State Of U.P.Thru Secy.Revenue ... vs Shyam Lal 425(S/S)2011
2021 Latest Caselaw 9569 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										  A.F.R.
 
Court No. - 4                                                              RESERVED
 
(C.M. Application No. 2419 of 2017)
 
In re:
 

 
Case :- SPECIAL APPEAL No. - 147 of 2016
 
Appellant :- State Of U.P.Thru Secy.Revenue Civil Sectt.Lko.& Ors.
 
Respondent :- Shyam Lal 425(S/S)2011
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Ram Harakh
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ravi Nath Tilhari,J.

(Per Ravi Nath Tilhari, J.)

(1) Heard Sri Dileep Kumar Gautam, learned counsel for the petitioner/review petitioner and learned standing counsel for the opposite parties.

(2) This review petition has been filed by the petitioner-respondent in special appeal, seeking a review of the judgment and order dated 19.04.2016 passed by a co-ordinate Bench in Special Appeal (D) no. 147 of 2016.

(3) The petitioner with respect to his grievance that he was being treated as Seasonal Collection Amin filed W.P. No. 425 (SS) of 2011 (Shyam Lal vs. State of U.P. and Ors.) for direction to the opposite parties to treat him as regular Collection Amin w.e.f. 03.07.1986, claiming the benefit of the judgment dated 19.08.2006 passed in W.P. No. 4031 (SS) of 2001 (Pratap Narain Pandey vs. State of U.P. and Ors.). In Pratap Narain Pandey, this court had quashed the order dated 19.09.2000 impugned therein and had directed the authorities to allow the petitioner of that writ petition to work as Regular Collection Amin since 05th June, 1986 for the purposes of seniority etc, except the salary for the period during which he did not work. The review petitioner was extended the same benefit vide order dated 09.09.2011 but in the Special Appeal, the judgment dated 09.09.2011 was set aside and the Writ Petition No. 425 (SS) of 2011 was dismissed after condoning the delay. The Special Leave Petition filed by the review petitioner was dismissed on 29.07.2016 by Hon'ble Supreme Court.

(4) A preliminary objection has been raised by the learned Standing Counsel that after dismissal of the S.L.P. against the judgment under review, the review petition is not maintainable.

(5) Sri Dilip Kumar Gautam has submitted that the review petition is maintainable, as the order of dismissal of S.L.P. was without assigning any reason, placing reliance on Khoday Distilleries Ltd. (NOW KNOWN AS KHODAY INDIA LIMITED) and Others vs. Sri Mahadeshwara Sahakara [(2019) 4 SCC 376].

(6) Learned counsel for the review petitioner has submitted that in compliance of the judgment dated 09.09.2011, the petitioner was given appointment on 13.09.2012 and his services were confirmed after completion of two years' probation period on 16.01.2015, and he was given benefit of seniority w.e.f. the year 1986 vide order dated 17.07.2015. The special appeal was filed in the year 2016 after all these events had taken place but without disclosing the facts correctly and by concealing the material facts of the confirmation of petitioner's services and giving of seniority etc benefits. He has submitted that the writ petition was decided after giving opportunity for filling counter affidavit to the State-opposite parties vide order dated 27.01.2011, however, no counter affidavit was filed, but in the Special Appeal plea was taken that the learned Single Judge without calling for any counter affidavit and opportunity to contest, allowed the writ petition, and resultantly in the judgment under review, it has been observed that the writ petition was decided on the first day, which is factually not correct. He has further submitted that counsel for the respondent-petitioner could not appear before this Court in appeal therefore these facts could not be brought to the notice of Hon'ble Court for its consideration. However the primary duty in this regard to disclose correct and complete facts was on the appellant, who did not discharge it. Non-consideration of these facts has resulted in grave miscarriage of justice as petitioner has been ousted from service consequent to the judgment under review.

(7) Learned Standing Counsel has submitted that the judgment under review does not suffer from any apparent error of law and the review petition deserves to be dismissed. However, he could not dispute that the writ petition was not decided on the same day but was decided after providing opportunity of filing counter affidavit, which was not filed. He also could not dispute that the orders dated 13.09.2012, 16.01.2015 and 17.07.2015 passed by the authorities, much prior to filing of the Special Appeal, were not placed before the Court in the special appeal.

(8) We have considered the submissions advanced and have also perused the material brought on record.

(9) We first proceed to consider and decide the preliminary objection to the maintainability of the review petition on the ground of dismissal of the Special Leave Petition against the same judgment.

(10) Order dated 29.07.2016 by which SLP of the petitioner against the judgment under review reads as follows:-

"The Special Leave Petition is dismissed.

As a sequel to the above, pending interlocutory applications, if any, stand disposed of."

(11) The law on the above point is no longer res-integra. In the case of Khoday Distilleries Limited (supra), Hon'ble Supreme Court reiterated and followed the law laid down in Kunhayammed and Ors. vs. State of Kerala and Anr. [(2000) 6 SCC 359] in which it was held that mere rejection of a special leave petition does not take away the jurisdiction of the court, Tribunal or Forum whose order forms the subject matter of petition for special leave, to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned for rejecting the petition for special leave and are stated in the order still the order remains one rejecting the prayer for grant of leave to appeal. Here also the doctrine of merger would not apply. But the law stated or declared shall attract applicability of Article 141 of the Constitution. The reasons assigned in the order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by the Apex Court. Paragraph 38 of the Kunhayammed and Ors. (supra) reads as under:-

38. The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(a). Thus the words "no appeal" has been preferred in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court's order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted.

(12) It is apt to refer paragraph 26 of the judgment of Hon'ble Apex Court in the case of Khoday Distilleries Limited (supra). Paragraph 26 is quoted hereinbelow:-

26. From a cumulative reading of the various judgments, we sum up the legal position as under:

26.1. The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.

26.2. We reiterate the conclusions relevant for these cases as under:

"(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."

26.3. Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case."

(13) In view of the above, we find the review petition to be maintainable and mere rejection of the SLP vide order dated 29.07.2016 without assigning any reasoning would not take away the jurisdiction of this Court to review its own judgment if grounds for exercise of review jurisdiction exist.

(14) We now proceed to consider the scope of review jurisdiction.

(15) The basic principles in which review application can be entertained and cannot be entertained have been eloquently laid down by Hon'ble the Apex Court in the case of Kamlesh Verma vs. Mayawati [(2013) 8 SCC 320]. Paragraph 20 under the heading "summary of principles" is being reproduced hereunder:-

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

(16) In the case of Perry Kansagra v. Smriti Madan Kansagra [(2019) 20 SCC 753], the Hon'ble Apex Court on the scope and power of review has reiterated the same principles. It is apt to reproduce paragraph nos. 14 to 16, which are as under:-

14. The issues that arise for our consideration can broadly be put under two heads:

14.1. (a) Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment?

14.2. (b) Whether the High Court was correct in holding that the reports of the Mediator and the Counsellor in this case were part of confidential proceedings and no party could be permitted to use the same in any court proceedings or could place any reliance on such reports?

15. As regards the first issue, relying on the decisions of this Court in Inderchand Jain v. Motilal [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] , Ajit Kumar Rath v. State of Orissa [Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 : 2000 SCC (L&S) 192] and Parsion Devi v. Sumitri Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715], it was submitted by the appellant that the exercise of review jurisdiction was not warranted at all.

15.1. In Inderchand Jain [Inderchand Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461] it was observed in paras 10, 11 and 33 as under: (SCC pp. 669 & 675)

"10. It is beyond any doubt or dispute that the review 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.

11. Review is not appeal in disguise. In Lily Thomas v. Union of India [Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056] this Court held: (SCC p. 251, para 56)

''56. It follows, therefore, 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.'

33. The High Court had rightly noticed the review jurisdiction of the court, which is as under:

''The law on the subject--exercise of power of review, as propounded by the Apex Court and various other High Courts may be summarised as hereunder:

(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.

(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit.'

In our opinion, the principles of law enumerated by it, in the facts of this case, have wrongly been applied."

15.2. In Ajit Kumar Rath [Ajit Kumar Rath v. State of Orissa, (1999) 9 SCC 596 : 2000 SCC (L&S) 192] , it was observed: (SCC p. 608, para 29)

"29. In review proceedings, the Tribunal deviated from the principles laid down above which, we must say, is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy had been finally decided. This, we are constrained to say, is not the scope of review under Section 22(3)(f) of the Administrative Tribunals Act, 1985...."

15.3. Similarly, in Parsion Devi [Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715] the principles were summarised as under: (SCC p. 719, para 9)

"9. 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 C.P.C. 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".

16. On the other hand, reliance was placed by the respondent on the decision in BCCI v. Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741] to submit that exercise in review would be justified if there be misconception of fact or law. Para 90 of the said decision was to the following effect: (SCC p. 765)

"90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."

(17) It has thus been settled in law that;

(i) the power of review may be necessitated by way of invoking the doctrine ''actus curiae neminem gravabit' which means that no act of the court in the course of whole of the proceedings does an injury to the suitors in the court. It has been held in Food Corporation of India and Another vs. M/s Seil Ltd. & Ors. [(2008) 3 SCC 440] that a writ court exercises its power of review under Article 226 of the Constitution of India itself and while exercising the jurisdiction it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim would be subject to review, amongst others, on the ''actus curiae neminem gravabit'.

(ii) The mistake or error must be apparent on the face of record i.e. that it must strike one on more looking at the record and would not require any long drawn process of reasoning. It should not be an error which has to be fished out and searched. Such an error must also be material which undermines the soundness of the judgment or results in miscarriage of justice. An error which may be apparent but is of inconsequential import, that would not furnish a ground for review.

(iii) An application for review would also be maintainable for ''any other sufficient reason', which expression has been interpreted to mean a reason sufficient on grounds at least analogous to those specified in Order 47 Rule 1 C.P.C., which are wide enough to include a misconception of fact or law by a court or even an Advocate and what other grounds would constitute sufficient reason depends on the facts and circumstances of each case.

(iv) There are limitations on the exercise of review jurisdiction. Review proceedings are not by way of appeal. It cannot be treated like an appeal in disguise. A rehearing of the matter is not permissible in law. If there are two views possible, the power of review cannot be exercised to substitute the view already taken in the judgment under review. It is not for an erroneous decision to be ''reheard and corrected' in review jurisdiction.

(18) Keeping in mind the above principles, we now proceed to consider as to whether the grounds on which review has been filed exist, and if yes, whether on such grounds review would be permissible.

(19) A perusal of the judgment dated 19.04.2016 shows that an error occurred therein as this Court proceeded on the premise that the writ petition was disposed of on the ''first date' whereas it was not disposed of on the first date but later on after giving opportunity to the opposite parties to file counter affidavit vide order dated 27.01.2011. The error is apparent. The Special Appeal has been allowed only on the ground of laches in filing the writ petition but this Court did not notice that the State did not file any counter affidavit before the writ court raising the plea of laches. If the correct fact had been noted, the State-appellant might not have been permitted to raise a plea in special appeal which was not raised before the learned Single Judge, inspite of opportunity having been granted. We are saying so, not for substituting the view taken but to emphasize that the mistake which is apparent is not minor or of inconsequential import but is a material error.

(20) Most importantly, the petitioner had been given appointment on 13.09.2012, and his services were confirmed on 16.01.2015 and he was also given seniority in his cadre vide order dated 17.07.2015 with some other benefits in compliance of the order passed by the writ court and the Special Appeal was filed thereafter, in April 2016, after about four and half years. These facts had a bearing on the result of the appeal but were not placed before the Court in Special Appeal. Consequently, pursuant to the judgment passed in Special Appeal, a confirmed employee has been ousted from service on 12/13.05.2016 on account of appeal of the State being allowed. It was the primary duty of the State-appellant to have disclosed all the relevant facts correctly. Non-disclosure or suppression of material facts in our considered view would be covered by ''any other sufficient cause' which furnishes a ground for review and is wide enough to include such a cause.

(21) At this stage, it would be apt to refer the judgment in the case of S. Nagraj vs. State of Karnataka [(1993) Supp. 4 SCC 595], wherein Hon'ble Apex Court has observed that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. Again in the case of M.M. Thomas vs. State of Kerala & Another [(2000) 1 SCC 666] the Hon'ble Apex Court has held that the High Court, as a Court of record, has a duty to itself to keep all the records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it.

(22) For the aforesaid reasons, we are of the considered view that the judgment dated 19.04.2016 is liable to be reviewed and recalled. The Special Appeal deserves to be restored for hearing afresh.

(23) Accordingly, review petition is allowed. Judgment dated 19.04.2016 is recalled and the Special Appeal is restored to its original number for decision afresh.

(24) List the Special Appeal before appropriate Bench.

Order Date :- 05.08.2021

Nitesh

(Ravi Nath Tilhari, J.) (Rajan Roy,J.)