Uttarakhand High Court
WPMS/1835/2012 on 7 September, 2021
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MCC No. 16821 of 2021
In
WPMS No. 1835 of 2012
Hon'ble Sharad Kumar Sharma, J.
Mr. B.D. Kandpal, Advocate for the petitioner.
Mr. M.S. Bisht, Brief Holder for the State of
Uttarakhand.
The Review Application has been preferred by
the petitioner, herein, seeking review of the judgment
of 23rd November, 2020, which was decided on a
premise that in a proceeding, which was held under
Section 229-B to be read with Section 209 of the U.P.
Z.A. & L.R. Act, whether at an appellate stage, the
State and the Gaon Sabha could be left out to be made
as a party, who were though admittedly initially were
the party in the proceeding before the Assistant
Collector ? Whether, the impleadment of parties at
an appellate stage, could be left at the choice of the
litigant to a proceeding ? Whether in the proceedings,
which are held under the special Statute covered by
the 9th Schedule of the Constitution of India, where it
is specifically mandated, that in all proceedings under
Section 229-B of the Act, Gaon Sabha and the State
are the necessary parties. On that premise itself,
whether the suit would fail or not.
In order to qualify his argument, and the
findings, which had been recorded in the judgment,
which has been rendered by this Court on 23rd
November, 2020, the changed counsel of the Review
Applicant, though there happens to be a specific bar,
which has been created by the judgment of the
Hon'ble Apex Court as reported in AIR 1997 SC
1005, Tamil Nadu Electricity Board and another
Vs. N. Raju Reddiar and another, but still, this
Court proceeded to hear, the learned counsel for the
Review Applicant, despite of the aforesaid limitation
imposed by the Hon'ble Apex Court, of filing of
review by a Counsel, other than the Counsel who
argued the Writ.
The argument extended by the review
applicant is from the perspective that the necessity to
implead the State and the Gaon Sabha; at an appellate
stage, could have had arisen, only when the Gaon
Sabha or the State were affected party by the
judgment, which was made as a subject matter of
challenge in an Appeal and since there was no
grievance addressed against them, their impleadment
at an appellate stage would have no bearing, and
hence, the proceedings cannot be turned down on that
premise itself.
This argument is being supported by the
learned Counsel for the Review Applicant in the light
of the provisions contained under Order 41 Rule 20
(2) of the C.P.C.. As far as this argument is
concerned, it can be answered in two ways :-
1. That the implications of Order 41 Rule 20, was
already considered by this Court, in the
judgment of 23rd November, 2020. If at all,
there was a wrongful interpretation given by
this Court, as per the wisdom and the
expectation of the petitioner and his Counsel, it
would have been always a subject matter of
challenge before the superior Court and not by
way of a subject matter of review.
2. The second contention, that Gaon Sabha and
the State might not have been the necessary
parties at an appellate stage is not accepted by
this Court for the reason being that :-
i. They were parties to the proceedings
before the Assistant Collector.
ii. They were chosen by the petitioner to be
deleted and not made as a party in the
Appeal by the petitioner.
iii. Their impleadment becomes mandatory
because once a special statute
contemplates that the State as to be
made a necessary party in the
proceedings under Section 229-B, the
choice of party at an appellate stage,
cannot be left at the wisdom and whims
of the appellant, who puts the challenge
to the judgment of the Assistant
Collector, in order to suit his purpose.
Hence, this argument is not accepted.
Lastly, the learned counsel for the Review
Applicant has drawn attention of this Court to the
judgment as reported in AIR 1959 Punjab 277,
Notified Area Committee Buria Vs. Gobind Ram
Lachhman Dass and others, and particularly, he
has made reference to the said judgment in the light
of the implications of Order 41 Rule 20 of the CPC,
where the Hon'ble Full Bench of P& H High Court,
which was ceased with the situation, where a bona
fide mistake of appellant of not impleading a
necessary party, was an aspect under consideration,
where impleadment of a particular party was not
made because of an inadvertence. The term used
"bona fide" in the said judgment and its intention,
that has to be liberally construed by the Court, cannot
be identically drawn to be attracted, in the present
case for the reason being, that the impleadment of the
necessary party, which has been mandatorily required
to be impleaded under the special statute, that
realization of its non impleadment itself has come at a
much later stage almost, after 24 years of pendency of
the Appeal, which itself denounces the concept and
the philosophy of bona fide, which has been dealt by
the Full Bench of P & H High Court.
Hence, with all due reverence at my command,
I am not agreeing with the proposition as argued and
as pressed to be made applicable in the changed
circumstances of the present case, as it has been laid
down by the Full Bench of P & H High Court.
Apart from it, the review cannot be resorted to
as a recourse to re-agitate the Writ Petition with a
changed counsel entailing fresh hearing. There
cannot be a de novo hearing. If at all, according to the
perception of the petitioner, there was a perversity in
the judgment, it could always been made as a subject
matter of scrutiny by the superior Courts and not by
virtue of review under Order 47 Rule 1 of the CPC.
Hence, I do not find any merits in the Review
Application. Hence, the Review Application is
accordingly rejected.
(Sharad Kumar Sharma, J.)
Dated 07.09.2021
Shiv
