State Of U.P.Throu The Prin. ... vs National Alliance Of People'S ...
2019 Latest Caselaw 3297 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Reserved
 
Court No. - 4
 
REVIEW PETITION No. 45 of 2012
 
In Re:
 
MISC. BENCH No. - 6993 of 2009
 

 
State of U.P. and others			.................... Review applicants
 
vs.
 
National Alliance of People's Movements and another ......Opp. Parties		
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajeev Singh,J.

This petition/application seeks review of the judgment and order dated 25.01.2012 passed by a Division Bench of this Court, whereby two writ petitions filed under Article 226 of the Constitution of India, namely, Writ Petition Nos.6993 (M/B) of 2009 and 10875 (M/B) of 2011 were allowed.

Challenge made in both the aforesaid writ petitions was two notifications dated 07.06.2009 and 25.03.2008, whereby certain works allotted to Confidential Section-1 of Administration Reforms Department of State of Uttar Pradesh were excluded from operation of Right to Information Act, 2005 (hereinafter referred to as ''the RTI Act') and further, Operations and Maintenance, Security and General Administration Units of Civil Aviation Department of U.P. were also excluded from the purview of the RTI Act. By the judgment and order under review, both these notifications have been quashed.

Heard Shri Raghvendra Singh, learned Advocate General for the review applicants-State of U.P. and Shri S.N. Shukla, the respondent, who appeared in person.

At the time of hearing of the writ petitions, it was conceded on behalf of the State of U.P. that the notification dated 07.06.2009 could not have been issued by Hon'ble Governor in exercise of his powers under sub section 4 of section 24 of the RTI Act. The Court thus noticed the said submission made on behalf of the State of U.P. and further observed that section 24(4) of the RTI Act does not give any authority to the State Government to issue the notification dated 07.06.2009, that is to say, what can be excluded from operation of the RTI Act is certain "organizations" established by the State and not the "works". The Court accordingly observed that the notification dated 07.06.2009 was per se illegal, without authority and thus void ab initio.

In respect of the notification dated 25.03.2008, it was observed in the judgment and order under review that it is beyond the powers of Hon'ble Governor as conferred by section 24(4) of the RTI Act for the reason that Operation Unit and Maintenance, Security and General Administration Unit of the Civil Aviation Department are neither intelligence nor security organization established by the State Government and as such the same cannot be exempted from the provisions of the RTI Act. The Court has further observed that these two units of the Civil Aviation Department are not independent security organizations, but they are the units of Civil Aviation Department and that when the Civil Aviation Department itself is not a security or intelligence organization, its units cannot be taken to be security organizations independently or as units of any security organization.

The Court considered the amendments made by the State of Uttar Pradesh in the Police Act and observed that sub section 4 of section 2(A) of the Police Act as inserted by the State by way of the Police (U.P. Amendment) Act, 2001 makes it clear that personnel of Civil Aviation Department shall discharge duties as may be specified pertaining to maintenance of aircraft, security at Lucknow Airport or any other Airport specified by a general or special order of the State Government and other duties incidental thereto or connected therewith. The Court observed that there cannot be any exclusion from applicability of the RTI Act by issuing the notification under sub section 4 of section 24 of the RTI Act unless the matter relates to the intelligence and security organizations established by the State. The Court further observed that even if the civil aviation personnel have been included in the police force of the State, that will not be sufficient to exempt Operation Unit and the Maintenance, Security and General Administration Unit of the Civil Aviation Department of the State Government from applicability of the RTI Act for the reason that the police department itself is not exempted.

Citing the judgment of Hon'ble Supreme Court in the case of State of Bihar and another vs. Bal Mukund Sah and others, reported in [(2000) 4 SCC 640], the Court observed that no rule or law made by the delegatee can supersede or override the powers exercised or the law made by sovereign legislature. The Court found that the impugned notifications are in derogation of Article 19(1)(g) of the Constitution of India. The Court thus found that Civil Aviation Department not being an intelligence or security organization, established by the State, its Operation Unit and Maintenance, Security and General Administration Unit cannot be taken to be intelligence and security organizations established by the State so as to bring them within the scope of sub section 4 of section 24 of the RTI Act.

Shri Raghvendra Singh, learned Advocate General, has attempted to argue that the judgment and order under review suffers from vice of error that is apparent on the face of record inasmuch as though this Court while allowing the writ petitions has noticed the functions of Operations Unit and Maintenance, Security and General Administration Unit of the Civil Aviation Department which are responsible for handling the movement to consider the dignity of the State Government and thus could be excluded from the Right to Information Act, however, the same has not been dealt with or decided.

The second ground taken by the learned Advocate General to impeach the judgment and order under review is that the Court has not appreciated the fact that the proviso to section 24(4) of the RTI Act itself provides the safeguard and it legally protects any notification under section 24(4) and that notwithstanding the notification dated 25.03.2008, the proviso to section 24(4) of the RTI remained intact and operative.

The third argument by the learned Advocate General to justify the notifications which were under challenge in the writ petitions is that the Court did not notice that the notification dated 25.03.2008 had been laid before the State Legislature as required under section 24 (4) of the RTI Act, though the said fact was clearly mentioned in the counter affidavit filed by the State.

Having considered the rival submissions made by the learned Advocate General for the State of U.P. and Shri S.N. Shukla, what we notice is that the grounds taken by the learned Advocate General in this review petition/application are not tenable. The Court has not only noticed the functions assigned to Operations Unit and Maintenance, Security and General Administration Unit of the Civil Aviation Department, but has clearly dealt with the same and has come to the conclusion that by such functions these two units will not become intelligence and security organization. Thus, the first ground taken by the learned Advocate General merits rejection, which is hereby rejected.

Regarding the other argument that the first proviso appended to section 24 provides safeguard to the notification dated 25.03.2008, it may be stated that non-mention of the said proviso in the notification dated 25.03.2008 is not a ground on which the writ petitions challenging the said notification have been allowed by the judgment and order under review. The Court has quashed the notifications impugned in the writ petition by giving detailed reasons and grounds. Even otherwise, the first proviso appended to section 24 of RTI Act provides that even if some intelligence and security organization is excluded from purview of the RTI Act, such exclusion will not exclude information pertaining to allegations of corruption and human rights violations, that is to say if the notification dated 25.03.2008 is found to be valid even then such notification will not exclude information pertaining to allegations of corruption and human rights violation. In this view the second ground urged by the learned Advocate General is also not tenable.

The last submission made by the learned Advocate General is that Hon'ble Court did not notice that the impugned notification dated 25.03.2008 had been laid before the State Legislature in terms of section 24(5) of the RTI Act and as such the observations made by this Court in the judgment and order under review that notification had not been placed before the State Legislature is erroneous and the same vitiates the judgment and order under review.

It is not in dispute that the notification dated 25.03.2008 was laid before the State Legislature. The judgment and order under review though observes otherwise, however, what is noticeable is that non-placement of the notification dated 25.03.2008 before the State Legislature is not a ground expressed by the Hon'ble Court in the judgment and order under review for quashing the notifications which were challenged in the writ petition.

As a matter of fact, learned Advocate General has attempted to re-argue the matter which is impermissible for this Court in these proceedings. Exercise of its jurisdiction of review is not available to the Court on the ground that the decision under review is erroneous on merits for the reason that such exercise of jurisdiction is the preserve of court of appeal.

The scope of review jurisdiction has been discussed in detail by Hon'ble Supreme Court in the case of State of West Bengal and others Vs. Kamal Sengupta and another, reported in (2008) 8 Supreme Court Cases 612. In the said case Hon'ble Supreme Court has referred to an earlier judgment of Hon'ble Supreme Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, reported in (1979) 4 SCC 389. In para 30 of the said report in the case of State of West Bengal and others (Supra), the Hon'ble Supreme Court has extracted the observations of the Hon'ble Apex Court in the case of Aribam Tuleshwar Sharma(supra). Para-30 of the said judgement is quoted herein below:

"30. In Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, this Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh vs. State of Punjab [AIR 1963 SC 1909] and observed :

"3....It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. 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. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner or errors committed by the Subordinate Court."

We may observe that the discussion in para-30 of the judgment in the case of State of West Bangal and others (supra) relates to the power of High Court to review an order passed under Article 226 of the Constitution of India. Hon'ble Supreme Court has clearly laid down that the jurisdiction of review may be exercised only on the discovery of new and important fact or evidence which was not within the knowledge of the person seeking the review or this jurisdiction can be exercised where some mistake or error apparent on the face of the record is discovered.

Hon'ble Supreme Court has explained the term "mistake or error apparent" in para-22 of the judgment in the case of State of West Bengal and others (supra) and has held that "mistake or error apparent" is an error which is evident per se from the record of the case and does not require detailed examination or scrutiny either of the facts or the legal position. Hon'ble Supreme Court has further observed that if an error is not self-evident, it cannot be treated as an error apparent on the face of the record for the purpose of exercising review jurisdiction as embodied under Order 47 Rule 1, CPC. Para-22 of the said report is extracted herein below:

"22. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision".

Quoting extracts from a judgment of Five Judges Bench of the Federal Court in the case of Hari Sankar Pal Vs. Anath Nath Mitter, reported in 1949 FCR 36, Hon'ble Supreme Court has observed that merely because the decision is erroneous is not a ground for review. Para-25 of the judgment in the case of State of West Bengal and others (supra) is extracted herein below:

"25. In Hari Sankar Pal v. Anath Nath Mitter, a Five Judges Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-appealing party, whose position was similar to that of the successful appellant, held :

"That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order XLVII, Rule 1, Civil Procedure Code."

It is well settled principles of law that a review is, by no means, an appeal in disguise whereby an erroneous decision can be corrected. Observations made by Hon'ble Supreme Court in Para-28 of the judgment in the case of State of West Bengal and others (supra) are also relevant for the purpose of appreciating the arguments raised by the review-applicant, which is extracted herein below:

"28. In Parsion Devi and Others vs. Sumitri Devi and Others, it was held as under:-

"Under Order 47 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 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

In the case of P.N. Eswara Iyer and others (supra), the vires of amendments made in the Supreme Court Rules in the matter of review petition, which provided that review petition shall be decided by circulation, was under consideration. Examining the importance of substantive power of review and procedure for its exercise in any judicial system, the Constitution Bench of Hon'ble Supreme Court in the case of P.N. Eswara Iyer and others (supra) has upheld the validity of the amendment which provided for decision on review petition by circulation without aid of oral submission. Expressing his opinion, late Krishna Iyer, J. for himself and Fazal Ali and Desai, JJ. has emphasized the limitations on exercise of review jurisdiction. Para-17 which contains the opinion of Krishna Iyer, J. in the case of P.N. Eswara Iyer and others (supra) is relevant to be quoted, which is extracted herein below:

"17. Review must be restricted if the hard-pressed judicial process is not to be a wasting disease. There are many ways of limiting its scope, content and modality. The confinement to certain special grounds, as in Order 47 Rule 1, C.P.C., is one way. The requirement of counsel's reasoned certificate of fitness (Certworthiness) for review is another. Judicial screening to discover the presence, prima facie, of good grounds to hear counsel in oral submission is a third. The first is good and continues. The second was tried and found ineffective and the third is being tried. Legislative policy is experimental as life itself is a trial- and-error adventure. What is shocking about this third alternative ? Judges scrutinise-the same judges who have once heard oral arguments and are familiar with the case-and, if they do not play truant, direct a hearing in court if they find good grounds. If there is ground, oral hearing follows. It is not as if all oral advocacy is altogether shut out. Only if preliminary judicial scrutiny is not able to discern any reason to review is oral exercise inhibited. The court process is not a circus or opera where the audience can clamour for encore. When the system is under the severe stress of escalating case-load, management of Justice Business justifies forbiddance of frivolous reviews by scrutiny in limine on the written brief. Justicing too is in need of engineering".

Having heard the submissions made by the respective parties, we find ourselves unable to agree with the submissions made by the learned Advocate General. Taking into account the law laid down by Hon'ble Supreme Court in the afore-cited judgments, we do not find that this review petition/application constitutes any ground so as to persuade us to exercise review jurisdiction in this case.

Review Petition/application is, thus, dismissed.

 
Order Date :- 22.04.2019
 
akhilesh/
 
       [Rajeev Singh, J.]    [Devendra Kumar Upadhyaya, J.]