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2024 DIGILAW 37 (HP)

EIH Ltd. v. State of H. P.

2024-01-05

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioners herein (hereinafter referred to as review petitioners) have sought review of common order dated 17.11.2023 passed by this Court in Execution Petitions No. 5 of 2023 and 19 of 2023. The review petitioners have made prayers to the following effects: “a. Review para 35 of the order dated 17.11.2023, by clarifying that the possession of the built up property in question i.e. Wildflower Hall, Charabra Shimla and land is not liable to be resumed by the State of H.P. b. Delete para/directions contained in para 38(i) of the impugned order dated 17.11.2023 i.e. Annexure A-1.” 2. Since, the review has been sought in respect of paragraphs No.35 and 38(i) of order dated 17.11.2023, it will be relevant to reproduce the said paragraphs, which read as under:- “35. Since, the award grants right to the State to resume and take possession of the property immediately on non-compliance of the obligation by claimant No. 1 within the stipulated period and such option has been reserved in favour of claimant No. 2, it is for claimant No. 2 to decide on its option and in case it so desires, it is free to resume and take possession of the property immediately. In case the State Government does not choose to avail such option, the claimant No. 1 is to take steps with respect to cancellation of conveyance deed dated 06.02.1997 and updation of revenue records of rights and thereafter to immediately take steps for execution of lease deed. 38. In the first instance, the parties to show their respective compliances as under:- (i) Claimant No.2 to reveal its option whether State of H.P. intends to resume the property by taking its possession in terms of the Award.” 3. The grounds for review as mentioned in the review petition can be summarized as under:- (i) The respondents/State of H.P. had neither come forward nor had made any prayer for resumption of possession either by way of prayers made in Execution Petition No. 19 of 2023 or reply to objections submitted in execution petition No. 5 of 2023. (ii) The State of Himachal Pradesh had admitted that it was not entitled to seek reversion of property of “Wildflower Hall”. (ii) The State of Himachal Pradesh had admitted that it was not entitled to seek reversion of property of “Wildflower Hall”. (iii) The review petitioners had expressed their intent and willingness to abide by and comply with the award dated 23.07.2005 passed by the Arbitrator and in evidence thereof a communication dated 18.10.2022 addressed by Shri R. Shankar, President Corporate Affairs EIH Ltd to the Principal Secretary, Tourism and Civil Aviation Government of Himachal Pradesh along with reminders dated 03.12.2022, 22.12.2022 and 12.01.2023, which proved that the review petitioners had duly complied with the terms of the award within the stipulated period of three months and by such act of the review petitioners, the right available to the State of Himachal Pradesh to take possession of the hotel Wildflower Hall on automatic revival of resolution of the Board of Directors and Government decision dated 07.03.2002 stood foreclosed. 4. This Court is seized of Execution Petitions No. 5 of 2023 and 19 of 2023. Execution Petition No. 5 of 2023 has been filed by the review petitioners, whereas Execution Petition No. 19 of 2023 has been filed by the State of Himachal Pradesh. By way of these execution petitions, both the sides have sought the execution of award dated 23.07.2005 passed by the Arbitrator. Indisputably, the award of the Arbitrator has attained finality. Though, the review petitioners had challenged the award under Section 34 of the Arbitration and Conciliation Act and having remained unsuccessful by assailing the order in appeal under Section 37 of the Act ibid, the appeal of the review petitioners also stands dismissed by the Division Bench of this Court on 13.10.2022. 5. In Execution Petition No.5 of 2023, the State of Himachal Pradesh preferred objections and in Execution Petition No.19 of 2023, the review petitioners preferred objections. By way of common order dated 17.11.2023, sought to be reviewed by way of instant review petition, the objections filed in both the execution petitions were decided. The execution petitions were not finally disposed of. Vide order dated 17.11.2023, the parties were directed to comply with certain pre-requisites before making final adjudication on the execution petitions and paragraph No.38(i) of the order sought to be reviewed was in that context. 6. It cannot be forgotten that this Court while exercising jurisdiction as an executing Court has limited jurisdiction to execute the award as it is. Vide order dated 17.11.2023, the parties were directed to comply with certain pre-requisites before making final adjudication on the execution petitions and paragraph No.38(i) of the order sought to be reviewed was in that context. 6. It cannot be forgotten that this Court while exercising jurisdiction as an executing Court has limited jurisdiction to execute the award as it is. Since, the various objections had been raised by both the sides, those objections came to be decided in the first instance by way of order dated 17.11.2023. This Court while passing order dated 17.11.2023 had not decided any substantive rights of the parties. It was only for the purpose of execution of the award that the objections were decided in the first instance. 7. As evident from the grounds of review, the review petitioners have preempted the final adjudication to be made in execution petitions by this Court. In my considered view, the review petition as filed is not maintainable for more than one reason as detailed hereinafter. 8. It is more than settled that remedy of review cannot be used as a disguise for appeal. The review can only be allowed on one of the grounds contemplated under Section 114 read with Order 47, Rule 1 of the Code of Civil Procedure. The judgment or order is open to review if there is a mistake or an error apparent on the face of the record. It is also settled that 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. Reference can be made to the following exposition of law made by the Hon'ble Supreme Court in Arun Dev Upadhyaya vs. Integrated Sales Service Limited and another, (2023)8 SCC 11 :- “29. A three Judge Bench of this Court comprising of Hon’ble Sri S.R. Das, C.J., M. Hidayatullah and Sri K.C. Das Gupta, J.J. in the case of Satyanarayan Laxminarayan Hegde and others Vs. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , discussed the scope of the phrase 'error apparent on the face of record'. The challenge before this Court in the said case was the judgment of the High Court on the ground whether it suffers from an error apparent on the face of the record. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 , discussed the scope of the phrase 'error apparent on the face of record'. The challenge before this Court in the said case was the judgment of the High Court on the ground whether it suffers from an error apparent on the face of the record. The High Court had issued a writ of certiorari and had quashed order of the Tribunal and restored that of the Mamlatdar. In paragraph 8 of the report, the issue which was to be considered is reflected. The same is reproduced hereunder: “8. The main question that arises for our consideration in this appeal by special leave granted by this Court is whether there is any error apparent on the face of the record so as to enable the superior court to call for the records and quash the order by a writ of certiorari or whether the error, if any, was “a mere error not so apparent on the face of the record”, which can only be corrected by an appeal if an appeal lies at all.” 30. After discussing the relevant material on record, the conclusion is stated in paragraph 17 of the report. The view was that where an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. The view that long-drawn process of arguments to canvass a point attacking the order in a review jurisdiction, cannot be said to be an error apparent on the face of record. Relevant extract from paragraph 17 of the report is reproduced hereunder: “17....................Is the conclusion wrong and if so, is such error apparent on the face of the record ? If it is clear that the error if any is not apparent on the face of the record, it is not necessary for us to decide whether the conclusion of the Bombay High Court on the question of notice is correct or not. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal, viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari.” 31. Another case which may be briefly dealt with is the case of Parison Devi Vs. Sumitri Devi (1997)8 SCC 715 , where, this Court ruled that under Order XLVII 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. It also observed that a review petition cannot be allowed to be treated as an appeal in disguise. 32. A series of decisions may also be referred to wherein, it has been held that power to review may not be exercised on the ground that decision was erroneous on merits as the same would be the domain of the Court of appeal. Power of review should not be confused with appellate powers as the appellate power can correct all manners of errors committed by the subordinate courts. The following judgments may be referred: (1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909 (2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma; AIR 1979 SC 1047 (3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary (Smt.); (1995) 1 SCC 170 . (4) Uma Nath Pandey Vs. The following judgments may be referred: (1) Shivdeo Singh Vs. State of Punjab; AIR 1963 SC 1909 (2) Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma; AIR 1979 SC 1047 (3) Meera Bhanja (Smt.) Vs. Nirmala Kumari Choudhary (Smt.); (1995) 1 SCC 170 . (4) Uma Nath Pandey Vs. State of U.P.; (2009) 12 SCC 40 33. Recently, this Court in a judgment dated 24.-2-2023 passed in S. Murali Sundaram Vs. Jothibai Kannan and Others, (2023)13 SCC 515 observed that even though a judgment sought to be reviewed is erroneous, the same cannot be a ground to review in exercise of powers under Order XLVII Rule 1 CPC. Futher, in the case of Perry Kansagra Vs. Smriti Madan Kansagra (2019)20 SCC 753 , this Court observed that while exercising the review jurisdiction in an application under Order XLVII Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. 34. In another case between Shanti Conductors (P) Ltd. Vs. Assam SEB, (2020)2SCC 677, this Court observed that scope of review under Order XLVII Rule 1 read with Section 114 CPC is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue questions which have already been addressed and decided. It was further observed that 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 record. 35. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.” 9. Similar reiteration of law has been made by the Hon'ble Supreme Court in Review Petition (Civil) No. 1620 of 2023, titled as Sanjay Kumar Agarwal vs. State Tax Officer (1) & Anr., along with connected matters, decided on 31st October, 2023, as under:- 8. Similar reiteration of law has been made by the Hon'ble Supreme Court in Review Petition (Civil) No. 1620 of 2023, titled as Sanjay Kumar Agarwal vs. State Tax Officer (1) & Anr., along with connected matters, decided on 31st October, 2023, as under:- 8. Before adverting to the contentions raised by the learned counsels for the parties, let us regurgitate the well settled law on the scope of review as contemplated in Order XLVII of the Supreme Court Rules read with Order XLVII of CPC. 9. In the words of Krishna Iyer J., (as His Lordship then was) “a plea of review, unless the first judicial view is manifestly distorted, is like asking for the Moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result......... A review in the Counsel’s mentation cannot repair the verdict once given. So, the law laid down must rest in peace.” 10. It is also well settled that a party 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. 11. In Parsion Devi and Others vs. Sumitri Devi and Others (1987) 8 SCC 715, this Court made very pivotal observations: - “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.” 12. 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.” 12. Again, in Shanti Conductors Private Limited vs. Assam State Electricity Board and Others (2020)2 SCC 677 , a three Judge Bench of this Court following Parsion Devi and Others vs. Sumitri Devi and Others (supra) dismissed the review petitions holding that the scope of review is limited and under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 13. Recently, in Shri Ram Sahu (Dead) Through Legal Representatives and Others vs. Vinod Kumar Rawat and Others (2021) 13 SCC 1 , this Court restated the law with regard to the scope of review under Section 114 read with Order XLVII of CPC. 14. In R.P. (C) Nos. 1273-1274 of 2021 in Civil Appeal Nos. 8345- 8346 of 2018 (Arun Dev Upadhyaya vs. Integrated Sales Service Limited & Another), this Court reiterated the law and held that: - “15. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1 CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.” 15. It is very pertinent to note that recently the Constitution Bench in Beghar Foundation vs. Justice K.S. Puttaswamy (Retired) and Others (2021) 3 SCC 1 , held that even the change in law or subsequent decision/ judgment of co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review. 16. The gist of the afore-stated decisions is that: - (i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. (ii) 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. (ii) 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. (iii) 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 record justifying the court to exercise its power of review. (iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.” (v) A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” (vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. (vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (viii) Even the change in law or subsequent decision/ judgment of aco- ordinate or larger Bench by itself cannot be regarded as a ground for review.” 10. Now I proceed to test the grounds of review raised by the review petitioners at the touchstone of exposition of law. First and Second grounds of review, as noticed above, calls upon this Court to reopen the merits of the issues decided by way of order, sought to be reviewed. This Court while noting the contentions raised on behalf of the State of Himachal Pradesh in para-13 of the order dated 17.11.2023 had observed as under:- “13. Per contra, claimant No. 2 has contended that the award had bound the claimant No.1 to perform its part obligated under the award within three months and since the claimant No. 1 has failed to fulfil such obligation, the said claimant has lost of rights, title and interest in the property and as a consequence the claimant No. 2 has become entitled to resume the property, subject to condition imposed in the award. It has also been submitted that nothing has been paid to claimant No.2 in terms of the award by claimant No. 1 till date. It has also been submitted that nothing has been paid to claimant No.2 in terms of the award by claimant No. 1 till date. The award was passed in the year 2005 and claimant No. 1 has been able to drag the litigation for a period of more than seventeen years with the intent to avoid performance of its obligation under the award. Even after the dismissal of arbitration appeal filed by claimant No. 1, they have not performed their part of the obligation under the award within three months.” Admittedly, the review petitioners have not raised any challenge to the aforesaid observations made by this Court. This Court having taken into consideration the aforesaid fact, the review petitioners cannot call upon this Court to revisit the merits of the order. 11. As regards, the claim of review petitioners with respect to effect of their communication dated 18.10.2022 followed by reminders dated 3.12.2022, 22.12.2022 and 12.01.2023, the entertainment of any preconceived notion on the part of the review petitioners is completely misplaced. This Court has already afforded the parties opportunity to submit their options as would be evident from para -38 of the order sought to be reviewed. There was no occasion for this Court to adjudicate upon the effect of aforesaid communications as the same was to be decided once, the options as called for vide order dated 17.11.2023 were preferred by the parties. 12. Thus, no case for review of order dated 17.11.2023 is made out as the review petitioners have failed to point out any mistake or error apparent on the face of the record. 13. The instant petition is otherwise also not maintainable in view of the order passed by this Court on 18.11.2023 and 24.11.2023 in OMP No. 562 of 2023 in Execution Petition No.5 of 2023. The review petitioners by way of OMP No. 562 of 2023 had sought following relief(s):- “(a) Clarify that the directions as contained in paras 35 read injunction with sub para 1 of para 38 of the impugned order dated 17.11.2023, do not permit or authorize the State of H.P-. or any of its officials to take possession of the Hotel Wildflower Hall, Chhrabra Shimla, or to interfere in the peaceful possession, use, occupation, running and management of the hotel. or any of its officials to take possession of the Hotel Wildflower Hall, Chhrabra Shimla, or to interfere in the peaceful possession, use, occupation, running and management of the hotel. (b) Restrain the respondent State from interfering in the peaceful use occupation and possession of property known as Hotel Wildflower Hall, Chhrabra, Shimla and other status qua ante to 17.11.2023 in respect of the possession, use, occupation, running and management of the hotel;” 14. Review petitioner had approached this Court on 18.11.2023, when the State of Himachal Pradesh, after passing of the order dated 17.11.2023 by this Court, had issued executive order dated 17.11.2023 directing its officer(s) to take possession of the property of Hotel Wildflower Hall. This Court had passed an order on 18.11.2023. It will be necessary to reproduce the relevant extract of the said order as under:- “This Court while deciding the objections of the parties vide order dated 17.11.2023 has specifically required the State to reveal its option whether the State intends to resume the property by taking its possession in terms of the award or not. The State has been granted time for such purpose till 15.12.2023, but the State officials are stated to have taken action by issuance of executive order dated 17.11.2023 (Annexure A-2) and as a consequence thereof have initiated action by visiting the hotel premises in the morning of 18.11.2023 i.e. today. Since the execution petitions filed by both the sides are still pending before this Court, the Award passed by the learned Arbitrator has to be executed in terms of the directions passed by this Court and not by the parties themselves. In this view of the matter, further execution of order dated 17.11.2023 (Annexure A-2) shall remain stayed till further orders. It is clarified that the respondent State shall not interfere in the day to day management and possession of the hotel. 15. Thereafter, the State of Himachal Pradesh came up with a specific stand in its reply to OMP No. 562 of 2023, which lead to the passing of order dated 24.11.2023 by this Court, which reads as under:- “OMP No. 562 of 2023. Reply on behalf of non-applicants has been filed. In paragraphs No. 6 & 7 it has been specifically averred as under:- “6. Reply on behalf of non-applicants has been filed. In paragraphs No. 6 & 7 it has been specifically averred as under:- “6. That the respondent has utmost regard for the orders passed by this Hon'ble Court and there cannot be any question of any willful over reach or acting in contravention of the orders passed by this Hon'ble Court as has been alleged in the application under reply. The respondent in a bonafide belief that it has a right under the Arbitral Award to take immediate possession of the subject property passed the executive order dated 17.11.2023 exercising its rights under the said Award. 7. That after the clarification issued by this Hon'ble Court vide its order dated 18.11.2023, the respondent has passed orders suspending the Executive Order dated 17.11.2023 in due deference to this Hon'ble Court. It is most respectfully submitted that the answering respondent would be taking steps to protect its interest strictly in accordance with law and the orders passed by this Hon'ble Court.” This Court is already seized of the matter and the execution petition Nos. 5 of 2023 and 19 of 2023 have not been finally disposed of. In terms of the order passed by this Court on 17.11.2023, further proceedings are yet to be taken on 15.12.2023. Keeping in view, the stand now taken by the respondents by way of their reply, the application is disposed of with a direction that the further course of proceedings in both the execution petitions shall abide by directions as may be passed by this Court from time to time. Application stands disposed of.” 16. Thus, the apprehension, if any, of the review petitioners is without any basis. Viewed from another angle, the review petition would not otherwise be maintainable in view of the disposal of the prayers made in OMP No. 562 of 2023 by this Court, which necessarily were identical to the reliefs sought in the instant petition. 17. In light of above discussion, I do not find any merit in this petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.