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2010 DIGILAW 867 (GAU)

State of Tripura v. Subal Kumar Dey

2010-11-19

H.BARUAH

body2010
JUDGMENT H. Baruah, J. 1. Order dated 20.03.2010 passed by this Court in WP(C) No. 399 of 2009 is subjected to review by this instant review application in view of the minutes of the 7th Meeting of Circulation Committee held on 18th and 20th March, 2010 at the Directorate of I & CA, Gandhighat, Agartala and also in view of the letter dated 30.3.2010 of the Audit Bureau of Circulations (for short, 'ABC') where under it has been communicated that the newspaper referred under letter dated 23.3.2010 are not the members of the ABC and, therefore, any circulation certified by any other authority except ABC cannot be verified by them even though the said circulation certificate may have been issued by the Audit Firms empanelled with ABC and that ABC has not endorsed nor certified circulation figures of the above four publications as these publications are not members of the Bureau and are not required to follow the laid down procedures and guidelines for Bureau's audit. It is claimed that in view of the subsequent events which surfaced per minutes of the 7th Meeting of the Circulation Committee, the order dated 20.3.2010 is sought to be reviewed by the review applicants. 2. Respondent herein is the owner, printer, publisher and editor of the daily newspaper "Syandan Patrika" printed and published from Agartala in Bengali language, which is one of the most popular newspaper in the State of Tripura having large circulation. His newspaper being degraded from category A-1 to B despite fulfillment of every required information approached this Court by filing WP(C) No. 399 of 2009 for a direction to the Respondents therein, now, the review applicants, to categorize his newspaper "Syandan Patrika" to category A from Category B. The writ petition was contested by the review applicants and this Court after meticulous consideration of the facts involved, the annexures and submissions advanced by the learned Counsel of either party directed the review applicants to categories "Syandan Patrika" at least in category 'A' per 2009 guidelines and provide advertisement facilities to run and manage the newspaper smoothly. It would be appropriate to state at this stage that the learned Counsel representing the State Respondents while arguing the writ petition accepted that "Syandan Patrika" has fulfilled all eligibility criteria to categorize it in Category 'A' per 2009 guidelines. It would be appropriate to state at this stage that the learned Counsel representing the State Respondents while arguing the writ petition accepted that "Syandan Patrika" has fulfilled all eligibility criteria to categorize it in Category 'A' per 2009 guidelines. In view of the submissions advanced by the learned Counsel representing the State Respondents, the review applicants herein, this Court after taking into consideration all the matters in its entirety directed the review applicants to categorize "Syandan Patrika" in Category 'A' per 2009 guidelines and to provide advertisement facilities. 3. From the order dated 20.3.2010 it would appear to us that the counsel representing the review applicants did locate a case in favour of the writ Petitioner, the Respondent herein and thus, agreed to the case projected by the Respondents herein, in other words it would be appropriate to say that the order dated 20.3.2010 sought to be review was passed by this Court in consensus of the parties to the proceeding. In such a situation whether an order passed in the manner as indicated above can be a subject of review under Section 114 read with Order 47 Rule 1 and 2 of the Code of Civil Procedure. In my considered view the appropriate answer would be "No". The order sought to be reviewed was apparently passed on the basis of the facts involved therein and also the supporting materials annexed to the writ petition by the Respondent for categorization per 2009 guidelines. The order was passed on the basis of the materials that existed on 20.03.2010. 4. The subsequent events as claimed by the review applicants were admittedly not before the Court on the date when the order sought to be reviewed was passed. Now, the question to be decided whether the order dated 20.3.2010 passed in WP(C) No. 399 of 2009 basing on available materials on that day and in view of the submission advanced by the counsel of the either party can be subjected to review in view of the minutes of the 7th Meeting of the Circulation Committee held on 18th and 20th March, 2010 and also in view of the communication dated 30.3.2010 in response to letter 23.3.2010 (Annexure-A-2). 5. Before going into the merit of the review application it would be appropriate for us to refer to Section 114 and Order 47 Rule 1 and 2 of the Code of Civil Procedure. 114. 5. Before going into the merit of the review application it would be appropriate for us to refer to Section 114 and Order 47 Rule 1 and 2 of the Code of Civil Procedure. 114. Review.-- Subject as aforesaid, any person considering himself aggrieved-- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this Court; or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. "Order 47 Rule 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 or 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 to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the Appellant, or when, being Respondent, he can present to the appellate Court the case on which he applies for the review. Explanation.-- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 6. Explanation.-- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 6. Section 114 and Order 47 Rule 1 of the Code of Civil Procedure, therefore provide the following requirements for review of the judgment or order made: (i) order suffers from error apparent on the face of record and permitting the same would lead to failure of justice, (ii) discovery of new and important matter or evidence which despite exercise of due diligence was not within knowledge of applicant or could not be produced at the time when the order was made, (iii) order has been passed on account of some mistake, and; (iv) for any other sufficient reason. An application for review, therefore, lies when the requirement as indicated above are available. Now, the point to be decided in this review application whether the alleged subsequent events arose out of 7th Meeting of the Circulation Committee would fulfill the requirements under the Section 114 and Order 47 Rule 1 of the Code of Civil Procedure. 7. From the order dated 20.3.2010, which is, now sought to be reviewed by the review applicants was passed on the basis of the facts and materials placed before it and also in view of the acceptance of the materials placed by the Respondent herein by the learned Counsel representing the State Respondents, now the review applicants. Therefore, the order can be branded as consensus order and, therefore, it cannot be said that it "the order sought to be reviewed" suffers from error apparent on the face of the record which may lead to failure of justice. The counsel representing the review applicants in the writ petition accepted the case of the Respondents herein "writ Petitioner in WP(C) No. 399 of 2009" and contended that "Syandan Patrika" fulfilled all eligibility criteria per 2009 guidelines. Therefore, requirement No. 1 under the section and the order as indicated above for review has not been fulfilled and, therefore, it cannot be said that the review applicant cannot resort to requirement No. 1 for the purpose of review of the order dated 20.3.2010. 8. Therefore, requirement No. 1 under the section and the order as indicated above for review has not been fulfilled and, therefore, it cannot be said that the review applicant cannot resort to requirement No. 1 for the purpose of review of the order dated 20.3.2010. 8. Admittedly, the minutes of the 7th Meeting of Circulation Committee held on 18th and 20th March, 2010 were not before the Court when the order was passed. Order was passed apparently on the available materials existed on the very date. Now, the point to be taken care of whether this important subsequent events can fulfill the second requirement i.e. discovery of new and important matter and evidence which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced at the time when the order was made. In the requirement No. 2 the legislature had given much stress in the wording "discovery of new and important matters and evidence, which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced at the time when the order was made". These words, therefore, palpably go to show that the new and important matter and evidence must be existed at the time of passing of the decree or order but the same could not be produced despite exercise of due diligence because it was not within the knowledge of the applicant. 9. The meaning of "discovery", according to Black's Law Dictionary is "the act or process of finding or learning something that was previously unknown". The same meaning is also given in Oxford Advanced Learner s Dictionary. In other words discovery means anything that existed previously but unknown. Now, the minutes of the 7th Meeting of the Circulation Committee held on 18th and 20th March, 2010 whether can be said to be in existence previously but not known. The answer would be that the minutes of the meeting of the 7th Circulation Committee on the date of passing of the order (order dated 20.3.2010) sought to be reviewed were not in existence and, therefore, such minutes do not fall within the second requirement for review of the decree or order made. There can be no dispute on this point since such an event came up only on the date of passing of the order sought to be reviewed. There can be no dispute on this point since such an event came up only on the date of passing of the order sought to be reviewed. These minutes, therefore, cannot be called as new and important matter discovered. 10. The order sought to be reviewed by the review applicants also does not fall within the parameters of requirement No. 3. Now, the core issue whether the minutes of the 7th Meeting of the Circulation Committee fall under the requirement No. 4 for any other sufficient reason. The words "any other sufficient reasons" have not been defined in the Code of Civil Procedure. The Privy Council in Chhajju Ram v. Neki and Ors..; reported in AIR 1922 (PC) 112, the Federal Court in Sir Hari Sankar Pal and Anr. v. Anath Nath Miner and Ors..; reported in AIR 1949 F C 106 and the Apex Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius; reported in AIR 1954 SC 526 have held that the words "any other sufficient reason" must mean a reason sufficient on grounds at least analogous to those specified in the Rule. In other words it can be said unless any other sufficient reason is analogous to the other conditions review cannot be granted. The minutes of 7th Meeting of the Circulation Committee held on 18th and 20th March, 2010, therefore, cannot be said any other sufficient reason, since the same are not analogous to the requirements, particularly, requirement No. 2 for review. We have already indicated that new and important matter and evidence must be existed previously but the same could not be produced at the time when the order was made despite exercise of due diligence, the same being not within the knowledge of the applicant. Therefore, any other sufficient reasons must be analogous to the requirement as indicated above for the purpose of review. This Court, therefore, is of the view that requirement No. 4 also cannot come in the rescue of the review applicants for the purpose of review of the order dated 20.03.2010. 11. The Apex Court while dealing with in the case of Inderchand Jain (Dead) Through LRS. v. Motilal (Dead) Through LRS; reported in (2009) 14 SCC 663 . In paragraph-8 and 9 held as under: 8. 11. The Apex Court while dealing with in the case of Inderchand Jain (Dead) Through LRS. v. Motilal (Dead) Through LRS; reported in (2009) 14 SCC 663 . In paragraph-8 and 9 held as under: 8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai this Court held: 6. The limitation on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. 9. The power of review can also be exercised by the Court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason. In the case (supra), the Apex Court held that an application for review would lie when the orders suffers from error apparent on the face of the record and permitting the same to continue would lead to failure of justice and also in the face of discovery of new and important matter or evidence which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when order was made. We have already indicated herein before that the instant review application does not fall within the parameters of any of the requirements under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure. 12. The Apex Court while dealing with the case of Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors.; reported in (2005) 4 SCC 741 . In paragraph 88, 89 and 91 discussed the requirements while entertaining a review application. 12. The Apex Court while dealing with the case of Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors.; reported in (2005) 4 SCC 741 . In paragraph 88, 89 and 91 discussed the requirements while entertaining a review application. The paragraphs indicated above may be reproduced as under: 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 precedent 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 Section 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. 91. It is true that in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius this Court made observations as regards limitations in the application of review of its order stating: Before going into the merit of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is must more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely, (i) discover or new and important matter of evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean a reason sufficient on grounds, at least analogous to those specified in the rule. but the said rule is not universal. In the case (supra), the Apex Court held had the review application is possible mainly on three specified grounds namely, (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. 13. The Apex Court in the case of Lily Thomas and Ors. v. Union of India and Ors. reported in (2000) 6 SCC 224 . In paragraph 53 the Apex Court held as under: 53. This Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi considered the powers of this Court under Article 137 of the Supreme Court Rules and held: 8. It is well settled that a part is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan, SCR at P. 948. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan, SCR at P. 948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: Girdhari Lal Gupta v. D.H. Mehta, SCR at P. 760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. District Judge, Delhi, SCR at P. 27. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent misstate or like grave error has crept in earlier by judicial fallibility': sow Chandra Kante v. Sk. Habib. 14. The same view is also adopted by the Supreme Court while dealing with the case of Jagmohan Singh v. State of Punjab & On.; reported in (2008) 7 SCC 38 . In paragraph-17, it held as under: "17. This Court in Board of Control for Cricket in India v. Netaji Cricket Club held as under: 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. 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 would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47 Rule 1 of the Code are 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. It was furthermore observed: 93. It is also not correct to contend that the Court while exercise its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned Senior Counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29.9.2004, the subsequent event may be taken into consideration by the Court for the purpose of rectifying its own mistake. 15. In the cases (supra), the Apex Court primarily held that a review application would be maintainable if the requirement provided under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure are fulfilled. 16. Mr. S. Deb, learned Sr. counsel assisted by Mr. D.C. Nath, learned Counsel while supporting the review application contended that the minutes of the 7th Meeting of the Circulation Committee at the time of passing of the order dated 20.3.2010 in connection with WP(C) No. 399 of 2009, the same could not be produced since the same were not in existent. The Circulation Committee being the final authority in respect of gradation of the newspaper, decision taken by it would be binding to the proprietor, printer of the respective newspaper. The Circulation Committee being the final authority in respect of gradation of the newspaper, decision taken by it would be binding to the proprietor, printer of the respective newspaper. By minutes of the 7th Meeting of the Circulation Committee, it desire to introduce some new guidelines for categorization of newspaper published and circulated in the State of Tripura. Therefore, in view of introduction of the new guidelines, the order dated 20.3.2010 requires review and accordingly, the review applicants approached this Court by filing the review application. It was submitted by Mr. S. Deb, learned sr. counsel that the new guidelines sought to be introduced per minutes of the 7th Meeting of the Circulation Committee held on 18th and 20th March, 2010 falls within the purview of the requirement "any other sufficient reason" and, therefore, on this ground, the order dated 20.3.2010 is liable to be reviewed. 17. The requirement "any other sufficient reasons" is discussed herein before and while discussing this Court attaches to the ratio laid down in Chhajju Ram case, Sir Hari Sankar Pal case and Moran Mar Basselios Catholicos case, wherein the words "any other sufficient reasons" must mean a reason, sufficient ground at least analogous to those specified in the Rule. This Court while discussing the other three requirements of the Rule does not find that the minutes of the 7th Meeting of the Circulation Committee fall analogous to those specified in the Rule. Therefore, submission of Mr. S. Deb, learned Sr. counsel that the subsequent event cropped up per 7th Meeting of the Circulation Committee held on 18th and 20th March, 2010 cannot ask this Court to review the order dated 20.3.2010, since the same do not fall within the parameter of phrase Ejusdum Jeaneries which has more restricted meaning than the word analogous. The order dated 20.3.2010 sought to be reviewed by the applicants by the review application was passed on the basis of the available materials on the date and also on the submissions advanced by the counsel of both the parties. It would not be prejudiced to say that the review applicants in the writ petition while represented by Mr. S. Deb, learned Sr. counsel assisted by Mr. D.C. Nath on the basis of the materials accepted the case of the Petitioner, the Respondent herein. It would not be prejudiced to say that the review applicants in the writ petition while represented by Mr. S. Deb, learned Sr. counsel assisted by Mr. D.C. Nath on the basis of the materials accepted the case of the Petitioner, the Respondent herein. Therefore, the order sought to be reviewed dated 20.3.2010 appears to be consensus order which cannot be subjected to review under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure. 18. A strong objection was taken by Mr. A.K. Bhowmik, learned Sr. counsel assisted by Ms. A. Choudhury while arguing the review application. It was argued by him that the subsequent event on the basis of which review has been sought for was not a new and important matter existed at the time of the passing of the order dated 20.3.2010. Therefore, such event does not fall within the requirements. Discovery of new and important matter or evidence which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced at the time when the order was made can one of the requirements of review. Therefore, the subsequent event that cropped up is not a matter previously unknown and subsequently discovered. The minutes of the 7th Meeting of the Circulation Committee were not at all in existent on the date when the order was made. It was created by the Circulation Committee on the date of passing of the order itself. Therefore, such events cannot form basis for review of the order dated 20.03.2010. Mr. Bhowmik, learned Sr. counsel, therefore, urged this Court to dismiss the review application as devoid of merit. 19. Admittedly, the minutes of the 7th Meeting of the Circulation Committee were not in existent on the date when the order was passed it were not within the knowledge of the counsel representing the review applicants. The learned senior counsel representing the review applicants based his argument/submission on the facts available on that date and the materials and, therefore, the order dated 20.03.2010 cannot be subjected to review under Section 114 and Order 47 Rule 1 Code of Civil Procedure. 20. The learned senior counsel representing the review applicants based his argument/submission on the facts available on that date and the materials and, therefore, the order dated 20.03.2010 cannot be subjected to review under Section 114 and Order 47 Rule 1 Code of Civil Procedure. 20. Having taken care of all the matters in its entirety, law laid down by the Apex Court and the High Court and the necessary requirements for review, I am of the considered view that review application does not carry any merit and accordingly, the same is dismissed. No cost.