overall view including the utility of the land fix the appropriate value in accordance with law. The further process shall be made as expeditiously as
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 possible by the respondent after issuing notice to the petitioner.
In terms of the above, the writ petition stands disposed of. No order as to costs."
12. It is an undisputed fact and a matter of record that the aforesaid final order passed in W.P.No.40781/2010 dated 26.07.2012 has attained finality and become conclusive and binding upon the BDA; it follows therefrom that the order dated 27.06.2013 passed in W.P.No.26719/2013 which merely followed the earlier judgment of this Court in W.P.No.40781/2010 dated 26.07.2012 cannot be said to suffer from any illegality or infirmity, much less any error apparent on the face of the record warranting interference by this Court in these review petitions.
13. As rightly contended by the learned counsel for the respondent, R.P.No..250/2021 seeking to assail the aforesaid order dated 27.06.2013 passed in W.P.No.26719/2013 was preferred by the review petitioners-BDA after a huge, enormous, inordinate, unexplained delay and latches of 2423 days which has not been explained satisfactorily by the review petitioner - BDA; in fact, this review petition in R.P.No.250/2021 was filed subsequent to R.P.No.217/2021 filed by the BDA challenging this Court's
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 subsequent order dated 26.11.2020 passed in W.P.No.13053/2020 which leads to the sole inference that the said R.P.No.250/2021 is merely an afterthought and on this ground also, the contention of the review petitioners cannot be accepted, especially when neither valid nor sufficient grounds have been made out by the review petitioner to seek condonation of delay of 2423 days in filing the review petition.
14. A perusal of the material on record will also indicate that subsequent to the aforesaid order dated 27.06.2013 passed by this Court in W.P.No.26719/2013, the BDA did not take necessary steps to inform / intimate the respondent that he was not entitled to the subject marginal land; on the other hand, the BDA accepted and acted upon the said order passed by this Court and instead issued a demand notice dated 25.05.2016 calling upon the petitioner to pay a sum of Rs.26,96,347/- towards allotment of the subject marginal land and the same was deposited by the respondent on 26.05.2016 itself, despite which, the BDA did not execute the sale deed, documents etc., in relation to the subject marginal land in favour of the respondent; so also, even during the interregnum between 26.05.2016 and 09.09.2020, when the
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 respondent preferred the instant W.P.No.13053/2020, the BDA neither contended nor informed the respondent that he was not entitled to allotment of the subject marginal land. Under these circumstances, when W.P.No.13053/2020 came up for hearing before this Court on 26.11.2020, this Court took note of the earlier events, facts, circumstances etc., including its earlier orders as well as the undisputed fact that the respondent had paid the entire sum of Rs.26,96,347/- on 26.05.2016 as demanded by the BDA itself and consequently, allowed the petition by passing the aforesaid order dated 26.11.2020 which is sought to be assailed in R.P.No.217/2021. In this context also, in the absence of any material to indicate any steps / action being taken by the BDA against any of its officials in relation to the demand made on its behalf on 25.05.2016 for allotment of the subject marginal land, pursuant to which, the respondent deposited the entire amount on 26.05.2016, I am of the view that the order dated 26.11.2020 in W.P.No.13053/2020 cannot be said to suffer from any illegality or infirmity, much less any error apparent on the face of the record warranting interference by this Court in these review petitions and as such, even the various contentions urged in R.P.No.217/2021 cannot be accepted.
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15. It is relevant to state that a perusal of the orders under review will clearly indicate that the same do not fall within the parameters contained in Order 47 Rule 1 r/w Section 114 CPC or Article 226 of the Constitution of India warranting review by this Court. Further, a perusal of the orders and the various contentions urged in the review petitions are sufficient to come to the sole conclusion that the orders under review do not warrant interference by this Court in the light of the parameters governing exercise of review jurisdiction as held by the Apex Court in the cases of (i) Shri Ram Sahu vs. Vinod Kumar Rawat - Civil Appeal No.3601/2020 dated 03.11.2020, (ii) S.Murali Sundaram vs. Jothibai Kannan -
(2023) SCC Online SC 185 (iii) S.Madhusudhan Reddy vs. V.Narayana Reddy - Civil Appeal Nos.5503-04/2022 dated 18.08.2022 and in the case of (iv) Sanjay Kumar Agarwal vs. State Tax Officer -2023 SCC Online SC 1406, the Apex Court held as under:-
16. The gist of the afore-stated decisions is that:--
(i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
(ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 circumstances of a substantial and compelling character make it necessary to do so.
(iii) 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 record justifying the court to exercise its power of review.
(iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected."
(v) A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."
(vi) Under the guise of review, the petitioner cannot be permitted to re-agitate and reargue the questions which have already been addressed and decided.
(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.
16. It is also significant note that in the recent judgment of the Apex Court in the case of The State of Telengana vs. Mohammed Abdul Qasim - (2024) 6 SCC 461, the Apex Court
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 reiterated the legal position in relation to scope of review as hereunder:-
SCOPE OF REVIEW [ " 14. We shall start our discussion with the statement of law rendered by V.R. Krishna Iyer, J.
Northern Indian Caterers (India) Ltd.,v. Lt. Governor of Delhi, (1980) 2 SCC 167 "14. A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result."
15. The legislature, in its wisdom, has chosen to restrict the scope of review from time to time. To indicate this legislative shift, Sections 376 and 378 of the Code of Civil Procedure, 1859 (hereinafter referred to as "CPC, 1859"), Section 623 of the Code of Civil Procedure, 1877 (hereinafter referred to as "CPC, 1877"), Section 114 and Order 47 Rule 1 CPC, 1908 are reproduced herein below:
Section 376 CPC, 1859:
"376. Review of judgment on discovery of new evidence.--Any person considering himself aggrieved by a decree of a Court of original jurisdiction, from which no appeal shall have been preferred to a Superior Court--or by a decree of a District Court in appeal from which no special appeal shall have been admitted by the Sudder Court--or by a decree of the Sudder Court from which either no appeal may have been preferred to her Majesty in Council, or an appeal having been preferred no proceedings in the suit have been transmitted to her Majesty in Council--and who from the discovery of new matter or evidence which
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 was not within his knowledge, or could not be adduced by him at the time when such decree was passed, or from any other good and sufficient reason, may be desirous of obtaining a review of the judgment passed against him -- may apply for a review of judgment by the Court which passed the decree."
Section 378 CPC, 1859:
"378. The order of the Court for granting or refusing the review is final.--If the Court shall be of opinion that there are not any sufficient grounds for a review, it shall reject the application, but if it shall be of opinion that the review desired is necessary to correct an evident error or omission or is otherwise requisite for the ends of justice, the Court shall grant the review, and its order in either case, whether for rejecting the application or granting the review, shall be final. Provided that no review of judgment shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree of which a review is solicited."
16. Section 376 CPC, 1859 provided a larger playing field to the court while dealing with an application to review. However, under Section 378 CPC, 1859, a finality was sought to be given to the order of the court. Section 623 CPC, 1877:
"623. Application for review of judgment.--Any person considering himself aggrieved
(a) by a decree or order from which an appeal is hereby allowed, but from which no appeal has been preferred;
(b) by a decree or order from which no appeal is hereby allowed; or
(c) by a judgment on a reference from a Court of Small Causes,And who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order, or to the Court, if any, to which the business of the former Court has been transferred.
A party who is not appealing from a decree may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except when the ground of such appeal is common to the applicant and the appellant, or when, being a respondent, he can present to the appellate court the case on which he applies for the review."
17. Thus, taking note of the existence of a larger power to review, the legislature brought forth a change by adding the words "after the exercise of due diligence". Additionally, the words "on account of some mistake or error apparent on the face of the record" were also added. This conscious inclusion clearly restricts the power of review. Section 114 CPC, 1908:
"114. Review.--Subject as aforesaid, any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
Order 47 Rule 1CPC, 1908:
"1. Application for review of judgment.--(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
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(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
[Explanation.--The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment.]"
18. Section 114 read with Order 47 Rule 1CPC, 1908 is verbatim similar to Section 623CPC, 1877, except for the Explanation to Order 47 Rule 1 which was added by way of an amendment in the year 1976. Section 114CPC, 1908 speaks of the circumstances, instances and situations under which a review can be filed. The words "as it thinks fit" cannot be interpreted to mean anything beyond what is conferred under Order 47 Rule 1. In other words, Section 114 has to be read along with Order 47 Rule 1. While they are to be read together, Section 114 is more procedural, whereas Order 47 Rule 1 is substantially substantive.
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19. The words "due diligence", though one of fact, places onus heavily on the one who seeks a review. It has to be seen from the point of view of a reasonable and prudent man. Though an element of flexibility is given to any evidence or matter on its discovery, it has to be one which was not available to the court earlier. It could not have been produced despite due diligence, meaning thereby that it should have been available and, therefore, in existence at least at the time of passing the decree.
20. Mistake or error apparent on the face of record would debar the court from acting as an appellate court in disguise, by indulging in a re-hearing. A decision, however erroneous, can never be a factor for review, but can only be corrected in appeal. Such a mistake or error should be self- evident on the face of record. The error should be grave enough to be identified on a mere cursory look, and an omission so glaring that it requires interference in the form of a review. Being a creature of the statute, there is absolutely no room for a fresh hearing. The court has got no role to involve itself in the process of adjudication for a second time. Instead, it has to merely examine the existence of an apparent mistake or error. Even when two views are possible, the court shall not indulge itself by going into the merits.
21. The material produced, at this stage, should be of such pristine quality which, if taken into consideration, would have the logical effect of reversing the judgment. Order 47 Rule 1CPC, 1908 indicates that power of review
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 can be exercised by courts, in three different situations, but these occasions ought to be read in an analogous manner. In other words, they should be read in a manner to mean that a restrictive power has been conferred upon the court. As stated, the words "for any other sufficient reason" ought to be read in conjunction with the earlier two categories reiterating the scope. Being a judicial discretion, it has to be exercised with circumspection and on rare occasions. It is a power to be exercised by way of an exception, subject to the rigours of the provision.
22. A subsequent event per se cannot form the basis of a review. Clause (c) of Order 47 Rule 1CPC, 1908, clearly specifies that the important matter or evidence produced must have been available at the time when the decree was passed. This is a matter of rule. On a very rare occasion, an exception can be carved out. Such an exception can only be exercised when the said matter or evidence is of unimpeachable quality. It is not only a new matter or evidence that should be taken into consideration, but it should also be an important one.
23. While exercising the said power, the court has to first check the evidentiary value of such discovery, including the circumstances under which it emanated, particularly when it inherently lacks jurisdiction or the evidence cannot be made admissible in law and therefore, is not relevant. In such a circumstance, there is no question of proceeding further in deciding the review application.
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 PRECEDENTS
24. Now, we shall place on record decisions rendered by this Court on the above principle of law discussed by us.
Power of review is not to be confused with powers of the appellate court in appeal jurisdiction Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others, (1979) 4 SCC 389;
"3. The Judicial Commissioner gave two reasons for reviewing his predecessor's order. The first was that his predecessor had overlooked two important documents Exts. A/1 and A/3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab [Shivdeo Singh v. State of Punjab, 1961 SCC OnLine SC 29 : AIR 1963 SC 1909] 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. 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 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 powers which may enable an appellate court
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 to correct all manner of errors committed by the subordinate court."
Error apparent on the face of record Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167;
"8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The 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 : Sajjan Singh v. State of Rajasthan [Sajjan Singh v. State of Rajasthan, 1964 SCC OnLine SC 25, para 20 : AIR 1965 SC 845 : (1965) 1 SCR 933, 948] . For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment : G.L. Gupta v. D.N. Mehta [G.L. Gupta v. D.N. Mehta, (1971) 3 SCC 189 :
1971 SCC (Cri) 279 : (1971) 3 SCR 748, 750] . The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice : O.N. Mohindroo v. Distt. Judge, Delhi [O.N. Mohindroo v. Distt. Judge, Delhi, (1971) 3 SCC 5 : (1971) 2 SCR 11, 27] . Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article
145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order XL Rule 1, Supreme Court Rules, 1966). 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" : Sow Chandra Kante v. Sk. Habib [Sow Chandra Kante v. Sk. Habib, (1975) 1 SCC 674] .
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9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record."
Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715];
"9. Under Order 47 Rule 1CPC 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 its power of review under Order 47 Rule 1CPC. In exercise of the jurisdiction under Order 47 Rule 1CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".
10. Considered in the light of this settled position we find that Sharma, J. clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1CPC. The observations of Sharma, J. that "accordingly, the order in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope of Order 47 Rule 1CPC. 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 latter only can be corrected by exercise of the review jurisdiction.
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 While passing the impugned order, Sharma, J. found the order in civil revision dated 25-4-1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which was not of such a nature, "which had to be detected by a long-drawn process of reasons"
and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment-debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta, J. on the grounds detailed in the review petition. In this view of the matter, we are of the opinion that the impugned order of Sharma, J. cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6-3-1997."
Meaning of the words "for any other sufficient reason" in Order 47 Rule 1CPC, 1908 Chhajju Ram v. Neki [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11] : (SCC OnLine PC) "It will be observed that the question with which their Lordships have to deal is one concerned not with appeal to a Court of Appeal, but with review by the Court which had already disposed of the case. In England it is only under strictly limited circumstances that an application for such a review can be entertained. In India, however, provision has for long past been made by legislation for review in addition to appeal. But as the right is the creation of Indian statute law, it is necessary to see what such statutory law really allows. The law applicable to the present case is laid down by Order 47 Rule 1 of the Code of Civil Procedure, 1908. This Rule is enacted in the following terms:
(1) Any person considering himself aggrieved--
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(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is hereby allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.' If their Lordships felt themselves at liberty to construe the language of Order 47 of the Code of Civil Procedure, 1908 without reference to its history and to the decisions upon it, their task would not appear to be a difficult one. For it is obvious that the Code contemplates procedure by way of review by the Court which has already given judgment as being different from that by way of appeal to a Court of Appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or "any other sufficient reason". The first two alternatives do not apply in the present case, and the expression "sufficient", if this were all, would naturally be read as meaning sufficiency of a kind analogous to the two already specified, that is to say, to excusable failure to bring to the notice of the Court new and important matters, or error on the face of the record. But before adopting this restricted construction of the expression "sufficient", it is necessary to have in mind, in the first place, that the provision as to review was not introduced into the Code for the first time in 1908, but appears there as a modification of previous provision made in earlier legislation : and, in the second place, that the extent of the power of a court in India to review its own decree under successive forms of legislative provision has been the subject of a good deal of judicial interpretation, not, however, in all cases harmonious. That, the power given by the Indian Code is different from the very restricted power which exists in England appears plain from the decision in Charles Bright &
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 Co. Ltd. v. Sellar [Charles Bright & Co. Ltd. v. Sellar, (1904) 1 KB 6 (CA)] , where the Court of Appeal discussed the history of the procedure in England and explained its limits.
***
Their Lordships have examined numerous
authorities, and they have found much conflict of judicial opinion on the point referred to. There is plainly no such preponderance of view in either direction as to render it clear that there is any settled course of decision which they are under obligation to follow. Some of the decisions in the earlier cases may have been influenced by the wider form of expression then in force, and these decisions may have had weight with the learned Judges who, in cases turning on the subsequent Code, had regarded the intention of the legislature as remaining unaltered. But their Lordships are unable to assume that the language used in the Codes of 1877 and 1908 is intended to leave open the questions which were raised on the language used in the earlier legislation. They think that Rule 1 of Order 47 must be read as in itself definitive of the limits within which review is today permitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words "any other sufficient reason" as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred the course taken by the second and third Division Bench, composed of Wilberforce, J., and Scott Smith, J., and by Wilberforce, J., and LeRossignol, J., respectively. The result is that the judgments given by these two Division Benches ought to be set aside, and that of the Bench of the Chief Court composed of Scott Smith, J., and Leslie Jones, J., restored, so that the suit will stand dismissed. The respondent- plaintiffs must pay the costs here and in the courts below."
Discovery of new matter or evidence State of W.B. v. Kamal Sengupta , (2008) SCC 612 "21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.
22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision."
An order can be reviewed only on the prescribed grounds mentioned in Order 47 Rule 1CPC, 1908 Shri Ram Sahu v. Vinod Kumar Rawat v. Shri Ram Sahu v. Vinod Kumar Rawat, (2021) 13 SCC 1 "10. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the court, which may order or pass the decree. From the bare reading of Section 114CPC, it appears that the said substantive power of review under Section 114CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said section imposed any prohibition on the court for exercising its power to
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NC: 2024:KHC:47769 RP No. 217 of 2021 C/W RP No. 250 of 2021 review its decision. However, an order can be reviewed by a court only on the prescribed grounds mentioned in Order 47 Rule 1CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power be exercised in the guise of power of review."
Evidence cannot be re-appreciated in review Kerala SEB v. Hitech Electrothermics & Hydropower Ltd.- (2005) 6 SCC 651 "10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration of the evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent from starting the commercial production by 31-12-1996. This is a finding of fact recorded by this Court on the basis of the appreciation of evidence produced before the Court. In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.""
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17. In view of the aforesaid facts and circumstances, I do not find any merit in the review petitions and the same are hereby dismissed.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE Srl.