High Court Of H.P. vs Rajeev Bhardwaj & Others

Anoop Chitkara, J

This order shall dispose of these two petitions, being identical, involving similar questions of law and facts for adjudication.

Seeking review of order dated 26th October, 2020, whereby this Court had culled out the points of difference between dissenting judgment passed

by learned Division Bench, the respondent-High Court of Himachal Pradesh, has come up before this Court.

I have heard Mr. K.D. Sood, learned Senior Advocate assisted by Ms. Shalini Thakur, Advocate for the petitioner and Mr. Shrawan Dogra and

Mr. R.K. Bawa, learned Senior Advocates assisted by Mr. Ajay Sharma, Advocate for respondents No.1, Mr. Nand Lal Thakur, learned Additional

Advocate General for respondent No.2, Mr. R.L. Sood, learned Senior Advocate assisted by Mr. Arjun Lal, Advocate for respondents No.3 & 4 and

have also gone through the contents of the petitions as well as minutely gone through order dated 26th October, 2020.

The applicant Hon'ble High Court seeks review claiming that the clause 26 of the Letters Patent is a complete code. Further, the judgments cited

before this Court were also clear that in the absence of formulating the judges' points of difference, third-Judge had no jurisdiction to hear the matter.

The course available was either to constitute a new Bench to hear the whole case, or a Larger Bench should have heard the matter, more so, when

the parties had not consented to the formulation of points of difference by the third-judge. The Applicant/Respondent Hon'ble High Court further

contended that even the private respondents did not agree to the formulation of points of difference by the third judge, i.e., by this Court.

In paragraph 13 of the petition, the contention is that this Court did not adjudicate that whether the matter had to be returned to the Hon’ble

Chief Justice or not. The High Court further contended that the procedure proposed by this Court was not warranted given the language of Clause 26

of the Letters Patent Appeal. In paragraph 15, the Hon’ble High Court contends that this Court ought to have framed all the points of differences,

including the points where the third Judge could himself formulate the point of difference. Per paragraph 63 of the impugned order, there is no

determination of jurisdiction to the extent to which the third Judge could have decided the case on merits. As such, there was an error apparent on the

face of the record.

In a nutshell, the Applicant contends that the third Judge has assumed jurisdiction, which was never vested in him.

Mr. K.D. Sood learned Senior Advocate assisted by Mrs. Shalini Thakur, Advocate based his arguments on the application's contentions and

argued that there is an error apparent in the order dated 26th October 2020.

To the contrary, Mr. R.K. Bawa and Mr. Sharwan Dogra, learned Senior Advocates assisted by Mr. Ajay Kumar Sharma, Advocate submits that

the review is not maintainable, as the review lies only where there is error apparent on the face of the record and the remedy available to the

petitioner is to challenge the order under review before the Superior Court. They contend that howsoever erroneous the findings may be, those will set

aside only by the Superior Court. A review petition will only be maintainable where there is an error apparent on the face of the record. This Court

has duly analyzed points from both the Hon'ble Judges' decisions, culling out the points of differences.

Learned Additional Advocate General appearing for 2nd respondent submits that review petition is between the high Court and the Hon’ble

Court, they have nothing to address.

Mr. R.L. Sood, learned Senior Advocate assisted by Mr. Arjun Lal, Advocate, representing respondents No.3 and 4 submits that he is reserving

his rights to address arguments on correctness and interpretation of Clause 26 in LPA, which is pending adjudication before the Division Bench of this

Court.

Mr. B.C. Negi, learned Senior Advocate is not present and Mr. Nitin Thakur, Advocate has put in appearance and seeks adjournment on the

ground that learned Senior Advocate is out of station. These review petitions are filed by the Hon’ble High Court and the contentions on behalf of

the respondent-State is that it is between this Court and Hon’ble High Court. Even otherwise, the stand of respondents No.5 and 6 is similar to the

stand taken by respondents No.3 and 4 and on their behalf, I have heard Mr. R.L. Sood, learned Senior Advocate assisted by Mr. Arjun Lall,

Advocate. Thus I proceed to decide these review petitions.

A perusal of the contents of the applications reveals that instead of pointing out the error apparent on the face of the order dated 26th October

2020, for all intents and purposes, in these petitions, the petitioner is challenging the jurisdiction of the Court to pass such order. Needless to say, that

this Court, in a review petition, cannot decide the question of jurisdiction, more so, after a detailed analysis, in paragraph 58, this Court has given

reasons for culling out the points of difference. Furthermore, in paragraph 63, the reasons were given for not deciding the other points, which were not

necessary at the time of culling out the points of difference.

Given above, there is no error apparent on the face of the order dated 26th October 2020, passed in CMP No. 5772 of 2020. As such, the review

petitions are dismissed.