Nanduri Rajyalakshmi vs The State Of Ap
2023 Latest Caselaw 296 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
                      I.A.No.1 of 2022
                             IN
              WRIT PETITION No.25765 OF 2020
ORDER:

The present interlocutory application is filed under Order

47 Rule 1 read with Section 114 of the Code of Civil Procedure

Code, 1908, seeking to review the order dated 07.04.2022

passed in W.P.No.25765 of 2020.

2. The Writ Petition is filed under Article 226 of the

Constitution of India for the following reliefs:-

            "(A)   to   declare    the   inaction   of   the   7th
      respondent        in   not    taking    action      against
      unauthorized       constructions    made      by   the   8th

Respondent in premises bearing No.25-4-1, NSC Bose Road, Tanuku, contrary to the building plan dated 09.12.2010 and in violation of the provisions of A.P.Municipalities Act, as illegal, arbitrary and unjust and to direct the 7th Respondent to remove the unauthorized constructions in the premises bearing Door No.25-4-1, NSC Bose Road, Tanuku. And (B) to declare the in action of the Respondents 1 to 7 in not taking steps to prevent unauthorized

conversion of premises bearing No.25-4-1, NSC Bose Road, Tanuku into a hospital without complying with the legal requirements under the Clinical Establishment (Registration and Regulation) Act, 2010 and the Clinical Establishment (Central Government) Rules, 2012 as illegal, arbitrary and unjust and direct the Respondents not to grant any permission for conversion of unauthorized premises bearing No.25-4-1, NSC Bose Road, Tanuku into a hospital, and pass such other order or orders as this Hon'ble Court may deems fit and proper, as otherwise, the Petitioner will suffer irreparable loss and injury."

3. This Court disposed of the present Writ Petition vide

order dated 07.04.2022, directing the 7th respondent-

Municipality to proceed against the unofficial 8th respondent in

accordance with law. Seeking review of the above said order, the

present interlocutory application is filed on the ground that the

petitioner has claimed two prayers in the Writ Petition, but this

Court has granted only one relief.

4. Learned counsel for the unofficial respondent No.8

would submit that the review application is not maintainable

and prayed to decide the said issue.

5. Learned counsel for the review petitioner has relied

on the judgment of the Hon'ble Apex Court in the case of Board

of Control for Cricket in India and another v. Netaji Cricket Club

and others1, wherein at paragraph No.88, it is observed that the

substantive provision of law does not prescribe any limitation on

the power of the court except those which are expressly provided

in Section 114 of the Code in terms whereof it is empowered to

make such order as it thinks fit. It also held at paragraph

Nos.89, 90, 91 and 92 of the said judgment as follows:

"89. Order 47 Rule 1 of the Code provides for filing an application for review and such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

(2005) 4 Supreme Court Cases 741

90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "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".

91. It is true that in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius this Court made observations as regards limitations in the application of review of its order stating: (SCR p.529) "Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of

review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant‟s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It is has been held by the Judicial Committee that the words „any other sufficient reason‟ must mean „a reason sufficient on grounds, at least analogous to those specified in the rule‟. But the said rule is not universal.

92. Yet again in Lily Thomas this Court has laid down the law in the following terms:

"52. The dictionary meaning of the word „review‟ is „the act of looking, offer something again with a view to correction or improvement‟. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v.

Pradyumansinghji Arjunsinghji, held that the power of review is not an inherent power. It

must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error."

(emphasis supplied)

6. Learned counsel for the review petitioner relied on

the judgment of the Hon'ble Apex Court in the case of

S.Madhusudhan Reddy v. V.Narayana Reddy and others 2. The

said judgment is not applicable to the present case. In fact, it is

an adverse to the review petitioner herein. In the said judgment,

the Hon'ble Apex Court has relied on the judgment in the case of

2022 SCC Online SC 1034

State of West Bengal and others v. Kamal Sengupta and another 3,

wherein in the said judgment, the term 'mistake or error

apparent' has been discussed in the following words:

"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 1 CPC 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."

7. It is the case of the review petitioner that in the Writ

Petition, the petitioner has sought two reliefs and the first prayer

is that to declare the in action of the 7th respondent in not taking

action against unauthorized constructions made by the 8 th

(2005) 6 SCC 651

respondent/unofficial respondent herein and the said issue was

answered by this Court in the Writ Petition and the second

prayer is that to declare the in action of the respondents 1 to 7

in not taking steps to prevent unauthorized conversion of

premises bearing No.25-4-1 into a hospital without complying

with the legal requirements under the Clinical Establishment

(Registration and Regulation) Act 2010 and the Clinical

Establishment (Central Government) Rules, 2012, are as illegal,

arbitrary and unjust and to direct the respondents not to grant

any permission for conversion of unauthorized premises bearing

No.25-4-1, for which, the present review application is filed.

8. It is settled law that the power of review is not an

inherent power, it must be conferred by law either by specifically

or by necessary implication and it can be exercised only when

there is an error or mistake apparent on the face of record or on

discovery of new and important matter or evidence. As per the

judgment of the Hon'ble Apex Court in the case of Kamal

Sengupta‟s case (3 supra), mere discovery of new or important

matter or evidence is not sufficient ground for review ex debito

justiciae and as per the caption judgment, 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 and in any case, while exercising power of

review, the Court cannot sit in appeal over its

judgment/decision.

9. The second prayer in the Writ Petition is that to

declare the inaction on the part of the respondents 1 to 7 in not

taking steps to prevent unauthorized conversion of the premises.

The said contention is in the control and decision of the

authorities under the Act and the Rules framed thereunder. For

which, the writ petitioner/review petitioner cannot invoke the

jurisdiction of Article 226 of the Constitution of India. The High

Court cannot exercise its extraordinary jurisdiction under Article

226 of the Constitution to issue prerogative writ so as not to

sanction conversion of premises for particular purpose which is

within the realm of the authorities under the Clinical

Establishment (Registration and Regulation) Act 2010 and the

Clinical Establishment (Central Government) Rules, 2012.

10. It is not the case of the petitioner that the official

respondents are incompetent for issuance of any conversion, so

as to issue prohibitory writ. This Court can interfere only when

the authorities are acted contrary to the Act or the Rules or in

the decision making process and it is trite law and known law

that when any relief is not granted, it is deemed to be rejected.

Hence, I found no reasons to interfere with the order dated

07.04.2022 passed in W.P.No.25765 of 2020, as there is no error

apparent on the face of the record and as no new material was

brought to the notice of this Court to interfere with the said

order.

11. Accordingly, the review application is dismissed.

There shall be no order as to costs.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 23.01.2023 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

I.A.No.1 of 2022 IN WRIT PETITION No.25765 OF 2020

Date: 23.01.2023

siva