# Smt. Waseem Khan{Civil} v. Nagar Mahapalika

- **Citation:** (2020) 2 ILRA 1136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-19
- **Case number:** Misc. Bench No. 6166 of 1986
- **Bench:** Ved Prakash Vaish, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-waseem-khan-civil-v-nagar-mahapalika-45629
- **Pages:** 7

## Headnote

U.
Chandra,
Savitra
Vardhan
Singh,
Shailendra S. Chauhan, Shashi Prakash
Singh, U.P. Srivastava

A. Civil Law-Ode of CivilProcedue, 1908O.XLVII R.1- Review of J & O dated
04.05.2015-petition filed seeking direction-for
execution of lease deed-in pursuance to order
of allotment-petition disposed of-on submission
of petitioner-for refund of amount-to which
nagar
palika
agreed-error
apparent-as
allotment-contrary to U.P Nagar Palika Rules,
1958-now he cannot resilefromthe statement
made before H.C-unequivocal stamen binding
on the applicant-no sufficient ground for
review.

## Text

1136 INDIAN LAW REPORTS ALLAHABAD SERIES
condition does not say that the "0" (Zero)
could not be mentioned. It is without going
to say that "1" (one) is the lowest natural
number and "0" is lowest whole number.
In view of the same mentioning of "0"
(Zero) in Financial Bid by the respondent
no. 6, in our view, would not vitiate the
financial bid submitted by respondent no.
6.

26. The last ground taken by the
petitioners for challenging the award of
contract in favour of respondent no. 6 vide
order dated 01.12.2018 to the effect that
the respondent no. 6 was not having the
valid TIN number has also got no force as
the TIN number was revived from the
retrospective
date,
as
specifically
mentioned in para 12 of the counter
affidavit filed by the respondent no. 6 and
this fact has not been refuted by the
petitioners.

27. In addition to above we would
also like to observe that the admitted fact
is that the petitioner firm was declared L-2
and in addition to respondent no. 6 there
were two other firms namely, M/s
Vrindavan Enterprises and M/s Capri
Hospitality Services Pvt. Ltd., which were
declared L-1 and accordingly even if we
interfere in matter the tender would not
fall in the lap of petitioners and being so as
well as in view of the observations made
in para 21, which is quoted below, of the
judgment passed by the Hon'ble Apex
Court in the case of Dr. N. C. Singhal Vs.
Union of India, reported as (1980) 3 SCC
29, the writ petition filed by the petitioners
challenging the order dated 01.12.2018 is
not maintainable.

"21.
............
Even
if
their
promotions are struck down appellant will
not get any post vacated by them.
Incidentally High Court also upheld their
promotions observing that by the time the
petition was heard each one of them had
requisite
service
qualification
and,
therefore, the promotions could not be
struck down. Once the challenge on merits
fails the second string to the bow need not
be examined. Having said all this,
appellant is least competent to challenge
their promotions. In a slightly comparable
situation this Court in Chitra Ghosh Vs.
Union of India, (1969) 2 SCC 228,
observed as under:

The other question which was
canvassed before the High Court and
which has been pressed before us relates
to the merits of the nominations made to
the reserved seats. It seems to us that the
appellants do not have any right to
challenge the nominations made by the
Central Government. They do not compete
for the reserved seats and have no locus
standi in the matter of nomination to such
seats. The assumption that if nominations
to reserved seats are not in accordance
with the rules all such seats as have not
been properly filled up would be thrown
open to the general pool is wholly
unfounded."

28. Needless to say that the
respondent no. 6 is providing the services
to the Institute and an agreement in regard
to providing the services has also been
executed on 31.03.2019.

29. For the foregoing reasons, the
writ petition for the reliefs sought lack
merit and accordingly dismissed. No order
as to costs.
----------
(2020)02ILR A1136

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2020
2 All. Smt. Waseem Khan{Khan} Vs. Nagar Mahapalika
1137
BEFORE

THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Misc. Bench No. 6166 of 1986

Smt. Waseem Khan{Civil} ...Petitioner
Versus
Nagar Mahapalika ...Respondent

Counsel for the Petitioner:
P.K. Khare, Akshat Srivastava, Apoorva
Tewari,
Meha
Rashmi,
P.
Chandra,
Subhash Vidyarthi, U.K. Srivastav

Counsel for the Respondent:
U.
Chandra,
Savitra
Vardhan
Singh,
Shailendra S. Chauhan, Shashi Prakash
Singh, U.P. Srivastava

A. Civil Law-Ode of CivilProcedue, 1908O.XLVII R.1- Review of J & O dated
04.05.2015-petition filed seeking direction-for
execution of lease deed-in pursuance to order
of allotment-petition disposed of-on submission
of petitioner-for refund of amount-to which
nagar
palika
agreed-error
apparent-as
allotment-contrary to U.P Nagar Palika Rules,
1958-now he cannot resilefromthe statement
made before H.C-unequivocal stamen binding
on the applicant-no sufficient ground for
review.
(Delivered by Hon'ble Ved Prakash Vaish,
J.)

1. Heard Sri Prashant Chandra,
learned Senior Advocate assisted by Ms.
Meha Rashmi, learned counsel for the
petitioner and Sri Savitra Vardhan Singh,
learned counsel for respondent.

2. This is an application for review of
judgment and order dated 04th May, 2015
passed by a Bench comprising of Hon'ble
Mr. Justice Amreshwar Pratap Sahi and
Hon'ble Mr. Justice Aditya Nath Mittal in
Writ Petition No.6166 (MB) of 1986 and
since his lordship (Hon'ble Mr. Justice
Amreshwar Pratap Sahi) has been elevated
as Hon'ble the Chief Justice and Hon'ble
Mr. Justice Aditya Nath Mittal has retired,
hence, this review application has come up
before this Bench.

3. The brief facts giving rise to the
present application are that the petitioner
filed a writ petition seeking directions to
the respondent to execute the formal Lease
Deed in favour of the petitioner in
pursuant of the order of allotment dated
07th November, 1985. The said petition
was disposed of by this Court vide order
dated 04th May, 2015.

4. The relevant portion of judgment
and order dated 04th May, 2015 reads as
under:

"...Having
considered
the
submissions raised, the Court proceeded
to resolve the matter by allowing the
petitioner to withdraw the amount which
has already been lying with the Nagar
Mahapalika in the circumstances indicated
above, for which Sri Apoorva Tewari
contends that the petitioner should be
refunded an appropriate amount as it has
been lying with the Nagar Mahapalika for
long.

This, in the opinion of the Court,
is the only way out inasmuch as the
petitioner has not been able to establish
that the offer made to her was a valid
transaction in accordance with law.
Secondly, in the absence of a lease, there
was no concluded contract for being
enforced. Thirdly, there was also no
legitimate expectation in the absence of
any right so as to interfere with the
decision of the respondents to rescind the
offer made to the petitioner. The Uttar
Pradesh Nagar Mahapalika Adhiniyam,
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
1959, envisages the settlement of the
properties of such local bodies through
Sections 128 and 129 thereof. The
order relied on by the petitioner, that
was later on rescinded, appears to be
more in the nature of a concession or a
grant that does not appear to be as an
outcome of a lawful exercise under the
provisions referred to herein above. No
material has been placed to establish
that the procedure prescribed in the
aforesaid provisions was followed nor
any exercise appears to be available to
determine the market value of the
property prior to it's settlement.

In view of this concluded legal
position and the refund sought by the learned
Counsel for the petitioner to which learned
Counsel for the Nagar Mahapalika has no
objection, we find, in the interest of justice, that
since the amount deposited by the petitioner
has already been offered to be refunded by the
Nagar Mahapalika, it would be appropriate
that a sum of Rs.5 Lacs in all is refunded to the
petitioner in the background aforesaid. Sri
Tewari for the petitioner and Sri Singh for the
Nagar Mahapalika are not at variance to this
arrangement to finally settle the dispute.

This writ petition is, therefore,
disposed of with a direction that in view of
these developments, the order aforesaid has
been passed with the agreement of the parties
and the petitioner would be entitled to refund
of Rs.5 Lacs only from the Nagar Mahapalika
which shall be handed over to the petitioner
within 15 days from today."

5. Learned counsel for the applicant
submitted that there is an error apparent on the
face of the record in holding that entire
allotment proceedings were contrary to the
U.P. Nagar Mahapalika Rules, 1958 without
referring to any such rule and even in the
absence of letter dated 27nd February, 1988 as
well as resolution dated 21st April, 1988.

6. Learned counsel for the applicant also
submitted that the writ petition was disposed of
on the concession given by the earlier counsel
and no such authority was given by the
petitioner to make such statement.

7. On the other hand, learned counsel for
the respondent urged that the writ petition was
disposed of on 04th May, 2015 on the basis of
statement made by learned counsel for the
petitioner and there is no ground for review of
judgment and order dated 04th May, 2015.

8.

Learned
counsel
for
the
respondent further submitted that the
petitioner challenged the order dated 04th
May, 2015 by filing Special Leave Petition
which was dismissed by the Hon'ble
Supreme Court on 14.03.2016.

9. We have carefully considered the
submissions made by learned counsel for
both the parties and gone through the
material available on record.

10. At the outset, it may be
mentioned that aggrieved by the judgment
and order dated 04th May, 2015 passed in
Writ Petition No.6116 (MS) of 1986, the
applicant filed a petition bearing Special
Leave to Appeal (C) No.4384 of 2016.
Vide order dated 14.03.2016, the said writ
petition was dismissed by the Hon'ble
Supreme Court. The Hon'ble Supreme
Court passed the following order:

"Delay condoned.

No ground for interference is
made out to exercise our jurisdiction
under Article 136 of the Constitution of
India.

The special leave petition is
dismissed.

Pending application (s), if any,
stand(s) disposed of. "
2 All. Smt. Waseem Khan{Khan} Vs. Nagar Mahapalika
1139

11. Now, coming to the merits of the
review petition, it may be mentioned that
the grounds taken in the review petition
amount to almost rehearing of the matter
and some of arguments advanced are such
as were not raised earlier. A review
petition cannot be made as an opportunity
to re-argue the matter.

12. On perusal of Rule 1 of Order
47 of the C.P.C., 1908 it is manifestly
clear that power of review is a creature
of the statute and no court or quasijudicial body can review its judgment
or order unless it is legally empowered
to do so. It must be conferred by law
either specifically or by necessary
implication. The review court cannot
sit as appellate court. The mere
possibility of two views is not a ground
for review.

13. It is well settled that power of
review can be exercised for the
correction of a mistake and not to
substitute
a
view.
The
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 searched. It must be an error of
inadvertence. A court of review has
only a limited jurisdiction and it can
allow a review on the grounds; (i)
discovery of new and important matter
or evidence, which after the exercise of
due diligence, was not within the
applicant's knowledge or could not be
produced by him at the time when the
decree was passed or order was made;
(ii) mistake or error apparent on the
face of the record, or (iii) for any other
sufficient reason.

14. Rule 1 of Order 47 of the
C.P.C., 1908 reads as under:

R. 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.

15. In 'Thungabhadra Industries
Ltd. Vs. The Government of Andhra
Pradesh',AIR 1964 SC 1372 the Court
said:

"A review is by no means an
appeal
in
disguise
whereby
an
erroneous decision is reheard and
corrected, but lies only for patent
error."

16. In 'Aribam Tuleshwar Sharma
Vs. Aribam Pishak Sharma' 1979 (4)
SCC 389 the Court said:

"... there is nothing in Article
226 of the Constitution to preclude a High
Court from exercising the power of review
which inheres in every Court of plenary
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. But, there are
definitive limits to the exercise of the
power of review. The power of review may
be exercised on the discovery of new and
important matter or evidence which, after
the exercise of due diligence was not
within the knowledge of the person seeking
the review or could not be produced by
him at the time when the order was made;
it may be exercised where some mistake or
error apparent on the face of the record is
found; it may also be exercised on any
analogous ground. But, it may not be
exercised on the ground that the decision
was erroneous on merits. That would be
the province of a Court of Appeal. A
power of review is not to be confused with
appellate powers which may enable an
Appellate Court to correct all manner of
errors committed by the Subordinate
Court."

17. Again, in 'Meera Bhanja v.
Nirmala Kumari Choudhury', AIR 1995 SC
455 while quoting with approval the above
passage from Abhiram Taleshwar Sharma
Vs. Abhiram Pishak Shartn (supra), the
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.

18. In 'Parsion Devi and others Vs.
Sumitri Devi and others', 1997 (8) SCC 715
it was held that an error, which is not self
evident and has to be detected by process of
reasoning, can hardly be said to be error
apparent on the face of the record justifying the
court to exercise powers of review in exercise
of review jurisdiction.

19. In 'Rajendra Kumar Vs. Rambai',
AIR 2003 SC 2095, the Apex Court has
observed about limited scope of judicial
intervention at the time of review of the
judgment and said:

"The limitations on exercise of the
power of review are well settled. The first and
foremost requirement of entertaining a review
petition is that the order, review of which is
sought, suffers from any error apparent on the
face of the order and permitting the order to
stand will lead to failure of justice. In the
absence of any such error, finality attached to
the judgement/order cannot be disturbed."

20. A close scrutiny of the aforesaid
judgments mentioned above it is clear that
review is not an appeal in disguise.
Rehearing of the matter is impermissible
in the garb of review. It is an exception to
the general rule that once a judgment is
signed or pronounced, it should not be
altered. In 'Lily Thomas Vs. Union of
India', AIR 2000 SC 1650, the Court held
that power of review can be exercised for
correction of a mistake and not to
substitute a new. Such powers can be
exercised within limits of the statute
dealing with the exercise of power. The
aforesaid
view
is
reiterated
in
'Inderchand Jain Vs. Motilal', (2009) 4
SCC 665.

21. In another case, 'Kamlesh
Verma Vs. Mayawati and others', 2013
(8) SCC 320, it was observed:

"19. 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 of 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
2 All. Smt. Waseem Khan{Khan} Vs. Nagar Mahapalika
1141
impugned judgment in the guise that an
alternative view is possible under the
review jurisdiction.

Summary of the Principles:

20. Thus, in view of the above,
the following grounds of review are
maintainable as stipulated by the statute:

20.1. When the review will be
maintainable:-

(i)
Discovery
of
new
and
important matter or evidence which, after
the exercise of due diligence, was not
within knowledge of the petitioner or could
not be produced by him;

(ii) Mistake or error apparent on
the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient
reason" has been interpreted in Chhajju Ram
vs. Neki, AIR 1922 PC 112 and approved by
this Court in Moran Mar Basselios Catholicos
vs. Most Rev. Mar Poulose Athanasius & Ors.,
AIR 1954 SC 526, to mean "a reason sufficient
on grounds at least analogous to those
specified in the rule". The same principles
have been reiterated in Union of India vs.
Sandur Manganese & Iron Ores Ltd. & Ors.,
2013 (8) SCC 337.

22.2. When the review will not be
maintainable:-

(i) A repetition of old and overruled
argument is not enough to reopen concluded
adjudications.

(ii)
Minor
mistakes
of
inconsequential import.

(iii) Review proceedings cannot be
equated with the original hearing of the case.

(iv) Review is not maintainable
unless the material error, manifest on the face
of the order, undermines its soundness or
results in miscarriage of justice.

(v) A review is by no means an
appeal in disguise whereby an erroneous
decision is reheard and corrected but lies only
for patent error.

(vi) The mere possibility of two
views on the subject cannot be a ground for
review.

(vii) The error apparent on the face
of the record should not be an error which has
to be fished out and searched.

(viii) The appreciation of evidence
on record is fully within the domain of the
appellate court, it cannot be permitted to be
advanced in the review petition.

(ix) Review is not maintainable
when the same relief sought at the time of
arguing the main matter had been
negatived." (emphasis supplied) ".

22. In the instant case, we find that
the writ petition was disposed of on the
submissions made by learned counsel for
the petitioner for refund of the amount to
which learned counsel for the Nagar
Mahapalika agreed.

23. Recently, a similar issue was
considered by the Hon'ble Supreme Court
in the case of 'Om Prakash v. Suresh
Kumar', Civil Appeal Nos.833-834 of
2020 decided on 30.01.2020 and it was
held :

" 9. The moot question is:
whether the appellant should be bound by
the statement made by his counsel before
the High Court that the respondent- tenant
will be reinducted in equal area in the
newly constructed building within one
month i.e. on or before 30.11.2017 from
the date of completion of the construction
work i.e. 31.10.2017. From the tenor of the
statement made before the High Court on
behalf of the appellant, it is obvious that it
is an unequivocal statement made by the
counsel engaged by the appellant to
espouse his (appellant's) cause before the
High Court. It is not the case of the
appellant that he had expressly instructed
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
his counsel not to make such a statement.
Further, the statement was in respect of
the commitment of the appellant qua the
subject matter of the proceedings in which
the counsel was engaged and instructed to
appear. Not only that, right from the
beginning and even before this Court, an
attempt was made by the parties to explore
possibility of working out an amicable
solution, as is evident from the order dated
9.1.2017 before the respondent was put to
notice of these appeals, and more
particularly, dated 14.11.2017.

10. Considering the above, the
appellant cannot now be allowed to resile
from the statement made before the High
Court, which the High Court justly
declined to undo in the review petition
filed by the appellant for that purpose. In
the peculiar facts of this case, the decision
of this Court in Himalayan Coop. Group
Housing Society (supra) will be of no
avail to the appellant. Inasmuch as, it is
not a case where the counsel, who made
the statement was not engaged by the
appellant before the High Court. The
engagement was in respect of eviction
proceedings and the statement was in
relation
to
the
commitment of
the
appellant qua the subject matter thereof
and being an unequivocal statement, it will
be binding on the appellant. In any case,
even this Court showed indulgence to the
appellant on the basis of impression given
to this Court about the possibility of at
least sparing a small room for the
respondent, which was the basis for
issuing notice to the respondent, as is
evident from the orders dated 9.1.2017
and 15.2.2017."

24. Applying the aforesaid law to the
facts and circumstances of the present
case, we are of the considered opinion that
there is no sufficient ground for review of
judgment and order dated 04th May, 2015.

25. In the light of aforesaid
judgments, the application for review
deserves to be dismissed and the same is
hereby dismissed.
----------
(2020)02ILR A1142

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Misc. Single No. 35387 of 2018

Smt. Rinki ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Satya Prakash Mishra

Counsel for the Respondents:
C.S.C., Subhas Bisaria, W.U. Ahmad

A. Petitioner-seeking-declaration of result-of
B.Ed examination-in the academi session 20132014-to bring admission-to logical conclusionreliance placed-on a judgment passed bycoordinate
bench-in
Ankit
Kumar's
caseoverlooking the judgment of Hon'ble Apex
Court-where
declarationof
result-post
16.9.2013-rendered impermissible.

Refered to larger bench-

1. Whether open to State Govt. or this Court to
relax the time sch. Fixed by Hon'ble Apex
Court?- No.

2. Whether instruction of state to be acted
upon or this would amount to be act of
disobedience?-No deliberate attempt to mislead
the
Court-Not
liable
under
contempt
jurisdiction.