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2012 DIGILAW 19 (JHR)

Sandep Kumar Roy v. State of Jharkhand

2012-01-04

P.P.BHATT, PRAKASH TATIA

body2012
ORDER 1. Heard learned counsel for the parties. 2. The petitioner had preferred W.P.(C) 246 of 2011 and sought the relief of quashing of an order passed in C.W.J.C. No. 996 of 1998 dated 15th December 1998 which was passed by the Patna High Court. The learned Single Judge vide order dated 26.04.2011 dismissed the writ petition of the petitioner after observing that the petitioner's contention that petitioner was not a party in that writ petition being C.W.J.C. No. 996 of 1998, therefore, he cannot prefer appeal, is misconceived and aggrieved party can prefer Letters Patent Appeal. 3. Learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Shivdeo Singh & Others Vs. State of Punjab & Others reported in AIR 1963 Supreme Court 1909 and submitted that in that matter, a final order passed in the writ petition, deciding the writ petition, was set aside by the same Hon'ble Judge of the Punjab and Haryana High Court while exercising jurisdiction under Article 226 of the Constitution of India and, therefore, in view of said judgement, this writ petition under Article 226 of the Constitution of India is maintainable and the learned Single Judge of the same High court could have set aside the order of the Single Judge. 4. We have considered the submission of the learned Counsel for the appellant and perused the judgement of the Hon'ble Supreme Court delivered in the case of Shivdeo Singh & Others (Supra). In the case of Shivdeo Singh & Others, a writ petition was preferred by the appellants who were parties before the lower authority wherein final order was passed and writ petition was decided and thereafter an application under Article 226 of the Constitution of India was submitted in the same writ petition with a prayer for re-hearing of the whole matter. The same learned Single Judge was of the view that necessary parties were not impleaded and, therefore, matter requires re-hearing and set aside the earlier order. In that fact situation, the Hon'ble Supreme Court held that 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. In that fact situation, the Hon'ble Supreme Court held that 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. The Hon'ble Supreme Court then clearly held that previous order of Court is affected the interest of the persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. 5. In view of the above reason, an application submitted under Article 226 of the constitution of India in the same proceeding which was already decided by the learned Single Judge was entertained and in fact, the final order which was passed without hearing the necessary parties, was recalled and it was not a case of filing a separate writ petition to challenge the judgement/order passed in the writ jurisdiction by the Single Judge. If the contention of the learned counsel for the appellant will be accepted, then it will amount to holding that the Single Judge will have jurisdiction to hear the challenge to the order passed by the Single Judge in separate writ petition which is not the position of the law. 6. In view of the above reasons, we do not find any illegality in the impugned order passed by the learned Single Judge. Hence, the L.P.A. is dismissed. 7. At this juncture, learned counsel for the appellant prayed that liberty may be given to the writ petitioner to challenge the order passed in C.W.J.C. No. 996 of 1998 dated 15th December 1998. 8. If law permits, then the petitioner may avail any other remedy to challenge that order, in accordance with law.