^,,,|.o9 fflGH COURT OF CHHATTISGARH AT BILASPUR APPLICANTS NON-APPLICANTS REVIEW PETITION No. 53 of2008 : 1. Makhanlal S/o Rajhans, Aged about 47 years.l 2. Ajuram S/o Jagdish, Aged about 43 years. 3. Mohandas S/o Prem Aged about 42 years. 4. Chainlal Mahar S/o Nandiya, Aged about 41 years. All resident of Village Nandiya, Tehsil Dongargaon, Distt. Rajnandgaon (C.G.) VERSUS : 1. Shri Mangal Das Dharmadhikar Sadguru Kabr, Saheb Samiti, Nandiya, Tehsil - Dongargaon Distt. Rajnandgaon (C.G.) 2. The Collector, Rajnandgaon, Distt. Rajnandgaon (C.G.) 3. Tehsildar, Dongargaon District Rajnandgaon (C.G.) APPLICATION FOR REVIEWING/RECALLDMG OF ORDER DTD. 9.4.2007 PASSED DSTWRIT PETITION N0. 2018/2007. (BY CIRCULATION DST CHAMBER) SB: Hon'ble Shri Satish K. Aenihotri, J. ORDER (Passed on l4ttlday ofJanuary, 2009) The matter is taken up for consideration in the chamber under provisions of Sub Rule 2 of Rule 90 under Chapter VI of the High Court of CKhattisgarh Rules, 2007. I.A. No. 1. This is an application for condonation of delay in filing review petition. Sufficient cause has been shown. Delay is condoned. The applicants/review petitioners seek review of fhe order dated 9 April, 2007 passed by this Court in W.P.(C) 2018 of 2007 (Makhanlal & Others v. Shri Mangal Das and others), whereby the petition was dismissed. The applicants seek review on the ground that discretionary jurisdiction was exereised while rejecting the petition filed under Article 226 of the Constitution of India. The Court can not exercise discretionary jurisdiction in a petition filed imder Article 226 ofthe Constitution oflndia, as this jurisdiction is originaljurisdiction. It is not the case ofthe applicants that there is any manifest error on the face of the record or a new facts which cannot produced earlier despite diligent efforts made by the applicants are available or for any reason as prescribed under provisions ofOrder 47 Rule 1 ofthe Code ofCivil Procedure, 1908. 7. Principle of law is well settled by several judicial pronouncements of the Hon'ble Supreme Court in the case of Smt. Meera Bhanjan Vs. Smt. Nirmala Kumar Choudhary , Lily Thomas, etc. Vs. Union of India and others , Ajit Kumar Rath Vs. State ofOrissa and others , Government ofT.N. and others Vs. M.Ananchu Asari and others . The Hon'ble Supreme Coiirt, in M/s. Titagarh Paper Mills Ltd. v. Orissa State Electricity Board and another , it was observed that the High Coiirt exercises its discretionary jurisdiction against entertainmg a writ petition on merits in the facts ofthe case. In Whirlpool Corporation v. Registrar ofTrade Marks, Mumbai and others , the Hon'ble Supreme Court observed as under: "15. Under Article 226 offhe Constitution, the High Court, having regard to the facts ofthe case, has a discretion to entertain or not to entertain a writ petition." The said observation was reiterated in Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. and others , as under: "7. .suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an altemative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the altemative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly withoutjurisdiction or the vires ofan Act is challenged....." 8. Further observed with approval in ABL International Limited and another v. Export Credit Guarantee Corporation oflndia and others , as under: "28. However, while entertainmg an objection as to the maintainability of a writ petition imder Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to ' AIR 1995 SC 455 2AIR2000SC1650 3AIR2000SC85 4 (2005) 2 SCC 332 5 (1975) 2 SCC 436 '(1998)8SCC1 7 (2003) 2 SCC 107 ' (2004) 3 SCC 553 -s-'s.s'1^,. i i8^i, 1 I, »"~'""t J the facts ofthe case, has a discretion to entertain or not to entei a writ petition. The Court has imposed upon itself certain restrictions in the exercise ofthis power. (See Whirlpool Corpn. v. Registrar of Trade Marks.) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate ofArticle 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the saidjurisdiction." 9. In Sanjana M. Wig (Ms) v. Hindwtan Petroleum Corpn. Ltd. , the Hon'ble Supreme Court further observed as under: "16. ......However, there cannot be any doubt whatsoever that the question as to when such a discretipnary jurisdiction is to be exercised or refused to be exercised by the High Court has to be determined having regard to the facts and circumstances of each case wherefor, no hard-and-fast rule can be laid down." 10. So far as discretionary jurisdiction ofthe High Court under Article 226 ofthe Constitution of India is concemed, it is well settled principle that the Court, while exercising its jurisdiction under Article 226 of the Constitution of India has to look into the deficiency in the decision making process, not the decision. In Ram Saran v. IG ofPolice, CRPF and others , while examining decision of the administo-ator, Inspector General ofPolice, it was observed as under: "8. The courts should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance oflogic or moral standards. In view ofwhat has been stated in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., commonly known as the Wednesbury case the court would not go into the correctness ofthe choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision making process and not the decision." 11. On pemsal ofthe above cited decisions, it is trite that the jurisdiction ofthe High Court under Article 226 ofthe Constitution is discretionary and depends on the facts situation of the case. The submission of leamed counsel for the applicants that High Court cannot exercise discretionary jurisdiction is frivolous and untenable. 9 (2005) 8 SCC 242 10 (2006) 2 SCC 541 n> \"'^t-^'/ i->%^-^~ 12. In the matter of Kerla State Electricity Board v. Hitech ESectroihsfmics & Hydrpower Ltd. andothers , the Supreme Court observed as under: "10. This Court has referred to several documents on record and also considered the documentary evidence brought on record. This Court on a consideration of the evidence on record concluded that the respondent had been denied power supply by the Board in appropriate time which prevented the respondent from starting the commereial production by 31-12-1996. This is a finding of fact recorded by this Court on the basis of appreciation of evidence produced before the Court. In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even ifthat is possible. Leamed counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are a&aid such a submission carmot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise." Applying the well settled principles of review to the facts of the case, the applicants are seeking opportunity to argue the entire case a&esh under the garb ofreview petition, which is not permissible and tenable in law. Thus, the review petition is devoid ofmerit and deserves to be and is accordingly dismissed. SatishK.Agnihotri Judge 13, 14.