Himachal Pradesh High Court
High Court Of H.P vs Rajeev Bhardwaj & Others on 3 March, 2021
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Review Petition Nos.73 & 74 of 2020.
Date of Decision : March 03, 2021.
.
Review Petition No. 73 of 2020
High Court of H.P. .....Petitioner.
Versus
Rajeev Bhardwaj & Others ....Respondents.
Review Petition No. 74 of 2020.
High Court of H.P. ....Petitioner
r versus
S.C. Kainthla & Others ....Respondents.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO
For the Petitioner : Mr. K.D. Sood, Sr. Advocate with Ms.
Shalini Thakur, Advocate.
For the respondents: Mr. Shrawan Dogra and Mr. R.K.Bawa, Senior
Advocates with Mr. Ajay Sharma, Advocate for
respondent No.1 in both the petitions.
Mr. Nand Lal Thakur, Addl. A.G. for
respondent No.2, in both the petitions.
Mr. R.L. Sood, Senior Advocate with Mr.
Arjun Lall, Advocate for respondents No.3 & 4.
Mr. Nitin Thakur, Advocate for respondents
No. 5 & 6.
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE
Anoop Chitkara, Judge (Oral).
This order shall dispose of these two petitions, being identical, involving similar
questions of law and facts for adjudication.
Whether reporters of Local Papers may be allowed to see the judgment?
2. Seeking review of order dated 26th October, 2020, whereby this Court had culled
out the points of difference between dissenting judgment passed by learned Division
.
Bench, the respondent-High Court of Himachal Pradesh, has come up before this Court.
3. I have heard Mr. K.D. Sood, learned Senior Advocate assisted by Ms. Shalini
Thakur, Advocate for the petitioner and Mr. Shrawan Dogra and Mr. R.K. Bawa, learned
Senior Advocates assisted by Mr. Ajay Sharma, Advocate for respondents No.1, Mr.
Nand Lal Thakur, learned Additional Advocate General for respondent No.2, Mr. R.L.
Sood, learned Senior Advocate assisted by Mr. Arjun Lal, Advocate for respondents
No.3 & 4 and have also gone through the contents of the petitions as well as minutely
gone through order dated 26th October, 2020.
4. The applicant Hon'ble High Court seeks review claiming that the clause 26 of the
Letters Patent is a complete code. Further, the judgments cited before this Court were
also clear that in the absence of formulating the judges' points of difference, third-Judge
had no jurisdiction to hear the matter. The course available was either to constitute a
new Bench to hear the whole case, or a Larger Bench should have heard the matter,
more so, when the parties had not consented to the formulation of points of difference
by the third-judge. The Applicant/Respondent Hon'ble High Court further contended
that even the private respondents did not agree to the formulation of points of difference
by the third judge, i.e., by this Court.
5. In paragraph 13 of the petition, the contention is that this Court did not
adjudicate that whether the matter had to be returned to the Hon'ble Chief Justice or not.
The High Court further contended that the procedure proposed by this Court was not
warranted given the language of Clause 26 of the Letters Patent Appeal. In paragraph
15, the Hon'ble High Court contends that this Court ought to have framed all the points
of differences, including the points where the third Judge could himself formulate the
point of difference. Per paragraph 63 of the impugned order, there is no determination
of jurisdiction to the extent to which the third Judge could have decided the case on
merits. As such, there was an error apparent on the face of the record.
6. In a nutshell, the Applicant contends that the third Judge has assumed
jurisdiction, which was never vested in him.
7. Mr. K.D. Sood learned Senior Advocate assisted by Mrs. Shalini Thakur,
Advocate based his arguments on the application's contentions and argued that there is
an error apparent in the order dated 26th October 2020.
.
8. To the contrary, Mr. R.K. Bawa and Mr. Sharwan Dogra, learned Senior
Advocates assisted by Mr. Ajay Kumar Sharma, Advocate submits that the review is not
maintainable, as the review lies only where there is error apparent on the face of the
record and the remedy available to the petitioner is to challenge the order under review
before the Superior Court. They contend that howsoever erroneous the findings may be,
those will set aside only by the Superior Court. A review petition will only be
maintainable where there is an error apparent on the face of the record. This Court has
duly analyzed points from both the Hon'ble Judges' decisions, culling out the points of
differences.
9.
Learned Additional Advocate General appearing for 2nd respondent submits that
review petition is between the high Court and the Hon'ble Court, they have nothing to
address.
10. Mr. R.L. Sood, learned Senior Advocate assisted by Mr. Arjun Lal, Advocate,
representing respondents No.3 and 4 submits that he is reserving his rights to address
arguments on correctness and interpretation of Clause 26 in LPA, which is pending
adjudication before the Division Bench of this Court.
11. Mr. B.C. Negi, learned Senior Advocate is not present and Mr. Nitin Thakur,
Advocate has put in appearance and seeks adjournment on the ground that learned
Senior Advocate is out of station. These review petitions are filed by the Hon'ble High
Court and the contentions on behalf of the respondent-State is that it is between this
Court and Hon'ble High Court. Even otherwise, the stand of respondents No.5 and 6 is
similar to the stand taken by respondents No.3 and 4 and on their behalf, I have heard
Mr. R.L. Sood, learned Senior Advocate assisted by Mr. Arjun Lall, Advocate. Thus I
proceed to decide these review petitions.
12. A perusal of the contents of the applications reveals that instead of pointing out
the error apparent on the face of the order dated 26th October 2020, for all intents and
purposes, in these petitions, the petitioner is challenging the jurisdiction of the Court to
pass such order. Needless to say, that this Court, in a review petition, cannot decide the
question of jurisdiction, more so, after a detailed analysis, in paragraph 58, this Court
has given reasons for culling out the points of difference. Furthermore, in paragraph 63,
the reasons were given for not deciding the other points, which were not necessary at
.
the time of culling out the points of difference.
13. Given above, there is no error apparent on the face of the order dated 26 th October
2020, passed in CMP No. 5772 of 2020. As such, the review petitions are dismissed.
(Anoop Chitkara),
March 03, 2021 (ps) Judge
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