Himalaya College Of Education vs National Council For Teacher ...
2009 Latest Caselaw 3044 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Review Petition No.288/2009 & CM No.9703/2009
                                         in
                       Writ Petition (Civil) No.10524/2009

%                               Date of Decision: 07.08.2009

Himalaya College of Education                         .... Petitioner
                     Through Mr.Sanjay Sharawat, Advocate.

                                        Versus

National Council for Teacher Education and others   .... Respondents
                      Through Mr.V.K. Rao, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.     Whether reporters of Local papers may be                 YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                   NO
3.     Whether the judgment should be reported in               NO
       the Digest?


ANIL KUMAR, J. (ORAL)

*

This is a petition by the petitioner seeking review of order dated

30th July, 2009 dismissing the writ petition of the petitioner against the

order dated 27th July, 2009 of National Council for Teacher Education

whereby the matter was remanded back to the Northern Regional

Committee for issue of revised order stipulating withdrawal of

conditional recognition effective from academic session 2009-2010.

The petitioner has sought review on the ground that the order

does not deal with all the contentions raised on behalf of the petitioner;

a copy of affidavit dated 23rd June, 2008 was produced by the

respondents No.1 and 2 which is alleged to be neither attested by an

Oath Commissioner or by a Notary, however, the petitioner has been

able to trace another copy of the same on 5th August, 2009 from its

record and the said affidavit is in the prescribed formant and is duly

notarized. It is contended that the copy of the said affidavit was not

within the knowledge of the petitioner despite due diligence on its part.

The review is also sought on the ground that the presumption under

Section 27 of the General Clauses Act, 1897 is not applicable in case of

NCTE Act. The petitioner/applicant has also sought review of order

dated 30th July, 2009 on the ground that under Regulations 7, 11 and

12 of the NCTE Regulation, 2005, the petitioner was required to appoint

qualified faculty and formally inform the Northern Regional Committee

in this regard and those regulations do not require furnishing of any

affidavit as alleged by the respondents. It is also alleged that after

obtaining conditional recognition as per the norms of the

University/NCTE, the petitioner was within its right to admit students

and start the course. The alternative plea of the petitioner is the even if

petitioner was not entitled to admit students; even then the

respondents were debarred from taking this objection at this stage in

view of the doctrine of legitimate expectation and the doctrine of

estoppels. The petitioner has also sought an ex parte order of stay of

operation of order dated 27th July, 2009 passed by respondent No.1 and

order dated 9th June, 2009 passed by respondent No.2 during the

pendency of the review petition.

I have heard the learned counsel in detail. It is no more res

integra that the discovery of new evidence or material by itself is not

sufficient to entitle a party for review of a judgment. A review is

permissible in certain circumstances, if it is established that the

applicant had acted with due diligence and that the existence of the

evidence which has been discovered later on was not within the

knowledge of the party which seeks review of the order. If it is found

that the petitioner has not acted with due diligence then it is not open

to the court to admit evidence on the ground of sufficient cause. The

party seeking review should prove strictly the diligence he claims to

have exercised.

A copy of the affidavit dated 23rd June, 2008 received by the

counsel for the respondent was produced during the hearing. This is

not an affidavit of the respondents but an affidavit of the petitioner. If

the plea of the petitioner is that the compliance affidavit was sent then,

the petitioner should have located the same and produced the same.

The plea that the copy of the affidavit was found on 5th August, 2009

and could not be obtained prior to 5th August, 2009 despite due

diligence is a bald allegation and cannot be accepted in the present

facts and circumstances. The petitioner is agitating his case about the

alleged compliance of the conditions imposed while granting conditional

recognition before the Northern Regional Committee and the Appellate

Authority and contending that the affidavits were filed. Rather copies of

two more affidavits have been produced which have been found neither

notarized nor attested by the Oath Commissioner. If that be so, the

petitioner should have made effort to locate the said alleged affidavit

which is alleged to have been found on 5th August, 2009 and on the

basis of which the review is sought. Apparently, it cannot be held that

the said document could not be located despite due diligence on part of

the petitioner. The copy of the said affidavit was not produced before

the appellate authority whose order was impugned before this Court

and had not been produced even along with the writ petition. In any

case, withdrawing conditional recognition is not based solely on account

of non filing of the affidavit in compliance but is also based on other

factors including admitting the students despite unconditional

recognition not granted to the petitioner. In the circumstances, the

order passed by this court would not be materially different even if the

said document is considered. Consequently, on the basis of the copy of

alleged affidavit which is alleged to have been traced by the petitioner

on 5th August, 2009, the order dated 30th July, 2009 is not liable to be

reviewed.

The petitioner has also sought review of the order on the ground

that some of the grounds/points raised in the petition have not been

dealt with. The learned counsel appearing on behalf of the petitioner

had raised certain grounds and pleas during the arguments which had

been considered. The grounds which were not raised and argued were

not to dealt with specifically. The petitioner now cannot contend that

the other grounds were raised and argued by the counsel for the

petitioner.

The power of review can be exercised on account of some mistake

or error apparent on the face of the record or for any other sufficient

reason. A review cannot be sought merely for fresh hearing or

arguments or correction of an erroneous view taken earlier. The power

of review can be exercised only for correction of a patent error of law or

fact which stays in the face without any elaborate argument being

needed for establishing it. The Supreme Court in Aribam Puleshwar

Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 had held as

under:-

"It is true there is nothing in Article 226 of the Constitution to preclude the 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 be exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of 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 merit."

It is well settled that review proceedings have to be strictly

confined to the ambit and scope of Order XLVII Rule 1 of Code of Civil

Procedure. An error which is not evident and has to be detected by a

process of reasoning can hardly be stated to be an error apparent on

the face of the record justifying the court to exercise its power of review.

In exercised of review jurisdiction, it is not permissible for erroneous

decision to be re-heard and correct. A review petition has a limited

purpose and cannot be allowed to be an appeal in disguise.

Attempt of the petitioner in filing the present application is only to

re-agitate the issues raised in the petition. There is no error much less

an error apparent on the face of the record has been pointed out. The

Supreme Court in case of Lily Thomas etc. v. Union of India and others,

MANU/SC/0327/2000 had cautioned that in exercise of power of

review the court is not to substitute its view. A review cannot be sought

for fresh hearing or arguments for correction of an erroneous view taken

earlier.

In the circumstances, there are no grounds for review of order

dated 30th July, 2009. The application is mis-conceived. Therefore, it

is dismissed. The application for stay of orders dated 27th July, 2009

passed by respondent No.1 and the order dated 9th June, 2009 passed

by respondent No.2 during the pendency of the review petition are

therefore, also dismissed.

August 07, 2009                                      ANIL KUMAR, J.
'Dev'