Dismissed

Bhagwan Dhankani v. Jodhpur Development Autho., and Ors.

Rajasthan HC13 Aug 2021WRW/169/2019

Case brief

AI extract

What is this about?

This order by a two-judge bench dismissed multiple connected review petitions filed under Article 226 of the Constitution. The review petitioners sought to review a 2015 judgment dismissing their writ petitions for lack of maintainability based on lack of alternative remedy. The High Court held that the plea did not constitute an error apparent on the face of the record.

What did the court decide?

The review petitions were dismissed with no error apparent on the face of the record found.

Bhagwan Dhankani Vs Jodhpur Development Autho., and Ors. — Consumer Protection | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

¶2

JODHPUR

¶3

D.B. Review Petition (Writ) No. 169/2019

¶4

Bhagwan Dhankani s/o Shri Kallu Mal Dhankani, aged about 45 years, r/o 11^th ‘C’ Road, Jodhpur.

¶5

----Petitioners

¶6

Versus

¶7

Jodhpur Development Authority, Jodhpur.

¶8

State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶9

District Consumer Disputes Redressal Forum, Jodhpur.

¶10

The Divisional Commissioner, Jodhpur.

¶11

----Respondents

¶12

Connected With

¶13

D.B. Review Petition (Writ) No. 105/2016

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Kushi Ram s/o Shri Chandi Ram, aged about 65 years, r/o Sector -7, Basni, Jodhpur.

¶15

----Petitioner

¶16

Versus

¶17

Jodhpur Development Authority, Jodhpur.

¶18

State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶19

District Consumer Disputes Redressal Forum, Jodhpur.

¶20

The Divisional Commissioner, Jodhpur.

¶21

----Respondent

¶22

D.B. Review Petition (Writ) No. 205/2017

¶23

Smt. Sadhana Wife Of Shri Ramesh Kachhwaha, Resident Of Kachhwaha Bhawan, 6, Mohan Vilas, Jalam Singh Ka Hatha, Paota "B" Road, Jodhpur.

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----Petitioner

¶25

Versus

¶26

Jodhpur Development Authority, Jodhpur.

¶27

State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶28

(2 of 7)

¶29

[WRW-169/2019]

¶30

District Consumer Disputes Redressal Forum, Jodhpur

¶31

The Divisional Commissioner, Jodhpur.

¶32

----Respondents

¶33

D.B. Review Petition (Writ) No. 206/2017

¶34

Smt. Indra Mathur Wife Of Shri Vijay Chandra Mathur, Resident Of 247-A, Jwala Vihar, Chopasni Road, Jodhpur.

¶35

----Petitioner

¶36

Versus

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Jodhpur Development Authority, Jodhpur.

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State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶39

District Consumer Disputes Redressal Forum, Jodhpur.

¶40

The Divisional Commissioner, Jodhpur.

¶41

----Respondents

¶42

D.B. Review Petition (Writ) No. 60/2018

¶43

Vinod Kumar Of Shri Gurumukh Das, Resident Of 11Th C Road, Sardarpura, Jodhpur

¶44

----Petitioner

¶45

Versus

¶46

Jodhpur Development Authority, Jodhpur

¶47

State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶48

District Consumer Disputes Redressal Forum, Jodhpur

¶49

The Divisional Commissioner, Jodhpur

¶50

----Respondents

¶51

D.B. Review Petition (Writ) No. 62/2018

¶52

Smt. Pushpa Rajpurohit Wife Of Shri Vikram Singh, Resident Of G-125, Shastri Nagar, Jodhpur.

¶53

----Petitioner

¶54

Versus

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Jodhpur Development Authority, Jodhpur.

¶56

State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶57

District Consumer Disputes Redressal Forum, Jodhpur.

¶58

The Divisional Commissioner, Jodhpur.

----Respondents

(3 of 7)

[WRW-169/2019]

D.B. Review Petition (Writ) No. 63/2018

¶63

Dr. Rajendra Vaishnav Son Of Shri Bheru Das, Resident Of 1St "B" Road, Sardarpura, Jodhpur.

¶64

----Petitioner

¶65

Versus

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Jodhpur Development Authority, Jodhpur.

¶67

State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶68

District Consumer Disputes Redressal Forum, Jodhpur.

¶69

The Divisional Commissioner, Jodhpur.

¶70

D.B. Review Petition (Writ) No. 191/2019

¶71

Girish Sabarwal s/o Shri Joginder Nath, aged about 52 years r/o Sudesh Bhawan, 1^st C Road, Jodhpur.

¶72

----Petitioner

¶73

Versus

¶74

Jodhpur Development Authority, Jodhpur.

¶75

State Consumer Disputes Redressal Forum, Circuit Bench, Jodhpur.

¶76

District Consumer Disputes Redressal Forum, Jodhpur.

¶77

The Divisional Commissioner, Jodhpur.

¶78

----Respondents

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For Petitioner(s) : Mr. Himanshu Maheshwari. Mr. Dinesh Kumar Sharma. For Respondent(s) :

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HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE ARUN BHANSALI Order

¶81

(PER HON’BLE ARUN BHANSALI, J.)

¶82

13/08/2021

¶83

These review petitions have been filed seeking review of the judgment dated 7/12/2015 passed by the Division Bench of this Court.

¶84

(4 of 7)

¶85

[WRW-169/2019]

¶86

Office has pointed out several defects including the defect that review petitions are barred by limitation. Ignoring the defects pointed out by the office, learned counsel for the applicants was heard.

¶87

Learned counsel for the applicants pointed out that the Division Bench in the judgment dated 7/12/2015 dealt with the issue of maintainability of writ petition by indicating that the objection was not raised before the learned Single Judge and relying on the judgment in Hindustan Petroleum Corporation Limited vs. Super Highway Services : (2010) 3 SCC 321 , the submission was rejected.

¶88

It is submitted that in fact an objection was raised before the learned Single Judge in reply to one of the writ petition and that as the writ petitions were dismissed by the learned Single Judge, the objection was not noted in the order impugned, which aspect cannot prejudice the applicants’ case. It is submitted that the said aspect has resulted in an error apparent on the face of the record and, therefore, the judgment impugned deserves to be reviewed.

¶89

It was further submitted that in view of the judgment in Mehra Bal Chikitsalaya Evam Navjat Shishu I.C.U. vs. Manoj Upadhaya & Ors. : Special Leave to Appeal (Civil) No. 4127/2021 decided on 12/3/2021 by Hon’ble Supreme Court also the writ petitions were not maintainable.

¶90

We have considered the submissions made by learned counsel for the applicants and have perused the material available on record.

¶91

The judgment dated 7/12/2015 was passed by this Court in intra court appeals filed by the Jodhpur Development Authority

¶92

(5 of 7)

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[WRW-169/2019]

¶94

(‘JDA’) aggrieved against the judgment dated 11/10/2011 passed by the learned Single Judge, whereby, the writ petitions filed by JDA seeking quashing of the judgment and order dated 26/10/2009 passed by the District Consumer Disputes Redressal Forum, Jodhpur and order dated 6/1/2010 passed by the State Consumer Disputes Redressal Commission, Jaipur were dismissed and certain directions were issued.

¶95

The learned Single Judge had dismissed the writ petitions filed by the JDA and had issued directions, which were noticed in the judgment along with the fact that certain conditions of allotment were also held as against the law, non est , nonenforceable, against the public policy and ultra vires despite the applicants herein being well aware of the conditions and acting on the said conditions.

¶96

A look at the judgment passed by the learned Single Judge, which runs into about 53 pages, reveals that the objection about availability of alternative remedy was nowhere even noticed by the learned Single Judge while dismissing the writ petitions filed by the JDA.

¶97

The submission made with reference to objection having been raised in the reply to a writ petition is of no consequence inasmuch as merely raising objection in pleadings and not arguing/pressing it before the Court cannot be termed as, raising of the issue before the Court, as it is not expected of the Court to deal with the issues, though raised in the pleadings but not pressed during the course of arguments. The fact as to whether the issue was raised/pressed can only be reflected through the judgment and not otherwise.

¶98

(6 of 7)

¶99

[WRW-169/2019]

¶100

The Hon’ble Supreme Court in Daman Singh & Ors. vs. State

¶101

of Punjab : (1985) 2 SCC 670 inter alia observed as under:

¶102

“The final submission of Shri Ramamurthi was that several other question were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc. but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not?”

¶103

(emphasis supplied)

¶104

In view of the above, the plea, sought to be raised in the present review petitions based on the submission made in the reply to the writ petition but no reference is found in the judgment of the learned Single Judge, cannot be countenanced and, therefore, qua the following observations made by this Court, it cannot be said that there is an error apparent on the face of the record:

¶105

“The submission made by learned counsel for the respondents that against the appellant order passed by the State Commission, the appellant had alternative remedy of revision before the National Commission and as such, the writ petitions filed by them itself were not maintainable, has apparently, no substance in so far as the present appeal is concerned, inasmuch as, no such objection was raised before the learned Single Judge.

¶106

The Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. v. Super Highway Services : (2010) 3 SCC 321 has held that unless the objection of alternative remedy is raised in the first instance, the exercise of writ jurisdiction cannot be questioned thereafter and therefore, the submission has no substance and the same is, therefore, rejected.”

¶107

(7 of 7) [WRW-169/2019]

¶108

So far as the reliance placed on the order in the case of Mehra Bal Chikitsalaya (supra) is concerned, the same is based on the judgment in Cicily Kallarackal vs. Vehicle Factory : (2012) 8 SCC 524 , wherein, the Hon’ble Supreme Court observed that the orders of National Consumer Disputes Redressal Commission were incapable of being questioned in the writ petition, as a statutory appeal in terms of Section 27-A(1)(c) of the Consumer Protection Act lies to the Supreme Court.

¶109

The present is a case, wherein, challenge on the ground of lack of jurisdiction was laid to the orders passed by the District Consumer Disputes Redressal Forum and that of State Consumer Disputes Redressal Commission and not that of National Commission and as such the said judgment even otherwise has no application to the facts of the present case.

¶110

No other point was argued.

¶111

In view of the above discussion, it cannot be said that there is an error apparent on the face of the record so as to review the order dated 7/12/2015 passed by this Court.

¶112

Consequently, the review petitions are dismissed.

¶113

(ARUN BHANSALI),J (SANGEET LODHA),J

¶114

19 to 26/baweja/-

Bhagwan Dhankani v. Jodhpur Development Autho., and Ors.

Case brief

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Bhagwan Dhankani v. Jodhpur Development Autho., and Ors.

Case brief

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