AI Structured Summary
Not yet generated for this judgment
Judgment
With the consent of learned counsel for the parties, the matter is heard finally.
This review petition arising out of the order dated 24.02.2020 passed by this Court in W.P. No.4394/2020, whereby the petition filed by the petitioner was dismissed.
This review petition has been preferred by the applicant on the ground that the Court while hearing the writ petition has failed to consider that the impugned notice dated 13.08.2019 was issued to the Salesman of the Society and the petitioner Society was never put to notice before passing the adverse order against it.
To substantiate his contention that service of notice to Salesman cannot be termed as service to the petitioner Society, learned counsel has relied on the order dated 10.01.2020 passed by a Co-ordinate Bench in the case of Maa Durga Mahila Bahuddeshiya Sahakari Samiti Mydt. Bihta vs. State of M.P. and others, W.P. No.20560/2019. It is prayed that the order under review be recalled and the matter be heard on merits.
Learned Panel Lawyer for the respondent/State has submitted that hearing of a case in the garb of review petition is not permissible. He further submits that while arguing the writ petition the arguing counsel neither argued this point nor pleaded in the aforesaid writ petition.
Learned counsel for the petitioner when posed with the aforesaid question, fairly submits that he was not a counsel in the earlier petition and the decision of which he is relying was not brought to the notice of this Court.
The principles for interference in exercise of review jurisdiction are well settled. Under Order 47 Rule 1 of C.P.C. a judgment may be opened to review if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record. In exercise of the jurisdiction under Order 47 Rule 1 C.P.C., it is not permissible for an erroneous decision is to be reheard and corrected. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. The first can be corrected by a higher forum, whereas the latter can only be corrected by exercise of review jurisdiction.
In 2008 (8) SCC 612 State of West Bangal and others Vs. Kamal Sen Gupta and another, the Supreme Court has considered the decision a 5 Judge Bench of Federal Court in Hari Shanakar Pal Vs. Anath Nath Mitter AIR 1949 FC 106, wherein it has held:-
"That a decision is erroneous is law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the fact of the record or even analogous to it. When however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives its jurisdiction to act in a particular way, that way amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order 47 Rule 1 of C.P.C."
As is evident from the record, the aforesaid writ petition was filed not by the Salesman but by the petitioner society through its Manager Dhruv Kesharwani alleging that the P.D.S. shop being run by the petitioner society has been suspended and attached to another shop illegally.
In Para 5.4 and Para 5.5 of the petition, it was pleaded that the respondent No.3 issued a notice dated 13.08.2019 to the petitioner mentioning the certain shortcomings at the shop, which was immediately replied by the petitioner. Relevant Paras are extracted herein below:-
"5.4 That, on the fateful day of 01.08.2019 the Junior Supply Officers have appeared in the shop for inspection and after inspection submitted a report to the respondent No.3 on 07.08.2019. On receiving the report the respondent No.3 issued a notice dated 13.08.2019 to the petitioner mentioning therein certain shortcomings at the shop. The report and the notice are filed herewith as Annexure P-3 and P-4.
5.5 As soon as the petitioner received the said notice, the petitioner immediately submitted the reply mentioning therein that the petitioner is observing all the conditions of the authority letter and all the provisions of the PDS (Control) Order and as such there is no illegality committed by the petitioner in the shop. It is also clearly mentioned that the petitioner has not violated any condition of the Control Order of 2015 which is at present in vogue. The reply is filed herewith as Annexure P-5."
Neither in the pleadings nor during the arguments nor in the reply to the notice dated 13.08.2019 or in the appeal memo (Annexure P-7), the petitioner society has ever raised the objection that notice was not issued to it or that opportunity of hearing was not given to it.
Rather the record shows that the petitioner society was very much aware of the notice and contested it on merits before the concerned authorities. The order passed in W.P. No.20560/2019 relied on by the petitioner society is distinguishable on facts as in that case specific allegation was made that petitioner society was not impleaded and heard. Just because a new counsel has been engaged, the petitioner is not entitled to challenge the impugned order on a new ground which has never been raised before.
In view of the aforesaid facts and circumstances, and settled position of law, no ground is made out for reconsideration of order dated 24.02.2020 passed in W.P. No.4394/2020. The review petition filed by the petitioner is accordingly dismissed.
Certified copy/e-copy as per rules/directions.