Calcutta High Court (Appellete Side)

Sri Probir Kumar Roy vs State Of West Bengal & Ors on 31 August, 2023

                   IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                                 (Appellate Side)



                                          R.V.W. No. 238 of 2022
                                                      With
                                                  CAN 1 of 2022
                                                       In
                                               MAT 756 OF 2021



                                         Reserved on  : 20.07.2022
                                         Pronounced on: 31.08.2022



     Sri Probir Kumar Roy
                                                              ...Applicant

                                       -Vs-


     State of West Bengal & Ors.                            ...Respondents

Present:-

Mr. Partha Chakraborty Ms. Poulomi Dutta ...for the review petitioner /applicant

Coram: THE HON'BLE JUSTICE RAJARSHI BHARADWAJ THE HON'BLE JUSTICE SHAMPA DUTT (PAUL)

Rajarshi Bharadwaj, J:

1. By this review application, the correctness of the order dated September

22, 2022 passed in MAT 756 of 2022 ( Sri Probir Kumar Roy versus The State

- - -

of West Bengal & ors) by which the appeal preferred was dismissed has been

questioned by the review petitioner/applicant.

2. The submission of the Learned Counsel for the petitioner/applicant is

that the assessment of monthly fair rent of Saraswati Vidya Bhaban at Bose

Pukur Road (hereinafter referred to as primary school) by the State/

respondent authorities is highly prejudicial to the interest of the petitioner.

The respondent authorities computed the rent of the school on the basis of

rental rate of Bedia Danga Post Office, Tollygunge for the period from January

01, 1999 to December 31, 2013. The said post office is an old dilapidated

building located more than seven kilometers away from the primary school

whereas the primary school being in a good condition and situated at a

strategic location nearby to the Rashbehari Connector is worth more. The fair

rent fixed at Rs. 4,375/- per month (at the rate of Rs 7.08 per square feet for

618 square feet of total effective floor space) is grossly inadequate and

unreasonable as the State did not assess the fair rent on the basis of the

actual rate of rent prevailing in the locality where the primary school is located

by drawing parallels with the rate of rent of other rented properties on the

same road i.e. United Bank of India.

3. The Learned Counsel for the State submits that under the guise of

review, the review petitioner cannot seek reopening of the entire case. The

respondent authority, in pursuance of solemn order of the Hon'ble High Court,

for fresh assessment of monthly fair rent conducted a spot verification and

enquiry on the spot of the concerned primary school and took into account the

monthly rent per unit area of the said school from the period January 01,

1994 onwards and time to time enhancement rate up to March 01, 2016. The

petitioner was given an opportunity for hearing and he produced documents to

establish fair rent which were taken into consideration. The respondent

authority found the effective floor space to be 618 square feet and then

proceeded to fix appropriate quantum of rent. The monthly rent of the primary

school was settled at Rs.7.08 per square feet, higher than the rental rate

- - -

suggested by the petitioner i.e., the nearby bank paying Rs 4.50 per square

feet as monthly rent.

4. The Supreme Court, in Sow Chandra Kanta v. Sk. Habib, reported in

1975 1 SCC 674 has made the following pertinent observation :

"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. A mere repetition, through

different counsel, of old and overruled arguments, a second trip over

ineffectually covered ground or minor mistakes of inconsequential import

are obviously insufficient. The very strict need for compliance with these

factors is the rationale behind the insistence of counsel's certificate, which

should be a routine affair or a habitual step."

5. The Hon'ble Supreme Court in Lily Thomas v. Union of India reported

in 2000 6 SC 224 has expressed that :

"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."

"58. .. Error contemplated under the rule must be 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. Error apparent on the face

of the proceedings is an error which is based on clear ignorance or

disregard of the provisions of law."

6. In the matter of Kerala State Electricity Board v. Hitech

Electrothermics & Hydropower Ltd. and Others reported in 2005 6 SCC

651, the Hon'ble Supreme Court held that :

"10. ....In a review petition it is not open to this Court to re-appreciate 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

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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."

7. Earlier also the Hon'ble Supreme Court in the matter of Jain Studios

Ltd. v. Shin Satellite Public Co. Ltd reported in 2006 5 SCC 501 had held

as under:

"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."