Usha Bharti (Inre 9654 Misb 2012) ... vs State Of U.P.,Thru. Prin.Secy. ...
2013 Latest Caselaw 3637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- REVIEW PETITION No. - 103 of 2013
 

 
Petitioner :- Usha Bharti (Inre 9654 Misb 2012) (After Fresh)
 
Respondent :- State Of U.P.,Thru. Prin.Secy. Panchayati Raj Deptt.& 39 Ors
 
Petitioner Counsel :- Prashant Kumar
 
Respondent Counsel :- Shobhit Kumar
 

 
Hon'ble Uma Nath Singh, J.

Hon'ble Dr. Satish Chandra,J.

(Per Uma Nath Singh, J.)

This review petition arises out of the judgment and order dated 05.02.2013 passed in Writ Petition No.9654 (MB) of 2012, filed by the review petitioner which was dismissed in view of the Enquiry report submitted by the learned Additional District Judge, Sitapur, with findings that out total 37 Members, who were alleged to have signed the resolution for bringing ''No Confidence', signatures of 31 Members are genuine.

The brief facts giving rise to filing of this review petition are that the petitioner was duly elected as Member of the Zila Panchayat, Sitapur, along with 61 other Members and in terms of Article 243C (5) (b) and Section 19 of the U.P. Kshettra Panchayat and Zila Panchayat, 1961, (for short, ''the Act of 1961') was also elected as the Chairperson/Adhyaksh of the Zila Panchayat from amongst the elected Members.

As per the averments of the petition, on being elected as Chairperson/ Adhyaksh, the petitioner was administered the oath of office on 14.01.2011 and therefore the term of the petitioner being coterminous with that of the term of the Panchayat was to come to an end on 13.01.2016. However, in terms of Section 28 of the Act of 1961, the Motion of No Confidence against the petitioner was initiated on the basis of alleged forged signatures of certain Members of the Zila Panchayat. It is the case of petitioner that the Members owing allegiance to the Samajwadi Party led by Smt. Madhu Gupta, w/o Shri Hari Om Gupta, were not able to collect any signature for the initiation of the Motion, and therefore, appended forged signatures of several Members on the notice of intent to move the Motion of No Confidence. These forged signatures were used to induce other members to join for giving the notice to move the Motion of No Confidence. The petitioner states that the very initiation of the Motion was a fraud on the system and against the settled democratic principles as in case, the contesting respondent, Mrs. Madhu Gupta, and her supporters had the requisite number then there was no need for forging the signatures of several Members, which being the act of forgery itself goes to show that the entire process of initiation of the Motion was invalid and illegal, and therefore, on the fact being established that the signatures were forged, the notice was liable to be struck down and in case Section 28 not being hit by Article 243N a fresh notice could only be initiated in terms of Section 29 after expiry of period of one year. Under the circumstances, according to the petitioner, this Court while entertaining the writ petition, at the very out set, required the matter of signatures being enquired into by the learned District Judge himself or through an officer, subordinate to him, not below the rank of Additional District Judge. Pursuant thereto, from the enquiry it came out that several signatures in the Motion were forged, however, this Court took a view that as the requisite number of Members to carry the Motion was 31 and the 31 signatures were genuine, as such, declined to delve further into the matter of forgery and dismissed the petition. It is also an averment that the petitioner had, inter alia, also pleaded in the Writ Petition that in terms of Article 243N, the provisions of Section 28 have been rendered otiose, for, (i) no fresh enactment was brought in by the State Legislature, and (ii) that the provisions thereof whereunder the No Confidence Motion can be initiated, is inconsistent with the constitutional scheme which does not comprehend the removal of Adhyaksh of Zila Panchayat, in mid term. Thus, the No Confidence Motion in question otherwise also can not be permitted to be carried. According to the petitioner in view of the dismissal of the writ petition on the basis of enquiry report, the aforesaid question of law was also not considered. Feeling aggrieved from the judgment and order dated 05.02.2013 passed by this Court in Writ Petition No.9654 (MB) of 2012, the petitioner filed Special Leave Petition (SLP) before Hon'ble the Supreme Court bearing SLP No.8542 of 2013 which was dismissed with certain observations asking the petitioner to file a review instead of the Special Leave Petition.

According to the petitioner, in terms of the aforesaid order, Hon'ble the Apex Court was pleased to direct her to file review petition before this Court in order to seek indulgence and to enable the petitioner to get an opportunity to rebut the enquiry report submitted before this Court under its order, and also to urge that in view of the provisions of Article 243C of the Constitution of India and there being no provision in the Panchayat election for initiation of No Confidence Motion, the provisions of Section 28 of the Act of 1961 can not continue to operate in conflict with the aforesaid constitutional provision. It is also the averment on behalf of the petitioner that the learned Additional District Judge has only taken the statements of the Members of the Zila Panchayat and on their such statements had reported the signatures to be genuine, whereas the actual signatures ought to have been verified either by himself or after taking into account the expert opinion. The mere statements of the Members could not have been taken to be sufficient to arrive at the conclusion regarding the verification of signatures. The signatures of other Members have also been doubted in a very casual and cursory manner and the Additional District Judge, while reporting the matter of forged signatures the enquiry officer should have also enquired to find out as to who was responsible for such forgery so that appropriate action could be ordered by this Court. It is a further averment that the intent of the Constitutional scheme as spelt out in Article 243C (2) of the Constitution requires the election to the seats in the Panchayat to be filled by the persons, chosen by way of direct election from the territorial constituencies in the Panchayat area and Article 243C(5) provides for the election of the Chairperson of the Panchayat from amongst the elected Members. Thus, it does not contemplate removal of the Adhyaksh, so chosen by way of bringing No Confidence Motion. It is reiterated that Section 28 of the Act of 1961 being inconsistent with the Constitutional scheme no longer continues to be valid after expiry of one year from the insertion of 73rd amendment in the Constitution.

In the preliminary objection regarding maintainability of the review petition filed on affidavit sworn by respondent no.5, Smt. Madhu Gupta, she has asserted that during the course of hearing of the writ petition both at the interim as well as final stage no any submission was made by learned counsel for the petitioner in respect of the constitutional validity of Section 28 of the Act of 1961 or the import of Article 243N of the Constitution of India. Even no request was made on behalf of the petitioner for providing opportunity to file objection to the enquiry report submitted by the learned Additional District Judge. Rather, learned senior counsel for the petitioner made a categorical statement at bar that in view of the fact that the report had been submitted by a senior judicial officer, there is no occasion to file any objection thereto. Paragraphs 10 and 11 of the Preliminary Objection on affidavit on reproduction read as:

"10. That during the course of hearing the writ petition both at the interim or final stage no submissions were made by the counsel for the petitioner in respect of the constitutional validity of Section 28 or the import of Article 243N of the Constitution of India.

11.That no such request was made by the petitioner for providing opportunity to file objections to the enquiry report submitted by the Additional District Judge. It is stated that the counsel for the petitioner made a categorical statement at bar that in view of the fact that the report had been submitted by a Senior Judicial Officer their arose no occasion to file any objection to it."

It is also stated on the said affidavit that in the Special Leave Petition before Hon'ble the Apex court there is an averment that this court committed an error in deciding the writ petition without affording the petitioner an opportunity to rebut the said report. In the entire Special Leave Petition the issue regarding the Constitutional validity of Section 28 of the Act of 1961 was not addressed nor Article 243N of the Constitution or its impact adverted too. It is also an averment vide paragraph 15 of the affidavit that there was a false assertion before Hon'ble the Apex court that the point with regard to applicability, scope and ambit of Article 243 of the Constitution was specifically argued before this court but the same was neither noticed nor considered. In paragraph 16 of the affidavit, it is alleged that because of false statement made by the petitioner, Hon'ble the Apex Court directed that the result of the meeting scheduled to be held on 22.2.2013 to consider the Motion of No Confidence against the petitioner was not to be declared for a period of two weeks to enable the petitioner to approach this Court by way of review petition. In paragraph 17 of the affidavit, it is stated that the review petition is not maintainable, for, it has been filed to raise entirely a new plea regarding the constitutional validity of Section 28 of the Act of 1961 vis a vis Articles 243C and 243N of the Constitution of India. By means of instant review petition, the petitioner is attempting to re-argue the writ petition which is beyond the scope of review. Thereafter, the said respondent Smt. Madhu Gupta has raised the legal question on the basis of the judgments of Hon'ble the Apex Court as under:

"19. That the power of this Hon'ble Court to review its orders under Article 226 is subject to definitive limitations. The power of review may be exercised on the discovery of new and import matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. The power of the appellate court is distinct from the power of review. The aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in Aribam Tuleshwar Sharma v. Aibam Pishak Sharma, (1979) 4 SCC 389.

20.That while hearing a review petition this Hon'ble Court does not sit in 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. The aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in Inderchand Jain v. Motilal, (2009) 14 SCC 663.

21.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 aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in Lily Thomas v. Union of India, (2000) 6 SCC 224.

22.That in order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appeal-able the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. The aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in Haridas Das v. Usha Rani Banik, (2006) 4 SCC 78.

23.That although no pleadings can be found in the writ petition in support of the contentions of the review applicant, however even the existence of pleading alone cannot entitle the applicant to remedy by way of review until unless it is established that the said contentions were specifically argued and the grounds pressed before this Hon'ble Court at the time of hearing and have escaped attention. The Hon'ble Supreme Court in the case of Daman Singh v. State of Punjab, (1985) 2 SCC 670 has held that it is not unusual for parties and counsel to raise innumerable grounds in the petitions and memorandum of appeal etc. but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or Counsel is thereafter entitled to make a grievance that the grounds not argued were not considered."

The rejoinder affidavit which has been sworn and filed by one Ranjit Kumar claiming to be the pairokar of the petitioner only contains the following averments:

"1. That the deponent is pairokar of the petitioner Smt. Usha Bharti and being well conversant with the facts of the case as also with the facts deposed hereunder and having been authorized by the petitioner, is filing the instant counter affidavit to rebut the preliminary objections with regard to the maintainability of the review petition, filed by the respondent No. 5 along with application for vacation of stay on 8th March,2013.

2.That the deponent is filing short rejoinder affidavit to the preliminary objections filed by the respondent to counter the factual averments made in its paras 4, 15 and 22 as rest of the averments are argumentative with regard to maintainability of the present review petition and matter of law which would be countered at the time of hearing of the review petition in the court.

3.That in reply to para 4 of the counter affidavit it is submitted that the contention of the respondent that the perusal of the writ petition reveals that the constitutional validity of Section 28 of the U.P. Panchayat Act,1961 was not challenged nor any averment was made is absolutely wrong. The petitioner has made specific averments in para 28 of the writ petition regarding the constitutional validity of Section 28 which is reproduced below:

"28. That scheme of chapter IX inserted in the Constitution of India, vide 73rd amendment unmistakenly provided for following the democratic principles in the matter of constitution of Panchayats and their functions. Needless to say the democratic functioning of any body or institution duly recognizes the importance of an elected representative and the said elected representative has a right to continue for the term for which he or she may have been elected. Curtailment of a term is not contemplated under the constitutional scheme and any endeavor to achieve the same, indirectly would be directly hit by the provisions contained in Article 243E of the Constitution of India."

4. That insofar as paras 11 and 25 of the counter affidavit regarding report of the Hon'ble District Judge are concerned, first of all, it is submitted that though the averments made in the said paras are factual but the respondent has sworn on the said paras of the affidavit on the basis of legal advice which the respondent could not have done specifically when the said paras do not deal with any league submission. In fact the correct fact is that the counsel for the petition had indeed requested this Hon'ble court to allow the petitioner to have copy of the report of the Hon'ble District Judge before deciding the writ petition on the basis of the said report, but this Hon'ble court was of this view that it would not serve any useful purpose. It is respectfully submitted that the principle of natural justice requires that if the court relies on any report while disposing off the writ petition against the petitioner, than the said report, irrespective of the fact that it is prepared by the court appointed commissioner or the District Judge, should have been given to the parties in order to give an opportunity to them to rebut the findings of the report. It is further respectfully submitted that the adherence to the principle of natural justice was all the more necessary in the present case as even the Hon'ble District Judge had not given any notice of the said proceeding to the petitioner nor any opportunity was given to her to place the materials before him. It is this point which was argued before the Hon'ble Supreme Court at the time of the hearing of the SLP and therefore, the Hon'ble Supreme Court granted liberty to the petitioner to file the present review petition and hence the present petition.

5. That the deponent seeks leave of this Hon'ble Court to take the instant rejoinder affidavit on record for just and proper adjudication of the case and in the interest of justice.

In this background, we have heard learned counsel for parties and perused the pleadings/records.

The prime focus of arguments of Shri Shanti Bhushan, learned Senior Counsel, is that the provision to carry out No Confidence Motion as contained in Section 28 of the Act of 1961 against the elected representative namely Adhyaksha or Pramukh not being in consonance with Articles 243C and 243N of the Constitution of India, for, these constitutional provisions do not provide for the recall of any representative by way of No Confidence Motion, is ultra vires of the Constitution. The notice of intention to bring Motion of No Confidence has not been signed by all the members and even some of the members have submitted their affidavits to that effect. Introduction of No Confidence Motion is actuated with political motive. Notice of intention to bring the No Confidence Motion has not been served on all the members, and some of the envelopes have been returned back from the post office with the note of the postman.

Shri Shanti Bhusan, learned Senior Counsel, in support of his argument relied upon the judgment of Hon'ble the Apex Court in the case of Bhanumati and others v. State of U.P. which is reported in (2010) 12 SCC 1. He laid emphasis, in particular, on paragraphs 7, 9, 48 and 52 of the judgment to argue that the question of challenge to the provision of No Confidence Motion was not before the Hon'ble Supreme Court, therefore, it can be raised in this review petition irrespective of the judgment of Hon'ble the Apex Court in Bhanumati's case. It is also a submission of learned Senior Counsel that vide Order 47 Rule 1 of the Code of Civil Procedure for ''any other sufficient reason', the review petition can be entertained. While referring to the judgment in the matter of Board of Control for Cricket, India and another v. Netaji Cricket Club and others reported in AIR 2005 SC 592 (1) with particular reference to paragraphs 88, 90 and 95, it is contended that a review can be maintainable even on account of misconception of law or fact by Court or an advocate.

Shri Shanti Bhushan, learned Senior Counsel, submitted that if a provision is repugnant to the Constitution amendment, in this case 73rd constitution amendment, it will automatically go. Shri Shanti Bhushan, learned Senior Counsel, referred to Article 90 (C) of the Constitution in the case of removal of Deputy Speaker of Rajya Sabha and Article 94 (C) for the removal of Speaker and Deputy Speaker of Lok Sabha by resolution to be passed by a Majority of all the then Members of the House after giving at least 14 days' notice to draw analogy in support of his submission that the instant No Confidence Motion in favour of the petitioner is not maintainable.

Sri Shanti Bhushan, in support of his contention that the points raised by him can be considered in review petition, referred to and relied upon paragraphs 18 and 19 of the judgment passed in the matter of S. Nagaraj and others v. State of Karnataka and another reported in 1993 Supp (4) SCC 595. The said paragraphs 18 and 19 read as:

"18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative law as in Public law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State's failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.

19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes 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 could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai, the Court observed that even 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 Rajinder Narain Rae v. Bijai Govind Singh that an order made by the Court was final and could not be altered:

"...nevertheless, if by misprision in embodying the judgments, by 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, 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 of 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 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 visualise the 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 may 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 XLVII 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 Rule this Court has the inherent power to make such orders 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 for sake of justice."

Another judgment relied upon by Shri Shanti Bhushan is in the case of M/s Green View Tea and Industries v. Collector Golaghat, Assam and another reported in AIR 2004 SC 1738. Vide paragraph 15 of the judgment, Hon'ble the Apex Court has reiterated the ratio of judgment as laid down in para 36 in the case of S. Nagaraj and others (supra). Yet another judgment cited by Shri Shanti Bhushan is the case of Rajender Singh v. Lt. Governor, Andaman and Nicobar Islands and others reported in AIR 2006 SC 75 wherein also the scope of review under Order 47 Rule 1 CPC has been discussed. Paragraph 15 of the judgment being relevant is reproduced as:

"We are unable to countenance the argument advanced by learned Additional Solicitor General appearing for the respondents. A careful perusal of the impugned judgment does not deal with decide many important issues as could be seen from the grounds of review and as raised in the ground of special leave petition/appeal. The High Court, in our opinion, is not justified in ignoring the materials on record which on proper consideration may justify the claim of the appellant. Learned counsel for the appellant has also explained to this Court as to why the appellant could not place before the Division Bench some of these documents which were not in possession of the appellant at the time of hearing of the case. The High Court, in our opinion, is not correct in overlooking the documents relied on by the appellant and the respondents. In our opinion, review jurisdiction is available in the presence case since the impugned judgment is a clear case of an error apparent on the face of the record and non-consideration of relevant documents. The appellant, in our opinion, has got a strong case in their favour and if the claim of the appellant in this appeal is not countenanced, the appellant will suffer immeasurable loss and injury. Law is well-settled that the power of judicial review of its own order by the High Court inheres in every court of plenary jurisdiction to prevent mis-carriage of justice."

Thus, according to Shri Shanti Bhushan, this review petition is maintainable and the points raised therein, particularly with reference to Sections 28 and 29 of the Act of 1961 vis-à-vis Article 243C and Article 243N of the Constitution of India, would be maintainable.

On the other hand Shri Anil Kumar Tewari, learned Senior Advocate contends that the point of vires cannot be challenged in the review petition nor can the mistake of the Advocate be re-opened. He referred to paragraph 8 of the review petition to argue that no prayer was made or leave sought from this Court to urge the point of determination of genuineness of the signatures on the No Confidence Motion. He also submitted that once the Court came to the conclusion on the basis of report that 31 members had admitted their signatures, then there is no point to re-open it in the review petition. It is also a submission of learned counsel that the averments made in paragraph 14 of the review petition that the Hon'ble Supreme Court has directed the petitioner to file it before this Court is not noticeable in the order dated 19.2.2013 passed by the Hon'ble Court. On the other hand, the Hon'ble Supreme Court has only observed that if the submission that the scope of Article 243 of the Constitution of India was not considered, even though specifically argued, the remedy of the petitioner would be to seek the review of the judgment of the High Court rather than to challenge the same by way of Special Leave Petition. Thus, the Hon'ble Supreme Court has not directed the petitioner to file the review petition.

Shri Anil Kumar Tewari, learned Senior Counsel urged that during the course of hearing of the writ petition, both at the interim and final stage, no submissions were made by learned Senior Counsel appearing for the petitioner to question the Constitutional validity of Section 28 of the Act of 1961 or to explain the import of Article 243N of the Constitution of India. Nor a request was made on behalf of the petitioner for providing opportunity to file objection to the enquiry report submitted by learned Additional District Judge. In fact, learned Senior Counsel for the petitioner made a categorical statement at Bar that in view of the fact that the report had been submitted by a Senior Judicial Officer, there arose no occasion to file any objection thereto. The review has been filed raising entirely new plea regarding the Constitutional validity of Section 28 vis-a-vis Article 243N. The review petition being based on a false averment is an attempt to subvert the Court of justice and it amounts to gross contempt of the Court. The petitioner has not approached this Court with clean hands inasmuch as in the review petition, it has been asserted that the Hon'ble Supreme Court has directed them to file the review petition, which is a false statement on the face of it. By means of the review petition, the petitioner is attempting to re-argue his writ petition, which is beyond the scope of review. The power of this Court to review its order under Article 226 is subject to definite limitations. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground, but it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. The power of the appellate court is distinct from the power of review. The aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in Aribam Tuleshwar Sharma v. Aibam Pishak Sharma reported in (1979) 4 SCC 389.

It is an assertion of learned Senior Counsel that while hearing a review petition, this Court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. The review constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite proposition that exercise of inherent jurisdiction is not invoked for reviewing any order. This view has been taken by the Hon'ble Supreme Court in Inderchand Jain v. Motilal reported in (2009) 14 SCC 663. 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 aforesaid proposition of law has been laid down by the Hon'ble Supreme Court in Lily Thomas v. Union of India reported in (2000) 6 SCC 224. In order to appreciate the scope of a review, Section 114 C.P.C. has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it 'may make such order thereon as it thinks fit'. The parameters are prescribed in Order 47 C.P.C. and for the purposes of this lis, it would permit the petitioner to press for a rehearing 'on account of some mistake or error apparent on the face of the records or for any other sufficient reason'. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because the counsel had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby obtained a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 C.P.C. which states that the fact that the decision on a question of law on which the judgment of the Court is based, has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable, the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. The aforesaid ratio has been elucidated by the Hon'ble Supreme Court in Haridas Das v. Usha Rani Banik reported in (2006) 4 SCC 78.

Learned Senior Counsel urged that there is no specific pleading found in the writ petition in support of the contentions of the review-applicant, and moreover the existence of pleading alone cannot entitle the applicant to seek remedy by way of review unless it is established that the said contentions were specifically argued and the grounds pressed before this Court at the time of hearing have escaped attention. The Hon'ble Supreme Court in the case of Daman Singh v. State of Punjab reported in (1985) 2 SCC 670 has held that it is not unusual for parties and counsel to raise innumerable grounds in the petitions and memorandum of appeal etc. but, later, confine themselves, in the course of arguments, to a few of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered.

According to learned Senior Counsel, the entire basis of filing of the instant review petition can be found in its paragraph-14 which reads as:

"The Hon'ble Supreme Court while disposing of the Special Leave Petition, has been pleased to direct the petitioner to file a Review Petition before this Hon'ble Court in order to seek indulgence of this Hon'ble Court to get an opportunity to rebut the enquiry report, submitted before this Hon'ble Court under its orders and also to argue before this Hon'ble Court that in view of the provinces of Article 243(ii) of the Constitution of India there being no provision in the Panchayat election for 'Motion of No Confidence' whether Section 28 of the Act of 1961 would continue to operate in view of Article 243N. Said liberty is conditional which is apparent from the observation contained in the judgment and order of the Hon'ble Supreme Court dated 19.02.2013, which is quoted herein below:-

"He submits that the point with regard to the applicability of scope and ambit of Article 243 of the Constitution of India, even though specifically argued before the High Court, has neither been noticed not considered. If that be so, in our opinion, the remedy of the petitioner would be to seek review of the judgment of the High Court rather than to challenge the same by way of this Special Leave Petition."

It is asserted by learned Senior Counsel Shri Anil Kumar Tiwari in his written submission that on behalf of the petitioner it was contended before this Court that the Hon'ble Supreme Court had incorrectly recorded the aforestated contention and, in fact, it was argued that grounds had been taken in respect of the contention regarding unconstitutionality of Section 28 of the Act of 1961 in view of Part IX of the Constitution of India.

The Hon'ble Supreme Court has held in the case of State of Maharashtra v. Ramdas Srinivas Nayak and another, reported in (1982)3 SCC 463 that it is not open to launch into an enquiry as to what transpired in the High Court. Such a course is untenable, barred by public policy and is contrary to the restraints of judicial decorum. Matters of judicial records are unquestionable. They are not open to doubt and Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation. The statement of the Judges recorded in their judgment as to what transpired in Court is conclusive and cannot be contradicted by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in mind of the Judges, to call the attention of the very Judge(s) who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.

From the aforesaid judgment, it is apparent that the contention of the petitioner is absolutely untenable and the review petition has been filed on the basis of a false averment and amounts to abuse of the process of Court as has been held by the Hon'ble Supreme Court in the case of Express Newspapers Pvt. Ltd. v. Union of India reported in 1986) 1 SCC 259. The review petition is thus liable to be dismissed as not being maintainable and it amounts to abuse of the process of law.

Shri Raghvendra Singh, learned Senior Counsel appearing for other respondents submitted that there is no prayer in the writ petition to declare the provisions of Sections 28 and 29 of the Act of 1961 ultra vires on the ground that they are inconsistent with the provisions of Article 243C and Article 243N of the Constitution, therefore, such prayer cannot be made in the review petition. Moreover, there is no ground to consider the vires of the Sections in view of the judgment of Hon'ble the Supreme Court in the case of Bhanumati and others v. State of U.P., reported in 2010 (12) SCC 1, although Shri Shanti Bhushan argued that the provisions of No Confidence Motion was not under challenge in this case, therefore, it cannot be treated as a precedent in regard to the point raised in the writ petition. The above contention of the learned Senior Counsel is totally misconceived as, though the provision relating to No Confidence Motion was not challenged in the petition in the Bhanumati's case (supra), but it had been raised before the Court and considered in great details by the Hon'ble Supreme Court in paragraphs 41, 41, 42, 43, 44, 45, 46 and 47 of the said judgment and therefore, it was observed by the Hon'ble Court in paragraph-48 as: "It is thus clear that the statutory provision of no-confidence is not contrary to part IX of the Constitution". The Hon'ble Apex Court in the earlier part of paragraph 48 has also observed: "The appellants have not challenged UP. Act 20 of 1998 by which Section 15 of the 1961 Act was continued in amended version. Therefore, the continuance of no confidence provision has not been challenged." In fact the intention of the Hon'ble Court in making the above mentioned observations was that the provision relating to no confidence has rightly not been challenged in Bhanumati's case (supra). The intention of the Hon'ble Apex is evident from the fact that the Hon'ble Court has upheld the validity of the said provision after considering the issue in detail in the preceding paragraphs before making the above mentioned observations.

The issue has further been considered in paragraphs 49, 50, 51, 52, 53, 54 and 55 and then thereafter specific argument of the appellant in regard to validity of provision of No Confidence Motion has been considered in paragraphs 56, 57, 58 to 64 and it has been concluded in paragraphs 65 to 67, which read as:

"65. Such a provision is wholly compatible and consistent with the rejuvenated panchayat contemplated in part IX of the Constitution and is not at all inconsistent with the same.

66. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayat Raj institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self-governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.

67. Any head of a democratic institution must be prepared to face the test of confidence. Neither the democratically elected Prime Minister of the country nor the Chief Minister of a State is immune from such a test of confidence under the Rules of Procedure framed under Articles 118 and 208 of the Constitution. Both the Prime Minister of India and the Chief Ministers of several States heading the Council of Ministers at the centre and in several States respectively have to adhere to the principles of collective responsibilities to their respective houses in accordance with Articles 75(3) and 164(2) of the Constitution.

The other argument which has been advanced on behalf of petitioner by comparing office of Chairperson of Panchayat with that of the President of India has also been considered and dealt with in paragraphs 68 to 73.

Shri Raghvendra Singh, submitted that the issue of legislative competence in enacting the provision has also been considered by the Hon'ble Apex Court in paragraphs 73, 74 and 75 and thereafter the contention of the petitioner has been rejected. It is thus evident that all the points argued by Shri Shanti Bhushan have already been rejected by the Hon'ble Apex Court in Bhanumati's case after detailed consideration. Therefore, the same is not open for consideration of this Court as it's a precedent and has a binding effect in view of Article 141 of the Constitution of India.

In regard to the argument on behalf of the petitioner that notice of intention to bring Motion of No Confidence has not been signed by the members and certain members have also submitted affidavits in this regard, it is urged that it has already been considered and rejected by the Division Bench of this Court in its Judgment and order dated 31.5.2012, passed in Writ-C No.27808/2012. The relevant portion of the order reads as:

"We further find that the averments that some persons, who have signed the notice have given affidavit that they have not put their signatures, is not a ground on which any enquiry be made by the Court for convening the meeting. The Court in such cases has to rely on the satisfaction of the district Magistrate. If the notice complies with all the requirements of law and the Collector is satisfied with the genuineness of the persons and requisite majority, the Court would not ordinarily interfere in such matter. In such case the petitioner should prove the support of majority on the floor of the house."

The argument that ''No Confidence Motion' is being introduced on political motivation has no merit as the element of politics in the election of panchayats cannot be ruled out and the members who are public representatives do have political affiliations, therefore, political motivation behind No Confidence motion is not unacceptable and it is a part of the game.

The argument that Notice of intention to bring No Confidence Motion has not been served on all members and some of the envelopes have been returned back to post office after note of the post man, has also been considered and rejected by Division Bench of this Court in its judgment and order dated 30.5.2012 passed in Writ Petition No.4258 of 2012 wherein it has been held that the Rules, referring to section 15(3)(ii) of the Act of 1961, stipulate that notice should be sent through registered mail addressed to the residence of the members or by way of affixing a notice on the notice Board of the office of Kshettra Panchayat, thus, in the present case, the fact that some notices were returned back to post office after the note of the postman does not vitiate the motion.

Shri Raghvendra Singh, learned Senior Counsel, thus contended that in view of the above submissions the review petition lacks merit and deserves to be dismissed.

On a careful consideration of the rival submission and the materials on pleading, it is clear that filing of this review petition originates in the observation made by Hon'ble the Apex Court in the order dated 19.2.2013 passed in Petition for Special Leave to Appeal (Civil) No.8542 of 2013 filed by the review-petitioner. The contents of said order are reproduced as:

"....Mr. Shanti Bhushan, learned Senior Counsel appearing for the petitioner, has submitted that the High Court has relied upon the report submitted by the Additional District Judge, without giving the petitioner any opportunity to submit any objection to the report. The petitioner was unable to submit her objection since copy of the report was not supplied to her. This apart, in view of the provisions contained in Article 243C(2) of the Constitution of India, in Panchayat elections, there is no provision for 'no confidence motion'. He submits that the point with regard to the applicability of scope and ambit of Article 243 of the Constitution of India, even though specifically argued before the High Court, h as neither been noticed nor considered. If that be so, in our opinion, the remedy of the petitioner would be to seek review of the judgment of the High Court rather than to challenge the same by way of this special leave petition. Although Mr. Bhushan has prayed that operation of the impugned order be stayed for two weeks to enable the petitioner to approach the High Court by way of review petition, we are not inclined to accept the aforesaid prayer. We, however, make it clear that the result of the meeting, which is scheduled to be held on 22nd February, 2013, shall not be declared for a period of two weeks.

With these observations, the special leave petition is disposed of."

It is noticeable that as learned Senior Counsel appearing for the petitioner submitted that this Court did not consider the applicability of scope and ambit of Article 243 of the Constitution of India, Hon'ble the Supreme Court observed that if that be so, the remedy of petitioner would be to seek review of the judgment of the High Court passed in the writ petition. That is how the petitioner is before us in this review petition.

In so far as the claim of petitioner that Hon'ble the Supreme Court had directed her to file this review petition is concerned, it does not seem to be correct as we do not find any such direction in the aforesaid order.

Another point that was raised before Hon'ble the Supreme Court was with regard to declining opportunity to the petitioner for submitting her objection to the report pressed in service under the order of this Court by learned Additional District Judge, Sitapur. The circumstances whereunder this Court directed the learned District Judge, Sitapur, to enquire into the genuineness of signatures on the written notice of intention to move no confidence motion, either by himself or by some Additional District Judge, are provided in the order dated 21.11.2012 passed in the writ petition. The said order is reproduced as:

"We have heard learned counsel for parties and perused the pleadings of writ petition.

Learned Senior Counsel Sri J.N. Mathur submitted that out of 37 members who have moved no confidence, six have given letters, that they have not sworn any affidavits. Sri Mathur may file the letters during the course of day. Sri Mathur also took us to the notice issued by District Collector regarding the carrying out of proposed No Confidence Motion. Sri Mathur also pointed out that during the entire exercise, even two Cabinet Ministers of Government of U.P. were seen present and their photographs have also appeared in the newspapers along with the said thirty seven members, who are said to be the signatories to the 'No Confidence Motion'.

Thus, according to Mr. Mathur, District Magistrate be directed to hold the enquiry about the genuineness of signatures before processing and conducting the No Confidence Motion.

On the other hand, Sri Rajveer Singh Yadav, learned Additional Advocate General submitted that all the thirty seven members have filed affidavits with their photographs which are duly notarized and thus it is absolutely incorrect to make allegations that their signatures have been forged.

Sri Raghvendra Singh, learned Senior Counsel also intervened and submitted that the resolution in question has been passed in accordance with the provisions of Act and the District Magistrate has no power to verify the genuineness of signatures and has no option but to carryout the motion. Sri Singh also submitted that in the newspapers clippings as annexed herewith, it is clearly mentioned that the photographs and signatures of the members moving the No Confidence Motion were duly verified.

Sri Raghvendra Singh also referred to two orders of coordinate Benches of this Court.

Relevant portion of observations relating to point in question, as made in order of Writ Petition No. 27808 (C) of 2012 (Akhilesh Kumar Katiyar Vs. State of U.P. and others) on reproduction reads as under :

"We further find that the averments that some of the persons, who have signed the notice have given affidavit that they have not put their signatures, is not a ground on which any enquiry be made by the Court for convening the meeting. The Court in such case has to rely upon the satisfaction of the District Magistrate. If the notice complies with all the requirements of law and the Collector is satisfied with the genuineness of the persons and requisite majority, the Court would not ordinarily interfere in such matter. In such case the petitioner should prove the support of majority on the floor of the house." Similarly the observation of another coordinate Bench made while deciding Writ Petition No. 4753 (M/B) of 2012 is given below :

"The learned counsel for the petitioner made an effort to point out several irregularities in the service of notice upon the petitioner in light of Section 15 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961. He further submitted that the members of Kshettra Panchayat, who are shown to have signed on the notice of No Confidence Motion presented before the District Magistrate, Sitapur, have submitted the affidavits to cancel the proposal of notice. However, we are of the view that no such method for cancellation of proposal has been provided under the Act, therefore, we are not inclined to enterfere in the proceeding of No Confidence Motion."

Thus, in one case it is held that the Courts may rely upon satisfaction of District Magistrate and would not ordinarily interfere in such matters, whereas in other, there is observation that in the absence of such provisions in the Act the resolution cannot be cancelled. The ratios of orders passed in the aforesaid cases would not apply in the facts and circumstances of the present case as the aforesaid observations have been made in limited premises. Besides, a democratically elected representative of people should not be allowed to be dethroned when there are reasonable grounds to doubt the credibility of the resolution for No Confidence Motion and the genuineness of signatures of the members who have come to this Court with wild cry that the resolution in question has been passed and the No Confidence Motion is being carried out in their names without taking their consent and the exercise of their mandate.

Moreover, as Sri Raghvendra Singh, learned Senior Counsel, has not yet filed any impleadment application, he may do so before the next date of hearing.

Learned Additional Advocate General may also file the affidavit shown to the Court with a counter affidavit.

However, looking to the nature of alleged irregularities and special facts and circumstances of the case, we think it expedient in the interest of justice to direct enquiry by some independent Authority and thus the learned District Judge, Sitapur shall hold the enquiry himself or through some Senior Judicial Officer not below the rank of Additional District Judge nominated by him into the genuineness of affidavits and signatures of members and submit a report before the next date of hearing.

Till then, further proceedings of No Confidence Motion shall remain in abeyance.

List the matter on 20.12.2012."

In view of concern to get the matter inquired into by some independent authority, the above directions were issued which, ordinarily, we should not do, for, under the provisions of Section 28(4) of the Act of 1961, it is the District Judge who presides over the meeting of 'No Confidence Motion". For ready reference the provisions of Section 28 of the Act of 1961 are reproduced herein below:

"28. Motion of no-confidence in Adhyaksha--(1) A motion expressing want of confidence in the Adhyaksha of a Zila Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections

(2) A written notice of intent on to make the motiion, in such form as may be prescribed, signed by not less than one-half of the total number of elected members of the Zila Panchayat for the time being, together with a copy of the proposed motion, shall be delivered in pereson, by any one of the members signing the notice, to the collector having jurisdiction over the Zila Panchayat.

(3) The Collector shall thereupon--

(i) convene a meeting of the Zila Panchayat for the consideration of the motion at the office of the Zila Panchayat on a date appointed by him, which shall not be later than thirty days from the date of which the notice under sub-section (2) was delivered to him; and

(ii) give to the elected members notice of not less than fifteen days of such meeting in such manner as may be prescribed.

Explanation - In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notice of the meeting to the elected members shall be excluded.

(4) The Collector shall arrange with the District Judge of the district to preside at such meeting:

Provided that the District Judge may instead of presiding himself direct a Civil Judicial Officer not below the rank of a Civil Judge subordinate to him to preside at the meeting.

[(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).

(4-B) If the Officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the [elected members] at least ten days notice of the next meeting in the manner prescribed under sub-section(3).]

(5) [Save as provided in sub-sections (4-A) and (4-B) a meeting] convened for the purpose of considering a motion under this section shall not be adjourned.

(6) As soon as the meeting convened under this section commenses, the Presiding Officer shall read to the Zila Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.

(7) No debate on the motion under this section shall be adjourned.

(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote [which shall be held in the prescribed manner by secret ballot]

(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.

(10) A copy of the minutes of the meeting together with a copy of the motion and the result of voting thereon shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Collector.

(11) If the motion is carried with the support of [more than half] of the total number of [elected members] of the Zila Panchayat for the time being--

(a) the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette; and

(b) the Adhyaksha, as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is affixed on the notice board of the office of the Zila Panchayat.

(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha, as the case may be, shall be received until after the expiration of [one year] from the date of such meeting.

(13) No notice of a motion under this section shall be received within [two years] of the assumption of office by an Adhyaksha, or as the case may be."

The reference of the matter to the learned District Judge, Sitapur, for inquiry was with the consent of learned counsel for parties, therefore, precisely for that reason, upon submission of the report by the learned Additional District Judge, Sitapur, none of the parties to the lis prayed for time to file objection thereto, a fact, which is also borne out from the preliminary objection raised by respondent no. 5, namely, Smt. Madhu Gupta, and the written submissions of learned Senior Counsel appearing for the respondents, that none of the parties made a request for granting time to file objection to the report. And, once out of 37 signatures, 31 were found to be genuine by learned Additional District Judge, Sitapur, whose impartiality we have no any valid reason to doubt, it was not felt necessary to prolong the proceedings any further. Moreover, in the absence of any request to grant time to file objections to the report, there was no ground to hold any further proceedings. If we bring a serving Judicial Officer in picture for holding inquiry, who is under direct superintendence of the High Court, the presumption is that he will not be casual in his business, and that is why the inquiry was not assigned to an Executive or Police Officer.

Now coming to the issue of constitutional validity of Sections 28 and 29 of the Act of 1961, it is also noteworthy that in the prayer part of the writ petition, there was no such prayer for considering this question on the ground that it is ultra vires of Article 243C and Article 243N. The prayer part of the writ petition reads as:

"i). issue an appropriate writ, order or direction in the nature of certiorari quashing the impugned notice of intent to bring no-confidence motion against the Petitioner,

ii)issue a writ, order or direction or writ in the nature of certiorari quashing the notice dated 31st October, 2012 issued by respondent no.3, as contained in Annexure No.1 to the writ petition.

iii)issue a writ, order or direction or writ in the nature of mandamus directing the respondent no. 3 to verify the genuineness of the signature of the member's on the notice to bring motion against the pettiioner dated 30th October, 2012,

iv)issue a writ, order or direction or writ in the nature of mandamus commanding the opposite parties to let the Petitioners to continue on the post of Adhyaksha, Zila Panchayat Sitapur of Tehsil & District Sitapur,

v)issue an ad-interim mandamus to the above effect,

vi)issue any other appropriate writ, order or direction in favour of the petitioner as the Hon'ble Court may deem fit in the circumstances of the case,"

That apart, upon going through the averments of the writ petition, we do not find any specific reference regarding the challenge to the constitutional validity of Sections 28 and 29 of the Act of 1961. The only such reference that seems to be indirectly connected to the question is contained in paragraphs 25 and 28 of the petition. They are also reproduced as:

" 25. That it is further being advise to submit that petitioner has been unnecessary harassed for their ulterior motive by the Authorities in connivance with the minister and are in hand in gloves just to frustrate the democratic process, which has been heart and soul of Constitution of India.

28. That the idea so evolved culminated in the passing of the 73rd Constitutional (Amendment) Act, by virtue of which Part IX was inserted in the Constitution, which gave panchayats the status of a constitutional body and also ensure that the body would be a complete unit of local self-government having complete autonomy based on democratic principles unshackled from official control."

That apart, in the preliminary objection as well as written submissions of learned counsel for the respondents, there is a categorical assertion that learned Senior Counsel for petitioner at no point of time raised any argument to challenge the constitutional validity of Section 28 of the Act.

Besides, in view of the observations made by Hon'ble the Apex Court, with a conclusive note vide paragraphs 48 and 65 to 67 in the judgment of Bhanumati's case, as referred to hereinabove in the submissions of learned Senior Counsel for respondents, we are not able to persuade ourselves to agree with the legal propositions as canvassed by learned Senior Counsel, Shri Shanti Bhushan. It is, thus, not open for us to reopen the concluded chapter, lest it may amount to overreaching the judgment of Hon'ble the Apex Court. Under the circumstances, it would be appropriate for the petitioner to raise this issue by way of clarification/review or any other appropriate proceeding as permissible under law before Hon'ble the Apex Court instead of raking up before this Court. That apart, we also do not find any prayer challenging the constitutional validity of the aforesaid provisions in the writ petition nor is there any such direct and effective pleadings on this point therein.

It would also be apposite to refer to and reproduce paragraphs 4 to 8 of the judgment of Hon'ble the Supreme Court in the case of Ramdas Srinivas Nayak (supra) as already referred to by Shri Anil Kumar Tewari, learned counsel for the respondent No.5 to reiterate the proposition that the statements of facts recorded in the judgment of the Court are conclusive of the facts so stated. The said paragraphs read as:

"4. When we drew the attention of the learned Attorney-General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". We are bound to accept the statement of the judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well -settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

5.In R v. Mellor, Martin was reported to have said:

"We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity".

6.In King Emperor v. Barendra Kumar Ghose, Page, J said,

.. these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version.

7. In Sarat Chandra Maiti v. Bibhabati Debi Sir Asutosh Mookerjee explained what had to be done:

....It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment....

8.So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else."

Besides, in the Constitution Bench Judgment of Hon'ble the Supreme Court in Daman Singh's case (supra) also, the Hon'ble Court has taken the same view in paragraph 13 thereof as:

"The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in inquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not ?

With great respect, these judgments do not find reference in the judgment of S.Nagaraj and others (supra), also rendered by the Constitution Bench. We have also carefully gone through the propositions of law as well as observations made in paragraphs 18 and 19 of the judgment which elucidate and reiterate the settled principles of law being followed in deciding the review petitions but in the obtaining facts and circumstances of this case, we do not find any ground to entertain the petition. The Additional District Judge, Sitapur, a senior judicial officer, has prepared the report honestly and with due diligence and we do not find any valid and plausible ground to impeach its credibility.

In addition to that, this Court vide an order dated 28.10.2010 passed in Review Petition No.254 of 2010 has discussed the question of scope and ambit of Section 114 CPC and order 47 Rule 1 CPC as under :

"This review petition under Chapter V, Rule XII of Allahabad High Court Rules, 1952 has been filed against the judgment and order dated 27.04.2010 passed by this Bench in Writ Petition No.1357 (MB) of 2010 (Gyan Singh Yadav and others vs. State of U.P. and others) on the grounds that by passing this judgment the discretion vested in the Central Registrar under the Multi-State Cooperative Societies Act, 2002 (for short 'The Central Act') has been eroded; the Northern Railway Primary Cooperative Bank Limited (for short 'the NRPCB') would not become a Multi State Cooperative Society only by the operation of the deeming provisions as provided under Section 103 of the Central Act, the Central Registrar was not impleaded as opposite party and the Central Registrar has held that the U.P. Postal Primary Cooperative Bank Limited is not a Multi State Cooperative Society as its objects are limited only to the State of U.P.

We have heard learned counsel for parties and perused the records. At the very outset, it would be apposite to note that the review of a judgment or order as provided under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, could be sought only on the grounds like: (a) that there is discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) that some important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) that there was some mistake or error apparent on the face of record or there is any other sufficient reason. It is also settled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

In the judgment of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale reported in (1960) 1 SCR 890, it has been held as under:

"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."

Further that this ratio has been reiterated in the judgment of Hon'ble the Apex Court in Parsion Devi v. Sumiri Devi reported in (1997) 8 SCC 715. The observations of Hon'ble the Apex Court reads as:

"Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise."

The aforesaid views have again been reiterated by Hon'ble the Apex Court in a later judgment reported in AIR 2006 SC 1634 (Haridas Das vs. Smt. Usha Rani Banik and others). A similar view was also taken in another judgment reported in JT 2009 (9) SC 537 : (2009) 14 SCC 663 (Inderchand Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs.).

In the aforesaid premises we have examined the judgment under challenge and we reiterate as noticed in our judgment under challenge that a sizable number of the members of Northern Railway Primary Cooperative Bank (the NRPCB) are settled or employed in the State of U.P. and the State of Uttarakhand/Uttaranchal, both, and this point has already been addressed in the impugned judgment. We have noticed all the relevant judgments and Acts in great detail and we do not find any error apparent on the face of record in terms of the ratio as laid down herein above nor is there any sufficient reason shown to interfere. Rather it appears that the State of U.P. has exceeded its brief in pleading that by passing the impugned judgment the discretion vested in the Central Registrar has been eroded and that the Central Registrar, Cooperative Societies has not been impleaded as a party. It only goes to show as to how some vested interest in the State Government and the Northern Railways have joined hands in order to control the huge corpus of the Bank worth over Rs.250 crores collected by way of contributions from the hard earned money of Railway workers comprising mostly Class III and Class IV employees despite a note of caution recorded by this Court in the impugned judgment. It also appears that the said judgment was challenged by way of a SLP in the Hon'ble Supreme Court but the petitioners have neither filed a copy of the order of dismissal as withdrawn, nor has referred it in this review petition. Thus, this review petition deserves to be dismissed.

Hence, it is dismissed as such."

There is no obvious reason to disturb the finality attained by the writ order. As there is no mistake or error apparent on the face of the record or any material on record, which was raised before us, skipped our notice while considering the case, the ratio of judgment in the case of M/s Green View Tea and Industries (supra) would not be attracted. The propositions of law as settled in Board of Control for Cricket, India (supra) vide paragraphs 88, 90 and 95, which are relied upon by learned Senior Counsel for the petitioner, are only the reiteration of the requirements of Section 114 CPC and Order 47 Rule 1 CPC. There was no misconception of fact or law on the part of the Court in deciding the writ petition or in the arguments of learned Senior Counsel who appeared for the petitioner at that stage, therefore, the report submitted by learned Additional District Judge, Sitapur, was accepted without testing its veracity by way of inviting objections wherefor, as discussed above, there was no such request.

In the premises discussed herein above, the review petition, being devoid of merit, is hereby dismissed.

			        (Dr. Satish Chandra, J)    (Uma Nath Singh, J)
 
04.07.2013)
 
anb/Irfan/rps
 
A.Katiyar/Rizvi