Juber vs The State Of Madhya Pradesh
2021 Latest Caselaw 4408 MP

        The High Court Of Madhya Pradesh

                               RP-612-2021
              (JUBER Vs THE STATE OF MADHYA PRADESH AND OTHERS)




Indore, Dated : 17-08-2021
      Heard through Video Conferencing.

      Shri R.B. Singh, learned counsel for the petitioner.

      Shri Vivek Dalal, learned AAG for the respondent/State.

With the consent, finally heard.

This review petition seeks review of the order dated 1 st July, 2021 passed by this Bench in W.P. no. 9833/2021.

Learned counsel for the petitioner advanced singular contention. He submits that plain reading of the detention order and the grounds of detention dated 29/04/2021 makes it clear that learned District Magistrate has not informed the petitioner that he has a right of representation at all, much less the right to prefer representation before the same Authority namely District Magistrate. Although this point is not categorically pleaded and argued, this point can be subject matter of the review, because imperfect pleading cannot be a ground in detention matter to non-suit a litigant. He placed reliance on Patna High Court judgment in Civil Review no. 153/2015 ( The High Court of Judicature at Patna Through the Registrar General Vs. Shri K.K. Chaubey S/o Shri Padma Narain Chaubey )

Shri Vivek Dalal, AAG opposes the prayer, but fairly admits that recently this Court, on similar ground, has entertained review petition.

This Court in RP No.488/2021 (Mohammad Irshad Qazi Vs. State of MP & Ors.) decided 30th July, 2021 has opined as under :

"02. The singular point raised by learned Senior counsel is that all the detention orders which were subject matter of challenge before the writ court makes it clear that the District Magistrate while passing the detention order did not inform the petitioners/detenues about their valuable right to prefer representation before the concerned authority namely District Magistrate. This Court allowed five petitions on this point by following the ratio decidendi of Full Bench in Kamal Khare Vs. State of MP [WP No.22290/2019].

The writ petitions of present writ petitioners were dismissed because the point relating to non mentioning of right to prefer representation before District Magistrate was neither pleaded nor argued.

03. Shri Mathur, learned Sr.Counsel placed reliance on AIR 1987 SC 1977 [Mohinuddin Vs. District Magistrate, Beed & Ors.] and urged that strict principles of pleadings are not applicable in habeus corpus petition. (2005) 4 SCC 741 [Board of Control for Cricket in India vs. Netaji Cricket Club, (2005) 4 SCC 741 is relied upon to contend that a misconception of facts or law by a court or even by an Advocate can be a ground to exercise review jurisdiction. The judgment of Kamal Khare (supra) was part of the list of judgments. Thus, imperfect pleadings or not advancing oral submissions should not be a reason to put the petitioners to comparatively disadvantageous position when similar detention orders were interfered with.

04. Shri Dalal, learned A.A.G opposed the review petitions on the basis of (2006) 4 SCC 78 [Haridas Das Vs. Usha Rani Banik (Smt.) & Ors.].

05. No other point is pressed by learned counsel for parties.

06. We have heard learned counsel for parties at length and perused the record.

07. The Apex Court in Mohinuddin (supra) opined as under:-

"4. It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permit- ted to raise grounds not taken in the petition at the hearing. The same rule cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under Art. 166 of the Constitution to pass orders on behalf of the Government in such matters: Niranjan Singh v. State of Madhya Pradesh, [1973] 1 SCR 691; Habibullah Khan v. State of West Bengal, [1974] 4 SCC 275; Jagdish Prasad v. State of Bihar & Anr., [1974] 4 SCC 455 and Mohd. Alam v. State of West Bengal, [1974] 4 SCC 463............"

(emphasis supplied)

08. In Board of Control for Cricket in India (supra), the Apex Court has held as under:-

"88. ............We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.

89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit............".

(emphasis supplied)

09. In view of judgment of Mohinuddin (supra), it is clear that the imperfect pleading is not a fatal flaw so far habeus corpus petition is concerned. When writ petitions of review petitioners were heard, they did not raise the singular point aforesaid during oral arguments. However, it is not in dispute that similar detention orders were interfered with because detaining authority did not mention that detenus' have a valuable right to prefer representations before the District Magistrate himself.

10. Thus, following the dicta laid down by Apex Court in Mohinuddin (supra) and Board of Control for Cricket in India (supra), we deem it proper to review and recall the orders passed in WP No.9561/2021, 9529/2021, 9564/2021 & 9566/2021 and restore the writ petitions for hearing to its original number. Ordered accordingly.

11. The registry shall list the writ petitions before appropriate bench in the next week.

12. Review petitions are allowed."

The point involved in the instant case is same. Accordingly, the order of this Court dated 01st July, 2021 is recalled and W.P. no. 9833/2021 is restored to its original number.

List the said writ petition tomorrow.

Present review petition is allowed.

C c as per rules.

                  (SUJOY PAUL )                               ( ANIL VERMA)
                    JUDGE                                         JUDGE
Digitally signed by AMOL N
MAHANAG
Date: 2021.08.17 14:11:59 +05'30'