WPPIL/96/2019
2021 Latest Caselaw 906 UK

                                                 RESERVED
        IN THE HIGH COURT OF UTTARAKHAND
                        AT NAINITAL



  THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                                AND
           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


      CIVIL MISC. REVIEW APPLICATION NO. 14000 OF 2021

                                AND
CIVIL MISC. IMPLEADMENT APPLICATION NO. 14001 OF 2021
                                AND
 CIVIL MISC. REVIEW APPLICATION NO. 14002 OF 2021
                                IN
          WRIT PETITION (PIL) NO. 96 OF 2019




Between:

Narendra Kumar.                                   ....Petitioner

and

State of Uttarakhand and others.             ......Respondents

Counsel for the petitioner : Mr. Vikas Bahuguna.

Counsel for the State : Mr. B.P.S. Mer, learned Brief Holder.

Counsel for the respondent : Mr. M.S. Tyagi, learned Senior Nos. 3 to 7 Counsel assisted by Mr. Chandra Prakash.

Counsel for the applicants in : Mr. Tej Pal Singh Review Application No. 14000

Of 2021 and Impleadment Application No. 14001 of 2021.

Reserved on :10.03.2021 Delivered on:16.03.2021

The Court made the following :

JUDGMENT : (per Hon'ble Sri Justice Alok Kumar Verma)

The applicants, Purshottam Maheshwari and Lalit

Maheshwari, filed an application, namely Civil Miscellaneous

Impleadment Application No. 14001 of 2021, along with an

application, namely Civil Miscellaneous Review Application

No. 14000 of 2021, contending that they are necessary

party in this matter. Therefore, they may be impleaded as

respondents to the proceedings. They are also seeking

review of the order dated 24.02.2021 passed in this writ

petition.

2. The respondents Nos. 3 to 7 herein have also filed

a review application, bearing no. 14002 of 2021, seeking

review of the aforementioned order dated 24.02.2021.

3. The brief facts of the case which are necessary to

notice for deciding these applications are:

This writ petition has been filed seeking a writ, order or direction in the nature of mandamus commanding the respondent Nos. 1 & 2 to construct the proposed drain on Jhabrera-Jaatole road immediately and to open the blockage on two approaching roads so as to safeguard life and health of the residents of the area.

4. The case of the writ-petitioner is that in absence

of proper drain system in the locality of Jhabrera town of

District Haridwar, dirty and rain water over flows. Hence, the

residents of the locality are bound to live in an unhygienic

condition with apprehension of epidemic. Apart from this,

due to blockage of two approaching roads, residents of the

locality are unable to enter into the locality; instead, they

have to travel through a long route. Consequently, students

are reaching school late, and the residents of the area are

not reaching their houses timely and safely.

5. The respondent No. 2, Nagar Palika Jhabrera filed

its counter affidavit contending that the respondent No. 2 is

not against the cause for which the writ petition has been

filed. In fact, on the initiation of the respondent No. 2 itself,

Revenue Officials inspected the area, and found

encroachments on the road. Thereafter, public notices were

issued on 04.05.2019 for removing the encroachments. The

notices were served to the encroachers with a request to

remove their unauthorized constructions like slab, wall,

sheds etc. so the drain can be constructed, failing which the

Nagar Panchayat will remove the unauthorized

constructions. On the request of some of the encroachers

including the respondent No. 3, the area in question was

demarcated on 06.05.2019; it was found that there are

encroachments over the Government land. The respondent

Nos. 3 to 7 were impleaded in this writ petition. They filed

their counter affidavit.

6. On 14.12.2020, during the arguments in the writ

petition, Mr. S.S. Chauhan, learned Deputy Advocate

General for the State, submitted that within a period of ten

days the Sub-Divisional Magistrate will demarcate the

property-in-question and submit his report for consideration

before the Court. Ms. Namami Bansal, Sub-Divisional

Magistrate, Roorkee, District Haridwar filed her affidavit

along with her survey report. According to the survey report,

there is some encroachment on Jaatole Marg, area-in-

question. During the survey, it was found that the width of

Jaatole Marg should be twelve meters. However, during

survey, it was discovered that presently the width of the

road is merely 9.45 meters. Thus, obviously, there is an

encroachment of more than two meters on the road. On

24.02.2021, this Court asked the learned counsel for the

Nagar Panchayat, respondent No. 2, with regard to any

steps being taken by the Nagar Panchayat against the

alleged encroachment and against the alleged encroachers.

Then, the learned counsel for the Nagar Panchayat gave an

undertaking before this Court that the Nagar Panchayat shall

take strict actions against the alleged encroachers and shall

remove the alleged encroachment within a period of fifteen

days.

7. The learned counsel for the applicants in

impleadment application submitted that the Jhabrera-

Jaatole road was not built by any department of the

Government in a planned manner; the said road has existed

since long as a kuttcha rasta (gohar) (chak road); the report

of the Sub-Divisional Magistrate is erroneous; the property

of the others are located adjacent to the road-in-question,

and after that the property of the applicants is situated; the

applicants desire to establish that the process of the Court is

being misused in the name of the PIL; this PIL is motivated

to achieve private vendetta between Mr. Manvendra,

Chairperson of Town Area Committee, and Jodh Singh, the

respondent No. 3.

8. On the other hand, the argument of Mr. Vikas

Bahuguna, learned counsel for the petitioner, is that the

applicants are neither a necessary party, nor a proper party

in this matter. Therefore, the application for impleadment

should to be rejected.

9. The question as to whether an individual is a

proper or necessary party to a case would depend upon the

facts of the case, and the nature of relief claimed. A

"necessary party" is a person who ought to have been joined

as a party, and in whose absence no effective order can be

passed by the Court; a "proper party" is a party, who though

not a necessary party, is a person whose presence is

considered appropriate for effective decision of the case. The

learned counsel for the applicants is unable to show how the

applicants have direct interest in the outcome of the present

writ proceedings, and how their interest would be adversely

affected. When a person is neither a necessary party, nor a

proper party and his presence is not required for any

complete and effective adjudication of the question involved

in the matter, he cannot be impleaded merely because he

wishes so. The application for impleadment lacks merit. It is,

therefore, dismissed.

10. It is quite clear that no review application can be

filed by a person who is not a party to the lis. At this stage,

it is necessary to refer the provisions of Rule 1 of Order

XLVII of the Code of Civil Procedure. Rule 1 of Order XLVII

reads as under:

"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 of 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 on 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."

11. On a very reading of Rule 1, it is apparent that

any person considered himself aggrieved by an order may

apply for review provided he has to establish that he "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 order was made." The person applying for review

the order has to satisfy that he is aggrieved by the order,

and also that he was not in a position to bring the fact

earlier. Therefore, the review application can be filed only by

a party to the lis in which the order sought to be reviewed

has been passed. The applicants are strangers to the lis in

this writ petition. Hence, the review application cannot be

preferred by them. The Review Application No. 14000 of

2021 has no merit. Therefore, the review application is liable

to be dismissed, the same is dismissed.

12. Mr. M.S. Tyagi, learned Senior Counsel appearing

on behalf of the respondent Nos. 3 to 7 submitted that the

report of Ms. Namami Bansal, Sub-Divisional Magistrate,

Roorkee, District Haridwar is erroneous because there is no

encroachment on the road-in-question, at least from the

side of the property of the respondent Nos. 3 to 7.

13. Per contra, Mr. Vikas Bahuguna, the learned

counsel for the petitioner, refuted the submissions of Mr.

M.S. Tyagi, learned Senior Counsel, and submitted that after

taking sufficient opportunity to file objection to the report,

filed by the Sub-Divisional Magistrate, the respondent Nos. 3

to 7 did not file any objection. Therefore, now, they have no

right to raise any objection to the report of the Sub-

Divisional Magistrate, Roorkee.

14. The right to review is the exception to the Latin

term "Functus Officio". The power of review is very limited

and it may be exercised only if there is a mistake or an error

apparent on the face of record. The review application

cannot be decided like a regular intra-court appeal.

15. On 08.01.2021, Mr. M.S. Tyagi, the learned Senior

Counsel, sought time to file counter to the report of the Sub-

Divisional Magistrate, submitted by the State. But no

counter was filed by him. On 24.02.2021, this Court dealt

with the issues raised by the parties, and passed the order

dealing with the grounds raised by the parties in support of

their respective contentions.

16. When a question of fact is produced before the

party, the party is free to deal with it in any way that he

thinks proper. In the instant matter, the respondent Nos. 3

to 7 chose not to challenge the report of the Sub-Divisional

Magistrate. Failure to raise a plea does not constitute an

error apparent on the face of the record, or a ground for

review. Failure to argue any point by the counsel is no

ground for review; the grounds not taken earlier cannot be

allowed to be taken in the review application.

17. In view of the ratio laid down by the Hon'ble

Supreme Court in Patel Narshi Thakershi and others vs.

Shri Pradyumansinghji, AIR 1970 SC 1273, the power of

review can be exercised for correction of a mistake. Such

power 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.

18. In Lily Thomas vs. Union of India and others,

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

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 this power.

19. It is settled position that the review applicant

cannot re-argue the matter in the guise of review

application. The review cannot be treated as an appeal in

disguise. The present review application does not come

within the purview of Order XLVII Rule 1 of C.P.C. Under

these circumstances, this Court is of the view that this is

nothing but a frivolous and vexatious application bereft of

any substance. It is an attempt to re-argue the matter.

Therefore, the Review Application No. 14002 of 2021 is

liable to be rejected; the same is dismissed.

____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

_______________________ ALOK KUMAR VERMA, J.

Dt: 16th March, 2021 NEHA