High Court · 2025

Case :- CIVIL MISC REVIEW APPLICATION No. - 163 of 2025 Applicant :- Arun Kumar And Another Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Lihazur Rahman Khan,Rishikesh Tripathi Counsel for Opposite Party :- Akshay Prakash Srivastava,C.S.C. Hon'ble Anjani Kumar Mishra,J. Hon'ble Jayant Banerji,J.

1. The review applications are belated and accompanied by applications under Section 5 of the Limitation Act for condonation of delay.

2. Upon a consideration of the averments made in the affidavit filed in support of the review applications, we deem it appropriate to condone the delay in filing of the review applications.

3. Heard Shri Lihazur Rahman Khan, learned counsel for the applicants in these review petitions and Shri Akshay Prakash Srivastava, who appears for the respondents.

4. The applicant seeks review of the judgment and order dated 31.01.2025. This order is a common order passed in Writ Petition No.10017 of 2022 and 10466 of 2022 and therefore two review applications have been filed.

5. The submission of learned counsel for the applicant is that the Nagar Palika is bound by the provisions contained in Section 287 of the Municipalities Act and a notice under Section 263 had been issued to the applicants but this aspect has not been discussed in the judgment sought to be reviewed.

6. It is next contended that the order passed by the Sub Divisional Magistrate on 29.08.2019 is contrary to Sections 133, 134 and 137 to 140 Cr.P.C. No enquiry was conducted by the S.D.M. Reference in this regard has also been made in paragraph 32 to 37 of the writ petition.

7. The contention of learned counsel for the respondents is that the review application is not maintainable as it has not been filed by the counsel who had argued the matter, whereupon the judgment under review was passed.

8. He has next submitted that the order impugned in the writ petition was the order dated 29.08.2019 passed by the Sub Divisional Officer, which order had been passed consequent to the directions issued by the writ Court and it was passed after inviting objections from the occupiers of the structure in question and after considering them. The order also took into account technical reports pursuant to the directions of the writ Court. The review applications merit dismissal.

9. Insofar as the submission of the applicants that the provisions contained in Sections 137 to 140 of the Cr.P.C. had not been followed, he submits that these provisions were the general law. The provisions whereunder the order had been passed were with regard to the provisions of the Municipalities Act, 1916. A special enactment overrides the provisions in the general law.

10. He has also submitted that by means of the review petition, an attempt is being made to reopen the case on the basis of new facts not pleaded or argued earlier.

11. In his rejoinder, the counsel appearing for the applicant has submitted that the objections filed by the applicants before the Executive Officer have not been decided till date and that the order impugned in the writ petition was without opportunity of hearing.

12. We have considered the submissions made by learned counsel for the parities and perused the record and ground taken in the review applications.

13. The ground no.1 to 12 all assail the findings returned in the various paragraphs of the judgment under review. Insofar as incorrect findings are concerned, such allegedly incorrect findings may render the judgment under review to be erroneous,however the same cannot be a ground for allowing a review application, which is only for correcting an error apparent on the face of the record.

14. The other grounds taken in the review application especially ground no.13 are factual in nature.

15. Grounds 18 onward state that the judgment under review is incorrect as the judgments and rulings mentioned in these paragraphs have not been adverted to. This ground has been taken without specifically pleading that the judgments were actually cited at the time of hearing of the writ petition and had not been considered.

16. Review cannot be sought on the basis of judgments, which were never cited or relied upon at the time of hearing of the writ petition.

17. Insofar as non-adherence to the provisions of Section 133 etc. of the Cr.P.C. is concerned, it is relevant to note that the order passed by the S.D.O. dated 29.08.2019, which was impugned in the writ petition, was an order passed consequent to directions issued by the writ Court. In Writ Petition No.17227 of 2019, which had been filed by the owner of the building in question, he had sought a direction for demolition of the structure in terms of the report of the Junior Engineer, Nagar Palika Parishad dated 25.08.2018 as also a report dated 15.02.2019 of the members of the Technical Audit Cell, Executive Engineer And Assistant Engineer Nirman Khand-3, Public Works Department at Orai. The petition was disposed of, directing the Sub-Divisional Magistrate, Jalaun, to examine the matter and pass appropriate orders in accordance with law. The matter came up before the Sub- Divisional Magistrate not as a matter under Section 133 of the Cr.P.C. but under direction of the writ Court and, therefore, any procedure prescribed for deciding proceedings under Section 133 Cr.P.C. etc. cannot vitiate the order of the S.D.M. and nor can any such alleged non-compliance of the provisions of the Cr.P.C. render the judgment of this Court liable to be reviewed.

18. For the same reason, this Court does not feel obliged to consider the judgments relied upon by the applicant insofar the provisions of Section 133 etc. are concerned.

19. The review is also sought relying upon the judgments which has not been cited at the time of hearing of the writ petitions, wherein the judgment under review had been passed. As noted, these review applications have been filed by counsel other than the counsel who appeared for the petitioner in the writ petition, albeit after obtaining no objection.

20. In view of the foregoing reasons, we do not find any merit in the review applications. The judgment sought to be reviewed has been passed on merits after hearing the counsel for the petitioner and the respondents at length and it suffers from no error apparent on the face of the record.

21. The review applications are, therefore, rejected. Order Date :- 15.5.2025 Mayank MAYANK KUMAR SHARMA High Court of Judicature at Allahabad

Case :- CIVIL MISC REVIEW APPLICATION No. - 163 of 2025 Applicant :- Arun Kumar And Another Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Lihazur Rahman Khan,Rishikesh Tripathi Counsel for Opposite Party :- Akshay Prakash Srivastava,C.S.C. Hon'ble Anjani Kumar Mishra,J. Hon'ble Jayant Banerji,J.

1. The review applications are belated and accompanied by applications under Section 5 of the Limitation Act for condonation of delay.

2. Upon a consideration of the averments made in the affidavit filed in support of the review applications, we deem it appropriate to condone the delay in filing of the review applications.

3. Heard Shri Lihazur Rahman Khan, learned counsel for the applicants in these review petitions and Shri Akshay Prakash Srivastava, who appears for the respondents.

4. The applicant seeks review of the judgment and order dated 31.01.2025. This order is a common order passed in Writ Petition No.10017 of 2022 and 10466 of 2022 and therefore two review applications have been filed.

5. The submission of learned counsel for the applicant is that the Nagar Palika is bound by the provisions contained in Section 287 of the Municipalities Act and a notice under Section 263 had been issued to the applicants but this aspect has not been discussed in the judgment sought to be reviewed.

6. It is next contended that the order passed by the Sub Divisional Magistrate on 29.08.2019 is contrary to Sections 133, 134 and 137 to 140 Cr.P.C. No enquiry was conducted by the S.D.M. Reference in this regard has also been made in paragraph 32 to 37 of the writ petition.

7. The contention of learned counsel for the respondents is that the review application is not maintainable as it has not been filed by the counsel who had argued the matter, whereupon the judgment under review was passed.

8. He has next submitted that the order impugned in the writ petition was the order dated 29.08.2019 passed by the Sub Divisional Officer, which order had been passed consequent to the directions issued by the writ Court and it was passed after inviting objections from the occupiers of the structure in question and after considering them. The order also took into account technical reports pursuant to the directions of the writ Court. The review applications merit dismissal.

9. Insofar as the submission of the applicants that the provisions contained in Sections 137 to 140 of the Cr.P.C. had not been followed, he submits that these provisions were the general law. The provisions whereunder the order had been passed were with regard to the provisions of the Municipalities Act, 1916. A special enactment overrides the provisions in the general law.

10. He has also submitted that by means of the review petition, an attempt is being made to reopen the case on the basis of new facts not pleaded or argued earlier.

11. In his rejoinder, the counsel appearing for the applicant has submitted that the objections filed by the applicants before the Executive Officer have not been decided till date and that the order impugned in the writ petition was without opportunity of hearing.

12. We have considered the submissions made by learned counsel for the parities and perused the record and ground taken in the review applications.

13. The ground no.1 to 12 all assail the findings returned in the various paragraphs of the judgment under review. Insofar as incorrect findings are concerned, such allegedly incorrect findings may render the judgment under review to be erroneous,however the same cannot be a ground for allowing a review application, which is only for correcting an error apparent on the face of the record.

14. The other grounds taken in the review application especially ground no.13 are factual in nature.

15. Grounds 18 onward state that the judgment under review is incorrect as the judgments and rulings mentioned in these paragraphs have not been adverted to. This ground has been taken without specifically pleading that the judgments were actually cited at the time of hearing of the writ petition and had not been considered.

16. Review cannot be sought on the basis of judgments, which were never cited or relied upon at the time of hearing of the writ petition.

17. Insofar as non-adherence to the provisions of Section 133 etc. of the Cr.P.C. is concerned, it is relevant to note that the order passed by the S.D.O. dated 29.08.2019, which was impugned in the writ petition, was an order passed consequent to directions issued by the writ Court. In Writ Petition No.17227 of 2019, which had been filed by the owner of the building in question, he had sought a direction for demolition of the structure in terms of the report of the Junior Engineer, Nagar Palika Parishad dated 25.08.2018 as also a report dated 15.02.2019 of the members of the Technical Audit Cell, Executive Engineer And Assistant Engineer Nirman Khand-3, Public Works Department at Orai. The petition was disposed of, directing the Sub-Divisional Magistrate, Jalaun, to examine the matter and pass appropriate orders in accordance with law. The matter came up before the Sub- Divisional Magistrate not as a matter under Section 133 of the Cr.P.C. but under direction of the writ Court and, therefore, any procedure prescribed for deciding proceedings under Section 133 Cr.P.C. etc. cannot vitiate the order of the S.D.M. and nor can any such alleged non-compliance of the provisions of the Cr.P.C. render the judgment of this Court liable to be reviewed.

18. For the same reason, this Court does not feel obliged to consider the judgments relied upon by the applicant insofar the provisions of Section 133 etc. are concerned.

19. The review is also sought relying upon the judgments which has not been cited at the time of hearing of the writ petitions, wherein the judgment under review had been passed. As noted, these review applications have been filed by counsel other than the counsel who appeared for the petitioner in the writ petition, albeit after obtaining no objection.

20. In view of the foregoing reasons, we do not find any merit in the review applications. The judgment sought to be reviewed has been passed on merits after hearing the counsel for the petitioner and the respondents at length and it suffers from no error apparent on the face of the record.

21. The review applications are, therefore, rejected. Order Date :- 15.5.2025 Mayank MAYANK KUMAR SHARMA High Court of Judicature at Allahabad