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2018 DIGILAW 926 (CAL)

Tarun Bhattacharyya v. State of West Bengal

2018-12-12

SHEKHAR B.SARAF

body2018
JUDGMENT : 1. This is an application seeking recalling of an order passed by this Court on May 10, 2018 wherein the following order was passed: “In view of the above, the order dated April 19, 2018 is quashed and set aside with directions on the respondent authorities to allow the writ petitioner to file a detailed reply to the show cause notice dated March 22, 2018 within a period of five weeks from date. The respondent authorities shall thereafter grant an opportunity of hearing to the writ petitioner and pass a reasonable order citing this specific violation of the writ petitioner and relying on any rules and regulations that they wish to do within a period of four weeks after submission of the detailed reply.” 2. This matter is taken up with consent of both the parties even though the matter is not appearing on the day’s list. 3. Mr. Bari, learned Counsel appearing for the applicants submits that the respondent school is a completely private body and, accordingly, no writ of mandamus could have been issued by this Court as the relationship between the school and the writ petitioner was that of a contractual one. He submits that unfortunately, the point of maintainability was not taken up when the matter was heard and disposed of at the “motion” stage. He further submits that affidavits have not been exchanged. The issue of maintainability was not raised by the school authorities at the relevant time. He, accordingly, prays that since the point of maintainability could not be urged before this Court when the matter had been taken up, the order dated May 10, 2018 be recalled and the matter may be heard afresh. 4. Mr. Chatterjee, learned Counsel appearing for the writ petitioner, submits that the application for recalling has been filed on October 10, 2018, five months after passing of the order. He further submits that the application is without any basis in law as the same is hit by the doctrine of election. He submits that having implemented the order passed on May 10, 2018, though erroneously, the school authorities could not make such a prayer at this stage. He further submits that the school authorities acted on the order passed on May 10, 2018 by granting opportunity of hearing to the petitioner after accepting his detailed reply (as allowed in the earlier order). He further submits that the school authorities acted on the order passed on May 10, 2018 by granting opportunity of hearing to the petitioner after accepting his detailed reply (as allowed in the earlier order). Furthermore, the order of suspension was passed by the school authorities in terms of the order dated May 10, 2018. Ergo, having complied with the said order, they were barred from filing an application for recalling of the said order. 5. I have heard the learned Counsel appearing for the parties. 6. The law relating to recalling of an order is no longer res integra and has been settled by a catena of judgments. In Dan Singh Bist –v- Additional Collector, Bijnor and Others reported in AIR 1960 ALL 152 , the Allahabad High Court examined the scope of Section 151 of the Code of Civil Procedure in relation to the inherent power of the Court to correct orders and judgments passed by it on its own motion or on the application of any of the parties. The relevant paragraphs of the judgment are delineated below: “30. The state of the law on S. 151, C. P. C. may therefore be summarized thus. The section gives statutory recognition to the inherent power of the Court to make such orders as may be necessary for the ends of justice, and in the absence of any specific law to the contrary the Court is entitled to exercise this power. Indeed, to recall and cancel an invalid order, or an order passed inadvertently or by oversight, is not simply permitted but is the duty of the Court, which should always be vigilant not to allow any act of itself or any mistake of counsel do wrong to the suitor. How exactly the error has occurred is irrelevant, nor for the revocation of an erroneous order any cause other than the irregularity of the order itself need be considered. A mere mistake of law is normally not a sufficient ground for correcting a wrong order, but if the mistake is an obvious one due to failure to notice a particular piece of legislation the Court has the power to make the necessary correction and should not be hesitant in exercising that power. A mere mistake of law is normally not a sufficient ground for correcting a wrong order, but if the mistake is an obvious one due to failure to notice a particular piece of legislation the Court has the power to make the necessary correction and should not be hesitant in exercising that power. As to the aggrieved party, it has a right to choose between approaching the Court itself under S. 151 and going to the Court of Appeal (assuming of course that an appeal is maintainable). 31. From the discussion attempted in the foregoing my answer to the question posed in the opening paragraph of this judgment is that the High Court does possess the power to recall and correct an invalid or manifestly erroneous order passed by it in the exercise of its jurisdiction under Art. 226 in respect of the enforcement or vindication of civil rights, and that so far as our High Court is concerned this power is derived not from S. 114 and O. XLVII but from S. 151 of the Code.” 7. In A.R. Antulay –v- R.S. Nayak reported in AIR 1988 SC 1531 the Constitutional Bench of the Apex Court reiterated the powers of the High Court and the Supreme Court to recall judgments in certain circumstances. (see paragraph 130) 8. The Supreme Court in Budhia Swain and Others –v- Gopinath Deb and Others reported in (1999) 4 SCC 396 , relying on A.R. Antulay (supra) further clarified the legal position with regard to recalling of an order. The relevant paragraphs of the Supreme Court are delineated below: “7. In Corpus Juris Secundum (Vol. XIX) under the chapter “Judgment – Opening and Vacating” (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorizing such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppels. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppels results. 8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppels or acquiescence. 9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation.” 9. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation.” 9. The aforementioned judgment clearly states that the power to recall a judgment is not to be exercised when the grounds for reopening of the proceedings or vacating the judgment was available to be pleaded and argued at the first instance when the original order was passed. Further the right to seek vacation/ recalling of an order may be lost by waiver, estoppel or acquiescence. 10. In the present case it is perceptibly clear that the authorities have proceeded to implement the order they are seeking vacation by way of this recalling application. The very fact that they implemented the order albeit in an incomplete manner, goes to show that they had acquiesced to the same and therefore their right to seek vacating of such an order no longer exists. 11. It is further seen that the school authorities never once whispered the point of maintainability of the writ petition at the time of the passing of the impugned order. The ratio that emerges from the Supreme Court judgment discussed above is clear that points of law that should have been raised when the earlier writ petition was disposed of cannot be raised now for the purpose of recalling the order. It is to be noted that the scope of a recalling application is very limited and does not allow for fresh arguments on legal points. 12. Finally it is to be noted that the order dated May 10, 2018 was an innocuous order wherein the school authorities were directed to grant an opportunity of hearing to the writ petitioner and thereafter pass a reasoned order citing the specific violations of the writ petitioner. It is to be noted that the impugned order dated April 19, 2018 in the writ petition had been passed in complete violation of the principles of natural justice, and accordingly, this Court had set aside the same and directed fresh hearing so that justice could be subserved. By no stretch of imagination, can it be said that the impugned order dated May 10, 2018 prejudiced the rights of the school authorities or caused any grave injury to the school authorities. 13. By no stretch of imagination, can it be said that the impugned order dated May 10, 2018 prejudiced the rights of the school authorities or caused any grave injury to the school authorities. 13. Since none of the grounds raised in the recalling application are satisfactory grounds requiring me to recall the earlier order passed, the recalling application being CAN 9014 of 2018 is dismissed, without however, any order as to costs. 14. All parties are to act on the website copy of this order.