Jammu & Kashmir High Court - Srinagar Bench

Hilal Ahmad Khan vs Union Of India & Ors on 12 October, 2021

SERIAL No. 31
REGULAR CAUSELIST

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RP No. 90/2021
CM No. 6036/2021
Hilal Ahmad Khan.

..... Petitioner(s)

Through: -
Mr Mohammad Iqbal Dar, Advocate.

V/s
Union of India & Ors.
..... Respondent(s)
Through: -
Mr T.M. Shamsi, ASGI.
Mr Hakim Aman Ali, Advocate.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(ORDER)
12.10.2021

01. By medium of the instant review petition, the review petitioner is

seeking review of order passed on 26th August, 2021 in the writ petition

bearing WP(C) No. 1703/2020 c/w WP(C) No. 2675/2019, on the grounds

detailed out as under;

"(i) That it is an advertisement notice and brochure issued by the
Indian Oil Corporation dated 25th November, 2018 where under
applications were invited alongwith online payment of non-
refundable application fee from the aspirants for appointment of
Regular/Rural Retail Outlet (Petrol Pump) Dealership for the
J&K at various locations including the location falling at S. No.
155 viz Beerwah (WML) on Beerwah-Magam Road District
Baramulla under Open Merit Category. However, in the order
under review, the Hon'ble Court has observed; that the
advertisement notification was issued for commissioning of LPG
Distributorship at various locations including Beerwah (WML) on
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Beerwah-Magam Road District Budgam under Open Merit
Category, which is not the case, therefore, there is an error on the
face of record as it is the location namely, Beerwah (WML) on
Beerwah - Magam Road, District Baramulla for which petitioner
had applied and was conveyed that has been declared as
successful candidate in the DRAW of LOTS conducted on 06 Feb.
2019 for selection of Retail Outlet Dealership at the said location
pursuant to the above mentioned advertisement notice, as such the
impugned order needs to be reviewed.

(ii) That the only ground on the basis of which the claim of the
petitioner was rejected has been that "the land evaluation
committee visited the site on 9.4.2019 in your presence and found
that the subject plot offered by you was not abutting the road and
it was further observed by the committed (as per layout sketch)
that a strip of the land of another village, which was not
advertised, namely Arwah fell between the subject plot and the
road, which was also confirmed by you" and that as per page 7 of
the brochure, there is no other land including government land
between ROW (Right of Way) and offered plot.

In this behalf the applicant most respectfully submits that
he has submitted in the writ petition that the strip of land
comprising of only some feet's coming in between ROW and the
offered plot belong to the same person who himself admits that
the said strip of land be connected with the main road and once it
is connected to the main road, there remains no question of
coming of any other land including government land in between
the ROW and the offered plot. So, the Hon'ble Court having
observed that the decision of the respondents in rejecting the
claim of the petitioner has its genesis in the failure of the
petitioner to comply with the mandate of the policy governing the
field in offering the land meeting all the requirements has erred
in holding that the decision appears to be a policy decision taken
by the respondent corporation because the petitioner has
submitted requisite documents, viz Affidavit of land owners
wherein they have stated that the said strip of land may be utilized
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for the purpose of road, copy of certificate issued by the Tehsildar
Beerwah, wherein it is said that there will be no objections if the
strip of land under survey No. 410 estate Arwah leading to Survey
No. is used as an approach road after the establishment of the
petrol pump subject to the fulfilment of all required formalities
and the consent of land holders and communication issued by the
concerned authority/officer of the Public Works (R & B)
Department Kashmir as well as site plan (khaka dasti). Therefore,
there is an error on the face of record as the said vital facts have
not been considered; as such the order under review requires to
be reviewed. Said documents; viz Affidavit, certificate of
Tehsildar, communication and site plan are enclosed herewith
and marked as Annexure (R-II) colly.

02. Mr Mohammad Iqbal Dar, learned appearing counsel for the review

petitioner submits that the Court in Paragraph 1 and 7 of the order has

mentioned "Commissioning of LPG Distributorship at various locations"

instead of "Establishing the Petrol Pumps". He further submits that the review

petitioner has fulfilled all the conditions of advertisement for establishing the

Petrol Pump on the identified location falling at S. No. 155 viz. Beerwah

(WML) on Beerwah-Magam Road, District Budgam under Open Merit

Category and the claim of the review petitioner rejected by the respondents

on the report of the Land Evaluation Committee, is arbitrary and against the

records. He further submits that the plot offered by the review petitioner was

abutting the road and the strip of the land at Arwah was connecting the plot with

the road which was duly supported by the certificate issued by the Tehsildar,

Beerwah, perusal whereof reveals that Survey No. 44 in estate Beerwah is the

land of Fatha Mohammad Wani and others, who has leased out the same to the

review petitioner for establishing petrol pump and it has been certified that the

land where the petrol pump is to be established which is recorded as "Labroo",
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is owned by Fatha Mohammad Wani and others and the revenue department has

no objection if the strip of land falling under Survey No. 410 of estate Arwah

leading to Survey No. 44 is used as an approach road after the establishment of

the petrol pump subject to fulfilment of all required formalities and the consent

of the land holder.

03. Heard learned counsel for the parties, perused the pleadings on record

and considered the matter.

04. What requires to be stated, at the outset, is that in the instant review

petition, the review petitioner has touched the merits of the case, which, in a

review petition, is unwarranted as per well settled position of law. The

grounds urged in the review petition have already been decided and findings

returned thereon by the Court and, if the review petitioner was aggrieved of

the said findings, he ought to have availed the remedy under law for

challenging the same in appropriate Court. In fact, the instant review petition,

on grounds enumerated therein, appears to be a disguised appeal. The grounds

taken by the review petitioner are either that the findings recorded by the

Court are not legally tenable, or that the same are perverse, or that the same

are unacceptable. A judgment may be wrong, erroneous, incorrect, perverse,

legally untenable, etc. etc., but, the only course available for the aggrieved

party is to go in appeal the said judgment. Such grounds do not constitute

errors of fact or of law on the face of the record as would call for a review.

05. A review cannot also be used as a tool for changing the opinion/ view

of the Court. In a review petition, it is only an error, apparent on the face of

the record, which can be considered and gone into by the Court. It is not open

to the Court, dealing with review of its decision, to re-appreciate the evidence
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and reach a different conclusion, even if that is possible. Conclusion arrived

at, on appreciation of evidence and after hearing the rival parties, cannot be

assailed in a review petition, unless it is shown that there is an error apparent

on the face of the record. So far as the grievance of the review petitioner on

merits of the case is concerned, virtually the review petitioner seeks the same

relief which he had sought at the time of arguing the main matter and had been

negatived. Once such a prayer has been refused, no review petition would lie

which would convert rehearing of the original matter. It is well 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 has to be exercised with extreme care, caution and

circumspection, that too, only in exceptional cases.

06. Law on the subject is no more res integra. The Apex Court of the

country, in case titled 'Kamlesh Verma v. Mayawati & Ors.' reported in

'(2013) 8 Supreme Court Cases 320', while dealing with a similar issue, at

paragraph Nos. 13, 15 to 19, laid down as under:

"13. Review of the earlier order cannot be done unless the court
is satisfied that material error, manifest on the face of the order,
undermines its soundness or results in miscarriage of justice. This
Court, in Col. Avtar Singh Sekhon v. Union of India & Ors. [1980
(Supp) SCC 562], held as under:

"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 the face of the order, undermines its
soundness or results in miscarriage of justice. In Sow
Chandra Kante v. Sheikh Habib this Court observed:

"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
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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."

14.--------------

15. 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. 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. This Court, in Parsion Devi & Ors. v. Sumitri Devi & Ors., [JT
1997 (8) SC 480: (1997) 8 SCC 715], 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. this
Court opined:

"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 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."

16. 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. The power
of review can be exercised for correction of a mistake but not to
substitute a view. The mere possibility of two views on the subject is not
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a ground for review. This Court, in Lily Thomas & Ors. v. Union of
India & Ors., [(2000) 6 SCC 224], held as under:

"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
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 40 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 using the arguments for the purposes of reviewing the judgment in Sarla Mudgal case, [JT 1995 (4) SC 331] It is not the case of the petitioners that they have discovered any new and important matter which

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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 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 Chhajju Ram v. Neki, [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, [AIR 1954 SC 526] 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, [AIR 1954 SC 440] 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. Ahmad Ishaque [AIR 1955 SC 233], it was held:

"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, C.J. in - 'Batuk K. Vyas v. Surat Borough Municipality, [AIR 1953 Bom 133′] 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, 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

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petition is misconceived and bereft of any substance."

17. In a review petition, it is not open to the Court to re-

appreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence 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. This Court, in Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., [JT 2005 (7) SC 485], held as under:

"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 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."

18. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., [JT 2006 (7) SC 40: (2006) 5 SCC 501], 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.

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."

19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of

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CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction."

07. A cue can, in this behalf, be also had from the decision rendered by a

Division Bench of this High Court in the case of 'State of JK & Ors. vs. Govt.

Handloom Silk Weaving Factory & Ors.', reported in '2016 (2) JKJ

795(HC)', of which, incidentally, I am the author, wherein, it has been held

as follows:

"13. At the very outset it needs to be kept in mind that review jurisdiction of the Court is limited. It is settled law that it is only an error apparent on the face of the record which can be considered and one into by the Court. In the present review petition, the grounds of facts of law urged in review petitions, as narrated above, including the submissions made at the Bar by the learned Counsels appearing in these review Petitions, which in content and substance were the same as taken in the respective review petitions, cannot in any manner be considered as errors on the face of record. Instead the grounds sought to be raised and urged may constitute grounds of appeal alone. In fact, the instant review petitions on grounds enumerated herein appear to be disguised Second Appeals. As noticed above, the grounds taken by the review petitioners are either that the findings recorded by the Court are not legally tenable, or that the same are perverse, or that the same are unacceptable. A judgment may be wrong, erroneous incorrect, perverse, legally untenable, etc. etc., the only course available for the aggrieved party is to go in appeal. Such grounds do not constitute errors of fact or of law on the face of the record as would call for a review."

08. From a bare perusal of the law laid down above, it is manifestly clear

that the scope of review is very limited. The power of review is exercised

when some mistake or error, apparent on the face of the record, is found. A

mistake or an error, apparent on the face of the record, means a mistake or an

error which is, prima facie, visible and does not require any detailed

examination. Such an error must strike one on mere looking at the record and

should not require any long-drawn process of reasoning on the points where

there may, conceivably, be two opinions. In the present case, the review

petitioner has not been able to point out any error, apparent on the face of the

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record, but, on the contrary, under the guise of the instant review petition, the

review petitioner is challenging the order passed by this Court, which is under