1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW APPLICATION NO. 195 OF 2009 IN WRIT PETITION NO. 6128 OF 2009 1. Mahendra S/o Narottamdas Deliwala, Age 55 years,Occup. Business, R/o 120 Girivihar Co-Op Housing Society,Nandurbar,Dist. Nandurbar. 2. Hasmukhlal Muljilhai Raval, Age 71 Years,Occup.Business, R/o Bunglow No. 114,P.No.74B Girivihar Coop. Housing Society. Nandurbar, District Nandurbar. ..APPLICANTS. VERSUS 1. Bharatkumar S/o Uttamlal Shah, Age 52 years,Occup. Business, R/o Shah Compound Taloda Road, Nandurbar,District Nandurbar. 2. The Assistant Registrar, Cooperative Societies, Nandurbar,Dist: Nandurbar. 3. D.F.Kasar, Assistant Co-Operative Service, R/o Office of Assistant Registrar, Cooperative Societies, Nandurbar,Dist: Nandurbar. ...RESPONDENTS. ... Shri.R.R.Mantri Advocate for Applicants. Shri.S.P.Shah,Advocate for Respondent No.1. Shri.S.V.Kurundkar, Addl.G.P.for Resp. No.2&3. ... 2 CORAM: K.K. TATED, J. DATE : 1ST OCTOBER,2010. PER COURT : 1. Heard learned counsel for the parties. 2. The present Review application is preferred by the Original intervener for reviewing the order dated 09th October, 2009 passed by this Court in Writ Petition No. 6128 of 2009 with Civil Application NO. 9462 of 2009, on following grounds, which are reproduce hereunder: I] That the Hon’ble Court lost sight of the fact that undisputedly no election programme was prepared or declared and no notice was given about the submitting nominations and how the nominees on page no. 17 to 24 got knowledge that they should fill in the nomination clearly shows that there was no holding of election at all as required by Section 73H and the Bye- Laws of the Society and that bogus record has been prepared. 3 II] That this Hon’ble Court lost sight of the fact that the order impugned in the Writ Petition considered all these aspects of the matter and finding that there was in fact no election, the respondent No.2 passed under order 73H of M.C.S. Act. III] That in Writ Petition filed under Article 226 of the Constitution of India such a glaring illegality could have been set aside to do substantial justice and to free the society from the clutches of the same managing Body for the past 20 years headed by respondent no.1 against the procedure established by law. 3. Mr.S.P.Shah, learned counsel appearing on behalf of respondent No.1 vehemently opposed the review petition and relied on the Apex Court Judgment in the matter of T.N. Electricity Board and another Vs. N.Raju Reddiar and another reported in AIR 1997 Supreme Court 1005. 4 4. I have heard Mr. Mantri, learned counsel appearing for the applicants in support of various grounds, which are urged in the Review Application. Upon consideration of the submissions of learned counsel for the applicants, according to me, there is no error apparent on the face of the record justifying invocation of review jurisdiction. The provision relating the power of Review constitute an exception to the general rule that once Judgment is signed or pronounced, it should not be altered. Hence, right of review is exercised only where the circumstances are distinctly covered by statutory exceptions, and/or there is apparent error on the face of the record resulting into injustice and do not necessitate reopening of the question decided by the judgment or order to be reviewed. The Apex Court in the matter of Lily Thomas And others Vs. Union of India and others reported in (2000)6 Supreme Court Cases, 224 held that “Power of review can not be exercised merely to substitute a point of view. Para Nos 52 and 56 read thus: 5 “52.The dictionary meaning of the word “review” is “the act of looking, offer something again with a view to correction or improvement”. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakeshi Vs. pradyumansinghji Arjunsinghji held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It can not be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj 6 V.State of Karnatka held(SCC pp. 619-20, para 19) “19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statues lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it would rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudury Vs. Sukhraj Rai the Court observed that even 7 though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae Vs. Bijai Govind Sigh that an order made by the Court was final and could not be altered: ‘... nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in. The house of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this court must possess the same authority. The Lords have however gone a step further, 8 and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.’ Basis for exercise of the power was stated in the same decision as under: ‘It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court or last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.’ Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the 9 substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualize and efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order ma be reviewed. In exercise of this power order XL had been framed empowering this Court to review an order in Civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The Expression,’ for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders 10 as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so far sake of justice.” The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength. “56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal 11 strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights crated under any other statute, can take a different view notwithstanding the earlier judgment.” 5. In another Judgment, Apex Court in the matter of Indrachand Jain (Dead) through L.Rs. Vs Motilal (Dead) through L.Rs. reported in (2009)14 Supreme Court Cases, 663, held in para Nos.8 and 10 read: “8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar V. Rambai this Court held:(SCC p 514, para 6) “6. The limitations on exercise of the power of review are well settled. The First and foremost requirement of entertaining a 12 review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order can not be disturbed.” “10. It is beyond any doubt or dispute that the review court does not sit on appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.” 6. The applicants have not pointed out any apparent mistake or error on the face of the record, resulting into injustice. Therefore, no case for review of the order is made out. Hence, 13 the Review Application stands dismissed with no order as to costs. Sd/- [K.K. TATED, J.] MTK