ASHARFI DEVI (D) THR. LRS. versus STATE OF U.P. & ORS. on 1 February 2019

[2019] 1 S.C.R. 855

ASHARFI DEVI (D) THR. LRS.

v.

STATE OF U.P. & ORS.

(Civil Appeal No. 5217 of 2010)

FEBRUARY 01, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Constitution of India – Art. 142 – Powers under – Invocationof – Ceiling proceedings challenged in a writ petition – Dismissedby the High Court – Review application also dismissed – Appealonly against the review order, wherein appellants seeking tochallenge the legality of main order – Held: The instant appealdoes not arise out of the main order passed in the writ petition butarises out of review order only and, thus, the legality and correctnessof the main order cannot be examined in this appeal like an appellatecourt – There was no legal impediment on the appellants’ right tofile the SLP in Supreme Court as soon as the main order was passed– When the present SLP was filed in the year 2010 against the revieworder, the original appellant again did not challenge the main order– Thus, no ground to invoke extraordinary powers u/Art. 142 andpermit the appellants to question the legality of main order in thisappeal – Urban Land (Ceiling and Regulation) Act, 1976.

Code of Civil Procedure, 1908 – Or. XLVII, r. 1 – Review order– Legality of – Held: Every error whether factual or legal cannotbe made subject matter of review u/Or. XLVII, r. 1 though it can bemade subject matter of appeal arising out of such order – In orderto attract the provisions of Or. XLVII, r. 1, the error/mistake must beapparent on the face of the record of the case – On facts, revieworder was passed in conformity with the requirements of Or. XLVII,r. 1 and, thus, the High Court rightly concluded that the main orderimpugned in the review application did not contain any factual or/and legal error within the meaning of Or. XLVII, so as to entitle thereview Court to recall the same in its review jurisdiction – Once thefinding was recorded by the High Court in the Writ petition that thewrit petitioner failed to prove her case, such finding could not have

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Abeen examined de novo in review jurisdiction by the same Courtlike an appellate court on the facts and evidence – Reasoning andconclusion arrived at by the High Court (Review Court) in theimpugned order is concurred with.

Dismissing the appeal, the CourtB

HELD: 1.1 The original appellant (writ petitioner) neverchallenged the legality and correctness of the main order passedin the writ petition but confined her challenge only to the orderpassed in the review application. Though counsel for the appellantcontended that reading of the list of dates in this appeal showsCthat the original appellant has challenged the main order alsoalong with the review order, but it is not found so. The originalappellant not having challenged the legality of the main order ina separate SLP or in this appeal, this Court is not called upon toexamine the legality and correctness of the main order dated14.03.2008 in the present appeal. [Paras 9, 10 and 11][859-C-E]D

1.2 The original appellant did not assign any reason as towhat prevented her in the last almost 11 years in not filing theSLP against the main order. There was no legal impediment onthe appellants’ right to file the SLP in this Court as soon as themain order was passed and when the present SLP was filed in theEyear 2010 against the review order, the original appellant againdid not challenge the main order. In view thereof, there is nogood ground to invoke extraordinary powers under Article 142of the Constitution and permit the appellants (legalrepresentatives of original appellant) to question the legality ofFmain order in this appeal. [Paras 13-15][859-F-H; 860-A-B]

1.3 While examining the legality of the review order, thelegality of main order cannot be examined on its merits because,this appeal does not arise out of the main order. Therefore, inquiryis to be confined with a view to find out whether the review orderGis legally sustainable or not. [Para 18][860-C-D]

1.4 It is a settled law that every error whether factual orlegal cannot be made subject matter of review under Order XLVIIRule 1 of the Code though it can be made subject matter of appealarising out of such order. In other words, in order to attract theprovisions of Order XLVII Rule 1 of the Code, the error/mistake H

must be apparent on the face of the record of the case. [Para21][860-F-G]

1.5 On perusal of the main order, it is found that the HighCourt dismissed the writ petition holding that the writ petitioner(original appellant) failed to prove her possession over the landin question on the date of repeal. It was held that the State hadtaken possession of the land in the year 1982 as per the panchnamaprepared by the State. In review, the High Court held that whilerecording the said finding in the main order, no apparent error,whether on facts or law within the meaning of Order XLVII Rule1 of the Code, was committed attracting the rigor of Order XLVIIRule 1 of the Code. [Paras 19, 20][860-D-F]

1.6 This appeal does not arise out of the main order butarises out of review order only and, therefore, the legality andcorrectness of the main order cannot be examined in this appeallike an Appellate Court. The matter is examined only with a viewto find out as to whether the High Court was right in dismissingthe review application and thereby justified in upholding the mainorder holding that it did not contain any error/mistake apparenton the face of the record. In other words, the issue was examinedonly with a view to find out as to whether the review order, whichis subject matter of this appeal, was passed in conformity withthe requirements of Order XLVII Rule 1 of the Code or not.Having examined, the review order was passed in conformitywith the requirements of Order XLVII Rule 1 of the Code and,therefore, the High Court rightly concluded that the main orderimpugned in the review application did not contain any factualor/and legal error(s) within the meaning of Order XLVII of theCode so as to entitle the review Court to recall the same in itsreview jurisdiction. And lastly, once the finding was recorded bythe High Court in the writ petition that the writ petitioner (originalappellant) failed to prove her actual possession on the land inquestion on the date of repeal, such finding could not have beenexamined de novo in review jurisdiction by the same Court likean Appellate Court on the facts and evidence. The reasoning andthe conclusion arrived at by the High Court (Review Court) inthe impugned order is concurred with. [Paras 23-28][861-A-F]

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 5217of 2010.

From the Judgment and Order dated 16.12.2008 of the High Courtof Judicature at Allahabad U.P. in Civil Misc. Review Application No.81507 of 2008 in Civil Misc. Writ Petition No. 10557 of 2002.

BJayant Bhushan, Sr. Adv., Bharat Bhushan, Tushar Bhushan, Advs.for the appellants.

Dr. M.P. Raju, John Thomas, P. George Giri, Ms. Jasmin Kurian,T.N. Singh, Rajeev Kr. Dubey, Kamlendra Mishra, Bhakti Vardhan Singh,Sanjay Kumar Visen, Navin Gupta, Ms. Sasmita Tripathy, Ms. RituCRastogi, Advs. for the respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 16.12.2008 passed by theHigh Court of Judicature at Allahabad in Civil Misc. Review ApplicationDNo.81507 of 2008 in Civil Misc. Writ Petition No.10557 of 2002 wherebythe High Court dismissed the Civil Misc. Review Application filed by theoriginal appellant herein.

2. In order to appreciate the short controversy involved in thisappeal, few facts need mention infra.

E3. The appellants herein are the legal representatives of the originalappellant, who was the writ petitioner and the review petitioner whereasthe respondents herein were the respondents in the writ petition and thereview application.

4. The original appellant was the owner of certain lands. Theselands were subjected to ceiling proceedings under the Urban Land (CeilingFand Regulation) Act, 1976. The ceiling proceedings eventually resultedin declaring some lands in excess of ceiling limits as surplus. The Stateclaims to have taken possession of the surplus land way back in the year1982. The Ceiling Act was repealed for the State of UP on 22.03.1999.

5. In the year 2002, the original appellant filed a writ petition againstGthe respondents-State of UP and its authorities in the Allahabad HighCourt claiming therein that since the original appellant continued to remainin possession of the surplus land even after the Repeal Act came intoforce, all the ceiling proceedings against her in relation to the lands inquestion stood lapsed in terms of Repeal Act.

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6. This writ petition was dismissed by order dated 14.03.2008.The original appellant (writ petitioner) felt aggrieved by the dismissal ofher writ petition and filed Review Application No.81507/2008 in the HighCourt. By impugned order dated 16.12.2008, the High Court dismissedthe review application.

7. The original appellant felt aggrieved and filed the present appealby way of special leave against the review order dated 16.12.2008 inthis Court.

8. Heard Mr. Jayant Bhushan, learned senior counsel for theappellants and Dr. M.P. Raju, learned counsel for the respondents.

9. It is clear from the record that the original appellant (writpetitioner) never challenged the legality and correctness of the mainorder dated 14.03.2008 passed in the writ petition (10557/2002) butconfined her challenge only to the order dated 16.12.2008 passed in thereview application.

10. Though, learned counsel for the appellant contended thatreading of the list of dates in this appeal shows that the original appellanthas challenged the main order dated 14.03.2008 also along with the revieworder dated 16.12.2008, but we do not find it to be so.

11. In our opinion, the original appellant not having challenged thelegality of the main order dated 14.03.2008 in a separate SLP or in thisappeal, this Court is not called upon to examine the legality andcorrectness of the main order dated 14.03.2008 in the present appeal.

12. Mr. Jayant Bhushan, learned senior counsel for the appellants,however, argued that this Court should invoke the powers under Article142 of the Constitution and permit the appellants to challenge the mainorder. We find no merit in this submission for three reasons.

13. First, the original appellant did not assign any reason as towhat prevented her in the last almost 11 years in not filing the SLPagainst the main order;

14. Second, there was no legal impediment on the appellants’ rightto file the SLP in this Court as soon as the main order dated 14.03.2008was passed and lastly, when the present SLP was filed in the year 2010against the review order, the original appellant again did not challengethe main order dated 14.03.2008.

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15. In the light of these three reasons, we find no good ground toinvoke extraordinary powers under Article 142 of the Constitution andpermit the appellants(legal representatives of original appellant) to questionthe legality of main order dated 14.03.2008 in this appeal.

16. Now coming to the merits of the case, we have to only examineBthe question as to whether the High Court was right in dismissing thereview application filed by the original appellant holding that there wasno error apparent on the face of the main order dated 14.03.2008 withinthe meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”).17. Having heard the learned counsel for the parties and on perusalCof the record of the case, we find no merit in this appeal.

18. While examining the legality of the review order, we cannotexamine the legality of main order dated 14.03.2008 on its merits because,as mentioned above, this appeal does not arise out of the main order.Therefore, we have to confine our inquiry with a view to find out whetherDthe review order is legally sustainable or not.

19. On perusal of the main order dated 14.03.2008, we find thatthe High Court dismissed the writ petition holding that the writ petitioner(original appellant herein) failed to prove her possession over the land inquestion on the date of repeal. It was held that the State had takenEpossession of the land in the year 1982 as per the panchnama preparedby the State.

20. In review, the High Court held that while recording theaforementioned finding in the main order, no apparent error, whether onfacts or law within the meaning of Order 47 Rule 1 of the Code, wasFcommitted attracting the rigor of Order 47 Rule 1 of the Code.

21. It is a settled law that every error whether factual or legalcannot be made subject matter of review under Order 47 Rule 1 of theCode though it can be made subject matter of appeal arising out of suchorder. In other words, in order to attract the provisions of Order 47 Rule1 of the Code, the error/mistake must be apparent on the face of theGrecord of the case.

22. Learned counsel for the appellants then argued the appeal asif this appeal arises out of the main order dated 14.03.2008. Heextensively referred to the pleadings and several documents as if weare called upon to examine the legality of the main order itself.

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23. We find no merit in any of his submissions for more than onereason. First, as mentioned above, this appeal does not arise out of themain order but arises out of review order only and, therefore, we cannotexamine the legality and correctness of the main order in this appeal likean Appellate Court.

24. Second, we examined the matter only with a view to find outas to whether the High Court was right in dismissing the review applicationand thereby justified in upholding the main order dated 14.03.2008 holdingthat it did not contain any error/mistake apparent on the face of therecord.

25. In other words, we examined the issue only with a view tofind out as to whether the review order, which is subject matter of thisappeal, was passed in conformity with the requirements of Order 47Rule 1 of the Code or not.

26. Third, having examined, we are of the view that the revieworder was passed in conformity with the requirements of Order 47 Rule1 of the Code and, therefore, the High Court rightly concluded that themain order impugned in the review application did not contain any factualor/and legal error(s) within the meaning of Order 47 of the Code so as toentitle the review Court to recall the same in its review jurisdiction.

27. And lastly, once the finding was recorded by the High Court inthe writ petition that the writ petitioner (original appellant) failed to proveher actual possession on the land in question on the date of repeal, suchfinding could not have been examined de novo in review jurisdiction bythe same Court like an Appellate Court on the facts and evidence.

28. In view of the foregoing discussion, we concur with thereasoning and the conclusion arrived at by the High Court (Review Court)in the impugned order and find no merit in this appeal.

29. The appeal thus fails and is accordingly dismissed.

Nidhi Jain

Appeal dismissed.

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