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Hon’ble Mr. Justice Ravi R. Tripathi
Ramilaben Vinubhai Patel & Anr.
Versus
Induben D/o Mavjibhia Ramjibhai & W/o Jayantibhai Umrigar & Ors.
Misc. Civil Application-for Direction No. 887 of 20111—Decided on 31/08/2012
Constitution of India, 1950 — Articles 215, 136 and 141 — Review application before High Court — After dismissal of SLP in the matter dismissed by Supreme Court — Held, not maintainable — Order of SC will attract applicability of Article 141 of Constitution.
Held : But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. [Para 4(40)]
Law Laid Down :
The Court can not entertain the review application if before making the review application superior Court had been moved for getting self same relief.
Ravi R. Tripathi, J.—The present application is filed by the original appellants-plaintiffs praying that:
“14. (A) This Honourable Court would be pleased to admit and allow the application and pass direction on the Common Oral Order dated 28.04.2010/06.05.2010, passed by this Honourable Court in Appeal From Order No. 63 of 2009 and Appeal From Order 54 of 2009, and be pleased to modify/clarify the same;
(B) This Honourable Court under Article 215 of the Constitution of India would be pleased to clarify the order dated 28.04.2010/06.05.2010, passed by this Honourable Court in Appeal From Order No. 63 of 2009 and Appeal From Order 54 of 2009, to the extent recording in the common order that 1/3rd portion of entire land in question i.e. 2060.5 sq. meters will be kept open and no development activity will be undertaken on that land, in the interest of justice;”
2. Heard learned Advocate Mr. Amit M. Panchal with learned Advocate Mr. Manan A. Shah for the applicant, learned Senior Advocate Mr. P.C. Kavina with learned Advocate Mr. A.B. Munshi for Respondent No. 1 and learned Senior Advocate Mr. Mihir Joshi with learned Advocate Mr. Amit Thakkar for Respondent Nos. 13, 14 and 15.
3. Learned Advocate for the applicants submitted that there is a mistake which has crept-in, in Para-10 of the order, wherein the Court stated that, “. . . . . It is clarified that by this order, 1/3rd portion of the land in question, viz. marked portion on page 17 of Civil Application No. 13021 of 2009, will be kept open and no development activity will be undertaken on that land.”
3.1 Learned Advocate for the applicants submitted that the marked portion on page No. 17 of the Civil Application was only 1029.00 sq. mtrs., which ought to have been 2060.50 sq. mtrs. Learned Advocate for the applicants invited attention of the Court to a Table, setting out that Jiviben Parbhubhai had 50% share, which comes to 8950 sq. mtrs., Induben Jayantibhai had 16.66% share, which comes to 2983.33 sq. mtrs., Lalubhai Mavjibhai had 16.66% share, which comes to 2983.33 sq. mtrs. and Sumanben Arvindbhai had 16.66% share, which comes to 2983.33 sq. mtrs. and total comes to 17900 sq. mtrs. of land.
3.2 Learned Advocate for the applicants invited attention of the Court to a decision of the Hon’ble the Apex Court in the matter of M.M. Thomas vs. State of Kerala & Ors., reported in (2000) 1 SCC 666. Learned Advocate for the applicants relied upon Paras-13 to 17 of this judgment and submitted that it will be within the powers of this Court to exercise powers of review in view of specific language of Article 215 of the Constitution of India.
3.3 Learned Advocate for the applicants next relied upon a decision of the Hon’ble the Apex Court in the matter of Kunhayammed & Ors. vs. State of Kerala & Ors., reported in (2000) 6 SCC 359, in support of his contention that in light of language of Articles 136 and 141 of the Constitution of India, the present Review Application is maintainable and requires to be entertained by this Court.
3.4 Learned Advocate for the applicants next relied upon a decision of the Hon’ble the Apex Court in the matter of Gangadhara Palo vs. Revenue Divisional Officer & Ors., reported in (2011) 4 SCC 602. He relied upon the observations made by the Hon’ble the Apex Court in Paras 3, 4 5, 11 and 12.
4. Learned Senior Advocate Mr. Kavina for Respondent No. 1 and learned Senior Advocate Mr. Joshi for Respondent Nos. 13, 14 and 15 submitted that this Court cannot and shall not entertain this Review Application in light of the law laid down by the Hon’ble the Apex Court in the matter of Kunhayammed (Supra), wherein the Hon’ble the Apex Court had an occasion to consider in detail a similar question as to when a Review Application can be entertained by the High Court, when the parties have approached the Hon’ble the Apex Court by filing SLP. Learned Senior Advocates invited attention of the Court to paras-26 and 40 of the said judgment, which are reproduced for ready perus
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