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Jharkhand High Court · body

2019 DIGILAW 675 (JHR)

Mukesh Kumar Sahu v. State of Jharkhand, through its Chief Secretary

2019-03-08

RAJESH SHANKAR

body2019
ORDER : The present batch of review petitions have been filed for modification/rectification of the order dated 11.05.2018 passed by this court in W.P.(C) No. 2017 of 2018 and other analogous cases whereby the writ petitions were disposed of with a direction to the petitioners to shift their places of business to such places where there is accessibility of fire extinguisher vehicle within a period of two months from the date of the order and thereafter to make applications before the competent authority for grant of ‘No Objection Certificate’. 2. Earlier the writ petitions being W.P.(C) Nos. 1069/2018, 2017/2018, 2071/2018 & 2075/2018 ( 2018 (3) JLJR 359 ) were filed by the petitioners challenging the decision of the respondent authorities whereby the petitioners were directed to shift their present places of business to other place as they were carrying on the business of sale of fireworks at the said place in violation of Rule 83 of the Explosive Rules, 2008. 3. The aforesaid writ petitions were dismissed by this Court vide common judgment dated 11.05.2018. Para 11, 12 & 13 of the said judgment are quoted hereinbelow:- “11. Moreover, in the present case the petitioners have been given sufficient opportunity to explain their cases and only thereafter the impugned direction has been issued. The legislature in its wisdom enacted Explosive Act, 1894 in order to regulate the manufacture, possession, use, sale, transport and importation of explosives and in order to carry out the object and purpose of the Act, 1894, Rules have been framed from time to time in exercise of the powers conferred under the Act. Presently, the Rules, 2008 is in vogue. Rule 102 of Rules, 2008 provides that any person who desires to obtain a licence for manufacture, possession for sale or use of explosives shall obtain no objection certificate from the District Magistrate or Director General of Mines Safety, as the case may be, before commencing construction of the premises. Further, Rule 103 provides the procedure to be observed for issuance of no objection certificate and for grant of licence. After getting application, the District Magistrate shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other verifications or enquiries as may be specifically required by the licensing authority to be carried out, if any, and on any other matter as deemed necessary. After getting application, the District Magistrate shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other verifications or enquiries as may be specifically required by the licensing authority to be carried out, if any, and on any other matter as deemed necessary. For verification of the interest of public, the District Magistrate shall forthwith cause a notice to be published calling upon the public to submit objections and only after hearing the objections, shall take any decision. Further Rule 115 provides that any ‘no objection certificate’ granted under Rule 103 may be cancelled by the authority issuing the same or the authority superior to it, if the authority is satisfied that the cancellation of no objection certificate is absolutely necessary for public peace and safety. It is further provided that before cancellation of the no objection certificate the licensee shall be given reasonable opportunity of being heard. Thus, on consideration of the aforesaid provisions of Rules 2008, it would emerge that the licensee is not entitled to continue with the no objection certificate if the public peace and safety is put in question. 12. In order to ensure public peace and safety, apart from other conditions, clause (e) of Rule 83(4) specifically provides that the place of business of any fireworks must be accessible for fire-fighting. Thus, in any violation thereof, the authority is required to take appropriate action against the licensee and the same cannot be challenged merely on the ground that the licence and no objection certificate have been granted to the licensee after following due procedure. Ranchi is fast developing city resulting in immense growth in population and business activities throughout the city particularly ‘Upper Bazar’ area which is also known as business hub of Ranchi. Thus, the area which may not be so densely populated earlier has now become thickly populated which may have drawn the attention of the administrative authorities to take suitable steps so as to ensure public safety and peace. Though, the said decision may cause hardship to the businessmen (the petitioners herein), yet for the safety of the public at large, hard measures are required to be taken for which the authorities are otherwise empowered by the Rule itself. Though, the said decision may cause hardship to the businessmen (the petitioners herein), yet for the safety of the public at large, hard measures are required to be taken for which the authorities are otherwise empowered by the Rule itself. However, the words “out of densely populated area” mentioned in the letter dated 10.01.2018 are too vague to be followed by the petitioners. 13. Under the aforesaid circumstance, the present batch of writ petitions are disposed of with a direction to the petitioners to shift their place of business to such places where there is accessibility of fire extinguisher vehicle within two months from the date of this order and thereafter they shall make applications before the competent authority for grant of no objection certificates. The said applications of the petitioners shall be taken up by the competent authority on priority basis within the sphere of the Explosive Act and Rules, 2008. The respondents shall not take any coercive action against the petitioners within the period of two months as indicated herein above.” 4. Mr. Gulam Mustafa, the learned counsel for the review petitioners, has assiduously argued that the review petitioners have not violated any provision of the Explosives Rules, 2008 so as to compel them to shift their place of business. Many legal issues involved in the present matter could not be duly appreciated in the judgment of this Court under review and thus the same may be recalled and the review petitioners may be allowed to continue their businesses at their respective shops. 5. Mr. Srijit Choudhary, the learned counsel for the respondent-State of Jharkhand, submits that there is no such error apparent on the face of the record inviting review of the judgment dated 11.05.2018 passed by this Court in the aforesaid writ petitions and as such the present review petitions filed by the petitioners are liable to be dismissed. All possible arguments advanced on behalf of the review petitioners have been duly considered in the judgment dated 11.05.2018 passed by this Court in the aforesaid writ petitions and as such the contention of the learned counsel for the review petitioners that many points of law have not been considered in the judgement dated 11.05.2018, is not correct. 6. All possible arguments advanced on behalf of the review petitioners have been duly considered in the judgment dated 11.05.2018 passed by this Court in the aforesaid writ petitions and as such the contention of the learned counsel for the review petitioners that many points of law have not been considered in the judgement dated 11.05.2018, is not correct. 6. In order to appreciate the contentions advanced by the learned counsel for the parties, it would be appropriate to go through the judicial pronouncements of the Hon’ble Supreme Court dealing with the scope of review petition. 7. In the case of Aribam Tuleshwar Sharma Vs. Aibam Pishak Sharma & Ors., reported in (1979) 4 SCC 389 , the Hon’ble Supreme Court has held as under: “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. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.” (emphasis supplied) 8. In the case of Parsion Devi & Ors. Vs. Sumitri Devi & Ors., reported in (1997) 8 SCC 715 , the Hon’ble Supreme Court has held as under: “9. 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 the case of Parsion Devi & Ors. Vs. Sumitri Devi & Ors., reported in (1997) 8 SCC 715 , the Hon’ble Supreme Court has held as under: “9. 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”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”. 9. In the case of Haryana State Industrial Development Corporation Ltd. Vs. Mawasi & Ors., reported in (2012) 7 SCC 200 , the Hon’ble Supreme Court has held as under: “27. The aforesaid provisions have been interpreted in several cases. We shall notice some of them. In S. Nagaraj v. State of Karnataka, this Court referred to the judgments in Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and Rajunder Narain Rae v. Bijai Govind Sing and observed: “19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Sing that an order made by the Court was final and could not be altered: (Rajunder Narain Rae case, MIA p. 216) ‘… nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in. … The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.’ Basis for exercise of the power was stated in the same decision as under: ‘It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court of last resort, where by 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.’ Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.” 28. In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, the three-Judge Bench referred to the provisions of the Travancore Code of Civil Procedure, which was similar to Order 47 Rule 1 CPC and observed: “32. … It is needless to emphasise that the scope of an application for review is much 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. It may allow a review 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. 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’. (See Chhajju Ram v. Neki.) This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath and was adopted by our Federal Court in Hari Sankar Pal v. Anath Nath Mitter, FC at pp. 110-11. The learned counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case comes within the ground of ‘mistake or error apparent on the face of the record’ or some ground analogous thereto.” 29. In Thungabhadra Industries Ltd. v. Govt. of A.P., another three-Judge Bench reiterated that the power of review is not analogous to the appellate power and observed: “11. … A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions, entertained about it, a clear case of error apparent on the face of the record would be made out.” 30. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, this Court answered in affirmative the question whether the High Court can review an order passed under Article 226 of the Constitution and proceeded to observe: “3. … 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.” 32. In Parsion Devi v. Sumitri Devi, the Court observed: “9. … 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 … A review petition, it must be remembered has a limited purpose and cannot be allowed to be ‘an appeal in disguise’.” 33. In Lily Thomas v. Union of India, R.P. Sethi, J., who concurred with S. Saghir Ahmad, J., summarised the scope of the power of review in the following words: “56. … Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised.” 34. In Haridas Das v. Usha Rani Banik, the Court observed: “13. … The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing ‘on account of some mistake or error apparent on the face of the records or for any other sufficient reason’. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict.” 35. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict.” 35. In State of W.B. v. Kamal Sengupta, the Court considered the question whether a Tribunal established under the Administrative Tribunals Act, 1985 can review its decision, referred to Section 22(3) of that Act, some of the judicial precedents and observed: “21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier. 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. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.” 10. It has consistently been held in the aforesaid judgments that a review petition cannot be allowed to be “an appeal in disguise”. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.” 10. It has consistently been held in the aforesaid judgments that a review petition cannot be allowed to be “an appeal in disguise”. The power of review may be exercised on the discovery of new and important matter or evidence which, even after the exercise of due diligence, was not within the knowledge of the person seeking review or could not be produced by him at the time when the original order was made. It may also be exercised where some mistake or error apparent on the face of the record is found; or on any such analogous ground. 11. The learned counsel for the review petitioners has raised some factual plea that the Upper Bazar is not a densely populated area and the shops in question are fully equipped with the fire extinguishers. The said fact was also raised in the aforesaid writ petitions and the same was duly considered by this Court in the judgment dated 11.05.2018. The learned counsel for the review petitioners has failed to show any error apparent on the face of the record so as to review the judgment dated 11.05.2018. All the issues raised by the learned counsel for the review petitioners were either raised at the time of hearing of the aforesaid writ petitions or could have been raised at that time. Nonetheless, all the relevant contentions raised in the writ petitions have been dealt with while deciding the aforesaid writ petitions. 12. The submission of learned counsel for the review petitioners that some of the legal issues have not been appreciated in their right perspective by this Court, cannot be a ground for review. A review petition cannot be treated as a substitute to appeal. The exercise of power to review is limited only to the extent of correcting the error apparent on the face of the record or on discovery of new and important fact which despite due diligence of the review petitioners, could not be brought on record while passing of the original order. Thus, every new fact is not a ground for review of a judgment unless the said fact is important and which could have changed the view taken in the judgment. 13. Thus, every new fact is not a ground for review of a judgment unless the said fact is important and which could have changed the view taken in the judgment. 13. The thrust of the argument of the learned counsel for the review petitioners is that letter no. 402 dated 18.01.2018 could not be obtained in spite of the best efforts of the review petitioners which could have been relevant for adjudication of the issues involved in this case. However, in my view, the letter dated 18.01.2018 could not have made any material difference in the fact situation of the present case. 14. The next limb of the argument of the learned counsel for the review petitioners is that the State Government should have made proper rehabilitation of the review petitioners at some appropriate place and in support of the same, he has cited several examples where the State Government has taken the decision to shift the places of business of a group of businessmen only after making proper alternative arrangement. I am of the considered opinion that the said decision is completely within the domain of the State Government and no direction can be passed in this regard. 15. In view of the discussions made hereinabove, I am not inclined to entertain the present review petitions and the same are accordingly dismissed. 16. Consequently, I.A. No. 5769/2018 (Civil Review No. 45/2018), I.A. No. 5771/2018 (Civil Review No. 46/2018), I.A. No. 5772/2018 (Civil Review No. 47/2018) and I.A. No. 5770/2018 (Civil Review No. 48/2018) also stand disposed of.