Jharkhand High Court
The State Of Jharkhand Through The Chief ... vs Kutchery Market Dukandar Sangh on 16 February, 2024
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 23 of 2023
---
1. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand, Ranchi
2. The Deputy Commissioner, Ranchi
3. The Sub-Divisional Officer, Sadar, Ranchi
4. The Circle Officer, Town, Ranchi
... ... Petitioners
Versus
1. Kutchery Market Dukandar Sangh, Ranchi through its
President Vijay Kumar Sahu
2. Ranchi Municipal Corporation, Ranchi through its Chief
Executive Officer
3. Krishi Utpadan Bazar Samiti, Pandra, Ranchi through its
Secretary
4. The Secretary, Department of Revenue, Registration and
Land Reforms, Government of Jharkhand, Ranchi
5. The Secretary, Department of Agriculture, Cooperative and
Animal Husbandry, Government of Jharkhand, Ranchi
.... ... Opp. Parties
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioners : Mrs. Vandana Singh, Sr.S.C.-III
Mr. Ashwini Bhushan, A.C. to Sr.S.C.-III
For the O.P. No. 1 : Mr. Rahul Kumar, Advocate
For the O.P. No. 2 : Mr. Prashant Kumar Singh, Advocate
Order No. 05 Dated: 16.02.2024
The present Civil Review has been preferred for reviewing
the order dated 18.11.2019 passed by this Court in W.P.(C) No.
1091 of 2014 whereby the Deputy Commissioner, Ranchi and the
Municipal Commissioner, Ranchi Municipal Corporation, Ranchi
were directed to take up the matter of rehabilitation of the
members of the respondent no. 1 as a special case and to make
all possible endeavour to rehabilitate them at some suitable place,
subject to strict scrutiny of their identity as the displaced persons
of Kutchery Market.
2. Learned counsel for the review petitioners submits that
respondent no. 1 filed writ petition being W.P.(C) No. 1091 of
2014 for issuance of direction upon the respondents of the said
case to rehabilitate the members of the petitioner-Association by
providing space within court compound, Ranchi or at any other
suitable place within Ranchi Town for running business for their
livelihood as they were evicted from the 'court compound haat' by
illegally and arbitrarily demolishing their structures and sheds
within 72 hours of issuance of general notice dated 11.04.2011 by
the Circle Officer, Town, Ranchi. Further prayer was made to
provide adequate compensation to the displaced members of the
respondent no. 1 as they were illegally deprived of their livelihood
leading to acute financial crisis.
3. It is further submitted that the said writ petition was
disposed of vide order dated 18.11.2019, the relevant paragraphs
of which read as under:-
"3. A supplementary affidavit dated 07.11.2019 has been
filed by the respondent no. 4 - the Deputy
Commissioner, Ranchi annexing a copy of letter dated
26.11.2011 issued by the erstwhile Deputy
Commissioner, Ranchi to the Chief Executive Officer,
Ranchi Municipal Corporation, Ranchi. As per the said
letter, since there was no Government land available
near 'Kutchery' for rehabilitating 152 displaced
shopkeepers of Kutchery market, a request was made
that they may be rehabilitated in the proposed market
complex at Jaipal Singh Stadium or at Doranda Bazaar.
4. A counter affidavit dated 29.08.2019 has been filed on
behalf of the respondent no. 8 - Ranchi Municipal
Corporation, Ranchi stating inter alia that the market
complex constructed at Jaipal Singh Stadium is meant
for rehabilitation of the street vendors and members of
the petitioner-Association cannot be categorized as
street vendors as they were operating their shops on the
Government land at Kutchery market and not on the
street.
5. Be that as it may. Undisputedly, the respondent no. 4
- the Deputy Commissioner, Ranchi after evicting the
members of the petitioner-Association from Kutchery
market had requested the Chief Executive Officer, Ranchi
Municipal Corporation, Ranchi vide letter dated
26.11.2011 to rehabilitate them in Jaipal Singh Stadium
or at Doranda market. Though it is also a fact that the
members of the petitioner-Association were not carrying
on their businesses on the street, however, the
respondent no. 4 cannot back out from the stand taken
in the letter dated 26.11.2011. It also appears that there
has been no persuasion on the part of the respondent
no. 4 in ensuring that the members of the petitioner-
Association are appropriately rehabilitated in co-
operation with the respondent no. 8. Merely because the
members of the petitioner-Association were not carrying
on their business on the street, they cannot be
discriminated as against the street vendors who have
been rehabilitated in the market complex at Jaipal Singh
Stadium. Thus, their case is required to be considered as
a special one.
6. Accordingly, the Deputy Commissioner, Ranchi and the
Municipal Commissioner, Ranchi Municipal Corporation,
Ranchi are directed to take up the matter of
rehabilitation of the members of the petitioner-
Association as a special case and to make all possible
endeavor to rehabilitate them at some suitable place,
subject to strict scrutiny of their identity as the displaced
persons of Kutchery market. The said exercise shall be
completed by the Deputy Commissioner, Ranchi and the
Municipal Commissioner, Ranchi Municipal Corporation,
Ranchi without any undue delay, preferably within a
period of six months from the date of the order."
4. It is also submitted that being aggrieved with the
aforesaid order, the petitioners preferred L.P.A. No. 302 of 2020,
however the same was dismissed vide order dated 06.02.2023 on
the ground of limitation giving liberty to the State of Jharkhand to
file review petition against the order dated 18.11.2019 passed in
W.P.(C) No. 1091 of 2014. The operating part of the said order is
as under: -
"However, dismissal of the present Letters Patent Appeal
on the ground of delay shall not be a legal hurdle for the
State of Jharkhand for filing a review petition against the
order dated 18.11.2019 passed in W.P.(C) No. 1091 of
2014."
5. Learned counsel for the review petitioners further submits
that the order dated 18.11.2019 was passed on the basis of letter
dated 26.11.2011 wherein stand was purportedly taken by the
then Deputy Commissioner, Ranchi to rehabilitate the members of
the respondent no. 1 and the same was treated to be an act of
promissory estoppel against the government. However, the
doctrine of promissory estoppel cannot be applied as aid to
compel the Government or the public authority to carry out
a representation or promise which is contrary to law or which is
outside the power of an officer of the Government or of the public
authority to implement.
6. It is also submitted that no promise was made by the
review petitioners to rehabilitate the members of the respondent
no. 1. Moreover, the public authority cannot be compelled to
do something which is not allowed by law because no one can be
compelled to act against the statute. The review petitioners were
directed to consider the matter of rehabilitation of the members
of the respondent no. 1 as a special case and to take all possible
endeavour for their rehabilitation at some suitable place though
vide order dated 06.07.2011 passed by a Division Bench of this
Court in W.P.(PIL) No. 2420 of 2011, the cases of the members of
the respondent no. 1 were directed to be considered strictly in
accordance with law and if they were entitled to get any relief
under any statutory provision, an appropriate order was to be
passed by the State Government.
7. Learned counsel for the review petitioners further submits
that neither the members of the respondent no. 1 were the
tenants of the Government nor were ever given any assurance of
being treated in a certain way by the administrative authorities. It
is a settled principle of law that legitimate expectation is different
from anticipation and an anticipation cannot amount to an
assertable expectation. Such expectation should be justifiable,
legitimate and protectable. In the present case, the members of
the respondent no. 1 were evicted after following the due
procedure of law.
8. It is also submitted that after passing of the order dated
18.11.2019 by this Court in W.P.(C) No. 1091 of 2014, the RMC
floated a scheme for allotment of shops at vegetable market,
"Naga Baba Khatal" through lottery to accommodate
fruit/vegetable vendors. Since the members of the respondent no.
1 failed to apply for allotment of shops in the said fruit/vegetable
market, there was no question of allotment of the same in their
favour and at present, there is no rehabilitation
scheme formulated by the State of Jharkhand to accommodate
the shopkeepers like the members of the respondent no. 1.
9. Learned counsel for the review petitioners puts reliance
on a judgment rendered by the Hon'ble Supreme Court in the
case of Municipal Corporation of Greater Mumbai and
Others Vs. Rafiqunnisa M. Khalifa (deceased) through his
legal heir Mohd. Muqueen Qureshi and Another reported in
(2019) 5 SCC 119 wherein it has been held that a writ of
mandamus under Article 226 of the Constitution of India is issued
when there is a right and correspondingly there is a legal duty to
perform. It is thus submitted that there is no legal right of the
members of the respondent no. 1 to be rehabilitated after their
displacement from Kutchery market premises.
10. Heard learned counsel for the parties and perused the
materials available on record.
11. Before coming to the merit of the present case, it would
be appropriate to refer few relevant judgments rendered by the
Hon'ble Supreme Court with respect to the scope of entertaining
a review petition.
12. In the case of Aribam Tuleshwar Sharma Vs. Aibam
Pishak Sharma & Ors., reported in (1979) 4 SCC 389, the
Hon'ble Supreme Court has held as under: -
"3. ......... It is true as observed by this Court in Shivdeo
Singh v. State of Punjab 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.
But, there are definitive limits to the exercise of the
power of 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."
(emphasis supplied)
13. In the case of Parsion Devi and others Vs. Sumitri
Devi and others, reported in (1997) 8 SCC 715, it has been
held as under:
"9. Under Order 47 Rule 1 CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent
on the face of the record. An error which is not self-evident
and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of the
record justifying the court to exercise its power of review
under Order 47 Rule 1 CPC. In exercise of the jurisdiction
under Order 47 Rule 1 CPC it is not permissible for an
erroneous decision to be "reheard and corrected". A review
petition, it must be remembered has a limited purpose and
cannot be allowed to be "an appeal in disguise"."
14. In the case of Haryana State Industrial Development
Corpn. Ltd. Vs. Mawasi and others, reported in (2012) 7
SCC 200, it has been held as under:
"27. The aforesaid provisions have been interpreted in
several cases. We shall notice some of them. In S. Nagaraj
v. State of Karnataka, this Court referred to the judgments
in Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and
Rajunder Narain Rae v. Bijai Govind Sing and observed:
"19. Review literally and even judicially means
reexamination or reconsideration. Basic philosophy
inherent in it is the universal acceptance of human
fallibility. Yet in the realm of law the courts and even
the statutes lean strongly in favour of finality of decision
legally and properly made. Exceptions both statutorily
and judicially have been carved out to correct accidental
mistakes or miscarriage of justice. Even when there was
no statutory provision and no rules were framed by the
highest court indicating the circumstances in which it
could rectify its order the courts culled out such power
to avoid abuse of process or miscarriage of justice. In
Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the
Court observed that even though no rules had been
framed permitting the highest court to review its order
yet it was available on the limited and narrow ground
developed by the Privy Council and the House of Lords.
The Court approved the principle laid down by the Privy
Council in Rajunder Narain Rae v. Bijai Govind Sing that
an order made by the Court was final and could not be
altered: (Rajunder Narain Rae case, MIA p. 216)
'... nevertheless, if by misprision in embodying the
judgments, errors have been introduced, these courts
possess, by common law, the same power which the
courts of record and statute have of rectifying the
mistakes which have crept in. ... The House of Lords
exercises a similar power of rectifying mistakes made in
drawing up its own judgments, and this Court must
possess the same authority. The Lords have, however,
gone a step further, and have corrected mistakes
introduced through inadvertence in the details of
judgments; or have supplied manifest defects, in order
to enable the decrees to be enforced, or have added
explanatory matter, or have reconciled inconsistencies.'
Basis for exercise of the power was stated in the same
decision as under:
'It is impossible to doubt that the indulgence
extended in such cases is mainly owing to the
natural desire prevailing to prevent irremediable
injustice being done by a court of last resort, where
by some accident, without any blame, the party has
not been heard and an order has been inadvertently
made as if the party had been heard.'
Rectification of an order thus stems from the
fundamental principle that justice is above all. It is
exercised to remove the error and not for disturbing
finality. When the Constitution was framed the
substantive power to rectify or recall the order passed
by this Court was specifically provided by Article 137 of
the Constitution. Our Constitution-makers who had the
practical wisdom to visualise the efficacy of such
provision expressly conferred the substantive power to
review any judgment or order by Article 137 of the
Constitution. And clause (c) of Article 145 permitted this
Court to frame rules as to the conditions subject to
which any judgment or order may be reviewed. In
exercise of this power Order 40 had been framed
empowering this Court to review an order in civil
proceedings on grounds analogous to Order 47 Rule 1 of
the Civil Procedure Code. The expression, 'for any other
sufficient reason' in the clause has been given an
expanded meaning and a decree or order passed under
misapprehension of true state of circumstances has
been held to be sufficient ground to exercise the power.
Apart from Order 40 Rule 1 of the Supreme Court Rules
this Court has the inherent power to make such orders
as may be necessary in the interest of justice or to
prevent the abuse of process of court. The court is thus
not precluded from recalling or reviewing its own order
if it is satisfied that it is necessary to do so for sake of
justice."
28. In Moran Mar Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius, the three-Judge Bench referred to the
provisions of the Travancore Code of Civil Procedure, which
was similar to Order 47 Rule 1 CPC and observed:
"32. ... It is needless to emphasise that the scope of an
application for review is much more restricted than that
of an appeal. Under the provisions in the Travancore
Code of Civil Procedure which is similar in terms to
Order 47 Rule 1 of our Code of Civil Procedure, 1908, the
court of review has only a limited jurisdiction
circumscribed by the definitive limits fixed by the
language used therein.
It may allow a review on three specified grounds,
namely, (i) discovery of new and important matter or
evidence which, after the exercise of due diligence, was
not within the applicant's knowledge or could not be
produced by him at the time when the decree was
passed, (ii) mistake or error apparent on the face of the
record, and (iii) for any other sufficient reason. It has
been held by the Judicial Committee that the words 'any
other sufficient reason' must mean 'a reason sufficient
on grounds, at least analogous to those specified in the
rule'. (See Chhajju Ram v. Neki.) This conclusion was
reiterated by the Judicial Committee in Bisheshwar
Pratap Sahi v. Parath Nath and was adopted by our
Federal Court in Hari Sankar Pal v. Anath Nath Mitter, FC
at pp. 110-11. The learned counsel appearing in support
of this appeal recognises the aforesaid limitations and
submits that his case comes within the ground of
'mistake or error apparent on the face of the record' or
some ground analogous thereto."
29. In Thungabhadra Industries Ltd. v. Govt. of A.P.,
another three-Judge Bench reiterated that the power of
review is not analogous to the appellate power and
observed:
"11. ... A review is by no means an appeal in disguise
whereby an erroneous decision is reheard and corrected,
but lies only for patent error. We do not consider that
this furnishes a suitable occasion for dealing with this
difference exhaustively or in any great detail, but it
would suffice for us to say that where without any
elaborate argument one could point to the error and say
here is a substantial point of law which stares one in the
face, and there could reasonably be no two opinions,
entertained about it, a clear case of error apparent on
the face of the record would be made out."
30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma,
this Court answered in affirmative the question whether
the High Court can review an order passed under Article
226 of the Constitution and proceeded to observe:
"3. ... But, there are definitive limits to the exercise of
the power of 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."
32. In Parsion Devi v. Sumitri Devi, the Court observed:
"9. ... An error which is not self-evident and has to be
detected by a process of reasoning, can hardly be said to
be an error apparent on the face of the record justifying
the court to exercise its power of review under Order 47
Rule 1 CPC ... A review petition, it must be remembered
has a limited purpose and cannot be allowed to be 'an
appeal in disguise'."
33. In Lily Thomas v. Union of India, R.P. Sethi, J., who
concurred with S. Saghir Ahmad, J., summarised the scope
of the power of review in the following words:
"56. ... Such powers can be exercised within the limits of
the statute dealing with the exercise of power. The
review cannot be treated like an appeal in disguise. The
mere possibility of two views on the subject is not a
ground for review. Once a review petition is dismissed
no further petition of review can be entertained. The
rule of law of following the practice of the binding
nature of the larger Benches and not taking different
views by the Benches of coordinated jurisdiction of
equal strength has to be followed and practised."
34. In Haridas Das v. Usha Rani Banik, the Court observed:
"13. ... The parameters are prescribed in Order 47 CPC
and for the purposes of this lis, permit the defendant to
press for a rehearing 'on account of some mistake or
error apparent on the face of the records or for any
other sufficient reason'. The former part of the rule
deals with a situation attributable to the applicant, and
the latter to a jural action which is manifestly incorrect
or on which two conclusions are not possible. Neither of
them postulate a rehearing of the dispute because a
party had not highlighted all the aspects of the case or
could perhaps have argued them more forcefully and/or
cited binding precedents to the court and thereby
enjoyed a favourable verdict."
35. In State of W.B. v. Kamal Sengupta, the Court
considered the question whether a Tribunal established
under the Administrative Tribunals Act, 1985 can review its
decision, referred to Section 22(3) of that Act, some of the
judicial precedents and observed:
"21. At this stage it is apposite to observe that where a
review is sought on the ground of discovery of new
matter or evidence, such matter or evidence must be
relevant and must be of such a character that if the
same had been produced, it might have altered the
judgment. In other words, mere discovery of new or
important matter or evidence is not sufficient ground for
review ex debito justitiae. Not only this, the party
seeking review has also to show that such additional
matter or evidence was not within its knowledge and
even after the exercise of due diligence, the same could
not be produced before the court earlier.
22. The term 'mistake or error apparent' by its very
connotation signifies an error which is evident per se
from the record of the case and does not require
detailed examination, scrutiny and elucidation either of
the facts or the legal position. If an error is not
selfevident and detection thereof requires long debate
and process of reasoning, it cannot be treated as an
error apparent on the face of the record for the purpose
of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To
put it differently an order or decision or judgment
cannot be corrected merely because it is erroneous in
law or on the ground that a different view could have
been taken by the court/tribunal on a point of fact or
law. In any case, while exercising the power of review,
the court/tribunal concerned cannot sit in appeal over
its judgment/decision."
15. It has consistently been held by the Hon'ble Apex Court as
would be evident from the aforesaid judgments that a review
petition cannot be allowed to be "an appeal in disguise". The
power of review may be exercised on discovery of some new and
important matter or evidence which, even after exercise of due
diligence, was not within the knowledge of the person seeking
review or could not be produced by him at the time when the
original order was made. It can only be exercised where some
mistake or error apparent on the face of the record is found or on
any analogous ground.
16. Now, the question falls for consideration before this Court
as to whether any error or mistake is apparent on the face of the
order dated 18.11.2019 passed in W.P.(C) No. 1091 of 2014 or
some new and important facts have come to the knowledge of
the review petitioners.
17. Thrust of the argument of learned counsel for the review
petitioners is that the letter dated 26.11.2011 issued by the then
Deputy Commissioner, Ranchi cannot be taken as an undertaking
of the review petitioners that they will rehabilitate the members
of the respondent no. 1. They are not bound to rehabilitate the
members of the respondent no. 1 in absence of any law/scheme.
18. In W.P.(C) No. 1091 of 2014, the claim of the respondent
no. 1 was that its members were carrying on their business from
the life time of their forefathers in Kutchery Market premises after
getting license from 'Krishi Utpadan Bazaar Samiti', however after
expiry of their licenses, they were evicted from the said premises
on 16.04.2011.
19. The respondent no. 1 had filed W.P.(PIL) No. 2420 of
2011 which was disposed of by learned Division Bench of this
Court vide order dated 06.07.2011 directing it to approach the
State Government for redressal of its grievance which in turn was
directed to act strictly in accordance with law, uninfluenced by
other things. Subsequently, the Deputy Commissioner, Ranchi had
written letter dated 26.11.2011 to the Chief Executive Officer,
Ranchi Municipal Corporation, Ranchi stating that 152
shopkeepers displaced from Kutchery market premises might be
rehabilitated in the proposed market complex at 'Jaipal Singh
Stadium' or at 'Doranda Bazaar''.
20. When the members of the respondent no. 1 were not
rehabilitated, the writ petition being W.P.(C) No. 1091 of 2014
was filed by the respondent no. 1 before this Court wherein the
respondent-RMC opposed the claim of the respondent no. 1
stating inter alia that the market complex constructed at Jaipal
Singh Stadium was meant for rehabilitation of the street vendors
and as such the members of the respondent no. 1 could not have
been accommodated at the said place since they were not in the
category of street vendors.
21. This Court while passing the order dated 18.11.2019 in
the said writ petition did not only take into consideration the letter
dated 26.11.2011 issued by the then Deputy Commissioner,
Ranchi but also observed that the members of the respondent
no. 1 could not have been discriminated as against the street
vendors who were rehabilitated in the market complex at Jaipal
Singh stadium. This Court looking to the facts and circumstances
of the said case directed the petitioner no. 2- Deputy
Commissioner, Ranchi and the respondent no. 2- RMC, Ranchi to
consider the matter of rehabilitation of the members of the
respondent no. 1 as a special one. Thus, the said order passed by
this court is explicitly clear. The review petitioners have failed to
point out any error or mistake apparent on the face of the order
dated 18.11.2019 passed in W.P.(C) No. 1091 of 2014.
22. Further argument of the learned counsel for the review
petitioners is that after passing of the order dated 18.11.2019 in
W.P.(C) No. 1091 of 2014, the shops constructed in the vegetable
market at 'Naga Baba Khatal' were allotted to fruit/vegetable
vendors through lottery and since the members of the respondent
no. 1 did not participate in the lottery process, the said shops
were not allotted to them.
23. I am of the considered view that since there was specific
order of this Court to rehabilitate the members of the respondent
no. 1 as a special case, the review petitioners were required to
inform the members of the respondents no. 1 that if they applied
for allotment of shops in the vegetable market at 'Naga Baba
Khatal,' they would be accommodated there pursuant to the
aforesaid order of this Court passed in W.P.(C) No. 1091 of 2014.
24. The review petitioners have also raised questions on the
merit of the order dated 18.11.2019 passed in W.P.(C) No. 1091
of 2014. I am of the view that those contentions cannot be
entertained under review jurisdiction considering the settled
position of law that a review petition cannot be allowed to be "an
appeal in disguise".
25. In view of the aforesaid discussion, I do not find any
ground to review the order dated 18.11.2019 passed in W.P.(C)
No. 1091 of 2014. The present Civil Review is accordingly
dismissed.
(Rajesh Shankar, J.)
Ritesh/AFR
