Hon'ble Dr. Satish Chandra,J.
This review petition has been preferred against the order dated 1.2.2011 passed by this court whereby the writ petition was dismissed as withdrawn. The order on reproduction reads as :
"Learned counsel for petitioners and learned counsel for opposite party no.6 jointly make a request for withdrawal of the writ petition.
Learned counsel for the State, as per report of the P.W.D., submits that the gate is repairable.
The structure being one of the oldest structures is directed to be repaired within a period of two months from the date of receiving the copy of this order.
Let a copy of the order be issued to the Secretary, Public Works Department, for compliance.
The petition is, however, permitted to be withdrawn. Hence dismissed as withdrawn.
Order Date :- 1.2.2011"
We have heard learned counsel for parties and perused the record. At the very outset, we may refer to the statutory grounds as provided under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, for seeking review of a judgment or order passed by this court. They are : (a) that there is discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) that some important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) that there was some mistake or error apparent on the face of record or there is any other sufficient reason.
It is also settled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
In the judgment of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale passed by Hon'ble the Apex Court which is reported in (1960) 1 SCR 890, it has been held as under:
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
That ratio has been reiterated in the judgment of Hon'ble the Apex Court in Parsion Devi v. Sumiri Devi reported in (1997) 8 SCC 715. The observations made by Hon'ble the Apex Court in the judgment are as:
"Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise."
The aforesaid views were reiterated by Hon'ble the Apex Court also in a later judgment reported in AIR 2006 SC 1634 (Haridas Das vs. Smt. Usha Rani Banik and others). Similar views have also been taken in another judgment reported in JT 2009 (9) SC 537 : (2009) 14 SCC 663 (Inderchand Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs.).
In the copy of Writ Petition No.10199 (MB) of 2010 annexed with Writ Petition No.12855 (MB) of 2010 listed before us, the petitioner therein, namely, Kurshedbagh Co-operative Housing Society Limited, has made the following factual averments to show the old heritage character of the structure:
"a. The city of Lucknow was a city of gardens where the gardens were named after the queens of the Nawabs of Oudh.
b. Nawab Saadat Ali Khan (1798-1814) was the Nawab of Oudh, who had a queen by the name of Khurshedazadi.
c. Nawab Saadat Ali Khan built a huge palace which was surrounded by gardens named Khursheed Manzil. The said palace is now the site of La Martiniere Girls College.
d. The two tombs situated behind the Begum Hazrat Mahal Park belong to Late Nawab Sadat Ali Khan and to Begum Khurshedazadi.
e. The Late Nawab Sadat Ali Khan got a bagh made called Khurshedbagh which had its own karbala where the queen would go to pay her respect to the tazia which made a customary stop at the Khurshedbagh en-route to the karbala at talkatora.
f. The British after the annexation of Oudh conferred the said area upon the Maharaja of Balrampur and the entire Karbala and the construction was lost on account of lack of proper upkeep, however, the old arched gateway has stood for centuries as a testament of the historical importance of the site."
In the said writ petition [WP No.10199 (MB) of 2010], the petitioner prayed for issuance of a writ, order or direction in the nature of mandamus commanding the respondents not to inflict any damage to the ancient monument in question and for further direction to the respondents to have a detailed survey of the monument carried out so as to assess the loss caused to the monument by the private respondents. The petitioner society also prayed to this Court to command the respondents to ensure repair and upkeep of the monument in question at the cost and expense of the District Administration Lucknow or Archaeological Department. The petitioner Society further prayed to this Court to command the respondents to ensure that no new construction or demolition is permitted around the monument in question in a manner that may be detrimental to its safety. The petitioner Society further more prayed that the private respondents be not allowed to carry out any repair and the possession of gate be not handed over to them in pursuance of any order.
Private respondent No.11 Santosh Kumar Agarwal, who is one of the review petitioners herein, filed a counter affidavit in the writ petition [No.10199 (MB) of 2010] which was decided by the coordinate Bench on 16.12.2010 by passing the following order:
"Heard the learned counsel for the parties.
We find that there is the U.P. Ancient and Historical Monuments and Archeological Sites and Remains Preservation Act, 1956. The subject matter of present petition has not been notified under the said Act. Similarly there is the Ancient Monument Preservation Act, 1904, under which also the subject matter of this petition has not been notified.
The case of the petitioner Cooperative Housing Society is that there is a Government order dated 20.10.1957 by which the Government is called upon to protect those properties which have not been notified under the Ancient Monument Preservation Act, 1904. The State having� enacted the U.P. Ancient and Historical Monuments and Archeological Sites and Remains Preservation Act, 1956, there is power in the State under that Act to notify such monuments or sites. The question, therefore, of any executive instructions, being issued for the purposes of protecting any ancient site or monument, does not arise. Once the field is occupied under the legislation, it is only those monuments which are notified in terms of the Act, they are entitled for protection.
Considering the above, in absence of any details in the petition, that present site has been so notified, it is not possible for this Court to exercise its extra ordinary jurisdiction in the matter.
With the above observations, the petition is disposed of."
Thereafter, Santosh Kumar Agarwal and one Vivek Goel filed Writ Petition No.12855 (MB) of 2010 on 23.12.2010, which was listed before us and dismissed as withdrawn vide the order dated 01.02.2011 in view of the fact that the Public Works Department of the State Government through State counsel made a statement that the gate is repairable. Thus, we directed the Secretary, PWD, to carry out the repairs within 2 months. It is also pertinent to mention that vide Annexure-14 [ to WP No.10199 (MB) of 2010], the Director of U.P. State Archaeology Directorate, vide letter No.875/2-32(12) 2009 dated August 10, 2009 has categorically mentioned that though the monument Khurshedbagh gate in question is not a protected monument under the Act but it being a monument of Nawabs' era is an old heritage structure. It also appears that this issue has evoked strong protest and ire of the local residents and therefore an FIR vide case crime no.769 of 2010 was also registered on 18.12.2010.
In the aforesaid premises, we have examined our order under challenge. In the order passed in Writ Petition No.10199 (MB) of 2010, the coordinate Bench has only held that the structure in question is not included in the list of protected monuments vide notification issued under the Act of 1956. The Bench has not said anything to permit the demolition of the structure. As we have noticed earlier, the Director of State Archaeology Directorate has already clarified that the gate in question being the structure of Nawabs' era is an old heritage monument. We have also noticed that the local residents of Lucknow are nostalgic about and attach great respect to the structure. Thus, we are not able to persuade ourselves to allow destruction of the historical character of the city by permitting the demolition of this structure for the personal gains of the petitioners.
Besides, the review petitioners have already mentioned in ground 'D' of the petition as :
"Because the petitioners due to certain mistake in the Writ Petition by which Para 1 and 2 of the Writ Petition were wrongly typed by the Stenographer who had typed the Writ Petition, had requested to withdraw the Writ Petition with the permission to file a fresh petition. By means of judgment in question the Hon'ble Court has only permitted to withdraw the Writ Petition without granting permission to file a fresh petition."
Needles to mention that no one can take advantage of his own mistake as per maxim COMMODUM EX INJURIA SUA MEMO HABERE DEBET. Similar views were expressed by Hon'ble the Apex Court in the case of Mritunjay Pani v. Narmda Bala Sasmal. AIR 1961 SC 1353.
In view of all the aforesaid, we are satisfied that there is no error/mistake apparent on the face of record nor is any question of law of great public importance involved in the present review petition. Thus, we do not find any merit in the review petition and it is dismissed as such.
Order Date :- 16.3.2011 VB/-