Calcutta High Court (Appellete Side)

Shyam Sundar Belel vs State Of West Bengal & Ors on 11 May, 2023

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



                                  R.V.W. No. 87 of 2022
                                               With
                                        CAN 1 OF 2022
                                               In
                                       WPA 4163 OF 2020

                                  Reserved on  : 04.05.2022
                                  Pronounced on: 11.05.2022



   Shyam Sundar Belel

                                                    ...Appellant

                                 -Vs-


   State of West Bengal & Ors.                     ...Respondent

Present:-

Mr. Bhaskar Ghosh Mr. Soham Saha, Advocates ...for the review petitioner /private respondent No.13

Mr. Swapan Kumar Dutta, AGP Mr. Prodyot Kumar Das, Advocates

...for the State

Mr. Basudev Gayen , Mr. Kumaresh Dalal, Advocates .... for the Respondent/Review Petitioner

Coram: THE HON'BLE JUSTICE RAJARSHI BHARADWAJ THE HON'BLE JUSTICE SHAMPA DUTT (PAUL) 2 RVW 87 OF 2022

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Rajarshi Bharadwaj, J:

1. The petitioner is seeking review of the order dated 16th March, 2022,

whereby certain directions in respect of restoration of the disputed plot to its

original character were issued and the competent authorities were asked to

take necessary steps for the same.

2. The submission of the learned counsel for the petitioner is that the

petitioner is the owner of the disputed land by purchase of the same by and

under a deed of sale dated 7th Jan 2013. As per the R.S record of rights, the

land is classified as 'Danga' and the reason for stating the land as 'Doba' in

the deed of sale was not clearly known to the petitioner. However, the B.L &

L.R.O had referred to the R.S Record of Right stating that the classification of

R.S Plot no. 2587 is a 'Doba' while the L.R Record of Right was effectively in

force. Moreover, the petitioner after purchasing it is maintaining the same as

it is, thereby filing the review petition for setting aside the status report

submitted by the B.L & L.R.O. It has been further submitted by the petitioner

that there was an error prima facie on the status report, however, the same

could not be pointed out by the petitioner as the copies of the same were not

made available to him despite exercising due diligence in the matter. In the

aforesaid circumstances, he advanced elaborate argument and sought review

of the order.

3. The submission of learned counsel for the State is that under the guise

of review, the review petitioner cannot seek reopening of the entire case where

the respondent authorities acted on the direction of the Learned Court to

restore the land considering the classification as "Pukur" as per a thorough

status report. The petitioner has violated section 4C of the West Bengal Land

Reforms Act, 1955 by unauthorized filing of the water body without obtaining

prior permission from the authorities as per report submitted by the Revenue

Inspector, Parbatipur, G.P and other evidences. Despite issuance of show-

cause notice by the respondent authorities to stop such unauthorized filing of

the plot and to remove any filling materials, the pond in question is filled up 3 RVW 87 OF 2022

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leaving only one-fourth area at the south-west portion of as waterbody. The

material pointed out by the review petitioner claiming to be that the plot in

question is "Danga" is disputed, not corroborated with other relevant

documents and such doubts of illegality is confirmed by obtaining a certified

copy of Record of Rights. The respondent authorities took prompt action

against the review petitioner keeping in mind the plight of villagers of the

surrounding area in the ensuing rainy season for non-drainage of rainwater

in the said pond.

4. This Court while deciding the writ petition had found that according to

the BL & LRO, Domjur's status report three-fourth of the pond in dispute had

been filled up leaving only one-fourth area at the south-west portion as

waterbody. The report further revealed the land in question has been classified

as a "Pukur" and is being filled up despite being notices served to the

petitioner for restoration of the same.

5. In the matter of S. Madhusudhan Reddy vs. V Arayana Reddy and

Others reported in 2022 SCC OnLine SC 1034, Hon'ble Supreme Court has

summarized the principles for exercising of review jurisdiction as under:

"24.After discussing a series of decisions on review jurisdiction in

Kamlesh Verma v.Mayawati, this Court observed that review

proceedings have to be strictly confined to the scope and ambit of

Order XLVII Rule 1, CPC. As long as the point sought to be raised

in the review application has already been dealt with and answered,

parties are not entitled to challenge the impugned judgment only

because an alternative view is possible. The principles for

exercising review jurisdiction were succinctly summarized in the

captioned case as below:

20. Thus, in view of the above, the following grounds of review are

maintainable as stipulated by the statute:

20.1. When the review will be maintainable: [ (i) Discovery of new

and important matter or evidence which, after the exercise of due 4 RVW 87 OF 2022

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diligence, was not within knowledge of the petitioner or could not

be produced by him; (ii) Mistake or error apparent on the face of the

record; (iii) Any other sufficient reason. {The words "any other

sufficient reason" has been interpreted in Chajju Ram v. Neki, and

approved by this Court in Moran Mar Basselios Catholicos v. Most

Rev. Mar Poulose Athanasius to mean "a reason sufficient on

grounds at least analogous to those specified in the rule". The same

principles have been reiterated in Union of India v. Sandur

Manganese & Iron Ores Ltd.}]

20.2. When the review will not be maintainable: [(i) A repetition of

old and overruled argument is not enough to reopen concluded

adjudications.(ii) Minor mistakes of inconsequential import.(iii)

Review proceedings cannot be equated with the original hearing of

the case.(iv) Review is not maintainable unless the material error,

manifest on the face of the order, undermines its soundness or

results in miscarriage of justice.(v) A review is by no means an

appeal in disguise whereby an erroneous decision is re-heard and

corrected but lies only for patent error.(vi) The mere possibility of

two views on the subject cannot be a ground for review.(vii) The

error apparent on the face of the record should not be an error

which has to be fished out and searched.(viii) The appreciation of

evidence on record is fully within the domain of the appellate court,

it cannot be permitted to be advanced in the review petition.(ix)

Review is not maintainable when the same relief sought at the time

of arguing the main matter had been negatived."]

6. Earlier also the Hon'ble Supreme Court in the matter of Northern India

Caterers (India) Ltd. v. Lt. Governor of Delhi reported in 1980 (2) SCC

167 had held as under:

                                        5                         RVW 87 OF 2022
                                      -                                     -   -

"8. It is well-settled that a party is not entitled to seek a review of a

judgment delivered by this Court merely for the purpose of a rehearing

and a fresh decision of the case. The normal principle is that a judgment

pronounced by the Court is final, and departure from that principle is

justified only when circumstances of a substantial and compelling

character make it necessary to do so: Sajjan Singh v. State of Rajasthan.

For instance, if the attention of the Court is not drawn to a material

statutory provision during the original hearing, the Court will review its

judgment: G.L. Gupta v. D.N. Mehta. The Court may also reopen its

judgment if a manifest wrong has been done and it is necessary to pass

an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge,

Delhi. Power to review its judgments has been conferred on the Supreme

Court by Article 137 of the Constitution, and that power is subject to

the provisions of any law made by Parliament or the rules made under

Article 145. In a civil proceeding, an application for review is entertained

only on a ground mentioned in Order 47 Rule 1 of the Code of Civil

Procedure, and in a criminal proceeding on the ground of an error

apparent on the face of the record (Order 40 Rule 1, Supreme Court

Rules, 1966). But whatever the nature of the proceeding, it is beyond

dispute that a review proceeding cannot be equated with the original

hearing of the case, and the finality of the judgment delivered by the

Court will not be reconsidered except "where a glaring omission or

patent mistake or like grave error has crept in earlier by judicial

fallibility": Sow Chandra Kante v. Sheikh Habib."

7. The Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak

Sharma as reported in (1979) 4 SCC 389 speaking through Chinnappa

Reddy, J. has made the following pertinent observations:

"It is true 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 6 RVW 87 OF 2022

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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 20 all manner of errors committed by the subordinate court."