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2005 DIGILAW 92 (JK)

Indian Airlines Corp. v. Mohd. Abdullah Reshi

2005-04-01

S.K.GUPTA, S.N.JHA

body2005
Per S.N. Jha. CJ: 1. By this petition the Indian Airlines Corporation seeks review of the order of the Division Bench dated 2nd May, 2002 in CIMA no. 135/95 dismissing the appeal of the petitioner. The said civil first miscellaneous appeal had arisen from an order of the State Commission under the Jammu and Kashmir Consumer Protection Act,1987 (hereinafter Consumer Protection Act) awarding compensation of Rs.80,000 for loss of goods etc. to the respondents. 2. The short facts of the case are that respondents went on Haj pilgrimage in the year 1994 on an Indian Airlines flight. In their return journey, they carried five items of luggage one of which allegedly carrying certain valuables was lost in transit. They lodged complaint before the State Commission seeking compensation which was allowed vide order dated 10th October, 1995. The Indian Airlines preferred appeal under section 17 of the State Consumer Protection Act before this Court which was dismissed on 2nd May, 2002. The review is sought on the ground that in terms of the regulations framed under section 45(2 )(g) of the Air Corporations Act, 1953 titled the Indian Airlines Non-International Carriages (Passenger and Luggage) Conditions of Carriage, the liability of the carrier company is limited to Rs.300/- per kilogram in respect registered but uninsured baggage. As in the instant case the baggage in question was not insured, the respondents were not entitled to compensation beyond the stipulated limit and the Commission as well as the High Court committed error in allowing compensation to the tune of Rs.80,000. 3. The respondents have taken a preliminary objection to the maintainability of the petition. It is submitted that review is a creature of a statute and as the decision sought to be reviewed was rendered by this Court in exercise of appellate power under section 17 of the State Consumer Protection Act, there being no provision in the said Act for review of the orders etc; the review petition is not maintainable. 4. On behalf of the petitioner it was submitted that the High Court has plenary jurisdiction over all courts and tribunals subordinate to it and the exercise of jurisdiction should not be withheld on technical ground which may perpetuate some wrong or illegality. 4. On behalf of the petitioner it was submitted that the High Court has plenary jurisdiction over all courts and tribunals subordinate to it and the exercise of jurisdiction should not be withheld on technical ground which may perpetuate some wrong or illegality. Reliance was placed on the decision in United India Insurance Co.Ltd. v Rajendra Singh, 2000 (2) Supreme 294, and it was submitted that the Motor Vehicles Act too does not contain any provision for review; nevertheless, refusal to entertain the review petition by the Claims Tribunal as not maintainable, upheld by the High Court, was held to be not justified. It was pointed out that on similar ground, as canvassed in the present petition, the Supreme Court in SLP (Civil) no.3494/2001, Indian Airlines Corporation v Farooq Ahmad Jan, vide order dated 12th March, 2001 permitted the petitioner i.e. the Indian Airlines Corporation to move the High Court in review whereafter the Srinagar Wing of this Court entertained the review petition and also passed interim order vide annexures Rl, R2 and R3 to the review petition. 5. On behalf of the respondents it was submitted that there is no inherent power of review in any court or tribunal. The power of review can be exercised only where the statute confers such a power on a court or tribunal that too to correct errors which are apparent on the face of the record on discovery of a new and material fact. Reliance was placed on Lily Thomas v Union of India, (2000) 6 SCC 224. 6. Prima facie, I am inclined to think that in view of the express provisions of the Indian Airlines Non-International Carriages (Passenger and Baggage) Conditions of Carriage, referred to above, the respondents cannot claim compensation in excess of the limit prescribed therein but, I am afraid, that cannot be a ground for review of the judgment. The ground on which review of the decision of the Division Bench is sought, that is, the limited liability of the Company, was one of the grounds urged before the Division Bench as is evident from the order dated 2nd May, 2002. It is another matter that the Division Bench did not address itself to this aspect of the case, which means that it stood impliedly rejected. As held in case of Lily Thomas v Union of India (supra), review cannot be treated as an appeal in disguise. It is another matter that the Division Bench did not address itself to this aspect of the case, which means that it stood impliedly rejected. As held in case of Lily Thomas v Union of India (supra), review cannot be treated as an appeal in disguise. Review lies only to correct errors which are apparent on the face of record on the basis of new discoveries. In the instant case the ground as to limited liability of the petitioner-Corporation is not a fresh ground or discovery; it was one of the grounds specifically pleaded before the Division Bench. If the Division Bench did not deal with the ground - amounting to implied rejection thereof- that may render the judgment erroneous but such an error could be corrected by way of an appeal and not by way of review. 7. What stares more prominently is the maintainability of the review petition itself. In Patel Narshi Thakershi v Shri Pradyuman-singhji Arjun singh ji, 1971 (3) SCC 844, while considering the validity of orders passed by revenue authorities under the Saurashra Land Reforms Act, 1951, the Apex Court observed as under: ... It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Governments order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored...." Reference may also be made to the case of State of Bihar v Ra Dayal Missir, 1962 BLJR 385 (SC), rendered in the context of the Bihar Tenancy Act 1885. The petition for review of the order passed thereunder was held to be not maintainable in the absence of provision for review. 8. The Consumer Protection Act provides for consumer disputes redressal agencies - both at the divisional level and at the state level. The petition for review of the order passed thereunder was held to be not maintainable in the absence of provision for review. 8. The Consumer Protection Act provides for consumer disputes redressal agencies - both at the divisional level and at the state level. At the divisional level, the agency is called Divisional Forum having jurisdiction under section 9 of the Act to entertain complaints and decide the same under section 12. At the state level, the agency is called the State Commission constituted under section 14 of the Act having similar jurisdiction to entertain complaints under section 15 of the Act. It has also jurisdiction to entertain appeals against the orders of the Divisional Forum. The decision of the State Commission can also be appealed against to the High Court under section 17 of the Act. The appeal which came to be disposed of by the Division Bench in the instant case was thus clearly an appeal under section 17 of the Act and there is no dispute about this. It will thus follow that while deciding the appeal, the High Court exercised a statutory power under section 17 of the Consumer Protection Act which is distinct from the plenary power possessed by the High Court while exercising writ jurisdiction under Articles 226/227 of the Constitution of India read with Section 103 of the State Constitution. The decision in the case of United India Insurance Co. Ltd. v Rajendra Singh (supra) was rendered in the context of writ petition under Articles 226/227 of the Constitution of India. The Insurance Company had filed writ petition challenging the award of the Motor Accidents Claims Tribunal on the ground of fraud. Earlier the Claims Tribunal had refused to entertain the review petition on the ground that the Motor Vehicles Act does not contain any provision for review of orders etc. The High Court having declined to interfere and dismissed the writ petition, the Insurance Company approached the Supreme Court. Accepting the case of the Insurance Company on facts that the award had been secured by the respondents by practicing fraud, the Supreme Court held that the High Court ought to have exercised its plenary jurisdiction for which no statutory constrictions could be imposed. 9. Accepting the case of the Insurance Company on facts that the award had been secured by the respondents by practicing fraud, the Supreme Court held that the High Court ought to have exercised its plenary jurisdiction for which no statutory constrictions could be imposed. 9. The decision has no relevance in a case where the exercise of power by the High Court is under a statute without involving the plenary jurisdiction under Articles 226/227 of the Constitution of India read with Sections 103/104 of the State Constitution. The appellate power of the High Court under section 17 of the State Consumer Protection Act being akin to the appellate power of the State Commission under section 13 of the Act, if the plea of the petitioner-Corporation is accepted, it will follow that the State Commission also has similar power of review. And if such power is read into the appellate power of the High Court or the State Commission, there can be no justification to deny similar power of review to the State Commission or the Divisional Forum while exercising their original jurisdiction. As indicated above, unless the statute provides for review of the decision, orders etc - expressly or by necessary implication - the court cannot assume such a power. 10. As regards the order dated 12th March, 2001 in Indian Airlines Corporation v Farooq Ahmad Jan, SLP (Civil) no. 3494/2001, on a plain reading of the order it is manifest that no finding was recorded on the point of maintainability of the review petition. By a short order passed ex-parte - presumably at the motion stage, the SLP was dismissed as withdrawn "on application" of the petitioners to enable them to move the High Court in review. Apparently, the fact that the dispute had arisen from proceedings under a statute which did not provide for review of the orders does not appear to have been brought to the notice of the Supreme Court. In any case, the Supreme Court has not held the proposed review petition to be maintainable. The said order of the Supreme Court is, therefore, of no helper relevance in the present case. In the above premises, there is no difficulty in holding the review petition to be not maintainable. In the result, the petition is dismissed.