Dr. Rajendra Vaishnav vs Jodhpur Development Autho., Jod. ...
2021 Latest Caselaw 12703 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Review Petition (Writ) No. 169/2019

Bhagwan Dhankani s/o Shri Kallu Mal Dhankani, aged about 45 years, r/o 11th 'C' Road, Jodhpur.

----Petitioners Versus

1. Jodhpur Development Authority, Jodhpur.

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

3. District Consumer Disputes Redressal Forum, Jodhpur.

4. The Divisional Commissioner, Jodhpur.

----Respondents Connected With D.B. Review Petition (Writ) No. 105/2016 Kushi Ram s/o Shri Chandi Ram, aged about 65 years, r/o Sector

-7, Basni, Jodhpur.

----Petitioner Versus

1. Jodhpur Development Authority, Jodhpur.

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

3. District Consumer Disputes Redressal Forum, Jodhpur.

4. The Divisional Commissioner, Jodhpur.

----Respondent D.B. Review Petition (Writ) No. 205/2017 Smt. Sadhana Wife Of Shri Ramesh Kachhwaha, Resident Of Kachhwaha Bhawan, 6, Mohan Vilas, Jalam Singh Ka Hatha, Paota "B" Road, Jodhpur.

----Petitioner Versus

1. Jodhpur Development Authority, Jodhpur.

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

(2 of 7) [WRW-169/2019]

3. District Consumer Disputes Redressal Forum, Jodhpur

4. The Divisional Commissioner, Jodhpur.

----Respondents D.B. Review Petition (Writ) No. 206/2017 Smt. Indra Mathur Wife Of Shri Vijay Chandra Mathur, Resident Of 247-A, Jwala Vihar, Chopasni Road, Jodhpur.

----Petitioner Versus

1. Jodhpur Development Authority, Jodhpur.

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

3. District Consumer Disputes Redressal Forum, Jodhpur.

4. The Divisional Commissioner, Jodhpur.

----Respondents D.B. Review Petition (Writ) No. 60/2018 Vinod Kumar Of Shri Gurumukh Das, Resident Of 11Th C Road, Sardarpura, Jodhpur

----Petitioner Versus

1. Jodhpur Development Authority, Jodhpur

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

3. District Consumer Disputes Redressal Forum, Jodhpur

4. The Divisional Commissioner, Jodhpur

----Respondents D.B. Review Petition (Writ) No. 62/2018 Smt. Pushpa Rajpurohit Wife Of Shri Vikram Singh, Resident Of G-125, Shastri Nagar, Jodhpur.

----Petitioner Versus

1. Jodhpur Development Authority, Jodhpur.

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

3. District Consumer Disputes Redressal Forum, Jodhpur.

4. The Divisional Commissioner, Jodhpur.

                                                              ----Respondents


                                         (3 of 7)                   [WRW-169/2019]

D.B. Review Petition (Writ) No. 63/2018 Dr. Rajendra Vaishnav Son Of Shri Bheru Das, Resident Of 1St "B" Road, Sardarpura, Jodhpur.

----Petitioner Versus

1. Jodhpur Development Authority, Jodhpur.

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

3. District Consumer Disputes Redressal Forum, Jodhpur.

4. The Divisional Commissioner, Jodhpur.

----Respondents

D.B. Review Petition (Writ) No. 191/2019 Girish Sabarwal s/o Shri Joginder Nath, aged about 52 years r/o Sudesh Bhawan, 1st C Road, Jodhpur.

----Petitioner Versus

1. Jodhpur Development Authority, Jodhpur.

2. State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

3. District Consumer Disputes Redressal Forum, Jodhpur.

4. The Divisional Commissioner, Jodhpur.

----Respondents

For Petitioner(s) : Mr. Himanshu Maheshwari.

Mr. Dinesh Kumar Sharma.

For Respondent(s) :

HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE ARUN BHANSALI Order

(PER HON'BLE ARUN BHANSALI, J.)

13/08/2021

These review petitions have been filed seeking review of the

judgment dated 7/12/2015 passed by the Division Bench of this

Court.

(4 of 7) [WRW-169/2019]

Office has pointed out several defects including the defect

that review petitions are barred by limitation. Ignoring the defects

pointed out by the office, learned counsel for the applicants was

heard.

Learned counsel for the applicants pointed out that the

Division Bench in the judgment dated 7/12/2015 dealt with the

issue of maintainability of writ petition by indicating that the

objection was not raised before the learned Single Judge and

relying on the judgment in Hindustan Petroleum Corporation

Limited vs. Super Highway Services : (2010) 3 SCC 321, the

submission was rejected.

It is submitted that in fact an objection was raised before the

learned Single Judge in reply to one of the writ petition and that

as the writ petitions were dismissed by the learned Single Judge,

the objection was not noted in the order impugned, which aspect

cannot prejudice the applicants' case. It is submitted that the said

aspect has resulted in an error apparent on the face of the record

and, therefore, the judgment impugned deserves to be reviewed.

It was further submitted that in view of the judgment in

Mehra Bal Chikitsalaya Evam Navjat Shishu I.C.U. vs. Manoj

Upadhaya & Ors. : Special Leave to Appeal (Civil) No. 4127/2021

decided on 12/3/2021 by Hon'ble Supreme Court also the writ

petitions were not maintainable.

We have considered the submissions made by learned

counsel for the applicants and have perused the material available

on record.

The judgment dated 7/12/2015 was passed by this Court in

intra court appeals filed by the Jodhpur Development Authority

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('JDA') aggrieved against the judgment dated 11/10/2011 passed

by the learned Single Judge, whereby, the writ petitions filed by

JDA seeking quashing of the judgment and order dated

26/10/2009 passed by the District Consumer Disputes Redressal

Forum, Jodhpur and order dated 6/1/2010 passed by the State

Consumer Disputes Redressal Commission, Jaipur were dismissed

and certain directions were issued.

The learned Single Judge had dismissed the writ petitions

filed by the JDA and had issued directions, which were noticed in

the judgment along with the fact that certain conditions of

allotment were also held as against the law, non est, non-

enforceable, against the public policy and ultra vires despite the

applicants herein being well aware of the conditions and acting on

the said conditions.

A look at the judgment passed by the learned Single Judge,

which runs into about 53 pages, reveals that the objection about

availability of alternative remedy was nowhere even noticed by the

learned Single Judge while dismissing the writ petitions filed by

the JDA.

The submission made with reference to objection having

been raised in the reply to a writ petition is of no consequence

inasmuch as merely raising objection in pleadings and not

arguing/pressing it before the Court cannot be termed as, raising

of the issue before the Court, as it is not expected of the Court to

deal with the issues, though raised in the pleadings but not

pressed during the course of arguments. The fact as to whether

the issue was raised/pressed can only be reflected through the

judgment and not otherwise.

(6 of 7) [WRW-169/2019]

The Hon'ble Supreme Court in Daman Singh & Ors. vs. State

of Punjab : (1985) 2 SCC 670 inter alia observed as under:

"The final submission of Shri Ramamurthi was that several other question were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc. but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not?"

(emphasis supplied)

In view of the above, the plea, sought to be raised in the

present review petitions based on the submission made in the

reply to the writ petition but no reference is found in the judgment

of the learned Single Judge, cannot be countenanced and,

therefore, qua the following observations made by this Court, it

cannot be said that there is an error apparent on the face of the

record:

"The submission made by learned counsel for the respondents that against the appellant order passed by the State Commission, the appellant had alternative remedy of revision before the National Commission and as such, the writ petitions filed by them itself were not maintainable, has apparently, no substance in so far as the present appeal is concerned, inasmuch as, no such objection was raised before the learned Single Judge.

The Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. v. Super Highway Services : (2010) 3 SCC 321 has held that unless the objection of alternative remedy is raised in the first instance, the exercise of writ jurisdiction cannot be questioned thereafter and therefore, the submission has no substance and the same is, therefore, rejected."

(7 of 7) [WRW-169/2019]

So far as the reliance placed on the order in the case of

Mehra Bal Chikitsalaya (supra) is concerned, the same is based on

the judgment in Cicily Kallarackal vs. Vehicle Factory : (2012) 8

SCC 524, wherein, the Hon'ble Supreme Court observed that the

orders of National Consumer Disputes Redressal Commission were

incapable of being questioned in the writ petition, as a statutory

appeal in terms of Section 27-A(1)(c) of the Consumer Protection

Act lies to the Supreme Court.

The present is a case, wherein, challenge on the ground of

lack of jurisdiction was laid to the orders passed by the District

Consumer Disputes Redressal Forum and that of State Consumer

Disputes Redressal Commission and not that of National

Commission and as such the said judgment even otherwise has no

application to the facts of the present case.

No other point was argued.

In view of the above discussion, it cannot be said that there

is an error apparent on the face of the record so as to review the

order dated 7/12/2015 passed by this Court.

Consequently, the review petitions are dismissed.

(ARUN BHANSALI),J (SANGEET LODHA),J

19 to 26/baweja/-

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