State Of Tripura And Ors. vs Santosh Deb And Ors.

This review petition is directed against our order dated 1-3-2017 passed in WP(C)(PIL) No.14 of 2015, which is in the following terms:

"01.3.2017

Heard Mr. Somik Deb, the learned counsel for the petitioners. Also heard Mr. B C Das, the learned Advocate General for the respondents.

The grievance projected by the petitioners in this PIL is that Rules 22 and 129(1) of the General Financial Rules (GFR) have not been complied with by the State-respondents while allotting works in the Rural Development Department.

Today, the learned counsel for the petitioners has placed before us the memorandum dated 19.5.2016 wherein the Finance Department has given an instruction of the need to adhere to the provisions of General Financial Rules(GFR) and Delegation of Financial Power Rules, Tripura(DFPRT), 2011.

In the light of this memorandum, we direct the Rural Development Department, State of Tripura to strictly adhere to these provisions while allotting works in the department.

The writ petition disposed of in terms of the above direction."

After the order was passed, the review petitioners apparently refused to comply with our order. This prompted the writ petitioners to move this Court under the Contempt of Courts Act, 1971 to initiate contempt proceedings against the review petitioners. While the contempt petition is pending before this Court in a separate proceeding, this review petition has been filed. A perusal of the impugned order dated 1-3-2017 will indicate that the writ petition was disposed with the direction contained therein, in the presence of all the counsel representing the rival parties, after the learned counsel for the writ petitioners brought to our notice the memorandum dated 19-5-2016 of the Finance Department of the State Government instructing all concerned to adhere to the provisions of General Financial Rules (GFR) and Delegation of Financial Power Rules, Tripura (DFPRT). On the basis of the two rules, we had accordingly directed the Rural Development Department, Government of Tripura to strictly adhere to these provisions while allotting works in the Departments of the State Government.

The case of the review petitioners is that there were the Memoranda dated 21-7-2016 and the note dated 26-8-2016, which are later in point of time, whereunder it was clearly provided that the procedure for inviting tenders and the processing thereof referred to in the said Memorandum dated 19-5-2016 is not to be insisted in so far as RD Department (Engineering Wing) is concerned where work is executed departmentally. This was virtually repeated in the subsequent Note dated 26-8-2016 of the Finance Department addressed to the Rural Development Department, which is to the same effect. It is argued by the learned Advocate General appearing for the review petitioners that these two vital documents were not within the knowledge of the writ petitioner when the Memorandum dated 19-5-2016 was produced by the learned counsel for the writ petitioner and had the existence of these documents been known to him and the same were produced by him before this Court at the time of hearing of the PIL on 1-3-2017, this Court would not have passed the impugned order; the impugned order, therefore, cannot stand and is liable to be recalled/set aside. He relies on the following decisions to buttress his contentions: Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others, (1979) 4 SCC 389; Lily Thomas and others v. UOI and others, (2000) 6 SCC 224 and State of Jammu and Kashmir v. RK Jalpuri, (2015) 15 602; State of Rajasthan and another v. Surendra Mohnot and others, (2014) 14 SCC 77 and Shivdeo Sngh and others v. State of Punjab and others, AIR 1963 SC 1909.

On the other hand, Mr. Somik Deb, the learned counsel for the respondent/writ petitioner, vehemently urges this Court not to entertain the review petition, which is totally devoid of merit. He maintains that none of the ingredients for invoking the review petition such as discovery of new evidence (what is sought to be relied on is an old document) or error apparent on the face of the record is satisfied by the review petitioners in the instant case. He submits that the scope of review jurisdiction under Article 226 is akin to the power of the civil courts available under Order 47, Rule 1, CPC, and when the review petition filed by the petitioners herein is not about discovery of new evidence or an error apparent on the face of record or for reasons analogous thereto, the review petition cannot be entertained. He contends that the impugned order was passed by this Court in the presence of the learned counsel for the review petitioners, who, with their eyes wide open, did not even bother to dispute that the memorandum dated 19-5-2016 had been superseded in the meantime. Strong reliance is placed by the learned counsel on the following decisions in support of his contentions: State of Karnataka and another v. K.C. Subramanya and others, (2014) 13 SCC 468; Krishna Kant Tiwari v. Kendriya Vidyala Sangathan and another, (2014) 13 SCC 471; Haryana State Industrial Development Corporation Ltd. v. Mawasi and others, (2012) 7 SCC 200; State of Haryana and others v. M.P. Mohla, (2007) 1 SCC 457; State of W.B. and others v. Kamal Sengupta and another, (2008) 8 SCC 612; Inderchand Jain v. Motilal, (2009) 14 SCC 663; Meera Bhanja (Smt) v. Nirmalaa Kumari Choudhury (Smt) (1995) 1 SCC 170 and Aribam Tuleshwar Sharma (supra).

The only case of the review-petitioners appears to be that the Rural Development Department has no work manual and has since the year 1996 been undertaking departmental execution process without inviting tender from the public vide the Memorandum dated 29-7-1996 and the various instructions issued from time to time; CPWD Manual is not applicable to this Department and the same is meant for contract works by engaging contractors. After getting the approval of the Government, the Memorandum dated 21-7-2016 came to be issued specifically excluding the operation of Clause 2(ii)(f) of the Memorandum dated 19-5-2016 of the Finance Department from Rural Department Development (Engineering Division) where work is departmentally executed. This Memorandum dated 21-7-2016 was obviously not produced before this Court by the review petitioner when the impugned order was passed by this Court in the presence of the learned counsel appearing for both the parties.

There is force in the contention of the learned counsel for the respondent that the scope of review jurisdiction even in a writ jurisdiction under Article 226 of the Constitution is limited to what is provided for in Order 47, Rule 1, Code of Civil Procedure even though the Code is technically not held applicable to writ jurisdiction. This is what the Apex Court said in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others, (1979) 4 SCC 389. Thus, the power of review may be exercised in the case of discovery of new and important matter or evidence, which, despite the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground, but it may not be exercised on the ground that the decision was erroneous on merits; that would be the province of court of appeal. Review is not an appeal in disguise. For example, an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of record. In the case at hand, it is not the case of the review petitioners, nor can it be their case, that there is an error apparent on the face of record.

The question to be considered then is whether there is discovery of new and important matter or evidence, which was not within the knowledge of the review petitioners or which could not be produced by them even after exercise of due diligence when the impugned order was passed by this Court. As already noticed, the case of the review petitioners is that this "Court was not apprised of the said Memorandum dated 21-7-2016 and the Note dated 26-8-2016 due to the unawareness of the said Memorandum and Note by the learned Advocate of the writ petitioners, otherwise the learned Advocate for the writ petitioners would not have placed the Memorandum dated 19-5-2016 before this Hon'ble Court without the appraisal of Memorandum dated 21-7-2016 and Note dated 26-8-2016". The true legal position is that before an application for review can be granted, the applicant must establish that even after exercise of due diligence, such evidence was not within his knowledge or could not be produced by him before the Court at the time when the order/decree was passed. There must be sufficient evidence of diligence in getting all the evidence available. An application for review should be refused when such evidence could have been produced had reasonable care and diligence been exercised. The significant point to note is that it is the petitioners for review, and not the respondent herein, who must establish that even after exercise of due diligence, such evidence was either not within their knowledge nor could it be produced by them before the Court at the time when the order sought to be reviewed was passed. The attempt made by the learned Advocate General to shift such burden of proof upon the respondent cannot be countenanced by this Court. It is for the review petitioners to establish that even after exercise of due diligence, the said Memorandum and Note were not within their knowledge or could not be produced by them before the Court at the time when the impugned order was passed. Therefore, the review petitioners have miserably failed to satisfy this Court that despite the exercise of due diligence, the two documents in question was not within their knowledge or could not be produced by them when the impugned order was passed. It must be observed that the custodian of such documents was the review petitioners and not the respondent.

The next point for consideration is, whether the scope of review petition in a writ petition is larger than the scope of review petition under Order 47, Rule 1 CPC. Such a question had come up for consideration before the Apex Court for the first time in Shivdeo Singh (supra) wherein it was observed that nothing in Article 226 of the Constitution precludes 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 palpable errors committed by it. Left to this case, the peculiar nature of the instant case could warrant a review of the impugned order. However, the subsequent decision of the Apex Court in Aribam Tuleshwar Sharma (supra) has laid to rest the legal proposition that there are definitive limits to the exercise of the power of review. This is what the Apex court said:

"3. The Judicial Commissioner gave two reasons for reviewing his predecessor's order. The first was that his predecessor had overlooked two important documents Exs. A-1 and A-3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by then. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1909 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. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers, which may enable an appellate court to correct all manner of errors committed by the subordinate court.

In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceedings under Article 226. Again that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs."

In K.C. Subramanya (supra), the Apex Court construed the expression "... notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed," engrafted in Order 41, rule 2 of the Code, which, we think, is virtually similar to the expression used in Order 41, Rule 27(1)(aa) for the exercise of review jurisdiction and held:

"27.(1)(a) * * *

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not with his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) * * *

On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.

It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will.

In the instant matter, the appellants are a public authority and have sought to produce a road map which, it is unbelievable, was not within the knowledge of the appellants indicating a road to the disputed land. Therefore, the rejection of the application of the appellants to rely on the said map has rightly not been entertained at the stage of first appeal. The impugned order Regular First Appeal No. 1765 of 2005, decided on 26-7-2011 (KAR) thus does not suffer from legal infirmity so as to interfere with the same."

As already noticed, in the instant case also, the review petitioners are public authorities and have sought for review of the impugned order on the ground that the office memorandum and the departmental note were not brought to the notice of the Court as the counsel for the respondent/writ petitioner (to be noted: not the counsel for the review petitioners) was not aware of the existence of the such documents and had the same been produced before this Court at the time of time of passing the impugned order, it would not have passed the same to their detriment. But, it is not the duty of the respondent to produce such documents. Nor is it the case of the review petitioners that such documents were suppressed by him. In any case, as already noticed, it is the review petitioners, and not the respondent, who must establish that even after exercise of due diligence, such evidence was either not within their knowledge nor could it be produced by them before the court at the time when the order sought to be reviewed was passed. It is equally unbelievable that the review petitioners were not aware of such documents, which are their own documents and were indisputably in their custody, at the time of passing the impugned order and could not, therefore, produce the same before this Court at that time. Complete lack of diligence looms large. As a general rule, where a litigant has obtained a judgment in a court of justice, he is by law entitled not to be deprived of the fruits of his litigation without very compelling reasons. It is very easy for the party who has lost his case to see the weak points in his case and he would then be tempted to try to fill in the gaps in his case by producing evidence which will strengthen that weak part of his case and put a different complexion upon that part. It is also quite possible that the documents in question were created post facto to nullify the order of this Court. Therefore, where a review of a judgment is sought by a party on the ground of discovery of fresh evidence, utmost care ought to be exercised by the court before entertaining the review petition. Therefore, under the law of review, no case is made out by the review petitioners to recall our order.

For the reasons stated in the foregoing, there is no merit in this review petition, which is, accordingly, dismissed. However, on the facts and in the circumstances of the case, there shall be no order as to cost.