Calcutta High Court
Maruti Real Estate Pvt. Ltd. And Anr. vs Life Insurance Corporation Of India And ... on 16 October, 2007
Equivalent citations: 2008(1)CHN442, AIR 2008 (NOC) 345 (CAL.), 2008 AIHC (NOC) 562 (CAL.)
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT
Bhaskar Bhattacharya, ACJ.
1. This is an application for clarification/modification/variation of an order dated December 5,1995 passed by a Division Bench of this Court in A.P.O. No. 494 of 1995 by which the Division Bench disposed of three different writ applications while hearing the abovementioned appeal preferred against an interlocutory order passed in one of those writ applications.
2. The facts giving rise to disposal of the appeal by the said Division Bench may be summed up thus:
(a) One Hindustan Pilkington Glassworks Limited was a tenant under the Life Insurance Corporation of India ("LIC") and the said tenant-company having gone into liquidation, the official liquidator was appointed over the assets of the company. The official liquidator advertised for sale of assets including the furniture and those were purchased in auction by the Maruti Real Estate Pvt. Ltd. (hereinafter referred to as "Maruti").
(b) The LIC filed an application before the Company Court for direction upon the official liquidator to disclaim the tenancy right of Hindustan Pilkington Glassworks Limited and the Company Court by an order dated 10th May, 1995 directed the official liquidator to disclaim the tenancy right of the company in liquidation.
(c) The LIC, in the meantime, entered into an agreement with Maruti for letting out the part of second floor of the Hindustan Building at 4, Chittaranj an Avenue, Kolkata measuring about 10,000 sq. ft. which was in occupation of the company in liquidation at the rate of Rs. 5/- per sq. ft. together with a total lump sum payment of Rs. 10,00,000/-.
(d) After coming to know of such agreement between the LIC and Maruti, three different companies, namely, Brenda Sales Pvt. Ltd., Manch Vyapar Pvt. Ltd. and Singhania Developers Pvt. Ltd. filed three independent writ applications in this Court praying for cancellation of such agreement between the Maruti and LIC on the ground that the LIC being a "State" within the meaning of Article 12 of the Constitution of India could not arbitrarily grant lease in favour of Maruti.
(e) The writ application filed by the Brenda Sales Pvt. Ltd. came up for hearing before G.R. Bhattacharya, J., when His Lordship directed the parties to maintain status quo till disposal of the writ application. Being dissatisfied with the said interlocutory order of status quo, Maruti preferred the appeal being A.P.O. No. 494 of 1995 before the Division Bench of this Court presided over by the then Hon'ble Chief Justice K.C. Agarwal.
(f) Although, the said appeal was preferred by Maruti in connection with the interim order passed in one of the three writ applications, the Division Bench directed that the two other writ applications viz., the one filed by Singhania Developers Pvt. Ltd. and Manch Vyapar Pvt. Ltd. should also be heard along with pending appeal filed in connection with the writ application filed at the instance of Brenda Sales Pvt. Ltd.
(g) Consequently, all the matters were taken up by the Division Bench consisting the Hon'ble Chief Justice K.C. Agarwal and Hon'ble Justice Sujit Kumar Sinha and by the order dated December 5,1995, the Division Bench disposed of the said appeal by directing the LIC to hold an auction for letting out the said 10,000 sq. ft. of area on the second floor of 4, Chittaranjan Avenue, Kolkata among the parties and to enter into the agreement with the highest bidder.
(h) Being dissatisfied with the said order dated December 5, 1995, Maruti preferred a special leave petition being S.L.P.(C) No. 4064 of 1996 before the Supreme Court of India but the said special leave application was withdrawn on September 20, 1996 by Maruti on the alleged ground that a review application was pending against the order under challenge in the High Court and consequently, the special leave application was disposed of by recording such fact. In fact, however, no review application was pending at that point of time.
(i) Thereafter, the LIC filed an application being G.A. No. 421 of 1997 with a prayer for modification and/or variation and/or clarification of the order dated December 5, 1995 in exercise of inherent power on various grounds pointed out in details in the said application.
(j) The said application came up for hearing before the Division Bench consisting of Hon'ble Justice Ruma Pal (as Pal, J. then was) and Hon'ble Justice Sujit Kumar Sinha on April 11, 1997 when Their Lordships were pleased to allow such application by directing that public auction should be held after giving advertisement in three newspapers mentioned in the order and the auction should be conducted by the Registrar, Original Side of the High Court wherein the appearing parties would also be entitled to participate and that the effect of the successful bid will be given subject to confirmation by this Court. Maruti, however, filed two special leave applications being Section L.P. (C) No. 15325-26 of 1997 challenging the orders dated 5th December, 1995 and 11th April, 1997 before the Supreme Court of India which were taken up along with a separate special leave application being S.L.P. (C) No. 17394 of 1997 filed by Brenda Sales Pvt. Ltd. against the order dated 11th April, 1997 on 28th January, 1998. The Supreme Court disposed of the special leave applications filed by Maruti by holding that the earlier special leave petition filed by Maruti was disposed of on wrong information given to the Supreme Court of India that the review application was pending against the order dated 5th December, 1995. The Supreme Court of India dismissed both the special leave petitions upon consideration of the submission made by the LIC that it had decided to utilize the premises for themselves. The moment the Apex Court dismissed the two applications for special leave filed by the Maruti, the Brenda Sales Pvt. Ltd. decided to withdraw their application for special leave against order dated April 11, 1997 and the said application was dismissed as withdrawn.
(k) On 19th February, 2004, a Division Bench consisting of D.K. Seth and R.N. Sinha, JJ. recalled the order dated April 11, 1997 passed by the Division Bench presided over by Ruma Pal, J. on the ground that the said order was passed at 4 p.m. under the heading "To be mentioned" and the parties did not get opportunity of filing affidavit and consequently, directed that the application which was allowed on April 11, 1997 should be re-heard along with an application for contempt already filed alleging violation of the order dated December 5, 1995. The attention of the Division Bench presided over by D.K. Seth, J., as it appears from the order, was not drawn to the fact that the order dated April 11, 1997 passed by the Division Bench had been appealed against by the two of the parties and the Apex Court rejected one of such application on merit and the other application filed by Brenda Sales Pvt. Ltd. had been withdrawn long back on January 28, 1998.
3. Consequently, the application for review of the order dated December 5, 1995, which was once allowed and not interfered with by the Apex Court in the Special Leave Application, has come up before this Bench for fresh hearing.
4. Mr. Gupta, the learned senior Advocate appearing on behalf of the LIC has at the very outset submitted before us that a Division Bench of this Court by order dated April 11,1997 having already allowed the self-same application by setting aside the order passed by the Division Bench presided over by K.C. Agarwal, Chief Justice and directing the Registrar, Original Side to hold fresh auction and such order dated April 11,1997 not having been interfered with by the Supreme Court in the two special leave applications against such order, this Court should pass similar order dated April 11, 1997. Mr. Gupta contends that while recalling order dated April 11, 1997 attention of the Division Bench was not drawn to the fact that the special leave application filed against the order dated April 11, 1997 had already been dismissed by the Supreme Court of India and if such fact was brought to the notice of the Division Bench presided over by D.K. Seth, J., Their Lordships would not have recalled the order dated April 11, 1997.
5. Mr. Gupta further contends that even on merit, the application, viz., G.A. No. 421 of 1997, cannot be said to be an application for review as understood in context of Order 47 of the Code of Civil Procedure.
6. According to Mr. Gupta, from the order dated December 5, 1995 an impression has been created as if the fresh auction should be limited only to the four parties to the proceedings. Mr. Gupta contends that by this application, his client wanted clarification that the property being public premises, the auction should be re-advertised and public in general should be permitted to participate so that his client can get fair value and the maximum rate of rent. Mr. Gupta, therefore, submits that we should merely clarify the order dated December 5,1995 by making it clear that apart from the parties to proceedings public in general should also be permitted to participate in the process of auction.
7. Mr. Gupta further contends that if his client is compelled to restrict the consideration of the bids given by only the parties, it will not get fair amount of rent as in course of last 12 years, the rate of rent has increased a lot. Mr. Gupta, therefore, prays for aforesaid clarification sought for in the application.
8. As regards the application for contempt alleging violation of the order dated December 5, 1995, Mr. Gupta contends that as in the past, order dated December 5, 1995 was reviewed by the another Division Bench of this Court and against such order the special leave applications filed by two of the parties were also dismissed and at the same time, the application for review was revived and as such, his client bona fide, did not give effect to the order dated December 5, 1995, Mr. Gupta contends that his client did not intend to disobey the order passed by this Court and for that reason, his client filed the application for clarification. Mr. Gupta, therefore, prays for dismissal of the application for contempt.
9. The application for clarification/modification/variation has been opposed by all the other parties and written argument has been advanced on behalf of the parties.
10. According to Singhania Developers Pvt. Ltd., the application being G.A. No. 421 of 1997 is not maintainable and cannot be allowed for the following reasons:
(i) The LIC was really asking for a review of an order dated 5th December, 1995 under the guise of clarification and/or modification and/or variation, which is not permissible.
(ii) The LIC had acted in furtherance and in terms of order dated 5th December, 1995 and is, therefore, estopped from assailing the said order.
(iii) The LIC should not be allowed to approbate and reprobate at different stages of the proceedings.
(iv) The grounds set out in the application for clarification/modification was available at the time of final disposal of the appeal on December 5, 1995 but those points not having been taken at that time, should not be allowed to be raised by way of review in subsequent stage.
11. According to Brenda Sales Pvt. Ltd., the LIC has already acted in terms of the order dated December 5,1995 as would appear from the statement made in paragraphs 19 to 30 of the application and, therefore, the same is not maintainable. According to the said respondent, the Hon'ble Supreme Court of India considered the order dated December 5,1995 on two occasions i.e. on 20th September, 1996 and 28th January, 1998 and on both occasions the Supreme Court did not grant leave and thus, the order dated dated December 5, 1995 had reached its finality and no further modification/clarification of the order can be made. It is further contended that the Court had become functus officio as the appeal had been disposed of finally and thereafter, by way of filing miscellaneous application, the matter cannot be reopened. The respondent No. 7 further contends that the Division Bench by order dated December 5, 1995 passed specific direction that the property should be let out to the highest bidder among the parties and therefore, there was no scope of allowing any third party by interfering with the right of the parties accrued by virtue of such order. It is further contended that on the ground of delay in moving the application the same should be dismissed.
12. Manch Vyapar Pvt. Ltd. another party to the proceedings, has also opposed the application by contending that the application for review having been filed on 29th January, 1997 long after the passing of the order impugned and there being no explanation of delay between June 9, 1996 till January 29, 1997, the application should be dismissed. It is further pointed out that there was even no prayer for condonation of delay. Regarding the merit of the application, it is contended that there is no ground for clarification/modification/variation of the order dated December 5, 1995 and as such, this Court should dismiss the application. Virtually, the points taken by the other respondents were adopted by the said Manch Vyapar Pvt. Ltd.
13. Maruti, the appellant has also opposed the application for clarification and has contended in tune with the other respondents that the application should be dismissed not only on merit but also on the ground of delay and limitation.
14. Mr. Gupta in his reply has submitted that there is no specific period of limitation for filing an application for review in a writ jurisdiction and as such, all that is necessary is that it should be filed within a reasonable period. Mr. Gupta points out that his client accepted the order of the Division Bench setting aside the agreement between his client and Maruti and does not want to reopen the said decision. According to Mr. Gupta, his client filed the application only for clarification of the direction as regards the right of participation of the third parties in the process of tender which was not clear and such clarification was felt while implementing the order dated December 5,1995 and hence the delay. Mr. Gupta, therefore, repeats what he had said at the time of making initial submission.
15. Therefore, the question that arise for determination in this application is (a) whether the application is barred by limitation, if there is any period of limitation at all for filing an application for clarification and (b) whether this Court should clarify the order passed by the Division Bench in the facts of the present case if the same is found to be not barred by any law for the time being in force.
16. Before answering the aforesaid two questions, we should bear in mind the well-settled proposition of law that in order to determine the nature of an application, the Court should not be guided by its label or the mention of a particular section of a statute at the cause title of such application but should find out what it contains. In this connection, it will be profitable to refer to the following observations of the Apex Court in the case of Pepsi Foods Limited v. Special Judicial Magistrate :
Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction; which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory.
17. Therefore, merely because an application for review has been described as one for clarification/modification/variation, such fact will not create any impediment in granting the appropriate relief of review tq a litigant if it appears from the perusal of the application that he really deserves such relief, provided of course, that such relief is not barred by any of the provisions of law.
18. We find from the application filed by the LIC that it pointed out various apparent misstatements of facts in the order sought to be reviewed and its main grievance was that while setting aside the agreement with Maruti, the Division Bench having directed auction with a direction to offer the tenancy to the highest bidder, the auction could not be limited to "the parties including Maruti Real Estate Private Limited" but to the public in general, of course, including the parties to the three writ applications. The applicant, therefore, prayed for clarification of the word "parties" by including public at large within such expression.
19. It appears from the order sought to be reviewed that what weighed with Their Lordships in setting aside the tenancy in favour of Maruti was that before the tenancy of the company in liquidation was extinguished by the order of the Company Court, there was no scope of entering with a fresh tenancy with the Maruti and that the property could fetch a rent much more than Rs. 5/- per sq. feet by letting out the property, if not, double the said amount.
20. From the aforesaid findings, it is clear that the Division Bench was not satisfied with the amount of rent agreed upon by the LIC and in such circumstances, it could not be the intention of the Division Bench to limit the auction only among the four parties before it. Moreover, if the foundation of the judgment is that a "State" within the meaning of Article 12 of the Constitution of India should act fairly and not secretly with one particular party, there is no reason to limit the auction to the three writ applicants and the Maruti who is guilty of collusion with the LIC. In such a situation, direction for advertisement, inviting bids from the public, is the usual order a Writ Court generally passes. Even notwithstanding the order dated December 5,1995 passed by the Division Bench, if today, any citizen comes forward with a fresh writ application alleging violation of the principle of natural justice for not giving him opportunity of participation in the proposed auction with the plea that he was not party to the earlier proceedings and was unaware of the proposed an auction, the Court is bound to permit him to appear in such auction because the said order cannot take away his right of participation in the process of an auction where the State is directed to lease out the property to the highest bidder. Therefore, there was an error apparent on the face of record in the order sought to be reviewed by restricting the auction to four persons only and it does not require any elaborate argument for detecting the error.
21. Now we propose to deal with the question whether we can give relief to the LIC in this application, which has not been described as an application for review, and at the same time, there is no prayer for condonation of delay.
22. The question whether Section 114 or Order 47 of the Code of Civil Procedure is applicable to a mandamus appeal on the face of the writ rules framed by this Court incidentally came up for consideration in a Full Bench decision of this Court in the case of Ratan Lal Nahata v. Nadita Bose reported in AIR 1999 Cal 29, when Section B. Sinha, J. (as His Lordship then was) made the following observations in paragraphs 74 to 78 which was accepted by all the other four Judges of the Full Bench:
Coming now to the applicability of Code of Civil Procedure, in a proceeding under Article 226 of the Constitution of India we may at the very threshold take note of the fact that Section 141 of the Code of Civil Procedure as amended in 1976 excludes the applicability of said provision in a proceeding under Article 226 of the Constitution of India. It may be true that by reason of Rule 53 of the Writ Rules framed by this Court, the procedures provided in the Code of Civil Procedure in regard to suits as far as it can be made practicable may be followed in all proceeding for issue of a writ. The said rule, however, is subject to the rules framed by this Court, viz., Original Side Rules and Appellate Side Rules as would appear from Rule 48 itself. The Appellate Side Rules and the Original Side Rules make provision as regard procedure to be followed in review petition.
The Code of Civil Procedure per force, therefore, is not applicable in a proceeding under Article 226 of the Constitution of India but only the procedural aspects thereof mutatis mutandis apply. Furthermore Rules 48 and 53 of the writ rules must be read in the light of Section 4(1) of the Code of Civil Procedure which protects powers under Letters Patent, Section 108 of Government of India Act, 1915, Section 223 of Government of India Act, 1935 and Article 225 of the Constitution of India, thus read, we have no doubt in our mind that Order 47 Rule 5 ipso facto cannot be made applicable by telescoping the same in the writ proceedings through Rule 53 of the writ rules. The extensive power of the Chief Justice to allocate business of the Court as noticed hereinbefore by no means can be curtailed or whittled down in terms of Order 47 Rule 5 so far as the proceedings before High Court is concerned. We intend to make it clear that Order 47 Rule 5 will have application in cases where Code of Civil Procedure alone applies i.e. before the Subordinate Courts and other Tribunals.
Apart from the reasons noticed hereinbefore, we reiterate that Order 47 Rule 5 having been framed in terms of Section 114 of the Code of Civil Procedure which provision itself being not applicable in relation to a writ proceeding, the procedures laid down in terms whereof would not ipso facto apply inasmuch whereas a Civil Court trying a suit (not the High Court trying in exercise of its original jurisdiction) is bound by the provision of Order 47 Rule 5 of the Code of Civil Procedure, the High Court while exercising its writ jurisdiction is not, as the power of review is taken recourse to by the High Court in exercise of its inherent jurisdiction.
Power under Article 226 of Constitution of India is exercised by the High Court in its equity jurisdiction and thus, as it has to do equity to the parties and to do complete justice to them, its power of review is not and cannot be limited only in terms of Section 114 or Order 47 Rule 1 of the Code of Civil Procedure. By parity of the reasoning Order 47 Rule 5 ipso facto would not be attracted in a writ proceeding.
The reason as to why the provisions of Code of Civil Procedure are not applicable in a writ proceeding has been explained by the Apex Court in Puran Singh v. State of Punjab , N.P. Singh, J., speaking for the Division Bench held that the provisions of Code of Civil Procedure were not applicable even before coming into force of 1976 Amendment Act in view of the decision of the Apex Court in Babubhai v. Nandlal and held (para 5 of AIR):
If because of the explanation, proceeding under Article 226 of the Constitution has been excluded, there is no question of making applicable the procedure of Code as far as it can be made applicable to such proceeding. The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extra ordinary powers by the High Court under Articles 226 and 227 of the Constitution.
23. In this connection, it will be out of place to refer to the following observations of the Apex Court in the case of Shivdeo Singh v. State of Punjab reported in AIR 1963 SC 1909 were the Court approved the inherent power of review of the High Court its order passed under Article 226 of the Constitution of India:
It is sufficient to say that 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.
24. Therefore, once we hold that Section 114 or Order 47 Rule 1 of the Code of Civil Procedure in terms does not apply to an application for review in the writ jurisdiction, the nomenclature of the application loses its importance and at the same time, the provision contained in Limitation Act for filing an application for review will not be applicable as held by the Supreme Court in the case of Puran Singh and Ors. v. State of Punjab and Ors. and therefore, while considering such an application, the Court will only consider whether such application is filed within a reasonable time and in the process, the period prescribed in the Limitation Act for filing a similar application under the provision of the Code of Civil Procedure may be treated as guideline for deciding whether such application has been filed within the reasonable period.
25. In the case before us, the order sought to be reviewed was passed on December 5, 1995 whereas the application was filed on January 29, 1997. In the application, explanation for delay was given up to June, 1996, When there is no prescribed period of limitation fixed under law, we cannot dismiss the application as barred by limitation simply because it has been filed after a lapse of one year.
26. Therefore, the next question is whether we should dismiss the application merely because there is delay of slight more than one year from the date of the order and there is no explanation after June, 1996 until January, 1977. Although there is no specific explanation in the application for the delay in filing the application beyond June, 1996, it, however, appears from records that the application for Special Leave against the order dated December 5, 2007 at the instance of Maruti was pending up to September 20,1996 when the same was withdrawn on the erroneous impression that an application for review was pending before this Court at the instance of Maruti. We can, therefore, take into consideration the fact that till September 20, 1996 the order sought to be reviewed was under challenge at the instance of one of the parties before the Supreme Court.
27. There is no doubt that it is a palpable and grave error in restricting the participation of the public in auction if we interpret the word "parties" as only the parties to the three pending writ applications. The Division Bench having set aside the offer of lease to Maruti on the ground of its unholy alliance with the LIC, never intended that the auction should be limited to the four parties and such interpretation would clause miscarriage of justice. We, therefore, propose to ignore the technical objections of delay raised by the opposite parties whose object is to gain advantage of an obvious wrong order passed by bearing in mind the following observations of the Full Bench of this Court already quoted above:
Power under Article 226 of the Constitution of India is exercised by the High Court in its equity jurisdiction and thus, as it has to do equity to the parties and to do complete justice to them, its power of review is not and cannot be limited only in terms of Section 114 or Order 47 Rule 1 of the Code of Civil Procedure.
28. Moreover, we have already pointed out that the said order dated December 5, 1995 did not confer any right upon the parties to the proceedings to take away the rights of others to participate in the proposed auction at the instance of a "State". They merely got a right to participate in the process of auction and nothing more, and by filing this application, the LIC does not intend to take away such right of the opposite parties.
29. We, therefore, clarify the word "parties" appearing in the order dated December 5, 1995 by replacing the same with the word "public" and reiterate the order earlier passed by the Division Bench presided over by Ruma Pal, J. (as His Lordship then was) dated April 11,1997. Two of the parties challenged the said order before the Supreme Court but the said Court refused to interfere with the said order at the instance of Maruti after going into merit by a reasoned order and the other applicant immediately withdraw its application. We are quite conscious that such rejection of the Special Leave application did not result in the application of the principle of merger but we cannot help mentioning that at the time of making prayer before the Division Bench presided over by D. K. Seth, J. in the month of February, 2004, for recall of the order dated April 11, 1997, it was the duty of the parties to bring to the notice of Their Lordships that the Apex Court refused to interfere with the said order on merit at the instance of Maruti long back in the month of January, 1998 and on that very day, Brends Sales Pvt. Ltd. decided not to press their Special Leave application without complaining that the order was passed at 4 p.m. under the heading 'To be mentioned".
30. The learned Advocate for the parties relied upon a number of decisions in support of their contention that an application for modification is not maintainable by avoiding the rigour an application for review; those decisions relate to the field where Order 47 of the Code applies but in this case, as we are exercising writ jurisdiction, the principles laid down therein will not be applicable in view of the decisions mentioned above. Similarly, the decisions showing insufficiency of the cause in an application under Section 5 of the Limitation Act will have no bearing on the facts of the present case in view of the decisions relied upon by us indicating that Section 5 of the Limitation Act will have no application to the facts of the present case and that there is no statutory time-limit for filing this type of application in a writ jurisdiction. We have already pointed out that this application cannot be branded as a mala fide one; on the other hand, the opposite parties with mala fide motives are opposing the prayer to maintain a conspicuous wrong order to suit their own purpose. Delay up to September 20, 2006 having been impliedly explained, we are of the view that the application filed in the month of January, 1977 should not be rejected on the ground of laches when in between September 20, 1996 and January, 1977 there were two intervening vacations of this Court.
31. The decisions cited by the learned Counsel for the opposite parties are listed below:
(1) Pandey & Co. Builders (P) Ltd. v. State of Bihar and Anr. ;
(2) Steel Authority of India Ltd. v. Union of India and Ors. ;
(3) Satyasadhan Ghosal and Ors. v. Deorajin Debi and Anr. ;
(4) Ashoke Kumar Srivastav v. National Insurance Company Ltd. and Ors. ;
(5) Valjibhai Muljibhai Soneji and Anr. v. State of Bombay and Ors. ;
(6) A.S. Krishnan v. State of Kerala reported in AIR 2004 SC 3229;
(7) Bharat Singh and Ors. v. State of Haryana and Ors. ;
(8) Housing Board of Haryana v. Haryana Housing Board Employees Union and Ors. ;
(9) Calcutta State Transport Corporation v. Commissioner of Income Tax and Ors. ;
(10) Mayurakshi Gramin Bank v. Kanchan Kumar Sarkar reported in 1989 (2) CHN 431;
(11) State of Uttar Pradesh v. Brahm Butt Sharma and Anr. ;
(12) Promoters and Building Association Pune v. Pune Municipal Corporation ;
(13) West Bengal Electricity Regulatory Commission v. CESC Ltd. ;
(14) Rai Bajrang Bahadur Singh v. Jai Narayan ;
(15) Ramchand and Sons Sugar Mills Pvt. Ltd. v. Kanyalal Bhargava and Ors. ;
(16) Kunhayammed and Ors. v. State of Kerala reported in 2006 SCC 359 (paras 18 and 21);
(17) Nainsingh v. Koonwarjee and Ors. ;
(18) Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. ;
(19) National Housing Co-operative Societies Ltd. v. State of Rajasthan and Ors. reported in 2005 (12) SCC 149;
(20) State of Haryana and Ors. v. M.P. Mohla, .
32. We now propose to deal with the aforesaid decisions cited by the learned Counsel for the opposite parties.
33. In Pandey & Co. Builders (P) Ltd. (supra), the Supreme Court was dealing with the scope of an appeal under the provisions of the Arbitration and Conciliation Act, 1996 and in such process, compared the scheme under the said Act with those contained in the Arbitration Act, 1940. We fail to appreciate the reason for citing the said decision in the written notes of argument on behalf of Singhania Developers Pvt. Ltd. as none of the points involved therein has any connection to the facts of the present case.
34. The case of Steel Authority of India Ltd. (supra), was cited in support of the contention that mutually destructive pleading and/or stance which is a self-contradictory with each other cannot be allowed to be taken in the pleading. In this case, the LIC has not taken any self-contradictory stance in the application which can stand in their way of getting relief of clarification or modification by way of this application. They have simply prayed for larger participation in the process of auction so that they can get a reasonable amount of rent. We, therefore, find that the said decision has no application to the facts of the present case.
35. By relying upon the decisions in the case of Satyadhan Ghosal and Ashoke Kumar Srivastav (supra), it was contended that the principles of res judicata and constructive res judicata should be applied in the facts of the present case. We are afraid, the said principle has no application to the proceedings for appeal or review against the order passed in a judicial proceeding. If a former application for review had already been dismissed by the Court on merit, the respondents could successfully raise the point that another application for review against the self-same order was barred by the principles of res judicata or the constructive res judicata. Therefore, in this case, the said application was not applicable against the LIC.
36. The case of Valjibhai Muljibhai Soneji (supra) was cited in answer to the submission of Mr. Gupta that if the rate of rent is increased, the public at large will be benefited by contending that the rent payable to the LIC is not public revenue or money to be deposited in the exchequer. We do not for a moment say that the money of LIC is the money coming from public exchequer but the fact remains that according to the statute creating LIC the Central Government has all pervasive control over LIC and the building of the LIC is a public premises within the meaning of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. We have however allowed the application not because LIC is a Public Sector Undertaking but because there was an error apparent on the face of record resulting in gross injustice. For the same purpose, the decisions in the case of Housing Board of Haryana and Calcutta State Transport Corporation (supra) were cited. Those decisions are therefore of no avail to the respondents.
37. We have found no reason why the decision of the Apex Court in the case of A.S. Krishnan and Anr. (supra) was annexed to the written note of argument. The said decision dealt with the offences under Sections 468, 471 and 120B of the Indian Penal Code in an appeal against the conviction under those sections and has no relevance.
38. The case of Bharat Singh and Ors. (supra), was cited in support of the proposition of law that the facts pleaded must be proved and in a writ application the evidence in support of the pleading must be annexed supported by affidavit. We respectfully follow such proposition of law. However, in the case before us, the Division Bench while passing the order dated December 5, 1995 deviated from that principles by deciding the three writ applications at the time of hearing of a mandamus appeal preferred against an interim order passed in one of those three writ applications filed by three different parties at a point of time when those writ applications were not even made ready. Therefore, the said decision does not support the respondents in any way and there is no scope of applying the said decisions against the LIC.
39. In the case of State of Haryana v. M.P. Mohla (supra), it was held that an application for clarification could not be filed to achieve the result of an application for review and in the absence of error apparent on the face of records, an application for clarification should not be filed merely because the effect of the judgment might have to be considered afresh in a separate proceeding having regard to a subsequent cause of action. In this case, we have treated the application for clarification/modification/variation as an application for review and as there is an error apparent on the face of the judgment in restricting the auction only to four persons, we have allowed the prayer by rectifying only that portion of the order without touching the main relief already granted to the opposite parties. We, therefore, find that the said decision does not support the opposite parties in any way.
40. In the case of Mayurakhshi Gramin Bank (supra), the question before a Division Bench of this Court was whether an application for clarification could be considered for the purpose of changing the original order when the grounds of review did not exist. It was specifically held therein that none of the grounds of review was present and as such, the Court could not exercise its power of review. In the case before us, we have held that there was an error apparent on the face of the record and for that reason, we have exercised the power of review. Therefore, the said decision of the Division Bench does not support the opposite parties in any way.
41. In the case of State of Uttar Pradesh (supra), the Apex Court held that a writ application, which has been disposed of finally, could not be reopened by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. In the case before us, we have allowed the application on the ground of error apparent on the face of record and not on the basis of a new cause of action. Therefore, the said decision cannot have any application to the facts of the present case.
42. In the case of Promoter and Builders Association of Pune (supra), it was held that a review of an earlier Order is not permissible unless the Court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. The principle stated therein is well-known and we have followed such principle by reviewing the original order on the ground of error apparent on the face of records resulting in miscarriage of justice. The said decision, therefore, goes against the opposite parties.
43. The decision of the Supreme Court in the case of West Bengal Electricity Regulatory Commission (supra) was cited for the proposition that although this Bench remains a Division Bench of this Court, all the powers of this Court are not available to us when we are hearing an application under a particular provision of law and in such a situation, our power is limited to those provisions and not to all the powers that would otherwise have been available to us and consequently, we can exercise only the limited power conferred under Sections 152 and 153 of the Code but not all the power of an Appellate Court under Section 107 of the Code. In the said case, a Division Bench of this Court while exercising appellate power under the provisions of the West Bengal Electricity Regulatory Commission Act held that it had also the right to exercise power under the Constitution and such power could be exercised while exercising appellate power under the Act. Such observation was disapproved by the Supreme Court pointing out that while exercising appellate power conferred upon a High Court by virtue of a statute, it should exercise its power to that extent that has been conferred by the said statute. In this case, we propose to exercise our power of review while exercising our appellate power in a mandamus appeal and on being satisfied that there was a blatant error apparent on the face of record, we have exercised that power. Therefore, the said decision cannot have any application to the facts of this case.
44. The case of Rai Bajrang Bahadur Singh (supra) was cited to convince us that a party cannot be permitted to take inconsistent stands to the detriment of the successful party to the litigation. We do not find any inconsistent stance of the LIC in this application and we have given relief to the LIC as there was an error apparent on the face of the order dated December 5,1995. We, therefore, find that the said decision is not at all relevant for our purpose.
45. The decisions of the Apex Court in the case of Kunhaymmed and Ors. and National Housing Co-operative Societies Ltd. (supra) were cited for the purpose of showing that by mere rejection of the application for special leave to appeal there is no merger of the original order with the order of rejection of the SLP and as such, an application for review is nevertheless maintainable. We are alive to such well-settled proposition of law and for that reason, we have heard the parties on merit and come to our independent conclusion apart from the earlier decision taken by the Division Bench on April 11, 1997.
46. The cases of Ram Chand and Sons Sugar Mills Pvt. Ltd and Nain Singh (supra) were cited for the purpose of showing the extent of inherent power of the Court under Section 151 of the Code of Civil Procedure. It has been held therein that if specific powers are conferred by statute in such a situation, there was no scope of exercising the inherent power by taking recourse to Section 151 of the Code. We have already relied upon the decision of the Apex Court approving the power of review in the writ jurisdiction in exercise of the inherent power as laid down in the case of Shivdeo Singh (supra) and thus, those two decisions do not stand in our way in exercising our power of review on the ground of error apparent on the face of records.
47. We have not appreciated the reason for citing the well-known decision of the Apex Court in the case of Cotton Corporation of India in the facts of the present case. The said decision is the authority on the provision of Section 41(b) of the Specific Relief Act. The said decision in our opinion has no application to the facts of the present case.
48. The decisions cited by the learned Counsel for the parties are, thus, of no assistance to their clients. We, therefore, allow the application being G.A. No. 421 of 1997 by replacing the ordering portion of the order dated December 5, 1995 passed by the Division Bench in Appeal No. 494 of 1995 by the order dated April 11,1997 passed by the Division Bench presided over by Ruma Pal, J. as, in our opinion, the said order was the most appropriate order in the facts of the present case. Accordingly, let there be a public auction to be held after publishing an advertisement in three newspapers, viz., The Statesman, Ananda Bazar Patrika and The Telegraph published from Kolkata. The auction should be conducted by the Registrar, Original Side of this Court. The terms and conditions of the lease shall be settled after notice to all the appearing parties. Such advertisement should be issued within six weeks from the date and the terms and conditions of the lease should be settled within a week after reopening of this Court. The highest bid should be accepted subject to the confirmation by this Court. In the facts and circumstances, there will be, however, no order as to costs.
49. Regarding the application for contempt alleging violation of the order dated December 5, 1995, which has since been modified by us, we find that there was no wilful violation of the said order. It appears that the LIC filed an application for modification and the same was initially allowed. Thereafter the matter was pending. Moreover, in the order dated December 5, 1995 there was no fixed date for compliance of the said order. Therefore, we dismiss the application for contempt. In the facts and circumstances, there will be, however, no order as to costs.
R.N. Banerjee, J.
I agree.