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2010 DIGILAW 732 (GAU)

State of Manipur v. A. K. Cycle and Allied Centre

2010-09-15

MAIBAM B.K.SINGH, T.NANDAKUMAR SINGH

body2010
JUDGMENT T. Nandakumar Singh, J. 1. The review petitioners, the principal respondents in Writ Appeal No. 94 of 2000 filed by the respondents-writ petitioners, are seeking for review of the judgment and order of this Court (Division Bench) dated 06.02.2007 passed in Writ Appeal No. 94 of 2000 wherein and whereunder the review petitioners are directed to refund the transit pass fee collected by the review petitioners for facilitating the transportation of Betel Nut by the respondent/writ petitioners through all the check gates put up by the State Government, on the grounds that this Court while passing the order dated 06.02.2007 had the misconception of law regarding 'tax and fee'; such misconception shall result in miscarriage of justice and also the law is to bend before justice. Heard Mr. H.N.K. Singh, learned senior counsel assisted by Mr. Genenanda, learned counsel for the review petitioners and Mr. Serto T. Kom, learned counsel appearing on behalf of the respondent-writ petitioners. 2. The fact in detail, leading to filing of WP(C) No. 909 of 1999 by the respondent-writ petitioners are mentioned in the judgment and order of the learned single Judge dated 23.06.2000, wherein and whereunder the learned single Judge held that the review petitioners are not entitled to levy transit pass fee on Betel Nut imported from Myanmar and the matter for refund of the said fee is left to the State (Review Petitioners) and respondent-writ petitioners may approach the State to refund the amount deposited by the respondent-writ petitioners and the State shall pass necessary order in this regard; and in also the judgment and order of the learned Division Bench dated 06.02.2007, against which the review petitioners filed the present review petition, wherein the Division Bench had directed the review petitioners to refund the transit pass fee in four instalments. 3. In order to avoid repetition of facts, only bare minimal facts, sufficient for deciding the present review petition is noted. The writ petitioners are the licensees, in whose favour import and export licences had been issued by the office of the Deputy Director General of Foreign Trade, Guwahati, which is the concerned authority to issue trade licence to trade with Myanmar as per the Myanmar Border Trade agreement. The writ petitioners are the licensees, in whose favour import and export licences had been issued by the office of the Deputy Director General of Foreign Trade, Guwahati, which is the concerned authority to issue trade licence to trade with Myanmar as per the Myanmar Border Trade agreement. Some of the items for export and import under the licence issued in favour of the respondent-writ petitioners are (1) Betel Nuts and Leaves, (2) Food items for local consumption, (3) Tobacco and tomato etc. etc. The Betel Nut is the item concerned in the present writ petition as well as the review petition. 4. It is stated that Betel Nut has been a minor forest product in Manipur and neighbouring States, by virtue of definition under Section 2(4)(b) of the Indian Forest Act, w.e.f. 19.12.1992 on which date rate of royalty was fixed and levying of fee is possible under Rule 36 (b) of the Manipur Forest Rules, 1971. The State of Manipur, Forest Department is directed by the Finance Department of the Government of Manipur to levy transit pass fee or service charge on all items including Betel Nut irrespective of its origin passing through the State of Manipur. Only after paying the transit pass fee/service charge/fee on Betel Nut by the respondent-writ petitioners, the State Government (Review Petitioners) made all necessary facilities and service for free movement and transportation of Betel Nut through all the check gates put up by the State Government. It is also stated that the fee being the Entry No. 66 of the State List, i.e. List No. 2 of 7th Schedule to the Constitution of India, in respect of any matter in the State List, the State Government passed the said order for imposing transit pass fee or service charge (fee) on Betel Nut for the said service rendered by the State Government 5. It is settled position of law that the principles of finality of the judgment of the superior Court should be maintained inasmuch as review petitions are not to be taken as a routine course. It is also equally well settled that the Court should act ex debito justitiae as may be necessary in the interest of justice or necessary to do so for the sake of justice by exercising the power of review. It is also equally well settled that the Court should act ex debito justitiae as may be necessary in the interest of justice or necessary to do so for the sake of justice by exercising the power of review. The Court, while exercising the power of review within the four corners of power of review, has to strike the balance between the principle of finality of judgment and requirement of the superior Court to act ex debito justitiae by exercising the power of review. 6. As early as 1941, the federal Court had discussed the principles governing the power of review in Raja Prithi Chand v. Sukhrai, AIR 1941 FC 1 and held that the Federal Court will not sit as a Court of appeal from its own decisions, not will it entertain applications to review for rehearing and also that an order once made is final. Nevertheless, in exceptional circumstances, an application for review can be entertained. The indulgence by way of review is granted mainly owning to the natural desire to prevent irremediable injustice being done by a Court of last resort as whereby some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard. From the ratio laid down in Raja Prithi Chand's case (supra) it is clear that review petition shall be entertained to prevent irremediable injustice being done by a Court as where by some accident, without any blame. The Apex Court in M/s. Northern India Caterers (India) v. Lt. Governor of Delhi, AIR 1980 SC 674 held that a party is not entitled to seek a review of a judgment delivered by the Supreme Court merely for the purpose of a re-hearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final and departure from the principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. The Apex Court reiterated the same view in Col. Avtar Singh Sekhon v. Union of India & Ors., AIR 1980 SC 2041 that review is not a routine procedure but an application for review could be entertained when there is material error manifest on the face of the earlier order resulting in miscarriage of justice. 7. In S. Nagaraj & Ors. Avtar Singh Sekhon v. Union of India & Ors., AIR 1980 SC 2041 that review is not a routine procedure but an application for review could be entertained when there is material error manifest on the face of the earlier order resulting in miscarriage of justice. 7. In S. Nagaraj & Ors. v. State of Karnataka & Ors., 1993 Supp (4) SCC 595 the Apex Court had discussed the earlier decision of the Apex Court regarding the circumstance in which the Court exercises its power on an application for review to avoid abuse of process or miscarriage of justice. In Lily Thomas & Ors. v. Union of India & Ors., (2000) 6 SCC 224 , the Apex Court had discussed the earlier decisions of the Apex Court in S. Nagaraj's case (supra), Raja Prithi Chand's case (supra), Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844 & A.R. Antulay v. K.S. Nayak, (1988) 2 SCC and held that: "The power of review is not an inherent power. It must be conferred by law. A review is also not an appeal in disguise. It cannot be denied that the justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetuation shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error". The Apex Court in Surjit Singh & Ors. v. Union of India & Ors. (1997) 10 SCC 592 held that when a patent error is brought out to the notice of the Tribunal, the Tribunal is duty bound to correct with grace its mistake of law by way of review of its order or/directions. 8. The Apex Court in Inderchand Jain (Dead) through L.Rs. Vs. Motilal (dead) through L.Rs., (2009) 14 SCC 663 (para 7 of the SCC) held that: "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil Court and consequently by the appellate Courts. 8. The Apex Court in Inderchand Jain (Dead) through L.Rs. Vs. Motilal (dead) through L.Rs., (2009) 14 SCC 663 (para 7 of the SCC) held that: "7. Section 114 of the Code of Civil Procedure (for short "the Code") provides for a substantive power of review by a civil Court and consequently by the appellate Courts. The words "subject as aforesaid" occurring in Section 114 of the Code mean subject to such conditions and limitations as may be prescribed as appearing in Section 113 thereof and for the said purpose, the procedural conditions contained in Order 47 of the Code must be taken into consideration. Section 114 of the Code although does not prescribe any limitation on the power of the Court but such limitations have been provided for in Order 47 of the Code; Rule 1 whereof reads as under: "17. The power of a civil Court to review its judgment/decision is traceable in Section 114CPC. The grounds on which review can be sought are enumerated in Order 47 Rule 1 CPC, which reads as under: "1. Application for review of judgment-- (1) Any person considering himself aggrieved-- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the 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 face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order." 9. The Apex Court in Lily Thomas's case (supra), had laid down the law of review in the following terms: "52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. The Apex Court in Lily Thomas's case (supra), had laid down the law of review in the following terms: "52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi V. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 , held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error." (Emphasis supplied) 10. This Court in Ranjit Biswas v. Pabitra Narayan Choudhury: 1996 (2) GLT92 is of the view that the expression "any other sufficient reasons" mentioned in Order XLVn Rule 1 CPC also extends to the grounds or/reasons on which the Court can entertain review petition for doing substantial justice. This Court again in Lalma-Isawn v. State of Manipur: 2000 (3) Gut. 437 had interpreted that the expression "any other sufficient reasons" mentioned in Order XLVII Rule 1, CPC include the reasons on which application for review could be entertained for doing substantial justice. 11. The Apex Court in Board of Control for Cricket, India & Anr. v. Netaji Cricket Club & Ors., AIR 2005 SC 592 held that application for review of the order on account of misconception of law and fact while passing the order is maintainable. In other words, judgment and order could be reviewed for misconception of law and fact by the Court while passing the order sought to be reviewed. Para 88, 89 and 90 of the AIR in Board of Control for Cricket, India's case (supra) read as follows: "88. In other words, judgment and order could be reviewed for misconception of law and fact by the Court while passing the order sought to be reviewed. Para 88, 89 and 90 of the AIR in Board of Control for Cricket, India's case (supra) read as follows: "88. We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law, Section 114 of the Code empowers a Court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the Court except those which are expressly provided in S. 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. 89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. 90. Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in O. 47. R. 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit." (emphasis supplied) 12. Generally speaking a 'fee' is defined to be a charge for a special service rendered to individuals by some governmental agency. The Apex Court (CB) in Kewal Krishan Puri & Anr. v. State of Punjab & Ors., AIR 1980 SC 1008 held that: "Generally speaking a fee is defined to be a charge for a special service rendered to individuals by some Governmental agency. A question arises - "special service" rendered to whom, which kind of individuals? The Apex Court (CB) in Kewal Krishan Puri & Anr. v. State of Punjab & Ors., AIR 1980 SC 1008 held that: "Generally speaking a fee is defined to be a charge for a special service rendered to individuals by some Governmental agency. A question arises - "special service" rendered to whom, which kind of individuals? The argument that service rendered must be correlated to those on whom the ultimate burden of the fee falls is neither logical nor sound. The impost of fee and the liability to pay it is on a particular individual or a class of individuals. They are under the obligation to submit accounts, returns or the like to the authorities concerned in cases where quantification of the amount of fees depends upon the same. They have to undergo the botherations and harassments, sometimes justifiably and sometimes even unjustifiably, in the process of discharging their liability to pay the fee. The authorities levying the fee deal with them and realize the fee from them. By operation of the economic laws in certain kinds of impositions of fee the burden may be passed on to different other persons one after the other. The authorities, more often than not, almost invariably, will not be able to know the individual or individuals on whom partly or wholly the ultimate burden of the fee will fall. They are not concerned to investigate and find out the position of the ultimate burden. It is axiomatic that the special service rendered must be to the prayer of the fee. The element of quid pro quo must be established between the prayer of the fee and the authority charging it. It may not be the exact equivalent of the fee by a mathematical precision, yet by and large, or predominantly, the authority collecting the fee must show that the service which they are rendering in lieu of fee is for some special benefit of the prayer of the fee. It may be so intimately connected or interwoven with the service rendered to others that it may not be possible to do a complete dichotomy and analysis as to what amount of special services was rendered to the prayer of the fee and what proportion went to others. It may be so intimately connected or interwoven with the service rendered to others that it may not be possible to do a complete dichotomy and analysis as to what amount of special services was rendered to the prayer of the fee and what proportion went to others. But generally and broadly speaking it must be shown with some amount of certainty, reasonableness or preponderance of probability that quite a substantial portion of the amount of fee realised is spent for the special benefit of its prayers (1950) A.C 87, Ref, to." 13. Justice S. Murtaza Fazal Ali (as then he was) in I.T.C. Ltd. & Ors., v. State of Karnataka & Ors.: 1985 (Supp) Supreme Court Cases 476 observed that: "The theory of nexus between the fee levied and the services rendered cannot be reduced to a ritualistic formula so as to close it in a strait-jacket nor can it be weighed in golden scales. All that is necessary is that there should be a direct nexus between realisation of fees and the services rendered. What would be the nature of the services, when and how it should be rendered and in what measure is entirely a matter for the market committees to decide or determine. So long as the money is realised, even though on the higher side, but is spent on the extension and expansion of the markets, market yards, market facilities, godowns, rest houses, buildings, even roads leading up to the markets, that would be fully within the concept of a fee and could not be a labelled as a tax on the purchasers at the auction of goods or articles in the market. It is however, difficult to lay down any hard and fast rule for determining the extent and contours of the services that should be rendered by the Government while imposing a fee. All that the law requires is that the amount of fee realised from the purchasers should be spent for the purposes of the market. It is however, difficult to lay down any hard and fast rule for determining the extent and contours of the services that should be rendered by the Government while imposing a fee. All that the law requires is that the amount of fee realised from the purchasers should be spent for the purposes of the market. For instance, if the fee is on the higher side but the excess amount is reserved for the present or future expansion of the market, the provision for making further facilities, the building up of roads up to the point of markets so as to benefit the purchasers and make their task easier to collect all their goods at one place or to build rest houses for their stay while transacting their business in which case any reasonable fee levied by the market committees would be justifiable. It may be that sometimes there may be a huge rush of arrivals of goods and the purchasers/sellers may have to wait for a day or two or even a week to buy or sell the goods - in such cases it will be sufficient if the fee realised, even if it is in excess, is reserved exclusively for the purpose of expansion and development of the market buildings or roads leading up to the markets." 14. The Apex Court in City Corporation of Calicut v. Thachambalath Sadasivan & Ors.: AIR 1985 SC 756 (para 7 and 8 of the AIR) held that: "7. It is thus well-settled by numerous recent decisions of this Court that the traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation maybe enough-It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the elements of service required for collecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee. 8. If one who is liable to pay receives general benefit from the authority levying the fee the elements of service required for collecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee. 8. Applying the ratio of these decisions it is incontrovertible that the appellant-Corporation is rendering numerous services to the persons within its areas of operation and that therefore the levy of the licence fee as fee is fully justified. Soaking coconut husk emit foul odour and contaminates environment. The Corporation by rendering scavenging services, carrying on operations for cleanliness of city, to make habitation tolerable is rendering general service of which amongst others appellants are beneficiaries. Levy as a fee is thus justified." (Emphasis supplied) 15. From the above discussion, it is fairly well settled that traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. All that is necessary is that there should be nexus between realisation of the fee and service rendered and what will be the nature of service, when and how it should be rendered and in what measures, are to be decided from case to case. In the case in hand it is not in dispute that the State Government after collecting service charge/transit fee on the Betel Nut collected from inside and outside the State of Manipur, made facilities for transportation without any disturbance through the State of Manipur. The State Government had made all necessary requirements at all the check gates put up by the State Government at any place in the State of Manipur, for free transportation of the Betel Nut by the respondent-writ petitioners. The respondent-writ petitioners, after enjoying such service and facilities made by the State Government in transportation of Betel Nut, cannot ask for refund of the fee; and such fee shall not be refunded. This finding of ours has the support of the decisions of the Apex Court in (1) Kewal Krishan Puri & Anr. v. State of Punjab & Ors., AIR 1980 SC 1008 , (2) Hingir-Rampur Coal Co Ltd. & Ors. This finding of ours has the support of the decisions of the Apex Court in (1) Kewal Krishan Puri & Anr. v. State of Punjab & Ors., AIR 1980 SC 1008 , (2) Hingir-Rampur Coal Co Ltd. & Ors. v. State of Orissa & Ors., AIR 1961 SC 459 and (3) Dhanyalakshmi Rice Mills etc. v. The Commissioner of Civil Supplies & Anr. (four judges), AIR 1976 SC 2243 . 16. After enjoying sudh services of the State Government by the respondents-writ petitioners, Review Petitioners (State Government) cannot be asked to refund the fees. This Court while passing the order dated 06.02.2007 directing the review petitioners to refund the fees by relying on the decisions of the Apex Court in the cases relating with the tax, had the misconception of law regarding tax and fees. 17. For the reasons and discussions, we are of considered view that this Court, with grace, is duty bound to correct its mistake in the judgment and order dated 06.02.2007 in WA No. 94 of 2000 directing the review petitioners to refund the transit pass fee in respect of the transaction involved in the writ petition, i.e. transportation of Betel Nut by the respondent-writ petitioners through the State of Manipur. Accordingly, for doing substantial justice, the judgment and order of this Court dated 06.02.2007 is reviewed and recalled. The instant review petition is allowed. In the result, Writ Appeal No. 94 of 2000 is dismissed. No order as to costs.