Ranjita Nayak v. Sub-Collector-cum-Chairman, Selection

CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 23.07.2024 Order No. 02. MURAHARI SRI RAMAN, J.— This matter is taken up through Hybrid Mode.

2. Beseeching review of the judgment dated 27.03.2024 passed in W.A. No.1808 of 2023, whereby the order dated 07.07.2023 passed by the learned Single Judge in W.P.(C) No.11408 of 2017 has been confirmed, the petitioner, invoking provisions of Section 114 read with Order 47, Rules 1 and 5 of the Code of Civil Procedure, 1908 and Rules 10 and 11 of Chapter-VIII of the High Court of Odisha Rules, 1948, made the following prayer(s):- “It is therefore, humbly prayed the review petition be admitted on appreciation of the grounds taken in the review petition and after hearing both the parties review petition may be allowed by directing opp. Party no.1 for a fresh enquiry without influence by any order. And may pass such other order/orders as deemed just and proper, And for which act of kindness, the petitioner shall as in duty bound ever pray.”

3. The sole ground for review as is found mentioned at paragraph 1 of the petition is that non-consideration of vital material on record and bona fide omission resulting in miscarriage of justice meted out to the petitioner.

4. It is alleged that Additional District Magistrate, Nayagaryh, the Appellate Authority, who disposed of the appeal in pursuance of order dated 02.08.2016 passed in W.P.(C) No.5963 of 2012 of this Court, has failed to appreciate the correct position with respect to residential status of the petitioner.

5. It is submitted that the Additional District Magistrate in his appellate order dated 11.01.2017 (Annexure-6) had jumped to conclude basing on the residence of the Father-in-law of the petitioner, which is situated at Nityananda Sahi, but he avoided to take into consideration that the petitioner is not residing there permanently, but in fact, she has been residing in the house situated at service area (College Road).

6. In course of hearing, Mr. Bhabani Sankar Tripathy, learned counsel for the petitioner submitted that he could not place on record the order dated 02.08.2016 passed in W.P.(C) No.5963 of 2012, which was filed by the opposite party no.6, wherein this Court made certain observation with regard to the residence of the petitioner herein and, accordingly, remanded the matter to the Additional District Magistrate, Nayagarh to pass fresh order after taking into consideration the facts stated in the said order.

7. Since the said order could not be placed before the learned Single Judge, in course of hearing of W.P.(C) No.11408 of 2017 on an erroneous approach, the matter was disposed of on 07.07.2023 .

8. Perused the appellate order dated 11.01.2017, which appears to have been passed by the Additional District Magistrate (Annexure-6) after order of remit dated 02.08.2016 in W.P.(C) No.5963 of 2012 by this Court, wherein the Appellate Authority, as a matter of fact, recorded the following: “Having heard both the parties to the dispute and going through the evidence on record, I am of the opinion that the college road extends from Raghunath Smabaya Mahavidyalaya, Odagaon to Police Station Odagaon. The residences located on the either side of the aforesaid road are called the residence of college road. Different Sahis have originated from college road and extended in different direction away from the college road. It is seen that in between Gouda Sahi and Nityananda Sahi there is another Sahi called Gupta Matha Sahi. So Nityananda Sahi is neither close to Gouda Sahi nor to college road. The residence of Respondent no.5 is in Nityananda Sahi which does not come under the service area of Dalak “Gha” AWC. Relying on the report of Tahasildar, Odagaon addressed to the Sub-collector, Nayagarh one can clearly come to a conclusion that the Respondent No.5 (petitioner herein) is not the residence of Dalak “Gha” AWC area”. 9. After remand, the aforesaid observation of the Appellate Authority being essentially factual finding based on report submitted by the Tahasildar, Odagaon. The learned Single Judge, having exercised power of judicial review under Article 226/227 of the Constitution of India, was justified in not interfering with such factual aspect as set out by the Appellate Authority.

10. In the writ appeal, being W.A. No.1808 of 2023, the material available on record was discussed threadbare and, consequently, the writ appeal filed at the behest of the review petitioner was dismissed upholding the order dated 07.07.2023 passed in W.P.(C) No.11408 of 2017.

11. It is the contention of the learned counsel for the petitioner that had the earlier order dated 02.08.2016 passed in W.P.(C) No.5963 of 2012 been placed on record for perusal of the learned Single Judge in course of hearing, the judgment would have been otherwise. The finding as has already been recorded in the said order, being in favour of the writ petitioner, the Appellate Authority should have decided the merit of the matter based on such observation. Such a stance is only to be repelled, inasmuch as mere non-submission of the earlier order does not call for review of judgment rendered in writ appeal.

12. No authority is required to support the proposition that review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. It is trite that the power of review is exercised on the discovery of new and important matter 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. But, at no stage was a plea taken by the appellant with regard to the discovery of new documents which could not have been produced by her after undertaking due diligence before the order dated 07.07.2023 came to be passed by the learned Single Judge in W.P.(C) No.11408 of

13. In this connection, after review of many judgments rendered by the Hon’ble Supreme Court in the case of S. Madhusudhan Reddy Vrs. V. Narayana Reddy, (2022) 11 SCR 42 it has been held as follows:- “***Under the rules, the respondents were not required to produce “genuine” documents but new documents/evidence that was not within their knowledge and could not have been so even after exercise of due diligence, which could have turned the tables in their favour. Nor has any error apparent on the face of the record been brought out by them.”

14. In the present case, the order dated 02.08.2016 passed in W.P.(C) No.5963 of 2012 filed by the opposite party No.6 was within the knowledge of the petitioner. This Court, hence, does not find good ground to show indulgence in this review petition.

15. In such view of the matter, this Court does not find any merit in this case and, accordingly, this review petition stands dismissed. (Chakradhari Sharan Singh) Chief Justice Signature Not Verified Laxmikant Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jul-2024 18:29:32 (M.S. Raman) Judge