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1957 DIGILAW 27 (GAU)

Ningthoujam Mangi Singh v. Oinam Ibomcha Singh

1957-05-17

DATTA

body1957
ORDER This is an application for review under O. 47, R. 1, C. P. C., of the order of my learned predecessor dated 29-2-1956 granting a writ of certiorari in Civil Miscellaneous Application No. 38 of 1955. 2. The facts may be briefly stated as such: The non-applicants filed the said Miscellaneous Application No. 38 of 1955 alleging that they had acquired a prescriptive right to graze their cattle on the land in question against the Government, the owner of the land and the orders of the Government de-reserving the land and directing its settlement with the Applicants for the purpose of cultivation was illegal as it affected their right of pasturage over the land which they had acquired by prescription. My learned predecessor accepted this contention of the non-applicants and granted a writ of certiorari quashing the said orders of the Government. 3. The present application has been filed for the review of that order granting a writ of certiorari on grounds of mistake, apparent on the face of the record, discovery of new and important matter and other sufficient cause. The non-applicants oppose it in the first instant on the ground that no application for review is maintainable against an order passed under Art. 226 of the Constitution, nor has the Court the power to review its orders once passed under Art. 226 of the Constitution. 4. It is well settled that no Court has an inherent power of review and that power like the power of appeal must be conferred on it by statute. The question that thus arises for consideration is whether such a power of review has been conferred on the High Courts in matters falling under Art. 226 of the Constitution by any specific statutory provision. As far as the Constitution itself is concerned there is no such provision to be found though there is such provision as regards the Supreme Court, namely, Art. 137 which specifically confers upon the Supreme Court the power to review its judgments and orders. In these circumstances it can be safely presumed that the Constitution does not either specifically or by necessary implication confer any such power upon the High Courts in matters arising under Art. 226. 5. It was however urged that writ petitions involving disputes of a civil nature were civil matters and will therefore be governed by the procedure prescribed by the Civil Procedure Code. 5. It was however urged that writ petitions involving disputes of a civil nature were civil matters and will therefore be governed by the procedure prescribed by the Civil Procedure Code. It must be conceded that there is some force in this contention and if accepted it would attract S. 141 of the C. P. C., which lays down that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. But that relates to matters merely procedural and cannot be interpreted to mean as applying all the provisions of the Civil Procedure Code or conferring a power of appeal or review in matters governed by special enactments. Indeed it is difficult to conceive that powers of appeal or review which are substantive rights are mere matters of procedure. As already stated such powers must be conferred by the special enactments, themselves. I am therefore definitely of the opinion that there being no provision anywhere in the Constitution for review of orders passed under Art. 226, the powers for the same provided under the Civil Procedure Code cannot be invoked for the purpose of reviewing an order passed under Art. 226. 6. The view that I take also finds support from the observations made in Prahlad Krishna, In re, AIR 1951 Bom 25 (FB) (A) and Hajee Suleman v. Custodian, Evacuee Property, (S) AIR 1955 Madh B. 108 (B). Reliance was placed on the side of the applicants on Chenchanna Naidu v. Praja Seva Transport Ltd., AIR 1953 Mad 39 , (C), in which it was held that if the application for the issue of a writ under Art. 226 is made on the civil side, then in dealing with such an application the High Court is governed by the provisions of the Civil Procedure Code and that would attract the provisions or O. 47 of the Civil P. C., giving power to the Court to review an order passed under Art. 226. But for reasons already stated above I must with great respect differ. 7. The result of my finding is that the present application for review is not maintainable, and must fail. In view of this finding it is also not necessary to enter into the questions of merits of the application. I dismiss the application accordingly. But for reasons already stated above I must with great respect differ. 7. The result of my finding is that the present application for review is not maintainable, and must fail. In view of this finding it is also not necessary to enter into the questions of merits of the application. I dismiss the application accordingly. The fee for the Advocate of the non-applicants is fixed at R. 30/-. Application dismissed.