The Union Of India And ORS. v. Andaman Plantation And Development Corporation Pvt. Ltd.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** RVW/102/2020 The Union of India & others ...

Petitioners Vs.

The Andaman Plantation & Development Corporation Pvt. Ltd.

...

Respondent Mr.Vikramjit Banerjee, Additional Solicitor General, Mr.Arul Prasanth, Mrs.G.Indira, Advocates ... for the petitioners Mr.Raja Basu Choudhury, Sr. Advocate Ms.Jyoti Singh, Mr.A.Husssain, Mr.V.D.Sivabalan, Advocates ... for the respondent September 13, 2021 [GNC] Item No.64 Being dissatisfied with a concession having recorded in the order dated July 18, 2019 in CO No.22 of 2019 the petitioners have taken out an application for review primarily on the ground that such concession is contrary to the record and not complete reflection of the order passed in WP No.52 of 2015.

Before I proceed to decide the application for review it would be apposite and profitable to adumbrate the broad undisputed facts.

The suit is filed by plaintiff/respondent herein for declaration that possession of the plaintiff/respondent in respect of the suit land is lawful and bonafide and the grant continues under the original grant dated 9th April, 1987 in view of the statutory renewal clause contained in Regulation 146 of the

1966 Regulations. Further declaration is sought that the plaintiff/respondent is entitled to the renewal of the grant dated 9th April, 1987 for a further period of 30 years commencing from 1st January, with other consequential reliefs in the form of perpetual and mandatory injunction.

The defendant/petitioner appeared in the said suit and amidst the pendency thereof filed an application for framing preliminary issue as regards maintainability of the suit. In other words, a plea of embargo in maintaining the suit before the civil Court was taken out and to be decided as a preliminary issue. The trial court disposed of the said application with the categorical finding that the objection as to the jurisdiction will be considered along with the other issues. This led the defendant/petitioner herein to file an application under Article 227 of the Constitution and it is contended before the Court that once a plea of jurisdiction is raised it strikes at the root of the matter and required to be decided as a preliminary issue before the Court embark its journey to answer the other issues. While disposing of the Revisional application on July 18, 2019 this Court recorded an unequivocal stand of the Administration that the Chief Commissioner's order was set aside. As indicated above, such observation appears to have disturbed the defendant/petitioners as according to him it

is not true and correct reflection of the order passed in a writ petition No.52 of 2015.

Mr.Banerjee, learned advocate Additional Solicitor General advocate appearing for the defendants/petitioners submitted that the aforesaid concession if allowed to stand will have the greater impact in course of the suit and can be used as a weapon against the Administration when there is an apparent error which would be borne from the record. He further submits that the review is maintainable on the patent error from the face of the record and since the writ petition was confined to the order of the Deputy Commissioner and the Sub-Divisional Officer and thus having been set aside such error is evident from the face of the record and therefore, the order needs to be reviewed. Mr.

Raja Basu Choudhury, learned advocate appearing for the plaintiff/respondent raises vehement objection and submits that several consequential orders were passed on the basis of the order passed by this Court while disposing of the Revisional application and therefore, the review application should not be entertained as it would have an impact on the other interlocutory orders passed in the suit. Mr.Choudhury further submits that there has been a long delay in taking out an application and the stale claim is sought to be resurrected by virtue of an application under Order 47 Rule 1 of the Code of Civil Procedure.

As indicated above, the points centres around the concession having recorded in the impugned order and whether such concession is reflection of the order passed in the writ petition. At the very outset I must record that having un-oblivion of the fact that the review jurisdiction is not meant to be used as an appellate jurisdiction or sitting as appellate Court over the order of the coordinate Bench but must be exercised within the limited compass as envisaged in Order 47 Rule 1 of the Code of Civil Procedure. It is beyond the cavil of doubt that the review jurisdiction is not used for rewriting or revisiting of the judgment but must be decided on the stipulated contours provided in the statute.

The Court should not venture upon the roving enquiry to discern the logical inferences drawn from the different orders or materials forming the part of the record but should confined its scrutiny to the material which is on record and whether there has been a patent error in the impugned order which is contrary to such record. My attention has been drawn to the order passed in a writ application and the opening paragraphs indicates the subject matter of dispute concerning the order passed by the Deputy Commissioner, South Andaman District and the Sub-Divisional Officer.

The order of Deputy Commissioner revealed the order of the Chief Commissioner and ultimately the writ Court found that there was no order passed in a adjudicatory process and further found that the

Deputy Commissioner was incompetent to pass the order in view of the extant law or the regulation. What can be seen from a bare reading of the order that the order of the Deputy Commissioner was annulled and therefore there appears to be a misconception on the part of the learned advocate appearing for the Administration that the order of the Chief Commissioner was set aside. Such error is apparent from the face of the record discernable without making any roving exercise to logically deduce from the order and therefore I do not find any difficulty in reviewing the said order dated July 18, 2019 to the extent that the word "Chief" appearing therein is to be understood "Deputy". The concession would be read and meant that it would be unequivocal stand of the Administration in course of the present proceeding that the Deputy Commissioner's order stand set aside.

For the purpose of record it is made it clear that the writ Court categorically records that there was an administrative exercise by the Chief Commissioner and there was no conscious decision taken by him and therefore, the finding of the Court that the Chief Commissioner the order stands annulled is contrary to the record.

I further find that the application for modification of the said order under review has also been taken out by the petitioners. Though on the disposal of the review

application such application has become infructuous yet I must record the exposition of law in this regard. A party cannot seek review in guise of modification/clarification and/or recall of the order. Such application should not be dealt with in a routine manner and the encouragement should not be shown to the litigant to achieve the review in the guise of such modification. Since the review application is disposed of, all connected applications filed therein stand disposed of accordingly.

(Harish Tandon, J. )