State Of Bihar vs Braj Nandan Singh

This civil review application has been preferred seeking recall of the order dated 13.05.2018 passed by a learned coordinate Bench of this Court in

its writ jurisdiction. The petition has been virtually framed by making a prayer to set aside the order dated 13.05.2018 passed in CWJC No.14781 of

2007.

Submissions of the Review Petitioner

Mr. Lalit Kishore, learned senior advocate representing the Bihar State Housing Board (hereinafter referred to as the ‘Board’) assisted by

Ms. Binita Singh, learned advocate on record has concentrated on his argument that because of the suppression of the material facts by writ

petitioner, the order dated 13.05.2018 came to be passed. It is submitted that in course of hearing of the writ application, writ petitioner did not bring to

the notice of the learned Writ Court that he had sent a legal notice dated 10.05.2007 to the Managing Director of the Board wherein he had shown his

willingness to pay the dues of the Board for purpose of execution and registration of the final lease deed and thereby he had requested the Board that

dues amount be furnished to him.

It is submitted that the writ petitioner also failed to point out that in course of the submissions advanced on his behalf before the Managing Director

of the Board, learned counsel representing the petitioner had shown his willingness to pay up -to-date dues towards payment of remaining installments

with interest provided the Board absolved the writ petitioner from the charge of violation of Clauses 3, 4 and 9 of the agreement. It is further pointed

out that in the written argument filed on 10.10.2007 before the Managing Director of the Board the writ petitioner had given an undertaking that he

would deposit the balance dues amount within one month from the date of order and comply with the conditions of the allotment order. The writ

petitioner had taken a plea that his case was exactly on the same footing as was the case of one Cheta Nand Singh in which by order vide memo

no.5930 dated 11.10.1999, his allotment had been directed to be continued on the conditions mentioned therein including his paying the dues of the

Board.

Learned senior counsel further submits that the order dated 17.03.2008 by which the Board modified its earlier impugned order dated 31.10.2007, had

brought down the demand from Rs.33,42,636/- to the tune of Rs.9,02,550/- which was due amount as on 31.12.1999. The Board, it is submitted, had

raised demand against the petitioner only up to October, 1999 and therefore the modified order dated 17.03.2008 was passed in tune with the

submission of the writ petitioner before the Board that his case is similar to the case of Cheta Nand Singh.

In the written notes of argument filed on behalf of the Board some more issues have been raised. It is submitted that the writ application itself was

not maintainable and once the Board had accepted the submission of the writ petitioner by coming out with modified order dated 17.03.2008, the writ

petitioner was precluded from challenging the revised demand against him and the writ application was not maintainable. It is submitted that the writ

petitioner was being extended similar treatment as Cheta Nand Singh was given which was part of the impugned order dated 31.10.2007 and the order

dated 17.03.2008, but this fact was not brought to the notice of the learned writ Court by the writ petitioner and had it been shown to the Hon’ble

Court that the writ petitioner is being treated similarly to that of Cheta Nand Singh, there would have been no occasion for this Court to set aside these

two orders especially the order dated 17.03.2008 and thus it would be a good ground for review of the judgment and order dated 13.05.2008 passed by

the learned Writ Court.

Further contentions have been raised in the written notes of argument stating that the writ petitioner had violated the terms of the agreement by

constructing a building up to the four storied and therefore he had made offer to pay the up-to-date dues in case he was absolved of the same. It is

submitted that in the writ petition he had made no statement (i) of his complying with the said term of the agreement even though in the impugned

order dated 31.10.2007 and in the modified order dated 17.03.2008 it was a specific condition that he would submit an affidavit that he would use the

said plot of land as per the agreement or (ii) demolishing the offending fourth floor to make in conformity with the agreement and thus this Hon’ble

Court being a Court of equity ought not to have exercised its high prerogative writ jurisdiction in favour of the petitioner.

It is lastly submitted that even though the opposite party had by filing a supplementary affidavit in the writ petition brought on record the modified

order of the Board dated 17.03.2008, but he neither chose to challenge the said order by way of an interlocutory application nor chose to raise any

grievance against the same by any pleading in support thereof and thus in absence of any challenge to the order dated 17.03.2008 the learned writ

Court was not justified in granting the relief which was not prayed for and which was not supported by any pleading to that extent. It is submitted that

the agreement dated 27.10.1994 was not a statutory contract and in fact the agreement vide Clause 24 provides for arbitration in case of any dispute.

It is again submitted that because the impugned order dated 30.10.2007 was in respect of the claim of the dues against the opposite party and the

same was arising out of the said agreement which had no public law element and this being a pure contractual dispute arising out of a non-statutory

contract, on the face of the arbitration clause the writ petition was not maintainable.

On the point of power of review under Article 226, the petitioner-Board has relied upon the judgment of the Hon’ble Supreme Court in the

cases of Shivdeo Singh Vs. State of Punjab and Haryana reported in AIR 1963 SC 1909 (Para 8), Jamun Poddar Vs. State of Bihar reported in AIR

1988 Patna 314 (Para 6, 7 and 8). On the point that relief could not have been granted when not prayed for, reliance has been placed on the judgment

of the Hon’ble Apex Court in the cases of Manohar Lal (Dead) by LRs Vs. Ugrasen (Dead) by LRs reported in (2010) 11 SCC 557 (Para 2(c),

30, 31, 32, 33 and 34) and Bharat Amritlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors. reported in (2010) 1 SCC 234 (Para 29, 30, 31,

32, 33, 34, 35 and 36). Further on the point that the writ petition was not maintainable, reliance has been placed on the judgment of the Hon’ble

Apex Court in the case of State of U.P. and Ors. Vs. Bridge and Roof Company (India) Ltd. reported in (1996) 6 SCC 22 (Para 16, 17 and 18).

Submissions of the Writ-Petitioner-Opposite Party

On the other hand, learned counsel representing the original writ petitioner-opposite party submits that the review application is only misconceived

and misleading. It is submitted that the order of the learned Writ Court itself is a well reasoned order and it takes note of the submissions of the Board

that in similar matter interest and dues have been calculated and order was passed on 11.10.1999 with regard to other writ petitioner. The modified

order dated 17.03.2008 itself takes note of the similar view taken with regard to the other person and therefore, by no stretch of imagination it can be

said that the learned writ Court was not aware of the facts and circumstances under which the writ petitioner-opposite party had initially agreed to pay

in the manner it was allowed to one Cheta Nand Singh.

Learned counsel representing the opposite party submits that a bare perusal of the impugned order dated 30.10.2007 issued on 31.10.2007

(Annexure-1 to the writ application) which was available on the record of the Writ Court shows that the said order clearly mentions about the stand

taken on behalf of the petitioner before the Managing Director of the Board but then by rejecting the offer of the writ petitioner-opposite party the

impugned order was passed directing him to pay a sum of Rs.33,42,623/-. Paragraph 6 of the order dated 30.10.2007/31.10.2007 (Annexure-1 to the

writ application) clearly takes note of the submission of the learned counsel representing the original writ petitioner and therefore it cannot be allowed

to be argued on behalf of the Board that the petitioner had suppressed these facts from the learned Writ Court.

Learned counsel submits that in fact the learned Writ Court was also pointed out that initially when the allotment of the plot of the petitioner was

cancelled on 21.12.1993 alleging two consecutives defaults on his part in paying the installments, he had moved this Court in CWJC No.1344 of 1994.

The impugned order in the said writ application was quashed with a direction vide order dated 05.07.1994 to the Board to take a fresh decision in

accordance with law after complying with the principles of natural justice. It took 13 years to the Board in taking this decision and therefore when it

was pointed out to the learned Writ Court in the second round of litigation in CWJC No.14781 of 2007 and it was submitted that for the inordinate and

abnormal delay on the part of the Board in not taking a decision for thirteen years, the petitioner cannot be made liable to pay interest save and except

for a reasonable period after the order dated 05.07.1994 was passed by the learned Writ Court in CWJC No.1344 of 1994, this argument of the

petitioner was able to persuade the learned Writ Court in accepting the challenge to the impugned order dated 30.10.2007/31.10.2007 as well as the

modified order dated 17.03.2008.

Learned counsel submits that at this stage in the garb of the review application the Board cannot be allowed to take a plea as to the maintainability

of the writ application and such efforts being made by the Board at this stage are required to be deprecated. It is also submitted that the present

review application has been filed on the same facts and grounds which were available to the Board at the time of filing of the pleadings in the writ

petition and at the stage of final hearing and, therefore, in the garb of review application the Board cannot be allowed to request this Court to sit in

appeal over the order of the learned Writ Court. The opposite party has also relied upon the provisions as contained in Section 114 read with Order

XLVII Rule-1 and 2 of the Code of Civil Procedure to submit that the principles on which the review application may be maintained even in respect of

a writ proceeding will be the same principles . Even though the Code of Civil Procedure does not apply in its entirety in respect of the writ

proceedings, but the principles laid down under the Code of Civil Procedure have been cited at the bar on several occasions to draw an analogy.

According to said provision any person who is aggrieved by the order and who, from discovery of new and important fact or evidence which after

exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on

account of some mistake or error apparent on the fact of the record, or for any other sufficient reason, desire to obtain a review of the order, he may

apply for review of the judgment. It is submitted that in the case of Inderchand Jain Vs. Motila reported in (2009) 14 SCC 663 (Para 10) the

Hon’ble Apex Court has held that it is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of

the matter is impermissible in law. It is submitted that in case of Haridas Das Vs. Usharaini Banik reported in (2006) 4 SCC 78, the Hon’ble Apex

Court has held that the power of review can be exercised for correction of mistake but not to substitute the view.

Further in paragraph 13 it has been held that where the order in question is appealable, aggrieved party has adequate and efficacious remedy and in

such case the Court should exercise the power of review of its order with great circumspection. Learned counsel submits that the review application

is fit to be dismissed on this ground alone.

CONSIDERATION

After having heard the learned senior counsel representing the Board and learned counsel representing the original petitioner-opposite party as also

after perusal of the records, this Court finds that the ground of suppression of facts raised on behalf of the review-petitioner has no basis to stand.

This Court finds that the fact that the original petitioner had in course of argument before the Managing Director of the Board on 10.10.2007

submitted that he would be ready to pay the amount in similar manner as has been done in the case of one Cheta Nand Singh is not in dispute. The

submissions made on behalf of the petitioner was available on the record of the Managing Director of the Board, he took note of it in his order dated

30.10.2007, but could not be persuaded by the writ petitioner to agree to receive the amount in similar manner as was done in the case of one Cheta

Nand Singh. By the impugned order dated 30.10.2007/31.10.2007, the Managing Director of the Board directed the original petitioner to pay a sum of

Rs.33,42,623/-. This order clearly takes note of the submission of the learned counsel representing the original writ petitioner before the Managing

Director of the Board. It is recorded in paragraph 6 that the learned advocate for the first party had agreed that on being absolved of the conditions

contained in paragraph 3, 4 and 9 of the agreement, he would be ready to pay the up-to-date dues of the plot in question. This order was challenged by

the original petitioner before the learned Writ Court on the grounds inter alia that after more than thirteen years, for no fault of the petitioner he cannot

be asked to pay a fine and interest to the tune of Rs.33,42,636/-, the order challenged is being arbitrary, illegal and malafide in nature.

When the writ application came to be heard on 25.02.2008 a learned coordinate Bench of this Court observed as under:-

“Though a detailed counter affidavit on behalf of the Housing Board has been filed but a basic question still needs to be answered which has a vital

bearing to the demand made by the Housing Board contained in Annexure-1. An earlier action of cancellation was challenged in a writ application,

namely, CWJC No. 1344 of 1994. The impugned order was set aside, matter was remanded on 5.7.1994 by the High Court. The authorities could only

pass the order which is under challenge on 30.10.2017. Why a matter should take more than 13 years to decide has not been satisfactorily explained

or even stated in the counter affidavit. It is moot question to be decided dependent on the satisfactory explanation which is required by the Housing

Board.

List this case as prayed for after three weeks to enable the counsel for the Housing Board to file a supplementary affidavit along with supporting

documents for the assertions and submissions which may be made in the matter.â€​

After the aforesaid order was passed the Board on it’s own modified the impugned order dated 30.10.2007/31.07.2007. The modified order

was passed and this time the petitioner was called upon to pay a sum of Rupees nine lacs two thousand and five hundred fifty. The order dated

17.03.2008 was brought on record with supplementary affidavit filed on behalf of the petitioner as Annexure-

Since this order was passed after the observations of the learned writ Court in its order dated 25.02.2008, the learned Writ Court proceeded to

consider the writ application in its entirety. This Court also finds that while trying to defend the order dated 17.03.2008 the Board submitted before the

learned writ Court that in similar matters interest and dues had been calculated and orders passed on 11.10.1999 with regard to other writ petitioners

and therefore it will be consistent to likewise assess the liability of the petitioner as on 13.12.1999. If this is the position, this Court would reiterate that

the ground stating that it is a case of suppression of facts that the petitioner had agreed to pay like similarly situated Cheta Nand Singh in whose

respect the order dated 11.10.1999 was passed is not correct.

This Court also finds that the learned writ Court took note of the inordinate delay on the part of the Board in fresh disposal of the matter after the

order dated 05.07.1994 was passed in CWJC No.1344 of 1994. The learned writ Court relied upon the judgment of the Hon’ble Apex Court in the

case of M/S Hindustan Times Ltd. Vs. Union of India and Ors. reported in AIR 1998 SC 688 to come to a conclusion that the re-determination could

have been done within a reasonable time and that period would be a period of 2- 3 months. In its ultimate analysis the learned Writ Court rejected the

contention of the Board that similarly situated persons had not challenged the fixation of their dues on 31.12.1999 and took a view that when the

petitioner has laid down a challenge to the action of the Board, he cannot be ousted on the ground that others have not challenged the fixation.

Since the order dated 17.03.2008 was in the nature of a modification of the impugned order dated 30. 10.2007/31.10.2007 which was pending

consideration before the learned Writ Court in the totality of the circumstances the learned writCourtheldthattheimpugnedorderdated 30.

10.2007/31.10.2007 as modified by the order dated 17.03.2008 are liable to be set aside to the extent indicated in the order of the learned Writ Court.

In the written notes of argument the Board has taken a plea that the writ petition was not maintainable, this Court would only say that such

baseless plea cannot be allowed to be taken by the Board at this stage in the review application. The ground which was available to the Board to

argue but could not be argued before the learned writ Court cannot be allowed to be taken while seeking review of the order passed by the learned

Writ Court. This amounts to re-hearing of the matter which is forbidden in the review jurisdiction. The plea of the Board that the order dated

17.03.2008 would not have been interfered with by the learned Writ Court because there was no challenge to the same would also not impress this

Court sitting in its review jurisdiction. It is an admitted position that only after the order dated 25.02.2008 was passed by the learned Writ Court, the

Board on its own reviewed the impugned order dated 30.10.2007/31.10.2007. The lis was pending before this Court and the order dated 17.03.2008

was nothing but in the nature of an amendment of the order dated 30.10.2007/31.10.2007. Thus, in the given facts and circumstance, the learned Writ

Court in its extraordinary writ jurisdiction could have very well considered the fact of the amendment of the impugned order. It cannot be argued by

the Board that in the given circumstance the technicality of challenging the said modified order afresh would have come in the way of the writ

petitioner in getting appropriate relief which were based on the pleadings and the reasonings advanced by the petitioner in the writ petition. On record

is also a counter affidavit filed on behalf of the Board. In paragraph 30 of the counter affidavit the Board has pointed out that the petitioner had given

an undertaking to pay the balance cost of the allotted plot of land and has in fact stated that the same would appear from the order dated

30.10.2007/31.10.2007 (Annexure-1). This strengthens the finding of this Court that the ground based on suppression of facts by the writ petitioner is

totally baseless. It is not the case of the Board that any of the grounds taken by the Board in its counter affidavit was though argued but not

considered by the learned Writ Court. In fact in the garb of the review application the Board is now trying to raise certain arguments which were not

advanced before the learned Writ Court.

Recently, the Hon’ble Supreme Court had occasion to consider the scope of review jurisdiction in the case of Sasi (Dead) Through Legal

Representatives Vs. Aravindakshan Nair and Ors. reported in (2017) 4 SCC 692 and in paragraphs 6 to 9 held as under:-

“6. The grounds enumerated therein are specific. The principles for interference in exercise of review jurisdiction are well settled. The Court

passing the order is entitled to review the order, if any of the grounds specified in the aforesaid provision are satisfied.

In Thungabhadra Industries Ltd. v. Govt. of A.P.3, the Court while dealing with the scope of review had opined:(AIR p.1377, para 11)

“11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any

substantial question of law is an “error apparent on the face of the recordâ€. 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 recordâ€, 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 apparentâ€.A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent

error.

In Parsion Devi v. Sumitri Devi(1997) 8 SCC 715, the Court after referring to Thungabhadra Industries Ltd.3, Meera Bhanja v. Nirmala Kumari

Choudhury(1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma6 (1979) 4 SCC 389, held thus: (Parsion Devi Case4, SCC

p.719, para 9)

4 3 Thungabhadra Industries Ltd. v. State of A.P., AIR 1964 SC 1372

5 “9.Under Order 47 Rule 1 CPC, a judgment may be open to review inter alia 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 the

record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is

not permissible for an erroneous decision to be ""reheard and corrected"". A review petition, it must be remembered has a limited purpose and cannot be

allowed to be ""an appeal in disguise"".

The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be

found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature of review proceedings.â€​

The judgments on which reliance has been placed on behalf of the petitioner-Board with regard to the maintainability of the writ petition or the

power of review under Article 226 of the Constitution of India would not be applicable in the facts and circumstances of this case as also to decide the

issues which have fallen for consideration before this Court.

The context in which the judgment of the Hon’ble Supreme Court was rendered in the case of Bridge & Roof Company (India) Ltd. (supra)

and in the case of Shivdeo Singh (supra) are not present in this case. Similarly, the judgments in the case of Manohar Lal (Dead) (supra) and Bharat

Amritlal Kothari (supra) would not be attracted in the facts of the present case. This Court has already discussed hereinabove that the impugned

modified order dated 17.03.2008 was nothing but a kind of amendment of the impugned order dated 30.10.2007/31.10.2007 and the modified order

was passed after this Court had observed in its order dated 25.02.2008, thus, the ratio of the judgment of the aforementioned two cases on the point

that relief not prayed for should not be granted to the petitioner would not apply in the facts and circumstances of the case.

It is well settled that each judgment of the Court has to be looked into in the context in which the judgment has been rendered. In the case of

Bharat Petroleum Corporation Ltd. and Anr. Vs. N.R. Vairamani & Others reported in (2004) 8 SCC 579, the Hon’ble Apex Court has cautioned

that the judgments/observations of the Court should not be cited like euclid’s theorems as the slightest of change in the facts of the case would

make a sea difference in the judgment of the Court.

In result, no ground at all could be found to recall or modify/set aside the order of the learned Writ Court. The review application has no merit. It

is, accordingly, dismissed.