Jitendra Prasad Singh, Son of Ramashray Singh v. State of Bihar through the Principal Secretary, Urban Development and Housing Department
2024-05-16
ASHUTOSH KUMAR, HARISH KUMAR, K.VINOD CHANDRAN
body2024
DigiLaw.ai
JUDGMENT : HARISH KUMAR, J. We have heard the learned Advocates for the respective parties. 2. On a reference made by a Division Bench of this Court, by order dated 17.02.2024, the matter has been placed before us for consideration. 3. The question referred is as to whether a person affected or aggrieved by an order/judgment, if not impleaded in the writ petition, can take recourse to the remedy of review;claiming violation of principles of natural justice. 4. Before answering the reference, this Court deems it proper to give the short facts for proper appreciation of the matter. Respondent no.7 was aggrieved by the decision of the Technical Bid Evaluation Committee treating his tender to be not responsive to the requirements of the bid document. The petitioner’s bid, for construction of a PCC road, was declared unsuccessful and disqualified in terms of Clause 19(4)(e) of the NIT No. 09/2022-2023, which was challenged in CWJC No. 814 of 2023. The main ground of challenge was that though the terms of the NIT required the technical bid to be opened on 06.08.2022 and the financial bid on 15.08.2022; the official respondents proceeded to open both the Technical Bid and Financial Bid on 06.08.2022, in complete defiance of the terms of the tender notice. A Division Bench vide order dated19.04.2023 found that something ‘fishy’ (sic) had transpired and set aside the impugned order dated 22.07.2022 reserving liberty to the respondents to proceed in accordance with law after maintaining all the relevant records. 5. Two of the bidders, who were declared successful in respect of subject matter of NIT No. 09/2022-2023 and in whose favour the work orders were issued, being prejudiced by the order dated 19.04.2023 passed in CWJC 814 of 2023, filed Civil Review No. 131 of 2023 in CWJC No. 814 of 2023. 6. The contention of the two successful bidders were that their rights were affected by virtue of the order dated 19.04.2023 passed in CWJC 814 of 2023, in which the review petitioners were not impleaded. It is contended on their behalf that they were successful bidders and the work orders were allotted to them and, as such, they were necessary parties. The order was passed without hearing them and hence the prayer for review. The Division Bench took note of the decisions of the Hon’ble Supreme Court in the case of Shivdeo Singh and Ors. Vs.
The order was passed without hearing them and hence the prayer for review. The Division Bench took note of the decisions of the Hon’ble Supreme Court in the case of Shivdeo Singh and Ors. Vs. State of Punjab and Ors. reported in AIR 1963 SC 1909 and Rama Rao & Ors Vs. M.G. Maheshwara Rao and Ors. reported in (2007) 14 SCC 54 and held the Civil Review petition to be not maintainable. The Division Bench considering the review observed that: “The same principle has been reiterated to the extent that if the third party right is affected by virtue of any order passed in a writ petition in that event he or she has remedy of filing writ petition and not in filing review petition. Obviously, for the reasons that scope of review petition is limited to the extent whether any error apparent on the face of the record with reference to order 47 Rule 1 of CPC. If writ petition is filed then the scope would be beyond the criteria insofar as filing review petition” 7. The Civil Review came to be dismissed vide order dated 22.11.2023 giving liberty to the review petitioners to file a fresh writ petition insofar as questioning the validity or seeking for recalling of the order dated 19.04.2023 passed in CWJC No. 814 of 2023. 8. The review petitioners, in terms of the liberty, as noted hereinabove, preferred CWJC No. 622 of 2024. Another Division Bench, which considered the matter on 17.02.2024 opined that judicial discipline mandates following the earlier judgment of a Coordinate Bench and thus it cannot take a different view from the earlier judgment; but held, with due respect, that they were unable to accept the reasoning rejecting the review petition. The Division Bench succinctly observed that in a proceeding under Article 226 of the Constitution of India it is trite that the power of review inheres in the High Court [ Shivdeo Singh (supra) & M. M. Thomas Vs. State of Kerala & Anr ., reported in (2000) 1 SCC 666 ]. Finding it difficult to accept the proposition laid down in the earlier decision regarding unsustainability of a review in the given facts, and finding subsequent writ proceedings giving rise to multiplicity of proceedings; referred the matter to a larger Bench. 9. In the aforesaid background, the matter has been placed before us to answer the reference. 10.
Finding it difficult to accept the proposition laid down in the earlier decision regarding unsustainability of a review in the given facts, and finding subsequent writ proceedings giving rise to multiplicity of proceedings; referred the matter to a larger Bench. 9. In the aforesaid background, the matter has been placed before us to answer the reference. 10. Well settled it is that every High Court shall be a Court of record and shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories; directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. 11. The Hon’ble Supreme Court in M. M. Thomas Vs. State of Kerala & Anr. , reported in (2000) 1 SCC 666 while dealing with the issue of the power and duty of the High Court to review its own judgment held in para.14 as follows: “14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra [ AIR 1967 SC 1 : (1966) 3 SCR 744 ] a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record.” 12.
The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra [ AIR 1967 SC 1 : (1966) 3 SCR 744 ] a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record.” 12. 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 or palpable errors committed. 13. The grounds of review though has not been delienated, per se, under the Constitution, but in course of time this issue has been set at rest by the numerous precedents. The power of review may be exercised, as is trite; where some mistake or error apparent on the face of record is found; on the discovery of new and important facts 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 and any analogous ground. The aforesaid grounds have been culled out from the relevant provisions of the Civil Procedure Code, 1908 dealing with the power of review. 14. Before quoting the relevant provisions, it would be worthy to note that the provisions of the Code of Civil Procedure, 1908 cannot per se apply to writ proceeding but the principles of Code of Civil Procedure, which advance public policy, are found to be equitable and just, to meet the ends of justice, which can be extended as guidelines in writ proceedings [ 2017(1) PLJR 909 (FB)]. 15. Section 114 of the Code of Civil Procedure, 1908 reads as follows: “114. Review. - Subject as aforesaid, any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 16.
(b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.” 16. Further, Order XLVII Rule 1 of the CPC is quoted hereinbelow: “1. Application for review of judgment. — (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review. [Explanation—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.” 17. In the case of State of Telangana and Others Vs. Mohd. Abdul Qasim (D) through Lrs. , reported in 2024 SCC OnLine SC 548 , while highlighting the scope of review taking note of earlier judgments it has been declared that an order can be reviewed only on the prescribed grounds mentioned in Order XLVII Rule 1 of the CPC 1908. 18.
Mohd. Abdul Qasim (D) through Lrs. , reported in 2024 SCC OnLine SC 548 , while highlighting the scope of review taking note of earlier judgments it has been declared that an order can be reviewed only on the prescribed grounds mentioned in Order XLVII Rule 1 of the CPC 1908. 18. From the bare reading of both the relevant provisions, the right to file an application for review is undoubtedly confined to “any person considering himself aggrieved”. The word “aggrieved” in normal parlance denotes any person whose right is affected by any action or order of the authority. The Hon’ble Supreme Court in the case of Union of India v. Nareshkumar Badrikumar Jagad & Ors , (2019) 18 SCC 586 , has discussed and defined the word “affected or aggrieved person” as follows: “18. Reverting to the question of whether the Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure (CPC) which, inter alia, postulates that “any person considering himself aggrieved” would have locus to file a review petition. Order 47 CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order 47 CPC nor Order 47 of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect.” (Emphasis by underlining supplied) 19. The question referred herein, was also posed before the Constitution Bench of the Hon’ble Supreme Court in Shivdeo Singh (supra); as to whether a review would lie at the instance of a party, not impleaded in the writ petition, when the judgment in the writ petition filed by another, set aside an allotment made to the review petitioner.
The question referred herein, was also posed before the Constitution Bench of the Hon’ble Supreme Court in Shivdeo Singh (supra); as to whether a review would lie at the instance of a party, not impleaded in the writ petition, when the judgment in the writ petition filed by another, set aside an allotment made to the review petitioner. The Constitution Bench answered in the affirmative, explicitly holding that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review, which inheres in any Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The Hon’ble Supreme Court has specifically rejected the contention of the appellants therein that the respondents who filed the review before the High Court were not parties to the original writ petition and hence were not entitled to approach the High Court with a review. It was categorically found that when the review petitioners had a contention that they were also affected by the judgment passed under Article 226 of the Constitution of India and that they were not heard; it was competent for the High Court to entertain the review on grounds of violation of principles of natural justice. 20. The Hon’ble Supreme Court while considering the power to review its judgment, as has been conferred under Article 137 of the Constitution of India; in Sanjay Kumar Agrawal Vs. State Tax Officer & Anr ., reported in (2024) 2 SCC 362 , has categorically observed as follows: “7. At the outset, it may be stated that the power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution of India. Of course, that power is subject to the provisions of any law made by Parliament or the Rules made under Article 145. The Supreme Court in exercise of the powers conferred under Article 145 of the Constitution of India has framed the Supreme Court Rules, 2013. Order 47 of Part IV thereof deals with the provisions of review. Accordingly, in a civil proceeding, an application for review is entertained only on the grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of record.
Order 47 of Part IV thereof deals with the provisions of review. Accordingly, in a civil proceeding, an application for review is entertained only on the grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of record. However, it may be noted that neither Order 47CPC nor Order 47 of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Even a third party to the proceedings, if he considers himself to be an “aggrieved person”, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect. [Union of India v. Nareshkumar Badrikumar Jagad, (2019) 18 SCC 586 ] In view of the said legal position, the review petitioners who claimed to be the “aggrieved persons” by the impugned judgment dated 6-9-2022 [State Tax Officer v. Rainbow Papers Ltd., (2023) 9 SCC 545 ], were permitted to file review petitions and were heard by the Court.” (Emphasis supplied with underlining) 21. It is well settled that a party is not entitled to seek a review of a judgment delivered by any Court merely for the purpose of a rehearing and a fresh decision in the case. Normally the 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, so to do. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice, as was held by the Hon’ble Supreme Court in the case of O.N. Mohindroo Vs. Distt. Judge, Delhi [ (1971) 3 SCC 5 ] 22. With utmost respect, we find it difficult to accept the proposition that if third party right is affected by virtue of any order passed in a writ petition, in violation of the principles of natural justice, the remedy is another writ petition and not filing of review petition. The reliance placed by the Division Bench, in the order under reference, on Shivdeo Singh (supra) is misplaced.
The reliance placed by the Division Bench, in the order under reference, on Shivdeo Singh (supra) is misplaced. Rama Rao (supra) was a case in which the prayer before the High Court was regarding an order passed by the Administrative Tribunal. Since the applicants before the High Court were not heard by the Administrative Tribunal, at the earlier instance, a fresh petition under Section 19 of the Administrative Tribunals Act was filed. It was held that raising the ground of violation of principles of natural justice and challenging the earlier order passed, a further application under Section 19 could be filed. The Hon’ble Supreme Court held that if the Tribunal did not agree with the earlier order, the subject matter would be referred to a Larger Bench. It was never held that a review would not be maintainable. 23. In view of the aforenoted discussions and the mandate of law, we sum up that, ordinarily, right of review is available only to those who are parties to a case. However, on the wider meaning given to the expression "any person considering himself aggrieved"; undoubtedly, on grounds of violation of principles of natural justice, for reason also of the affected party being not impleaded in the writ petition, would make that party an ‘aggrieved person’ who could file a review. 24. Accordingly, we answer the reference that a person affected by an order/judgment, not being impleaded in the writ petition claiming violation of the principles of natural justice, cannot be prevented from taking recourse to the remedy of review. Having answered the question referred we direct the Registry to post the case before the Division Bench having roster.