Misc. Application No.108 of 2011,Misc. Application No.218 of 2009

10th February, 2012

Petitioner Counsel: Mr. A.K. TEWARI
Respondent Counsel: Mr. S.K. SRIVASTAV with Ms. MANORAMA MOHANTY & Mr. G. SHAH i/b S.K. SRIVASTAV & CO

Cases Cited:
Solidaire India Ltd Vs. Fairgrowth Financial Services Ltd., (2001) 3 SCC 71 [Para 5]
Tax Recovery Officer Vs. Custodian, (2007) 7 SCC 461 [Para 5]
Bank of India Vs. Ketan Parekh, 2008(5) ALL MR 983 (S.C.) =(2008) 8 SCC 148. [Para 5]
Renuka Wahi Vs. Custodian & Anr., W.P. (C) 3692 of 2004, Dt. 24-02-2009 [Para 5]
Pillani Investment Corporation Ltd Vs. I.T.O. 'A' Ward, Calcutta and another, (1972) 1 SCC 122 [Para 6,11]
Mt. Jamna Kuer Vs. Lal Bahadur and others, AIR (37) 1950 Federal Court 131 [Para 6,9,10,11]
The Selection Committee for Admission to the Medical and Dental College, Bangalore Vs. M.P. Nagaraj, AIR 1972 Mysore 44 [Para 6,11]
Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Chaudhary, AIR 1995 SC 455 [Para 7]
Jayaraman & Anr. Vs. The Union of India & Anr, AIR 2003 MADRAS 29 [Para 7]
Rajkumar Ramavtar Chourasia Vs. Mathew Charian Christian, AIR 1984 Bom. 458 [Para 7]
Bank of India Vs. Ketan Parekh & Ors., 2008(5) ALL MR 983 (S.C.) =(2008) 8 SCC 148 [Para 7]
Banatwala & Company Vs. L.I.C of India & Anr., AIR 2011 SC 3619 [Para 7]
Haryana Telecom Ltd Vs. Sterlite Industries (India) Ltd., AIR 1999 SC 2354 [Para 7]
Booz Allen & Hamilton Vs. SBI Home Finance Limited & Ors., 2011(7) ALL MR 786 (S.C.)=(2011) 5 SCC 532 [Para 7]
Natraj Studios (P) Ltd. Vs. Navrang Studios & Anr., (1981) 1 SCC 523 [Para 7]
Keshav Mills Vs. Commissioner of Income-tax, (1965) 2 SCR 908, 921: AIR 1965 SC 1636 : (1965) 56 ITR 365 [Para 11]

JUDGMENT

JUDGMENT :- Heard.

2. This review application is filed, seeking review of the order passed by this Court dated 16/12/2010 in Misc. Application No.218 of 2009. It is submitted that the said order may be recalled and Misc. Application may be restored to the file.

3. Brief facts which are relevant for the purpose of deciding this review application are as under:-

4.Misc. Application No.218 of 2009 was taken out by the Custodian, seeking an order of eviction of Respondent Nos. 1 and 2 from the suit premises and for other consequential reliefs. The Respondents - Pushpa Builders Ltd. and others claimed to be the tenants in respect of the first floor of the building situated at E-162, Greater Kailash-II, New Delhi. It is their case that so far as their status as tenants is concerned, it has been confirmed by the Apex Court in its order dated 13/01/2010 in CA No.6866 of 2003. In Misc. Application No. 218 of 2009, the relief which was claimed was that the order of eviction be passed against the Respondents - tenants by exercising powers vested in this Court under the Special Court (Trial of Offences Relating to Transactions in Securities Act, 1992 [For short "the Special Court (TORTS) Act, 1992"]. This Court, by order dated 16/12/2010, has made a reference to the order of the Apex Court more particularly observations made in para 8 in which the Apex Court has noted the Consent Terms which were filed in the Special Court and held that the said Consent Terms were binding on all parties and, the Apex Court, therefore, confirmed the order passed by this Court dated 23/01/2002 and directed the Custodian to handover possession to the Respondents. In view of the order passed by the Apex Court, it was observed that this Court did not have jurisdiction to evict the tenants since the said jurisdiction was not vested in this Court and the said application was rejected vide order dated 16/12/2010. Against this order, this review application has been filed.

5. It is firstly contended that the property in question belongs to the notified party and is an attached property under section 3(3) of the Special Court (TORTS) Act, 1992. It is secondly contended that since the Custodian was seeking eviction of the Respondents from the portion of the attached property, it was immaterial that the notified party was not sought to be evicted or was not residing there. It is further contended that in view of the provisions of section 9A read with section 13, no other Court, other than the Special Court, could deal with the attached properties. Reliance is placed on the Judgment of the Apex Court in Solidaire India Ltd vs. Fairgrowth Financial Services Ltd. (2001) 3 SCC 71. Reliance is also placed on the judgment of the Apex Court in Tax Recovery Officer vs. Custodian (2007) 7 SCC 461 and also on the judgment in Bank of India vs. Ketan Parekh (2008) 8 SCC 148 : [2008(5) ALL MR 983 (S.C.)]. Reliance is also placed on the judgment of the Apex Court in CA No.6866 of 2003 filed by Respondent No.1 - Company which was dismissed by the Apex Court by its order dated 13/01/2010 and also on the judgment of the Delhi High Court dated 24/02/2009 in W.P. (C) 3692 of 2004 [Renuka Wahi vs. Custodian & Anr] wherein it was observed that the Special Court alone had exclusive jurisdiction to deal with the properties and pass such orders as it deemed appropriate.

6. So far as the maintainability of the review application is concerned, reliance is placed on the judgments of the Apex Court in Pillani Investment Corporation Ltd vs. I.T.O. 'A' Ward, Calcutta and another (1972) 1 SCC 122, in Mt. Jamna Kuer vs. Lal Bahadur and others AIR (37) 1950 Federal Court 131 and in The Selection Committee for Admission to the Medical and Dental College, Bangalore vs. M.P. Nagaraj AIR 1972 Mysore 44 (V 59 C 18)

7. On the other hand, the learned Counsel appearing on behalf of the Respondent No.1 submitted that this review application is not maintainable. Reliance is placed on the copy of Regulations relating to procedure for civil cases under section 9A(4) of the Special Court (TORTS) Act, 1992. and on the following judgments.

(i) Smt. Meera Bhanja v/s Smt. Nirmala Kumari Chaudhary AIR 1995 SC 455

(ii) Jayaraman & Anr. v/s The Union of India & Anr. AIR 2003 MADRAS 29

(iii) Rajkumar Ramavtar Chourasia v/s Mathew Charian Christian AIR 1984 BOMBAY 458

(iv) Bank of India v/s Ketan Parekh & Ors.(2008) 8 SCC 148 : [2008(5) ALL MR 983 (S.C.)]

(v) Banatwala & Company v/s L.I.C of India & Anr. AIR 2011 SC 3619

(vi) Haryana Telecom Ltd v/s Sterlite Industries (India) Ltd. AIR 1999 SC 2354

(vii) Booz Allen & Hamilton v/s SBI Home Finance Limited & Ors. (2011) 5 SCC 532 : [2011(7) ALL MR 786 (S.C.)]

(viii) Natraj Studios (P) Ltd. v/s Navrang Studios & Anr. (1981) 1 SCC 523

8. After having heard both the Counsel at length, in my view, there is no error of law apparent on the face of record committed by this Court and, therefore, no case is made out for reviewing the earlier order passed by this Court.

9. Mr. Tewari, the learned Counsel appearing on behalf of the applicant relied on the judgment of the Federal Court in Mt. Jamna Kuer AIR (37) 1950 Federal Court 131 (supra) and submitted that the Federal Court observed that when there is an error apparent on the face of the record, whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to review its decision. In the said case, Jamna Kuer filed a Petition claiming all properties mentioned in the supplementary list dated 20/8/1936 as hers on number of grounds. Inter alia, it was alleged that she was the legal heir to Kunj Behari Lal deceased, the last owner of these properties. The Trial Court dismissed the claim on the ground that since she was a half sister, she was not entitled to inherit the estate. This decision was reversed in appeal by the High Court and it was declared that she was entitled to the properties left by Kunj Behari Lal. Later on, she filed a Petition seeking review on the ground that her claim was not limited only to those properties which had been mentioned by her originally at the foot of her objection petition. Review Petition, however, was rejected and it was observed that the High Court had not committed any mistake which was apparent on the face of record and the mistake, if any, had been committed on account of lack of clarity in pleadings or argument. The Federal Court, however, came to the conclusion that the High Court should have corrected the said mistake and, in that context, it was observed that whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to review its decision.

10. In my view, ratio of the said judgment in Mt. Jamna Kuer AIR (37) 1950 Federal Court 131 (supra) would not apply to the facts of the present case. So far as the claim of Jamna Kuer is concerned, the claim had been approved in appeal by the High Court and it was held that she was entitled to be declared as an owner of the properties left by Kunj Behari Lal. The only dispute was regarding the list of properties which were mentioned in the suit and this mistake was sought to be corrected. In this context, the Federal Court had made those observations. In the present case, Consent Terms were filed in this court and pursuant to the said Consent Terms, possession of the property was given to the Respondents as tenants which order was approved by the Apex Court and, secondly, this Court had held that in view of the provisions of the said Act, this Court did not have jurisdiction to evict the tenants from the attached property since the Rent Court alone had jurisdiction to do so.

11. It is contended that the Counsel who appeared on behalf of the Custodian had not pointed out the relevant provision alongwith the judgments and, therefore, since it was a mistake on the part of the Counsel who appeared at that time on behalf of the Custodian, this Court could review its own order. I am unable to accept the said submission. Ratio of the judgment in Mt. Jamna Kuer AIR (37) 1950 Federal Court 131 (supra) would not apply to the facts of the present case. In the said case, the appeal of Jamna Kuer was allowed by the High Court and there was only technical mistake in respect of mentioning of the properties in the said list which was annexed and, in this context, the Apex Court has observed that the mistake which had crept in as a result of oversight by the High Court or mistake of the Counsel could have been corrected by the Court. In the present case, the matter was fully argued by the learned Counsel appearing on behalf of the Custodian. It is well settled position in law that if a reference is not made to any particular judgment at the time of submissions which are made, that cannot be a ground of review for the purpose of re-arguing the said matter on the basis of the judgments which are not cited. The reliance is also placed on the judgments of the Apex Court in Pillani Investment Corporation Ltd (1972) 1 SCC 122 (supra). In the said judgment, the Apex Court observed that the Supreme Court could review its decision if some patent aspects of the question remained unnoticed or if the attention of the Court was not drawn to any relevant and material statutory provisions or if any previous decision of the Court bearing on the point was not noticed, or if the decision was clearly erroneous. In my view, the ratio of the said judgment would not apply to the facts of the present case since the Apex Court had made those observations in respect of the power of the Supreme Court to review its decision particularly after it noticed the judgment of the 7 Judges' Bench of the Supreme Court in Keshav Mills vs. Commissioner of Income-tax (1965) 2 SCR 908, 921: AIR 1965 SC 1636 : (1965) 56 ITR 365 wherein the reference was made to Article 141 and it was observed that when the Apex Court decides the question of law, its decisions are under Article 141 which are binding on all courts within the territory of India and, therefore, on subsequent occasion, if the Court is satisfied that its earlier decision was clearly erroneous, it should not hesitate to correct the error. It has to be noted that the said observations have been made in respect of decisions which are given by the Apex Court which are binding on all the Courts in view of Article 141. The last judgment on which the reliance is placed is in The Selection Committee for Admission to the Medical and Dental College, Bangalore AIR 1972 Mysore 44 (V 59 C 18) (supra). In the said judgment, the Mysore High Court observed that if the decision of the Court had been given by overlooking the decision of the Supreme Court which is binding on all Courts in India, it constitutes an error apparent on the face of record justifying review of the decision contrary to the decision of the Supreme Court. Ratio of this judgment would not apply to the facts of the present case. In fact, in the present case, the Apex Court in its order has clearly held that possession of the property was to be given to the Respondents as tenants in view of the Consent Terms which were filed before the Special Court and, in turn, it approved the decision which was given by the Special Court. This Court, while rejecting the Misc. Application No.128 of 2009, had relied upon the said judgment of the Apex Court which had taken into consideration the facts of this case and, therefore, the said decision also was binding on this Court.

12. Reliance was also placed on various provisions of Regulations and it is submitted that in view of section 13, provisions of the Special Court (TORTS) Act, 1992 had an overriding effect over all other Acts. It is not possible to accept this submission. Even if the property of the notified party is attached, that does not mean that rights and liabilities of the occupants in the attached property of the notified party stood extinguished or that this Court would have power to recover possession of the said properties from the tenants under the provisions of the said Act. The Respondents being tenants in respect of the attached property of the notified party, their rights will have to be determined by the Rent Court and, at the most, the Custodian may have a right to institute proceedings in the Rent Court on behalf of the notified party. Viewed from any angle, therefore, no case is made out for reviewing the earlier order.

13.Review Application is accordingly dismissed.

Application dismissed.