Heard Shri Prashant Chandra, learned Senior Advocate assisted by Shri Jaspreet Singh, Advocate for the applicants-petitioners and Shri S.K. Kalia, learned Senior Advocate, Shri M. A. Khan, Senior Advocate and Shri Anil Tiwari, Senior, Senior Advocate assisted by Shri Rajat Rajan Singh, Mohd. Adil Khan, Mohd. Shadab Khan and Shri Apoorva Tewari, Advocate.
This is an application for review filed by the applicants-petitioners seeking a review of the judgment passed by the Writ Court on 27.04.2010 in Writ Petition No. 349(M/S) of 2007 by which the writ petition under Article 226 of the Constitution of India challenging the judgment dated 15.11.2006 passed by the Board of Revenue arising out of the proceedings in two Suits under Section 229-B and 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'Land Reforms Act, 1950'), respectively.
First and foremost a preliminary objection was raised by the Senior Counsel appearing for the opposite parties no. 4 and 5 on the ground that there was no provision for reviewing the judgment passed under Article 226 of the Constitution of India, secondly, the review application had been filed on 11.08.2010 i.e. after almost three months of passing of the judgment dated 27.04.2010, therefore, it was beyond the period of 130 days prescribed under Section 124 of the Limitation Act, 1963, that too, unaccompanied by any application under Section 5 for extension of limitation/condonation of delay in filing the same, therefore, not only interim order could not have been passed therein, but, in fact the review application itself was not maintainable and was liable to be dismissed.
Shri Prashant Chandra, learned Senior Advocate appearing for the applicants submitted that power was exercised by this Court by virtue of it being a Court of record having plenary powers to do complete justice between the parties and not under any provision such as Order XLVII C.P.C. etc. thus, the contention that there was no such power of review was misconceived. There is no question of application of the Limitation Act, 1963 to a review application arising out of writ proceeding under Article 226 of the Constitution of India.
The writ jurisdiction exercised under Article 226 of the Constitution of India is an extraordinary discretionary jurisdiction bestowed on the High Courts. By virtue of Section 141 C.P.C. the provisions of Code of Civil Procedure do not apply to such proceeding, therefore, the provision for review as prescribed under Order XLVII Rule 1 of the said Code, stricto sensu, does not apply to writ proceedings. There is no dearth of decisions to the effect that such powers of review are exercised by this Court in exercise of its inherent plenary powers to do complete justice for which no specific provision is required. It is also very well settled that in view of explanation to Section 141 C.P.C. the Code does not apply to writ proceedings. Nevertheless the exercise of such power can be guided by the Principles contained therein. Reference may be made in this regard to the constitution Bench judgment of the Supreme Court in the case of Shivdeo Singh Vs. State of Punjab reported in AIR 1963 SC 1909 wherein it was held that "it is sufficient to say that there is nothing under Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it".
Reference may also be made in this regard to the decision of the Supreme Court reported in (2005) 13 SCC 289; Rajender Singh Vs. Lt. Governor, Andman and Nicobar Islands and others wherein it was held that "the power of judicial review of its own order by the High Court inheres in every court of plenary jurisdiction to prevent miscarriage of justice." It was also a case of review arising out of proceedings under Article 226 of the Constitution of India.
Reference may also be made to a recent decision of the Supreme Court reported in (2014) 14 SCC 77; State of Rajasthan and another Vs. Surendra Mohnot and others which is on the same lines.
As far as the prescription of limitation of 30 days for an application for review of a judgment by a Court other than the Supreme Court under Section 124 of the Scheduled to the Limitation Act, 1963 and its application to the case at hand is concerned, this is an application seeking review of a judgment passed under Article 226 of the Constitution of India. Reference may be made in this regard to the decision of the Supreme Court reported in (1983) 2 SCC 1; Smt. Sudama Devi Vs. Commissioner and others wherein their Lordships observed that "there is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event one thing is clear and beyond doubt that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation." The Supreme Court disapproved the order of the High Court dismissing the writ petition on the ground that it was beyond by time 136 days and that no explanation had been offered in this regard. On similar lines is the decision of the Supreme Court in the case reported in (1998) 8 SCC 685; State of U.P. and Others Vs. Raj Bahadur Singh and Another.
It is also well settled that no limitation is prescribed under the Limitation Act, 1963 or otherwise for exercise of inherent powers, whether it be under Section 151 C.P.C. or the power of review as in this case which arises out of proceedings under Article 226 of the Constitution of India. A reference may be made in this regard to a Division Bench Judgment of this Court reported in Allahabad Rent Cases, 1990 (2) 444; Iqbal Siddiqui Vs. Smt. Kishwar Jahan (paragraph 19) wherein a plea based on the bar of the limitation prescribed under Section 124 of the Limitation Act was raised in respect of an application for review under Section 151 C.P.C. and not Order XLVII, Rule 1 of C.P.C. The Court was of the view that the prescription of Limitation Act under Article 124 was for a review application which was referable to Order XLVII, Rule 1 C.P.C. but not to an application under Section 151 C.P.C. invoking the inherent powers of the Court. Accordingly, it held that Article 124 of the Schedule contained in the Limitation Act was not involved.
Similar view was taken in a case reported in AIR 1929 Oudh 385; Mohammad Raza Vs. Ram Saroop and Others wherein by majority the Full Bench answered that "it is open to a party in a suit to invoke the inherent power of the Court to get the judgment and the decree amended under the provisions of Sections 151, 152 and 153 of the Code quite apart from the limitation applicable to the institution of an appeal or a review whether interference would be justified under such proceeding was a different matter to be considered on merits.
The Allahabad High Court Rules, 1952 do not contain any substantive provision for review of a judgment passed under Article 226 of the Constitution of India nor do they prescribe any limitation for exercise of the inherent power of review, nay, it could not have. The only provision is contained in Chapter V of Part 1 which is titled "JURISDICTION OF JUDGES SITTING ALONE OR IN DIVISION COURTS" and Rule 12 thereto merely prescribes the procedure as to how an application for review of a judgment shall be presented before the Registrar, who after doing the needful as per the said Rule. On bare perusal of the said Rule the Court finds that it is not a substantive provision prescribing for a review of judgment as aforesaid. Though it states that the Registrar shall present the same before the judge by whom such judgment was delivered along with an office report as to the limitation and sufficiency of Court fees it does not mean that a limitation has been prescribed for review of a judgment rendered under Article 226 of the Constitution of India. Chapters XXI and XXII of Part IV of the Rules of the High Court relate to enforcement of fundamental rights (writ in the nature of Habeas Corpus and direction or writ under Article 226 of the Constitution of India other than a writ in the nature of Habeas Corpus). None of the Rules therein contain a substantive provision for reviewing a judgment passed under Article 226 of the Constitution of India or a limitation for the same.
As has already been stated herein above, the power to review its judgment inheres in this Court as it exercises plenary jurisdiction to do complete justice and prevent its miscarriage. As there is no limitation prescribed for exercise of inherent power, therefore, it would be wrong to hold that limitation prescribed under Article 124 of the Schedule to the Limitation Act would govern the proceedings in question. Thus Article 124 of Limitation Act, 1963 is not attracted to a Review Petition seeking review of a judgment rendered under Article 226 of the Constitution of India. Having said so, the Court can not be unmindful of the legal position that whenever no such limitation is prescribed the action should be taken within a reasonable period. The reasonableness of a period would depend upon the facts and circumstances of each case and no hard and fast Rule can be laid down in this regard.
In this case the office/registry though it appears to have calculated the limitation, based on the provision contained under Article 124 of the Limitation Act, which was not applicable, made an endorsement that the Review Petition was within time.
In view of the above, the preliminary objection raised by the learned Senior Counsel appearing for the opposite parties that there is no power of review vested in the Court for review of the judgment in question or that it was barred by limitation is hereby rejected. In view of the aforesaid, the requirement of filing of an application under Section 5 of the Limitation Act, 1963 also does not arise though this Court must hasten to add that an explanation for a delay specially when it is inordinate and prejudicial to other side ought to be offered and can be called for by the Court. In the present case, the judgment was delivered on 27.04.2010. The certified copy of the corrected judgment was issued on 10.08.2010 after correction having been made on 17.05.2000. The review application was filed on 11.08.2010 in the Court. Thus, the review application was not filed with inordinate delay. In fact in para 34 a specific plea was raised that there is no limitation for the filing of a writ petition and there is also no limitation for the filing of a review application. Thus, even on the basis of reasonableness of period, considering the facts of the case, the application for review is not liable to be thrown out, as, it was filed within a reasonable period of judgment passed by the Writ Court.
On the merits of the review application Shri Prashant Chandra, learned Senior Advocate contended that purport and effect of the bar under Section 49 of the U.P. Consolidation of Holdings Act, 1953 (For short 'Holdings Act, 1953), Section 34 of the United Provinces Tenancy Act, 1939 (For short 'the Tenancy Act, 1939), as also, the bar imposed by Section 6 of the Limitation Act, 1963 were not considered and appreciated by the Writ Court while passing the judgment under review. The Court failed to appreciate that by virtue of Section 34 of the Tenancy Act, 1939 the property, consequent to the death of her husband in the year 1950, devolved upon her by application of Muslim Personal Law as mentioned therein and not by Section 35 of the said Act. He contended that Shafiqur Rahman was duly represented through his Aunt in the proceeding before the consolidation authorities and after attaining majority he did not initiate any legal proceedings assailing the validity of the said orders passed by the consolidation authorities. In fact it was Atiqur Rahman, who in fact was a major at the relevant time and had contested the case, who filed the suit under Section 229-B of the U.P.Z.A.L.R. Act, 1950, that too, after the filing of a suit by the petitioners under Section 176 of the U.P.Z.A.L.R. Act, 1950 for demarcation/ partition of their share as already determined in the consolidation proceeding which had attained finality. He also contended that in the suit filed by the Atiqur Rahman the factum of the earlier consolidation proceedings and orders passed therein, which had attained finality up to the Deputy Director of Consolidation Level, were not disclosed and thus, a fraud was committed which vitiates the entire proceedings, but, this aspect of the matter has not been considered by the Writ Court while deciding the writ petition. It was contended that the initial suit filed by Atiqur Rahman in the year 1985 was based on adverse possession which presumed acceptance of the title of the petitioner and there was no claim based on Section 172 of the Land Reforms Act, 1950 on account of the subsequent marriage of the petitioners, therefore, without thereby being any pleading and any such ground in the suit the Board of Revenue had erred in allowing the claim of the respondents on the said count.
Per-contra learned Senior Counsel appearing for the respondents contended firstly that whatever has been argued was neither pleaded in the writ petition nor has it been pleaded in the review application, therefore, the same can not be considered. The pleas based on Section 35 of the Tenancy Act, 1939 and the bar of Section 49 of the Holdings Act, 1953, as also, the question of minority of the Shafiqur Rahman at the time of consolidation proceedings had been considered by the Writ Court while passing the judgment, therefore, the said issues are not open for re-consideration in proceedings for review. When the consolidation proceedings took place Shafiqur Rahman was admittedly minor and the Consolidation Court did not appoint any guardian in terms of Rule 14 of the U.P. Consolidation of Holdings Rules, 1954 (For short 'Consolidation Rules, 1954') under which only a male could have been appointed. It is alleged by the petitioners that his Aunt who had been appointed in some other proceedings by the Civil Court had represented his interest which was clearly in-violation of Rule 14 of the Consolidation Rules, 1954. These aspects have been considered by the Board of Revenue and the Writ Court. Moreover, after the death of Fazlur Rahman, the petitioner his wife remarried in the year 1952, similarly petitioner no. 2 who was the daughter also got married, therefore, by virtue of provisions contained in Section 172 of the Land Reforms Act, assuming that any share in the estate of Fazlur Rahman (¼ share) devolved upon them, the same stood devolved back upon Shafiqur Rahman who was the nearest surviving male heir of Fazlur Rahman. Section 172 (2) would apply even to the case of petitioners who had allegedly inherited an interest in the holdings before the date of vesting. In the case of petitioner no. 2 Section 172(1) was applicable.
Further more, the plea based on Section 34 of the Tenancy Act, 1939 was absolutely misconceived and misleading, as, by the Muslim Personal Law (Shariat) Act 1937, Section 2 thereof, an exception was carved out by the words 'save questions relating to agricultural land' meaning thereby such Muslim Personal Law was not applicable to questions relating to agriculture land, therefore, the petitioners could not have inherited any interest/share in the agricultural holding of Fazlur Rahman which had to devolve on the male heir i.e. Shafiqur Rahman, who was a minor at that time. These aspects have been considered by the Board of Revenue.
Further more, it was contended that the reliance placed on Section 6 of the Limitation Act was also misconceived, as, for a suit under Section 229-B of the Land Reforms Act, no limitation was prescribed. He referred to the said provision, as also, opening line of Section 342 read with Rule 338 of the U.P. Zamindari Abolition & Land Reforms Rules, 1952 and Appendix III referred therein, a conjoint reading of which makes its ample clear that no such limitation is prescribed for initiating proceedings under Section 229-B. It being so the application of Section 6 of Limitation Act was misconceived.
Section 49 of the Holdings Act, 1953 would not be a bar in case where the party concerned was a minor and there was no compliance of Rule 14 of the Holdings Act, 1953, specially, when Section 172 of the Land Reforms Act, 1952 was applicable and in view of the Shariat Act 1937 the petitioners could not have inherited the property of Fazlur Rahman as Muslim Personal Law was not applicable in such matters. The ¼ share allegedly granted by the Consolidation Authorities was patently erroneous and was not saved by Section 49 of the Act, 1953.
It was further contended that in the garb of a review application the matter could not be reheard. Distinction between a review proceeding and appellate proceeding was also highlighted.
While it is true that there is nothing in Article 226 of the Constitution of India to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it but it is also equally true that there are limits to the exercise of such power of review. Such power 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 persons seeking review or could not be produced by him at the time when the order was made, which is not the case here; 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 other sufficient reason. The words "any other sufficient reason" means "a reason sufficient on grounds at least analogous to those referred hereinabove. (AIR 1954 SC 526; Moran Mar Basselios Catholicos and Anr. Vs. The Most Rev. Mar Poulose Athanasius and Ors.).
As far as the term 'error or mistake apparent on the face of the record' is concerned, by its very connotation it signifies an error which is evident per-se from the records of the case and does not require any detailed examination, scrutiny and illustration either on facts or legal position. If an error is not evident and detection thereof requires long debate and process of reasoning it can not be treated as an error apparent on the face of the record for the purpose of order XLVII Rule 1 C.P.C. or review proceeding based on the principals contained therein. An order or decision merely because it is erroneous can not be reviewed on the ground that a different view could have been taken on a point of fact or law, as, the Court would not sit in appeal over its judgment. The decision being erroneous in law, is no ground for ordering review, unless of course the error in law is so palpable that there could be no other view in the sense that the matter had already been set at rest by any previous judgment of the Court or a higher Court from which there was no escape. Reference may be made in this regard to the Judgment of the Supreme Court dated 13.12.2012 rendered in Review Petition (C) No. 272 of 2007 arising out of Writ Petition (C) No. 633 of 2005.
The Court has carefully perused the pleadings of the original writ proceeding as also the review proceeding. The Court finds that various pleas which have been raised by Shri Prashant Chandra, learned Senior Counsel, no foundation for the same was/has been laid either in the pleadings of the writ petition or in the review application. It has not been said in the review application and the affidavit in its support that pleas based on fraud in not disclosing the earlier consolidation proceeding and provisions of Section 34 of the Tenancy Act, 1939 etc., were argued before the Writ Court but had not been taken into consideration.
In the review application it has been, inter alia, stated that the Writ Court committed a manifest error of law in not recording any finding in the light of the bar of Section 49 of the Consolidation of Holdings Act, 1953 specially as the consolidation proceedings which were hotly contested had attained finality up to the level of the Deputy Director of Consolidation. On a perusal of the judgment of the Writ Court, it is found that the bar of Section 49 of the Holdings Act, 1953 has been specifically considered and it was held that the same was not applicable. The Court has also taken into consideration the consolidation proceedings which have been referred by the petitioners, therefore, this ground is not available for seeking a review.
The other ground raised is that Writ Court erred in holding that the interests of the minor were not properly watched during the consolidation of holdings proceeding, as, no prejudice was caused, the petitioners having been held entitled to only ¼ share in the holdings of Fazlur Rahman, the rest having been made available to the opposite parties and that the Writ Court ignored the provisions of Section 6 of the Limitation Act. In this regard the Court is of the view that once the issue of minority of Shafiqur Rahman being barred by Section 49 of the Holdings Act, 1953 was considered by the Writ Court, then, to say that conclusions drawn were without any basis or justification may be a ground for appeal against the said judgment, but, not for seeking review.
As far as Section 6 of the Limitation Act is concerned, certainly this plea was raised by way of an amendment. The Writ Court while passing the judgment has categorically referred that it has gone through the contents of the writ petition including paragraphs 30-A, 30-B and 30-C which have been brought on record by application dated 23.04.2010 and the grounds A to H made in the writ petition as well as the counter and rejoinder affidavits filed by the contesting parties. It is also mentioned that it has perused various orders passed by the Revenue Authorities which are available on record. Now, ground-G is based on Section 6 of the Limitation Act. After the death of Fazlur Rahman in the year 1950 but before the date of vesting, the petitioner no. 1 is alleged to have inherited 1/4th share in his property, the petitioner no. 2 did so subsequently. It is also not out of place to mention that the land in question was agricultural land and this fact is not in dispute. The consolidation proceedings are said to have been completed sometimes in the year 1964. Under the orders of the Consolidation Authorities it is said that petitioners were held entitled to ¼ share in the holdings of Fazlur Rahman on the basis of Muslim Personal Law. Shri Prashant Chandra, learned Senior Advocate referred to Section 34 of the Tenancy Act, 1939 which according to him permitted devolution of holdings in accordance with the Personal Law to which the deceased was subject, in case a permanent tenure holder, a fix rate tenant, an occupancy or an ex-proprietary tenant in Oudh or a tenant holding on special terms in Oudh, dies. Assuming for a moment that Fazlur Rahman belonged to one of the category of tenants referred in Section 34 of the Tenancy Act, 1939, the application of Personal Law referred therein did not by itself make Muslim Personal Law applicable in view of the bar contained in Section 2 of the Shariat Act, 1937. When confronted Shri Chandra could not give any satisfactory reply on this issue. In Section 35 of the Tenancy Act, 1939 the holding of Fazlur Rahman was to devolve on a male lineal descendant in the male line of descent. The petitioners did not fall in this category. The order of the Consolidation Officer is not on record. It is not clear as to whether the petitioners had disclosed the factum of remarriage in those proceedings, as, under Section 172, even assuming that any interest had devolved upon them, the same would devolve back on the nearest surviving male heir.
Further more the writ proceeding arose out of a suit filed by the petitioners under Section 176 for division of their holdings based on the orders of the Consolidation Courts passed earlier and a suit under Section 229-B filed by Atiqur Rahman claiming that even after earlier consolidation proceeding he and others remained in possession and also on the basis of the factum of remarriage of the petitioners (Section 172 of the Land Reforms Act), therefore, it can not be said that the consolidation proceedings were not disclosed, may be, not in so many words, but, they were certainly referred in the plaint by way of an amendment. Both the suits were decided together. The proceedings ultimately went up to the Board of Revenue wherein it was held that the minor's interest was not represented properly. No guardian was appointed in terms of the Rule 14 of the Consolidation Rules, 1954. The petitioners had remarried thereby attracting the provisions of Section 172. The Board of Revenue decided the matter against the petitioners whereupon they filed the writ petition which was also decided against them.
It is not out of place to mention that for initiating a proceeding under Section 229-B of the Land Reforms Act, 1950 no limitation is prescribed under the Land Reforms Act. The application of the Limitation Act, 1963 to the proceeding under the said Act is qualified by the opening words 'unless otherwise expressly provided for by or under this act'. Section 229-B does not prescribe any limitation. The U.P. Consolidation Holdings Rules, 1954 have been made under the Consolidation of Holdings Act 1953. Rule 338 provides that the suit, applications and other proceedings specified in the Appendix III shall be instituted within the time specified therein for them, respectively. This provision was inserted vide notification dated 27.04.1963. A perusal of Appendix III referred therein, specially the entry at Serial No. 39-B which was inserted by notification dated 16.11.1954 and relates to a suit under Section 229-B and the entry in Column No. 4 and 5 corresponding to the same, show that the word 'none' is mentioned therein. The heading of the said column is 'Period of Limitation' and 'Time from which period begins to run' which makes it amply clear that no such limitation is prescribed for such proceedings under Section 229-B.
For the reasons aforesaid, the pleas raised by the petitioners seeking review including the plea based on Section 6 of the Limitation Act, 1963 is misconceived. This Court while hearing a review application can not sit in appeal over the judgment passed in the writ proceeding nor can it review the judgment based on a rehearing of the matter.
In view of the law laid down in various judgments already referred herein above, the Court does not find any valid ground for reviewing the judgment dated 27.04.2010 passed in Writ Petition No. 349(M/S) of 2007.
The review application is, accordingly, dismissed. There shall be no orders as to costs.