{"id":129065,"date":"2011-05-10T00:00:00","date_gmt":"2011-05-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kolli-vs-the-on-10-may-2011"},"modified":"2017-03-28T11:13:04","modified_gmt":"2017-03-28T05:43:04","slug":"kolli-vs-the-on-10-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kolli-vs-the-on-10-may-2011","title":{"rendered":"Kolli vs The on 10 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Kolli vs The on 10 May, 2011<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice K.M.Thaker,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nMCA\/3269\/2010\t 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n\n  MISC.CIVIL APPLICATION - FOR\nREVIEW No. 3269 of 2010\n \n\nIn\n\n\n \n\nLETTERS\nPATENT APPEAL No. 528 of 2010\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 3669 of 2010\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n \n\n  \nHONOURABLE\nMR.JUSTICE K.M.THAKER\n \n=========================================================\n\n \n\nKOLLI\nMADHAV SAIRAM REDDY - Applicant(s)\n \n\nVersus\n \n\nUNION\nOF INDIA & 2 - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nMUKUL SINHA for\nApplicant(s) : 1, \nMR PS CHAMPANERI for Opponent(s) : 1, \nNOTICE\nSERVED BY DS for Opponent(s) : 2 - 3. \nMRS VD NANAVATI for\nOpponent(s) : 2 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE K.M.THAKER\n\t\t\n\t\n\n \n\nDate\n: 10\/05\/2011 \n\n \n\n \nCAV\nJUDGMENT \n<\/pre>\n
         (Per:HONOURABLE
\nMR JUSTICE K.M.THAKER)<\/p>\n
1.\tThe
\napplication on hand has been titled and described by the applicant as
\n“application for review of the judgment and order dated
\n29.10.2010.”\n<\/p>\n
2.\tThe
\napplicant is the original petitioner and appellant and present
\nopponents are original respondents.\n<\/p>\n
3.\tThe
\napplicant is one of the students of opponent No.2 institute in
\npresent application.\n<\/p>\n
4.\tThe
\nrespondent No.2-institute had, on the charge that the petitioner was
\ninvolved in act of ragging, imposed certain penalty on the petitioner
\nand other five students, vide circular\/order dtd.1.2.2010 <\/p>\n
5.\tAggrieved
\nby the said order, the applicant herein had preferred a writ petition
\nbeing Special Civil Application No.3669 of 2010 which was rejected by
\nlearned single Judge vide order dated 25th March, 2010.
\nAgainst the said order rejecting the petition, the petitioner
\npreferred Letters Patent Appeal No.528 of 2010 which was decided by
\njudgment and order dated 29th October, 2010. As the title
\nof the application suggests, the applicant seeks review of the order.
\nHowever, the reliefs prayed for in the application read thus;\n<\/p>\n
“4.\n<\/p>\n
(A)\tThis Hon’ble Court may be pleased to admit and allow this
\napplication.\n<\/p>\n
      (B)\tThis
\nHon’ble Court may be pleased to quash and set aside the report of
\nILARC and further be pleased to set aside the impugned order of
\npunishment.\n<\/p>\n
      (C)\tThis
\nHon’ble Court may be pleased to direct the respondent Institute to
\nrestore the status ante and permit the applicant to take examinations
\nof the last semesters by way of special examinations such that the
\napplicant does not lose the two semesters of 2010.\n<\/p>\n
    (D)\tBe
\npleased to grant any other and further reliefs, as the nature and
\ncircumstances of the present case may require.”\n<\/p>\n
6.\tMr.Sinha,
\nlearned advocate has appeared on behalf of applicant. Mr.Shelta,
\nlearned senior counsel with Ms.Nanavati, learned advocate has
\nappeared for respondents Nos. 2 and 3.\n<\/p>\n
7.\tWe
\nhave heard learned counsel for contesting parties and considered the
\nsubmissions.\n<\/p>\n
8.\tMr.Sinha,
\nlearned advocate has submitted that the Court, by virtue of the
\njudgment and order dated 29.10.2010, prospectively (with effect from
\nthe date of the judgment) set aside the order dated 1st
\nFebruary, 2010 imposing penalty. However, since the penalty imposed
\non the petitioner by the respondents was for the period of two
\nsemesters, and even after the judgment in the appeal, the petitioner
\nwould not get the benefit and that, therefore, the directions by the
\nCourt may be appropriately reviewed. He, particularly, requested that
\nthe finding by the Court that entire punishment cannot be set aside
\nmay be reviewed. He reiterated the submissions (as recorded in para:4
\nof the judgment dated 29.10.2010) which were raised by the
\nappellant-petitioner against the institute’s order dated 1st
\nFebruary, 2010 and again submitted that the institute’s order
\ndeserves to be set aside.\n<\/p>\n
9.\tThe
\napplication is contested by the respondents and it is, inter alia,
\nsubmitted that the applicant is
\nnot entitled to relief as claimed for in the application. The
\nrespondents have also contended, relying on decision of the Apex
\nCourt (in the case of Aribam
\nTuleshwar Sharma vs. Aribam Pishak Sharma and Ors.)<\/a>
\nreported in AIR 1979 SC
\n1047, that
\nthe power of review can be exercised where some mistake or error
\napparent on the face of the record is found, whereas in present
\nmatter no such case is made out and that, therefore, the application
\nis not maintainable and does not deserve to be entertained.\n<\/p>\n
10.\tWe
\nhave noted the averments and contentions made by the applicant in the
\napplication.\n<\/p>\n
11.\tIf
\nthe averments made and contentions made by the applicant in the
\napplication memo and more particularly in paras: (1.f) to (1.n) are
\nexamined, it emerges that they are essentially, in the nature of
\nappeal against the judgment and do not make out ground for review of
\nthe judgment i.e. do not demonstrate any error apparent on the face
\nof record. The power of review cannot be exercised for entertaining
\nand considering the said contentions.  In this context reference may
\nbe made to the decision in the case of Gujarat University vs.
\nMiss Sonal P. Shah and ors.<\/a>, reported in 1982 (1) GLR 171
\nwherein the Full Bench, with regard to power of review observed
\nthus;\n<\/p>\n
” 33.\n<\/p>\n
   The review applications are quite incompetent as what is
\nsought by them is to practically set aside the order of the Division
\nBench and remodulate the reliefs so as to meet the alleged exigencies
\nof the situation, as according to the review petitioners the decision
\nhas an engulfing effect on the careers and asperations of the
\nstudents who are already promoted of course without examination. This
\nis nothing but an attempt to circumvent the path of approaching the
\nSupreme Court by way of an appeal for which leave is already granted.
\nThough the Plenary jurisdiction of this Court in review is not very
\nmuch circumscribed  there are definitive limits as held in Shivdeo
\nSingh’s case (AIR 1963 SC 1909). Of course, this judgment was
\nprior to the amendment of Civil Procedure Code by which under
\nsec.141, the provisions of Civil Procedure Code are not made
\napplicable to the proceedings under Article 226 of the Constitution
\nof India. The restrictions under Order 47 of the Civil Procedure Code
\nare not directly applicable, and this Court can exercise the powers
\non a wider canvass on any analogous ground; still the scope for
\nreview has it s own restrictions and may not be exercised in the
\nmanner in which the powers can be exercised in an appeal.\n<\/p>\n
  34.
\n     A review of a judgment is a serious step and reluctant resort to
\nit is proper only where a glaring omission or patent mistake or like
\ngrave error has crept in earlier by judicial fallibility. A mere
\nrepetition through different counsel of old and overruled arguments
\ncannot create a ground for ‘review’ (vide Krishna Iyer, J., AIR 1975
\nSC 1500-Sow. Chandra Kanta v. Sheik Habib). Hence, the<\/a>se
\nreview applications have no scope.”\n<\/p>\n
The
\nHon’ble Apex Court, in the decision in the case of 1980 (Supp) SCC
\n562 in the case of Col. Avtar Singh Sekhon vs. Union of
\nIndia and Ors.,<\/a> has observed, in para:12 that;\n<\/p>\n
“12.\tA
\nreview is not a routine procedure. Here we resolved to hear Shri
\nKapil at length to remove any feeling that the party has been hurt
\nwithout being heard. But we cannot review our earlier order unless
\nsatisfied that material error, manifest on the face of the order,
\nundermines its soundness or results in miscarriage of justice. In Sow
\nChandra Kante v. Sheikh Habib<\/a> this Court observed : (SCC p.675,
\npara1) \t<\/p>\n
\tA
\nreview of a judgment is a serious step and reluctant resort to it is
\nproper only where a glaring omission or patent mistake or like grave
\nerror has crept in earlier by judicial fallibility….. . The present
\nstage is not a virgin ground but review of an earlier order which has
\nthe normal feature of finality.”\n<\/p>\n
Subsequently, while referring to the decision in the case of Col.
\nAvtar Singh Sekhon (supra), the Hon’ble Apex Court in the
\ncase between Promoters and Builders Association of Pune vs.
\nPune Municipal Corporation and ors.<\/a> reported in
\n(2007) 6 SCC 143, wherein, in para:13, the Hon’ble Court
\nobserved thus;\n<\/p>\n
“13.\n<\/p>\n
 As was observed by this Court in Col. Avtar Singh Sekhon v.
\nUnion of India<\/a> review is not a routine procedure. A review of an
\nearlier order is not permissible unless the Court is satisfied that
\nmaterial error, manifest on the face of the order undermines its
\nsoundness or results in miscarriage of justice. A review of judgment
\nin a case is a serious step and reluctant resort to it is proper only
\nwhere a glaring omission or patent mistake or like grave error has
\ncrept in earlier by judicial fallibility…….. The stage of review
\nis not a finality. This view has been reiterated in Devender
\nPal Singh v State, NCT of Delhi (SCC para 16). This being the
\nlegal position, there is absolutely no ground for review of the
\njudgment and order dated 5-5-2004. The review petitions are,
\ntherefore, liable to be dismissed.”\n<\/p>\n
12.\tSo
\nfar as the issue about keeping the term is concerned, it is necessary
\nto note that at the outset of the hearing of the appeal, it was
\ninquired from the respondent institute about possibility as to
\nwhether appellant would be in position to keep the term. In response
\nto the said query made at the outset of the hearing, an affidavit was
\nfiled on behalf of the respondent institute wherein it was clarified
\nthat in view of the regulations and the applicable time frame such
\nalternative was not feasible. The aforesaid aspect would be clear
\nfrom para:8 of the judgment wherein response given by the respondent
\ninstitute has been taken into account. It has been observed in para:8
\nof the judgment that;\n<\/p>\n
” 8.\tAt
\nthis stage, we should refer to the relevant averments in the further
\naffidavit by Dr. G.J.Joshi, Assistant Professor. The said affidavit
\nhas been made pursuant to the suggestion made to the respondent
\nuniversity to reconsider the matter with regard to the penalty of
\nrustication of the petitioner for two semesters. It comes out from
\nthe said affidavit that the
\nmandatory
\nrequirement
\nregarding continuous evaluation of appellant’s academic performance,
\nhas not been undertaken and it would not be possible to allow the
\nappellant to keep the term at this stage. In the affidavit, it has,
\ninter alia, been stated thus:-\n<\/p>\n
\t\t\t\t“3.\txxx\txxx\txxx<\/p>\n
3.1\t The
\npetitioner and other alike students have not completed required
\ncourse work\/labouratory work during the remaining period of the even
\n(spring) semester 2009-2010. they are required to undergo work for 13
\nweeks out of 17 weeks. They have not undergone  continuous
\nevaluation of their academic performance for the semester as a
\n mandatory requirement.\n<\/p>\n
4.\tThe
\npetitioner  will
\nbe allowed registration in even semester in December, 2010
\nso that he can fulfill minimum academic requirement for his studies.
\nThe  other
\npunishment i.e.
\nat Item Nos.2 to 5 awarded in category A shall be reviewed by the
\nInstitute  sympathetically
\nafter his joining for the even semester of the academic year
\n2010-2011.”\n<\/p>\n
  (emphasis supplied)”\n<\/p>\n
13.\tSo
\nfar as the issue regarding the proceedings and report of ILARC is
\nconcerned, it is necessary to note that in the application memo, the
\napplicant-appellant has averred that after the order rendered by the
\nlearned single Judge (which was subject matter of the appeal) the
\npresent applicant-appellant had preferred appeal before the Chairman
\nof the respondent Institute.\n<\/p>\n
14.\tNow
\nit is pertinent to also note that the said factual aspect was not
\nmade available before the Court and was not stated when the appeal
\nwas heard and came to be decided by the judgment dated 29.10.2010.\n<\/p>\n
15.\tNow,
\nin the present application, the applicant-appellant has come out
\nstating that after the judgment of the learned Single Judge he had
\nalso preferred an appeal before the Chairman of the respondent
\ninstitute. It is also now averred by the applicant-appellant (which
\nwas not stated and placed before the Court at the time of hearing of
\nthe appeal and thereafter until the date of decision) that the appeal
\nwas taken up for hearing by the competent authority. The details
\nmentioned by the applicant-appellant in para: (1.n) (of the present
\napplication memo) were also not before the Court at the time of
\nhearing of the appeal or thereafter until the date of the judgment.
\nIt is now admitted by the appellant that, “since the appeal was
\npending before the Chairman and since no response was given, the
\napplicant had not submitted the copy of the appeal before this Court
\nand is therefore enclosing the same in this review application.
\n……”. In the present application, applicant has come out
\nwith the factual aspects narrated in para:(1.n) of the application
\nwhereas the said aspects ought to have been stated during the hearing
\nof the appeal.\n<\/p>\n
\tThe
\napplicant-appellant prosecuted the said remedy simultaneously, and
\nthat too without disclosing in the Letters Patent Appeal or during
\nthe hearing of the said Letters Patent Appeal before us.\n<\/p>\n
16.\tBe
\nthat as it may, the said aspects are, now, at this stage, not
\nrelevant after the judgment in the appeal which is already rendered.\n<\/p>\n
17.\tSo
\nfar as the proceedings before the and the report of the ILARC are
\nconcerned, the Court had, at that stage, noted the relevant factual
\naspects, as observed in para:10.7(a) to (h) of the judgment and
\nhaving regard to the said factual aspects, the Court had taken into
\nconsideration the observations by the Apex Court in the case of Ajit
\nKumar Nag vs General Manager (PJ)., Indian Oil Corporation Ltd.,
\nHaldia and Ors.,<\/a> [reported
\nin (2005) 7 SCC,
\np.764] and
\nthen observed in para: 10.8 that;\n<\/p>\n
” 10.8\tWhen
\nthe credence and credibility of the committee\/members is not
\nimpeached and when the conclusions of the ILARC also are not assailed
\non the ground that they are without any supporting evidence and\/or
\ncontrary to evidence and the material\/evidence on record before the
\nILARC
\nalso is also not impeached, when any allegation of bias and
\nvictimization against the committee or the students is not made, then
\nin view of the aforesaid aspects and in light of the observations of
\nthe Hon’ble Apex Court, we are not inclined to upturn the ILARC’s
\nunanimous recommendation and\/or to invalidate the entire hearing –
\nproceedings by the ILARC against the petitioner (who is found to be
\ninvolved in serious infraction of conduct viz. act of ragging) on the
\nground that the composition of ILARC did not conform the
\nrecommendation of the Raghavan Committee and Apex Court’s direction
\nor the UGC regulations. We order accordingly.”\n<\/p>\n
18.
\n   Having regard to the said clarification made by the respondent
\ninstitute at the early stage that it was considered appropriate, in
\nthe facts of the case, to set aside the order dated 1st
\nFebruary, 2010 imposing the penalty prospectively with effect from
\nthe date of the judgment.\n<\/p>\n
19.\tIn
\nthe facts of the case and in light of the above noted clarification
\nby the respondent institute (which was made at the outset in response
\nto Court’s suggestion) any other direction would have resulted into
\nthe direction to respondent institute to ignore or breach its
\nregulations regarding the requirement to be fulfilled by the students
\nfor keeping semester\/term, which the Court could not have passed
\nwhile exercising jurisdiction under Article 226 of the Constitution
\nof India.\n<\/p>\n
20.\tOn
\nthis ground also, we do not think that the applicant-appellant has
\nmade out any ground for review of the order.\n<\/p>\n
20.1\tThe
\napplicant has now, in present application, raised contention of such
\nnature which can not be considered and which would not fall within
\nthe purview of “detection of some mistake or error apparent on
\nface of record” but are such that they relate to the merits of
\nthe case and, as observed by the Hon’ble Apex Court, would be “in
\nthe province of Court of Appeal”. We may here refer to the
\nobservation by the Apex Court in para:3 of the decision in the case
\nof  Aribam Tuleshwar Sharma (supra);\n<\/p>\n
” ….\n<\/p>\n
It is true as observed by this Court in Shivdeo Singh v. State of
\nPunjab (AIR<\/a> 1963 SC 1909) there is nothing in Article 226 of the
\nConstitution to preclude a High Court from exercising the power of
\nreview which inheres in every Court of plenary jurisdiction to
\nprevent miscarriage of justice or to correct grave and palpable
\nerrors committed by it. But, there are definitive limits to the
\nexercise of the power of review.  The power of review may be
\nexercised on the discovery of new and important matter or evidence
\nwhich, after the exercise of due diligence was not within the
\nknowledge of the person seeking the review or could not be produced
\nby him at the time when the order was made; it may be exercised where
\nsome mistake or error apparent on the face of the record is found; it
\nmay also be exercised on any analogous ground. But, it may not be
\nexercised on the ground that the decision was erroneous on merits.
\nThat  would be the province of a Court of appeal.”\n<\/p>\n
21.\tIn
\nthe affidavit filed by the respondent institute in response to
\npresent application, the respondent institute has also averred that;\n<\/p>\n
” 7.4
\n  The semester examination for the academic year 2009-2010 was held
\non 8.5.2010.\u00a0The supplementary examination is for those students
\nwho have registered for the corresponding semester, completed
\nmandatory academic requirement of course work and laboratory work but
\nhave obtained either II, EE or FF grade at the end of the semester,
\nafter the end of semester examination. According to the regulation
\nfor B.Tech. Programme the petitioner and other students cannot appear
\nfor supplementary examination for the even semester, 2010.”\n<\/p>\n
“7.5
\n     The petitioner will be allowed registration in even
\nsemester in December, 2010 so that he can fulfill minimum academic
\nrequirement for his studies. The other punishment i.e. at Item Nos.2
\nto 5 awarded in category A shall be reviewed by the Institute
\nsympathetically after his joining for the even semester of the
\nacademic year 2010-2011. Annexed hereto and marked as  ANNEXURE-I<\/p>\n
 is a copy of the minutes of the meeting of the Committee. All the
\nstudents including petitioner are intimated for registration.
\n(ANNEXURE-II).\n<\/p>\n
I
\nalso produce herewith an extract of the Regulation governing course
\nof study and examination for the B.Tech. students, is annexed hereto
\nand marked as  ANNEXURE-III\u00a0to
\nthis affidavit.”\n<\/p>\n
22.\tIt
\nwas upon having regard to the response given by the Registrar in his
\naffidavit (as recorded in para:8 of the order dtd.29.10.2010) that
\nthe direction in the judgment dated 29.10.2010 came to be passed.
\nNow, having regard to the stipulations made by the respondent
\ninstitute in aforesaid para:7.5 of the affidavit dtd.10th
\nJanuary, 2011, all that can be observed and clarified, is that the
\nincident and the order dated 1st
\nFebruary, 2010 may not be cited by the respondent institute in the
\nresults or the record of the applicant-appellant and\/or in the
\ncertificates, if any, which may be issued to the applicant-appellant
\nso that applicant-appellant may not have any difficulty or may not
\nhave to face any complications in his future career including further
\nstudies.\n<\/p>\n
23.\tAs
\nnoted above, the applicant has failed to make out any case
\ndemonstrating any apparent error on the face of the record. The
\nsubmissions made in application, which are in the nature of
\ncontentions on merits, cannot be raised and\/or entertained in
\napplication for review.\n<\/p>\n
\tTherefore,
\non overall consideration of the application, the application fails.
\nAny case for review is not made out, hence the application is
\nrejected.\n<\/p>\n
\t\t\t\t\t\t\t[S.J.MUKHOPADHAYA,
\nCJ.]<\/p>\n
\t\t\t\t\t\t\t[K.M.THAKER,
\nJ.]<\/p>\n
Amit<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Kolli vs The on 10 May, 2011 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice K.M.Thaker,&Nbsp; Gujarat High Court Case Information System Print MCA\/3269\/2010 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION – FOR REVIEW No. 3269 of 2010 In LETTERS PATENT APPEAL No. 528 of 2010 In SPECIAL CIVIL APPLICATION No. 3669 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-129065","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nKolli vs The on 10 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kolli-vs-the-on-10-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kolli vs The on 10 May, 2011 - 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