Gauhati High Court
Kanak Chandra Sarma vs Board Of Secondary Education, Assam, ... on 7 November, 1994
Equivalent citations: AIR1995GAU82, AIR 1995 GAUHATI 82, (1995) 3 CIVLJ 471 (1995) 1 GAU LR 116, (1995) 1 GAU LR 116
ORDER
1. This review application has been filed to review the Judgment and Order dated 24-2-1994 passed in Civil Rule No. 3407 of 1991. The report of the Stamp Reporter shows that the petition is barred by limitation for 102 days and the learned Advocate did not file any application for condonation of delay.
2. I have heard Sri P.G. Baruah, learned Advocate for the petitioner and Dr. H. Das, learned Advocate for the respondents.
3. On the question of limitation Sri Baruah submits that in an application for review of the judgment under Article 226, the limitation provided by Article 124 of the Limitation Act does not apply.
4. Article 124 of the Limitation Act provides as follow:
Description of application.
period of limitation.
Time from which period begins to run.
124.
For a review of judgment by a court other than the Supreme Court.
Thirty days.
The date of the decree or order.
In 1963 a legislative change was brought by which the present Article 124 was introduced containing the provisions of Articles 161, 162 and 173 of 1908 Act and this provided uniform period of limitation i.e. 30 days for an application, for review. Sri Baruah urges that against an order/judgment in an application under Article 226, the court has power to review its own order/judgment by exercising its inherent power and in this connection Sri Baruah places reliance in AIR 1963 SC 1909 (Shivdeo Singh v. State of Punjab) wherein paragraph 8 of the judgment, the Supreme Court pointed out as follows (at p 1911):
"The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which, in effect, reviews his prior order. Learned counsel contends that Article 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings.
As we have already pointed out, it is precisely because they were not made parties to the previous preceding though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J."
Sri Baruah submits that the period of 30 days as provided under Article 124 does not apply to review of a judgment in a writ proceeding inasmuch as this Article is restricted to the application for review under the Civil Procedure Code and the Civil Procedure Code does not apply to a writ proceeding as pointed out in the explanation to Section 141 of the Code of Civil Procedure. He also submits that in view of that explanation a writ proceeding would stand excluded from the scope of this Article. In the case (1988) 2 SCC 602 : (AIR 1988 SC 153) (A. R. Antulay v. R. S. Nayak) this question came up for consideration. There of course, the Supreme Court was considering the power of review under the inherent power and in the judgment of Mukharji, Qza and Natarajan, JJ. in paragraphs 48, 50 and 57 pointed out as follows :
"According to Shri Jethmalani, the doctrine of per incuriam has no application in the same proceedings. We are unable to accept this contention. We arc of the opinion that this Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner. See the observations in Prem Chand Garg v. Excise Commissioner."
"If that was so then when the attention of the court is drawn the court has always the power and the obligation to correct it ex debito justitiae and treat the second application by its inherent power as a power of review to correct the original mistake."
"No doubt, that being so it must be by decisions and authorities, it appears to us patently clear that the directions given by this court on February 16, 1984 were clearly unwarranted by constitutional provisions and in derogation of the law enacted by the Parliament. See the observations of Attorney General v. Herman James Sillem, where it was reiterated that the creation of a right to an appeal is an act Which requires legislative authority, neither an inferior court nor the superior court nor both combined can create such a right, it being one of limitation and extension of jurisdiction. See also the observations of Isaacs v. Robertson where it was reiterated by Privy Council that if an order is regular it can be set aside by an appellate court; if the order is irregular it can be set aside by the court that made it on the application being made to that court either under the rules of that court dealing expressly with setting aside orders for irregularity or ex debito justitiae if the circumstances warranted, namely, violation of the rules of natural justice or fundamental right."
Ranganath Misra, M.N. Venkatachaliah, JJ. as then they were dissented from this view and observed as follows:
"On behalf of the appellant, at one stage, it was contended that the appeal may be taken as a review. Apart from the fact that the petition of review had to be filed within 30 days -- and here there has been inordinate delay -- the petition for review had to be placed before the same Bench and now that two of the learned Judges of that Constitution Bench are still available. It must have gone only before a Bench of five with those two learned Judges. Again under the Rules of the court a review petition was not to be heard in court and was liable to be disposed of by circulation. In these circumstances, the petition of appeal could not be taken as a review petition. The question, therefore, to be considered now is what is the modality to be followed for vacating the impugned direction."
Venkatachaliah, J.
"The pronouncements of every Division Bench of this Court are pronouncements of the court itself. A larger Bench, merely, on the strength of its numbers, cannot undo the finality of the decisions of other Division Benches. If the decision suffers from an error the only way to correct it, is to go in review under Article 137 read with Order 47, Rule 1 framed under Article 145 before "as far as is practicable" the same Judges. This is not a matter merely of some dispensable procedural 'form' but the requirement of substance. The reported decisions on the review power under the Civil Procedure Code when it had a similar provision for the same Judges hearing the matter demonstrate the high purpose sought to be served thereby."
"It is true that the highest court in the land should not, by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice. It is said that "Life of law is not logic; it has been experience". But it is equally true as, Cardozo said : "But Holmes did not tell us that logic is to be ignored when experience is silent." Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not. Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even-handedness in the administration of justice by courts. It would be gross injustice, says an author, (Miller -- "Data of Jurisprudence") to decide alternate cases on opposite principles. The power to alter a decision by review must be expressly conferred or necessarily inferred. The power of review -- and the limitations on the power -- under Article 137 are implicit recognitions of what would, otherwise, be final and irrevocable. No appeal could be made to the doctrine of inherent powers of the court either. Inherent powers do not confer, or constitute a source of, jurisdiction. They are to be exercised in aid of a jurisdiction that is already invested. The remedy of the appellant, if any, is recourse to Article 137; nowhere else. This appears to me both good sense and good law. "The appeal is dismissed."
Rai, J. did not express any opinion on this point and as such the judgment by Mukher-jee, Oza and Natarajan, JJ. is the majority judgment on this point and therefore, the law is settled that once judicial decision is arrived at that a particular direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate, but also the duty of the court to rectify the mistake by exercising inherent power. The mistake of the court can be corrected by the court itself without any fetter as an act of the court should not injure any of the suitors. No loophole should be permitted to creep in and subsist in any case. There should be no hesitation in correcting any error in exercise of inherent jurisdiction if it comes to the notice of the court, as the act of the court does not injure any of the suitors and it is for this reason that if there is an error that should be corrected and delay should not be allowed to be a letter ?.'.. such a case,
5. Chapter X of the Gauhati High Court Rules provides for applications for review of the judgment and Rule 1 of that Chapter provides that the provision of Chapter IV shall apply so far as may be to every application for review. This Chapter does not provide for review of the judgment on an application under Article 226. So, it appears that review of order on a writ application can be made only in exercise of inherent power and if this power is to be exercised under the inherent power, there is no question of period of limitation because a court cannot lay down a period of limitation because that is legislative power and not judicial function. That the court can review its order in exercise of inherent power also is laid down in AIR 1976 SC 1695 : (1976 Lab 1C 1137) (State of Gujarat v. Sardarbegum) where the Supreme Court pointed out as follows (at p. 1697) :
"This patent error -- which was perhaps due to inadvertence -- could and should have been suo motu corrected by the High Court in the exercise of its inherent jurisdiction even after the expiry of the ordinary period of limitation, if any, prescribed for a review application."
So, it appears that what the court can correct in exercise of its power to review is only patent error in the judgment.
6. In 1988 (2) SCC 602 : (AIR 1988 SC 1531) (supra) in the judgment of Venkata-chaliah, J., as he then was mention has been made to Article 137 of the Constitution. The aspect of the limitation was not considered in the judgment. Article 137 of the Limitation Act also shall not apply in the present case inasmuch as the writ proceedings are neither a suit nor a petition or an application to which the Limitation Act applies. A petition presented before the High Court under Article 226 of the Constitution of India cannot be regarded as an application under C.P.C. It is entirely a different matter but the High Court may consider the provision of C.P.C. which are based on equity, justice and good conscience. In an application under Article 226 of the Constitution of India, the provisions regarding the addition of parties/substitution etc. are not governed by the provisions of the Limitation Act but the Court may adopt those principles for its guidance but the limitation provided in the Limitation Act shall not apply to the proceedings under Article 226 of the Constitution. This being the position the question of limitation in reviewing the order passed by the High Court in exercise of the power under Article 226 of the Constitution shall not apply.
7. Having decided that aspect of the matter, now let us have a look regarding the prayer for reviewing of the judgment passed earlier by this court. The prayer for review is of the judgment dated 24-2-1994 passed by this court in Civil Rule No. 3407/91. The authority appointed the petitioner as a fresh Upper Division Asstt. from the date he joined as Lower Division Asstt. on 4-4-86. This court on consideration of the materials on record came to the finding that the petitioner shall be. deemed to be an Upper Division Asstt. from 19-7-79 the date on which he was removed from the service vide Annexure-3. It was also stated that the petitioner shall also be entitled to all the service benefits from 1979. Shri Baruah has failed to satisfy me that there was any patent error in the judgment and as he failed to satisfy me that there was any patent en or in the judgment, the question of reviewing the earlier judgment passed by this court does not arise.
8. Accordingly, this review application stands rejected. I make no order as to costs