Page No.# 1/13 vs Sri Kshitish Ch. Karmakar And 6 Ors
2021 Latest Caselaw 1573 Gua

                                                               Page No.# 1/13

GAHC010130782019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : Review.Pet./169/2019

         THE UNION OF INDIA AND 5 ORS.
         REP. BY THE GENERAL MANAGER (W), N.F. RAILWAY, MALIGAON,
         GUWAHATI-12, DIST.- KAMRUP(M), ASSAM.

         2: THE GENERAL MANAGER (WORKS)

          N.F. RAILWAY
          MALIGAON
          GUWAHATI-12
          DIST.- KAMRUP(M)
          ASSAM.

         3: THE DIVISIONAL ENGINEER
          N.F. RAILWAY
          MALIGAON
          GUWAHATI-12
          DIST.- KAMRUP(M)
         ASSAM.

         4: THE STATE OF ASSAM
          REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          REVENUE DEPARTMENT
          DISPUR-5
          GUWAHATI-01.

         5: THE DEPUTY COMMISSIONER
          KAMRUP(M)
          GUWAHATI-01

         6: THE CIRCLE OFFICER
          GUWAHATI REVENUE CIRCLE
          DIST.- KAMRUP(M)
          GUWAHATI-01
         ASSAM
                                                         Page No.# 2/13


VERSUS

SRI KSHITISH CH. KARMAKAR AND 6 ORS.
S/O- LATE DINOBANDHU KARMAKAR, R/O- VILL.- SHIVBARI, P.O.
SORBHOG, PIN- 781317, DIST.- BARPETA, ASSAM.

2:SRI DEBENDRA KUMAR
 S/O- LATE NANDI KUMAR
 R/O- WARD NO. 2
 GOTANAGAR
 P.S. JALUKBARI
 GUWAHATI- 11
 DIST.- KAMRUP(M)
ASSAM.

3:SRI MUHINATH KUMAR
 S/O- LATE NANDI KUMAR
 R/O- WARD NO. 2
 GOTANAGAR
 P.S. JALUKBARI
 GUWAHATI- 11
 DIST.- KAMRUP(M)
ASSAM.

4:SRI HARMOHAN KUMAR
 S/O- LATE NANDI KUMAR
 R/O- WARD NO. 2
 GOTANAGAR
 P.S. JALUKBARI
 GUWAHATI- 11
 DIST.- KAMRUP(M)
ASSAM.

5:SRI HAREKRISHNA KUMAR
 S/O- LATE HUMESWAR KUMAR
 R/O- WARD NO. 2
 GOTANAGAR
 P.S. JALUKBARI
 GUWAHATI- 11
 DIST.- KAMRUP(M)
ASSAM.

6:SRI CHADRA KANTA KUMAR
 S/O- LATE PADMA KUMAR
 R/O- WARD NO. 2
 GOTANAGAR
 P.S. JALUKBARI
                                                                         Page No.# 3/13

             GUWAHATI- 11
             DIST.- KAMRUP(M)
             ASSAM.

             7:SRI LANKESWAR KUMAR
              S/O- LATE GHATE KUMAR
              R/O- WARD NO. 2
              GOTANAGAR
              P.S. JALUKBARI
              GUWAHATI- 11
              DIST.- KAMRUP(M)
             ASSAM

Advocate for the Petitioner   : DR. B N GOGOI

Advocate for the Respondent : SRI R ALI

BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

JUDGMENT & ORDER (CAV)

This application has been preferred by the 6(six) numbers of applicants under the following heading:-

"Anapplication for review under Order 47, Rule 1 R/w Section 114 and 151 of the Code of Civil Procedure, 1908 of the order passed by this Hon'ble Court dated on 05.04.2019 in WP(C) No. 7191/2013 for modifying / altering / vacating / suspending of the said order."

2. The 6(six) numbers of applicants have been described as:

(i) The Union of India represented by the General Manager (W). N.F. Railway, Maligaon, Guwahati-12, District-Kamrup(M), Assam.

(ii) The General Manager (Works), N.F. Railway, Maligaon, Guwahati-12, District-Kamrup (M), Assam.

(iii) The Divisional Engineer, N.F. Railway, Maligaon, Guwahati-12, District-

Page No.# 4/13

Kamrup (M), Assam.

(iv) The State of Assam, represented by the commissioner and Secretary to the Govt. of Assam, Revenue Department, Dispur-5, Guwahati-01.

(v) The Deputy Commissioner, District - Kamrup (M), Guwahati-01.

(vi) The Circle Officer, Guwahati Revenue Circle, District-Kamrup (M), Guwahati-01, Assam.

3. However, at the outset this Court has noticed that the Vakalatnama has been given to the Standing Counsel, Railways by one Shri Khindu Ram, Senior Divisional Engineer of the Coordination, Northeast Frontier Railway, Maligaon. The said officer can, at best, authorize the learned Standing Counsel for the first three applicants only namely 1. The Union of India, 2. The General Manager and

3. The Divisional Engineer. The said officer, cannot, by any stretch of imagination has the jurisdiction to authorize on behalf of the other three applicants namely 4. The State of Assam, 5. The Deputy Commissioner and 6. The Circle Officer. Further, the said Shri Khindu Ram has described himself to be the petitioner in the instant case which is incorrect.

4. Further, as would be apparent from the review application, the same has been filed for modifying / altering / vacating / suspending of the order which is not the object and purport of a review. It is a settled law that review is a creature of a statute and the power to review is circumscribed and is dependant on certain pre-conditions. On the other hand, there is no such restriction in an application simpliciter which has been filed for modification or alteration of an order. This Court has also noticed that the provision of Order 47 Rule 1 read with Section 114 and 151 of the Code of Civil Procedure, 1908 (herein after CPC) has been taken recourse to for filing this application. However, the order Page No.# 5/13

dated 05.04.2019 which has been sought to be reviewed was passed in a Writ Petition wherein the provision of CPC does not apply in view of the express provision in the Code itself. Though it is a settled law that it is only the spirit of the CPC which is applicable and in this regard, there is a provision laid down in the Gauhati High Court Rules, the application in question does not refer to any such provision.

5. On these counts alone, the Review Petition deserves to be dismissed. However, this Court is of the view that in the interest of substantial justice, the application be considered on merits by assuming that the same has been preferred by the first three applicants.

6. The order of which review has been sought for was passed on 05.04.2019 in WP(C) 7191/2013. The order makes it explicit that the same was passed by hearing the petitioner and Shri B.J. Talukdar, learned counsel representing the respondent nos. 4, 5 & 6 i.e. the Revenue Department, Government of Assam. The order also makes it clear that in spite of names of the learned counsel being shown in the cause list, there was no representation on behalf of the respondent nos. 1, 2 & 3 i.e. the present applicants. The order also records that the matter was listed in the Part-II Hearing List for the month of April 2019 and was called upon and had to be adjourned due to the absence of the learned counsel for the Railways. Under those circumstances, this Court had taken up the matter for final disposal considering that the Writ Petition was of the year 2013.

7. The facts of the case which was projected before this Court were duly taken into consideration while passing the order dated 05.04.2019. The same includes the projection made by the Railways in its affidavit-in-opposition dated 11.04.2018 despite the fact that there was no representation on behalf of the Page No.# 6/13

Railways as the same would be evident from paragraph-9 of the judgment in question. In paragraph-10 of the said judgement, the submission of the learned Standing Counsel, Revenue Department was duly recorded which was in connection with a survey carried out by the Lat Mandal pursuant to the direction of this Court.

For ready reference paragraph-10 of the order dated 05.04.2019 is extracted herein below:-

"10. Shri B.J. Talukdar, learned Standing Counsel Revenue Department has submitted that pursuant to direction of the Court, necessary survey was carried out by the Lat Mandal which establishes that land of the petitioners is under the occupation of the Railways. The learned counsel of the Revenue fairly submits that the documents support the case of the petitioners."

8. In the Writ Petition, all the relevant documents including the order dated 31.08.2013 passed by the Circle Officer, Guwahati pursuant to the order of this High court dated 21.06.2019 was annexed as Annexure 'F' and there is nothing on record to show that the said order was the subject matter of challenge in any further proceedings. The connected pleadings in the writ petition are in paragraph-9 which is extracted herein below:

"9. That the petitioner begs to state that on 31.08.2013 the Circle Officer, Guwahati Revenue Circle send the Lat Mandal and Kanunguha along with revenue staff and measured the said land in presence of the pattadars and after measurement submitted a report to the effect that the Railway Department has occupied a portion of land measuring 2.60 Are in Dag No. 310 and the land measuring 51.50 Are in Dag No. 316 of K.P. Patta No. 891 by constructing, of roads, quarters and drains etc. and another portion of land measuring 3.00 Are of Dag No. 280 of K.P. Patta No. 891 are occupied by of Saint Marries School by constructing boundary walls. On the basis of the said demarcation the Boundary Case No. 60/13-14 has been closed by the Circle Officer on 31.08.2013. A copy of the said order dated 31.08.2013 is annexed herewith as Annexure-'F'." In the affidavit-in-opposition dated 11.04.2014, the response to the same pleadings in paragraph-9 of the writ petition is given in paragraph-11 which is Page No.# 7/13

extracted herein:-

"11. That with regard to the statements made in paragraph 9, the deponent begs to state that the Circle Officer, Guwahati has stated that the land has been occupied by railway by constructing of quarters, roads, drains etc. thereon is fact. The Circle Officer never told that the land is not belonging to railway and it is unauthorisely occupied by railway."

9. After considering all the aforesaid facts & circumstances, the order dated 05.04.2019 has been passed. This Court has also given the liberty to the Railways that in the event if the Railways are not in a position to hand over the peaceful possession of the land to the writ petitioner, the market price thereof be paid to the petitioner and the entire exercise was directed to be completed within a period of three months from the date of the Order.

10. No appeal has been preferred against the aforesaid order.

11. A perusal of the grounds in the Review Petition would indicate that the grievance of the Railways is more against the Revenue Department of the Government of Assam rather than against the order dated 05.04.2019 is concerned. Further, factual aspects have been raised which were all along within the knowledge of the Railways and do not constitute any discovery of new facts. Though a personal ground has been cited in ground no.18 regarding medical treatment of one of the Standing Counsel of the Railways, such ground would not be available for more than one reasons, firstly, the Railways do not have one Standing Counsel only but a number of Panel Counsel, secondly, the matter was adjourned on a number of occasions so as to give further opportunity to the Railways to make adequate representation which was not done. Thirdly, the Writ Petition was of the year 2013 and already about 7 years had passed. Fourthly, the dispute was already the subject matter in the earlier Writ Petition being 3389/2013 and pursuant to the order dated 21.06.2013 passed in the same Writ Page No.# 8/13

Petition, though the Lat Mandal had passed the order dated 31.08.2013, no action was taken by the Railways forcing the writ petitioner to once again approach this Court by instituting WP(C) 7191/2013.

12. It is a settled law that the scope of a Review Court is absolutely circumscribed and it is only upon fulfilment of certain mandatory conditions that a Court may review its own orders. Though the Code of Civil Procedure, 1908 is not strictly applicable in a writ proceedings, it is well settled that the spirit would be applicable and the grounds for exercise of such powers are specified which are discovery of new and important matters of evidence which after exercise of due diligence was not within the knowledge or could not be produced or on account of some mistake or error apparent on the face of the record or for any other sufficient reasons.

13. In the instant case, no new facts have been discovered. Further, the error has to be palpable one which is apparent on the face of the record and the mere error cannot be a ground for review, notwithstanding the fact that the applicants have not been able to even show any error.

14. Dr. B.N. Gogoi, learned counsel for the Railways, submits that the present case is a fit case for review and in support of his submissions has relied upon the following decisions:

Subhasini Shil & Ors. Vs. Belaacharjee & Ors. reported in (2016) 1 "1.

GLT (TR)139,

2.State of Tripura & Anr. -Vs.- Tripura Government reported in 2006 (2) GLT 688,

3.Oriental Insurance Co. Ltd. -Vs.- A.J. Thomas reported in 2011(2) GLT 729, Page No.# 9/13

4. Dipak Sarkar vs. Ratan Das & Ors. reported in 2011(4) GLT 414

15. In the case of Subhasini Shil (supra) review was entertained as the facts were admittedly not properly placed before this Court. However, in the instant case the facts were duly projected and in any case, in absence of any affidavit by the learned counsel against whom allegations are there, this Court is not in a position to accept the said ground as a ground for review.

16. In the case of State of Tripura (supra), the order was passed on a concession given by the learned Advocate General under misconception of law and fact which is not the situation in the present case.

17. In the case of Oriental Insurance Co. Ltd. (supra) it has been laid down that the question of law can be urged and that does not help the present applicants in any way.

18. In the case of Dipak Sarkar (supra) the review was entertained as new facts were discovered as would be evident from paragraph 11 & 12 of the said judgement which are extracted herein below:

"11. In view of the aforesaid decisions of the Apex court when the provisions of Order 23 as well as Order 21, Rule 1 of the code are applicable to the motor accident claim case then it can be said that though in strict sense the motor Accident claims Tribunal is not a civil court, but is has the power to correct the error apparent on the face of record by way of reviewing its earlier order under Order 47, Rule 1 of the code after discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of either of the parties in the proceeding or could not be produced by the at the tie when the award/decree was passed as the Tribunal is empowered by the legislature under Section(1) of Section(1) of Section 169 of the Motor Vehicles Act to decide what should be the procedure for holding inquiry in a summary proceeding under Section 168 of the Act subject to any Rule that may be made in this behalf.

12. In the instant case also it appears that the petitioner at the relevant time could not produce the documents relating to insurance of the offending vehicle even after due diligence. Therefore, according to this Court, it would be proper to set aside the impugned order dated 10.09.2009 passed by the learned Member, MACT, Sonamura, West Tripura in Page No.# 10/13

Misc.(Rev.)12/09 arising out of TS(MAC) 64/08. Accordingly, the same is set aside." However in the instant case, no new facts were discovered and rather all the facts were before the Court while passing the order dated 05.04.2019.

19. To do complete justice, this Court would also consider the case laws which have been annexed in the "affidavit-in-opposition" dated 14.10.2020. It is failed to be understood as how to same party can file affidavit in opposition in the review application filed by them. In any case, the affidavit being sworn by the learned counsel is otherwise also not permissible under the Bar Council Rules. Be that as it may, as has been stated above, the citations annexed hereto are being considered though this Court is of the view that citations cannot be part of the pleadings and can only be relied and referred to support the pleadings on a question of law.

20. The case of Chitta Ranjan Saha vs. State of Tripura & Ors. reported in (2009) 2 GLT, 875 has been cited. In the said case an appeal was dismissed on merits in absence of the counsel for the appellant. However, in the instant case, the facts are wholly different and the order has been passed after considering the pleadings of the parties whereby the writ petition was partly allowed.

21. The case of Shivdeo Singh & Ors. vs. State of Punjab & Ors. reported in AIR 1963 SC 1909 has been cited which lays down that under Article 226 of the Constitution of India, there is plenery jurisdiction to exercise the power of review also and this proposition is not at all disputed. However, no grounds for review have been able to be made out in the instant case.

22. In the case of Union of India & Ors. vs. Naresh Kumar, the order dated 28.11.2018 has been cited which, inter alia lays down the principles of Page No.# 11/13

review. However, the said principles have not been able to be fulfilled by the applicants in the instant case. The Hon'ble Supreme Court in paragraph 13 observed as follows:

"13. ...................

The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, Lord Davey at p. 205 of the Report said that " the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event."

23. Shri R. Ali, learned counsel for the writ petitioners has vehemently objected the present application and has further submitted that the present application is nothing but a dilatory tactic to delay the proceeding and also to circumvent the contempt proceedings which are pending against the officers of the Railways. It has been submitted that the records would reveal that though the review was presented on 10.06.2019, the same was with defects which was rectified ultimately on 31.10.2019 i.e. after filing of the Contempt Petition on 26.09.2019. Shri Ali, learned counsel questions the bona fide of the Railways in filing the review by simply making certain allegations against the learned Standing Counsel of the Revenue Department.

24. In support of his submissions, the learned counsel for the writ petitioner / opposite party places reliance upon the following decisions 1. (2013) 15 SCC, 534, 2. (2019) 5 SCC 86, 3. AIR 2020 SC 4068, 4. (2019) 1 GLR 23, Judgement dated 25.06.2019 in Review Petition 183 / 2018 Guwahati High Court. The aforesaid decisions lays down that the powers of review cannot be exercised in a routine manner and cannot be done only on special circumstances.

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25. In the instant case, it is seen that the present petition for review has been filed in a most perfunctory manner for which a serious doubt arises on the bona fide of the applicants. As observed above, the State of Assam and the Revenue Department were tried to be roped in as review applicants without any authority and during the entire proceedings, no rectification was made. The order dated 31.08.2013 passed by the Circle Officer pursuant to the earlier order dated 21.06.2013 passed by this Court in the first round of litigation being Writ Petition(C) 3389/2013 not being questioned till date, the grounds taken in the present application are wholly not maintainable. This Court is of the further opinion that none of the pre-conditions for exercise of the power of review are available. Further, this Court is constrained to observe that the present petition does not appear to be filed for any bona fide purpose and simply appears to be a dilatory tactic, more so, to circumvent the contempt proceedings. As has been correctly placed by Shri Ali, the learned counsel, it is seen that though the Review Petition was presented on 10.06.2019, the defects were removed only on 31.10.2019 which is after the Contempt Petition which was filed on 26.09.2019. Further, the order sheet would reveal that the review application had to be adjourned on a number of occasions at the instance of the learned counsel for the review applicant either because of his absence or for reasons assigned in the orders and from 15.11.2019, the matter had to be adjourned which could be taken up for consideration only on 20.04.2021.

26. This Court is also constrained to observe the order in question and also gives the liberty to the Railways to make the necessary payments in case the land is not in a position to be handed over back to the writ petitioner. And such observation has been made after coming to a satisfaction that the land in question was of the writ petitioner.

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27. Under the above facts & circumstances, the instant application is dismissed. Further, considering the conduct of the applicants, this Court imposes a token cost of Rs.5,000/- (Rupees Five Thousand) upon the applicants.

JUDGE

Comparing Assistant