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High Court Of Calcutta
ALTAMAS KABIR, A. K. GANGULY, ALOKE CHAKRABARTI, D. K. SETH, P. N. SINHA
K.N.MISHRA - Appellant
Versus
UNION OF INDIA - Respondent
W. P. C. T. 157 Of 2001
Decided On : 07/25/2003
REVIEW - Order 47 Rule 5 of the Code of Civil Procedure - applicability to proceedings in the Andaman and Nicobar Islands - Chapter XVIII of the Appellate Side Rules - whether prevails over Order 47 Rule 5 - special circumstances prevailing in the Islands.
Fact of the Case:
The writ petition was dismissed by the Division Bench on 11th June, 2002, on the ground that an error of assessment cannot be corrected in writ jurisdiction. An application, being RVN No. 005 of 2002, was filed by the writ petitioner for review of the order of the Division Bench. The said application came up for consideration before another Bench then in Circuit which issued a Rule on the application on 2nd July, 2002, making the same returnable on 9th July, 2002. On 9th July, 2002, direeections were given for filing of affidavits and the matter was adjourned till 15th July, 2002.
Finding of the Court:
The application for review of an order disposing of a writ application is made on the ground of error apparent on the face of the record, whether the Bench hearing such application, after recording its finding that there was such error, can dispose of such application by recalling the original order without arriving at the final verdict as to what should be the first order on the writ application after removing the alleged error, entrusting such duty to a succeeding Bench after making some prima facie observation on merit of the writ application?
Issues: 1) If an application for review of an order disposing of a writ application is made on the ground of error apparent on the face of the record, whether the Bench hearing such application, after recording its finding that there was such error, can dispose of such application by recalling the original order without arriving at the final verdict as to what should be the first order on the writ application after removing the alleged error, entrusting such duty to a succeeding Bench after making some prima facie observation on merit of the writ application? 2) If the answer to point No. 1 above is given in affirmative, whether the review application should be deemed to be pending so long the succeeding Bench is not arriving at a conclusion altering the original order disposing of the writ application or affirming the original order? 3) If the answer to the point No. 1 is in affirmative but the answer to point No. 2 is in negative or if the answer to the point No. 1 above is given in negative, whether the succeeding Bench should be bound by the observations of the Bench made on merit while entrusting, the same to the succeeding Bench for final decision? 4) If the answer to point Nos. 1 and 2 are both given in affirmative, in such a case, whether in a Circuit Bench at Port Blair an application for review of an order passed by a Bench sitting in writ jurisdiction can be entertained by a succeeding Circuit Bench consisting of different Judges from those of the previous one in the absence of any special assignment of the Hon'ble Chief Justice when the Judges of the previous Bench are still functioning as the Judges of the Calcutta High Court?
Ratio Decidendi: The Calcutta High Court (Extension of Jurisdiction) Act, 1953, empowered the High Court to make rules to carry out the purpose of the Act and for the purpose of effectively exercising its jurisdiction in or in relation to Chandernagore and the Adaman and Nicobar Islands. In exercise of such powers Chapter XVIII of the High Court Appellate Side Rules was amended with effect from 22/11/1991. Rule 3 of the amended Rules requires all cases, including applications under Articles 226 and 227 of the Constitution, to be initiated in the Islands and are also required to be heard by the Circuit Bench, which did not necessarily mean the same Bench which had earlier heard a matter, having regard to the special circumstances prevailing in the Islands. The provisions of Rule 3 read with Rule 1 (b) of Chapter XVIII of the Appellate Side Rules would prevail in case of conflict with Order 47 Rule 5 of the Code of Civil Procedure. Therefore, the first question formulated by the referring Bench has to be answered in the affirmative. In view of Rule 3 of Chapter XVIII of the Appellate Side Rules, which, in our view, will have an overriding effect over the provisions of Order 47 Rule 5 of the Code of Civil Procedure, the second question has to be answered in the negative. As far as the third question is concerned it follows that the succeeding Bench will not be bound by the observations on the merits of the case made by the Bench which allows the review application while entrusting the same to the succeeding Bench for final decision.
Final Decision: The questions REFERRED TO this Bench are answered accordingly.
( 1 ) THIS reference originates from a writ petition filed before the Circuit Bench at Port Blair against an order passed by the Central Administrative Tribunal on 19th September, 2000. The said writ application was dismissed by the Division Bench on 11th June, 2002, on the ground that an error of assessment cannot be corrected in writ jurisdiction. An application, being RVN No. 005 of 2002, was filed by the writ petitioner for review of the order of the Division Bench. The said application came up for consideration before another Bench then in Circuit which issued a Rule on the application on 2nd July, 2002, making the same returnable on 9th July, 2002. On 9th July, 2002, direeections were given for filing of affidavits and the matter was adjourned till 15th July, 2002. On the said date the second Division Bench, inter alia, recorded the following order :"the application therefore stands allowed. The order dated 11-6-2002 is hereby recalled. Now it will be not necessary to hear the writ petition afresh".
( 2 ) THEREAFTER, after making certain observations on the merits of the writ petition, the Court further recorded as follows :-"since we have already recorded hereinabove, that we are not disposing of the writ application today because of the reasons stated above, we are not recording our conclusion on such fact. But it is now for the next Circuit Bench to decide finally whether because of the stand of the respondents whether the petitioners will be without any remedy or the entire selection should be set aside with a direction for holding fresh Departmental Promotion Committee".
( 3 ) FURTHER to the aforesaid directions, the writ application came up for hearing on 20th January, 2003, before the Division Bench in Circuit comprised of a third set of Judges and presided over by Bhaskar Bhattacharya J. When the writ application was taken up for hearing a question arose as to whether the said Bench could at all take up the matter for hearing.
( 4 ) HAVING regard to the provisions of Order 47, Rule 5 of the Code of Civil Procedure and its applicability even to writ proceedings and the Full Bench decision of this Court in the case of Ratan Lal Nahata v. Nandita Bose, reported in AIR 1999 Calcutta 29 : (1999 AIHC 718) the Third Division Bench held that it could not legally take up the writ application. It was of the view that since the original writ application had already been disposed of by the First Division Bench and the Second Division Bench having found on the application for review that there was an error apparent on the face of the record in the order of the First Division Bench justifying recall of the said order, it should not only have recalled the earlier order but should have also pronounced the final order on the writ application after removal of such error.
( 5 ) CONSEQUENT to the aforesaid view taken by it, the Third Division Bench concluded that so long as the final verdict stating what should be the just order was not given, in the eye of law, the application for review should be deemed to be pending. Following such finding to its logical conclusion, the Third Division Bench was also of the view that the order dated 15th July, 2002, passed by the Second Division Bench should be ignored and it should deal with the application for review afresh as if it was being moved for the first time.
( 6 ) AT this juncture the Third Division Bench was faced with the Full Bench decision of this Court in the case of Ratan Lal Nahata v. Nandita Bose (supra) giving rise to the further question as to whether the review application could be heard by the Third Division Bench since both the learned Judges comprising the First Division Bench were available for the purpose of hearing the said application. The Third Division Bench was of the view that the review application should be heard by the learned Judges comprising the First Division Bench or the Hon'ble Chief Justice should assign the matter to a s
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