Smt. Uma Mukerji vs The Board Of Revenue Allahabad
2021 Latest Caselaw 3771 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- MISC. SINGLE No. - 6016 of 2008
 
In Re: C.M. APPLICATION NO.48501 OF 2020 
 
C.M. APPLICATION NO.48502 OF 2020
 

 
Petitioner :- Smt. Uma Mukerji
 
Respondent :- The Board Of Revenue Allahabad
 
Counsel for Petitioner :- D.C.Mukerji,Devendra Mohan Shukla,Dhruv Mathur,K.K.Sharma,Lalta Prasad Misra,Rajeiu Kumar Tripathi,Sharavan Kumar Shukla
 
Counsel for Respondent :- C.S.C.,G.S.Nigam,Mohammad Aslam Khan,Mohd.Adil Khan 
 
alongwith
 
Case :- MISC. SINGLE No. - 5292 of 2010
 
In Re: C.M. APPLICATION NO.48420 OF 2020
 
C.M. APPLICATION NO. 48421 OF 2020
 
Petitioner :- Smt. Uma Mukharjee ( U/A 227 )
 
Respondent :- Special Judge Ayurvedic Scam Case Lucknow And Others
 
Counsel for Petitioner :- Devendra Mohan Shukla,Devendra Mohan Shukla,Dhruv Mathur,K.K.Sharma,Lalta Prasad Misra,Rajeiu Kumar Tripathi,Sharavan Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Anurag Srivastava,Mohd.Aslam Khan,Mohiuddin Khan
 
Hon'ble Mrs. Sangeeta Chandra,J.

(1) I have heard Shri Devendra Mohan Shukla, for the petitioner and Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mohd. Aslam Khan for the respondents.

(2) I have also gone through carefully the grounds for review as mentioned in the Review Application No.48501 of 2020, the review petitioner has not made out any ground to show error apparent on the face of the record. All the grounds that have been taken by the review petitioner require detailed hearing and arguments and in some and substance seek to plead before this Court that the judgments of the Supreme Court have been wrongly appreciated. The provisions of Urban land Ceiling and Regulation Act, 1976, and Urban Land Ceiling and Regulation Repeal Act, 1999, have been wrongly appreciated and the settled principles for interpretation of State Act purportedly in conflict with the Act of Parliament have not been correctly appreciated by this Court in its judgment and order dated 30.07.2020.

(3) All the grounds in the review petition are such as not covered is under limited jurisdiction open for this Court under Order 47 of the CPC which has been made applicable by the Supreme Court by its various judgments on review applications seeking review of judgments passed in writ jurisdiction also. The petitioner has tried to argue the matter afresh. This Court cannot sit in Appeal over its own judgment. If any provision of law has been incorrectly appreciated by this Court then the proper remedy for the petitioner would be to approach the Competent Court in Appeal against the judgment and order dated 30.07.2020.

(4) Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Division Bench of the Supreme Court in Board of Control for Cricket in India and Another Vs. Netaji Cricket Club and Others reported in (2005) 4 SCC 741, and has read out Paragraph nos.88, 89 and 90 of the said judgment wherein emphasis has been placed upon the observation made by the Supreme Court in Paragraph-90 to the effect that "sufficient reason" in Order 47 Rule 1 of the Code are 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". The observations of the Court made in the judgment cited by the learned counsel for the petitioner can only be considered in the context in which they were made and not dehors the facts as mentioned by the Supreme Court in its judgment in BCCI (Supra) were that Netaji Cricket Club, the respondent in the Appeal, was a member of Tamilnadu Cricket Association and Tamilnadu Cricket Association admittedly was a member of the BCCI. Netaji Cricket Club filed a Suit for declaration and injunction and the Madras High Court on apprehension that the BCCI (hereinafter referred to as Board) in ensuing Election of office bearers may disqualify some candidates to contest on the ground of residence. In the said Suit two interim applications were filed with a prayer that the Annual General Meeting be conducted under the Chairmanship of a retired Supreme Court Judge with an absolute bar to scrutinize the list of authorized representatives from Member Associations eligible to vote in the Election and also with a prayer for restraining the Board from interfering with the proposal of any representative of any Board of the North Zone for the post of President, on the basis of residential qualifications. An interim order was granted by a learned Single Judge of the High Court hearing the Original Suit who appointed former Judge of the Supreme Court as Commissioner to conduct the Election and take necessary decision with regard to qualifications, nomination and conduct of the Elections. However, the said Commissioner was prohibited from disqualifying any member of the Board and preventing him from voting.

(5) The Board being aggrieved by the interim order dated 28.09.2004 preferred a Letters Patent Appeal before the Division Bench of the Madras High Court. Before the said Division Bench an undertaking was given by the learned counsel on behalf of the Board that the Board would not disqualify any candidate for the post of President on the ground of residence. Pursuant to such an undertaking, a statement was made by the counsel appearing on behalf of the respondent Netaji Cricket Club that the apprehension of the plaintiff which formed the basis for moving the Court by filing the Suit had vanished in the air and the partition Suit itself was dismissed as withdrawn.

(6) The Annual General Meeting was convened on the next date and although no person was prevented from contesting the election for the post of President of the Board on the ground of residence, the Maharashtra Cricket Association was not permitted to take part in the Election. The Maharashtra Cricket Association was being represented through Mr. Agashe who otherwise held casting vote. The number of votes being cast on both the sides were equal and the Annual General Meeting was adjourned for the next date.

(7) After the Annual General Meeting was held a review petition was filed by the Netaji Cricket Club contending that purported undertaking given by the learned Senior Counsel appearing on behalf of the Board was not adhered to and furthermore no Appeal had been filed by the Board against the order of injunction passed by the learned Single Judge in Original Suit which was filed by the Cricket Club.

(8) The said review application was admitted by the Division Bench observing that the undertaking given by the learned Senior Counsel for the Board had not been given effect to its letter and spirit. An interim order was also passed against which the Board came before the Supreme Court by Special Leave. The Court was considering the meaning of the undertaking given by the learned Senior Counsel appearing on behalf of the Board.

(9) It is apparent from a perusal of the judgment cited by the learned counsel for the review petitioner that the same is inapplicable to the facts in this case. It is a settled law that an observation made by the Court should always be considered in the context in which it is made and the facts before the Court should not be ignored altogether. The Supreme Court was not considering the scope of the review petition before the High Court with respect to such arguments as are being raised by the review applicant before this Court.

(10) Learned counsel for the petitioner has also placed reliance upon the Paragraph Nos.7 to 11 of the judgment rendered by the Hon'ble Supreme Court in the case of Inderchand Jain (dead) through LRs. Vs. Motilal (Dead) through LRs. reported in (2009) 14 SCC 663. The Court had observed that Section 114 of the CPC provides for a substantive power of review by a Civil Court and although it does not prescribe any limitation on the power of the Court for such, but such limitations have been provided for in Order 47 of the Code, Rule 1. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. The Court observed that the power of review can also be exercised by the Court in the event discovery of new and important matter for evidence which takes place despite exercise of due diligence earlier by the applicant or could not be produced by him at the time when the order was made. The Court further observed that a Review Court does not sit in Appeal over its own order. A rehearing of the matter on fresh evidence cannot take place. But an application for review would lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.

(11) The Court observed further referring to Lily Thomas V. Union of India reported in (2000) 6 SCC 224 that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of such power.

(12) Mr. Mohd. Arif Khan, learned Senior Advocate assisted by Mr. Mohd. Aslam Khan has placed reliance upon the judgment rendered by the Division Bench of this Court in Review Petition No. 288 of 2007 (Om Prakash and Others Vs. State of U.P. & Others) wherein the Division Bench observed on the basis of observations made by the Supreme Court in AIR 1964 SC 1372 Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, that review is by no means an Appeal in disguise whereby an erroneous decision is reheard and corrected, but lies for patent error. The Court also placed reliance upon Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma reported in 1979 (4) SCC 389, where the Supreme Court observed 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. 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 to correct all manner of errors committed by the Subordinate Court."

(13) The Division Bench also placed reliance upon the case of Meera Bhanja Vs. Nirmala Kumari Choudhary reported in AIR 1995 SC 455 and Parsion Devi and Others Vs. Sumitri Devi and Others reported in 1997 (8) SCC 715 and Rajendra Kumar Vs. Rambai, reported in AIR 2003 C 2095, as also several other judgments in the case of Kamlesh Verma Vs. Mayawati and Others reported in 2013 (8) SCC 320 and Lily Thomas Vs. Union of India AIR 2000 SC 1650 and another Inderchand Jain (dead) through LRs. Vs. Motilal (Dead) through LRs. reported in (2009) 14 SCC 663, as also AIR 1954 SC 526 Moran Mar Basselios Catholicos Vs. Most Rev. mar Poulose Athanasius & Ors. and Union of India Vs. Sandur Manganese & Iron Ores Ltd. & Ors. reported in 2013 (8) SCC 337.

(14) The review applications are rejected. No order as to costs.

Order Date :- 17.3.2021

PAL