Jagdish Prasad vs State Of U.P. And Others
2023 Latest Caselaw 26730 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:188715
 
Reserved
 
Court No. - 5
 

 
Case :- WRIT - C No. - 17283 of 1993
 

 
Petitioner :- Jagdish Prasad
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Chandan Singh,Nishith Yadav
 
Counsel for Respondent :- SC
 

 
HON'BLE PIYUSH AGRAWAL, J. 

1. Heard Mr. C.B. Yadav, learned Senior Advocate assisted by Mr. Chandan Singh and Mr. Nishith Yadav for the petitioner and learned Standing Counsel for respondents.

2. By means of this writ petition, the petitioner is assailing the order dated 27.2.1993 passed by Ist Additional Sessions Judge, Pipri, Distt. Sonbhadra.

3. Brief facts of the case are that petitioner is stated to be in possession over Gata No. 940 Ka, area 1 Bigha since long but the said plot has been notified by the State Government under Section 4 of the Indian Forest Act to constitute a reserve forest area to which the petitioner has submitted an objection against said notification which was decided on 24.8.1990 holding that the petitioner was in possession over the land in question and it was directed that the land in question be de-notified from the reserve forest land. Aggrieved by the said order, the State Government has preferred an appeal before the Additional Sessions Judge, Sonbhadra who by the order dated 14.3.1991 confirmed the order passed by Forest Settlement Officer. The said order was not challenged by the State before any higher authority but a review application was preferred for reviewing the order dated 14.3.1991. On the said application, the impugned order has been passed reversing the earlier order and holding that the petitioner was not in possession over the land in question. Hence the present petition.

4. Learned Senior counsel appearing for the petitioner has submitted that there were two orders in favour of the petitioner but instead of challenging the said orders before the higher authority, a review application was filed along with new documents in which de novo proceeding has been initiated which is not permissible under the law. He submitted that scope of review is very limited. The mistake apparent on the face of record can be corrected or rectified but no de novo proceedings can be made in the garb of review.

5. In support of his claim, learned counsel for the petitioner has relied upon the judgement of this Court in Raj Kumar Singh Bhadauria Vs. Satya Mohan Pandey and another, 2021 (1) ADJ 269 (DB), Vinod Kumar Vs. State of U.P. and others, 2022 (11) ADJ 25 (DB) as well as Supreme Court in Pancham Lal Pandey Vs. Neeraj Kumar Mishra, 2023 (4) ADJ 415 (SC). He prays for allowing the writ petition.

6. Per contra, learned Standing Counsel has supported the impugned order and submitted that relevant fact available on record, was not considered in earlier proceeding, therefore, the review was justified. He submitted that in the review application specific points were raised and khatauni of relevant fasli year was on record but the same could not be brought before the authority, therefore, the impugned order is justified. He prays for dismissal of this writ petition.

7. The Court has perused the records.

8. The record reveals that two orders have been passed on 24.8.1990 and 14.3.1991 confirming that the petitioner was in possession and land in question is not useful for the purpose of forest. The records further reveals that since the petitioner was in possession over the land in question since 1382 Fasli, therefore, in view of Section 131 A of UP Z.A. & L.R. Act the petitioner has got bhumidhar right over the land in question. The appellate authority has also confirmed the order on 14.3.1991 however the State choose to file review application where de novo proceedings have been initiated, which is not permissible in accordance with law. Only mistake apparent on the face of record can be rectified in the review application. It is nobody's case that State has challenged the order dated 14.3.1991 before any higher authority but respondent in its wisdom chose not to challenge the order within time frame prescribed under the law.

9. This Court in the case of Raj Kumar Singh Bhadauria (supra) has held as under :

"3. Having heard the learned counsel for the petitioner (review) and gone through the grounds taken in the Review Application, we find that virtually there is an attempt to re-argue the matter which is not permissible in a Review Application. An application for review cannot be treated to be an opportunity to argue the case on merits afresh. In the garb of a review application reargument on merits of the case cannot be allowed. We are even fortified in our view by the following authoritative pronouncements.

4. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh AIR 1964 SC 1372 the Court said:

"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

5. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4) SCC 389 the Court said:

"... 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."

6. Again, in Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455 while quoting with approval the above passage from Abhiram Taleshwar Sharma Vs. Abhiram Pishak Shartn (supra), the Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC."

10. This Court in the case of Vinod Kumar (supra) has held as under :

6. In Kamlesh Verma vs. Mayawati and Others, (2013) 8 SCC 320, the Hon'ble Apex Court in paragraphs 17 to 20 has held as under:

"17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence 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. This Court in Kerala SEB v. Hitech Electrothermics & Hydropower Ltd. (2005) 6 SCC 651 held as under: (SCC p. 656, para 10)

"10. ... 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."

18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. (2006) 5 SCC 501, held as under: (SCC pp. 504-505, paras 11-12)

"11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of ''second innings' which is impermissible and unwarranted and cannot be granted."

19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.

Summary of the principles

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1 When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki (1921-22) 49 IA 144 , (1922) 16 LW 37 , AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526 , (1955) 1 SCR 520 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337 , JT (2013) 8 SC 275

20.2 When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

11. Hon'ble Supreme Court in the case of Pancham Lal Pandey (supra) has held as under :

"15. The provision of review is not to scrutinize the correctness of the decision rendered rather to correct the error, if any, which is visible on the face of the order / record without going into as to whether there is a possibility of another opinion different from the one expressed."

12. In view of the law laid down by the Apex Court as well as by this Court, the impugned order cannot be sustained in the eyes of law.

13. In the results, the writ petition succeeds and is allowed with all its consequential benefits. The impugned order dated 27.2.1993 is hereby set aside.

Order Date :-    3.10.2023
 
Rahul Dwivedi/-