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1999 DIGILAW 254 (CAL)

KHAITAN (INDIA) LTD. v. UNION OF INDIA

1999-05-10

S.B.SINHA, S.N.BHATTACHARJEE

body1999
SATYA BRATA SINHA, J. ( 1 ) THIS review application has been filed for review of our judgment dated 6th April, 1999, whereby and whereunder the appeal preferred by the applicant herein was dismissed. ( 2 ) MR. Ghosh appearing on behalf of the applicant, inter alia, submitted that there exists an error apparent on the face of the records necessitating review of the said judgment and order, in view of the fact that this Court has failed to take notice of the fact that there has been violation of the principles of natural justice, alternative remedy cannot be said to be a bar. The learned Counsel in support of his contention has relied upon various decisions of the Supreme Court of India, namely, Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U. P.), reported in AIR 1987 SC 2186 : (1987 Lab IC 1901); M/s. Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, reported in AIR 1969 SC 556 and also in AIR 1961 SC 1506 and in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in 1998 (8) SCC 1 : AIR 1999 SC 22 . ( 3 ) ACCORDING to the learned counsel as in view of the aforementioned decisions of the Apex Court even the exception to the rule namely the writ Court shall not ordinarily entertain the writ application has no application in the case where the principles of natural justice has been violated, in the interest of justice the said order should be reviewed. Relying on the basis of the decision in Commissioner of Sales Tax, J. and K. v. Pine Chemicals Ltd. , reported in 1995 (1) SCC 58 : (1995 AIR SCW 1717) the learned counsel submitted that even where interpretation of a statute law which was at variance with the clear and simple language thereof, was held to be an error apparent on the face of the records. Mr. Mr. Ghosh further submitted that reliance placed by this Court upon the decision of the Supreme Court of India in State Bank of Patiala v. S. K. Sharma, reported in 1996 (3) SCC 364 : ( AIR 1996 SC 1669 ) is misplaced as in some other decisions which are of larger Bench namely AIR 1958 SC 86 and AIR 1981 SC 136 , it has been held that violation of principles of natural justice itself was a prejudice. ( 4 ) MR. Ghosh further urged that it is not a case where there has been no violation of principles of natural justice at all as would appear from various statements made in the writ application. The learned counsel submitted that the learned trial Judge in fact had entertained the writ application being satisfied that there had been violation of principles of natural justice but without assigning any cogent reasons dismissed the writ application on the ground that the petitioner had an alternative remedy to prefer an appeal before the Supreme Court of India in terms of S. 55 of M. R. T. P. Act. ( 5 ) MR. Ghosh urged that thus the learned trial Judge cannot be to have applied its mind nor can it be said to have refused to exercise its discretion but this Court, inter alia, had proceeded with on the basis that such discretion may not be interfered with. ( 6 ) THE question raised in this review application must be answered keeping in view the limitations of this Court in entertaining an application for review. There cannot be any doubt that review is not an appeal nor any or other error can be corrected by way of review. ( 7 ) REFERENCE in this connection may be made to AIR 1998 SC 2655 and 99 CWN 305 (sic ). In a recent decision in Parsion Devi v. Sumitri Devi, reported in 1998 WBLR (SC) 80, a Division Bench coram A. S. Anand as his Lordship then was) and S. Rajendra Babu, J. while hearing a review application made a distinction between an erroneous decision and error apparent on the face ofrecord in the following terms :-"it is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1, CPC. In Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, (1965) 5 SCR 174 : AIR 1964 SC 1372 ) at 186 this Court opined :"what, however, we are not 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 record'. 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 record', 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 apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. " (Emphasis ours) ( 8 ) THE Apex Court yet again in Ashok Kumar Sharma v. Chander Shekhar, reported in 1997 (4) SCC 18 , inter alia, held that the Court may review to entertain a review application if a discretion has been exercised thereby -"having given our anxious and earnest consideration to the question and keeping in view the fact that we are sitting in review jurisdiction and that this particular aspect is a matter lying within the discretion of the Court, we do not think it appropriate to interfere with the unanimous opinion of the three learned Judges of this Court on this aspect. It is true that the Division Bench of the High Court had granted the relief not only to the four review petitioners/writ petitioners but to all the candidates falling in that category yet we cannot ignore the fact that even Sahai, J. who agreed with the review petitioners on the first issue, thought it just and proper not to disturb the inter se seniority between these two groups of selected candidates. The said seniority was determined by the selecting authority. The said seniority was determined by the selecting authority. Though certain allegations are made with respect to the fairness of the process of selection, that issue is not open in these review applications nor was it gone into by this Court in the civil appeals". ( 9 ) IN Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, reported in AIR 1979 SC 1047 , the Apex Court had distinguished its earlier decision in Shivdeo Singh v. State of Punjab, reported in AIR 1963 SC 1909 and held :"that there is nothing in Art. 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 power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. " ( 10 ) THE decision cited by the learned counsel for the applicant, in the opinion of this Court does not require any detailed discussion as the principles laid down therein in the facts and circumstances of the case obtaining therein are beyond any pale of dispute. We may, however, notice that in M/s. Govind Saran and Sons v. State of Bihar, reported in AIR 1983 Patna 96, a Division Bench had clearly held that alternative remedy will not be a bar for entertaining a writ application as therein no disputed question of fact was at all involved for decision therein. We may, however, notice that in M/s. Govind Saran and Sons v. State of Bihar, reported in AIR 1983 Patna 96, a Division Bench had clearly held that alternative remedy will not be a bar for entertaining a writ application as therein no disputed question of fact was at all involved for decision therein. The said decision had been followed by one of us in Akhileshwar Prasad Narain Singh v. State of Bihar, reported in AIR 1988 Patna 347. ( 11 ) KEEPING in view the aforementioned principles of law, we may notice that in our judgment dated 6th April, 1999, we had, inter alia, keeping in view the order passedby the Commission, come to the conclusion that on the face of the minutes recorded, therein, there had been no violation of principles of natural justice. This Court thereafter, had proceeded to consider other submissions made on behalf of the appellant, on the assumption that the principles of natural justice might have been violated and in that context, reference was made to State Bank of Patiala v. S. K. Sharma, reported in 1996 (3) SCC 364 : ( AIR 1996 SC 1669 ) as also a decision of the Apex Court in Managing Director, E. C. I. L. v. B. Karunakar, reported in AIR 1994 SC 1074 : 1994 Lab IC 762. ( 12 ) WHETHER violation of principles of natural justice itself gives rise to a prejudice or not will depend on the facts and circumstances of each case. In a given case, the Court may insist upon the writ petitioner to show that he has been prejudiced thereby. Natural justice, as is well known, has no strait jacket formula and varies from case to case. In some cases, the writ Court or the High Court may not even allow the petitioner or the appellant to take the point of violation of principles of natural justice on the basis that it should not be allowed to be stretched too far inasmuch as, it has sometimes been seen that those committed wrong intend to take shelter thereunder. ( 13 ) FURTHERMORE, rightly or wrongly this Court intended to lay down a law which had not been laid down in any other earlier decisions. ( 13 ) FURTHERMORE, rightly or wrongly this Court intended to lay down a law which had not been laid down in any other earlier decisions. This Court in its judgment dated 6th April, 1999, laid down a principle that the question as to whether violation of principles of natural justice itself could be the ground to entertain the writ application, would depend upon the question where the alternative remedies are available. If an alternative remedy is available before an independent Court, which is not the appellate forum under the statute, but is headed by a judicial officer or the appellate forum is a High Court or Supreme Court of India, the doctrine of the exception to the principles that the Court may entertain a writ application, inter alia, where an allegation of violation of principles of natural justice is made. ( 14 ) IF the statutory remedy lies by way of an appeal, either before the High Court or before the Supreme Court of India, the Court may either exercise power of judicial review or the appellate power. In fact, if the same Court can exercise two jurisdictions, viz. the appellate jurisdiction as also the jurisdiction of judicial review, the litigant should prefer to avail the appellate jurisdiction, in view of the fact that its concept is wider and larger. In such a case it must be held that the remedy provided for under a statute is more efficacious than its jurisdiction while exercising power of judicial review. High Court or the Supreme Court of India can interfere with administrative, judicial or quasi-judicial order, only if any illegality, irrationality and procedural impropriety, committed therein. While exercising power of judicial review, the Court is not concerned with the merit of the decision but merely concerned with the decision-making process, whereas while exercising its appellate jurisdiction, it can consider the merit of the decision. We may, in this situation refer to a Division Bench judgment of Patna High Court in M/s. Shriram Bearing Ltd. v. The Employees' State Insurance Corporation, reported in 1977 Lab IC 1482, while considering the provisions of S. 75 of the Employees' State Insurance Act, it was held that a Court constituted thereunder has all the powers and, thus, a writ petition shall not be entertained. It may be noticed that in Ratanlal Nahata v. Nandita Bose, reported in AIR 1999 Cal 29 , this Court while interpreting Order 47, Rule 5 of the Code of Civil Procedure, has referred to Justice Cardoze and Albert Camus and held :"justice Cardoze said :-'the law has its epochs of ebb and flow, the flood tides are on us. The old order may change yielding place to new; but the transition is never an easy process'. From only 'justice' the Courts have now begun to think in terms of 'social justice', 'socio-economic justice' and 'distributive justice'. The end of the law is seen to be, not only vindication of legal equality, but also provision of equality in fact with regard to more and more of elements that make life meaningful in the contemporary community. It no longer plays a regulatory role but also a constructive one. Albert Camus stated :-'the wheel turns, history changes'. Stability and change are the two sides of the same law coin. In their pure form they are antagonistic poles; without stability the law becomes not a chart of conduct, but a gare of chance; with only stability the law is as the still waters in which there are only stagnationand death." ( 15 ) THE Court in passing its order might be right or the Court may be wrong and the same may be considered by the Apex Court upon considering all its decisions as regard the concept and ambit of the principles of natural justice but suffice it to say that the said decision had been arrived at by this Bench consciously. It was not a case, where a decision has been made in ignorance of the law. The Court was conscious of the decisions cited by the learned Counsel and thought that the dicta laid down therein could be confined to the fact of each case. A distinction has to be borne in mind in exercising or refusing to exercise its discretion in entertaining a writ application where there exists an alternative remedy in a case where an appeal lies before the Apex Court of India and an appeal lies before a departmental authority. A distinction has to be borne in mind in exercising or refusing to exercise its discretion in entertaining a writ application where there exists an alternative remedy in a case where an appeal lies before the Apex Court of India and an appeal lies before a departmental authority. Furthermore, as indicated hereinbefore, this Court in its judgment dated 6-4-1999 found that it was not a case where it can be said that the violation of the principles of natural justice could be found out on the face of the order. The Court further noticed that even if a Court is required to go into the said question, it will have to determine a disputed question of fact, which can more properly be dealt with by the appellate Court than by the Court exercising power of judicial review. Where, there exists a disputed question, the High Court may not entertain the writ application. Reference in this connection may be made to Kundori Labour Co-operative Society v. State of Bihar, reported in 1986 PLJR 837 . ( 16 ) ANOTHER aspect of the matter cannot also be lost sight of. On the applicant's own showing, the subject-matter of the lis, before the M. R. T. P. Commission was an alleged malpractice committed by the appellant for introducing a gift scheme with effect from 1-2-1999 till 30-4-1999. The said period is over. It is now a well settled principles of law that a Writ Court exercises its jurisdiction of review under Article 226 itself. In a given case, thus, it can refuse to exercise its review jurisdiction for the same reason it can refuse to exercise its Writ Jurisdiction. The Court may review its order provided it causes manifest injustice. Even in the case of S. L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136 , upon which strong reliance has been placed by Mr. Ghosh, the Court may refuse to exercise its discretion if it is satisfied that no useful purpose would be served thereby. ( 17 ) BEFORE parting with the matter, we may further note that the learned Counsel had addressed us as if we are hearing an appeal over our own order. He took more time than was taken originally when the entire appeal was heard. ( 17 ) BEFORE parting with the matter, we may further note that the learned Counsel had addressed us as if we are hearing an appeal over our own order. He took more time than was taken originally when the entire appeal was heard. Review jurisdiction cannot be exercised, where such a detailed hearing is necessary, as the error must be pointed out on the face of the record. ( 18 ) FOR the reasons aforementioned, we are of the opinion that it is not a fit case in which we should exercise our discretionary review jurisdiction. Accordingly, this application is dismissed. ( 19 ) A prayer was made for Leave to Appeal before the Supreme Court of India. We do not find that any substantial question of law of general importance has been raised. Prayer is, therefore, rejected. ( 20 ) I agree. Order accordingly.