Pramila Singh v. The State Of Bihar

====================================================== Appearance : For the Appellant/s : Mr. Arun Kumar For the Respondent no. 7: Capt. Rajesh Kumar. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 29-08-2013 We have heard counsel for the Appellants, the State and for respondent no. 7. The present Appeal has been filed against order dated 25.7.2013 in M.J.C. No. 3436 of 2013. It declines to recall the order dated 15.5.2013 passed in C.W.J.C. No. 10125 of 2013. On 15.5.2013, in CWJC No. 10125 of 2013 2 Patna High Court LPA No.1052 of 2013 (2) dt.29-08-2013 filed by the appellant, an objection was raised on behalf of the respondents with regard to availability of alternative statutory remedy under Section 9(1) of the Bihar Land Disputes Resolution Act, 2009. The Appellants compliance of the order filed B.L.T. Case No. 321 of 2013. The Tribunal opined that it did not have jurisdiction in the matter which appropriately lay under the Public Land Encroachment Act. The application was permitted to be withdrawn for approaching the appropriate forum. MJC No. 3436 of 2013 was then filed in disposed CWJC No. 10125 of 2013 for recall of order dated

15.5.2013. By order dated 11.7.2013, CWJC No. 10125 of 2013 was restored to its original file and further directions given in the matter for measurement, verification of sale deeds and appointment of Survey Knowing Pleader Commissioner. The writ application was directed to be put up in chambers on 19.7.2013. In the meantime stay of eviction was granted. On 25.7.2013, after measurement and demarcation by Pleader Commissioner, the Court directed that there was no need to recall the order dated

15.5.2013 in the writ application or restore it to original file for hearing on merits. If order dated 15.5.2013 stood recalled on

11.7.2013, the refusal on 25.7.2013 to recall the order dated 15.5.2013 obviously becomes meaningless. It is 3 Patna High Court LPA No.1052 of 2013 (2) dt.29-08-2013 obviously inherently contradictory. The remedy for the appellants against the order of the Bihar Land Tribunal either lay under the Public Land Encroachment Act or if aggrieved, in a writ petition before this Court. Once CWJC No. 10125 of 2013 was disposed for availing alternative statutory remedy, the Court became functus officio. A petition for recall would lie only if the error was attributable to the Court. An erroneous order amenable to challenge does not fall in that category. We have already noticed that the writ application came to be disposed on an objection taken by the respondents. The aforesaid principle was considered in (1987)2 SCC 179 (State of U.P. vs. Brahm Datt Sharma) holding:- another “10. The High Court’s order is not sustainable reason. Respondents’ writ petition challenging the order of dismissal had been finally disposed of on 10.8.1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice filed a dated 29.1.1986 he could have separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided as separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had 4 Patna High Court LPA No.1052 of 2013 (2) dt.29-08-2013 no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent’s application which was founded on a separate cause of action. When proceedings stand disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.” terminated by More recently in (2013) 1 SCC 376 (Nazma v. Javed @ Anjum) it was observed at paragraph 12 as follows:- “12. We are of the view that the High Court has committed a grave error in not only entertaining the criminal miscellaneous application in a disposed of writ petition, but also passing an order not to arrest the first respondent till the conclusion of the trial. Grant of bail or not to grant, is within the powers of the regular criminal courts and the High Court, in its inherent jurisdiction, is not justified in usurping their powers. Once the criminal writ petition has been disposed of, the High Court becomes functus officio and cannot miscellaneous applications carrying out typographical or clerical errors. In the instant case, the High Court has entertained a petition in a disposed of criminal writ petition and granted reliefs, which is impermissible in law.” review petitions except entertain The orders dated 11.7.2013 and 25.7.2013 passed on basis of a Miscellaneous application filed in a disposed writ application are therefore held to be without jurisdiction as the Court had become functus officio after the order dated 15.5.2013. 5 Patna High Court LPA No.1052 of 2013 (2) dt.29-08-2013 The appellants are at liberty to pursue appropriate proceedings before forum having jurisdiction. The appeal is dismissed. (Navin Sinha, J) (Vikash Jain, J) P. Kumar/-