Cantonment Board Meerut Thru' ... vs State Of U.P. & 3 Others
2014 Latest Caselaw 420 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									   
 
 A.F.R
 
Court No. - 21
 

 
Civil Misc. Review Application No. 120475 of 2014
 

 
IN
 

 
Case :- WRIT - C No. - 16750 of 2014
 

 
Petitioner :- Cantonment Board Meerut Thru' C.E.O.
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Satish Kumar Rai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Vivek Kumar Birla,J.

This is an application under Chapter IX Rule 7 of the Allahabad High Court Rules read with Order 47 Rule 1 C.P.C praying for review of our judgment dated 21st March 2014, whereby the petition filed by the Cantonment Board, Meerut, has been dismissed on the ground of availability of an alternative remedy of filing an appeal under Section 11(1) of the U.P. Excise Act, 1910.

It appears that the petitioner approached the Apex Court praying for setting aside the said judgment. The matter was heard but the learned counsel sought permission to withdraw the Special Leave Petition and file an appropriate review application before this Court.

Learned counsel has also produced the copy of the Special Leave to Appeal filed before the Apex Court and has also been filed the order dated 27.03.2014 along with the review application.

The ground taken in the review application is to the effect that there is an error apparent on the face of record on account of certain facts and the provisions of the Excise Act and Rules read with the Cantonment Board Act, 2006 having not been considered as such the judgment deserves to be reviewed.

Sri R.B. Singhal, learned Assistant Solicitor General of India assisted by Sri S.K. Rai submits that the error is with regard to the non-consideration of the factum of challenge raised in the writ petition that the respondent State and its authority has no power to grant a licence for allocating a liquor shop in the limits of Cantonment Board, Meerut, keeping in view the provision of Section 25 of the U.P. Excise Act, 1910 read with Rule 2-A of the U.P. Excise Number and Location of Excise Shops Rules, 1968 .

The second contention is that so far as the Cantonment Board is concerned, it is nowhere associated with any powers granting license except when it is required to be located within the limits of the Cantonment Board where the aforesaid two provisions categorically require the express prior consent of the Officer Commanding the Station.

Learned counsel submits that this express provision, therefore, obligates the Collector to permit the allocation of such liquor shops within the limit of Cantonment area only after the Commanding Officer has given consent and not otherwise.

Learned counsel further submits that so far as consent is concerned, this being an express provision and a mandate, any shop cannot be located within the Cantonment limits unless the aforesaid provision is complied with.

Therefore, a mandamus has been prayed for restraining the respondent authority to that effect and not for cancelling any licence. Sri R.B. Singhal submits that it is in this background that alternative remedy of appeal need not be availed by the petitioner Cantonment Board.

Sri Ramesh Upadhyay, learned Chief Standing Counsel and Sri A.C. Tripathi for the State contend, that these licensed shops which are stated to be located within the Cantonment area have been renewed in favour of private parties who have not been made parties to the writ petition, and therefore even otherwise the petition was not maintainable. He further submits that these licenses according to him are continuing since 1978 and therefore once it is on record that the Cantonment Board has been charging licence fee, there was a consent of the authority for running of such liquor shops within the Cantonment area for long. He, therefore, contends that the objection taken by the Cantonment Board is unfounded and the petition was rightly dismissed in order to find out these factual aspects which could have been gone in an appeal. He submits that an appeal is the correct remedy and therefore there is no error apparent on the face of record so as to review the judgment .

Sri Ramesh Upadhyay further submits that the petitioner Cantonment Board cannot, in any way, interfere with the running of the shops after the licence is granted and, if anybody interferes with the same, then he or the authority concerned is liable for penalty.

We have considered the submissions raised at length and the first issue is with regard to power of this Court to review its own judgment. It goes without saying that the Court has inherent powers of review and the powers of the High Court under Article 226 of the Constitution of India are not circumscribed by any such limitations but are governed by principles of Order 47 Rule 1 C.P.C. It is for this reason Chapter IX Rule 7 of the High Court Rules makes an express provision for review of a judgment.

So far as the issue of any error apparent on the face of record is concerned, we find that while delivering the judgment on 21st March, 2014, we had not taken notice of Section 25 of the Excise Act, 2010. Had that section been taken notice of the issue of filing an appeal would not have arisen, the consent being mandatory. It is necessary for the Excise Authority to ascertain that they are granting a licence after obtaining a consent as required under Section 25 of the Act and the Rules framed thereunder.

The aforesaid legal aspect having been omitted, there is a clear ground made out for review. We may also put on record that it has been laid down in large number of decisions that not only a mistake of counsel or mistake of court, but also misconception of Court or misreading by a Court is also a ground of review. The following decisions are a living testimony to the same.

1. Mt. Jamna Kuer Vs. Lal Bahadur and others (AIR 1950 Federal Court, 131); (Mistake of counsel/ mistake of Court by oversight review is permissible)

2. Moran Mar Basselios Catholicos and another Vs. Most Rev. Mar Poulose Athanasius and others (A.I.R. 1954 SC 526); (Misconception about concession of a lawyer can be subject matter of review)

3. S. Nagaraj & Ors. Vs. State of Karnataka & Anr. (Judgment Today 1993 (4) SC 27); (Review in the interest of justice)

4. M.M. Thomas Vs. State of Kerala and another (2000) 1 SCC 666); (Inherent power to review as High Court is superior court of plenary jurisdiction)

5. Bakshi Dev Raj (2) and another Vs. Sudheer Kumar (2011) 8 SCC 679); (Review is maintainable even after dismissal of the SLP)

A right of an appeal is a creature of a statute and should be availed of by an aggrieved person. The purpose is to correct errors in the powers exercised by a subordinate authority, court, etc. as explained in the case of Sita Ram and Others Vs. State of U.P. (1979 (2) SCC pg 656) (Para 25, 41, 42) but the petitioner is not questioning the power to grant licence nor is the petitioner objecting to the grant to any individual which power is concededly possessed by the competent authority. The petitioner is therefore at this stage not required to implead individual license holders, and not being aggrieved by the grant of licence, is also not under any compulsion to file an appeal.

Having found that the Judgment does suffer from an error as pointed hereinabove, we have no hesitation in allowing this application and accordingly, the review application is allowed and the judgment dated 21st March, 2014 is hereby recalled.

After hearing learned counsel for the parties and with their consent, we now proceed to dispose of the writ petition finally as the roster of such matters is still with the Bench.

From the facts that have been narrated by us, it is clear that the dispute is confined only to the consent of the Commanding Officer as required under Section 25 of the 1910 Act read with Rule 2-A of the Rules referred to hereinabove. The petitioner Cantonment Board as noticed hereinabove is not questioning the power of the Collector or Commissioner to grant a licence but they contend that such licence so far as the Cantonment Board is concerned, the allocation of a shop cannot be licensed within cantonment limits except with the consent of the Commanding Officer.

On this issue, Sri Ramesh Upadhyay, learned Chief Standing Counsel has insisted that such shops are running for long and the Cantonment Board has been realizing taxes as well. The issue of realizing of taxes or fees by the Cantonment Board is a separate function under the Cantonment Act, 2006 and the Rules, as a local body similarly as in the case of Municipal Corporation and Municipalities have separate powers for charging licence fee as provided for.

In the instant case, it is the very grant of licence and its renewal that is subject to the provisions aforesaid read with Section 36-A of the 1910 Act.

In order to ascertain as to whether the consent as required under the Act for any shop allocation where the Cantonment area is concerned, we hereby provide that the Respondent No.2, Excise Commissioner shall proceed to examine all such licenses which are alleged to be within the Cantonment limits, as to whether they conform to aforesaid provisions or not and pass appropriate orders preferably within 15 days from today. The Executive Officer of the Cantonment Board shall prefer his application before the Excise Commissioner within a week. Certified copy be made available to the parties within three days.

Order Date :- 2.4.2014

Ajay