The applicants have filed this review application with a prayer to recall the order dated 24.12.2008 passed by this Court in Special Civil Application No.13774 of 2008.
2. In paras 2 and 3 of the application, the applicants have stated as under:
"2. The aforesaid Special Civil Application was listed for admission on 24/12/2008 and was disposed of [Coram : Hon'ble Justice A.S.Dave, J.] the copy of which case the copy annex and mark as ANNEXURE-A to this application. The applicants had requested the Hon'ble Court for time so as to enable them for making an effective and adequate arguments on subject matter of the petition through the senior counsel. The senior counsel Mr. Vasavada was argued the case for the applicants on 6/12/2008. However as the request of other side advocate Mr. Sanjanwala the matter was adjourned on next date of hearing i.e. 24/12/2008.
3. It is respectfully submitted that on that day the matter was called out and Mr. Advocate Yadav had argued although during the course of argument . Both Mr. Yadav and another junior advocate Miss. M.A.Macwan attached to Mr. Vasavada requested to Hon'ble Court to keep the matter in the second sitting since Mr. Vasavada was in on his legs busy on Hon'ble Division Bench. However, the Hon'ble court is pleased to proceed with the matter and after hearing Mr. Sanjanwala the advocate for the other side the matter was kept back. It is respectfully submit that however it appear that matter was dispose of without hearing Mr. Vasavada the Senior Counsel."
3. Shri H.D.Vasavada, learned advocate for the applicants, submits that in the order dated 24.02.2008 passed by this Court in Special Civil Application No.13774 of 2008 certain incorrect facts and findings are recorded, and therefore, the order dated 24.02.2008 needs to be reviewed.
4. Considering the overall facts and circumstances of the case and on perusal of the record, it clearly appears that learned advocate Shri J.S.Yadav, who was representing the applicants had fully argued the case and he was afforded due opportunity to represent the case. This fact was supported by the affidavit in reply filed by respondent Nos.2/1 to 2/8, which reads as under:
"1. I say that I am filing this affidavit-in-reply on behalf of myself and on behalf of respondent Nos.2/1, 2/3 to 2/8. I say that the prayers prayed for in the present Misc. Civil Application for setting aside the impugned judgment and order dated 24.12.2008 passed in Special Civil Application No.13774 of 2008 and for recalling the order is not maintainable in law and there are no sufficient grounds made out in the application for recalling the order which has been passed legally and after considering all the aspects. I say that the whole petition is based on false statements and is misconceived. I say that to my knowledge, since I was present in the Court, there was no request for time to enable Mr. Vasavada as Sr. Counsel to argue the matter and, therefore, request was made to adjourn the matter. I say that to the best of my knowledge, Mr. Yadav or Ms. Mcwan had not requested for keeping the matter in the second sitting. It is submitted that the said statement is not supported either by the affidavit of Mr. Yadav or Ms. Mcwan. It is an admitted fact that the Hon'ble court has sufficiently accommodated them and inspite of the same, it is too much to suggest that the matter has been disposed of without hearing Mr. Vasavada, Sr. Counsel. I say that the matter was kept back and it was even kept in the second sitting and but for some reason or the other, the matter was not proceeded with on such lame excuses. This fact is even borne out by the subsequent conduct of the applicant's advocate.
2. It is further submitted that when the present Misc. Civil Application is listed before the Hon'ble court on 29.12.2009, as the learned advocate for the applicants was absent, the matter was adjourned to 30.12.2009. A copy of the order dated 29.12.2009 passed by this Hon'ble court is annexed hereto and marked Annexure R-1.
3. Thereafter also on 30.12.2009, in view of the sick note of Advocate Mr. K.D.Vasavada for the applicants, the matter was adjourned to 15.01.2010 at 5.00 p.m. A copy of the said order dated 30.12.2009 is annexed hereto and marked Annexure R-2".
5. In the case of State of West Bengal & Ors. v. Kamal Sengupta & Anr. [(2008)8 SCC 612], the Apex Court after considering the law on exercise of power to review/recall their own decisions in the context of section 22(3)(f) of the Central Administrative Tribunal Act and also under Section 114 read with Section 47 of Code of Civil Procedure, and referring to the decisions of the Apex Court from paras 19 to 34, in para 35 following principles were culled out:
"35. The principles which can be culled out from the above noted judgments are:
(i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a Civil Court under Section 114 read with Order 47 Rule 1 of CPC.
(ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason" appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.
(iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordinate or larger bench of the Tribunal or of a superior Court.
(vii) While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier."
6. In view of the above case law, it is not in dispute that Shri H.D.Vasavada is not designated as a Senior Counsel and no request was made for time to enable Mr. H.D.Vasavada to address the court as Senior arguing counsel. Further, full opportunity was given to the learned advocate Mr. J.S.Yadav representing the case and no case is made out on the grounds stated in the review application. Considering the overall facts and circumstances of the case, I am not inclined to recall order dated 24.12.2008 passed by this Court in Special Civil Application No.13774 of 2008.
Accordingly, this application is rejected.
7. At this stage, learned advocate for the applicants states that because of pendency of this review application, he could not file appeal against the order sought to be reviewed and requested to make suitable observation in this regard. In my considered opinion, it will be appropriate for the applicants to urge such ground in the appeal that may be filed by them and no further observation is required to be made in this regard.
[Anant S. Dave, J.] *pvv Top