Constitution of India – Art. 142 – Powers under – Invocation of – Ceiling proceedings challenged in a writ petition – Dismissed by the High Court – Review application also dismissed – Appeal only against the review order, wherein appellants seeking to challenge the legality of main order – Held: The instant appeal does not arise out of the main order passed in the writ petition but arises out of review order only and, thus, the legality and correctness of the main order cannot be examined in this appeal like an appellate court – There was no legal impediment on the appellants’ right to file 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 review order, the original appellant again did not challenge the main order – Thus, no ground to invoke extraordinary powers u/Art. 142 and permit the appellants to question the legality of main order in this appeal – 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 cannot be made subject matter of review u/Or. XLVII, r. 1 though it can be made subject matter of appeal arising out of such order – In order to attract the provisions of Or. XLVII, r. 1, the error/mistake must be apparent on the face of the record of the case – On facts, review order was passed in conformity with the requirements of Or. XLVII, r. 1 and, thus, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error within the meaning of Or. XLVII, so as to entitle the review Court to recall the same in its review jurisdiction – Once the finding was recorded by the High Court in the Writ petition that the writ petitioner failed to prove her case, such finding could not have been examined de novo in review jurisdiction by the same Court like an appellate court on the facts and evidence – Reasoning and conclusion arrived at by the High Court (Review Court) in the impugned order is concurred with.
Dismissing the appeal, the Court
HELD: 1.1 The original appellant (writ petitioner) never challenged the legality and correctness of the main order passed in the writ petition but confined her challenge only to the order passed in the review application. Though counsel for the appellant contended that reading of the list of dates in this appeal shows that the original appellant has challenged the main order also along with the review order, but it is not found so. The original appellant not having challenged the legality of the main order in a separate SLP or in this appeal, this Court is not called upon to examine the legality and correctness of the main order dated 14.03.2008 in the present appeal. [Paras 9, 10 and 11][859-C-E]
1.2 The original appellant did not assign any reason as to what prevented her in the last almost 11 years in not filing the SLP against the main order. There was no legal impediment on the appellants’ right to file the SLP in this Court as soon as the main order was passed and when the present SLP was filed in the year 2010 against the review order, the original appellant again did not challenge the main order. In view thereof, there is no good ground to invoke extraordinary powers under Article 142 of the Constitution and permit the appellants (legal representatives of original appellant) to question the legality of main order in this appeal. [Paras 13-15][859-F-H; 860-A-B]
1.3 While examining the legality of the review order, the legality of main order cannot be examined on its merits because, this appeal does not arise out of the main order. Therefore, inquiry is to be confined with a view to find out whether the review order is legally sustainable or not. [Para 18][860-C-D]
1.4 It is a settled law that every error whether factual or legal cannot be made subject matter of review under Order XLVII Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order XLVII Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. [Para 21][860-F-G]
1.5 On perusal of the main order, it is found that the High Court dismissed the writ petition holding that the writ petitioner (original appellant) failed to prove her possession over the land in question on the date of repeal. It was held that the State had taken possession of the land in the year 1982 as per the panchnama prepared by the State. In review, the High Court held that while recording the said finding in the main order, no apparent error, whether on facts or law within the meaning of Order XLVII Rule
1 of the Code, was committed attracting the rigor of Order XLVII Rule 1 of the Code. [Paras 19, 20][860-D-F]
1.6 This appeal does not arise out of the main order but arises out of review order only and, therefore, the legality and correctness of the main order cannot be examined in this appeal like an Appellate Court. The matter is examined only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified in upholding the main order holding that it did not contain any error/mistake apparent on the face of the record. In other words, the issue was examined only with a view to find out as to whether the review order, which is subject matter of this appeal, was passed in conformity with the requirements of Order XLVII Rule 1 of the Code or not. Having examined, the review order was passed in conformity with the requirements of Order XLVII Rule 1 of the Code and, therefore, the High Court rightly concluded that the main order impugned in the review application did not contain any factual or/and legal error(s) within the meaning of Order XLVII of the Code so as to entitle the review Court to recall the same in its review jurisdiction. And lastly, once the finding was recorded by the High Court in the writ petition that the writ petitioner (original appellant) failed to prove her actual possession on the land in question on the date of repeal, such finding could not have been examined de novo in review jurisdiction by the same Court like an Appellate Court on the facts and evidence. The reasoning and the conclusion arrived at by the High Court (Review Court) in the impugned order is concurred with. [Paras 23-28][861-A-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.