The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET No. 100 of 2023 [Applications under order XLVII Rule I of the CPC] --------------- AFR Governing Body of Shantilata Mahavidyalaya ...… Petitioner -Versus- Shantilata Jena & others ..…. Opp.Parties Advocate(s) appeared in these cases:- __________________________________________________________ For Petitioner: Mr. J.K. Rath, Sr. Advocate with M/s. D.N. Rath & A.K. Saa, Advocates For Opp. Parties: M/s. Sameer Kumar Das, & P.K. Behera, N. Jena, Advocates [for O.P. No.1) Mr. S.N. Pattnaik, Addl. Government Advocate __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 21st May, 2024 SASHIKANTA MISHRA, J. The present application has been filed by the governing body of Shantilata Mahavidyalaya represented thorough its Principal-cum-Secretary, Page 1 of 12 Manoranjan Behera seeking review of order dated 23.02.2023
Legal Reasoning
passed by this Court in W.P.(C) No. 5316 of 2023. 2. W.P.(C) No. 5316 of 2023 was filed by one Shantilata Jena claiming to be the Ex-Secretary, Governing Body of Shantilata Degree Mahavidyalaya with the following prayer. “Under the above circumstances, it is therefore humbly prayed that the Hon’ble Court be graciously pleased to direct the Opposite Party No.1 and 2 to recover the Block grant/grant-in-aid sanctioned in favour of the Opposite Party No.4 & 5 i.e. Shantilata Junior Mahavidyala, Uitikiri (Shantilata Higher Secondary School, Uitikiri) as per the condition imposed by this Hon’ble Court in order dtd: 08.04.2010 passed in Misc. Case No. 2765 of 2010 arising out of W.P.(C) No. 3378 of 2010 and disburse the said amount in favour of the petitioner and/or the Shantilata Degree Mahavidyala, Uitikiri who are genuine and lawfully appointed in the said college with all consequential service and financial benefits within a stipulated period as deem fit and proper; And/or issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case.” favour of in 3. At the stage of admission, i.e. on 23.02.2023 on being brought to the notice of this Court that said petitioner had also approached the Principal Secretary to the Government in Higher Education Department by submitting a representation on 11.10.2022, which was pending, this Page 2 of 12 Court disposed of the writ application by order dated 23.02.2023, inter alia, with the following direction.
Decision
“6. Having regard to the above, the Writ Petition is disposed of with a direction to the Opposite Party No.1 to consider and dispose of the representation submitted by the Petitioner in accordance with law within a period of six weeks from the date of communication of this order or on production of certified copy thereof by the Petitioner. It is made clear that this Court has not expressed any opinion on the merit of the contentions raised in the Writ Petition” 4. The Review Petitioner, who was not a party to the said writ petition seeks review of this order, inter alia on the ground that the petitioner Shantilata Jena had mis- represented facts before this Court without having any locus standi in the matter and managed to obtained the order. It is submitted that the previous litigations were not deliberately brought to the notice of the Court only with a view to obtain an order in her favour. Since the Review Petitioner being the Secretary of the valid governing body of the institution is adversely affected by such order, which was passed ex-parte, the same needs to be recalled and the writ application heard afresh granting opportunity to him to put forth all the relevant facts before this Court. Page 3 of 12 5. An objection has been filed by Shantilata Jena (opposite party No.1) on the maintainability of the review application. It is stated that the Governing body of Shantilata Higher Secondary School @ Shantilata Junior College, being opposite party No.4 in the writ application was represented through its Principal-cum-Secretary. The Review Petitioner was not a party to the writ application. Therefore, the Review application is not maintainable at his instance. However, the petitioner had not suppressed any material facts rather, she had filed all the relevant orders of this Court in the earlier case i.e., W.P.(C) No.3378 of 2010. 6. Heard Mr. J.K. Rath, learned Senior Counsel with Mr. D.N. Rath, learned counsel for the Review Petitioner; Mr. S.K. Das, learned counsel for the opposite party No.1(Shantilata Jena) and Mr. S.N. Pattnaik, learned Addl. Government Advocate appearing for the State. 7. Mr. Rath would argue that Shantilata Jena cannot represent the governing body of the institution and therefore, the writ petition could not have been entertained at her instance. In fact, a GIA case had been filed being GIA Case No. 330 of 2009 by her before the State Education Tribunal Page 4 of 12 claiming to be the Secretary of the Institution but the same was not entertained by the Tribunal holding that she was not the Secretary of the Governing Body. Though she has challenged said order of the Tribunal before this Court in FAO No. 442 of 2010, no interim order has been passed. Under such circumstances, she filed the writ application in question being W.P.(C) No.5316 of 2023 claiming to be the ex-Secretary of the institution, which is contrary to the judgment of the Tribunal. Thus, she being a stranger, the writ petition could not have been entertained at her instance. Further, in an earlier writ application being OJC No. 880 of 1991 filed by one Satrughna Jena, husband of Shantilata Jena, a Division Bench of this Court categorically held in its judgment dated 02.02.1996 that the Secretary cannot challenge the report of the Director, since he is merely one of the members and not the governing body. Mr. Rath further argues that having failed in her attempt to be recognized as the representative of the governing body of the institution before the Tribunal, the writ petitioner mischievously submitted a representation before the Principal Secretary to the Government in such capacity and obtained an order from Page 5 of 12 this Court directing the Principal Secretary to dispose of her representation. 8. Per contra, Mr. S.K. Das would argue that the Review Petitioner was not a party to the writ application nor represents the valid governing body of the institution. Further, there is no error apparent on the face of the order passed by this Court in the writ application for which the same could be reviewed. Even otherwise this Court did not render any finding on merits of the case but passed an innocuous order directing disposal of the representation then pending before the Principal Secretary. Mr. Das further argues that there are two separate educational institutions namely, Shantilata Higher Secondary School and Shantilata Degree Mahavidyalaya. So either the governing body of the Higher Secondary School or Jatindra Das, who was opposite party No.5 in the writ application in question, could have sought for review of the order of this Court but not the Review Petitioner. Presently, there is no existence of Shantilata Mahavidyalaya in view of the judgment passed in W.A. No. 463 of 2013, whereby the judgment passed by the Single Judge in W.P.(C) No. 2463 of 2010 was set aside. Page 6 of 12 9. Mr. S.N. Pattnaik, learned Addl. Government Advocate would argue that the direction was issued by this Court in the writ application in question to decide the representation submitted by the petitioner. No direction whatsoever was issued to the Governing Body. Mr. Pattnaik further argues that even otherwise in the meantime, the representation has been disposed of and is the subject matter of challenge before this Court in W.P.(C) No.34074 of 2023 Under such circumstances, the review application has no legs to stand. 10. Having regard to the objection to maintainability of the review application it would be apposite to consider the said aspect at the outset as the same goes to the root of the matter. Review is governed by the provisions of Section 114 read with Order 47 Rule (1) of CPC. Both the provisions are quoted hereinbelow for immediate reference. “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 Court, or Page 7 of 12 (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. ORDER XLVII REVIEW 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. xx xx xx” 11. It is evident from a reading of these provisions that there are certain limitations for entertaining a review application, such as (i) the party filing the review application has discovered new and important matter or evidence, which was not within its knowledge even after exercise of due diligence (ii) such material could not be produced by it at the time when the decree was passed (iii) the order was made on Page 8 of 12 account of some mistake or error apparent on the face of record and (iv) for any other sufficient reason. 12. In the instant case, it has not been contended that there was any error apparent on the face of the record but it is claimed that the Review Petitioner is aggrieved by the disposal of the case as it was without proper notice to her. But then it is well settled that ordinarily right of review is available only to one who is party to a case. It must be kept in mind that the right of review is not akin to a right of appeal, where all questions decided are open to challenge. Reference in this regard may be had to the judgment of the Supreme Court in the case of K. Ajit Babu v. Union of India1. It has been argued that notwithstanding the fact that the Review Petitioner was not a party yet the order in question being to its detriment, the application would be maintainable being included within the expression “any other sufficient reason”. 13. As already noted, much has been argued with regard to the status of the parties and their right of approaching the authority as also this Court claiming to 1 (1997) 6 SCC 473 Page 9 of 12 represent the governing body of the institution. Reading of order dated 23.02.2023 passed by this Court in the writ application in question would reveal that this Court had not rendered any finding whatsoever with regard to either the status of the institution or the permissibility of the petitioner to file the writ application. Since it came to light that the petitioner had already approached the Principal Secretary to Government by submitting a representation, this Court only directed the Principal Secretary to dispose of the representation in accordance with law. This can never be construed to mean that this Court had acknowledged the status of the petitioner or decided her status vis-(cid:224)-vis the institution. In fact, this Court specifically made it clear that it had not expressed any opinion on the merits of the contentions raised in the writ application. Under such circumstances, this Court fails to understand as to how the Review Petitioner could be aggrieved by such innocuous direction to dispose of the representation. 14. Another aspect that needs consideration is, the writ petition was filed raising several contentions along with a specific prayer i.e., to give effect to the order dated Page 10 of 12 08.04.2010 passed in Misc. Case No. 2765 of 2010 arising out of W.P.(C) No. 3378 of 2010. In course of hearing, this Court found that the petitioner had already approached the competent authority being the Principal Secretary to Government by submitting representations, copies of which were enclosed as Annexure-7 series to the writ petition. It was under such circumstances that this Court directed the Principal Secretary to consider and dispose of the said representation. By no stretch of imagination can it be construed that this Court had granted the main relief claimed in the writ application. Obviously, it was for the Principal Secretary to deal with the matter in accordance with law. This Court only took cognizance of the inaction of the Principal Secretary in disposing of the representation. Therefore, it would be fallacious to argue that the order passed in the writ application adversely affected the Review Petitioner. 15. Even otherwise, it has been brought to the notice of this Court that during pendency of the review application, the direction of this Court passed in the earlier writ application has been complied with by the Principal Secretary Page 11 of 12 by disposing of the representation submitted by the writ petitioner. In fact, feeling aggrieved by the order so passed by the Principal Secretary, the writ petitioner has approached this Court in W.P.(C) No.34074 of 2023. Thus, nothing remains to be decided in the review application in view of such developments. 16. Thus, from a conspectus of analysis of facts and law as well as the developmental facts, this Court holds that the application for review is firstly not maintainable and even otherwise, no valid ground has been cited to persuade this Court to review its order dated 23.02.2023 passed in W.P.(C) No 5316 of 2023. 17. Resultantly, the Review Application is dismissed. .…..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 21st May, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-May-2024 19:08:26 Page 12 of 12