Bombay High Court
Santacruz Contractors And Builders ... vs Thane Municipal Corporation And Ors on 13 June, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:24000-DB
1 REV.PETITION 70.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: CIVIL APPELLATE JURISDICTION :
REVIEW PETITION NO. 70 OF 2023
IN
WRIT PETITION NO. 6254 OF 2019
1] Santacruz Contractors and Builders Pvt. Ltd.
A Private Limited Company registered under the
Companies Act, 1956 and having its registered
office at 501, Golden Bungalow, 26, Juhu Road,
Santacruz (West), Mumbai 400 054
2] Sanjay K. Patel of Mumbai Indian Inhabitant,
having his office at 501, Golden Bungalow,
26, Juhu Road, Santacruz (West), Mumbai - 400 054 ....Petitioners
V/s
1. Thane Municipal Corporation of City of Thane,
having its office at Mahapalika Bhavan,
Chandanwadi, Panchapakhadi, Thane-400 062.
2. Municipal Commissioner,
Thane Municipal Corporation
having its office at Mahapalika Bhavan,
Chandanwadi, Panchapakhadi,
Thane - 400 062.
3. The State of Maharashtra,
through Secretary, Urban & Town Planning
Department, Government Pleader,
Appellate Side, High Court,
Mumbai - 400 032. .....Respondents
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Mr. Vineet Naik, Senior Advocate a/w Mr. Aditya Shiralkar, Mr. Vivek
Shiralkar, Ms. Yashoda Desai (Through V.C.) I/b Shiralkar & Co. for
petitioners.
Mr. R. S. Apte, Senior Advocate a/w Mr. Mandar Limaye i/b Mr. Ajit Ram
Pitale (through V.C.) for respondent nos.1 and 2.
Ms. Tejas Kapre, A.G.P. for respondent no.3-State.
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2 REV.PETITION 70.23.odt
CORAM : A. S. GADKARI and
M. W. CHANDWANI, JJ.
Date of reserving the Judgment : 16th April, 2025
Date of pronouncement of Judgment : 13th June, 2025
JUDGMENT (Per M.W.Chandwani, J.)
1) By this Review Petition, the original petitioners seek
review of the Judgment and Order dated 12.04.2023 on the ground
that, there are errors apparent on the face of record.
2) Brief facts of the case are necessary to decide the Review
Petition:-
2.1) Petitioner no.1 - a company, through its Director
(petitioner no.2) is the owner of the land admeasuring 16,482.42 sq.
meters, bearing survey no. 25/1B, 28/2B and 29/1, situated at village
Kolshet, Tal. & Dist. Thane. Out of the said land, the area
admeasuring 15,040 sq.meters was affected by the D.P. road
reservation of respondent no.1 for the City of Mumbai. Therefore, the
petitioners submitted their proposal to respondent no.1 for grant of
TDR in lieu of surrender of their land which was affected by the
reservation. In the year 2013, a declaration and possession receipt
was executed in favour of respondent no.1. However, physical
3 REV.PETITION 70.23.odt
possession was lying with the petitioners. Since, the land was
affected by the Coastal Regulation Zone (CRZ), in the absence of
permission from the Maharashtra Coastal Zone Management
Authority (for short 'MCZMA') to construct the road, the physical
possession of the land could not be taken and TDR was not granted by
respondent no.1 in favour of the petitioners.
2.2) The petitioners filed Writ Petition No. 8012/2014 against
respondent no.1 seeking TDR in lieu of surrender which came to be
disposed of on 09.02.2016, with a direction to respondent no.1 to
issue TDR/DRC within two months from the date of permission
granted by MCZMA to construct the road. Thereafter, the petitioners
filed Contempt Petition No. 193/2017 against respondent no.1 for
non-compliance of the direction issued in W.P. No.8012/2014.
Meanwhile, New Regulations for grant of TDR came into force by
Notification dated 29.01.2016. In the contempt petition, it was
informed that respondent no.1 has sanctioned TDR/DRC in
accordance with the New Regulations and directives of the State of
Maharashtra. Therefore, the contempt petition came to be disposed
of.
2.3) However, the petitioners were not satisfied with the grant
of TDR/DRC as per the New Regulations that became applicable from
4 REV.PETITION 70.23.odt
29.01.2016, and therefore, petitioners filed Writ Petition No.
6254/2019 for quashing of the communication dated 11.05.2017
granting TDR as per New Regulations dated 29.01.2016. This Court
by its Judgment and Order under review, dismissed the petition
holding that the physical possession of the land was not taken before
coming into force of the New Regulations dated 29.01.2016 and the
case of the petitioners for grant of TDR will be governed by the New
Regulations dated 29.01.2016.
2.4) In wake of the above position, the applicants seek review
of the Judgment and Order dated 12.04.2023 passed in W.P. No.
6254/2019, stating that there is an error apparent on the face of
record and for not considering the correct position of law.
3) Mr. Vineet Naik, learned Senior counsel appearing on
behalf of the petitioners vehemently submitted that, the petitioners
have already executed the declaration and even executed the
possession receipt of the land affected by the reservation. Even
mutation in the name of respondent no.1 has been carried out in
respect of the said land. All these aspects signify the surrender of
land affected by the reservation by the petitioners to respondent no.1.
These formalities were duly completed in the year 2013. The
entitlement of TDR is crystalized on the date of surrender of the
5 REV.PETITION 70.23.odt
affected land by the petitioners to respondent no.1 in the year 2013.
At the relevant time, the old regulations were in vogue. The
subsequent changes which came into force on 29.01.2016 will not
affect the entitlement of the petitioners to get TDR irrespective of the
fact that physical possession of the affected land was not taken before
the date on which the New Regulations came into force. To buttress
his submission that the date of surrender is the relevant date for
deciding entitlement of TDR, the learned Senior counsel seeks to rely
on the decision of this Court in Apurva Natvar Parikh and Co. Private
Limited .v. State of Maharashtra and others1, with connected writ
petitions. According to him, this legal position has been missed in the
Judgment under review.
3.1) Mr. Naik would submit that this Court, in earlier Writ
Petition No. 8012/2014 had directed respondent no.1 to secure the
permission for construction of the road from MCZMA and thereafter,
to grant TDR/DRC in favour of the petitioners in terms of their
proposal dated 09.09.2010. The petitioners in the said proposal
sought 100% TDR under the old regulations. The directions were
binding on respondent no.1 - Thane Municipal Corporation to grant
100% TDR in wake of the proposal submitted by the petitioners, but
1 2018 SCC Online Bom 6436
6 REV.PETITION 70.23.odt
despite the directions of this Court, respondent no.1 chose to grant
TDR as per the New Regulations dated 29.01.2016 which was never
sought by the petitioners in their proposal. According to him, the
Judgment and Order under review inadvertently omitted this crucial
aspect of the direction issued in W.P. No. 8012/2014.
3.2) Learned Senior counsel would further submit that, this
Court in the Judgment and Order dated 09.02.2016 passed in W.P.
No. 8012/2014, has merely considered the controversy regarding
taking the physical possession. This observation had nothing to do
with the entitlement of the petitioners to TDR and was irrelevant for
the purpose of determining the entitlement of the petitioners but the
Judgment under review lost sight of this fact. The formality of taking
physical possession was not a condition precedent for grant of TDR,
nor did it impact the petitioners' entitlement. The directions in the
Judgment in W.P. No. 8012/2014 were in respect of issuance of TDR
in terms of the proposal dated 09.09.2010, which was only subject to
clarification from MCZMA to construct the road.
3.3) Lastly, Mr. Naik vehemently submitted that, the direction
in W.P. No. 8012/2014 to respondent no.1 was to complete all
procedural compliances within two months from the date of issuance
of the communication granting permission by the MCZMA to
7 REV.PETITION 70.23.odt
respondent no.1. The permission was granted by the MCZMA to
construct the road in the month of October,2016 and Respondent
no.1 ought to have completed the formalities of taking formal
possession by December,2016. Even then, as per the New
Regulations, the respondents were entitled to utilize the TDR without
restriction for a year i.e. until 02.05.2017 in wake of the notification
dated 29.01.2016 read with the addendum dated 02.05.2016. The
sum and substance of the arguments of the learned Senior counsel for
the petitioners is that, even the New Regulations with modified/
addendum notification dated 02.05.2016, provided utilization of TDR
without restriction in a particular zone. Just because of non-
compliance of the order within the time, the petitioners are unable to
use the TDR even as per the New Regulations without restriction,
which was available to them till 02.05.2017. It is also submitted that
the alternate relief of not concluding the contract has also not been
considered. Therefore, all mistakes and non-appreciation of facts are
required to be considered and accordingly, the Judgment and Order
dated 12.04.2023 may be corrected by allowing the review petition.
4) Conversely, Mr. R. S. Apte, learned Senior counsel
appearing for respondent no.1 vehemently submitted that there is no
ground available for the petitioners for review of the Judgment and
8 REV.PETITION 70.23.odt
Order passed in Writ Petition No. 6254/2019. There is no error
apparent on the face of record. Non-appreciation of a particular fact
in proper perspective cannot be a ground for review. Even if there is
an error which requires deliberation and lengthy argument, that itself
cannot be termed as an error apparant on the face of record. The
grounds which are raised in the review petition can be good grounds
for appeal but cannot be treated as an error apparent on the face of
record. According to him, the Judgment and Order of which review is
sought, has considered all the aspects of the case and if the petitioners
are aggrieved by the same, they can file an appeal before the
appropriate Court. This Court has rightly taken note of the
observations made by the Division Bench of this Court in W.P. No.
8012/2014 regarding physical possession and possession receipt of
the land affected by the reservation. The sum and substance of the
arguments of the learned Senior counsel for respondent no.1 is that
no ground for review is made out. Hence, he sought rejection of the
review petition.
5) We may remind ourselves of the self-imposed limitations
on the Court while entertaining review petitions. Review cannot be
sought in order to achieve re-hearing of the matter like an appeal. The
Hon'ble Supreme Court has time and again expressed that, review
9 REV.PETITION 70.23.odt
cannot be termed as an appeal in disguise. If an error is on the face
of record, then it could be entertained in review jurisdiction but the
same Court cannot sit in appeal and re-appreciate the facts. An
incorrect decision or wrong application of law cannot be a ground for
review.
6) We also deem it appropriate to reproduce certain
observations of the Hon'ble Supreme Court in case of S.Madhusudhan
Reddy .vs. V.Narayana Reddy and another2, which has dealt in
extenso with the settled position of law pertaining to review
jurisdiction, which read as under :
"20. A glance at the aforesaid provisions makes it clear that a review
application would be maintainable on -
(i) discovery of new and important matters or evidence which,
after exercise of due diligence, were not within the knowledge of the
applicant or could not be produced by him when the decree was
passed or the order made;
(ii) on account of some mistake or error apparent on the face
of the record; or
(iii) for any other sufficient reason.
21. In Avatar Singh Sekhon v. Union of India and Others [1980
Supp SCC 562], this Court observed that a review of an earlier order
cannot be done unless the court is satisfied that the material error
which is manifest on the face of the order, would result in
miscarriage of justice or undermine its soundness. The observations
made are as under: (SCC p. 566, para 12)
"12. A review is not a routine procedure. Here we resolved to
hear Shri Kapil at length to remove any feeling that the party
has been hurt without being heard. But we cannot review our
earlier order unless satisfied that material error, manifest on
2 (2022) 17 SCC 255
10 REV.PETITION 70.23.odt
the face of the order, undermines its soundness or results in
miscarriage of justice. In Sow Chandra Kante and Another v.
Sheikh Habib [(1975) 1 SCC 674] this Court observed : (SCC
p. 675, para 1)
'1. .......A review of a judgment is a serious step and reluctant
resort to it is proper only where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial
fallibility. ... The present stage is not a virgin ground but
review of an earlier order which has the normal feature of
finality.' " (emphasis added)
22. In Parsion Devi and Others v. Sumitri Devi and Others [(1997) 8
SCC 715], stating that an error that is not self- evident and the one
thathas to be detected by the process of reasoning, cannot be
described as an error apparent on the face of the record for the Court
to exercise the powers of review, this Court held as under: (SCC pp.
718-19, paras 7-9)
"7. It is well settled that review proceedings have to be
strictly confined to the ambit and scope of Order 47 Rule 1
CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. [1964
SCR (5) 174] this Court opined: (AIR p. 1377, para 11)
'11. What, however, we are now concerned with is
whether the statement in the order of September 1959
that the case did not involve any substantial question of
law is an 'error apparent on the face of the record'. The
fact that on the earlier occasion the Court held on an
identical state of facts that a substantial question of law
arose would not per se be conclusive, for the earlier order
itself might be erroneous. Similarly, even if the statement
was wrong, it would not follow that it was an 'error
apparent on the face of the record', for there 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 characterized 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.'
8. Again, in Meera Bhanja v. Nirmala Kumari
Choudhury [(1995) 1 SCC 170] while quoting with approval
a passage from Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [(1979) 4 SCC 389 ] this Court once again held
that review proceedings are not by way of an appeal and
11 REV.PETITION 70.23.odt
have to be strictly confined to the scope and ambit of Order
47 Rule 1 CPC.
9. Under Order 47 Rule 1 CPC 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 1 CPC. In exercise of this jurisdiction
under Order 47 rule 1 CPC 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'".[emphasis
added]
23. The error referred to under the Rule, must be apparent on the
face of the record and not one which has to be searched out. While
discussing the scope and ambit of Article 137 that empowers the
Supreme Court to review its judgments and in the course of discussing
the contours of review jurisdiction under Order XLVII Rule 1 of the
CPC in Lily Thomas(supra), this Court held as under : (SCC pp.250-
53, paras 54, 56 & 58)
"54. Article 137 empowers this court to review its judgments
subject to the provisions of any law made by Parliament or any
rules made under Article 145 of the Constitution. The Supreme
Court Rules made in exercise of the powers under Article 145 of
the Constitution prescribe that in civil cases, review lies on any
of the grounds specified in Order 47 rule 1 of the Code of Civil
Procedure which provides:
"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,
(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
12 REV.PETITION 70.23.odt
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.'
Under Order XL Rule 1 of the Supreme Court Rules no review lies
except on the ground of error apparent on the face of the record
in criminal cases. Order XL Rule 5 of the Supreme Court Rules
provides that after an application for review has been disposed of
no further application shall be entertained in the same matter.
56. It follows, therefore, 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 power. The review cannot be
treated like an appeal in disguise. The mere possibility of two
views on the subject is not a ground for review. Once a review
petition is dismissed no further petition of review can be
entertained. The rule of law of following the practice of the
binding nature of the larger Benches and not taking different
views by the Benches of coordinated jurisdiction of equal
strength has to be followed and practised. However, this Court
in exercise of its powers under Article 136 or Article 32 of the
Constitution and upon satisfaction that the earlier judgments
have resulted in deprivation of fundamental rights of a citizen or
rights created under any other statute, can take a different view
notwithstanding the earlier judgment.
58. Otherwise also no ground as envisaged under Order XL of the
Supreme Court Rules read with Order 47 of the Code of Civil
Procedure has been pleaded in the review petition or canvassed
before us during the arguments for the purposes of reviewing the
judgment in Sarla Mudgal, President, Kalyani and Others v.
Union of India and Others (1995) 3 SCC 635. It is not the case of
the petitioners that they have discovered any new and important
matter which after the exercise of due diligence was not within
their knowledge or could not be brought to the notice of the
Court at the time of passing of the judgment. All pleas raised
before us were in fact addressed for and on behalf of the
petitioners before the Bench which, after considering those pleas,
passed the judgment in Sarla Mudgal case. We have also not
found any mistake or error apparent on the face of the record
requiring a review. Error contemplated under the rule must be
13 REV.PETITION 70.23.odt
such which is apparent on the face of the record and not an error
which has to be fished out and searched. It must be an error of
inadvertence. No such error has been pointed out by the learned
counsel appearing for the parties seeking review of the judgment.
The only arguments advanced were that the judgment
interpreting Section 494 amounted to violation of some of the
fundamental rights. No other sufficient cause has been shown for
reviewing the judgment. The words "any-other sufficient reason
appearing in Order 47 Rule 1 CPC" must mean "a reason
sufficient on grounds at least analogous to those specified in the
rule" as was held in Chajju Ram v. Neki Ram ( AIR 1922 PC
112) and approved by this Court in Moran Mar Basselios
Catholicos. v. Most Rev. Mar Poulose Athanasius [1955 SCR
520]. Error apparent on the face of the proceedings is an error
which is based on clear ignorance or disregard of the provisions
of law. in T.C. Basappa v. T. Nagappa [1955 SCR 250] this
Court held that such error is an error which is a patent error and
not a mere wrong decision. In Hari Vishnu Kamath v. Syed
Ahmad Ishaque [AIR 1955 SC 233], it was held: (AIR p. 244,
para 23)
"23. ...... It is essential that it should be something more than a
mere error; it must be one which must be manifest on the face
of the record. The real difficulty with reference to this matter,
however, is not so much in the statement of the principle as in
its application to the facts of a particular case. When does an
error, cease to be mere error and become an error apparent on
the face of the record? Learned Counsel on either side were
unable to suggest any clear-cut rule by which the boundary
between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength
of certain observations of Chagla, CJ in - 'Batuk K Vyas v. Surat
Borough Municipality [ILR 1953 Bom 191], that no error could
be said to be apparent on the face of the record if it was not
self-evident and if it required an examination or argument to
establish it. This test might afford a satisfactory basis for
decision in the majority of cases. But there must be cases in
which even this test might break down, because judicial
opinions also differ, and an error that might be considered by
one Judge as self-evident might not be so considered by
another. The fact is that what is an error apparent on the face
of the record cannot be defined precisely or exhaustively, there
being an element of indefiniteness inherent in its very nature,
14 REV.PETITION 70.23.odt
and it must be left to be determined judicially on the facts of
each case.
Therefore, it can safely be held that the petitioners have not made
out any case within the meaning of Article 137 read with Order XL
of the Supreme Court Rules and Order 47 Rule 1 CPC for
reviewing the judgment in Sarla Mudgal case. The petition is
misconceived and bereft of any substance." (emphasis added)
24. It is also settled law that in exercise of review jurisdiction, the
Court cannot reappreciate the evidence to arrive at a different
conclusion even if two views are possible in a matter. In Kerala State
Electricity Board v. Hitech Electrothermics & Hydropower Ltd. and
Others [(2005) 6 SCC 651], this Court observed as follows: (SCC p.
656, para10)
"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. 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."
(emphasis added)
25. Under the garb of filing a review petition, a party cannot be
permitted to repeat old and overruled arguments for reopening the
conclusions arrived at in a judgment. The power of review is not to
be confused with the appellate power which enables the Superior
Court to correct errors committed by a subordinate Court. This point
has been elucidated in Jain Studios Ltd. V. Shin Satellite Public Co.
Ltd. [(2006) 5 SCC 501], where it was held thus: (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
15 REV.PETITION 70.23.odt
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."
(emphasis added)
26. .........
27. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979)4
SCC 389], this Court was examining an order passed by the Judicial
Commissioner who was reviewing an earlier judgment that went in
favour of the appellant, while deciding a review application filed by
the respondents therein who took a ground that the predecessor
Court had overlooked two important documents that showed that
the respondents were in possession of the sites through which the
appellant had sought easementary rights to access his home-stead.
The said appeal was allowed by this Court with the following
observations: (SCC p.390 para 3)
"3 ...It is true as observed by this Court in Shivdeo
Singh and Others v. State of Punjab [(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 pulpable 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
16 REV.PETITION 70.23.odt
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." (emphasis added)
28. .......
29. In the captioned 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".
(emphasis added)
30. 31. ...........
32. In Ram Sahu (Dead) Through LRs and Others v. Vinod Kumar
Rawat and Others, [(2021) 13 SCC 1] citing previous decisions and
expounding on the scope and ambit of Section 114 read with Order
XLVII Rule 1, this Court has observed that Section 114 CPC does not
lay any conditions precedent for exercising the power of review; and
nor does the Section prohibit the Court from exercising its power to
review a decision. However, an order can be reviewed by the Court
only on the grounds prescribed in Order XLVII Rule 1 CPC. The said
power cannot be exercised as an inherent power and nor can
appellate power be exercised in the guise of exercising the power of
review.
17 REV.PETITION 70.23.odt
7) What is culled out from the above-said authority, which
discusses extensively about the scope of review after considering
various decisions is that, unless the Court is satisfied that there is a
manifest or material error, review is not tenable. It must be an error
of inadvertence. An erroneous decision can be no ground to entertain
a review petition since that would come under the scope of appeal. If
a long debate and process of reasoning is required, rehearing is not
permissible under the guise of review. The Court cannot rehear or sit
in appeal on its own decision.
8) This Court while deciding the Judgment under review,
after considering the observations made and the directions given by
the Division Bench of this Court in W.P. No. 8012/2014, noted the
fact that actual physical possession of the land affected by the D.P.
Road reservation was not taken by respondent no.1 before the New
Regulations came into force ; rather, this fact has not been disputed
by the petitioners. The main submission is that, taking physical
possession of the land is immaterial for entitlement towards TDR.
Mr. Naik, learned Senior counsel strenuously argued that, it is the
date of surrender which entitles the claimant to claim TDR for
surrendering his land. The Division Bench of this Court in an earlier
round of litigation i.e. W.P. No. 8012/2014, directed respondent no.1
18 REV.PETITION 70.23.odt
that, all the compliances shall be made by taking actual physical
possession of the said land. This indicates that the entire compliance
of acquisition was to be made by taking possession. Therefore,
irrespective of issuance of possession receipt and compliances of
certain things, actual physical possession was not handed over to
respondent no.1. Who was to be blamed for the delay was not the
issue before this Court.
9) In Apurva Natvar Parikh (supra), relied upon by the
petitioners, all the petitioners therein had handed over physical
possession of the land to the Planning Authority. In that scenario, the
Division Bench of this Court held that the petitioners before it will be
entitled to the TDR prevailing on the date of surrender. Therefore,
this decision will not be helpful to the present applicants/petitioners.
10) So far as the decision of the Division Bench of this Court
in Atul Projects India Pvt. Ltd. .vs. Municipal Corporation of Greater
Mumbai and others3 is concerned, in the said case, the issue of
applicability of a draft notification which was not notified was
considered. Even that does not support the case of the petitioners.
11) Be that as it may, in paragraph 14 of the Judgment
under review, this Court has considered the factual aspect and clearly
3 Writ Petition NO. 217 of 2017 (Pri.Seat - OS), decided on 05.09.2023.
19 REV.PETITION 70.23.odt
expressed that, albeit the possession receipt was issued and mutation
was completed, the actual physical possession was not handed over.
Therefore, the acquisition proceedings in respect of the land of the
petitioners were not completed till 14.03.2017, when directives were
issued by the State Government, much less before 29.01.2016, when
the New Regulations came into force and consequentially held that,
the case of the petitioners will be governed by the New Regulations
issued by way of Notification dated 29.01.2016. The said
adjudication was done after considering the submissions of both the
sides and by giving reasons. Thus, it cannot be reviewed by simply
treating it as an error on the face of record.
12) The grounds raised in the petition for review are that,
this Court failed to appreciate the issue with regard to surrender of
the land and misconstrued and misread the earlier Judgment without
appreciating the directives in Clauses (iv) and (v) of the operative
order in W.P. No. 8012/2014 and the submissions of the learned
counsel for the applicants with regard to non-consideration of the
relevant facts. All these grounds may be good grounds for appeal but
certainly not for Review. Re-appreciation of the facts cannot be done
under the scope of review. Further what is submitted by the
petitioners has to be detected by the process of reasoning. Therefore,
20 REV.PETITION 70.23.odt
it cannot be an error which is self-evident and consequently, an error
apparent on the face of record. The detailed argument canvassed by
the learned Senior counsel for the petitioners itself indicates that, it is
not merely an error to be corrected under review jurisdiction. Even if
we are convinced with what has been argued, it will require detailed
reasoning for tilting in favour of the petitioners and will amount to
substituting the view taken in the Judgment under review which is
beyond the purview of Review. The view taken by this Court in the
Judgment under review may be erroneous but that may be a matter of
appeal. Certainly, the petitioners if aggrieved by the Judgment and
Order under review have the right to raise a challenge in an
appropriate proceeding but not by way of review before the same
Court. We are of the considered view that, the grounds canvassed for
invoking review jurisdiction are not tenable. The contentions or the
grounds raised are outside the scope of review jurisdiction.
13) The Review Petition is accordingly dismissed. No costs.
(M.W.Chandwani, J.) (A. S. Gadkari, J.)
Diwale
OMKAR SHIVAHAR
SHIVAHAR KUMBHAKARN
KUMBHAKARN Date:
2025.06.18
15:19:50 +0530
