Orissa High Court
Chief Administrator vs Narasingha Mohapatra on 11 December, 2024
ORISSA HIGH COURT: CUTTACK
RVWPET No.161 of 2024
(Arising out of Judgment dated 05.02.2024
passed in W.P.(C) No.56 of 2024)
AND
IA No.245 of 2024
In the matter of an Application under
Section 5 of the Limitation Act, 1963
for condonation of delay in filing review petition
under Section 114 read with Order LXVII, Rule 1
of the Code of Civil Procedure, 1908
***
1. Chief Administrator Shri Jagannath Temple, Puri Represented by Jitendra Kumar Sahu Aged about 58 years Working as Administrator At/PO/District: Puri
2. Administrator, Niti Shri Temple, Puri, Jitendra Kumar Sahu Aged about 58 years At/PO/PS/District: Puri. ... Petitioner.
(Opposite party Nos.4
and 5 in the Writ Petition)
-VERSUS-
1. Narasingha Mohapatra
Aged about 50 Years
Son of Late Loknath Mohapatra
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 1 of 57
2. Biswanath Mohapatra
Aged about 45 years
Son of Late Lokanath Mohapatra
At: Dolamandap Sahi,
Samil: Suarsahi
P.S.: Puri Town
District: Puri.
3. State of Odisha
Represented through
The Chief Secretary
Working Chairman of
Managing Committee
Shri Jagannath Temple, Puri
At/P.O./District: Puri. ... Opposite parties.
(Petitioners
in the Writ Petition)
4. Collector, Puri
At/PO/District: Puri.
5. The Secretary
Department of Law, Odisha
Lokaseva Bhawan
Bhubaneswar, District: Khordha.
6. Lingaraj Mishra
Son of Late Satyabadi Mishra
At: Khudheibenta Sahi
Panchamukhi Choura
At/P.O./P.S./District: Puri. ... Proforma
Opposite parties.
(Opposite parties
in the Writ Petition)
Counsel appeared for the parties:
For the Petitioner : Ms. Sunshine Anand Swain,
Mr. Anand Chandra Swain,
Advocates
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 2 of 57
For the Opposite Party : M/s. Bhaskar Chandra Panda,
Nos.1 and 2 S. Mishra, J.N. Panda,
A. Tripathy, A. Mishra
Advocates
For the Opposite Party : Mr. Bimbisar Dash,
Nos.3, 4 and 5 Additional Government Advocate
For the Opposite Party : M/s. Debashis Nanda,
No.6 Sudhamayee Das and S.N. Das
Advocates
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. CHAKRADHARI SHARAN SINGH
AND
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 26.11.2024 :: Date of Judgment : 11.12.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
Review of Judgment dated 05.02.2024 rendered in the writ petition bearing W.P.(C) No.56 of 2024 is sought for by the review-petitioners (arrayed as the opposite party Nos.4 and 5 in the writ petition) under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.
1.1. The review petition filed on 16.07.2024 is accompanied by an interlocutory "Application under I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 3 of 57 Section 5 of the Limitation Act, 1963 for condonation of delay in preferring the RVWET petition read with under Rule 27(a) Chapter-VI of Orissa High Court Rules, 1948" with a prayer to condone the delay of 129 days in filing said review petition.
Facts as stated by the review-petitioners:
2. The synopsis enclosed to the review petition reveals that the petitioners seek review of the Judgment dated 05.02.2024 insofar as it was held that the hereditary seva of the deity, mentioned in the Record-of-Rights, should not have been discontinued due to financial stringency, especially considering the substantial funds being allocated by the State Government for the development of Lord Shree Jagannath Temple. Emphasizing the importance of various servitors performing their duties for Lord Shri Jagannath, it has been directed in the said Judgment that the Temple Administration is required to promptly restore the Danadhyakshya Seva within three months.
2.1. It is stated by the petitioners as follows:
"The petitioners express regret for not submitting a detailed counter-reply prior to the hearing due to time constraints but had requested the disposal of the grievance petition under Annexure-9 Series, I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 4 of 57 to be addressed by the Appeal Committee latter as per the Shree Jagannath Temple Act, 1956."
2.2. The petitioners claimed to have argued that the Danadhyakshya Seva is not hereditary, and the observation of the Court is not in consonance with the Temple Record-of-Right. The Record-of-Right indicates that the seva was performed by Rama Chandra Mishra only on lunar eclipse day, but not performed daily or periodically. Such seva had been discontinued since more than 68 years. The discontinuance did not affect routine rituals of the temple.
2.3. The petitioners seek to contend that discontinuance of seva was not on account of financial difficulties during the Maharaja‟s Rule, but most possibly due to the inability or demise of Sevak Rama Chandra Mishra, as it is an individual right.
2.4. Furthermore, the petitioners dispute the claim of the opposing party No.6 as legal heirs of Rama Chandra Mishra, citing inconsistencies in records regarding lineage and failure to provide a legal heir certificate. These review-petitioners assert that the alleged procedure for the seva performance, as described by opposite party No.6, is fabricated to falsely claim ownership of the seva and its associated benefits.
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 5 of 572.5. In the light of these arguments and citing errors apparent on the face of the record, the petitioners requested for review of Judgment of this Court urging reconsideration inter alia on the grounds:
"A) For that the impugned judgement suffers from errors apparent on the face of record;
B) For that the Danadakhyakshya Seba is not hereditary in nature and is not a traditional Niti of the Deity;
C) For that the said Danadakhyakshya Seba had been stopped since more that 68 years without affecting Deity;
D) For that Danadakhyakshya Seba is an individual rights and is valid till life time of that a Sebaka and perishes with the death of that Sebaka;
E) For that the claim of the petitioners in favour of the opposite party No.6 is a stale claim having disputed question of facts and documents;
F) For that, it is apparent from the Record-of-Rights and duties of various classes of Sebaks and others employed for or connected with Seba-Puja of the Temple, one Siva Mishra, grandson of Ramachandra Mishra was receiving Dana (Gift) on lunar eclipse day only, but received daily khei for the above seba and has been stopped since preparation of Record-of-Rights without having claim from any corner for a pretty long time;I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 6 of 57
G) For that the complete and authenticated RoR was not brought to the notice of this Hon‟ble Court for kind perusal before passing the final judgement dated 05.02.2024."
3. Since there has been delay in filing above review petition under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, interlocutory application under Section 5 of the Limitation Act, 1963, registered as I.A. No.245 of 2024, has been filed for consideration to condone the delay of 132 days. The petitioners have cited the following cause in the said interlocutory application for the delay:
"3. That, though review petition could have been filed within a period of 30 days, due to departmental and official sanction and legal opinion to bring relevant and authenticated facts before this Hon‟ble Court, the review petition was filed on 22.04.2024, however, the registry pointed out defect on 29.04.2023 (sic. 29.04.2024) which could not be removed due to severe road accident of the advocate‟s clerk. Hence this refiling is made with a delay of 152 days which is neither intentional nor deliberate on the part of the petitioners.
4. It is respectfully submitted that the petitioners are custodian of the deity, being perpetual minor whose interest need to be protected and safeguarded by all in all respect and the petition is bona fide.
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 7 of 574. That, the interest of justice will better be served if this Hon‟ble Court be pleased to allow this petition by condoning the period of delay of 132 days in filing the review petition ,otherwise the petitioners would be highly prejudiced. That the petitioners submit that they are sufficiently prevented to file this review petition, which is neither intentional nor deliberate. That there are prima facie case in favour of the petitioners and shall be highly prejudice, if delay is not condoned."
Response of the opposite party No.6:
4. Strongly raising objection on the merit of the review petition that it is contended that there was persistent demand by the predecessors of the opposite party No.6 for revival of Danadhyaksya Seva. This seva does find mentioned in the Record-of-Right and is hereditary one. Such seva has connection with other sevas of the Temple. It is stated that Letter dated 24.05.2012 was issued by the Temple Administration to Shri Jagannath Patjoshi Mohapatra to submit report and therein it has been stated that the application for revival of Danadhyakshya Seva was placed before the Niti Sub-Committee and Managing Committee on 22.02.2012 and 03.03.2012. It is also stated that as per Temple Record-of-Right at Serial No.7 against Seva No.119, Shiva Mishra, his son Ramachandra Mishra and his grandson were performing the I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 8 of 57 Danadhyakshya Seva. This clearly shows that such seva is hereditary.
4.1. Though the review petition was required to be filed on or before 06.03.2024, but the same was filed on 22.04.2024, which was registered as Diary RVWPET No.17919 of 2024. As the defects pointed out by the Registry were not removed, the said review petition got dismissed on 21.06.2024. The present review petition is the successive one with inordinate delay in approaching this Court challenging the Judgment dated 05.02.2024.
4.2. It is pointed out that in the present review petition having not disclosed such fact, the review petition is liable to be dismissed in limine.
Consideration of submissions on maintainability of review petition by changing of lawyer:
5. This Court on 05.11.2024 passed the following Order:
"2. The present review application has been filed on behalf of the petitioners seeking review of an order dated 05.02.2024 passed in W.P.(C) No.56 of 2024.
3. The petitioners in the present review petition were duly represented in the writ proceeding but through a different set of counsel. Thus, we are of the prima facie opinion that the present review petition, filed by Mr. A.C. Swain, learned counsel I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 9 of 57 on behalf of the petitioners (opposite parties No.4 and 5 in the writ petition), ought not to have been filed by changing the lawyer.
4. Mr. Swain, learned counsel appearing on behalf of the petitioner seeks an adjournment to assist this Court on the next date.
5. As requested, list this matter on 26.11.2024."
5.1. Sri Anand Chandra Swain, Advocate representing the review-petitioners submitted that after obtaining consent of the earlier counsel namely Sri Laxminarayan Rayatsingh, Advocate (Annexure-R/5 enclosed to Additional Affidavit filed on 22.11.2024) the review petition has been filed by him by duly executing Vakalatnama by Administrator of the Shree Jagannath Temple.
5.2. In order to examine truth or otherwise of such statement this Court has perused the records of writ petition and the review petition.
5.3. On 08.01.2024, this Court in W.P.(C) No.56 of 2024 passed the following Order:
"2. Heard learned counsel for the parties.
3. The petitioners have filed this writ petition seeking direction to opposite parties No.4 and 5 to take steps to revive the Dana Dhakshya Seva No.119 (at sl.no.7) of the Record-of-Right of Temple Administration.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 10 of 57
4. Mr. B.C. Panda, learned counsel appearing for the petitioners contended that for the reason best known the authority has stopped the Danadhyakshya Seva, which the „Brahmins‟ are entitled to get. It is contended that on the basis of the grievance made by the „Brahmins‟, the same was considered and the temple administration had taken a decision on the resolution dated 30.11.2011 stating inter alia that the issue relating to revival of Danadhyakshya Seva entitlement of benefits thereof should be placed before the Niti Sub-Committee for consideration. Thereafter, on 03.03.2012, though such decision was taken but till date the same has not been revived. It is contended that the State Government is going to bear the cost of Puri Parikrama Prakalpa, leaving aside the similar issues which is part of the Niti Seba of the deity. It is contended that if Danadhyakshya Seva is introduced, Page 2 of 2 then the visitors of the temple would get some Prasad. As Danadhyakshya Seva has four „badas‟, of which one „bada‟ would be served to the visitors of the Temple and, as such, the same was prevailing from time immemorial. Therefore, to stop the same, the authority has no justification.
5. Mr. J.P. Pattnaik, learned Government Advocate seeks time to obtain instructions in the matter.
6. Issue notice to the opposite parties.
7. Three extra copies of the writ petition be served on learned State Counsel appearing for opposite parties No.1 to 3 within three working days I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 11 of 57 enabling him to obtain instructions or file counter affidavit.
8. Since Mr. Subrat Satpathy, learned counsel usually appears for Temple Administration, let two extra copies of the writ petition be served on his associate Mr. Rayatsingh, learned counsel for opposite parties No.4 and 5 within three working days enabling him to obtain instructions or file counter affidavit.
9. Steps for service of notice on the opposite party No.6 by speed post/registered post with A.D. be taken within three days. Office shall send notice to the said opposite party fixing an early returnable date.
10. List this matter after one week."
5.4. On 31.01.2024 in the said writ petition, the following Order was passed:
"1. Mr. B.C. Panda, learned counsel for the petitioners states that in compliance with the order dated 08.01.2024, a copy of the writ petition has been served on Mr. Subrat Satapathy, learned counsel who usually appears for the Temple Administration. He has also served two extra copies of the writ petition on Mr. Rayatsingh, learned counsel for Opposite Party Nos.4 and 5.
2. The names of Mr. Subrat Satapathy and Mr. Rayatsingh be indicated in the cause list since their name does not appear.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 12 of 57
3. Opposite Party No.6 has already filed the counter affidavit. Let a copy thereof be served on the counsel for the petitioner as well as other opposite parties.
4. Call this matter next week."
5.5. On 05.02.2024, the matter was heard exhaustively and this Court rendered the Judgment finally disposing of the matter. At paragraph 5 of the Judgment of even date reflects as follows:
"5. Mr. Subrat Satapathy, learned counsel appearing on behalf of Temple Administration-opposite parties No.4 and 5 contended that since the grievance petitions under Annexure-9 series are pending with the authority, therefore the same may be directed to be considered and disposed of."
5.6. At the commencement of hearing of the present review petition on 26.11.2024, Sri Anand Chandra Swain, learned Advocate in order to meet the query posed by this Court as regards maintainability of review petition being filed by different lawyer than who appeared and participated in the final hearing of writ petition on 05.02.2024, furnished a paper book containing copies of following documents (with one of them incomplete), the index of which as furnished by learned counsel is extracted hereunder:
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 13 of 57 Sl. Particulars Page No.
No.
1. Tamil Nadu Electricity Board and Ors. Vs. 1-2
N. Raju Reddiar And Ors.
2. M. Poornachandran and Ors. Vs. 3
State Of Tamil Nadu And Ors.
3. A.A. Gopalakrishnan Vs. 4-9
Cochin Devaswom Board And Ors.
4. Lokesh Patro and Ors. Vs. 10-13
Commissioner Of Endowments And Ors.
5. Biswanath Sahu Vs. 14-31 State Of Odisha And Ors.
6. Hamza Haji Vs. State Of Kerala And Ors. 32-40
7. S.P. Chengalvaraya Naidu (Dead) By L.Rs. Vs. 41-44 Jagannath (Dead) By L.Rs. And Ors
8. A.V. Papayya Sastry and Ors. Vs. 45-57 Government of A.P. And Ors.
9. The State Of Orissa Vs. 58-73 Ramesh Chandra Swain And Ors.
10. Tilokchand and Motichand and Ors. Vs. 74-97 H.B. Munshi And Ors.
11. State Of Madhya Pradesh Vs. Bhailal Bhai And Ors 98-105
12. Batakrushna Behera & Ors. Vs. State Of Orissa & Ors. 106-110 I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 14 of 57
13. Shivdeo Singh and Ors. Vs. State Of Punjab And Ors. 111-114
14. Ram Chandra Deb Vs. The State Of Orissa 115-135
15. Opinion by Advocate Sanjay K. Das, Supreme Court of 136-140 India
16. Opinion by Advocate Subrat Satpathy, Orissa High Court 141-144 5.7. Out of the case laws cited by Sri Anand Chandra Swain, learned Advocate, two decisions namely Tamil Nadu Electricity Board and Ors. Vrs. N. Raju Reddiar And Ors., (1997) 9 SCC 736 and M. Poornachandran and Ors. Vrs. State Of Tamil Nadu And Ors., (2007) 9 SCR 1 are related to filing of review petition by change of lawyers.
5.8. As if this Court is bound by the valued opinions of learned Advocates as found place in the said paper book (one by a lawyer of Supreme Court of India suggesting for filing review petition; and the other by Sri Subrat Satpathy, learned Advocate suggesting for filing SLP), Sri Anand Chandra Swain, learned Advocate would submit that review of the Judgment dated 05.02.2024 has been preferred on the basis of opinion sought for. However, on scrutiny of the opinions1, it could be ascertained that Sri Subrat 1 Incomplete copy of opinion of Sri Subrat Satpathy, learned Advocate, Orissa High Court has been placed in the paper book without pagination.
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 15 of 57Satpathy, learned Advocate who represented for and on behalf of the present review petitioners during the course of writ proceedings, opined as follows:
"It may note the writ petition was filed on 04.01.2024 and listed on 08.01.2024 on which date their lordships‟ already expressed views while directing the State Government to obtain instructions in the matter and accordingly on being directed copy of writ petition was also served on me. Your Good Office vide Letter dated 03.02.2024 requested me to enter appearance on behalf of opposite party Nos. 4 & 5, but surprisingly, the opposite party No.6 on 28.01.2024 filed his counter affidavit admitting the plea in the writ petition and on 05.02.2024 the Hon‟ble Court without allowing time to file any counter affidavit had proceeded with for disposal of writ petition which is not only illegal but also abuse process of law by not giving proper opportunity to examine the case and moreover, filing such petition in shape of PIL is nothing but collusive one when the petitioners have not explained their locus to file such petition seeking a direction in favour of a particular private opposite party which clearly question on maintainability of the petition. Having not considered all these Hon‟ble Court allowed the writ petition is to be assailed in SLP before Hon‟ble Supreme Court."
5.9. As it appears from the above view of Sri Subrat Satpathy, learned Advocate, the petitioners had instructed him only (as the word „me‟ signifies) to appear for participating in the writ proceeding. Therefore, he only was required to be consulted for I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 16 of 57 according "No Objection Certificate" for any other lawyer to approach this Court. Ms. Sunshine Anand Swain, learned Advocate along with Sri Anand Chandra Swain could not have filed Vakalatnama executed by one of the review petitioners, namely "Jitendra Kumar Sahoo, Administrator, Shree Jagannath Temple, Puri" by obtaining consent of Sri Laxminarayan Rayatsingh, learned Advocate vide Letter dated 05.04.2024 (Annexure-R/5 to the Additional Affidavit).
5.10. Minute scrutiny of record does not reveal that consent has ever been obtained from Sri Subrat Satpathy, learned Advocate who appeared and argued before this Court on 05.02.2024.
5.11. The Vakalatnama mentioned to have been executed on 15.07.2024 by the "Chief Administrator, Shri Jagannath Temple, Puri, Represented by Jitendra Kumar Sahoo, aged about 58 years, working as Administrator, At/P.O./District: Puri", but signed in the capacity of "Administrator" (the review-petitioner No.2) authorised learned Advocates namely, Ms. Sunshine Anand Swain and Sri Anand Chandra Swain, inter alia "to appear for me/us in the above cases and to conduct and prosecute/defend the same and all proceedings that may be taken in respect of I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 17 of 57 any application connected with the same or any decree or order passed therein including all applications for return of document or receipt of any money that may be payable to me/us in the case... (rest part is illegible)".
5.12. Since Subrat Satpathy, learned Advocate, who stated to have instructions of the review-petitioners to appear before this Court in the writ proceeding, was not consulted to accord "No Objection Certificate" for filing review petition by any other lawyer; and Sri Laxminarayan Rayatsingh, learned Advocate who had never been instructed to appear, as it emanates from the afore-quoted paragraph contained in the opinion of Sri Subrat Satpathy, Advocate, the Vakalatnama authorising Ms. Sunshine Anand Swain and Sri Anand Chandra Swain, Advocates by the review-petitioner No.1 is considered as has not been duly executed.
5.13. In the case of Tamil Nadu Electricity Board Vrs. N. Raju Reddiar, (1997) 9 SCC 736, as relied on by Sri Anand Chandra Swain, learned Advocate, it has been laid down by the Hon‟ble Supreme Court of India as follows:
"1. It is a sad spectacle that a new practice unbecoming and not worthy of or conducive to the profession is cropping up. Mr I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 18 of 57 Mariaputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on 24.04.1996. Yet another advocate, Mr. S.U.K. Sagar, has now been engaged to file the present application styled as "application for clarification", on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the Advocate- on-Record who neither appeared nor was party in the main case. It is salutary to note that the court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the Advocate-on-Record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession.
In Review Petition No. 2670 of 1996 in CA No. 1867 of 1992, a Bench of three Judges to which one of us, K. Ramaswamy, J., was a member, had held as under:
„The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 19 of 57 when the appeal was heard and decided on merits. The review petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the review petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would not be in the interest of the profession to permit such practice. That apart, he has not obtained „No Objection Certificate‟ from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the „No Objection Certificate‟ would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the „No Objection Certificate‟ from the erstwhile counsel has disentitled him to file the review petition. Even otherwise, the review petition has no merits. It is an attempt to reargue the matter on merits.
On these grounds, we dismiss the review petition.‟
2. Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record.
This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 20 of 573. The application is dismissed with exemplary costs of Rs.20,000/- as it is an abuse of the process of court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from today. If the amount is not paid, it should be recovered treating this direction as decree of the Court by the Supreme Court Legal Services Committee. The Registry is directed to communicate this order to the Supreme Court Legal Services Committee."
5.14. The learned Advocate for the review-petitioner referring to said judgment of the Hon‟ble Supreme Court of India submitted that he has obtained the requisite "No Objection Certificate" from earlier counsel.
5.15. Examining veracity of such assertion of the counsel for the review-petitioners, first of all it is depicted that the Chief Administrator/Administrator of Shree Jagannath Temple, Puri had instructed the counsel to appear before this Court in writ proceedings. As has already been observed in the foregoing paragraphs that it is manifest from the opinion of Sri Subrat Satpathy, Advocate that the Chief Administrator/Administrator had instructed him (only) to appear before this Court. In fact, submissions on behalf of the review-petitioners were advanced before the writ Court by Sri Subrat Satpathy, Advocate (vide Paragraph 5 of the Judgment I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 21 of 57 in the writ petition). Therefore, to repeat it may be stated that the "No Objection Certificate" stated to have been obtained from Sri Laxminarayan Rayatsingh, Advocate, as finds place at Annexure-R/5 to the Additional Affidavit filed on 22.11.2024 before this Court by the petitioners, has no sanctity in law. As such the contention of Sri Anand Chandra Swain, learned Advocate, in this regard is repelled.
5.16. It is the considered view of this Court that the decision rendered by the Hon‟ble Supreme Court of India in the case of N. Raju Reddiar (supra) does not support the contention of Sri Anand Chandra Swain, Advocate, rather he is not duly authorised to file review petition, appear and plead in the review proceeding.
5.17. The decision of the Hon‟ble Supreme Court of India in the case of M. Poornachandran Vrs. State of Tamil Nadu, (1996) 6 SCC 755 as referred to by Sri Anand Chandra Swain, learned Advocate cannot be said to have any assistance to buttress his contention, as in the said case it has been held that, "The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record when the appeal was heard and decided on merits. The review petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 22 of 57 arguments. It is unknown on what basis he has written the grounds in the review petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would be not in the interest of the profession to permit such practice. That apart, he has not obtained "No Objection Certificate" from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the "No Objection Certificate" would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the "No Objection Certificate" from the erstwhile counsel has disentitled him to file the review petition. Even otherwise, the review petition has no merits. It is an attempt to re-argue the matter."
5.18. This Court in Governing Body of Ispat College Vrs.
State of Odisha, 2011 (I) ILR-CUT 307 = 113 (2012) CLT 657 after referring to N. Raju Reddiar (supra) observed as follows:
"5. A similar question came up for consideration before the Allahabad High Court in the case of Mohan Lal Bagla Vrs. Board of Revenue, U.P., Lucknow and others, AIR 2005 All 308, wherein the Hon‟ble Court while referring to the observations of the Apex Court in Tamil Nadu Electricity Board (supra)2, proceeded to hold as under:
„5. *** The review petition appears to have been filed by new counsel mainly on the ground 2 Tamil Nadu Electricity Board Vrs. N. Raju Reddiar, (1997) 9 SCC 736.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 23 of 57
that some letters written by Mohan Lal Bagla to the Deputy Collector, Sales Tax and to the Commissioner have not been taken note and bid sheet has not been considered by this Court in respect to which suffice it to say that it cannot be said by Sri Singh, who is new counsel for the purpose of arguing review petition that whether the aforesaid letters were referred in the argument and they were relied by the then counsel and whether any effort was made by learned advocate to lay emphasis on those documents as they have any relevance in the matter in issue and thus the question touching with the proceedings of the Court and discussion during course of argument by a new counsel who was neither arguing counsel nor assisting counsel at the initial stage, cannot be permitted. To argue some details as a question of fact in second inning of the matter cannot be permitted. ***‟ ***
7. Coming to the question as to whether a plea which has not been taken or raised at the time of hearing of the original Writ Petition can be allowed to be raised while seeking review of the order passed in the said Writ Petition, it is now fairly well settled that if a Counsel has not raised a point or taken a plea in the original proceeding, review is not maintainable, for the simple reason that such a mistake would not be apparent on the face of the record. Moreover, the expression "discovery of new and important matter of evidence" contained in the provisions of Order XLVII Rule 1 CPC means, I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 24 of 57 discovery of an evidence or any material; which could not be produced at the initial stage, in spite of due diligence. The said expression cannot be expanded to take within its ambit an argument which could have been advanced by the Counsel, at the time of hearing of the original proceeding.
***
15. The ambit and scope of a review, as has been held in the aforementioned cases, has been considered, affirmed and reiterated in a subsequent decision of the Apex Court in the case of Haridas Das Vrs. Smt. Usha Rani Bank, (2006) 4 SCC 78 = AIR 2006 SC 1634, wherein the Hon‟ble Court observed as under:
„In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this Section does not even adumbrate the ambit of interference expected of the Court since it merely states that it "may make such order thereon as it thinks fit." The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason." The former part of the rule deals with a situation attributable to the applicant; and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 25 of 57 cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the Judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such Judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.‟
16. On an analysis of the aforesaid decisions, it is seen that the law is well settled that the power of review is available only when there is a mistake or an error apparent on the face of the record and not for correcting are erroneous decision. Hence the plea that the decision is erroneous on merit due to wrong interpretation of law or because of illegal and erroneous finding, whether on fact or in law, cannot be a ground for review. The said power of review cannot be exercised for rehearing and correcting an erroneous decision. The only remedy available to the aggrieved party, is to assail such erroneous decision in appeal. The power to review is a restricted power which authorizes the Court, which passed the Judgment sought to be reviewed, to look over through the Judgment not in order to substitute a fresh or a second Judgment but in order to correct it or improve it, because some material which it ought I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 26 of 57 to have considered had escaped its consideration or failed to be placed before it for any other reason."
5.19. While considering the scope of acceptance of review petition being filed and argued by change of lawyer, the Hon‟ble High Court of Patna in Rishi Kesh Kumar Vrs. Minakshi Kumari, 2019 SCC OnLine Pat 587 observed as follows:
"11. In the case of Usha International Ltd. (supra)3 while relying upon the earlier Division Bench of this Court in the case of Rotary Club, Begusarai (supra)4 the Hon‟ble Division Bench of this Court had occasion to consider the review application which was filed by a change of lawyer. The Hon‟ble Division Bench reiterated its views expressed in Rotary Club, Begusarai (supra) as under:
„*** Recourse to review by change of lawyers is normally deprecated by Courts. The practice becomes all the more reprehensible when review is sought on grounds pertaining to the previous conduct of the case or other grounds of fact normally within the knowledge of the previous lawyer(s). To my mind a lawyer must be very reluctant to take up a brief of review unless he had appeared in the case, the order passed in which is the subject of review. In case for some reasons a change of lawyer is unavoidable, the 3 Usha International Ltd. Vrs. The Commissioner of Commercial Taxes, Bihar, 2019 (1) PLJR 872.
4 Rotary Club, Begusarai Vrs. State of Bihar, AIR 2001 Patna 115.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 27 of 57
newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified by the lawyer earlier conducting the case. In case a review is filed by a new lawyer a certificate ought to be appended to the review petition, preferably by the previous counsel, stating that the facts stated in the petition were correct or alternatively by the newly engaged lawyer testifying that he had got the facts stated in the review petition verified by the previous lawyer. ***‟
12. In the review application what is important to be seen is that if an error has occurred because of mistake of the Court or for any other reason which is likely to cause injustice to a party, the same is required to be corrected.
13. This Court is of the considered opinion that this review application by a change of lawyer is liable to be rejected in view of the Division Bench judgment of this Court in the case of Usha International (Supra). After following the basic principle of review, this Court is of the considered opinion that in the nature of the present proceeding no injustice has been caused to the present petitioner by directing transfer of the records of the matrimonial case from the court at Patna to the court at Muzaffarpur where the maintenance case is also pending. The only ground on merit for review of the order passed by this Court is that the petitioner is presently posted at Mumbai and while it will be convenient for him to visit Patna on the date fixed in the matter, if he I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 28 of 57 is required to go Muzaffarpur he will be required to take one more day of leave. It is to be remembered that the petitioner has filed the application for restitution of conjugal rights, if it is the ultimate intention of petitioner to restore the relationship, the kind of plea which has been now sought to be raised in the review application to avoid visiting Muzaffarpur cannot be taken as a bona fide plea. The kind of hardship being faced by the wife of the petitioner has already been taken note of hereinabove."
5.20. On 05.11.2024 when the matter was on board and called on for hearing, the learned Advocate started arguing the merit of the review petition instead of making submission on the interlocutory application for condonation of delay. Nonetheless, this Court having raised the question of maintainability, the matter stood adjourned at the behest of Sri Anand Chandra Swain, learned Advocate for addressing this Court on the said point.
5.21. Upon hearing the matter on the aforesaid question as to whether change of lawyer for the purpose of review of Judgment dated 05.02.2024 is permissible without having "No Objection Certificate" of the counsel who appeared in the writ proceeding and appending the same with the review petition, perusal of record reveals that the review petition as filed does not contain "No Objection Certificate" of Sri Subrat I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 29 of 57 Satpathy, Advocate, though a copy of "No Objection Certificate" stated to have been obtained from Sri Laxminarayan Rayatsingh, Advocate has been enclosed to Additional Affidavit. It has been made clear by Sri Subrat Satpathy, learned Advocate, in his opinion that the review-petitioners have instructed him alone, but not Sri Laxminarayan Rayatsingh, Advocate, to appear and plead before this Court.
5.22. With the conspectus of aforesaid decisions rendered by different Courts, the arguments advanced by the learned advocate for the review-petitioners to entertain the review petition on the specious plea that the Danadhyakshya Seva is not hereditary in nature and is not a traditional Niti of the Deity, which was discontinued since more than 68 years, is nothing but to re-argue already considered plea in the Judgment dated 05.02.2024 rendered in the writ petition. Such a stance is not entertainable in the garb of the review petition. Noteworthy here to take note of following contents contained in paragraph 6 of said Judgment:
"This Court heard Mr. Bhaskar Chandra Panda, learned counsel appearing for the petitioners, Mr. L. Samantaray, learned Additional Government Advocate appearing for State-opposite parties No.1 to 3, Mr. Subrat Satapathy, learned counsel appearing for the Temple Administration-opposite parties No. 4 and 5; and Ms. S. Das, learned counsel appearing for opposite I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 30 of 57 party No.6. Considering the nature of grievance made by the petitioners, this Court is not inclined to adjourn the matter any further and proceeded to decide it."
5.23. It is not the case of the review petitioners nor the other opposite parties in the writ petition that they were not heard and granted opportunity to argue on 05.02.2024. Sri Subrat Satpathy, learned Advocate for the opposite parties-Temple Administration also never sought for adjournment on that date; rather made his submission which is recorded at paragraph 5 of said Judgment.
5.24. Significant it is to take note of the fact that Sri Anand Chandra Swain has not demonstrated sufficient cause for condonation of delay in filing the review petition. Nothing is also spelt out in the review petition as to the reason for the dismissal of earlier review petition challenging very same Judgment dated 05.02.2024. Neither on 05.11.2024 nor on 26.11.2024 learned counsel sought to insist to condone the delay. Such suppression of fact having material bearing on consideration of condonation of delay in filing review petition touches the element of "fraud" on Court.
5.25. Therefore, on perceiving in the aforesaid factual scenario that the review-petitioners are not competent to file review petition by change of lawyer, this Court I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 31 of 57 desists from reopening the case and hear Sri Anand Chandra Swain, Advocate for the review-petitioners to re-agitate the issue which was considered in the Judgment dated 05.02.2024 while disposing of the writ petition having noted the submission of Sri Subrat Satpathy at paragraph 5 of the said Judgment.
5.26. This Court at paragraphs 9 of the Judgment after hearing the counsel for respective parties, and taking note of definition of "sevak" as contained in Section 4(d-1) and powers and duties of the Chief Administrator envisaged under Section 21(2)(i) of the Shree Jagannath Temple Act, 1955, held at paragraph 10 as follows:
"Therefore, this is a right accrued in favour of opposite party No.6, which comes within the definition of „Sevak‟ as he had been discharging the duties of Danadhyakshya Seva, which had been assigned to him. As such, Danadhyakshya Sevaks had been appointed by the King of Puri, therefore, Danadhyakshya Seva cannot and could not have been stopped by the authority, which had been performed by the ancestors of opposite party no.6 from time immemorial. By stopping such Seva, the accrued right in favour of opposite party No.6 has been taken away without any rhyme or reason. When opposite party No.6 is willing to discharge his responsibility as Danadhyakshya Sevak, there is no valid and justifiable reason available with the Temple Administration to stop it. As such, such Seva is rendered by opposite I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 32 of 57 party No.6 and his ancestors with an avowed objective to distribute the Prasad among the devotees, who come to Shri Jagannath Temple. This process is not beneficial to any individual like opposite party No.6, rather, it is for the benefit of the devotees at large. This Seva is a recognition to the Brahmins by the Ruler, the king, which is hereditary in nature. That could not have been taken away in a flimsy manner, or that could not have been stopped without giving opportunity of hearing to opposite party No.6. Hereditary rights could not have been taken away without any justification. Therefore, the opposite parties shall restore such position giving due regard to this class of Sevaks, who were performing their duties and responsibilities from time immemorial and, as such, recognising their work they have been placed in the Record of Rights of Shri Jagannath Temple. When such recognition has been given statutorily, the same could not have been taken away by stopping the same abruptly. Thereby, the action of the authorities is arbitrary, unreasonable and contrary to the provisions of law."
5.27. It has been laid down in Asharfi Devi Vrs. State of U.P., (2019) 1 SCR 855 = 2019 INSC 124 that, "It is settled law that every error whether factual or legal cannot be made subject-matter of review under Order 47 Rule 1 of the Code though it can be made subject-matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case."
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 33 of 575.28. Regard can be had to Thungabhadra Industries Ltd. Vrs. Government of Andhra Pradesh, (1964) 5 SCR 174 = 1963 INSC 213 = AIR 1964 SC 1372, wherein it is stated thus:
"*** 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. ***"
5.29. It, thus, cannot be gainsaid that under the garb of review, a party cannot be permitted to reopen the case and to gain a full-fledged inning for making submissions, nor review lies merely on the ground that I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 34 of 57 it may be possible for the Court to take a view contrary to what had been taken earlier. This Court is fortified with the view expressed by the Hon‟ble Supreme Court in the case of High Court of Madhya Pradesh Vrs. Mahesh Prakash, AIR 1994 SC 2595 = (1995) 1 SCC
203. 5.30. If a counsel has argued a case to his satisfaction and he had not raised the particular point for any reason whatsoever, it cannot be a ground of review. If a case has been decided after full consideration of arguments made by a counsel, he cannot be permitted, even in the garb of doing justice or substantial justice, to engage a Court again to decide the controversy already decided. In case the parties relying upon any matter or evidence discovered by it at a subsequent stage then it is for him to satisfy the Court that the said matter or evidence could not be discovered or produced at the initial stage though it had acted with due diligence. The expression „discovery of new and important matter of evidence‟ contained in the provision of Order LXVII, Rule 1 of the Code of Civil Procedure means, discovery of an evidence or any material, which may be adduced in evidence, but cannot take in its ambit an argument which could have been advanced by the counsel.
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 35 of 575.31. In the case at hand, at paragraphs 5 and 6 of the Judgment dated 05.02.2024, this Court has specifically noted down the argument advanced by Sri Subrat Satpathy, learned counsel appearing for the opposite party Nos.4 and 5 (review petitioners herein). By changing lawyer what is sought to be reviewed is the view of this Court expressed in the said Judgment.
5.32. This Court is, therefore, not persuaded that there is error apparent on the face of the record to undertake review of Judgment dated 05.02.2024 rendered in the writ petition.
Consideration of application for condonation of delay in filing review petition:
6. Now, therefore, this Court takes up to examine the sufficiency of cause shown in the petition for condonation of delay. The interlocutory application bearing I.A. No.245 of 2024 has been filed stating with affirmation by the petitioners that the review petition should have been filed within thirty days and cited that the review petition was filed on 22.04.2024, however, the defects pointed out by the Registry on 29.04.2023 could not be removed due to the Advocate‟s Clerk having met with severe road accident. Hence the review has been refilled with a delay of 152 days.
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 36 of 576.1. The inordinate delay being caused, the petitioners should have placed on record sufficient material to show the nature of inability that the Advocate‟s Clerk suffered who was stated to have met with severe accident. No record is placed by the petitioners identifying the Advocate‟s Clerk nor is it available on record to indicate that such Advocate‟s Clerk was registered under Ms. Sunshine Anand Swain and Sri Anand Chandra Swain, Advocates. The name of said Advocate‟s Clerk is not furnished in the petitions to identify from the Registry with regard to the registration of such clerk in this Court. No iota of evidence is available on record to consider that there was "severe accident", on account of which the Advocate‟s Clerk was incapacitated to remove the defect and correct the file of review petition. The Advocate concerned also could not demonstrate such fact to substantiate his claim with supporting medical report and/or any other document.
6.2. The opposite party Nos.1 and 2 filed on 17.09.2024 a show-cause/objection to the said interlocutory application of the review petitioners, bringing on record the fact that the petitioners had filed review petition being D-Review Petition No.17919 of 2024 on 22.04.2024, which got dismissed on 21.06.2024 for non-removal of defects pointed out by the Registry. It I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 37 of 57 is explained that the opposite party Nos.1 and 2 filed contempt petition being CONTC No.4746 of 2024 as there was non-compliance of directions contained in the Judgment dated 05.02.2024. To save themselves from rigours of contempt, this review petition has been filed with a delay of 152 days.
6.3. Perusal of interlocutory application depicts that it was well within the knowledge of the petitioners that earlier review petition was dismissed on 21.06.2024 and successive review petition has been filed on 26.07.2024 without seeking leave of this Court. Furthermore, in absence of any evidence to show that the Advocate‟s Clerk (name is not disclosed by the petitioners), in fact, met with "severe accident". The record is silent about date of accident and nothing is explained by the petitioners by demonstrating that the events between the date when the defects were pointed out by the Registry on 29.04.2024 and the date of dismissal of earlier review petition, i.e., 21.06.2024. It is pertinent for this Court to indicate that material particulars supported by document(s) are required for effective consideration of the fact of delay. Chapter-XV of the Rules of the High Court of Orissa, 1948 dealing with "Applications under Articles 226, 227 and 228 of the Constitution of India and Rules for the issue of writs under the said Articles (except writs in the I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 38 of 57 nature of habeas corpus)" vide Rule 3(4) requires "the material documents referred to and relied upon in the application, shall also be filed along with the application: provided that the Court may, in its discretion, dispense with the production of the same".
6.4. All these circumstances lead to construe that the plea taken in the interlocutory application is sheer myth and far from truth.
6.5. It is stated further in the interlocutory application that the earlier review petition filed on 22.04.2024 was with a delay due to "departmental and official sanction and legal opinion to bring relevant and authenticated facts".
6.6. This Court in Radharaman Store Vrs. Odisha Sales Tax Tribunal, 85 (1998) CLT 657 = (1998) 108 STC 284 (Ori) made following observation:
"It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in apex Court-- be it by private party or the State-- are barred by limitation and apex Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merit. This position was elaborately stated by the apex Court in State of Haryana Vrs. Chandra Mani, (1996) 3 SCC 132 = (1996) 2 SCALE 820.
*** I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 39 of 57 The factual backdrop and few relevant facts need to be noted. It is an accepted position that the file was endorsed to the Addl. S.R. for opinion on December 31, 1993, and he passed an order on March 30, 1994 for filing of the second appeal. No cause has been indicated as to why the Addl. S.R. took such a long time, and what transpired during that period. In fact no explanation whatsoever has been offered. Tribunal‟s reasoning is that there was delay in decision-making process and that was considered to be sufficient cause. The conclusion does not stand to reason. On the contrary, it shows non-application of mind to the germane issue. Even though a liberal approach has to be adopted, that does not mean that any plea without any plausible or acceptable basis, and not even having semblance of rationality has to be accepted, and delay has to be condoned. That shall be against the very spirit of law. Prescription of time-limit for filing appeals would become meaningless in such event. Merely because State is involved, that does not mean that any lethargic or supine inaction has to be condoned or ignored, and even if no reason is indicated that would be inconsequential. The subject- matter was not very complex and rather the grounds of appeal filed appear to be of very routine nature. As has been observed by this Court in Hindustan Aeronautics Limited, Koraput Division Vrs. State of Odisha, (1976) 38 STC 538, delay caused by the concerned officer in giving his opinion, without any explanation whatsoever does not constitute sufficient ground for condonation of delay. In the aforesaid premises, the inevitable conclusion is that the Tribunal has not I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 40 of 57 applied its judicial mind to the question whether delay was to be condoned."
6.7. Discussing the scope and discretion of the Court in condoning the substantial delay caused in filing appeal by the State in G. Ramegowda Major Vrs. Special Land Acquisition Officer, (1988) 2 SCC 142 the Hon‟ble Supreme Court of India observed as follows:
"15. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
16. The law of limitation is, no doubt, the same for a private citizen as for Governmental- authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.
17. Therefore, in assessing what, in a particular case, constitutes „sufficient cause‟ for purposes of I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 41 of 57 Section 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have „a little play at the joints‟. Due recognition of these limitations on Governmental functioning-- of course, within a reasonable limits--is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law-officers of the Government placed the Government in a predicament and that it was one of these cases where the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law-officers. Lindley, M.R., in the In re: National Bank of Wales Ltd., LR 1899 2 Ch. 629 @ 673 observed, though in a different context:
„Business cannot be carried on, upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them.‟ I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 42 of 57 In the opinion of the High Court, it took quite sometime for the Government to realise that the law-officers failed that trust.
18. While a private person can take instant decision a „bureaucratic or democratic organ‟ it is said by a learned Judge „hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful of time and impersonally.‟ ***""
6.8. In the present context in almost similar fact-situation, as highlighted in the case of Maniben Devraj Shah Vrs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157, the Supreme Court of India has been pleased to refuse to condone the delay. In the said reported case it has been observed as follows:
"24. What colour the expression „sufficient cause‟ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 43 of 57
25. In case involving the State and its agencies/ instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/ instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.
***
28. The application filed for condonation of delay and the affidavits of Shri Sirsikar are conspicuously silent on the following important points:
(a) The name of the person who was having custody of the record has not been disclosed.
(b) The date, month and year when the papers required for filing the first appeals are said to have been misplaced have not been disclosed.
(c) The date on which the papers were traced out or recovered and name of the person who found the same have not been disclosed.
(d) No explanation whatsoever has been given as to why the applications for certified copies of the judgments of the trial court were not filed till 23.08.2010 despite the fact that Shri Sirsikar had given intimation on 12.05.2003 about the judgments of the trial court.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 44 of 57
(e) Even though the Corporation has engaged a battery of lawyers to conduct cases on its behalf, nothing has been said as to how the transfer of Shri Ranindra Y. Sirsikar operated as an impediment in the making of applications for certified copies of the judgments sought to be appealed against.""
6.9. In the case of Deputy Conservator of Forests Vrs.
Timblo Irmaos Ltd., (2021) 14 SCC 516, the following observation has been made:
"1. The special leave petition has been filed after a delay of 462 days. This is one more case which we have categorised as "certificate cases" filed before this Court to complete a mere formality and save the skin of the officers who have been throughout negligent in defending a litigation! ***
5. We have dealt with the issue of the Government authorities in approaching courts belatedly as if the statute of limitation does not exist for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, [LAO Vrs. Katiji, (1987) 2 SCC 107]. This situation no more prevails and this position had been elucidated by the judgment of this Court in Postmaster General Vrs. Living Media (India) Ltd., (2012) 3 SCC 563.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 45 of 57
6. These aspects have been analysed by us recently in State of M.P. Vrs. Bherulal, (2020) 10 SCC 654. In the aforesaid judgment we have defined "certificate cases" the objective of which is only to put a quietus to the issue by recording that nothing could be done because the highest Court had dismissed the appeal. We have repeatedly deprecated such practice and process. The irony is that despite observations, no action was ever taken against the officers who sit on the file and do nothing.
7. The matter is further aggravated in the present case and even the present petition is filed with a delay of 462 days and once again the excuse is of change of the counsel.
8. We have repeatedly deprecated such attempts of the State Governments to approach this Court only to complete a mere formality. The learned counsel for the petitioner strenuously contends that there is valuable land involved. In our view, if it was so, then the officers concerned responsible for the manner in defending this petition must be made to pay for it.
9. We are thus constrained to dismiss the petition as barred by time and impose costs of Rs.15,000 on the petitioner for wastage of judicial time. We put it to the learned counsel that the costs would have been much greater but for the fact that a young counsel is appearing before us and we have given considerable concession in the costs on that factor alone.I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 46 of 57
10. The costs be recovered from the officers responsible for the delay and costs be deposited within a month with the Supreme Court Employees‟ Welfare Fund. The certificate of recovery be also filed within the same period of time."
6.10. The Supreme Court of India in State of Madhya Pradesh Vrs. Bherulal, (2020) 10 SCC 654, made it clear that, "5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go- by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.
6. We are also of the view that the aforesaid approach is being adopted in what we have categorised earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 47 of 57 the Government suffers losses, it is time when the officer concerned responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straightaway the counsel appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.
7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."
6.11. In State of Odisha Vrs. Sunanda Mahakuda, (2021) 11 SCC 560 while declining to condone the delay of 783 days in preferring writ appeal before the Division Bench of this Court against the Order of learned Single Judge, the Supreme Court of India made the following observations:
"1. The present SLPs have been filed after a delay of 1954 days in respect of the impugned order dated 12.03.2015 [Sunanda Mahakuda Vrs. State, WP(C) No. 7021 of 2004, Order dated 12.03.2015 (Ori)] of the learned Single Judge and delay of 545 I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 48 of 57 days qua the order [Department of Water Resources Vrs. Sunanda Mahakuda, Writ Appeal No. 147 of 2017, Order dated 19.04.2019 (Ori)] in writ appeal. We may notice that the writ appeal itself was preferred after a delay of 783 days and was found not to have been properly explained.
We may add that the present special leave petition is filed after contempt proceedings were initiated on 13.05.2019, on dismissal of the writ appeal. Now, it is our chance to scrutinise a little more closely the aforesaid conduct of the State Government.
***
4. There is no doubt that these are cases including the present one where the Government machinery has acted in an inefficient manner or it is a deliberate endeavour. In either of the two situations, this Court ought not to come to the rescue of the petitioner. No doubt, some leeway is given for Government inefficiency but with the technological advancement now the judicial view prevalent earlier when such facilities were not available has been over taken by the elucidation of the legal principles in the judgment of this Court in Postmaster General Vrs. Living Media (India) Ltd., (2012) 3 SCC 563. We have discussed these aspects in State of M.P. Vrs. Bherulal, (2020) 10 SCC 654 and thus, see no reason to repeat the same again.
5. In the present case, the State Government has not even taken the trouble of citing any reason or excuse nor any dates given in respect of the period I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 49 of 57 for which condonation is sought. The objective of such an exercise has also been elucidated by us in the aforesaid judgment [State of M.P. Vrs. Bherulal, (2020) 10 SCC 654 where we have categorised such cases as "certificate cases".
6. The object of such cases appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say nothing could done because the highest Court has dismissed the appeal. It is mere completion of formality to give a quietus to the litigation and save the skin of the officers who may be at fault by not taking action in prescribed time. If the State Government feels that they have suffered losses, then it must fix responsibility on officers concerned for their inaction but that ironically never happens.
These matters are preferred on a presumption as if this Court will condone the delay in every case, if the State Government is able to say something on merits.
7. Looking to the period of delay and the casual manner in which the application has been worded, we consider it appropriate to impose costs of Rs.25,000 to be deposited with the Supreme Court Advocates-on-Record Welfare Fund. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing both the writ appeal and the special leave petition and a certificate of recovery be also filed in this Court within the same period of time."
I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 50 of 576.12. Taking note of State of Madhya Pradesh Vrs. Bherulal, (2020) 10 SCC 654 and State of Odisha Vrs. Sunanda Mahakuda, (2021) 11 SCC 560, in the cases of State of Gujarat Vrs. Tushar Jagdish Chandra Vyas, 2021 SCC OnLine SC 3517; State of U.P. Vrs. Sabha Narain, (2022) 9 SCC 266; Union of India Vrs. Central Tibetan Schools Admin, 2021 SCC OnLine SC 119; Union of India Vrs. Vishnu Aroma Pouching Pvt. Ltd., (2022) 9 SCC 263; Commissioner of Public Instruction Vrs. Shamshuddin, 2021 SCC OnLine SC 3518 identical view has been expressed by the Hon‟ble Supreme Court of India.
6.13. Taking note of the fact that earlier review petition [Diary RVWPET No.17919 of 2024], which was admittedly filed with a delay, being allowed to be dismissed on 21.06.2024 on account non-removal of defect, and without seeking for leave of this Court to file fresh review petition, but filing successive review petition only after contempt petition has been pursued by the petitioners, this Court feels expedient to have regard to the observation made in State of M.P. Vrs. Pradeep Kumar, (2000) 7 SCC 372, that if an appeal is time barred, the Court should either return the memorandum of appeal to the appellant to submit it along with an application under Section 5 of the Limitation Act or should provide a chance to file I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 51 of 57 application for condonation of delay. The Court cannot, under such circumstances, dispose of the appeal on merit. In S.V. Matha Prasad Vrs. Lalchand Meghraj, (2007) 14 SCC 722, it has been clearly held that while dealing with an application under Section 5 of the Limitation Act, the Court cannot dispose of an appeal on merit and such a course has been disapproved by the Hon‟ble Supreme Court of India.
6.14. Under the aforesaid premise, it is but obvious that there being no sufficient cause shown and the cause shown for the delay being not supported by any material particulars, this Court is not inclined to condone the delay in preferring the review petition.
Defective review petition:
7. Before proceeding to conclude the matter, this Court feels it expedient to notice the casual and cavalier manner in which the review petition has been filed and the learned counsel for the petitioners proceeded to argue the review petition on merit without pressing for interlocutory application.
7.1. Scrutiny of cause title of the review petition it transpires that "State of Odisha, Represented through The Chief Secretary, Working Chairman of Managing Committee, Shri Jagannath Temple, Puri, I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 52 of 57 At/P.O./District: Puri. ... Opposite parties." has been arrayed as opposite party No.3 in the review petition and described as the "Petitioners in the Writ Petition". Perusal of record of writ petition it is manifest that "State of Odisha, represented through The Chief Secretary, Working Chairman of Managing Committee, Shri Jagannath Temple, Puri, At/P.O/District: Puri." was impleaded as the opposite party No.1.
7.2. What is perceived from such description made in the review petition is that it is only to misguide this Court as if "The Chief Secretary, Working Chairman of Managing Committee, Shri Jagannath Temple" was pursuing the matter before the writ Court as one of the "petitioners".
7.3. Further fact which is considered conflicting and self-
defeating is that along with the review petition filed on 26.07.2024, the review-petitioners have prayed for condonation of delay by way of "An application under Section 5 of the Limitation Act, 1963 for condonation of delay in preferring the RVWPET petition read with under Rule 27(a) Chapter-VI of Orissa High Court Rules, 1948" which was registered as I.A. No.245 of 2024 and after objection being filed on 17.09.2024 by the opposite party Nos.1 and 2, upon service of copy thereof on the learned counsel for the petitioners on I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 53 of 57 10.09.2024, a rejoinder affidavit sworn to by Sri Jitendra Kumar Sahoo, working as Administrator (Niti), Shree Jagannath Temple Administration, has come to be filed on 04.11.2024, seeking to widen to scope of review petition by setting up new stand and stated thus:
"It is respectfully submitted that the Courts possess the inherent power to review orders passed under misrepresentation or fraud, as it is considered a fundamental principle of law that fraud vitiates everything. When an order is obtained through misrepresentation of facts or fraud, it is rendered voidable and can be reviewed suo motu (on the Court‟s own motion). Importantly, no limitation period applies to such cases, as a fraudulent act negates the basis on which the original order was passed."
7.4. The plea of "fraud" was never agitated before the writ Court nor has been set up in the review petition. In the garb of replying to the interlocutory application under Section 5 of the Limitation Act praying for condonation of delay in filing review petition under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, the review petitioners have sought to raise not only vexatious plea, but also made an attempt to misguide this Court. The petitioners could have placed on record relevant material for proper appreciation of fact to establish sufficient reason and reasonable cause with respect to I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 54 of 57 incapacitation of the Advocate‟s Clerk due to severe accident which led to non-removal of defects pointed out by the Registry in filing review petition being Diary RVWPET No. 17919 of 2024.
7.5. This Court has already observed that there has been inordinate delay in preferring review petition and the petitioners have been negligent in approaching this Court. This Court is afraid to protect the cause of the petitioners, who are indolent. That apart, delay in official process cannot be considered to be good, sufficient and reasonable ground to consider the petition for condonation of delay in seeking remedy.
Conclusion:
8. No ground is made out for review of Judgment dated 05.02.2024 rendered in the W.P.(C) No.56 of 2024 by this Court, inasmuch as the review-petitioners had instructed Sri Subrat Satpathy, learned Advocate to appear and participate in the proceeding (which fact is very much available in the document showing opinion of said counsel) and not denied or disputed by the instant petitioners. In the writ proceeding Sri Subrat Satpathy, learned Advocate appeared and made submission which fact is reflected at paragraph 5 of said judgment. In the second and successive review petition the review-petitioners sought to reargue the I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 55 of 57 matter as to whether Danadhyakshya Seva is hereditary by changing counsel. Such a practice is deprecated not only by the Hon‟ble Supreme Court of India but also this Court and other High Courts.
8.1. As is well-settled that rearguing the matter or agitating the same issue, which had already been decided while disposing of the writ petition in the presence of counsel for the parties and having afforded opportunity of hearing, is impermissible in the garb of petition for review of judgment.
8.2. The counsel, namely Sri Subrat Satpathy, learned Advocate who appeared in the writ proceeding and made his submissions, in fact, advised the present petitioners to approach the appropriate Court of law.
9. There has been inordinate delay in preferring review petition, for which there is lack of sufficient and reasonable cause shown by the review-petitioners. The earlier review petition was allowed to be dismissed by not removing defects pointed out by the Registry. Successive review petition has been filed, after the opposite party Nos.1 and 2 as arrayed in the review petition pursued compliance of direction contained in the Judgment dated 05.02.2024. In the successive review petition, this Court finds no mention about the earlier review petition. Therefore, taking into I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 56 of 57 consideration such suppression of material fact this Court is not inclined to condone the delay.
9.1. The inordinate delay in preferring review petition being not appropriately explained, the interlocutory application being I.A. No.245 of 2024 is liable to be dismissed.
10. In the wake of the above, the interlocutory application bearing I.A. No.245 of 2024 is dismissed. Consequently, the review petition is also dismissed with cost assessed at Rs.25,000/- (Rupees twenty-five thousand only) to be deposited with the High Court Bar Association Advocates‟ Welfare Fund, Cuttack within a period of four weeks from date.
(MURAHARI SRI RAMAN) JUDGE CHAKRADHARI SHARAN SINGH, CJ.-- I agree.
(CHAKRADHARI SHARAN SINGH) CHIEF JUSTICE Signature Not Verified Digitally Signed High Court of Orissa, Cuttack Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer The 11th December, 2024//Laxmikant/Suchitra Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Dec-2024 14:57:03 I.A. No.245 of 2024 in RVWPET No.161 of 2024 Page 57 of 57