JUDGMENT Dr. B. S. Chauhan, J.—This writ petition has been filed for quashing the Demand Notice dated 22.11.2002 (Annexure-5) for a sum of Rs. 54,320 as an arrear of passenger tax, issued by the respondent No. 3. 2. Facts and circumstances giving rise to this case are that petitioner owned a public vehicle Bus No. U. P. 80-E-9118. The respondent No. 3 assessed the passenger-tax and put in a demand to the petitioner by Demand Notice dated 23.5.2001 (Annexure-3) for Rs. 31,000. As the said amount has not been paid, another Demand Notice dated 21.11.2002 (Annexure-5) was issued by the respondent No. 3 to deposit a sum of Rs. 54,320 as passenger-tax from 1.4.2000 to 31.3.2002. 3. Petitioner submitted a representation before the respondent Nos. 2 and 3 to re-consider the whole case. The said representation has not yet been decided. 4. Learned counsel for the petitioner has submitted that as she had transferred the vehicle to the respondent No. 4 and signed all the documents for completing the formalities of transfer, even if the vehicle has not been transferred in his name, the petitioner cannot be fastened with the liability of the passenger-tax on the said vehicle, and thus, the demand notices are liable to be quashed. And in the alternative, this Court may issue a direction to the respondents to decide the representation of the petitioner and till the representation is decided, they may not make recovery from her. 5. On the contrary, learned standing counsel has vehemently opposed the petition submitting that as the vehicle has not yet been transferred in the name of the respondent No. 4, petitioner is liable to pay the passenger-tax. More so, demand notice cannot be challenged in writ court as it is appealable under the provisions of Section 18 of the U. P. Motor Vehicles Passenger-taxation Act, 1997 (hereinafter referred to as Act, 1997). The petition is, therefore, liable to be dismissed. 6. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 7. Admittedly, the demand notice is appealable under the provisions of Section 18 of the Passenger-taxation Act, 1997, and in such a fact situation, writ court should not interfere as the petitioner has approached this Court without exhausting the statutory remedy. 8.
We have considered the rival submissions made by the learned counsel for the parties and perused the record. 7. Admittedly, the demand notice is appealable under the provisions of Section 18 of the Passenger-taxation Act, 1997, and in such a fact situation, writ court should not interfere as the petitioner has approached this Court without exhausting the statutory remedy. 8. The submission made by the learned counsel for the petitioner is that it is not necessary for the petitioner to approach the appellate forum as her purpose would be served if this Court directs the authorities concerned to decide her representation regarding her liability to pay and the quantum of the passenger-tax. Assessment Order under the Act, 1997, is a quasi-judicial order, and it is a settled legal proposition that review thereof is not permissible for want of statutory provisions in this regard. 9. In Patel Chunnibhai Dajibha v. Narayanrao Khanderao Jambekar, AIR 1965 SC 1457 , the Hon’ble Supreme Court has held that in absence of any power of review, the Tribunal could not have subsequently reconsidered its previous decision and the subsequent order re-opening the matter was illegal, ultra-vires and without jurisdiction. 10. In Harbhajan Singh v. Karam Singh, AIR 1966 SC 641 , the Hon’ble Apex Court has held that in absence of any provision in the Act granting express power of review, it is manifest that review could not be made and the order in review was ultra-vires, illegal and without jurisdiction and the High Court has rightly quashed it by the grant of writ under Article 226 of the Constitution. 11. While deciding the said case, the Hon’ble Supreme Court placed reliance on a large number of judgments, particularly in Drew v. Mills, 1891 (1) QB 450 ; Hession v. Johns, 1914 (2) KB 421 ; In Re : St. Nazaire Company, (1879) 12 Ch D 88 and Baijnath Ram Goyanka v. Nand Kumar Singh, 14 IA 54 (PC), wherein it had categorically been held that the power of setting aside an order, which has been made after hearing the arguments, does not lie unless it is given by the Statute. The Court, under the Statute, cannot review an order deliberately made after argument and entertain a fresh argument upon it with a view to ultimately confirming or reversing it.
The Court, under the Statute, cannot review an order deliberately made after argument and entertain a fresh argument upon it with a view to ultimately confirming or reversing it. The Courts may have limited power only to make a necessary correction if the order, as drawn up, did not express the intention of the Court. A party is entitled to assail the judgment only by the mode as indicated in the Statute and in absence of express provision of review, it cannot be entertained for the reason that review is practically the hearing of an appeal by the same officer who decided the case. 12. In Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 , the Hon’ble Apex Court held that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication and in absence of any provision in the Act, review of an earlier order is impermissible. 13. In Maj. Chandra Bhan Singh v. Latafat Ullah Khan and others, AIR 1978 SC 1814 , the Apex Court followed the earlier referred two judgments in Chunnibhai and Harbhajan Singh (supra) and observed that it is well-settled that review is a creature of Statute and cannot be entertained in absence of a provision therefor. 14. In Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur, 1988 (1) AWC 347 (SC) : AIR 1987 SC 2186 , the Hon’ble Supreme Court held as under : “It is now established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction........ In the circumstances, it must be held that Vice Chancellor acted wholly without jurisdiction....... The said order of the Vice Chancellor dated March 7, 1987, was a nullity. (Emphasis added).” Similar view has been reiterated by the Hon’ble Supreme Court in State of Orissa and others v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 . 15.
In the circumstances, it must be held that Vice Chancellor acted wholly without jurisdiction....... The said order of the Vice Chancellor dated March 7, 1987, was a nullity. (Emphasis added).” Similar view has been reiterated by the Hon’ble Supreme Court in State of Orissa and others v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 . 15. In Krishna Ashram Educational Trust v. District Judge, 1995 (3) AWC 1427 : AIR 1995 All 415 , after placing reliance upon a large number of judgments of the Hon’ble Supreme Court, this Court held that in absence of a provision for review, the Authority becomes functus officio after deciding the case and it has no competence to entertain review application and change the order passed by it earlier. Nor the order/award be reviewed under the garb of clarification/rectification/ correction. 16. Therefore, in view of the aforesaid settled legal proposition, it can be summarised that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible. 17. Thus, in view of the above, it is crystal clear that review application is not maintainable against the assessment order nor any action of rectification is permissible. Asking the said authority to decide representation would amount to directing him to review the said order, which is not permissible in law. Creation of a jurisdiction in a Court is a legislative function and it cannot be conferred by any means by the Court. Review/ Appeal is a creation of statute and it cannot be created by acquiescence of the party or by the order of the Court. (Vide United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230 ; Kesar Singh and others v. Sadhu, (1996) 7 SCC 711 ). The finding of a Court or a Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. (Vide State of Gujarat v. Rajesh Kumar Chiman Lal Barot and another, (1996) 5 SCC 477 ). 18. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the Legislature and conferring a Court or Authority with jurisdiction, is a legislative function. In Union of India v. Devkinandan Agarwal, AIR 1992 SC 96 , the Hon’ble Apex Court has observed that “the Court cannot usurp legislative functions.
Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the Legislature and conferring a Court or Authority with jurisdiction, is a legislative function. In Union of India v. Devkinandan Agarwal, AIR 1992 SC 96 , the Hon’ble Apex Court has observed that “the Court cannot usurp legislative functions. The Court cannot re-write the legislation for the reason that it had no power to legislate. The power of legislation has not been conferred on the Courts.” 19. In Karnal Improvement Trust v. Prakashwanti, (1995) 5 SCC 159 , the Hon’ble Supreme Court has observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U. P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., 1996 (2) AWC 772 (SC) : AIR 1996 SC 1373 . 20. In Sardar Hasan Siddique v. State Transport Appellate Tribunal, AIR 1986 All 132 , the Division Bench of Allahabad High Court has observed that a Court or a Tribunal cannot derive jurisdiction apart from the statute. No amount of acquiescence, waiver or the like can confer jurisdiction if a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity. Similarly in A. R. Antuley (supra), the Hon’ble Supreme Court has observed as under : “A decision touching the jurisdiction ......... has to be not only consistent with the fundamental rights guaranteed by the Constitution, the same cannot even be inconsistent with substantive provisions of the statutory law.... The criteria of a right to an appeal is an act which requires legislative authority neither an inferior court nor the superior court nor both combined, can create such a right, it being one of the limitations and exception of jurisdiction.” 21. In view of the above, any concession made by any lawyer which is contrary to the provisions of law or even a consent decree which is in violation of the statutory provisions, remains unenforceable and inconsequential. (Vide Smt. Nai Bahu v. Lala Ram Narain and others, AIR 1978 SC 22 and Natraj Studio Pvt. Ltd. v. Navrang Studio and another, AIR 1981 SC 531). 22.
(Vide Smt. Nai Bahu v. Lala Ram Narain and others, AIR 1978 SC 22 and Natraj Studio Pvt. Ltd. v. Navrang Studio and another, AIR 1981 SC 531). 22. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, 1999 (2) AWC 1608 (SC) : AIR 1999 SC 2213 , the Hon’ble Supreme Court held as under : “It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigant being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction.” 23. In view of the above, it is evident that the appeal is statutory right which can be created only by the Legislature and it does not lie by acquiescence/consent of the parties or even the writ court is not competent to create the appellate forum if not provided under the statute. 24. Thus, in view of the above, issuing direction to the respondents to decide the representation would amount to review the assessment order indirectly. 25. It is settled proposition of law that what cannot be done “per directum is not permissible to be done per obliquum”, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud.” 26. In Jagir Singh v. Ranbir Singh, AIR 1979 SC 381 , the Apex Court has observed that an authority cannot be permitted to evade a law by “shift or contrivance.” While deciding the said case, the Hon’ble Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B 7 C 635, wherein it has been observed as under : “To carry out effectually the object of a statute, it must be considered as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined.” 27. Law prohibits to do something indirectly which is prohibited to be done directly.
Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the Apex Court in M. C. Mehta v. Kamal Nath and others, AIR 2000 SC 1997 , wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of Article 142 of the Constitution, which empowers the Court to pass any order in a case in order to do “complete justice”. 28. In view of the above, no such relief can be granted by this Court. 29. Even on merit, the submission made on behalf of the petitioner that once she has signed the documents and handed over the papers to the respondent No. 4 along with the vehicle, she cannot be fastened with any liability, is not acceptable. The case is squarely covered by the judgment of the Hon’ble Apex Court in Tpt. Commnr-cum-Chairman S.T.A. and another v. Ashok Ranjan Mohanty and others, JT 2001 (10) SC 120, wherein the Apex Court has held that there is no bar for making the recovery from the transfer-or in such a case. 30. Thus, in view of the above, we find no force in this petition. It is, accordingly, dismissed.