Bombay High Court
Mangrulpir Education Society, ... vs National Commission For Minority ... on 26 August, 2024
Bench: Avinash G. Gharote, Mukulika Shrikant Jawalkar
2024:BHC-NAG:9613-DB
1 2.CAO.718-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL APPLICATION (CAO) NO. 718 OF 2018
IN
MISC. CIVIL APPLICATION ST. NO. 18425 OF 2017
IN
WRIT PETITION NO. 6662 OF 2015(D)
( Mangrulpir Education Society, Mangrulpir, District Washim
Vs.
National Commission for Minority Educational Institution, Govt. of
India & Ors. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. S.D. Chande, Advocate for the Applicant.
Ms. Tajwar Khan, AGP for the Non-applicant/State.
Mr. Amol Deshpande, Advocate for the Non-applicant No.5.
CORAM: AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATED : 26th AUGUST, 2024
Heard.
2. The application seeks review of the order dated
17.01.2017 passed in Writ Petition No.6662/2015, which
order has been confirmed by the Hon'ble Apex Court on
account of dismissal of Special Leave Petition bearing SLP (C)
No.10118/2017 on 10.04.2017.
3. It is contended by Mr. Chande, learned Counsel
for the Applicant, that the order dated 17.01.2017, needs to
be reviewed on account of fraud having being practiced in the
matter of obtaining the same. It is contended, that since in
similar circumstances, Urdu Primary School, Giroli,
2 2.CAO.718-2018.odt
Tah. Manora, District Washim was granted permission to start
a Minority Education Institution, the Applicant being similarly
situated, the non-disclosure of the aforesaid permission dated
03.11.2015 (page 23) would constitute a fraud upon the
Court at the hands of the Non-applicants/Authorities, on
account of which the order dated 17.01.2017, is liable to be
reviewed.
4. What is necessary to note is that the order dated
17.01.2017 merely records that though the National
Commission for Minority Educational Institutions had by the
order dated 15.05.2012 directed the State Government to
reconsider the proposal of the Petitioner for establishment of
the Urdu Primary School, however since the said order was
passed in 2012, there was a change in the policy in view of
coming into force of the Maharashtra Self Finance Schools
(Establishment & Regulation) Act, 2012, Ms. Khan, learned
APP for the Non-applicant/State, had made a statement that
if the Applicant/Petitioner was desirous of starting an Urdu
Primary School, it can apply under the provisions of the Act
of 2012 and upon an application being made, the
Government would consider the claim of the Applicant on
merits. In view of this, the Court has held that it would not be
proper to direct the State Government to implement the
order of the Commission.
5. The position of review, is indicated by what has
been held in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari
Choudhury (1995) 1 SCC 170 is as under:
"8. It is well settled that the review proceedings are not
by way of an appeal and have to be strictly confined to
3 2.CAO.718-2018.odt
the scope and ambit of Order 47, Rule 1, CPC. In
connection with the limitation of the powers of the court
under Order 47, Rule 1, while dealing with similar
jurisdiction available to the High Court while seeking to
review the orders under Article 226 of the Constitution
of India, this Court, in the case of Aribam Tuleshwar
Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389 :
AIR 1979 SC 1047], speaking through Chinnappa Reddy,
J., has made the following pertinent observations: (SCC
p. 390, para 3)
"It is true as observed by this Court in Shivdeo Singh
v. State of Punjab [AIR 1963 SC 1909], there is
nothing in Article 226 of the Constitution to preclude
the 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 power which may enable an appellate court
to correct all manner of errors committed by the
subordinate court."
9. Now it is also to be kept in view that in the
impugned judgment, the Division Bench of the High
Court has clearly observed that they were entertaining
the review petition only on the ground of error apparent
on the face of the record and not on any other ground.
So far as that aspect is concerned, it has to be kept in
view that an error apparent on the face of record must
be such an error which must strike one on mere looking
at the record and would not require any long-drawn
process of reasoning on points where there may
conceivably be two opinions. We may usefully refer to
the observations of this Court in the case of
Satyanarayan Laxminarayan Hegde v. Mallikarjun
4 2.CAO.718-2018.odt
Bhavanappa Tirumale [AIR 1960 SC 137 : (1960) 1 SCR
890] wherein, K.C. Das Gupta, J., speaking for the Court
has made the following observations in connection with
an error apparent on the face of the record:
"An error which has to be established by a long-
drawn process of reasoning on points where there
may conceivably be two opinions can hardly be said
to be an error apparent on the face of the record.
Where an alleged error is far from self-evident and if
it can be established, it has to be established, by
lengthy and complicated arguments, such an error
cannot be cured by a writ of certiorari according to
the rule governing the powers of the superior court
to issue such a writ."
6. In Haridas Das Vs. Usha Rani Banik (Smt) and
others, (2006) 4 SCC 78, it has been held as under :
"13. In order to appreciate the scope of a review, Section 114
CPC has to be read, but this section does not even adumbrate
the ambit of interference expected of the court since it merely
states that it "may make such order thereon as it thinks fit".
The parameters are prescribed in Order 47 CPC and for the
purposes of this lis, permit the defendant to press for a
rehearing "on account of some mistake or error apparent on
the face of the records or for any other sufficient reason". The
former part of the rule deals with a situation attributable to
the applicant, and the latter to a jural action which is
manifestly incorrect or on which two conclusions are not
possible. Neither of them postulate a rehearing of the dispute
because a party had not highlighted all the aspects of the case
or could perhaps have argued them more forcefully and/or
cited binding precedents to the court and thereby enjoyed a
favourable verdict. This is amply evident from the Explanation
to Rule 1 of Order 47 which states that 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. Where
the order in question is appealable the aggrieved party has
adequate and efficacious remedy and the court should
exercise the power to review its order with the greatest
circumspection. This Court in Thungabhadra Industries Ltd. v.
Govt. of A.P. [(1964) 5 SCR 174 : AIR 1964 SC 1372] held as
follows: (SCR p. 186)
5 2.CAO.718-2018.odt
"[T]here is a distinction which is real, though it might not
always be capable of exposition, between a mere erroneous
decision and a decision which could be characterised as
vitiated by 'error apparent'. A review is by no means an appeal
in disguise whereby an erroneous decision is reheard and
corrected, but lies only for patent error. ... where without any
elaborate argument one could point to the error and say here
is a substantial point of law which stares one in the face, and
there could reasonably be no two opinions entertained about
it, a clear case of error apparent on the face of the record
would be made out."
15. A perusal of Order 47 Rule 1 shows that review of a
judgment or an order could be sought: (a) from the discovery
of new and important matters or evidence which after the
exercise of due diligence was not within the knowledge of the
applicant; (b) such important matter or evidence could not be
produced by the applicant at the time when the decree was
passed or order made; and (c) on account of some mistake or
error apparent on the face of the record or any other sufficient
reason."
7. In Union of India & Ors. Vs. Col. Ivan Singh S/o
Late Shri Kanwar Shamsher Singh, Misc. Civil Application
(Review Petition) No.330/2021, decided on 14.07.2022, it
has been held as under:
"2. Thus, from the above, the following can be culled
out:
(a) 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 of the Code of Civil Procedure.
(b) The power of review can be exercised :
(i) 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;
(ii) where some mistake or error apparent on the
face of the record is found, which mistake or error
has to be self evident and must be such an error
which must strike one on mere looking at the
record. That is to say where without any elaborate
argument one could point to the error and say here
6 2.CAO.718-2018.odt
is a substantial point of law which stares one in the
face, and there could reasonably be no two opinions
entertained about it. An error which has to be
established by a long-drawn process of reasoning on
points where there may conceivably be two opinions
can hardly be said to be an error apparent on the
face of the record; and
(iii) on any analogous ground.
But :
(c) It may not be exercised on the ground that the
decision was erroneous on merits as a review is not an
appeal in disguise whereby an erroneous decision is
reheard and corrected, but lies only for patent error.
That would be the province of a court of appeal. A
power of review is not to be confused with appellate
power which may enable an appellate court to correct all
manner of errors committed by the subordinate court.
(d) It does not postulate a rehearing of the dispute
because a party had not highlighted all the aspects of the
case or could perhaps have argued them more forcefully
and/or cited binding precedents to the court and
thereby enjoyed a favourable verdict.
(e) 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.
(f) Where the order in question is appealable the
aggrieved party has adequate and efficacious remedy
and the court should exercise the power to review its
order with the greatest circumspection.
It would thus be apparent that unless a plea seeking
review falls within the above parameters, a review shall
not lie."
8. Though it is contended, that the decision dated
03.11.2015 ought to have been placed by the Non-applicants
on record and acted upon it, we are not impressed with the
contention for the reason that it was equally open for the
Applicant to place it on record. That apart, until and unless it
was found that the position extant in the decision dated
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03.11.2015 was identical to one extant in Writ Petition
No.6662/2015, no plea for review could have been raised.
9. Mr. Chande, learned Counsel for the Applicant,
has been unable to demonstrate the above position.
10. It is the settled position of law, that the review
jurisdiction cannot be permitted to be converted into an
appellate jurisdiction upon the earlier decision rendered in
the same matter, in view of which, we do not found any
ground of review being made out.
11. The Civil Application is rejected. No costs.
12. Pending application/s, if any, shall stand disposed
of accordingly.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
SD. Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 28/08/2024 17:27:01
