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2018 DIGILAW 1317 (ALL)

QAMAR AHMAD v. C. E. C. NIRVACHAN SADAN ASHOK ROAD, NEW DELHI

2018-05-24

DEVENDRA KUMAR UPADHYAYA, RAJESH SINGH CHAUHAN

body2018
JUDGMENT : Per Hon'ble D.K. Upadhyaya,J.) This petition/application seeks review of judgment and order dated 13.11.2017, whereby the Writ Petition No. 21298 (MB) of 2017 filed by the review-applicant was dismissed. Heard Sri Qamar Ahmad, the review-applicant, who addressed the Court in person. While analyzing the arguments made in support of this review-petition, as advanced by the review-applicant, we are reminded of a famous sentence penned by late Krishna Iyer, J. while delivering his opinion in a Constitution Bench judgement in the case of P.N. Eswara Iyer and others Vs. Registrar, Supreme Court of India, reported in (1980) 4 Supreme Court Cases 680 and the said sentence is: "Review must be restricted if the hard-pressed judicial process is not to be a wasting disease." The writ petition was filed with a prayer to restrain the opposite party from issuing Notification initiating the election process to fill the seat held by Sri Prabhu Manohar Gopal Parrikar in the Council of States (Rajya Sabha) from the State of Uttar Pradesh. The prayer in the said writ petition was made in the back-ground of the fact that the review-applicant had filed his nomination for election to the Rajya Sabha, however, his nomination was rejected on 11.11.2014 by the Returning Officer. The petitioner, feeling aggrieved by the rejection of his nomination, filed an Election Petition bearing No. 8 of 2014 before this Court and the said Election Petition was dismissed on 15.05.2015, whereafter petitioner filed a Review Petition seeking review of the judgment dated 15.05.2015. It was submitted in the writ petition that since the petition seeking review of judgment dated 15.05.2015 was pending disposal and in the meantime, one of the persons elected, namely, Sri Prabhu Manohar Gopal Parrikar had resigned causing vacancy in the seat occupied by him and accordingly the Notification for election against the said vacant seat was likely to be issued, which, according to the writ-petitioner, could not be issued on account of pendency of review petition wherein he had challenged the order dated 15.05.2015, whereby the Election Petition filed by him was dismissed. The Court after hearing the arguments of writ-petitioner found itself unable to agree with his submissions and accordingly dismissed the writ petition, vide judgment and order dated 13.11.2017. It is this judgment, which has been sought to be reviewed by the review-applicant by filing instant petition for review. The Court after hearing the arguments of writ-petitioner found itself unable to agree with his submissions and accordingly dismissed the writ petition, vide judgment and order dated 13.11.2017. It is this judgment, which has been sought to be reviewed by the review-applicant by filing instant petition for review. In support of review petition, it has been argued by the review-applicant that while delivering the judgment under review, the Court did not go deep to deduce the ratio of the judgments cited by the review-applicant while he argued the writ petition. He has stated that it is settled law that the judgments cited at bar are to be read in full for arriving at the correct ratio. It has further been argued by the review-applicant that a large portion of the judgment under review dealt with Election Petition and not the writ petition and further that the judgment is totally against the pleadings on record. He has also advanced submission that the judgment under review is per incurium and further that it is a nullity because it goes beyond the pleadings. He further stated that the question involved in the writ petition was clearly different and the Court has decided the writ petition as if it was an Election Petition and hence, the judgment under review has been rendered by the Court wherefor the Court lacked inherent jurisdiction. Sri Qamar Ahmad has further argued that the judgment under review has, in fact, wiped off Article 329 of the Constitution of India which could be done only by the Parliament by introducing or passing Amending Act. While canvassing his arguments, the review-applicant has also stated that the judgment under review is a nullity and void being without jurisdiction as it goes against the Rules of Law which is part and parcel of Article 14 of the Constitution of India. Lengthy arguments have been advanced by the review-applicant in support of his review-petition and, in fact, an attempt has been made to persuade us to hold that the judgment under review is erroneous on merits Having considered the arguments advanced by the review-applicant, we are unable to agree with the submissions for the reason that the power of review is not to be confused with appellate powers which may enable an appellate court to correct errors committed by the subordinate court. The exercise of jurisdiction of review is not available to the Court on the ground that the decision under review is erroneous on merits for the reason that such exercise of jurisdiction is the preserve of court of appeal. The scope of review jurisdiction has been discussed in detail by Hon'ble Supreme Court in the case of State of West Bengal and others Vs. Kamal Sengupta and another, reported in (2008) 8 Supreme Court Cases 612. In the said case Hon'ble Supreme Court has referred to an earlier judgment of Hon'ble Supreme Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, reported in (1979) 4 SCC 389 . In para 30 of the said report in the case of State of West Bengal and others (Supra), the Hon'ble Supreme Court has extracted the observations of the Hon'ble Apex Court in the case of Aribam Tuleshwar Sharma(supra). Para-30 of the said judgement is quoted herein below: "30. In Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, this Court considered the scope of the High Courts' power to review an order passed under Article 226 of the Constitution, referred to an earlier decision in Shivdeo Singh vs. State of Punjab [ AIR 1963 SC 1909 ] and observed : "3....It is true as observed by this Court in Shivdeo Singh v. State of Punjab, 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. 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. 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 or errors committed by the Subordinate Court." We may observe that the discussion in para-30 of the judgment in the case of State of West Bangal and others (supra) relates to the power of High Court to review an order passed under Article 226 of the Constitution of India. Hon'ble Supreme Court has clearly laid down that the jurisdiction of review may be exercised only on the discovery of new and important fact or evidence which was not within the knowledge of the person seeking the review or this jurisdiction can be exercised where some mistake or error apparent on the face of the record is discovered. Hon'ble Supreme Court has explained the term "mistake or error apparent" in para-22 of the judgment in the case of State of West Bengal and others (supra) and has held that "mistake or error apparent" is an error which is evident per se from the record of the case and does not require detailed examination or scrutiny either of the facts or the legal position. Hon'ble Supreme Court has further observed that if an error is not self-evident, it cannot be treated as an error apparent on the face of the record for the purpose of exercising review jurisdiction as embodied under Order 47 Rule 1, CPC. Para-22 of the said report is extracted herein below: "22. The term `mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision. Quoting extracts from Five Judges Bench of the Federal Court in the case of Hari Sankar Pal Vs. Anath Nath Mitter, reported in 1949 FCR 36, Hon'ble Supreme Court has observed that merely because the decision is erroneous is not a ground for review. Para-25 of the judgment in the case of State of West Bengal and others (supra) is extracted herein below: "25. In Hari Sankar Pal v. Anath Nath Mitter, a Five Judges Bench of the Federal Court while considering the question whether the Calcutta High Court was justified in not granting relief to non-appealing party, whose position was similar to that of the successful appellant, held : "That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. When, however, the court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of the record sufficient to bring the case within the purview of Order XLVII, Rule 1, Civil Procedure Code. " It is well settled principles of law that a review is by no means an appeal in disguise whereby an erroneous decision can be corrected. Observations made by Hon'ble Supreme Court in Para-28 of the judgment in the case of State of West Bengal and others (supra) are also relevant for the purpose of appreciating the arguments raised by the review-applicant, which is extracted herein below: "28. In Parsion Devi and Others vs. Sumitri Devi and Others, it was held as under:- "Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. In Parsion Devi and Others vs. Sumitri Devi and Others, it was held as under:- "Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". Thus, in exercise of the review jurisdiction, it is not permissible for an erroneous decision to be reheard and corrected. There exists a clear distinction between an erroneous decision and an error apparent on the face of the record. An erroneous decision can be corrected by a higher forum and in review jurisdiction only an error apparent on the face of the record can be corrected. The review jurisdiction, thus, has a limited purpose and it cannot be equated with an appeal. In the case of P.N. Eswara Iyer and others (supra), the vires of amendments made in the Supreme Court Rules in the matter of review petition, which provided that review petition shall be decided by circulation, was under consideration. Examining the importance of substantive power of review and procedure for its exercise in any judicial system, the Constitution Bench of Hon'ble Supreme Court in the case of P.N. Eswara Iyer and others (supra) has upheld the validity of the amendment which provided for decision on review petition by circulation without aid of oral submission. Expressing his opinion, late Krishna Iyer, J. for himself and Fazal Ali and Desai, JJ. has emphasized the limitations on exercise of review jurisdiction. Expressing his opinion, late Krishna Iyer, J. for himself and Fazal Ali and Desai, JJ. has emphasized the limitations on exercise of review jurisdiction. Para-17 which contains the opinion of Krishna Iyer, J. in the case of P.N. Eswara Iyer and others (supra) is relevant to be quoted, which is extracted herein below: "17. Review must be restricted if the hard-pressed judicial process is not to be a wasting disease. There are many ways of limiting its scope, content and modality. The confinement to certain special grounds, as in Order 47 Rule 1, C.P.C., is one way. The requirement of counsel's reasoned certificate of fitness (Certworthiness) for review is another. Judicial screening to discover the presence, prima facie, of good grounds to hear counsel in oral submission is a third. The first is good and continues. The second was tried and found ineffective and the third is being tried. Legislative policy is experimental as life itself is a trial- and-error adventure. What is shocking about this third alternative ? Judges scrutinise-the same judges who have once heard oral arguments and are familiar with the case-and, if they do not play truant, direct a hearing in court if they find good grounds. If there is ground, oral hearing follows. It is not as if all oral advocacy is altogether shut out. Only if preliminary judicial scrutiny is not able to discern any reason to review is oral exercise inhibited. The court process is not a circus or opera where the audience can clamour for encore. When the system is under the severe stress of escalating case-load, management of Justice Business justifies forbiddance of frivolous reviews by scrutiny in limine on the written brief. Justicing too is in need of engineering". Having regard to the submissions made by the review-applicant and also taking into account the law laid down by Hon'ble Supreme Court in the aforementioned judgments, we find that this petition for review does not constitute any ground so as to persuade us to exercise our jurisdiction in this case. The review petition, thus, being highly misconceived, is hereby dismissed.