Bombay HC Imposes ₹5-Lakh Cost On Petitioners For Seeking To Re-argue Case With Different Set Of Lawyers [Read Judgment]

The Bombay High Court recently imposed ₹5 lakh cost on petitioners reminding them about the limitations of a review jurisdiction.

A bench of Justice SC Dharmadhikari and Justice MS Sonak observed that it is being seen lately that litigants try to go behind binding orders of the high court by canvassing arguments before the Supreme Court that do not give the entire or true picture of the case, and all this is done taking advantage of the liberty granted by the Supreme Court to file a review.

At the very outset of this 20-page order dismissing the review petition filed by Radhakrishna Co-operative Housing Society Limited and Eco Struck Developers, the court noted:

“It is most unfortunate and we must bring this to the notice of all concerned that routinely, review petitions are filed in this court, after the orders under review are unsuccessfully challenged before the higher court but liberty is sought to present a review petition. The higher court, with greatest respect, is informed that certain points or arguments, allegedly crucial to the case and going to the root of the matter were either not canvassed or canvassed but not considered. Such an argument is raised before the Hon'ble Supreme Court of India at the instance of the aggrieved parties by a counsel instructed by an advocate who had no opportunity to argue the matter before this court.”

Case Background

Tenants/occupants of the property concerned applied to the MHADA for acquisition saying they would maintain and repair the said property. Once the charitable trust that originally owned the property was no longer in the picture as the acquisition took place, the occupants then appointed a developer.

The Charitable Trust challenged this in 2007, which was rejected by an order dated December 7, 2007.

Then, the co-operative society formed by the occupants/tenants of the said property and the developers sought to get out of the acquisition that already took place in 1992.

However, it was noted by the high court that the petitioners, who had approached this court earlier, pleaded before the apex court that no purpose was served by acquiring the property as “the respondents have failed to offer any amicable solutions to the tenants/occupants on account of lack of funds”.

Submissions and Final Order

Prateek Seksaria appeared for the petitioners, Aparna Murlidharan appeared for MHADA and the Board, and Raju Moray appeared for the charitable trust whose property it is.

It was further argued before the Supreme Court on behalf of the petitioners that in view of the order passed by it in property owners’ cases challenging the constitutional validity of Chapter VIIIA of the Maharashtra Housing and Area Development Act, 1976, the said property could not be conveyed in favour of petitioner no. 1 (Radhakrishna) and it is impossible for the tenants/occupants, in view of the dangerous condition of the building to reside there.

Thus, it was submitted by the petitioners that though they moved the acquisition proposal, but in view of the dispute with the landlord and the larger challenge, namely, to the constitutional validity of Chapter VIIIA pending in the Supreme Court, no further steps could be taken.

It was stated before the Supreme Court that at present, the landlord and the petitioner have arrived at an amicable settlement, whereby the property can be redeveloped and the proposal for acquisition made in the year 1990 can be recalled and cancelled.

“Hence, in the initial round, the petitioners did not raise the contentions now sought to be canvassed. Now, as an afterthought and relying on the above reproduced order, they are canvassed. A consideration of that is equivalent to exercising appellate jurisdiction or revisional power, both of which are ruled out in review jurisdiction. We do not think that the exercise, as is now suggested and based on the petitioners' interpretation of the Hon'ble Supreme Court order, is legally permissible,” the high court said.

It stated that in the case of Kamlesh Verma vs Mayawati and Ors, the Supreme Court held: “……scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient.

Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications.”

The court further elucidated how the petitioners, in the garb of the order of the Supreme Court passed in this case, preferred this review petition.

“Not through the same advocates/counsel, who argued the matter when the order under review was passed by this court. They were aware that respondent no. 6 had challenged the acquisition of the land/property in issue unsuccessfully. The property stood acquired and the owner has lost his right, title and interest therein. He/it could not have propped-up the tenants/ occupants of the building/structure standing on the land to question the acquisition. Therefore, as a strategy, the alleged dilapidated and unsafe condition of the structure/building was put in issue in the original writ petition purely to gain sympathy from this court. The very purpose of the writ petition was to take another chance or, to put it differently, initiate a second round to wriggle out of the acquisition of the property.”

As a result, the court concluded that the review petition lacks bona fides, that it is frivolous and vexatious; and hence dismissed it with costs of ₹5 lakh to be paid to the people who originally acquired the property (respondents).