Telecom Disputes Settlement Tribunal
Bhaskar Cable Network vs Zee Turner Ltd. on 3 September, 2007
ORDER
D.P. Sehgal, Member
1. The petitioner has filed this review petition (R.A. 7 of 2007) for review of Order of this Tribunal dated 15.5.2007 under Section 16(f) read with Section 114 of Code of Civil Procedure and Order XLVII Rule 1 of the Code of Civil Procedure.
2. The learned Counsel appearing for the respondent- M/s Zee Turner Ltd has raised a preliminary objection on the admission of this petition stating that this review is not maintainable. It was submitted that applicant (petitioner) had filed an appeal with Hon'ble High Court of Madhya Pradesh for quashing the order of this Tribunal dated 15.5.2007. He stated that the appeal Under Section 18 of the Act against the orders of this Tribunal lies only with Hon'ble Supreme Court. Knowing fully well the jurisdiction, the petitioner still chose redress from the Hon'ble High Court of M.P. Under Section 18. He further said that this fact had been suppressed by the petitioner in the review application under consideration. Mr. Vivek Tankha, learned senior counsel for the petitioner, however, said that the appeal Under Section 18 was filed by mistake, which can be termed as mistaken jurisdiction. He said that the appeal was withdrawn and at this time when he has filed review application there is no appeal pending with any court. Therefore, the petitioner is well within its rights to file the review application Under Section 16 of the TRAI Act. Mr. Vivek Tankha quoted para 12 from Supreme Court Judgement in Kalpatharu Agroforest Enterprises Vs. Union of India [(2002) 3 Supreme Court Cases 692] which is reproduced as under:
12. From a combined reading of Section 114 and Rule 1 of Order 47, it is clear that the decree or order from which an appeal is allowed but from which no appeal has been filed, can be reviewed. It follows that against the appealable orders of the Tribunal from which an appeal lies but no appeal is filed, the review petition is maintainable before the Tribunal. In the instant case, admittedly, no appeal was filed against the order in question though under Section 23 it is appealable, consequently the review petition is maintainable before the Tribunal.
3. Relying on this judgement Mr. Vivek Tankha said that a decree or an order, from which an appeal is allowed but from which no appeal has been filed, can be reviewed. He said that against the appealable orders of this Tribunal from which the appeal lies with Hon'ble Supreme Court, no such appeal has been filed by the petitioner with Hon'ble Supreme Court and hence this review petition is maintainable before the Tribunal.
4. It was submitted by the petitioner that Under Section 16(f) the Act the petitioner is well within its rights to file the instant petition for review of its order. He further reiterated his stand that he has not invoked his right Under Section 18 of the TRAI Act, i.e., appeal to Apex Court and therefore the present review application is maintainable.
5. Mr. Maninder Singh, however, opposed this contention and stated that this was a clear case of forum shopping. He said that it was not by mistake that the petitioner had gone to the Hon'ble High Court, it was a deliberate exercise under proper legal advice. The appeal was filed by an advocate and not by the petitioner directly and therefore the contention of the petitioner that it was done by mistake has to be rejected. Mr. Maninder Singh quoted some judgements to support his case that once an appeal is filed by a party against an order of a Tribunal, the right to review of that order ceases to exist. The relevant extracts from these Judgements quoted by him are re-produced as under:
Gopalbandhu Biswal v. Krishna Chandra Mohanty .
8. The power of review which is granted to an Administrative Tribunal is similar to the power given to a civil court under Order 47 Rule 1 of the CPC. Therefore, any person (inter alia) who considers himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred can apply for review under Order 47 Rule 1(1)(a). An appeal lies to this Court from a decision of the Administrative Tribunal. If an appeal is preferred, the power to review cannot be exercised.
Raja Indrajit Pratap Bahadur Sahi v. Amar Singh AIR 1923 PC 128(135).
In the present case an appeal had been preferred and a review, therefore, was out of the question; and the defendants took the only and proper course, viz., to apply to the High Court, which was in possession of the case, to admit the additional evidence either under the general principles of law or under the specific provisions of Rule 27, which lays down that the appellate Court may for any other substantial cause (viz., other than those particularly specified) allow such evidence or documents to be produced or witnesses to be examined.
Jwala Prasad v. Jwala Bank Ltd. .
5. ...On a plain reading of this section, it would appear that the High Court may (subject to the conditions and limitations to be found in Order 47) review its judgment in all cases except where an appeal from a decree or order founded upon that judgment is allowed under the Code and has been preferred. It is common ground that no appeal has been preferred from the appellate judgment in the present case. Prima facie, therefore, this Court has the power to review that judgment.
Ashok Kumar Monga v. UCO Bank and Ors. 108 (2003) DLT.
3. The observations in (Raja) Indrajit Pratap Bahadur Sahi v. Amar Singh and Ors. AIR 1923 PC 128, which have stood the test of eighty long years, apply in full force. It was observed that where an appeal has been preferred a review is out of question. In Dev Krishna and Anr. V. Dhani Ram Saligram , a Division Bench of that Court had observed that a Court has jurisdiction to decide wrongly and a review against such a decision is not in order. Once arguments have been addressed on a particular issue and a decision has been rendered, recourse to a Review is wholly unjustified....
5. The provisions pertaining to Review also specify that a Review is maintainable and permissible even in respect of appealable orders provided no appeal has been filed. If parties are permitted to press applications of the present nature, it would amount to forum shopping, which is abhorrent as far as procedural law is concerned.
6. Mr. Maninder Singh said that in the instant case, the petitioner had invoked its right by filing the appeal Under Section 18 and therefore is not justified in filing the review application with the Tribunal. He said that in the instant case review is completely barred.
7. This is a very clear case where the petitioner has filed an appeal in the Hon'ble High Court of M.P. with specific prayers to quash our Order dated 15.5.2007 Under Section 18 of the Act. Section 16(f) provides for review of the Order if there are errors apparent in the Order. The petitioner, however, for reasons best known to it, chose not to file a review application and in fact preferred to go to Hon'ble High Court of M.P. This fact of filing the appeal has not been mentioned in the review application filed with the Tribunal. However, the respondent-Zee Turner Ltd. in its reply has produced the copy of the appeal and the order of the High Court. Firstly, it is very clear that the appeal has been filed Under Section 18 of the Act. I would like to quote and re-produce the relevant prayers in this appeal as under:
I. To requisition the entire records pertaining to Petition No. 293(C), Bhaskar Cable Network v. Zee Turner Limited, from Telecom Disputes Settlement and Appellate Tribunal, New Delhi.
II. To quash the impugned order dated 15.5.2007/Annexure A-2, passed in Petition No. 293(C), Bhaskar Network v. Zee TurnerLimited, by Member, TDSAT, New Delhi.
III. ...
8. The appeal was subsequently withdrawn by the petitioner and the Order of the Hon'ble High Court of M.P. on this withdrawal is as under:
Shri S.C. Sharma, the learned Senior Advocate with Shri J.K. Pillay, counsel for appellant.
Counsel for appellant submits that by mistake the appellant has filed this appeal before this Court while under Section 18 of the Telecom Regulatory Authority of India Act, 1997, appeal lies before the Apex Court. He submits that he may be permitted to withdraw this appeal with liberty to file a fresh appeal before the Apex Court. Prayer is allowed. This appeal is dismissed as withdrawn with liberty as prayed.
9. The appeal filed before the Hon'ble High Court of M.P. was withdrawn with a specific prayer to file an appeal at the right forum, i.e., Apex Court.
10. The issue which needs to be decided is whether the appeal filed by the petitioner tantamounts to invocation of its right Under Section 18 since it approached the Hon'ble High Court of M.P. rather than the Apex Court or this action of the petitioner is to be considered as an error which gives it liberty to still file a review petition. I would like to refer to provisions of CPC dealing with review - Section 114 and Rule 1 of Order 47 of the CPC which are re-produced as under:
114. Review. - Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit."
11. Rule 1 Order 47 which specifies the types of the orders and the conditions under which they may be reviewed, reads thus:
[1. Application for review of judgment-(1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.
12. Apex Court had dealt with this issue and judgments in these cases are very clear and when read with Section 114 and Rule 1 of Order 47 lay down the ground rules that in case an appeal has been preferred against the order of a Tribunal, then, the petitioner / appellant ceases the right of review of that order. Order 47 Rule 1 clearly states the objective of review. The petitioner has at first instance preferred an appeal for quashing order of this Tribunal. Prima facie the application for review should have been exercised before filing an appeal rather than after.
13. The issue before me is very specific, which will decide the maintainability of this review application. Since the appeal was filed Under Section 18, we can easily conclude that the petitioner in the instant case had filed the appeal and thus invoked its right Under Section 18. The only question is that the right forum for appeal was the Apex Court and not High Court. But the orders of the Hon'ble Supreme Court cited by both the parties state that in the eventuality of appeal having been filed/preferred, the right to review ceases. Further I have no hesitation to state that the petitioner withdrew the appeal with a specific prayer to go the Hon'ble Supreme Court against the order dated 15.5.2007 of this Tribunal. The Hon'ble High Court of M.P. also ordered accordingly. For a moment, if I admit this review application and start hearing the case on the merits, it will amount to stepping over the Orders of the Hon'ble High Court of M.P. since that order is very specific in giving liberty to the petitioner to go to the Hon'ble Supreme Court. Therefore, the only option left with the applicant/petitioner is to file an appeal with the Supreme Court against the Order dated 15.5.2007. There is no justification to ask for review after having gone for appeal, irrespective of the fact that it chose to go to a High Court rather than the Supreme Court.
14. Even if in order to give benefit of doubt to the petitioner, one has to accept the submission made by the petitioner that it erroneously filed the appeal with the Hon'ble High Court of M.P., one must discuss the likely outcome of the appeal in case it had not been withdrawn. If the Hon'ble High Court had dismissed the appeal, the petitioner was left with no choice but to go to the Apex Court. On the contrary, if the appeal was admitted and the petitioner had got redress, even then it would have amounted to invocation of the petitioner's right Under Section 18 thereby closing the doors for review of the order at this Tribunal. In both the options, therefore, the option to review of the order of the Tribunal closes for good. I would also like to state that difference in error of omission and commission has to be very clearly understood. This was not an error of omission that I can accept in favour of the petitioner since the appeal was filed by an advocate thereby clearly showing that it was an error of commission which cannot be condoned.
15. During the arguments, I posed a question to the learned Senior Counsel for the petitioner asking him as to why he did not withdraw the appeal with a specific prayer to come to the Tribunal for review of our Order. I feel if the petitioner had erroneously filed the appeal, though this fact cannot be accepted easily but even if for a moment it is assumed that the petitioner had gone by mistake and had the intention to come for review, it could have withdrawn the appeal with that specific prayer. This was not done. The prayer for withdrawal of the appeal is for liberty to go for an appeal to the Apex Court which was granted by the Hon'ble High Court of M.P. and that is the right course now open to the petitioner. I also find that the petitioner concealed this fact of filing of appeal with the Hon'ble High Court of M.P.
16. In view of the above, I find it difficult to accept the argument of the petitioner on maintainability of this review petition and the same is dismissed.