Smt. Geeta Bai vs Union of India & Ors.

The applicants have filed this review petition for recalling the order dated 06/01/2017 passed in W.P.No.20320/2015 wherein this Court was pleased to allow the writ petition and directed respondent No.3 to ensure the compliance of the order dated 11/10/2013 in letter and spirit.

Respondents No. and 2 had filed Writ Petition No.20320/2015 before this Court praying for direction to respondent No.5 to ensure the compliance of order dated 11/10/2013 in letter and spirit. Respondents No.1 and 2 had further sought direction against respondent No.5 to ensure that all Safari vehicles registered with the park management are placed under a single roster as mandated under Clause-4 of the order dated 11/10/2013. The said writ petition was allowed vide order dated 16/01/2017 with direction to respondent No.5 to ensure compliance of the order dated 11/10/2013 in its letter and spirit. Being aggrieved by this order, the applicants have filed the present review petition.

Learned counsel for the applicants has argued that by issuance of the directions by this Court in W.P. No.20320/2015, the applicants are being adversely affected and the said order has been passed without being heard them. It has further been submitted by the applicants that applicant No.1 is Bandhavgarh Hotel Association and applicant No.2 is one of its member. By the impugned order, this Court has directed that all the Safari vehicles registered with the management be placed under a single roster as per Clause-4 of the order dated 11/10/2013. He submits that due to this direction issued in the writ petition, their business will be adversely affected. It has further been submitted that there are about roughly 171 vehicles which are registered/approved for tourism activities in the core and buffer area of Bandhavgarh Tiger Reserve area. Out of those 171 vehicles roughly 130 vehicles are maintained/owned/operated by the name of Gypsy Association Bandhavgarh Tiger Reserve and remaining 40 are owned by the applicant-association. It is a common practice by the applicant-association to have their vehicle to facilitate the guest staying in their establishment so that they can provide an experienced driver along with an environmentalist/naturalist and a well-trained guide so that the said excursion not only become interesting but informative as well. In such circumstances, if the respondents compelled the applicant-association to register their vehcles in the said roster, they will be deprived to extend their service to the guest staying in their establishment. In the light of the aforesaid submissions, learned counsel for the applicants submits that the applicants were the necessary party in the said writ petition and the judgment could not have been passed without impleading them as party in the said writ petition. It has further been stated that being necessary party, the applicants can file the application for review. For the said purpose, he relied upon the judgments passed by the Apex Court in the cases of State of Assam Vs. Union of India and others, reported in (2010) 10 SCC 408, Pohla Singh alias Pohla Ram(D) by Lrs and others Vs. State of Punjab and others, reported in (2004) 6 SCC 126, K. Ajit Babu and others Vs. Union of India and others, reported in (1997) 6 SCC 473, Ram Janam Singh Vs. State of U.P. and another, reported in (1994) 2 SCC 622, Poonam Vs. State of Uttar Pradesh and others, reported in (2016) 2 SCC 779 and Kasturi Vs. Iyyamperumal and others, reported in (2005) 6 SCC 73.

Learned counsel for the respondents has argued that the said review petition is not maintainable on the ground that the applicant No.1 is claimed to be a representative body of all hotels in Bandhavgarh National Park is not a registered association. He further argued that be competent to bring a lis before any Court of law, a party has to have a juristic personality. Apparently, applicant No.1-association was not registered at the time when the present review petition was filed before this Court and, therefore, no review could have been filed in the name of the petitioner-association as the same does not have a juristic personality at the time of filing of the review petition. Learned counsel for the respondents has further argued that even on merit, the petitioners have not make out any case for reviewing the order dated 16/01/2017 passed in Writ Petition No.20320/2015. He submitted that the respondents were not under obligation to implead each and every lodge/hotel/ resort owner in the aforesaid writ petition. He has also submitted that the aforesaid writ petition had been filed only seeking implementation of order dated 11/10/2013 passed by the Principal Chief Conservator of Forest (Wild Life), Bhopal and had not sought any relief against the present applicants, therefore, the applicants are not necessary parties to the writ petition. The second ground is raised by the applicants that they have not been heard by this Court before passing order. The respondents have submitted that the application for intervention was filed on 23/01/2017 while the order had been passed by this Court on 16/01/2017 i.e. after passing of the order by this Court. Learned counsel for the respondents has further submitted that scope of review is limited only to correction of error apparent on the basis of the record. He also submitted that the applicants have failed to point out that there appears any error on the face of the record. For the scope of review, he relied upon the judgments rendered by the Apex Court in the cases of Ishwaru Yatayat Co-op.Society Vs. State Transport Appellate Authority and others, reported in (1975) 2 SCC 685, Kamlesh Verma Vs. Mayawati and others, reported in (2013) 8 SCC 320, N. Anantha Reddy Vs. Anshu Kathuria and others, reported in (2013) 15 SCC 534, Dr. Subramanian Swami Vs. State of Tamil Nadu and others, reported in (2014) 5 SCC 75.

I have heard learned counsel for the parties and perused the record as well as the order passed by this Court. Learned counsel appearing on behalf of the applicants challenges the order passed by this Court in the writ petition firstly on the ground that the applicants are necessary party to the writ petition and, therefore, the order which is passed by this Court without impleading them to be as parties deserves to be recalled. For the said purpose he relied upon the judgment passed by the Apex Court in the case of Pohla Singh alias Pohla Ram (D) by LRS. and others (supra). In that case the Apex Court has held that the Court can recall the order passed in earlier writ petition if the same has adversely affected the applicant. Similarly in the case of of Kasturi (supra), the Apex Court in paragraph-7, 13, 17 and 20 has held as under : "7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are -(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party."

From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.

It is difficult to conceal that while deciding the question as to who is in possession of the contracted property, it would be open to the court to decide the question of possession of a third party or a stranger as first the lis to be decided is to enforceability of the contract entered into between the appellant and respondent 3 and whether contract was executed by the appellant and respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against respondents 2 and 3. Secondly in that case, whoever asserts his independent possession of the contracted property has to be added in the suit, then this process may continue without a final decision of the suit. Apart from that, the intervenor must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In Amon Vs. Raphael Tuck and Sons Ltd. it has been held that a person is legally interested in the answers to the controversies only if he can satisfy the Court that it may lead to a result that will affect him legally."

It was also argued on behalf of respondents 1 and 4 to 11 that to avoid multiplicity of suits it would be appropriate to join respondents 1 and 4 to 11 as party- defendants as the question relating to the possession of the suit property would be finally and effectively settled. In view of our discussions made hereinabove, this argument also which weighed with the two Courts below has no substance. In view of the discussions made hereinearlier, the two tests by which a person who is seeking addition in a pending suit for specific performance of the contract for sale must be satisfied. As stated hereinearlier, first, there must be a right to the same relief against a party relating to the same subject- matter involved in the proceedings for specific performance of contract for sale, and secondly, it would not be possible for the Court to pass effective decree or order in the absence of such a party. If we apply these two tests in the facts and circumstances of the present case, it would be evident that respondents 1 and 4 to 11 cannot satisfy the above two tests for determining the question whether a stranger/third party is entitled to be added under Order 1 Rule 10 CPC only on the ground that if the decree for specific performance of the contract for sale is passed in absence of respondents 1 and 4 to 11, their possession over the contracted property can be disturbed or they can be dispossessed from the contracted property in execution of the decree for specific performance of the contract for sale obtained by the appellant against respondents 2 and 3. Such being the position, in our view, it was not open to the High Court or the trial Court to join other cause of action in the instant suit for specific performance of the contract for sale, and therefore, the two Courts below acted illegally and without jurisdiction in allowing the application for adding of parties in the pending suit for specific performance of contract for sale filed at the instance of respondents 1 and 4 to 11. The learned counsel for the respondents 1 and 4 to 11, however, urged that since the two courts below had exercised their jurisdiction in allowing the application for addition of parties, it was not open to this Court to interfere with such order of the High Courts as well as of the trial Court. We are unable to accept this contention of the learned counsel for respondents 1 and 4 to 11. As discussed hereinearlier, it is open to the Court to interfere with the order if it is held that two Courts below had acted without jurisdiction or acted illegally and with material irregularity in exercise of their jurisdiction in the matter of allowing the application for addition of parties filed under Order 1 Rule 10 CPC. The question of jurisdiction of the Court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct interest in the controversy involved in the suit. Can it be said that respondents 1 and 4 to 11 had any direct interest in the subject-matter of the instant suit for specific performance of the contract for sale ? In our view respondents 1 and 4 to 11 had no direct interest in the suit for specific performance because they are not parties to the contract nor do they claim any interest from the parties to the litigation. One more aspect may be considered in this connection. It is that the jurisdiction of the Court to add an applicant shall arise only when the Court finds that such applicant is either a necessary or a proper party."

As per this judgment, the Apex Court has dealt with the provisions of Order 10 (2) of CPC to determine who are the necessary parties to the civil suit. The aforesaid case relates to the specific performance of contract for sale in which the Apex Court has held that the purchaser is a necessary party. In para-7, the Apex Court has held that the tests for determining the necessary party are -(i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (ii) no effective decree can be passed in the absence of such party. In the present case, the respondents had not sought any relief against the applicants. The relief which is sought by the respondents in the present case is only to implement the order passed by the State Government and, thus, the applicants are not necessary party to the said writ petition.

Similarly, the Apex Court in the case of State of Assam (supra), the Apex Court in para-23 has held that in our opinion, in matters of this nature, even by mistake of the party, the proper parties were not arrayed in the proceedings, it is the duty of the Court to see that the parties are properly impleaded. It is well-settled principle consistent with natural justice that if some persons are likely to be affected on account of setting aside a decision enuring to their benefit, the Court should not embark upon the consideration and the correctness of such decision in the absence of such persons. As per this judgment passed by the Apex Court, if some persons are likely to be affected on account of setting aside a decision, the Court should not pass any decision in absence of such person. In the present case, as the respondents No.1 and 2 have not sought any relief against the applicants, therefore, this judgment would not be applicable in the case of the applicants. The judgment relied upon by learned counsel for the applicants in the case of Poonam (supra) is not applicable in the present case as the said judgment deals with impleadment of the Tribunal as a necessary party in the said writ petition. Thus, the judgments which are relied upon by learned counsel for the applicants are not applicable in the present case as the main relief which is sought by respondents No.1 and 2 is against the State Government.

The second ground which is raised by learned counsel for the applicants is that the applicants have a locus to file a review petition before this Court as they are the affected persons. There is no dispute regarding locus of the applicants to file this review petition because as per the provisions of Order 47 Rule 1 of CPC, any person who is aggrieved by the order or judgment, can file a review petition. The applicants claim to be affected by the order passed by this Court in a writ petition. The respondents No.1 and 2 have filed the said writ petition for implementing the order passed by the State Government and this Court has allowed the said writ petition by giving direction to the State Government to implement the order passed by them in its letter and spirit. In fact the applicants should have also filed a writ petition challenging the order passed by the State Government and not this review petition because no adverse order has been passed against the applicants.

Learned counsel appearing on behalf of respondents argued that applicant No.1 is not a registered association and, therefore, the review petition which is filed on behalf of unregistered association is not maintainable. For the said purpose, he relied upon the judgment passed by the Apex Court in the case of Ishwaru Yatayat Co-Op.Society Vs. State Transport Appellate Authority and others, reported in (1975) 2 SCC 685.

To boaster this submission of learned counsel for the respondents, learned counsel for the applicants submits that although applicant No.1-association was not registered at the time of filing of this review petition, in fact, applicant No.2 is also joined as one of the applicants in the said review petition and, therefore, the review petition is maintainable on behalf of applicant No.2.

The second argument which is raised by learned counsel for the respondents is that the applicants are not necessary parties to the said writ petition. Learned counsel submits that the respondents have not sought any relief against the present applicants and, therefore, the applicants are not necessary parties to the writ petition. Learned counsel for the respondents further argued that the scope of review is limited only to correct the error apparent on the basis of the record. He submitted that the applicants have failed to point out any error apparent on the face of the record, therefore, the review petition is not maintainable. He relied upon the judgment passed by the Apex Court in the case of N.Anantha Reddy (supra) in which the Apex court has held that the scope of review is only to correct the error apparent on the face of the record and rehearing on merit is not permissible. Para-7 and 8 of the said judgment reads as under : "7. The order passed by the High Court on 08.06.2011, on a careful reading, shows that the High Court instead of repeating the reasons which it had given in other revision petitions being CRPs Nos. 2870 and 3882 of 2010, while it was fully conscious of the fact that those civil revisions arose from a different suit followed its order in Naresh Ratiwal V. N.Anantha Reddy. The High Court was fully conscious of the factual and legal position while it was considering the civil revision petitions filed by the present respondent 1. In the order upon which reliance was placed by the High Court while dismissing the civil revision petitions, the High Court had noted thus :-

"No doubt, no relief is sought for against the proposed party in the suit. The object of Order 1 Rule 10(2) C.P.C. to implead a third party to the suit is that the dispute in the suit would be resolved in the presence of all, in order to avoid multiplicity of proceedings. There must be some semblance of right to the proposed party. If the petitioner violates the building plan without leaving set backs, cellar etc., then certainly it would cause inconvenience to the neighbours.

The proposed party is one of the neighbours. Therefore, to safeguard his interest, in view of the fact that he has got some semblance of right, though no relief is claimed against him, he would be necessary and proper party to come on record. That is why the trial Court rightly impleaded him as a party to the suit and I.A. and there are no grounds to interfere with the same. The revision is devoid of merits and is liable to be dismissed." 8. In our view, the High Court was not at all justified to review the order dated 08.06.2011. The impugned order dated 13.12.2011 is, accordingly, set aside. Appeals are allowed as above.

The Apex Court in the case of Dr. Subramanian Swamy Vs. State of Tamil Nadu and others, reported in (2014) 5 SCC 75, in paragraph -52 has held as under : "52. The issue can be examined from another angle. The Explanation to Order 47 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/ order cannot be disturbed. (Vide Rajendra Kumar V. Rambhai)"

The Apex Court in the case of Kamlesh Verma Vs. Mayawati and others, reported in (2013) 8 SCC 320 has summarised the grounds on which the review will be maintainable. As per the said judgment, review will be maintainable only when there is a discovery of new and important matter or evidence. Secondly, the mistake or error apparent on the face of the record; and thirdly, any other sufficient reason. In the present case, none of these grounds are available to the applicants. The Apex Court has further held that guise of review, rehearing of the case is not permissible and only remedy available to the aggrieved party is to file appeal against the said order. It has been already stated in the present case that respondents No.1 and 2 have not claimed any relief against the applicant and the relief which is claimed by the respondents No.1 and 2 is only to implement the order passed by the State Government. If the applicants are aggrieved by the order passed by the State Government, then they have a remedy to challenge the same before the competent Court of law.

Thus, learned counsel for the applicants has failed to point out that there is any error apparent on the face of the record.

In view of aforesaid discussions, the review petition has no force and the same is hereby dismissed without any order as to cost.