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Judgment
Kanwaljit Singh Ahluwalia, J.—Present review application has been filed under Order XLVII Rules 1 and 2 CPC seeking review/recall/modification of the order dated 24th July, 2009 whereby Civil Writ Petition No. 6182 of 2009 filed by the applicants-petitioners in public interest was disposed of. A prayer was made in the writ petition that the sanction letter dated 6th March, 2009 issued by Municipal Council, Samrala-respondent No. 4 in favour of the Block Primary Education Officer-respondent No. 5 be quashed along with the communication dated 2nd April, 2009 sent by Executive Engineer, Construction Division No. 2, PWD B&R Branch, Ludhiana in favour of the Municipal Council, Samrala that they have no objection in case respondent No. 5 is permitted to raise construction. It was further prayed in the writ petition that respondent No. 5 be restrained from raising any construction in violation of Section 3 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter referred to as, ''the Act''). In the writ petition, it was pleaded that no construction is permitted within 100 meters of either side of the scheduled road and by raising a construction within 88 feet from the scheduled road, respondent No. 5 was committing breach of the provisions of law, rules and regulations enacted to this effect.
A Division Bench of this Court (to which one of us, Kanwaljit Singh Ahluwalia, J. was a party) had relied upon the affidavit filed by respondent No. 4-Municipal Council, Samrala, wherein they stated that the encroachment in question has been removed on 25th May, 2009, and had disposed of the writ petition on 24th July, 2009 by observing as under:
... ... ... We, however, see no reason why the assertion made in the affidavit filed by a responsible officer of the Municipality and charged with the duty of removing the encroachments should be disbelieved in the absence of any material to the contrary. The building in question is a government building and is being used as Block Primary Education Office. The encroachment in question is alleged to have taken place during the construction of the said building. If the Municipal Council of the area is satisfied with the removal of the violation, we see no reason to continue with the present proceedings any further... ... ...
The petitioners filed a Civil Misc. Application for recall of the above said order, which was also dismissed by the Division Bench on 30th October, 2009. Aggrieved against the same, the petitioners approached Hon''ble the Supreme Court by filing an SLP. The SLP was disposed of as withdrawn vide order dated 3rd May, 2010 on the statement made by counsel for the petitioners that he be granted liberty to file an application for review of the order dated 24th July, 2009.
Hence, the present review application has been filed.
Briefly stated, review of the order dated 24th July, 2009 has been sought on the following grounds:
(i) That the building of Block Primary Education Office falls within 100 meters of the scheduled road and thus, the same is liable to be demolished as it constitutes violation of Section 3 of the Act;
(ii) That the site plan relied upon by respondents No. 1 to 3 and 5 depicted that respondent No. 5 has raised construction within 100 meters of the scheduled road and this escaped notice of the Bench;
(iii) That respondent No. 5, being a government official, was bound to comply with the rules and regulations;
(iv) Since much emphasis has been laid on ground (d) of the review application, we will reproduce the same in verbatim as under:
(d) because though Municipal Council, Samrala passed the plan against Section 3 of the Act and stated that 33 feets distance from the road was to be kept on both sides which measures 66 feets on both the sides. In this way the total width of the road comes to 82, 1/2 feets + 66 feets = 148, 1/2 feets even then respondent No. 5 has raised the building within 100 feets and this fact can be verified by having the area demarcated on the spot.
(v) That Hon''ble the Supreme Court has permitted the petitioners to file a review application as there were patent mistakes in the order dated 24th July, 2009, which are apparent on the face of the record and therefore, the same are required to be reviewed and rectified.
In response to the review application, respondent No. 3-Executive Engineer, Construction Division No. 2, PWD B&R Branch, Ludhiana has filed a counter affidavit. It has been categorically stated therein that the petitioners have wrongly placed reliance upon Section 3 of the Act without taking notice of the Notification dated 1st July, 1995 issued under the Act, which specifically states that the reserved area for not raising any construction on both sides of the scheduled road within the limits of Municipal Council is 10 meters (i.e. 33 feet). Furthermore, it was stated that respondent No. 4 vide order dated 2nd April, 2009 issued no objection certificate wherein requisite condition was stipulated that no construction shall be raised at a distance of 33 feet away from the road-land width. It was further stated that after filing of the writ petition, the Executive Engineer, Construction Division No. 2, PWD B&R Branch, Ludhiana called upon the revenue department for demarcation and in pursuance thereto revenue officials had carried demarcation and as per the report submitted by the Tehsildar on 15th May, 2009 some portion of the building was coming within 33 feet of the road-land width and the same constituted violation, therefore; the small corners which were coming within the distance of 33 feet from the road-land width at 2-3 places were got demolished/removed by the Executive Officer, Samrala as the site was within the jurisdiction of the Municipal Council, Samrala. Thus, according to the respondent, order dated 24th July, 2009 was rightly passed and the review application is liable to be dismissed.
Contrary averments made by the petitioners and the respondent-State make it explicitly clear that in the writ petition and the present review application, disputed questions of fact are involved. While disposing of the writ petition, we had held that there is no reason for us to doubt the stand taken by the Executive Officer of the Municipal Council that the encroachment has been removed. In the reply filed to the review application, a definite stand has been taken by the State that at the bidding of the Executive Engineer, the revenue officials had carried demarcation and the small portions of building which fell within 33 feet, being contrary to the Notification issued on 1st July, 1995 under the Act, were removed/demolished. The petitioners have not repudiated the stand taken by the State by filing any replication or counter-affidavit. Thus, the factual stand taken by the petitioners has been disputed by the State being contrary to the existing status of the building at the spot.
Mr. S.D. Sharma, Senior Advocate assisted by Ms. Bindu Goel, Advocate appearing on behalf of the applicants-petitioners, during the course of arguments, wanted us to examine Annexure A-1 photostat copy of the site plan produced by respondents No. 1 to 3 in reply to the writ petition; Annexure A-3 photostat copy of Aksh Shajra; Annexure A-4 photostat copy of the master plan and Annexure A-5 photostat copy of the town plan along with the photographs to urge that the respondents have taken a factually incorrect stand.
What are the permissible grounds, on which a writ Court can review its order, is one of the questions which engages our attention. A Division Bench of this Court in ''Kaku and others v. Savitri and others'' 1996 (1) RRR 92 has held as under:
Rule 32 of the Writ Jurisdiction (Punjab and Haryana) Rules, 1976 provides, that in all matters for which no provision is made by these rules, the provisions of the Code of Civil Procedure, 1908, shall apply mutatis mutandis in so far as they are not inconsistent with these rules... ... ..."
Once this Court holds that under Rule 32 of the Writ Jurisdiction (Punjab and Haryana) Rules, 1976 and provisions of the Code of Civil Procedure, 1908 are applicable, this Court has to revert to Order XLVII Rule 1 CPC which states the grounds on which review can be sought. Limitations regarding review were noticed by a 3-Judge Bench of Hon''ble the Apex Court in ''S. Bagirathi Ammal v. Palani Roman Catholic Mission'' 2008 (1) RCR (Civil) 289, wherein it was observed as under:
... ... ... A reading of the above provision makes it clear that Review is permissible (a) from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the face of the record or is a palpable wrong; (d) any other sufficient reason. If any of the conditions satisfy, the party may apply for a review of the judgment or order of the Court which passed the decree or order. The provision also makes it clear that an application for Review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. An 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 fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled re-hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order... ...
On the touchstone of above guidelines, it is to be noticed that in our order dated 24th July, 2009, we have taken note of the categoric stand taken by the respondent that the alleged encroachment has been removed. In the reply filed to the review application, this stand has been further reiterated and it has been stated in definite terms that no violation of any provision has been found at the spot within the distance of 33 feet from the road. Therefore, we shall refrain to hold a fishing enquiry at the bidding of the applicants. The grounds pleaded being not tenable, we find no merit in the present application and hence the same is dismissed.