Shrikant Studios Pvt. Ltd. v. Mumbai Municipal Corporation & Ors.

1. The Petitioner seeks a review of the order dated 30th August, 2022, to permit the Petitioner to put a gate and barbed wire fencing on that portion of the area on which the sub-division marking is done by the City Survey office pursuant to the aforestated order.

2. As per the order dated 30th August, 2022 (“the order” for short), both petitioner and the respondent No. 3 independently applied to the City Survey Office for sub-division of the jointly owned land bearing CTS NO. 783(pt). Thereafter correspondence was exchanged between the Petitioner and the Respondent No. 3 to permit the Petitioner to lay PNG pipeline and erect a gate with barbed fencing on that part of the land abutting V.N. Purav Road coming to their share as per the sub-division carried out by the City Survey Office. Though the letter dated 29th March, 2023, was admittedly received by the respondent No. 3, the Petitioners’ have not received any revert.

3. Mr. Vashi learned Senior Counsel for the Petitioner submitted that pursuant to the subdivision of the land, both the Petitioner and the Respondent No. 3 are entitled to use and enjoy the land coming to their share. It is submitted that presently there is a wicked gate abutting V.N. Purav Road which must be reduced in size to identify the Petitioners’ portion of the subdivided land. He on instructions stated that though in the review petition the sub-division is stated to be unacceptable, the Petitioners agree to accept the sub-division as carried out by the City Survey Office.

4. The learned Counsel submitted that the review petition was delayed by 223 days since respondent No. 3 had shown reluctance to comply with the implied order on 24th March, 2023 and therefore seeks condonation.

5. The learned Counsel for the Petitioner relied upon the Judgments in the case of Speed Ways Picture Pvt. Ltd. & anr. v/s. Union of India and anr.1, Shivdeo Singh and ors. v/s. State of Punjab & ors.2, and Chhajju Ram v/s. Neki and ors.3, in support of his contentions.

6. Mr. Khandeparkar learned Counsel for the Respondent No. 3 opposed the Review Petition on the ground of maintainability, stating that the prayers sought in the Petition enlarge the scope of the review and lead to modification of the order which is not permissible in review. He submitted that the Petitioner has failed to point out any error in the order and therefore, no case is made out for review of the order.

7. He vehemently urged that the Petitioner is not entitled to get possession of land, in the garb of a review of an order in the Writ Petition, since the order does not grant possession specifically. He indicated that there was no prayer for possession of the jointly owned land, even in the main petition. He further indicated that the review petition itself avers that the Petitioners were not agreeable with the sub-division carried out by the City Survey Office and the acceptance to the 1 (1996) 6 SCC 705 more particularly paragraphs 5 & 6 2 AIR 1963 SC 1909 more particularly paragraphs 3 to 8 3 AIR 1922 PC 112 more particularly paragraphs 10 to 12 sub-division is only accepted during arguments. He submitted that putting up the gate and the barbed wire fencing would mean demarcating the property (as per the sub-division presently carried out) and removing the wall which was there on the property since the past 50 years. He submitted that such an action is modification of an order and cannot be sought through a review petition. He submitted that a consent decree could be modified only by consent of both parties.

8. The learned Counsel relied upon the judgments in the case of Compack Enterprises India Pvt. Ltd. v/s. Beant Singh[4], and S. Madhusudhan Reddy v/s. V. Narayana Reddy and ors.5, in support of his aforesaid contention. Conclusion:

9. We have heard both counsel and perused the records. The present review is not before the same bench which passed the order since Mr. R.D.Dhanuka J has retired and the matter is placed before this bench. The application is in the nature of modification which in our view cannot be done by this bench. There is no error on the face of the record or new material as such to cause a review. The application is not within the scope of review. 4 (2021) 3 SCC 702 more particularly paragraphs 19 to 21 5 2022 SCC OnLine SC 1034 and more particularly paragraphs 18 to 24

10. The reliance placed on the judgment of Chajju Ram (supra) is misplaced as the reliefs sought are not based on any of the criteria laid down by the Privy Council viz. new material overlooked by excusable misfortune, mistake or error apparent on the face of the record or any other sufficient reason.

11. Learned Senior Counsel’s reliance on the judgment of Shivdeo Singh (Supra) which held that “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 jurisdiction to prevent miscarriage of justice or to correct the grave and palpable errors committed by it” is also misplaced. In the present case there is no dispute regarding powers of the High Court to review its order under Article 226 but a case where the review petitioner seeks to unilaterally modify a consent order which in our view can only be done with the consent of both parties.

12. The Learned Senior counsel’s reliance upon the case of Speedways Picture Ltd (supra) to submit that the order was reviewable in view of the fact that it was an order in invitum bearing the nomenclature “minutes of the order” and not a consent order will not be helpful as although the order is reviewable no case is made out for review as none of the criteria laid down by the Privy Council in the case of Chhajju Ram (supra) and followed subsequently by various judgments have been met.

13. In view of the above we are of the view that review petition is not maintainable as there is no error in the Order dated 30th August, 2022. A Consent Order can be modified only with consent of both parties. Even if it is an order in invitum this application is not maintainable as it does not meet with the criteria laid down by the Privy Council in the case of Chhajju Ram (supra). The Review Petition is accordingly dismissed.

14. The Petitioner may put up the gate and do the barbed wire fencing, if entitled in law.

15. Review Petition is disposed of. No order as to cost. [ KAMAL KHATA, J. ] [ SUNIL B. SHUKRE, J ]