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2004 DIGILAW 777 (CAL)

GEETA RAO v. UNION OF INDIA

2004-12-17

ASHIM KUMAR BANERJEE, NURE ALAM CHOWDHURY

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ASHIM KUMAR BANERJEE, J. ( 1 ) THE review applicant was the Pramukh of Little Andaman Panchayat Samity. One Dinabandhu Mondal, a member of the said Panchayat Samity, served a notice dated 5th April, 2004 expressing his intention to move a no confidence motion. The Executive Officer by his notice dated 7th April, 2004 convened a meeting of the members of the panchayat Samity to consider the said no confidence motion. On 13th April, 2004 the Executive Officer postponed the said meeting till 22nd April, 2004, because of the ensuing Parliament Election. By another letter dated 15th april, 2004, the Executive Officer informed that the no confidence motion was moved on 15th April and the same was passed. The writ petitioner approached this Court. This Court stayed the said impugned resolution and directed the respondents to file affidavit, In a contempt proceeding Initiated in the earlier writ proceeding Maharaj Sinha, J. by an order dated 23rd July, 2004 set aside the said resolution and permitted the Samity to proceed strictly in a accordance with the rules. ( 2 ) THE said Shri Mondal gave a further notice of no confidence on 26th july, 2004. The Executive Officer by a notice dated 27th July, 2004 convened a special meeting of the Samity to consider the no confidence motion on 3rd August, 2004. The said notice gave rise to the present writ proceeding. The petitioner challenged the said notice principally on the ground that seven days' notice stipulated in Rule 21 had not been given. ( 3 ) JAYANTA Kumar Biswas, J. by His Lordship's Judgment and order dated August 3, 2004 dismissed the writ application inter alia holding that Rule 21 obligated the Executive Officer to convene a meeting of the samity within 15 days front the date of moving of the notice. It further stipulated that no meeting, could be called before expiry of seven days from the date of moving of the motion, ( 4 ) AN appeal was preferred The Division Bench by an older dated august 12, 2004 dismissed the appeal. Before the Court of Appeal two other grounds were taken apart from the ground of insufficient notice. It further stipulated that no meeting, could be called before expiry of seven days from the date of moving of the motion, ( 4 ) AN appeal was preferred The Division Bench by an older dated august 12, 2004 dismissed the appeal. Before the Court of Appeal two other grounds were taken apart from the ground of insufficient notice. It was contended on behalf of the petitioner/appellant that she being the only female candidate available could not be removed from the post violating the provision of the Constitution and the notice was vitiated because of non-service of the same upon the Member of Parliament, who was the ex-officio member of the Samity. Their Lordships rejected both the contentions and observed that non-service of the notice upon the member of Parliament was neither taken before the Learned Single Judge nor in the Memorandum of Appeal. Relevant portion of Their Lordships' judgment in this regard is quoted below: this point was neither taken before the learned Trial Judge nor was taken in the Memorandum of Appeal, and this being a point of fact, we have not permitted the same to be urged at the appellate stage. ( 5 ) HENCE this application for review. ( 6 ) ON a close look to the application for review and its grounds mentioned therein, it would appear that the review applicant re-agitated the entire issue including dispute on facts, which stood disposed of firstly by the Learned Single Judge and thereafter by the Learned Division bench in the appeal. ( 7 ) MR. Tapan Kumar Mukherjee, learned counsel appearing in support of the review application, initially contended that judgment and order of the Division Bench suffered from material irregularity and illegality because of the observation quoted supra, as in fact, the review petitioner took this point in the writ petition as well as in the Memorandum of appeal. When he was asked to substantiate his argument by making reference to the writ application as well as the Memorandum of Appeal, he failed. He, on the other hand, contended that under Rule 21 of the relevant Panchayat Rules notice was to be served upon the Member of parliament as cx-officio member and non-service of the same would automatically vitiate the proceeding resulted therefrom. According to him, he categorically took the point in the writ petition that there had been violation of Rule 21. He, on the other hand, contended that under Rule 21 of the relevant Panchayat Rules notice was to be served upon the Member of parliament as cx-officio member and non-service of the same would automatically vitiate the proceeding resulted therefrom. According to him, he categorically took the point in the writ petition that there had been violation of Rule 21. On a close look, I find that the entire writ petition was based principally on one ground i. e. non-service of seven days' clear notice. Hence there was no scope for the learned Single Judge to decide any other point, which was not specifically taken in the writ petition. ( 8 ) ON a close look on the Memorandum of Appeal, I do not find any ground on the said score, although Mr. Mukherjee tried to contend that there was such a point in the stay application. ( 9 ) LEARNED Judges of the Division Bench observed that neither the point was canvassed before the Learned Single Judge nor the same was taken in the Memorandum of Appeal. However, forceful Mr. Mukherjee's argument may he, I find from the record that such observation is absolutely correct. ( 10 ) MR. Mukherjee then tried to contend that this being a point of law could be urged at any point and the Division Bench should have considered the same. Mr. Mukherjee further contended that for the ends of justice this Court should hear the appeal afresh by recalling the judgment and order of the Division Bench dated August 12, 2004 as it would otherwise be a miscarriage of Justice. ( 11 ) IN support of his contention he relied oil tile following decisions (i) Lt. Governor vs. Kulsn Bibi, reported in 2000 (1) Indian Law reports, A and N Series, page 28. (ii) M. M. Thomas vs. State of Kerala and Anr. . reported in (2000) 1 Supreme Court Cases 666. (iii) Bhagwati Prasad us. Chandramaul, reported in AIR 1966 supreme Court 735 (V 53 C 139 ). (iv) S. Nagaraj and Ors. vs. State of Karnataka Si Ann, reported in 1993 Supp (4) Supreme Court Cases 595. ( 12 ) MD. Tabraiz, learned counsel appearing for the Member of Parliament informed us the following relevant facts. (iii) Bhagwati Prasad us. Chandramaul, reported in AIR 1966 supreme Court 735 (V 53 C 139 ). (iv) S. Nagaraj and Ors. vs. State of Karnataka Si Ann, reported in 1993 Supp (4) Supreme Court Cases 595. ( 12 ) MD. Tabraiz, learned counsel appearing for the Member of Parliament informed us the following relevant facts. (i) The review applicant filed another writ proceeding after the judgment and order of the Division Bench challenging the resolution on the ground of non-service of notice upon the member of Parliament. (ii) The said writ application having been dismissed by the learned single Judge on the ground of res judicata, an appeal was preferred and the same was pending before this Court. (iii) The Member of Parliament had no voting power and as such non-service of notice did not affect the resolution. (iv) The Member of Parliament was in favour of the resolution passed by the Samity. ( 13 ) ON enquiry made by this Court Mr. Mukherjee could not give any plausible explanation as to why the second writ proceeding and the appeal therefrom were concealed before us. ( 14 ) ON perusal of the Rule 21 of the Andaman and Nicobar Islands (Panchayat Administration) Rules. 1997, I find that under Sub-rule (1), a motion of no confidence against Pramukh may be moved by any member of the Samity after giving seven days' notice. The notice shall be addressed to the Pramukh and shall be delivered to him or in his absence Upa-Pramukh or to the Executive Officer. The Pramukh or Upa-Pramukh or executive Officer as the case may be would then call a special meeting within 15 days from the date of moving of the motion upon notice to all members. ( 15 ) SUB-RULE (2) provides for the procedure of holding the said meeting, whereas Sub-rule (3) provides for vacating of office by the Pradhan after he is removed by the said no confidence motion. Learned Single Judge held that it was incumbent upon the Executive Officer to hold the meeting within 15 days from the date of moving of the notice for no confidence which had been done in the instant case. Learned Single Judge held that it was incumbent upon the Executive Officer to hold the meeting within 15 days from the date of moving of the notice for no confidence which had been done in the instant case. The Learned Judge also held thai seven days' notice had also been given in the instant case inasmuch as upon receipt of the motion the Executive Officer gave seven days' notice for holding the said meeting and the meeting was called after seven days from the date of the notice. The Division Bench affirmed such decision of the Learned Single Judge. The contention of Mr. Mukherjee that nonservice of notice on the Member of Parliament was taken in the writ petition by indicating that there was a violation of Rule 21 has no merit and the Division Bench rightly observed on that score. ( 16 ) THE scope of review of a decision of the Court of Law by the same bench or by a Co-ordinate Bench is a limited one. As I have said hereinbefore, the grounds of the Review application and a bare look on those would infer that the review applicant approached this Court for reconsideration of the matter on merits, which is not permissible in law. one learned judge taking a particular point of view should not be reversed by another learned Judge of the Co-ordinate Bench taking a different view. This is not the scope of review. If the review applicant is aggrieved, he is at liberty to approach the higher forum. If he can show that there is a grave mistake crept in the earlier judgment or there is any material irregularity or error ex facie apparent on the face of record, he can come before a Co-ordinate Bench or before the same Bench with an application for review. This is not the case herein. The review application has no merit whatsoever and is liable to be set aside and is hereby rejected. ( 17 ) BEFORE parting with, I feel that it would he appropriate for me to add few words on the issue of review before the Circuit Bench at Port blair otherwise I would be failing in my duty. Ordinarily, a review would lie before the same Bench. ( 17 ) BEFORE parting with, I feel that it would he appropriate for me to add few words on the issue of review before the Circuit Bench at Port blair otherwise I would be failing in my duty. Ordinarily, a review would lie before the same Bench. However, because of the administrative problem, the Full Bench of the High Court thought it fit to make a departure in case of the Circuit Bench at Port Blair by granting liberty to the Co-ordinate Bench to hear application for review. The law makers thought it fit to permit only the same Bench to hear the application for review for obvious reason. If a mistake is apparent, the same should be corrected by the person who committed. the mistake. The departure herein has been made to avoid administrative problem. I am constrained to say that presently some of the litigants in these Islands taking advantage of change of personnel in the Bench are coming up with the application for review although most of the applications hardly have any ground for review following the well-settled principles of law laid down by the Apex Court. If this is encouraged unnecessarily, the record of this Court would be burdened by frivolous litigation. This attempt should he nipped in file bud. ( 18 ) I am of the view that the present review application is one of those frivolous proceedings and while dismissing the same exemplary costs should be imposed upon the review applicant. ( 19 ) HENCE, the review applicant is directed to pay a sum of rs. 20,000/- (Rupees twenty thousand) as assessed cost by way of penalty to be deposited with the learned Registrar, High Court, Circuit Bench at port Blair, within a week from date. Revision dismissed.