The Delhi Development Authority vs Hello Home Education Society
2022 Latest Caselaw 552 Del

                          $~11
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                    Date of Decision: 22nd February,2022

                          +      REVIEW PETITION No. 15/2022 in LPA 224/2019

                                 THE DELHI DEVELOPMENT AUTHORITY         ..... Appellant
                                              Through: Mr. Ramesh Singh, Senior Advocate
                                                       with Ms. Akshita Goyal, Mr. Nitin
                                                       Mishra,    Mr.       Rahul      Kaul,
                                                       Mr.     Shubham         Gupta     and
                                                       Ms. Shubhakriti Gaur, Advocates.

                                                    versus

                                 HELLO HOME EDUCATION SOCIETY           ..... Respondent
                                              Through: Mr. Dilip Singh and Ms. Raj
                                                       Lakshmi, Advocates.

                                 CORAM:
                                 HON'BLE THE CHIEF JUSTICE
                                 HON'BLE MS. JUSTICE JYOTI SINGH

                                                         JUDGMENT

D.N. PATEL, CHIEF JUSTICE (ORAL)

CM APPL. 3231/2022 (Delay in filing of Review Petition)

1. Present Civil Miscellaneous Application has been preferred seeking condonation of delay of 10 days in filing the Review Petition.

2. Looking to the reasons set out in the application, in our view, the Appellant has made out sufficient cause for condonation of delay. We, therefore, condone the delay in preferring the Review Petition.

3. Application is allowed and disposed of.

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 REVIEW PET. 15/2022 (Review of judgment dated 12.11.2021) & CM APPL. 3230/2022 (Stay)

4. Present Review Petition has been preferred by the Appellant for review of the judgment dated 12.11.2021, passed by this Court in LPA No. 224/2019.

5. It is contended by learned Senior Counsel for the Appellant that in diverse parts of the judgment, this Court has noted that recommendation by the Institutional Allotment Committee (hereinafter referred to as 'IAC') and approval by the Hon'ble Lieutenant Governor was made in favour of the Respondent for allotment of land at 'Jasola', whereas, the recommendation as well as the approval was for allotment of land at Vasant Kunj and this is an error apparent on the face of the record, which vitiates the entire judgment.

6. Having perused the documents on record, we find merit in the contention that the recommendation by IAC as well as the approval by the Hon'ble Lieutenant Governor was for allotment of land at Vasant Kunj in favour of the Respondent and not Jasola. To this extent, the judgment needs to be corrected and accordingly, it is held that wherever there is a reference in the judgment to the recommendation by the IAC and approval by the Hon'ble Lieutenant Governor, the word 'Jasola' shall be read as 'Vasant Kunj'.

7. However, there is no merit in the contention that this observation vitiates the judgment. A perusal of the prayer clauses in the writ petition filed by the Respondent herein before the learned Single Judge reflects that the Respondent had sought a direction to implement the decision for allotment of the institutional plot at Vasant Kunj and the learned Single Judge, by the impugned judgment, has directed the Appellant herein to

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 issue Allotment Letter with respect to the plot at Vasant Kunj. It is an undisputed case between the parties that while applying for allotment of land for establishment of the Middle School on 09.09.2002, Respondent Society had, as per the requisite procedure, given three options, which included both Jasola and Vasant Kunj. As per record, the IAC had recommended for allotment at Vasant Kunj and the Hon'ble Lieutenant Governor had granted approval to the said recommendation. It is also undisputed that the Office of the Directorate of Education had issued an Essentiality Certificate in favour of the Respondent on 29.01.2004. Therefore, in our view, the correction in the judgment, as above, does not vitiate or even impact the findings and/or the ultimate conclusion arrived at by this Court.

8. It is next contended by the learned Senior Counsel for the Appellant/ Review Petitioner that this Court has held that the only ground for rejection of the application of the Respondent was the change of mode of allotment on account of a change in Policy, from allotment to auction, which is an error apparent, inasmuch as an additional reason for rejection was communicated through the letter dated 18.05.2012, which was also impugned before the learned Single Judge. The contention is completely misconceived and deserves to be rejected. A bare perusal of the letter dated 18.05.2012 sent by the Appellant to the Respondent, which is annexed as Annexure P-26 to the memo of the Appeal, shows that by the said letter, Respondent was informed that its request for issue of Demand-cum- Allotment Letter had been examined and rejected by the Competent Authority. The letter gives no reason for rejection of the request and therefore, it is incorrect for the Appellant to even take a stand that an

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 additional reason was communicated for rejection of the allotment. This Court has thus correctly held in the judgment that the only reason for rejection of allotment was change in the mode of allotment from allotment to auction, by review of the existing Policy and its amendment Gazetted vide Notification dated 19.04.2006. The letter dated 19.06.2008 makes this position explicitly clear and no error apparent on the face of the record is made out, in the judgment delivered by this Court, in this regard.

9. Learned Senior Counsel, during the course of arguments, has drawn the attention of the Court to an extract of an internal noting of the DDA dated 28.02.2012, wherein there is a reference to a CBI inquiry in the month of March, 2003, pertaining to certain irregularities in sponsorship for allotment of land for Institutions as well as the change of mode of allotment to auction, including an observation that though there was an approval of the Competent Authority for sponsorship for schools but, at present, there was no need to have a Middle School in Vasant Kunj area. We are afraid that neither the aforementioned file noting nor the grounds mentioned therein can be taken cognizance of by the Court at this stage, as none of them form the basis of the rejection in the initial rejection order dated 19.06.2008, impugned before the learned Single Judge. It is relevant to note that this argument was neither raised before the Single Judge nor before us earlier. New grounds cannot be taken in a review petition by the Petitioner. Moreover, as observed by us in the judgment, the Directorate of Education had issued an Essentiality Certificate in favour of the Respondent, the purpose of which was to convey the need of having a Middle School in the concerned Sectors of Vasant Kunj. There is no challenge to the Essentiality

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 Certificate by the Appellant and it is not even the case of the Appellant that the Certificate is forged or fabricated.

10. Mr. Ramesh Singh, learned Senior Counsel for the Appellant/Review Petitioner strenuously contended that Vasant Kunj and Jasola fall in two different Zones and, therefore, the observation by this Court in the judgment that both fall in the same Zone/District, is an error apparent on the face of the record. Mr. Singh has also questioned the observation that the Appellant has not rebutted the finding of the learned Single Judge that the two areas fall in the same Zone, as according to Mr. Singh, this distinction was evident from a perusal of the documents placed at pages 132 and 136 of the memo of the Appeal. It is clear that the Appellant is now attempting to re-argue the entire Appeal, which is impermissible in the limited scope of a Review Petition.

11. In our judgment, we have clearly noted that neither in the counter-affidavit nor in the pleadings in the Appeal, it was averred by the Appellant that the finding of the learned Single Judge that Vasant Kunj and Jasola form a part of the same Zone, is incorrect. Even today, learned Senior Counsel is unable to point out any such pleading and therefore, no fault can be found with the observation as above. In any case, this Court has further noted in the judgment that the distinction on the basis of Zones cannot be drawn by the Appellant and is inconsequential, as this criteria does not form the reason for rejecting the allotment and the Court has also referred to the past cases and practice of the DDA, where the Appellant has been making allotments in Districts and Zones different from areas for which Essentiality Certificates/Sponsorship Letters were issued. Instances of various Societies, as illustrations, have been referred to in the judgment.

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46

12. It is a settled law that scope of a Review Petition is extremely limited and power of review cannot be confused with re-hearing of the original matter or the power of hearing an Appeal against the order whose review is sought. It is equally settled that no new grounds can be raised in a Review Petition, which were not originally taken in the pleadings and/or argued. It has been held time and again that in a review jurisdiction, the Court shall interfere only if there is a mistake or an error apparent on the face of the record or where there is discovery of a new fact or evidence which was not within the knowledge of the Review Petitioner, even after exercise of due diligence.

13. In the case of Parsion Devi & Ors. v. Sumitri Devi & Ors., reported in (1997) 8 SCC 715, the Hon'ble Supreme Court in Paras 7 to 9 held as under:

"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. (SCR at p. 186) this Court opined:

"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 characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 erroneous decision is reheard and corrected, but lies only for patent error."

(emphasis ours)

8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that 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 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 the 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 supplied)

14. In the case of Haryana State Industrial Development Corpn. Ltd. v.

Mawasi & Ors, reported in (2012) 7 SCC 200, the Hon'ble Supreme Court in Paras 26, 27 and 34 held as under:

"26. At this stage it will be apposite to observe that the power of review is a creature of the statute and no court or quasi- judicial body or administrative authority can review its judgment or order or decision unless it is legally empowered to do so. 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 rules framed by this Court under that article lay down that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure, 1908 which reads as under:

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 Order 47 Rule 1:

"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 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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case of which he applies for the review.

Explanation.--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."

27. The aforesaid provisions have been interpreted in several cases. We shall notice some of them. In S. Nagaraj v. State of Karnataka [1993 Supp (4) SCC 595 : 1994 SCC (L&S) 320 : (1994) 26 ATC 448] , this Court referred to the judgments in

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai [AIR 1941 FC 1] and Rajunder Narain Rae v. Bijai Govind Sing [(1837-

41) 2 MIA 181 : (1836) 1 Moo PC 117] and observed: (S. Nagaraj case [1993 Supp (4) SCC 595 : 1994 SCC (L&S) 320 : (1994) 26 ATC 448] , SCC pp. 619-20, para 19)

"19. Review literally and even judicially means re- examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Sing [(1837-41) 2 MIA 181 : (1836) 1 Moo PC 117] that an order made by the Court was final and could not be altered: (Rajunder Narain Rae case [(1837-41) 2 MIA 181 : (1836) 1 Moo PC 117] , MIA p. 216) '... nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in. ... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected mistakes

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under:

'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.' Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The court is thus not

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46 precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

xx xx xx xx

34. In Haridas Das v. Usha Rani Banik [(2006) 4 SCC 78], the Court observed: (SCC p. 82, para 13) "13. ... 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."

(Emphasis supplied)

15. Having heard the learned Senior Counsel for the Appellant/Review Petitioner and having perused the Review Petition, this Court is of the opinion that the Review Petitioner has been unable to make out any ground for exercising review jurisdiction under Order XLVII Rule 1 CPC. Clearly, the Appellant is seeking to introduce new grounds in the Review Petition, which are wholly extraneous not only to the rejection letter but also to the stand of the Appellant before the learned Single Judge and this Court in the Appeal, which is legally impermissible.

16. In view of the aforesaid facts, reasons and judicial pronouncements, there is no substance in the Review Petition, except to the limited extent as mentioned in the earlier part of this order.

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46

17. Hence, the present Review Petition is partially allowed.

18. Pending application is accordingly dismissed.

CHIEF JUSTICE

JYOTI SINGH, J FEBRUARY 22, 2022/sn

Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:25.02.2022 13:12:46