Calcutta High Court
Anirban Roychoudhury And Ors vs Ram Kumar Jha And Ors on 14 May, 2024
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Original Side
The Hon'ble Justice Sabyasachi Bhattacharyya
R.V.W.O. No. 7 of 2024
IA No: G.A. 1 of 2024
Arising out of
W.P.O. No. 1755 of 2023
Anirban Roychoudhury and Ors.
Vs.
Ram Kumar Jha and Ors.
For the petitioners : Mr. Biswaroop Bhattacharya, Adv.,
Mr. Raja Saha, Adv.,
Mr. Amit Ghosh, Adv.,
Mr. Ranit Roy, Adv.
For the respondents : Mr. Krishnaraj Thaker, Adv.,
Mr. Soumava Mukherjee, Adv.,
Mr. Rohan Raj, Adv.,
Mr. Indranil Munshi, Adv.,
Ms. Vedika Bhotika, Adv.,
Ms. Anushka Sarkhel, Adv.
For the State : Mr. Anirban Ray, Adv.,
Md. Sk. Galib, Adv.,
Ms. Ashmita Chakraborty, Adv.
Hearing concluded on : 03.05.2024
Judgment on : 14.05.2024
Sabyasachi Bhattacharyya, J:-
1. The applicants, who are respondent nos. 3 to 5 in the writ petition,
have preferred the present application for review of a judgment and
order dated January 30, 2024 passed in WPO No. 1755 of 2023.
2. The writ petition had been allowed, setting aside an order of the
Competent Authority (CA) under the West Bengal Apartment
Ownership Act, 1972 dated October 17, 2023 along with a preceding
Show-cause Notice dated October 10, 2023 and reviving the Board of
Managers (BoM) prevailing immediately prior to October 17, 2023.
3. Learned counsel for the applicants contends that the court failed to
take into consideration a letter dated October 7, 2023 whereby the
writ petitioner had tendered his resignation from the post of
VicePresident. It is argued that as on the date of passing of the order
under review, the writ petitioner Ram Kumar Jha no longer retained
his status as Manager or Vice President of the concerned Association.
Thus, fraud was played on the court by not disclosing that he had put
in his papers on October 7, 2023 itself.
4. It is argued that the writ petitioner had asserted that he was Vice
President of the Association on October 10, 2023 and had every right
to represent the Board in the absence of the President.
5. It is argued that the court, while passing the order under review, had
observed that there were at least five existing members of the BoM
which was an error apparent on the face of the record occasioned by
suppression by the writ petitioner. It is submitted that there were
only four members on October 10, 2023 and three members of the
BoM during the period between 11th and 17th of October, 2023.
6. The resignations of 36 out of 45 members of the BoM had been
suppressed as had been the further resignations of five others
respectively on October 8 and October 10, 2023 and other two
resignations during pendency of the writ petition. It is sought to be
contended that till after the conclusion of oral arguments on January
17, 2024, despite exercise of due diligence, the applicants were not
posted with the fact, nor were they privy to the communications
received on the official e-mail addresses of the Association or the BoM
or the CA.
7. Learned counsel appearing for the applicantsplaces reliance on several
judgments in support of his contention that the court is not precluded
from taking note of subsequent material events if they have a bearing
on the adjudication even after the hearing is concluded. The court, it
is contended, can always correct its mistakes even at the stage of
passing of judgment.
8. In refuting such arguments, learned counsel appearing for the
respondent no. 1/writ petitioner, contends that there was no mistake
apparent on the face of the record. Learned counsel for the writ
petitioner submits that mere production of the e-mail dated October 7,
2023 cannot be a ground for review. It was admittedly within the
knowledge of the review applicants as far back as on October 10, 2023
and was also evident from the e-mail dated October 11, 2023, which
was duly disclosed by the writ petitioner, that the writ petitioner's
resignation was intended initially to take effect from October 7, 2023.
9. That apart, it is argued that the court, in its order under review, had
come to the conclusion that even independent of the writ petitioner's
status as Vice President of the Association, he was entitled to
maintain the writ petition as resident andapartment owner and
therefore a member of the Association.
10. Further, whether there were five members or three members of the
BoM is of no significance as none of their resignations, including that
of the writ petitioner, was complete in terms of Clause 13(2)(b) of The
West Bengal Apartment Ownership Bye-Laws, 2022 (hereinafter
referred to as, "the 2022 Bye-Laws").
11. It is argued that as long as there were three members, casual vacancy
caused by the purported resignation of the other members could be
filledup by holding special elections as provided in Clause 10(b) of the
Bye-Laws.
12. It is argued that the review applicantsseek to reopen the judgment on
merits which is impermissible in review.
13. The State respondents argue substantially in support of the review
applicants. It is contended that the writ petitioner had already
submitted his resignation on October 7, 2023 from the BoM as per the
list of BoM and the status of the same as on October 7, 2023 was
submitted by the then President on October 9, 2023. The said fact
was suppressed by the writ petitioner.
14. Thus, the writ petitioner could not have held the post of Vice
Presidentnor represented the BoM on the relevant date.
15. It is further argued that as on date, out of 48 Managers in the BoM,
44 have resigned and three posts are vacant, the last of them
resigning on April 28, 2024, leaving behind only one member in the
BoM, who does not fulfill the minimum qualification in terms of the
Bye-Law 7(2) of the 2022 Bye-Laws to run the affairs of the
Association.
16. It is argued by the State that in the absence of any provision in the
Actfor acceptance of resignations by any particular authority or the
Competent Authority, the resignation of the writ petitioner is to be
deemed final once submitted and cannot be allowed to be withdrawn
at the whims and wishes of the writ petitioner. Those who have
resigned cannot be allowed to resume as the existing BoM in violation
of Bye-Law 7(2) of the 2022 Bye-Laws.
17. The applicants also seek to raise several issues touching the merits of
the matter which, however, cannot be taken into consideration within
the limited confines of review, governed by the principles of Order
XLVII of the Code of Civil Procedure.
18. For example, the resignations of several other persons have been
sought to be pointed out on the basis of documents, which would
involve a re-argument on the merits of the matter.
19. The key issue raised in the review application is the alleged
suppression by the writ petitioner of the e-mail dated October 7, 2023
tendered to the CA whereby the writ petitioner was supposed to have
resigned.
20. However, nothing turns on the said point. In paragraph no. 8 of the
judgment, it was observed by the Court that the resignation of the
petitioner was never accepted by the CA and on October 14, 2023,
before passing the impugned order of the CA on October 17, 2023, the
writ petitioner had already withdrawn his resignation. On such
premise, it was observed that non-service of show-cause notice on the
concerned parties vitiated the same.
21. Thus, one of the premises of the order was that the resignation,having
never been accepted, did not take effect. In paragraph no. 22 of the
judgment under review, the Court discussed Clause 13(2)(b) of the
2022 Bye-Laws.
22. In paragraph no. 23, the court observed that the resignation of the
office bearer could not be complete unless the matter was considered
at the meeting of the Board and the resignation formally accepted
under Clause 13(2)(b) of the 2022 Bye-Laws.
23. In paragraph no. 24 of the judgment, it was reiterated that there was
no formal resignation at any point of time by the petitioner and hence,
he had the right to maintain the writ petition in the capacity of a Vice
President of the Association.
24. Nothing has been brought on record by the review applicants to show
that the purported resignation via e-mail dated October 7, 2023 was
ever accepted under the provisions of Clause 13(2)(b) of the 2022 Bye-
Laws. The said Clause provides that the President, Secretary or any
other elected Officer may resign from his office any time by a notice to
the Board addressed to the President or the Vice President if the
President resigns. In the present case, the e-mail was addressed to
the CA.
25. Clause 13(2)(b) goes on to stipulate that on receipt of the notice, the
Board shall, as early as possible, at a meeting consider the matter and
on the resignation being accepted shall forthwith elect another officer
from amongst the Managers of the Board in place of the one who has
resigned.
26. Hence, under the said provision, acceptance of the resignation is
mandatory, which would result in forthwith election of another officer
from amongst the Managers of the Board.
27. A plain reading of Clause 13(2)(b) leaves no other option of
interpretation but that the resignation is completed only upon
acceptance by the Board, which requires a positive act of such
acceptance by the Board. Such acceptance is conspicuous by its
absence either in the pleadings or any material produced before the
court at the time of hearing of the writ petition or even while hearing
the review application.
28. Thus, even if the writ petitioner had tendered his resignation via e-
mail on October 7, 2023, in the absence of anything to show that the
same was accepted under Clause 13(2)(b), nothing hinges on the
same.
29. A suppression, to vitiate an order of Court, has to be on a high footing.
The minimum which is required to be shown is that the fact alleged to
be suppressed was material to the adjudication of the case. In view of
the above observations, the fact sought to be projected by the review
applicants is a non-issue and immaterial for the adjudication.
30. Again, in paragraph no. 25 of the judgment under review, the Court
categorically held that even otherwise, the writ petitioner is admittedly
a resident and apartment owner and has a right to have a say in
proper administration of the Society. Such interest of the petitioner
as a member of the Society was held to be direct even in such
capacity. It was observed in no uncertain terms that hence, the writ
petitioner had the locus standi to maintain the writ petition from every
perspective.
31. Even if the Vice Presidency of the writ petitioner could be assailed by
the review applicants, the fact remains that the locus standi of the writ
petitioner to present the writ petition was not obliterated. In the
absence of any challenge to the order under review before an appellate
forum, the said finding remains intact. Thus, the fact now sought to
be brought before the Court was not a materialfact, the suppression of
which could vitiate the order itself.
32. Moreover, in the communication dated October 11, 2023, which was
considered by the Court, it was indicated that the resignationwould
take effect from October 7, 2023. Hence, it cannot be said that there
was any suppression on the part of the writ petitioner. Surprisingly,
the CA, which apparently opened its portal for the review applicants to
scrutinize the e-mail sent to it, which is the genesis of the present
review application, has been taking contradictory stands, the reason
for which is not quite clear.
33. In paragraph no. 15 of the judgment and order under review, learned
counsel for the CA was recorded to have candidly submitted that no
copy of the complaintpetition was given with the Show-cause Notice
and that in view of the fact that the Board Members were reduced to
only five upon mass resignation being tendered by around 40
members of the Board, all office bearers, in the interest of proper
functioning of the Association, the impugned order was passed. Thus,
the CA cannot now take a contradictory stand that there were less
than five Board Members at the relevant juncture. The recording of
the finding and what transpired in court on that date has not been
disputed by the CA by any independent application, which precludes
it from taking a contradictory stand than that recorded in paragraph
no.15 of the order under review.
34. The review applicantshave vociferously argued that the present
number of Board Members is one, after all the resignations were
submitted. The said argument, apart from being new arguments on
facts which cannot be entertained in a review application, are also not
factually corroborated. First, there is nothing on record to show that
any of such resignations of the Board Members was ever accepted
under Clause 13(2)(b) of the 2022 Bye-Laws. Secondly, the said
subsequent developments cannot be grounds for challenging the
veracity of the order under review. The relevant facts are those which
were available on the date of passing of the order. With the
advancement of time, facts change. If subsequent events, which were
not germane at the relevant point of time, were to be taken into
consideration, no order would ever attain finality.
35. Learned counsel for the review applicants has repeatedly harped on
the point that the review applicants had sought to bring on record the
e-mail dated October 7, 2023 before the judgment was passed.
Unfortunately, the said attempt was belated. The arguments in the
writ petition had been concluded on January 17, 2024. Much
thereafter, after having argued at length to their heart's content, the
review applicants came up with the prayer for leave to file such
supplementary affidavit incorporating the said document, taking
advantage of the fact that the judgment under review was delivered
some days after conclusion of arguments.
36. The review applicants have cited judgments to support their
contention that even at that juncture, the said document ought to
have been permitted to be brought on record. Let us now consider the
judgments cited by the review applicants.
37. The first judgment cited is Union of India and others v. Gopal Chandra
Misra and others, reported at (1978) 2 SCC 301. The court, in the said
case, was dealing with the resignation of a Judge. Article 217 of the
Constitution was discussed, when the Supreme Court observed that
there is no question of the resignation of a Judge being effective only
on its acceptance by the President because it operates ex proprio
vigore. By application of the said doctrine, it was held that there is no
provision which confers on a Judge any power to withdraw or revoke
his resignation once it has been submitted to the President. Where
express provisions are made by a statute, it was held, the doctrine of
implied powers cannot be invoked to supply the provisions which had
been deliberately embedded. The Supreme Court, apart from
considering Article 217 of the Constitution, also adumbratedon the
onerous duties and the sacrosanct functions which a Judge of a High
Court has to discharge, befitting the high office.
38. The said judgment or the ratio laid down therein has nothing
whatsoever to do with the present case. The Vice Presidency of an
Association of a Housing Complex can definitely not be equated with
the high office of a Judge, nor can the provisions of Article 217 of the
Constitution be invoked. The relevant provision is Clause 13(2)(b) of
the 2022 Bye-Laws which governs such resignations as the present
one, which has been discussed ad nauseum above.
39. Learned counsel for the review applicants also relies
onBangaloreDevelopment Authority, rep. by its Commissioner,
Bangalore and others v. P. Anjanappa and others, reported at ILR 2003
KAR 1471, on a Division Bench judgment of the Delhi High Court
reported at 2007 (94) DRJ 338(DB) [Kuldip Gandotra v. Union of India
and Ors.] and the judgment of Board of Control for Cricket in India and
another v. Netaji Cricket Club and others, reported at (2005) 4 SCC
741. In all the said judgments, the principle laid down was that where
fraud and suppression come to light, a court can modify or recall its
order.
40. However, in the present case, in view of the above discussions, the
element of fraud and suppression is missing. There could not have
been any valid reason for the writ petitioner to suppress the e-mail
dated October 7, 2023, since it was not germane, nor was it
suppressed in the sense that the e-mail dated October 11, 2023,
discussed in the writ petition, referred to the date of resignation being
operative from October 7, 2023.
41. Learned counsel for the review applicants in the instant case has
failed to establish, as held by the Supreme Court in Board of Control
for Cricket in India (supra), that the earlier judgment suffered from any
mistake or erroneous assumption which in fact did not exist, the
perpetration of which shall result in a miscarriage of justice.
42. The review applicants also cite Nuri Mian v. Ambica Singh, reported at
(1916) 24 CLJ 140 which merely propounds that to shorten litigation
or to do complete justice between the parties in cases where the
original relief has, by reason of subsequent change in circumstances,
become inappropriate, the court can recall such order. In the present
case, there is no subsequent change of circumstances which has
rendered the relief inappropriate.
43. The review applicants place reliance on Jai Prakash Gupta (dead)
through LRs v. Riyaz Ahamad and another, reported at (2009) 10
SCC197. The court, in the said case, was considering its powers to
amend issues within the contemplation of Order XIV Rules 5 and 1 of
Code of Civil Procedure regarding events subsequent to institution of
the suit. The ratio laid down therein has no application in the present
case at all, since the e-mail dated October 7, 2023 was available at all
points of time and was not a subsequent event and in the present
case, the writ petition has already been disposed of, thus it is no
longer open to recast issues.
44. Both Arjun Singh v. Mohindra Kumar and others, reported at AIR 1964
SC 993 and Ajit Kumar Saha v. Ashit Kumar Saha, reported at AIR
2003 Cal 148 are besides the issue involved herein. The courts were
dealing with situations of subsequent events and applicability of Order
IX Rule 7 of the Code of Civil Procedure. The present case is not one
covered by the said provisions.
45. Importantly, the review applicants have failed to substantiate that
they were not in the know of the relevant e-mail at the time of hearing
of the writ petition despite due diligence.
46. In any event, the e-mail dated October 7, 2023is not a subsequent
event at all.
47. The review applicants have also cited Rasiklal Manikchand Dhariwal
and another v. M.S.S. Food Products, reported at (2012) 2 SCC 196, for
the proposition that the hearing of a suit is not confined to oral
hearing and if there is an abuse of process of court or if interests of
justice so require the court can take note of something. It is argued
that the convention that no application should be entertained once the
trial or hearing is concluded and the case is reserved for judgment is
not a straitjacket formula and there can be exceptions thereto,is
circumscribed by the rider given by the Supreme Court that such a
course of action can be taken only in exceptional or extraordinary
circumstances, to meet the ends of justice and prevent the abuse of
court. There is no case made out by the review applicants in the
present matter to satisfy the court that there would be an exceptional
circumstance or abuse of the process of court sincethe document-in-
question, if taken into consideration, would not make a difference in
the outcome of the writ petition at all.
48. The reliance on K.K. Velusamy v. N. Palanisamy, reported at (2011) 11
SCC 275, is misplaced. Paragraph no. 15 of the said judgment
records that learned counsel for the respondent in the said case had
contended that once arguments are commenced, there could be no
reopening of evidence or recalling of any witness. In the said context,
the Supreme Court interpreted Order XVIII rule 17 of the Code of Civil
Procedure in a liberal context. However, the said proposition is not
germane in the present case at all. Whereas in the said case,
arguments were still continuing, in the case at hand, both parties
including the review applicants had already concluded their elaborate
arguments. There is a stark distinction between situations where
evidence is completed and arguments have commenced and cases
where the entire arguments are already concluded and judgment is
reserved.
49. The review applicants also rely on Rasiklal Manikchand's case. Let us
see what the Supreme Court observed in the said case.
50. There, learned senior counsel appearing for the appellants had
contended that proceeding ex parte under Order IX Rule 7 of the Civil
Procedure Code did not take away the defendants' right to participate
further in the proceedings of the suit which contention, in paragraph
no. 41, was held to be attractive at the first blush but having no
substance at all. The Supreme Court found that once the hearing of
the suit is concluded and the suit is closed for judgment, Order IX
Rule 7 of the Code has no application at all. It was propounded in
paragraph 42 of the judgment that once the suit is closed for
pronouncement of judgment, there is no question of further
proceedings in the suit. It was further observed by the Supreme Court
that merely because the defendant continued to make application
after application and the trial court heard those, it cannot be said that
such appearance by the defendants is covered by the expression
"appeared on the day fixed for his appearance" occurring in Order IX
Rule 7 of the Code and thereby entitling them to address the court on
the merits of the case.
51. In paragraph no. 54 of the said judgment, the Supreme Court held
that certain observations made in Arjun Singh (supra), were apposite.
The quoted portion included the ratio that once the hearing starts, the
Code contemplates only two stages of trial of the suit: 1) where the
hearing is adjourned or 2) where the hearing is completed. Where the
hearing is completed the parties have no further rights or privileges in
the matter and it is only for the convenience of the court that Order
XX Rule 1 permits judgment to be delivered after an interval after the
hearing is completed. It would therefore follow that after the stage
contemplated by Order IX Rule 7 is passed, the next stage is only the
passing of a decree which on the terms of Order IX Rule 6 the Court is
competent to pass, and then follows the remedy of the party to have
the decree set aside by application under Order IX Rule 13. There is
no hiatus between the two stages of reservation of judgment and
pronouncement of the same so as to make it necessary for the court to
afford to the party the remedy of getting orders passed on the lines of
Order IX Rule 7.
52. The same logic is apposite in the present context. The law
contemplates no hiatus between the reservation of judgment and the
pronouncement of the judgment, to enable a party to bring further
facts on record, after having advanced full-fledged arguments at the
final hearing stage. Hence, the proposition sought to be mooted by
the review applicants is completely belied by the judgments cited by
them.
53. Vinod Kumar Singh v. Banaras Hindu University and others, reported
at AIR 1988 SC 371 merely stipulates that a Judge is entitled to
change his mind even after she has pronounced an order in open
court but has not signed it. The review applicants go on to interpret
such proposition to justify their belated effort to bring on record
evidence which is in any event not germane. The discretion given to a
Judge is only for the Judge to exercise, upon being satisfied suo motu
or otherwise that substantial justice requires a fresh consideration.
Such proposition, however, does not confer any right to a litigant to
compel the court to invoke such power in frivolous cases as the
present one. The e-mail sought to be brought on record is a non-issue
as discussed above and cannot confer a right on the review applicants
to seek the remedy of recall/review of the original order after disposal
of the writ petition on merits.
54. Lastly, the review applicants have relied on Vinod Kumar Toppo v.
State of West Bengal, reported at (2011) 3 CHN 299. The Full Bench of
this Court, in the said case, was considering whether it was open to a
Judge, in exceptional circumstances, upon putting the parties on
notice and recording reasons, to correct an inadvertent mistake which
he realizes he had committed while dictating an order in open court by
recalling the order so dictated.
55. It is quite basic that a Judge always retains such power. However,
such power can be exercised only within the parameters as laid down
by the Full Bench. For starters, the case must be exceptional, when
the court discovers new facts from the records which have a relevant
bearing on the adjudication. In the said case, the learned Single
Judge had of his own used such discretion. Even in circumstances
when the Judge is of the opinion that the missed-out facts would be
germane, a recall can only be upon recorded reasons and upon
putting the parties on notice. I do not find any inadvertent mistake in
the present case, or any omission germane to the adjudication, to
justify the applicability of the said ratio here.
56. The issue before the Full Bench was completely different from the
present case, where one of the losing parties seeks a reopening of the
entire case on facts which were not germane in the context at all.
Hence, I do not find any reason to exercise my power to review the
order passed previously in the garb of a recall due to "inadvertent
mistake", particularly on a review application filed at the behest of
parties to the litigation who had advanced full arguments on all issues
at the hearing of the writ petition itself.
57. Another aspect of the matter cannot be lost sight of.No reasonable
explanation has been given by the review applicants as to what
prevented them, by application of due diligence, to obtain the e-mail
dated October 7, 2023, before the final hearing of the writ petition. I
do not find any change of circumstances on such count, since the
effort taken by the review applicants post-hearing could very well be
undertaken by them throughout the pendency of the writ petition.
Having not done so, despite being aware that a reference had been
made by the writ petitioner in his e-mail dated October 11, 2023 to
the resignation being effective from October 7, 2023 and in view of the
CA having taken a stand now that such material was available for the
public to peruse, the review applicants cannot take the plea of
discovery of new matter to justify review.
58. Hence, I do not find either any error apparent on the face of record or
discovery of new matter or any similar cause to review/recall the
judgment and order dated January 30, 2024 passed in WPO No. 1755
of 2023.
59. Accordingly, R.V.W.O. No. 7 of 2024 is dismissed on contest without
any order as to costs. IA No: GA 1 of 2024 is disposed of accordingly in
the light of the above observations.
60. Urgent certified server copies, if applied for, be issued to the parties
upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )
Later
After the above judgment is passed, learned counsel for the
petitioners seeks stay of operation of the above order. Such prayer is
vehemently opposed by learned counsel for the respondents.
However, in view of the review application having been dismissed and
no positive direction having been passed, no useful purpose would be
served by passing an order of stay of operation of the above judgment.
Accordingly, such prayer is refused.
( Sabyasachi Bhattacharyya, J. )
