1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 12 OF 2006 IN SECOND APPEAL NO. 1324 OF 2005 Maharashtra Housing & Area Development Authority, Pune. ... Petitioner v/s Mr.P.V.Anturkar, Pune. ... Respondent Mr.G.W.Mattos, A.G.P. for the petitioner. Respondent in person. CORAM: SMT.NISHITA MHATRE, J. DATED: 18TH AUGUST, 2009 ORAL JUDGMENT: 1. This is a review petition filed by the Maharashtra Housing & Area Development Authority (in short, “MHADA”), contending that the order passed by this Court on 25.10.2005 has been passed contrary to the provisions of law applicable to the facts and circumstances in the Second Appeal No. 1324 of 2005. 2 2. The petitioner i.e. the MHADA published an advertisement for the sale of 96 tenements in the Higher Income Category. One of the conditions for eligibility was that the monthly salary of the applicant was required to be more than Rs.1500/- per month. The advertisement was published on 20th December, 1977. The respondent applied for an allotment of a tenement as he complied with all the requisite conditions. His application was rejected on 8.2.1980 according to the petitioner. The respondent complained to the State Government regarding the rejection of his allotment application. The Government then informed the respondent on 20.4.1983 that the decision taken by the petitioner was correct and that there was no need to interfere with the same. The respondent served the statutory notice on the petitioner on 28.7.1983 and subsequently filed a suit on 13.10.1983 being Suit No.2079 of 1983 before the Civil Judge, Jr. Divn., Pune. The suit was decreed ex-parte in 1993. The petitioner filed an appeal and the ex-parte decree was set aside on 16.7.2003. The matter was then remanded to the Trial Court for a fresh hearing. On 30.4.2004, the Trial Court decreed the suit on merits. Being aggrieved by the 3 decision, the petitioner preferred an appeal before the District Court. That appeal was dismissed on 26.7.2005. Thereafter a second appeal was preferred by the petitioner in this Court being Second Appeal No.1324 of 2005. The second appeal was dismissed by this Court on 25.10.2005. 3. Being aggrieved by the decision of this Court in dismissing the second appeal, the present review petition has been filed. The contentions raised in the review petition are that, the second appeal has been decided contrary to the provisions of Section 173 of the Act and the MHADA (Estate Management, Sale, Transfer & Exchange of tenements) Regulations, 1981 (in short “regulations”). According to the petitioner, the suit has been filed beyond the period of limitation permitted under Section 173 of the Act. It is also the contention of the petitioner that this Court has relied on Regulation 12A while dismissing the appeal although it has been brought on to the statute book much later i.e. on 29.11.1981 and, therefore, would not be applicable to the facts in the present case. According to the petitioner, the application of the respondent was rejected on 8.2.1980 and, therefore, 4 he ought to have given a statutory notice under Section 173 of the Act within two months of the rejection i.e. by 8.4.1980. It is further contended that the suit should then have been filed before the Civil Judge, Jr. Divn., Pune, within six months of the cause of action having arisen. It is contended that the cause of action arose on the rejection of the application on 8.2.1980 and, therefore, the suit was not filed within the period of limitation. It is therefore submitted that the rejection of the second appeal is based on a non-existent law and, therefore, the decision must be reviewed. 4. The respondent who appears in person submits that the review petition has been admitted without notice to him and beyond the period of limitation. He submits that the advocate who files a second appeal cannot be changed when a review petition is filed. In support of this submission he relies on the judgment of the Supreme Court in the case of Tamil Nadu Electricity Board & anr. v/s N.Raju Reddiar & anr., reported in 1997 (9) SCC 736. He also submits that the good ground certificate issued by the learned advocate for filing the review petition is invalid and incorrect and, therefore, 5 the review petition ought to be dismissed. On merits, the respondent states that, after rejection of his application for allotment of the tenement on 8.2.1980, he preferred an appeal before the State Government on 5.6.1982. While deciding the appeal, the Government had not rejected the appeal on the ground that it was not maintainable but on merits. According to the respondent, Section 164 of the Act provides that the Government has control over MHADA and, therefore, has the jurisdiction to consider an appeal against the cancellation of the allotment The respondent further submits that the costs awarded by this Court have not been deposited by the petitioners and, therefore, the review petition should not be entertained. 5. The review petition has been filed under Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure. Order 47 Rule 1 reads as under:- “Application for review of judgment.- (1) Any person considering himself aggrieved,- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no 6 appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not apealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Therefore, a review would lie when, (i) there is a discovery of some new material or evidence, which, after exercising due diligence, could not be produced by the petitioner since it was not within his knowledge when the decree was passed or order made; (ii) the decree has been passed on account of some mistake or error apparent on the face of the record; and (iii) for any other sufficient reason. 6. In the present case, it is the contention of the review petitioner that there is an obvious error 7 in the judgment and order of this Court dated 25.10.2005 passed in the second appeal. According to the review petitioner, the suit filed by the respondent was barred by limitation as there was breach of the provision of Section 173 of the Maharashtra Housing and Area Development Act. It is pointed out that the dates taken for considering whether the suit had been filed within the period of limitation prescribed under Section 173 of the Act are incorrect. This is because the allotment made in favour of the respondent was cancelled by an order dated 8.2.1980 and the suit was filed in 1983, well after the period of six months from the accrual of the cause of action. While dismissing the second appeal, the learned Single Judge of this Court has considered the fact that the suit was filed within six months of the rejection of the appeal preferred by the respondent to the State Government. The learned Single Judge has confirmed the view of the lower Courts that the cause of action arose on 28.4.1983 when the appeal was rejected by the State Government. It was found that the notice was issued on 5.7.1983 in accordance with Section 173 of the Act and the suit was filed on 13.10.1983 within six months of the rejection of the appeal. While 8 rejecting the second appeal, it was found that the review petitioner had not pointed out any substantial questions of law which arise for determination by this Court and, therefore, the second appeal was dismissed. 7. It is now contended by the learned advocate appearing for the review petitioner that no appeal was provided under the Act and it is only after the Maharashtra Housing and Area Development (Estate Management, Sale, Transfer and Exchange of Tenements) Regulations, 1981 were enacted and notified on 29.12.1981 that an appeal lies against the rejection or cancellation of an allotment. It is submitted that, since these regulations came into effect after 1980, when the respondent was intimated about the cancellation of the allotment made in his favour, they are not applicable to the present case. 8. The learned advocate for the review petitioner has relied on the judgment of a learned Single Judge of this Court in the case of Arun Construction Co. v/s Bombay Housing and Area Development Board, reported in 2000 (2) Mh.L.J. 239. The provisions of Section 173 of the aforesaid Act were considered in 9 this judgment. It has been held that Section 173 lays down two requirements for the valid institution of a suit against the MHADA, namely, (i) service of two months’ notice on the authority and (ii) institution of the suit within six months from the approval of the cause of action. For considering the cause of action to have arisen on 20.4.1983, the learned Single Judge of this Court has confirmed the view of the lower Court that the notice required under Section 173 has been issued within the prescribed time and that the suit has also been filed within six months of the approval of the cause of action. 9. In my opinion, the contention of the learned advocate for the review petitioner that an obvious mistake has been admitted by the learned Judge while dismissing the second appeal cannot be accepted. The learned Judge has accepted 20.4.1983 to be the date when the cause of action has arisen and has construed the provision of Section 173 from that date. In my opinion, therefore, it would not be proper for me in a review petition to decide whether the cause of action arose on the aforesaid date or some other date that the learned advocate for the 10 review petitioner urges me to accept. The present case is not one when there is an error apparent on the face of the record since it would have to be decided whether the cause of action arose on 20.4.1983 or on 8.2.1980 as contended by the review petitioner. That is not an issue which can be decided in a review petition. 10. It is not possible to accept the submission made on behalf of the review petitioner that a non- existent law has been considered. The judgment of which a review is sought does not in any manner refer to the aforesaid regulations. The learned Judge has accepted that the cause of action arose on 20.4.1983 since an appeal preferred by the respondent to the State Government against the cancellation of the allotment in his favour had been rejected on that date. Whether such an appeal is maintainable or not is an issue which cannot be decided in the review petition but it is obvious that the appeal has been filed not under the aforesaid regulations but under Section 164 as contended by the respondent. Whether an appeal would be maintainable under Section 164 in the present facts and circumstances is again an issue 11 which cannot be considered in the present review petition and, therefore, the review petition deserves to be rejected. 11. The learned advocate for the review petitioner relied on the judgments, namely, (i) Gulam Abbas & ors. v/s Mulla Abdul Kadar, reported in 1970(3) SCC 643; (ii) Raja Shatrunjit v/s Mohammad Azmat Azim Khan 7 ors., reported in AIR 1971 SC 1474; and (iii) Smt.Shakuntalabai Krishna Bhoyar & ors. v/s State of Maharashtra, reported in AIR 1986 Bombay 308. There can be no quarrel with the propositions of law enunciated in these judgments. However, as I have already stated, in the present case the learned Single Judge has not considered the aforesaid regulations while concluding that the cause of action has arisen on 20.4.1983. Therefore, the question of the learned Single Judge considering a non-existent law does not arise. 12. Since I am dismissing the review petition, I need not consider the contentions of the respondent as to whether there can be a change of advocate while filing the review petition, whether the good ground certificate is invalid and whether the 12 costs have been deposited by the review petitioner. 13. Review petition dismissed. 14. Mrs.Mulekar, A.G.P. appearing for the review petitioner seeks a stay of the order. Stay refused. .....