Gauhati High Court
Page No.# 1/7 vs The State Of Assam And 6 Ors on 15 June, 2023
Page No.# 1/7
GAHC010131222023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./76/2023
KAJALGAON MUNICIPAL BOARD AND ANR.
REPRESENTED BY ITS CHAIRMAN, SRI UPENDRA MUCHAHARY, P.O. AND
PS - KAJALGAON, DIST- CHIRANG, B.T.R., ASSAM,
2: THE CHAIRMAN
KAJALGAON MUNICIPAL BOARD
DIST-CHIRANG
B.T.C.
ASSAM
PIN-78338
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY THE SECRETARY, MUNICIPAL ADMINISTRATION
DEPARTMENT, GOVERNMENT OF ASSAM, ASSAM SECRETARIAT, DISPUR,
GUWAHATI-06
2:THE PRINCIPAL SECRETARY
B.T.C BODOLAND SECRETARIAT BODOFA NWGWR
KOKRAJHAR
783370
3:THE SECRETARY
URBAN DEVELOPMENT DEPARTMENT
BODOLAND TERRITORIAL COUNCIL
KOKRAJHAR
BTC
783370
4:THE DIRECTOR
DIRECTORATE OF MUNICIPAL ADMINISTRATION
ASSAM
DISPUR
Page No.# 2/7
GUWAHATI-06
5:THE DEPUTY COMMISSIONER
KAJALGAON
DIST- CHIRANG
B.T.C.
ASSAM
PIN-783386
6:KAJALGAON WEEKLY BAZAR COMMITTEE
REPRESENTED BY ITS VICE-PRESIDENT
HQ AND P.O.- KAJALGAON
P.S.-DHALIGAON
DIST- CHIRANG
B.T.R.
ASSAM
PIN-783385 REGD. NO. RS/CRG/261/E/42 OF 2021-2022
7:AJAY MANDAL
S/O LATE BIPIN MANDAL
R/O VILL- MONGLAGAON
P.O. AND P.S.-KAJALGAON
DIST-CHIRANG
B.T.C.
ASSAM
PIN-78338
Advocate for the Petitioner : MR. M U MAHMUD
Advocate for the Respondent : SC, BTC
Linked Case : WP(C)/3177/2023
KAJALGAON WEEKLY BAZAR COMMITTEE
REPRESENTED BY ITS VICE-PRESIDENT
HQ AND P.O.- KAJALGAON
P.S.-DHALIGAON
DIST- CHIRANG
B.T.R.
ASSAM
PIN-783385 REGD. NO. RS/CRG/261/E/42 OF 2021-2022
VERSUS
Page No.# 3/7
THE STATE/GOVERNMENT OF ASSAM AND 8 ORS
REPRESENTED BY THE SECRETARY
MUNICIPAL ADMINISTRATION DEPARTMENT
GOVERNMENT OF ASSAM
ASSAM SECRETARIAT
DISPUR
GUWAHATI-06
2:THE PRINCIPAL SECRETARY
B.T.C.
BODOLAND SECRETARIAT
BODOFA NWGWR
KOKRAJHAR
PIN-783370
3:THE SECRETARY
URBAN DEVELOPMENT DEPARTMENT
BODOLAND TERRITORIAL COUNCIL
KOKRAJHAR
B.T.C.
PIN-783370
4:THE DIRECTOR
DIRECTORATE OF MUNICIPAL ADMINISTRATION
ASSAM
DISPUR
GUWAHATI-06
5:THE DEPUTY COMMISSIONER
KAJALGAON
DIST- CHIRANG
B.T.C.
ASSAM
PIN-783386
6:THE KAJALGAON MUNICIPAL BOARD
KAJALGAON
DIST- CHIRANG
B.T.C.
ASSAM
PIN-783386
REPRESENTED BY ITS CHAIRMAN
7:THE CHAIRMAN
KAJALGAON MUNICIPAL BOARD
KAJALGAON
DIST-CHIRANG
BTC
Page No.# 4/7
ASSAM
PIN-783386
8:UPENDRA MUSHAHARY
CHAIRMAN
KAJALGAON MUNICIPAL BOARD
DIST-CHIRANG
B.T.C.
ASSAM
PIN-783386
9:AJAY MANDAL
S/O LATE BIPIN MANDAL
R/O VILL- MONGLAGAON
P.O. AND P.S.-KAJALGAON
DIST-CHIRANG
B.T.C.
ASSAM
PIN-783385
------------
Advocate for : MR. A NARZARI
Advocate for : GA
ASSAM appearing for THE STATE/GOVERNMENT OF ASSAM AND 8 ORS
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 15.06.2023
Heard Mr. M.U. Mahmud, learned counsel for the applicant; Mr. M. Chutia,
learned Junior Government Advocate, Assam for the opposite party nos. 1, 4 &
5; Ms. S. Chutia, learned counsel appearing on behalf of Mr. P. Nayak, learned
Standing Counsel, BTC for the opposite party nos. 2 & 3; and Mr. A. Narzari,
learned counsel for the opposite party no. 6 - writ petitioner.
2. At the outset, Mr. Narzari, learned counsel for the opposite party no. 6 -
writ petitioner has submitted that the copy of the instant application which has
been filed in connection with the writ petition, W.P.[C] no. 3177/2023 has not
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been furnished to him.
3. The instant application styled as review petition is stated to have been
preferred under Chapter X of the Gauhati High Court Rules r/w Order 47, Rule 1
& 2 of the Civil Procedure Code, 1908 with the prayer to review an order dated
05.06.2023 passed in the connected writ petition, W.P.[C] no. 3177/2023.
4. It is averred on behalf of the review petitioner that one Ajay Mandal, who
has been impleaded as the respondent no. 9 in the writ petition, has filed a
caveat with filing no. 439/2023 on 12.05.2023 with connection of an order
bearing no. KMB.2/HC//Market//2023/90 dated 09.05.2023. The review
petitioner had also filed a caveat with filing no. 479/2023 on 23.05.2023 in
connection with the same order. Both the caveats named Kajalgaon Weekly
Bazar Committee as the proposed petitioner. But, the writ petition, W.P.[C] no.
3177/2023 was moved on 05.06.2023 by the opposite party no. 6-writ petitioner
without service a copy of the writ petition upon the caveators or their lawyers
and the same has resulted into an ex parte order on 05.06.2023. Allegation of
concealment of the caveats are made in this review petition seeking review of
the order dated 05.06.2023. Other than the above grounds, no other grounds
have been urged in this review petition.
5. Issue notice, returnable on 19.07.2023.
6. As Mr. M. Chutia, learned Junior Government Advocate, Assam has
appeared and accepted notice on behalf of the opposite party nos. 1, 4 & 5; Ms.
S. Chutia, learned counsel has appeared and accepted notice on behalf of the
opposite party nos. 2 & 3; and Mr. Narzari, learned counsel has appeared and
accepted notice on behalf of the opposite party no. 6 - writ petitioner, no formal
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notices need to be issued to the said opposite parties. The learned counsel for
the petitioner shall, however, furnish requisite nos. of extra copy of the review
petition along with annexures, to Mr. M. Chutia, Ms. S. Chutia and Mr. Narzari
within 3 [three] working days from today.
7. Mr. Mahmud, learned counsel for the review petitioner has submitted that
the order dated 05.06.2023 is required to be stayed as the caveators were not
heard on 05.06.2023. It is contended that not hearing the caveatros is a ground
under Chapter X of the Gauhati High Court Rules r/w Order 47, Rule 1 & 2 of
the Civil Procedure Code, 1908. As per Order 47, Rule 1 of the Civil Procedure
Code, 1908, any person considering himself aggrieved- [a] by a decree or order
from which an appeal is allowed, but from which no appeal has been preferred;
[b] by a decree or order from which no appeal is allowed; or [c] by a decision
on a reference from a Court of Small Causes, and who, from the discovery of
new and important matter 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 on account of some mistake or error
apparent on the face of the record for any other sufficient reason, desires to
obtain a review of the decree passed or order made against him, may apply for
a review of judgment to the Court which passed the decree or made the order.
It is also a settled position of law that the power of review is exercisable when
some mistake or error apparent on the face of a record is found but it is not
exercisable on the ground that the decision was erroneous on merits.
8. The issue where a review petition is maintainable against an interim order
requires further deliberation. As the review of the order dated 05.06.2023
passed in the writ petition is not sought on merits, the prayer for recall or stay
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of the order dated 05.06.2023 is declined at this stage.
JUDGE
Comparing Assistant
