Calcutta High Court
Anis Fatma Begum And Anr vs The State Of West Bengal And Ors on 24 March, 2023
ORDER OD-5
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
RVWO/7/2023
with
APOT/116/2022
IA NO. GA/1/2023
ANIS FATMA BEGUM AND ANR.
VERSUS
THE STATE OF WEST BENGAL AND ORS.
BEFORE:
THE HON'BLE CHIEF JUSTICE PRAKASH SHRIVASTAVA
THE HON'BLE JUSTICE RAJARSHI BHARADWAJ
DATE : 24TH MARCH, 2022
APPEARANCE:
Mr. Bijoy Adhikary, Advocate
Mr. Ushananda Jana, Advocate
Ms. Susmita Adhikary,
Mr. Srijit Chatterjee Advocate
. . . for the petitioner.
Sk. Md. Galib, Sr. Advocate
Mr. Abu Siddique Mallik, Advocate
Ms. Tannishree Mukherjee, Advocate
....for the Board of Auqaf
The Court:- RVWO 7 of 2023 is an application filed by the review
petitioner (respondent no. 1 in APOT 116 of 2022) seeking review of the order
dated 27th of September, 2022 passed in APOT 116 of 2022 with IA Nos. GA 1
of 2022 and GA 2 of 2022.
There is a delay of 116 days in filing the review application,
therefore, GA 1 of 2023 has been filed seeking condonation of delay. Having
considered the explanation which has been furnished in the application and
submission of learned counsel for the petitioner, we find that the delay has
been properly explained and a good ground for condoning the delay is made
out, therefore, GA 1 of 2023 is allowed and delay in filing the review petition is
condoned.
Learned counsels for the parties are heard on the review petition
being RVWO 7 of 2023.
Submission of learned counsel for the petitioner is that the
judgment of the Hon'ble Supreme Court in the matter of Board of Wakf, West
Bengal and Another vs. Anis Fatma Begum and Another reported in (2010)
14 SCC 588 relied upon by this Court is mere obiter and in this regard, he
has placed reliance upon the judgment of the Hon'ble Supreme Court in the
matter of State of Andhra Pradesh (Now State of Telangana) vs. A.P. State
Wakf Board and Others reported in 2022 SCC OnLine SC 159. He submits
that the judgment of the Hon'ble Supreme Court in the case of Golam
Mustapha and Another is a per incuriam judgment which ought not to have
been relied upon by this Court. He also submits that remedy of writ cannot be
curtailed.
Learned counsel for the respondent has submitted that there is no
error apparent on the face of the record and the grounds taken in the review
petition reveals that in the guise of the review, the review petitioner is
attempting to reopen the entire matter requiring this Court to exercise the
appellate jurisdiction. In support of his submission, he has placed reliance
upon the judgment of the Hon'ble Supreme Court in respect of the scope of
review jurisdiction.
We have heard the learned counsels for the parties and have
perused the record.
Hon'ble Supreme Court in the matter of Ratan Lal Patel vs. Dr
Hari Singh Gour Vishwavidyalaya and Another reported in (2022) 6 SCC
540 has held that the review jurisdiction can be exercised in a case where
there is error apparent on the face of the record.
In the matter of Sivakami and Others vs. State of Tamil Nadu
and Others reported in (2018) 4 SCC 587, it has been held that the power of
judicial review under Order 47 Rule 1 of the CPC is very limited and that the
power of review is not to be confused with the appellate power and the review
petition/application cannot be decided like a regular intra-court appeal.
In the matter of Vijay Mallya vs. State Bank of India and Others
reported in (2020) 20 SCC 100, Hon'ble Supreme Court has held that attempt
of rehearing in the guise of review cannot be permitted.
In the matter of Shanti Conductors Private Limited vs. Assam
State Electricity Board and Others reported in (2020) 2 SCC 677, it has
been settled that the scope of review is limited and under the guise of review,
the petitioner cannot be permitted to reagitate and reargue the questions
which have already been addressed and decided.
In the matter of Perry Kansagra vs. Smriti Madan Kansagra
reported in (2019) 20 SCC 753, it has been held that an error which is
required to be decided by a process of reasoning can hardly be said to be an
error apparent on the face of record. To justify exercise of review jurisdiction,
the error must be self-evident.
On examining the order of this Court dated 27th of September,
2022 passed in APOT No. 116 of 2022, we find that the judgment cited by both
the parties have duly been considered by this Court and the issue has also
been considered as to why statutory remedy should be adopted instead of
invoking the writ jurisdiction. Hence, we find that there is no error apparent
on the face of record requiring the review of the order of this Court, hence, the
review petition is dismissed.
(PRAKASH SHRIVASTAVA, C.J.)
(RAJARSHI BHARADWAJ, J.)
