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1987 DIGILAW 69 (PAT)

Md. Usman v. Madan Mohan Singh

1987-03-11

S.B.SINHA

body1987
Judgment S.B.Sinha, J. 1. This is an application for quashing an order dated 13-2-1981 passed by the respondent No. 4 whereby and whereunder the said respondent accepted the report of the Chairman Conciliation Board that is respondent No. 5. 2. The learned counsel appearing on behalf of the petitioner questioned the jurisdiction of the respondent No. 4 in passing the said order by drawing my attention to sub-sections (4) and (5 ) of Sec. 48-E of the Bihar Tenancy Act. By reason of the provision of the same if any punchas nominated by the party refused to appear in that event the respondent No. 4 had got no other option but to re-constitute the Board. From a perusal of Annexure-1 of the writ application it appears that the Board was not re-constituted although the punchas did not make themselves available for taking part in the conciliation proceedings in terms of the provisions of the statute. 3. The learned counsel appearing on behalf of the respondents Nos. 1 to 3 submitted that in the said proceeding the petitioner has withdrawn his case by making a statement that the respondents are in cultivating possession On the basis of the said application, the petitioners application under Sec. 48-E of the Bihar Tenancy Act was allowed to be withdrawn and the proceeding was ordered to be withdrawn by an order dated 20th November, 1979. The petitioner, however, filed an application for quashing the aforementioned Order and the respondent No. 4 by an order dated 16-1-1980 recalled the aforementioned order dated 20th November, 1979. 4. The learned counsel submits that in view of the fact that on 20th November, 1979 the proceeding was dropped on the basis of the withdrawal application filed on behalf of the petitioner the respondent No. 4 had got no jurisdiction to pass the order dated 16-1-1980. He further submits that in the event Annexure-2, that is, the order dated 13-2-1981 was quashed the same may give rise to another illegal order, namely, order dated 16-1-1980, and in that view of the matter he submits that if Annexure-2 is quashed the order dated 16-1-1980 should also be quashed. 5. He further submits that in the event Annexure-2, that is, the order dated 13-2-1981 was quashed the same may give rise to another illegal order, namely, order dated 16-1-1980, and in that view of the matter he submits that if Annexure-2 is quashed the order dated 16-1-1980 should also be quashed. 5. It appears that the aforementioned matter relating to filing of an application for withdrawal and the consequent passing or the order dated 20th November, 1979 and the order dated 16-1-1980 was brought to the notice of this Court by the learned counsel appearing on behalf of the respondents Nos. 1. to 3. The petitioner filed a reply to the counter-affidavit and the alleged application for withdrawal was filed through one Shri Sheo Kr. Gupta, advocate in whose favour an Vakalatnama is alleged to have been executed, but, in fact, the aforementioned advocate was never appointed by the petitioner nor any Vakalatnama was executed in his favour In the said rejoinder it has been specifically stated that the Vakalatnama is forged and fabricated one having been brought into existence at the instance of the respondent No. 1. It was further submitted that similarly the application for withdrawal or dropping the (Annexure-A) to the counter-affidavit and the supplementary affidavit) filed on behalf of the respondent No. 3 has been surreptitiously and fraudulently filed in the case through the achination of the respondent No. 1 who by playing fraud on court ultimately succeeded in obtaining, behind the back of the petitioner the desired order from the court. 6. In paragraph 6 of the rejoinder the petitioner has further taken an alternative plea that in any event as the respondents No. 1 to 3 having not challenged the order dated 16-1-1980, before the appropriate authority it was estopped and precluded from challenging the said order at the stage and that too as respondents in the writ application, During the course of argument when the attention of the learned counsel appearing on behalf of the petitioner was drawn to the aforementioned statements made by the petitioner in his reply to the counter-affidavit filed on behalf of the respondent Nos. 1 to 3, he submitted that he does not press the allegations made as against the learned counsel, that is, Sheo Kr. Gupta. 7. 1 to 3, he submitted that he does not press the allegations made as against the learned counsel, that is, Sheo Kr. Gupta. 7. Learned counsel for the petitioner has further conceded that the respondent No. 4 had no jurisdiction whatsoever to recall the order dated 20th November, 1978 by passing the order dated 16-1-1980 as being a revenue court, he has no authority to review his earlier order. 8. Having taken into consideration the facts of the case there cannot be any doubt that the order as contained in Annexure-2 is bad in law, being without jurisdiction. However, in this case in view of the statement made hereinbefore I decline to exercise my extraordinary jurisdiction under Articles 226 and 227 of the Constitution in favour of the petitioner. In my opinion, the petitioner is guilty of making a serious and reckless allegations as against a member of a noble profession and it is evident from the records that he has made such reckless allegations for which there was absolutely no basis. It has not been alleged in the rejoinder filed on behalf of the petitioner that he obtained the aforementioned order dated 16-1-1980 on the ground that Sheo Kr. Gupta was not a duly appointed lawyer not did he make an allegation that Sheo Kr. Gupta obtained the order dated 20th November, 1979 by practising fraud upon the court. 9. It is now well settled principle of law that power of review has to be specifically conferred by the statute. It is now firmly established that statutory authority has no inherent power to recall its earlier order. The Hon ble Supreme Court of India in the decision in the case of Grindays Bank Ltd. v. The Central Government Industrial Tribunal and others 19.81 (29) B.L J.R. 104 (S.C.) has clearly held that although there is power of procedural review, the substantive power of review has to be specifically conferred under a statute, In that view of the matter, it is evident that the respondent No. 4 had also no jurisdiction to pass the order dated 16-1-1980, 10. Although I have held that the order, as contained in Annexure-2 to the petition, is without jurisdiction if the same order is quashed the same could give life to another order which has also been passed without jurisdiction by the respondent No. 4, that is, the order dated 16-1-1980. Although I have held that the order, as contained in Annexure-2 to the petition, is without jurisdiction if the same order is quashed the same could give life to another order which has also been passed without jurisdiction by the respondent No. 4, that is, the order dated 16-1-1980. It is now a settled law that writ of cartiorari is a discretionary one and the Court may refuse to exercise its discretion, if it finds that by quashing an illegal order, another illegal order would be revived. Reference may be made to in this context, to a decision of the Supreme Court as also this case in the case of , Banwari Lal Newatia V/s. Under Secretary to Government of India and Ors. 1982 B. L. J. 311 and Devendra Prasad Gupta V/s. The State of Bihar and Ors. 1978 (26) B.L.J.R. 87. 11. In view of my aforementioned findings I have no other alternative but to dismiss this application. The learned counsel appearing on behalf of the petitioner submitted that the order dated 16-1-1980 may also be quashed along with Annexure-2 as has been done in Devendra Prasad Gupta V/s. The State of Bihar and Ors.(supra). 12. It is not necessary in the circumstances of the case to specifically quash both the orders. Besides this, as I have found, the petitioner is not also entitled to obtain any relief from this Hon ble Court as he did not approach this court with clear hands. In view of the discussions made hereinbefore, in the result, this petition is dismissed but in the circumstances of the case there will be no order as to costs.