I.A.(Civil)/3163/2018
2024 Latest Caselaw 4050 Gua

Gauhati High Court

I.A.(Civil)/3163/2018 on 7 June, 2024

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                   Page No.# 1/9

GAHC010185822018




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

                   Case No. : I.A.(Civil)/3163/2018
                     in WP(C) 5079/2015 (D/O)

          Sri Darash Mathur
          Now Retired, the then Principal Chief Conservator Of Forests And
          Hoff, Assam


          2. Sroi Bidyut Borthakur
          Presently serving as the Divisional Forest Officer
          Sivasagar Forestry Division
          (The then Deputy Conservator of Forests
          O/O the Principal Chief Conservator of Forests, Assam
                                                               .......Applicants
          -Versus-

          Smti. Bina Devi
          W/O Late Atul Nath,
          R/O Raja Mayang, Morigaon, Assam,
          Presently Serving As Office Peon,
          O/O the Range Officer, Pabitora Wild Life Range,
          Po-Mayaong, Dist-Morigaon,
          Pin-782411
                                                           .......Respondents
                                                                   Page No.# 2/9

                                    BEFORE
               HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA


      Advocate for the Petitioner :        MR. K N CHOUDHURY

      Advocate for the Respondent:         MR. J KALITA

      Date of hearing               :   31.05.2024

      Date of order                :    07.06.2024


                                ORDER (CAV)

1. Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. J. Patowary, learned counsel for the applicants. Also heard Mr. J. Kalita, learned counsel for the writ petitioner.

2. This is an application for deleting/expunging the impugned observation made by this Court in it's order dated 26.09.2016 passed in WP(C) No.5079/2015 which is as follows:

"In fact, it seems that the respondent no.2 has been trying to mislead

this Court by giving a wrong date."

3. The applicants counsel submits that the applicants did not try to mislead this Court by giving a wrong date with respect to the application for compassionate appointment submitted by the writ petitioner. He submits that the records of the applicants did not show that the petitioner had submitted an application for compassionate appointment in the year 2005. He submits that the records of the applicants had showed that the petitioner Page No.# 3/9

had submitted an application for compassionate appointment only in the year 2008. Further, the applicants have retired from service and the writ petitioner has been given compassionate appointment. However, due to the above observation made by this Court, the writ petitioner has now filed a case of perjury against the applicants.

4. He further submits that a perusal of paragraph-8 of the writ petition in WP(C) 1652/2009 states that the petitioner had submitted an application for compassionate appointment on 23.10.2005, while in paragraph-6 of WP(C) No.5079/2015 the petitioner had stated that she had submitted an application for compassionate appointment on 25.11.2005.

5. The applicants counsel submits that the petitioner had mentioned two different dates for submission of her application for compassionate appointment, i.e. 23.10.2005 and 25.11.2005. However, the writ petitioner had refrained from disclosing the fact that another application for compassionate appointment dated 08.09.2008 had been submitted to the department. He submits that the applicants were not brought to the notice of the fact that the writ petitioner had submitted an application in the year 2005 and as the applicants had failed to observe that the application had been submitted by the petitioner in the year 2005, the applicants were incapable of misleading the Court. He therefore prays that the impugned observation should be expunged from the order dated 26.09.2016 passed in WP(C) No.5079/2015. Mr. K. N. Choudhury, learned senior counsel for the applicant submits that this petition is maintainable and that even after the writ petition has been disposed of, the expunging of the observation of this Court would not change the outcome of the order dated 26.09.2016. In Page No.# 4/9

support of his submissions that the observation should be expunged, he has relied upon the judgment of the Supreme Court in the case of Shivdev Singh and others vs. State of Punjab and others reported in AIR 1963 SC 1909, in the case of Dr. Raghubir Saran vs. State of Bihar and another, reported in AIR 1964 SC 1 and in the case of the State of U.P. vs. Mohoammad Naim reported in AIR 1964 SC 703.

6. Mr. J. Kalita, learned counsel for the writ petitioner submits that a Coordinate Bench has held that when proceedings stood terminated by final disposal of a writ petition, it was not open for the Court to reopen the proceeding by means of a miscellaneous application. In this regard he has referred to the order dated 17.03.2015 passed in MC 471/2015 in WP(C) No.266/2015 (Smti. Nayan Das & Basana Das vs. Union of India & Others). He has also relied upon the judgment of the Supreme Court in the case of State of U.P. vs. Shri Brahm Datt Sharma & Another , reported in AIR 1987 SC 943 and in the case of Hari Singh Mann vs. Harbhajan Singh Bajwa reported in (2001) 1 SCC 169. He also submits that the observation sought to be expunged, has been made by this Court due to the discrepancy in the averments made in the affidavit vis-a-vis the official records. As such, the application should be dismissed.

7. I have heard the learned counsels for the parties.

8. In MC 471/2015, this Court had held that in view of the settled position of law in the case of Shri Brahm Datt Sharma (supra) , no miscellaneous application can be filed in a writ petition to revise the proceeding. It further held that when proceedings stand terminated by final Page No.# 5/9

disposal of a writ petition, it is not to open for the Court to re-open the proceedings by means of a miscellaneous application.

9. As can be seen from the above two judgments, the proceedings of a writ petition, which has been finally disposed of, cannot be opened by way of a miscellaneous application. In the present case, the prayer is to expunge the observation of this Court. The observation sought to be expunged has been made on going through the official records and as such, this Court does not find any error apparent on the face of the record on the observation made by this Court. In any event, the present misc. application is not a review petition.

10. In the case of Shivdev Singh and others (supra), the Supreme Court held that there is nothing in Article 226 of the Constitution to preclude a 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. However, in the present case, the question of miscarriage of justice does not arise and to go into the issue whether the observation made by this Court had been correctly made would be akin to opening up the proceedings to a certain extent. In any event, the Supreme Court in a later judgment, i.e., Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, reported in (1979) 4 SCC 389, has held that though the Constitution Bench held in Shivdeo Singh(supra) that nothing in Article 226 of the Constitution precludes a 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, there are definitive limits to the exercise of the power of Page No.# 6/9

review. The power of review may be exercised on the discovery of new and important matter or 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 merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court.

11. In the case of Dr. Raghubir Saran (supra), the Supreme Court has held that the power to expunge remarks is no doubt an extraordinary power, but nevertheless it exists for redressing the kind of grievance for which the statute provides no remedy in express terms. It further held that the statute recognizes that the High Courts are not confined to the exercise of powers expressly conferred by it and may continue to exercise their inherent powers, which makes three things clear. One, that extraordinary situations may call for the exercise of extraordinary powers. Second, that the High Courts have inherent power to secure the ends of justice. Third, that the express provisions of the Code do not affect that power. It further held that when a question arises before the High Court whether to resort to such undefined power, it is essential for it to exercise great caution and circumspection. Thus, when an aggrieved party moves to expunge any passage from the order or judgment of a subordinate Court, it must be fully satisfied that the passage complained of is wholly irrelevant and unjustifiable. Further its retention on the records will cause serious harm to Page No.# 7/9

the person to whom it refers and that its expunction will not affect the reasons of the judgment or order.

12. In the case of State of U.P. vs. Mohoammad Naim (supra) , the Supreme Court held that to characterize the whole Police Force of the State as a lawless group was bad enough, to say that its record of crime is the highest in the State is worse, which is sure to bring the whole administration of law and order into disrepute. The Supreme Court thus held that sweeping generalizations defeats their own purpose and as such, an exceptional case had been made out where the inherent jurisdiction of the Court should have been exercised and the remarks should have been expunged.

13. In the case of Nazma vs. Javen @ Anjum reported in 2013 1 SCC 376, the Supreme Court referring to another of its judgment, i.e., Hari Singh Mann vs. Harbhajan Singh Bajwa (supra) held that the practice of entertaining miscellaneous applications in disposed of writ petitions was deprecated as it ignored the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure and after the disposal of the main petition; no miscellaneous application could have been filed.

14. Most of the judgments mentioned above pertain to criminal cases and the prayer for expunging the remarks made by the Courts. However, one constant strain pervades the various judgments, inasmuch as, it has been held that expunging of a remark should be done after exercising great caution and circumspection. It can be done to prevent the miscarriage of justice and when an exceptional case has been made out.

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15. In the present case, the observation of this Court that is sought to be expunged is to the following effect:-

"In fact, it seems that the respondent no.2 has been trying to mislead

this Court by giving a wrong date."

16. A perusal of the above shows that the above observation had been made by this Court after perusal of the official records. To have a clearer picture as to how the above observation had been made by this Court, it would be apt if the relevant portions of the impugned order dated 26.09.2016 is looked, which is reproduced below as follows-

"On perusal of the original form for processing cases of compassionate appointment, which has been made by the petitioner and which is in the official records, I find that the date of birth of the petitioner has been recorded as 07.02.1975 and the petitioner's age at the time of submission of her application was 30 years.

The above clearly goes to show that the petitioner had made the application for compassionate appointment in the year 2005 and not in the year 2008 as has been projected by the respondents in their affidavit-in- opposition.

In fact, it seems that the respondent No. 2 has been trying to mislead this Court by giving a wrong date while the original records clearly gives inference to the fact that the petitioner had applied for compassionate appointment in the year 2005."

17. A combined reading of the above 3 paragraphs of the impugned order, in the opinion of this Court, does not indicate that the said observation was irrelevant or unjustified. In any event, there is no definite finding made by this Court and the same is only an observation.

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18. In terms of the judgment of the Supreme Court in Dr. Raghubir Saran(supra), this Court does not find that any extraordinary situation has arisen because of the said observation.

19. In view of the reasons stated above, this Court does not find any ground to allow the application and the same is accordingly dismissed.

Comparing Assistant