Union Of India vs Aajma Bano
2021 Latest Caselaw 205 MP

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              HIGH COURT OF MADHYA PRADESH
                                R.P.No.364/2020
        (Union of India & Others Vs. Anjma Bano & Others)

Gwalior, Dated : 25.02.2021

      Shri Vivek Khedkar, learned counsel for the petitioners.

      Shri Prashant Sharma, learned counsel for the respondent no.1.

Review petition is being filed seeking reviewing/modification of

the order dated 12.07.2019 passed in W.P. No.12687/2019 (Aajma

Bano Vs. Union of India), whereby W.P.No.12687/2019 was filed by

the petitioner/respondent no.1 seeking the following reliefs:-

"(i) That, the respondent may kindly be directed to conclude the demarcation proceedings within time frame as per the rules framed.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of tfhe case may also kindly be granted."

In the aforesaid relief, it has been stated by the petitioner that the

petitioner was purchased the property at Survey No.2215 at Village

Morar, Patwari Halka No.51. There was a disputed in relation to the

said property with Cantonment Board. Initially against the action of the

Cantonment Board, the petitioner preferred writ petition before the

Hon'ble Court, in which she was relegated to the Cantonment Board.

Though the copy of the order Annexure P/2 has been filed but it has

been stated in the petition that in pursuance to the order Annexure P/2,

an appeal was preferred before the Cantonment Board, but despite of

HIGH COURT OF MADHYA PRADESH R.P.No.364/2020 (Union of India & Others Vs. Anjma Bano & Others)

order being issued in relation to the demarcation, the demarcation has

not been carried out till date. The identity of the land is required and

since the Board has already resolved that demarcation is to be carried

out, therefore, for the purpose of resolving the dispute, the demarcation

has to be carried out, which has not been done till date and therefore,

the writ petition was filed. Though the order dated. 30.11.2018 was

passed in W.P.No.18960/2017, whereby the writ petition filed by the

petitioner has been disposed of with liberty to the petitioner to avail the

remedy of appeal before the Cantonment Board under the provisions of

Section 340 of the Act, 2006. In the earlier round, W.P.No.18960/2017

was filed in which the similar relief has been prayed for that the

respondents may kindly be directed to get the land demarcated or not to

create any hindrance in demarcation of the land and if the land is found

of Survey No.2215 then respondents may kindly be restrained from

creating any kind of hindrance in using the property. Merely perusing

the relief which has been prayed for in the earlier round of writ petition

and in the present petition, it is crystal clear that the same relief has

been prayed for whereby earlier writ petition has been dismissed after

granting an opportunity to raise the ground in appeal. So while filing

W.P.No.12687/2019, the petitioner has misrepresented before the Court

not specifically mentioning that earlier writ petition for the same relief

was filed and that has already been dismissed/disposed of with certain

HIGH COURT OF MADHYA PRADESH R.P.No.364/2020 (Union of India & Others Vs. Anjma Bano & Others)

directions. Apart from, it is submitted that after passing the order in

W.P.No.18960/2017, the petitioner has preferred an appeal before the

Competent Authority under Section 340 of the Cantonment Act i.e.

Chief Executive Officer, and after considering the entire provisions and

appeal, the aforesaid appeal was dismissed vide order dated

28.02.2019. The aforesaid writ petition was filed in the month of June,

2019 and merely perusing the document i.e. the order dated

28.02.2019, it is clear that the petitioner was duly informed about the

decision of the appeal. By making suppression of the aforesaid fact, the

impugned order has been obtained by the petitioner which is not

tenable. After passing the aforesaid order, contempt proceedings has

been initiated by the respondent i.e. Contempt Petition No.2761/2019

in which notices have been issued to the Chief Executive Officer,

Morar Cantonment Board, Morar, Gwalior and after going through the

entire record, it has been found that there is suppression of facts. The

petitioner/respondent no.1 has obtained the order after suppressing the

earlier order which has been passed by the Hon'ble Court and the

petitioner has suppressed that in pursuance to the aforesaid order, the

appeal has already been decided vide order dated 28.02.2019. In such

facts and circumstances, the order passed by the Hon'ble Court is liable

to be recalled because there is an error apparent on the face of the

record.

HIGH COURT OF MADHYA PRADESH R.P.No.364/2020 (Union of India & Others Vs. Anjma Bano & Others)

Learned counsel for the petitioners prayed for that this review

petition may be allowed and the order under review dated 12.07.2019

(Annexure RP/1) passed by this Hon'ble Court in W.P.No.12687/2019

may be recalled and the aforesaid writ petition may be dismissed being

not maintainable for similar relief.

Learned counsel for the respondent no.1 has opposed the review

petition and prayed for rejection of the petition contending that there is

no suppression of fact and the fact of dismissal of appeal was

mentioned in W.P.No.12687/2019.

Heard learned counsel for the petitioner and perused the record.

The review petition is being filed seeking review of the order

dated 12.07.2019 passed in W.P.No.12687/2019. It is argued that the

incorrect facts were placed before this Hon'ble Court. The order

reflects that it was argued that the appeal is pending before the

appellate authority and the same has not been decided till date. But the

fact remains that the appeal was dismissed on 28.02.2019. The

aforesaid aspect was suppressed from this Court at the time of

arguments in the writ petition. The record of the writ petition was

called and it was seen that in para 5.4 of the petition memo, it is

mentioned that the appellate authority has considered and decided the

appeal on 28.02.2019. There is no suppression of facts by the petitioner

in W.P.No.12687/2019. The impugned order is by-parte order and the

HIGH COURT OF MADHYA PRADESH R.P.No.364/2020 (Union of India & Others Vs. Anjma Bano & Others)

counsel appearing for the respondent no.1 has given no objection to

such a direction given by this Court. Even otherwise this Court has

directed that the respondent no.3 will dwell upon the application filed

by the petitioner for demarcation in December, 2018 and also decided

the appeal, if not already decided the appeal, within a period of one

month as the appeal has already been decided by the authorities as

stated by them.

As far as the review is concerned, the grounds available asking

for review of the order are very limited.

The law with respect to entertaining the review petition is settled

in the case S. Bagirathi Ammal vs. Palani Roman Catholic Mission;

(2009) 10 SCC 464 wherein the Hon'ble Supreme Court has held as

under :-

"12. An error contemplated must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further

HIGH COURT OF MADHYA PRADESH R.P.No.364/2020 (Union of India & Others Vs. Anjma Bano & Others)

investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie."

Further in the case of State of West Bengal and Ors. v. Kamal

Sengupta and Anr; (2008) 8 SCC 612 wherein the Hon'ble Supreme

Court has held as under:-

"22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self- evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC."

Further in the case of Lily Thomas Vs. Union of India and

others, AIR 2000 SC 1650 wherein the Hon'ble Supreme Court has

held as under :-

"55. It follows, therefore, that the power of review can be exercised for correction of a mistake and 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 an appeal in

HIGH COURT OF MADHYA PRADESH R.P.No.364/2020 (Union of India & Others Vs. Anjma Bano & Others)

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."

Further in the case of Dr. Subramanian Swamy Vs. State of

Tamil Nadu and Others in Civil Appeal No.10620 of 2013, (2014 (5)

SCC 75) wherein the Hon'ble Supreme Court has held as under:

"40. Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. Edappakath Ayissa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors.,

HIGH COURT OF MADHYA PRADESH R.P.No.364/2020 (Union of India & Others Vs. Anjma Bano & Others)

AIR 1953 SC 65)."

In such circumstances, no ground for review is made out.

Accordingly, the review petition is dismissed.

Likewise as the review petition has already been rejected,

I.A.No.1115/2020, application under Section 5 of the Limitation Act

for condonation of delay filed by the petitioners stands disposed of.

Certified copy as per the rules.

                                                      (Vishal Mishra)
AK/-                                                      Judge
       ANAND KUMAR
       2021.03.03
       11:25:49 +05'30'