- (1.) All these matters have been referred to this Bench pursuant to a reference made by a Division Bench of this Court in the Circuit at the Port Blair vide order dated 22nd March, 2004 as the said Division Bench was of the view that the Five-Judge-Bench-decision in the case of K.N. Mishra vs. Union of India & Ors., 2003 AIR(Cal) 307 was not in conformity with the decisions of the Supreme Court as well as an earlier Five-Judge-Bench-decision of this Court in the case of Ratanlal Nahata vs. Nandita Bose, 1999 AIR(Cal) 29.
(2.) Consequently, the Chief Justice has constituted this Full Bench of Seven Judges for resolving the dispute as to whether the view of the Five-Judge-Bench in the case of K.N. Mishra vs. Union of India & Ors., 2003 AIR(Cal) 307, reflects the correct position of law, as to the right of a Circuit Bench at Port Blair to hear an application of review in respect of an order passed by another Bench consisting of different Judges, when the Judges of the Original Bench deciding the matter are still available as the Judges of this High Court.
(3.) In the case of Ratanlal Nahata vs. Nandita Bose, 1999 AIR(Cal) 29, the earlier FiveJudge-Bench had arrived at the following conclusion with regard to the application of the provision of review to the writ-jurisdiction: 1. Order 47, Rule 5 of the Code of Civil Procedure although ipso facto has no application in relation to a writ-proceeding or a proceeding on the Original Side or the Appellate Side of this court, the principles laid down therein may be applied. 2. In a case where merely one of the learned Judges attached to the bench is available he may issue the rule but the matter on merit must be heard by a Division Bench of two Judges or such number of Judges as the Hon ble the Chief Justice may constitute. 3. The Hon ble the Chief Justice has an unfettered jurisdiction in the matter of constitution of Benches in all matters including a review application. 4. As a matter of propriety, a Judge who is still attached to the Court should be made a party to hear the review application unless exceptional situation arises which may in the opinion of the Hon ble Chief Justice would be subversive to imparting justice to a litigation keeping in view the principle that justice is not only to be done but manifestly seem to be done .;