Himachal Pradesh High Court
Chet Ram & Another ...Review vs State Of Himachal Pradesh & Others on 17 July, 2018
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Review No.7 of 2018 Reserved on : 13.6.2018 Date of Decision : July 17, 2018 .
Chet Ram & another ...Review Petitioner.
IN CWP No.2135/2016 Titled as:
Gram Panchayat Thunag ...Writ Petitioner Versus State of Himachal Pradesh & others ...Respondents. Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Sandeep Sharma, Judge.Whether approved for reporting? Yes. 1
For the Petitioner: Mr. Shrawan Dogra, Senior Advocate with Ms Nishi Goel, Advocate.
For the Respondents: Mr. Sanjeev Kuthiala, Advocate, for respondent-writ petitioner.
Mr. Ashok Sharma, Advocate General, with Mr. Ajay Vaidya, Sr. Additional Advocate General, Mr. Ranjan Sharma, & Mr. Nand Lal Thakur, Additional Advocate Generals, for the respondents-State.
Sanjay Karol, ACJ Shri Chet Ram, the present review petitioner, who was not a party to the original writ petition, seeks review of the judgment dated 4.1.2018, passed in CWP Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 18/07/2018 23:02:03 :::HCHP
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No.2135 of 2016, titled as Gram Panchayat, Thunag vs. State of H.P. & others, whereby Notifications, issued by the Chief Secretary to the Government of Himachal Pradesh, .
dated 27.06.2016 (Annexure P-9), creating a new Sub-
Division (Civil), known as "Janjehli" by re-organizing certain areas of Tehsil Thunag and Tehsil Bali Chowki, and dated 21.4.2016 (Annexure P-10), creating a Sub-Tehsil at Chhatri, stand quashed.
2. Facts, leading to filing of the present Review Petition, briefly, are stated as under.
3. Gram Panchayat, Thunag, filed a writ petition, being CWP No.1272 of 2016, titled as Gram Panchayat, Thunag & another vs. State of Himachal Pradesh & others (referred to as the first petition). In the said petition, review petitioner filed an application under Order 1 Rule 10 of the Code of Civil Procedure (CMP No.4977 of 216), which was allowed and he was ordered to be impleaded as a party.
4. While disposing of such petition on 12.7.2016, the Court, holding the petition to be premature, took note of the averments made by the State to the effect that "it is submitted that while opening new Govt. Offices at any place all aspects are being kept in mind and no unilateral ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...3...
decision or proposals are being taken. However, it is submitted that no notification has been issued by the Govt. about the functioning of Sub Divisional Office (C) at .
Janjehli, so far" and "In this context it is submitted that no notification has been passed by the Himachal Pradesh Govt. so far regarding opening of new SDM cum SDO (C) office at Thunag or Janjehli. So the question of unilateral decision to open this office does not arise at all".
5. Subsequently, on 10.8.2016, the very same writ petitioner filed another petition, being CWP No.2135 of 2016, titled as Gram Panchayat, Thunag vs. State of Himachal Pradesh & others (referred to as the second petition), assailing the notifications dated 27.6.2016, creating a new Sub-Division (Civil) at Janjehli and dated 21.4.2016, creating a Sub-Tehsil at Chhatri, which petition was allowed vide judgment dated 4.1.2018, subject matter of the present review petition.
6. Before we record and deal with the respective submissions made by the learned counsel, we deem it appropriate to notice the averments made by the parties, in their respective pleadings, so filed in the instant review petition.
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7. The review petitioner sets out himself to be an agriculturist and a person actively remaining in public domain, holding several public offices. In paragraph-12 of .
the review petition, it stands averred that decision of the Government in establishing the office of SDO (C) at Janjehli was based on valid consideration, also with resultant effect thereof, being (a) central geographical location; (b) existence of 31 Government offices; (c) suitability for the purposes of civil administration; (d) smooth functioning of the office for about one and a half year; (e) registration of more than 400 vehicles/issuance of equal number of driving licences; (f) conduct of Assembly Elections of Seraj Constituency; (g) despite Seraj Constituency being a hilly and snowbound area, connectivity to Janjehli remained unobstructed, save and except for 3-4 hours during heavy snowfall; (h) better bus connectively; (i) topographical advantage of future expansion; (j) larger number of commercial establishments; (k) holding of District level 'Kuthah Fair' and close proximity of famous 'Shikari Devi Mata Temple', drawing tourists and devotees in huge number. Also, in paragraph-13 of the review petition, it stands averred that non-impleadment of the review petitioner as a party, in the light of order passed in the ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...5...
first petition itself, is an error apparent on the face of record.
8. The writ petitioner, with vehemence, .
controverts such averments by inter alia averring that there is absence of any mistake or error apparent on the face of record or reasons sufficient enough to recall the order. Also the review petitioner, who is affiliated to a particular political party, has filed the instant petition, by mis-stating facts. Writ petitioner, who is dominus litis, chose not to array the review petitioner as a party, since no relief was claimed against him, nor is he an affected party. Also, averments made in paragraph-12 of the review petition, are factually incorrect inasmuch as (a) Thunag, unlike Janjehli, is geographically and topographically, being centrally located, is best suited for establishment of office of SDO (C); (b) in Thunag, there are more than 171 commercial establishments; (c) there are more than 110 Government/public offices; (d) 'Shikari Mata Temple' is situate in Gram Panchayat Pakhiyar which does not form the area comprising of Gram Panchayat, Janjehli; (e) Buses to Janjehli emanate from Thunag and only pass through Janjehli; (f) Thunag is not exposed to the vagaries of the weather; (g) Decision to establish the office ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...6...
of SDO(C) at Janjehli was based solely on political considerations; (h) at the time of disposal of first petition, officers representing the State failed to apprise the Court .
of subsequent developments.
9. On 27.6.2016, the Chief Secretary to the Government of Himachal Pradesh, issued notification, carving out a new Sub-Division (Civil), known as Janjehli, by re-organizing certain areas of Tehsil Thunag and Tehsil Bali Chowki of District Mandi, Himachal Pradesh. Vide another notification dated 21.4.2016, issued by the State, one Sub-Tehsil, known as Chhatri was created. Obviously, said fact was not brought to the notice of the Court, at the time of disposal of first petition.
10. Equally opposing the review petition, State has filed its response, stating that (a) with the passing of the judgment in the second petition, State withdrew the quashed notifications, for the reason that there were agitations, dharnas and demonstrations by the general public; (b) on 11.2.2018, Government issued two notifications creating Sub-Tehsil at Chhatri and Sub-
Division Office (Civil) with Headquarters at Thunag with the SDO (C), sitting at Janjehli for 4 days in a month; (c) further, "....... after discussion and consensus with the ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...7...
representatives of the agitating public to resolve this issue and maintain balance between the demands of public of Thunag and Janjehli areas, the Government vide .
notification No.Per(A-IV)-B (15)-3/1979(2007)-II dated 20.3.2018, has decided that the Sub Divisional Officer (Civil) Thunag shall sit for 12 days instead of 4 days with its camp office at Janjehli in a month. ........."; and (d) ".....
this decision has been taken after discussion and consensus with the representatives of the agitating public of Janjehli area in a meeting held with Hon'ble Chief Minister to resolve this issue and maintain balance between the demands of public of Thunag and Janjehli areas in which the present applicant/proposed respondent has also participated in the deliberations......".
11. Evidently, averments made by the writ petitioner and the State stand un-rebutted by the review petitioner.
12. It is a matter of record that as on date, office of new Sub-Tehsil Chhatri, stands created and notified and that the headquarters of the office of the Sub-Divisional Officer (Civil) are based at Thunag, with the said officer visiting and officiating as such from Janjehli, 12 days in a month.
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13. We now take note of the submissions made by Mr. Shrawan Dogra, learned Senior Counsel, appearing for the review petitioner. He submits that (a) having noticed .
that the review petitioner stood impleaded as a party in the first petition, the Court itself ought to have impleaded him as a party in the second petition. Only whereafter, the case should have been decided. This itself is an error apparent on the face of record, as the review petitioner was deprived of placing certain documents in opposition to the petition and also putting across his perspective to the entire controversy in issue; (b) Since interest of the review petitioner stands adversely affected, his locus is unassailable, for he is on a better footing than that of a stranger, who also can exercise such right; (c) findings returned by the Court in paragraphs 9 and 11 are as a result of misconception of facts and law. Also, same are based on incorrect and wrong appreciation of material on record.
14. Mr. Sanjeev Kuthiala, learned counsel, appearing for the writ petitioner, argues that (a) review petitioner, who is a stranger to the proceedings, in view of provisions of Order 1 Rules 3, 9 and 10 of the Code of Civil Procedure, was not required to be impleaded as a party, ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...9...
for he is neither a necessary nor a proper party; (b) the writ petitioner being dominus litis, entitled to array only necessary and interested parties, correctly chose not to .
implead him as a party; (c) in any event, review petitioner, claiming himself to be a public spirited person, being aware of the pendency of the second petition, chose not to exercise his right by taking steps for joining as a party, just as he had so done in the first petition; (d) there is neither any illegality nor any infirmity in the impugned judgment, for the same is based on proper and complete appreciation of material adduced on record by the parties.
Otherwise also, there is no error apparent on the face of record; and (e) the averments made in the review petition are factually incorrect and that review petitioner is guilty of suppressio veri suggestio falsi and as such review petition deserves to be dismissed.
15. On similar lines, learned Advocate General, has made his submissions opposing the review petition. Also, pointing out the existing arrangement of the Sub-
Divisional Officer (Civil) sitting both at Thunag and Janjehli on periodical basis.
16. Learned counsel have cited certain decisions in support of their case.
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17. It is a settled proposition of law that ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for .
what it actually decides, and not what logically follows from it. The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact-situation of the decision on which reliance is placed. {Dr. Subramanian Swamy v. State of Tamil Nadu and others, (2014) 5 SCC 75 (Para-47)}
18. While appreciating several decisions cited at the Bar or as we have ourselves researched, we have kept the same in mind.
19. The Apex Court in Vidur Impex and Traders Private Limited & others v. Tosh Apartments Private Limited & others, (2012) 8 SCC 384, has laid down the principles, to be born in mind, for determining who is a necessary or a property party to the lis. The said principles are culled out as under.
a. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
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b. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court.
c. A proper party is a person whose presence .
would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
d. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
e. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
f. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.
20. The principles, on which "any person"
"aggrieved from a decree or order", can seek review thereof, is now well settled. It has to be on the basis of statutory right under Order 47 Rule 1 and that being discovery of a new and important matter or evidence, which after exercise of due diligence was not within the knowledge or could be produced at the time of passing of ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...12...
the order, on account of (a) some mistake or error apparent on the face of record; or (b) for any other sufficient reason.
.
21. These principles can be culled out as under:
(A) Source
(i) The Court of review has only limited
jurisdiction circumscribed by the definitive limits fixed by the language used in Order 47 Rule 1 of the Code of Civil Procedure.
{Moran Mar Basselios Catholicos &
another v. Most Rev. Mar Poulose
Athanasius & others, AIR 1954 SC 526 r (Para-32) (Three-Judge Bench}.
(ii) Review proceedings are not by way of an appeal. {Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.), (1995) 1 SCC 170 (Para-8) (Two-Judge Bench)}.
(iii) Review is a creation of statute. { Patel Narshi Thakershi & others v. Shri Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844 (Three-Judge Bench); and Lily Thomas v. Union of India, (2000) 6 SCC 224 (Para-52) (Two-Judge Bench) (Para-
52)}.
(B) Grounds
(iv) Review is permissible only when
circumstances of "substantial and
compelling character" make it necessary to do so. {Sajjan Singh & others v. State ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...13...
of Rajasthan & others, AIR 1965 SC 845 (Para-21) (Five-Judge Bench); Lily Thomas (supra); {M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) .
2 SCC 167 (Para-8) (Three-Judge Bench)}.
(v) Review is permissible only where there is glaring omission and patent mistake and like grave error has crept in by judicial fallibility. {Northern India Caterers (supra) (Para-8)}.
(vi) Error apparent on the face of record has to be decided on the facts of each case, for an erroneous decision, by itself, does not warrant review. {Akhilesh Yadav v.
Vishwanath Chaturvedi & others, (2013) 2 SCC 1 (Para-1) (Two-Judge Bench); and Dr. Subramanian Swamy v. State of Tamil Nadu and others, (2014) 5 SCC 75 (Para-
52) (Two-Judge Bench)}.
(vii) Error apparent is not which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. {(Lily Thomas (supra) (Para-58)}.
(C) Error/Mistake
(viii) In Hari Vishnu Kamath v. Ahmad Ishaque & others, AIR 1955 SC 233 (Seven-Judge ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...14...
Bench), the Court expounded as to what can be an "error of law", "apparent on the face of record", in the following terms (Para-23):
.
"that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self - evident might not be so considered by another. The fact is that what is an error apparent on the face of the r record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case." (Emphasis supplied)
(ix) "Mistake apparent form the record" is different from "an error apparent on the face of record". {(ITO v. Ashok Textiles Ltd., AIR 1961 SC 699) (Three-Judge Bench)}.
(x) The 'mistake apparent on the face of
record' must be obvious and patent. It
must not be such, which can be
established by long-drawn process of
reasoning. {T.S. Balaram v. Volkart Bros, (1971) 2 SCC 526 (Para-5) (Two-Judge Bench)}. Such mistake should be "quite obvious" {Commissioner of Central ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...15...
Excise, Balapur, Mumbai v. RDC Concrete (India) Private Limited, (2011) 12 SCC 166 (Para-21) (Two-Judge Bench)}.
(xi) There is a difference between a mere .
erroneous decision and a decision which could be characterized as vitiated by 'error apparent'. {Sasi (Dead) through Legal Representatives v. Aravindakshan Nair & others, (2017) 4 SCC 692 (Two-
Judge Bench)}.
(D) Sufficient Reason
r to
(xii) "Any other sufficient reason" must mean a reason sufficient on grounds, at least analogous to those specified in the Rule.
{Moran Mar Basselios Catholicos (supra) (Para-32)}.
(xiii) Non-existence of a fact, leading to passing of an order, resulting into miscarriage of justice, is a reason sufficient enough for reviewing the same. {(Lily Thomas (supra)}.
(xiv) "Sufficient reason" would include misconception of fact or law by a Court or even an advocate. {Board of Control for Cricket in India & another v. Netaji Cricket Club & others, (2005) 4 SCC 741 (Para-90) (Two-Judge Bench)}.
(E) Power
(xv) While rectifying a mistake, an erroneous view of law or a debatable point cannot be ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...16...
decided. So also, incorrect application of law can also not be corrected. {ITO v. Ashok Textiles Ltd., AIR 1961 SC 699) (Three-Judge Bench}.
.
(xvi) Discovery of new material to be considered with great caution and order or review should not be granted very lightly. {Dr. Somayajulu, Secretary v. Attili Appala Swamy and others, 2015) 2 SCC
390) (Para-20) (Three-Judge Bench)}. In a review petition, Court is not to reappreciate the evidence and reach at a different conclusion, even if it is so possible. {Kerala SEB v. Hitech Electrothermics & Hydropower Ltd., (2005) 6 SCC 651 (Para-10) (Two-Judge Bench)}.
(xvii) Review is not rehearing of original matter.
{Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501 (Para-11) (Single-Judge)(Chamber Judge)}.
22. We notice that the aforesaid principles also stand crystallized by the Apex court in Kamlesh Verma v.
Mayawati & others, (2013) 8 SCC 320, as under:
"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1 When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...17...
diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
.
(iii) Any other sufficient reason.
The words any other sufficient reason has been interpreted in Chhajju Ram vs. Neki, 1922 AIR(PC) 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., 1955 1 SCR 520, to mean a reason sufficient on grounds at least analogous to those specified in the rule. The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., (2013) 8 SCC 337.
20.2 When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.::: Downloaded on - 18/07/2018 23:02:03 :::HCHP
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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the .
main matter had been negatived."
23. The aforesaid principles stand laid down, in the backdrop of different legislations.
24. However, we are of the considered view that in exercise of our power under Article 226 of the Constitution of India, nothing precludes us from exercising the power of review, which r inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it (Para-8).
{(Shivdeo Singh & others v. State of Punjab & others, AIR 1963 SC 1909 (Five-Judge Bench)}.
25. We may not be misunderstood to mean that the principles culled out (supra), are not required to be adhered to. Definitely, exercise of power, under Article 226 of the Constitution, must be within the principles so enunciated {Usha Bhakti v. State of Uttar Pradesh & others, (2014) 7 SCC 663 (Two-Judge Bench)}, but then, what is important and significant is as to whether the judgment, subject matter of review, inter alia, has resulted into miscarriage of justice or not.
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26. It is in this backdrop, we proceed to deal with the contentions raised by the learned counsel, clarifying that we have not gone into the question as to whether the .
provisions of Order 1 of the Code of Civil Procedure would be applicable or not. We also clarify that we are in agreement with the submission made by Mr. Shrawan Dogra, Senior Advocate, that even on the asking of a stranger, a Writ Court can exercise power of review, if the Court finds the error committed to be grave, palpable, resulting into miscarriage of justice.
27. Also, it is in this backdrop, we notice, that the Apex Court in Board of Control for Cricket in India & another v. Netaji Cricket Club & others, (2005) 4 SCC 741, was dealing with a case where conduct of the party weighed heavily, for the statement made by the counsel, having material bearing on the outcome of the case, was not brought to the notice of the Court, and the Court laid down the principles in Para-90 of the Report, as under:
"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 ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...20...
advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit"."
28. However, in an earlier decision, the Apex Court in M/s Thungabhadra Industries Ltd. v. The Government of .
Andhra Pradesh, AIR 1964 SC 1372, observed as under:
"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". 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."
29. The first issue, which arises for consideration, is as to whether the review petitioner was a necessary party before the Court or not. In our considered view, not so, for as we notice, from the record, that even in the first petition, he had simply filed an application for ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...21...
impleadment and the petition was disposed of, not on the basis of material placed or assistance rendered by him, but on the basis of stand taken by the State. We are of .
the considered view that simply because he stood impleaded as a party in the first writ petition, in the order 12.7.2016, disposing of such petition, that fact ipso facto would not confer any right of impleadment upon him as a party, for no personal right of the review petitioner stood affected or adjudicated. In any event, it is not the case of the review petitioner that the State had colluded with the writ petitioner or that it had not adequately protected the interests of the residents of the area. Also, no personal right of the review petitioner stands affected.
30. As we notice from the material placed on record by the writ petitioner as also the review petitioner, it cannot be said the finding returned by this Court, by not impleading the review petitioner as a party, gives rise to a patent error, which in turn has caused miscarriage of justice or affected anyone of his rights. Review petitioner claims himself to be a public spirited person, for he has remained in public life. It is not that the second writ petition came to be filed or decided overnight. This petition was filed on 10.8.2016 and decided only on ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...22...
4.1.2018. He does not claim that he was not aware of pendency of the same. Also, it is not his pleaded case that people of the area, including him, had no means of .
knowing about such fact. The writ petitioner had been repeatedly pursuing the matter, resisting setting up of the office of SDO(C) at Janjehli, desiring the same to be set up at Thunag, which fact, the review petitioner was totally aware of, yet he chose not to take steps of getting himself impleaded as a party just as he had chosen to do so in the first petition.
31. As a Court of original jurisdiction (Writ Court), we called for the record of the first petition and noticed that the review petitioner had simply filed a four-page application, seeking impleadment as a party. No pleadings or material, of any value, was placed on record by him. Such petition came to be disposed of on the basis of averments made by the State in its response, which fact we have already taken note of, by reproducing the judgment rendered in the first petition.
32. Under these circumstances, review petitioner, who perhaps was waiting in the wings, cannot be allowed to argue that he was a necessary or a proper party and ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...23...
that he ought to have been impleaded by the writ petitioner in the writ petition.
33. It is true that the power of review is statutory in .
nature. Equally true that it is based on the parameters prescribed under the procedural law. But then, in our considered view, we repeat, that there is an exception to this principle and that being the power of review exercised by the High Court in a writ jurisdiction, which cannot be subjected to procedural law, for what is required to be seen is as to whether justice is met or not and the order passed has resulted into miscarriage of justice or not, and that ex-facie there is error, which is apparent on the face of record.
34. State, which was represented by the learned Advocate General, had filed its response on 28.10.2016.
The Court, only after appreciating the entire material on record, returned its findings. Here, we may clarify that we are not impressed with the submissions made at the Bar.
Jurisprudentially, we may only observe that primary jurisdiction of this Court, in exercising power of review, cannot be subjected to procedural laws, for such power is inherent and emanates from the plenary jurisdiction under the Constitution. The principle stands clearly expounded ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...24...
by the Apex Court in {Shivdeo Singh (supra) and Lily Thomas (supra) (Para-52 - 'law has to bend before justice';
and State of Rajasthan & another v. Surendra Mohnot & .
others, (2014) 14 SCC 77 (Two-Judge Bench)}, which unambiguously are clear on this aspect and it is in this backdrop that we have arrived at the conclusion that it is not open for the review petitioner to urge that he was a necessary or proper party to the proceedings and, as such, it cannot be said that the decision rendered in his absence is illegal, erroneous, requiring reconsideration.
35. We are of the considered view that findings returned in Paras 9 & 11, rendered in the second petition, are not in abstract. They are based on material placed on record by the parties, i.e. the writ petitioner and the State.
The State admitted (in para-3 of the response) that "various representations were received to open the new Sub Division at Thunag and not at Janjehli" and there were "various office building situated at Thunag". Also, people had been representing since the year 2015.
36. It is in this backdrop, we are not inclined to agree with the submissions made by the learned Senior Counsel, for such findings were not returned on the basis of mis-conception of fact or law by the Court, or for the ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...25...
reasons sufficient enough, entitling the review petitioner to seek review of the judgment in question. We have carefully gone through the pleadings of the second .
petition and our findings are purely based thereupon, which stands fully appreciated.
37. We have fully considered and appreciated the material placed on record in the present petition, and only thereafter have arrived at our conclusions.
38. Contention that to choose situs for setting up office of the SDO (C) is the sole prerogative of the State is not disputed, but then we have already held, if such action does not meet the test laid under Article 14 of the Constitution of India, Writ Court, unhesitatingly, on the asking of the writ petitioner, would quash the same. {Asha Ram & another v. State of H.P. & others, 2015 (Suppl.) Him L.R. 2354}
39. What is illegal, irrational and arbitrary is now well settled. Any decision affecting the public at large has to be based on sound principles of law. {Shayra Bano v.
Union of India, (2017) 9 SCC 1(Constitution Bench)}.
40. We may record the stand taken by the State, as re-affirmed by the learned advocate General, that in terms ::: Downloaded on - 18/07/2018 23:02:03 :::HCHP ...26...
of the existing arrangement, SDO(C) posted at Thunag shall, for 12 days, discharge his duties sitting at Janjehli.
41. Thus, in our considered view, there is neither .
any mistake nor error apparent on the face of record or sufficient reason so as to take in its sweep, a ground analogous to those specified in the statutory provisions.
There is no material error, manifest on the face of the order, undermining its soundness or resulting into miscarriage of justice. Review is not an appeal in disguise, entitling the party to be reheard, simply because the party wants a decision to be otherwise.
The review petition, being devoid of merit, is dismissed.
( Sanjay Karol ),
Acting Chief Justice
( Sandeep Sharma )
July 17, 2018(sd) Judge.
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