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2014 DIGILAW 821 (ORI)

Purna Chandra Tripathy v. State of Orissa

2014-12-01

B.K.NAYAK

body2014
JUDGMENT : B.K.NAYAK, J. In this writ petition the petitioners assail the review order dated 28.05.2001 (Annexure-11) passed by the Commissioner, Consolidation, Orissa, Bhubaneswar-opposite party no. 2 in Revision Case No. 350 of 1996 after recalling the order dated 19.07.1997 (Annexure-8) and thereby substituting a completely new decision. 2. The dispute relates to Ac. 0.02 decimal of land out of Ac. 0.04 appertaining to Sabik Plot no. 258 under Sabik Khata No. 18 in village- Tulasipur which forms part of L. R. Plot No. 378 having a total area of Ac. 0.14 decimal. The entire Sabik Plot No. 258 measuring Ac. 0.04 decimal vested under the O.E.A. Act in the year 1956. In OEA Lease Case No. 1176/1970, Ac. 0.02 decimal out of the same was settled in favour of the father of the petitioners, which corresponds to L.R. Plot No.377 and was recorded in the name of the petitioners' father in the consolidation operation. Similarly, the rest Ac. 0.02 out of the Sabik Plot No. 258 was settled in favour of opposite party nos. 3 and 4 (since deceased are substituted) in OEA Lease Case No. 378 of 1976. During the consolidation operation, the said land got amalgamated in L.R. Plot No. 378 measuring Ac. 0.14 decimal and was recorded in the names of opposite party nos. 3 and 4. 3. It is stated by the petitioners that opposite party no. 4 filed T.S. No. 376 of 1979 in the Court of Munsif, Puri against the petitioners' father for declaration of right, title and interest over Sabik Plot No. 258. During pendency of the suit, opposite party nos. 3 and 4 sold Ac. 0.02 decimal out of the said plot. in favour of petitioners' father by registered sale deed and thereafter filed a Memo stating that the parties had entered into a compromise, and that the plaintiffs would not raise any further claim with respect to the suit property and, therefore, pJaintiff was not interested to prosecute the suit further. On such Memo the civil Court dismissed the suit as not pressed by order dated 03.11.1981 as at Annexure5. Since thereafter during the consolidation operation the Ac. 0.02 decimal of land out of Sabik Plot No. 258 was recorded in the names of opposite party nos. On such Memo the civil Court dismissed the suit as not pressed by order dated 03.11.1981 as at Annexure5. Since thereafter during the consolidation operation the Ac. 0.02 decimal of land out of Sabik Plot No. 258 was recorded in the names of opposite party nos. 3 and 4 being amalgamated in their L.R. Plot No. 378, the petitioners filed Consolidation Revision No. 1949 of 1992 under Section 37 of the Consolidation Act before opposite party no. 2 for getting Ac. 0.02 decimal out of L.R. Plot No. 378 recorded in their names. By order dated 19.07.1984 (Annexure-6), the Commissioner, Consolidation rema'nded the case to the Consolidation Officer for deciding the same on examination of documents of the parties and after giving them opportunity of hearing. The opposite parties did not challenge the said revisional remand order, which became final. The Consolidation Officer rejected the claim of the petitioners on some technical grounds and held that the disputed land was not sold to the petitioners by opposite parties. It is alleged by the petitioners that the Consolidation Officer did not take into consideration the legal effect of dismissal of the suit filed by opposite parties. Appeal preferred against the order of the Consolidation Officer in Appeal No. 101 of 1995 was dismissed by the Deputy Director, Consolidation Revision No. 350 of 1996 before the Commissioner, Consolidation (opposite party no. 2) under Section 36 of the Consolidation Act. Upon hearing, the Commissioner, Consolidation by his judgment dated 19.07.1997 (Annexure-S) allowed the revision and set aside the order of the Courts below holding that the entire Ac. 0.04 decimals in Sabik Plot No. 25S goes to the defendant in the Civil Suit, i.e., the father of the petitioners. The Commissioner however directed for recording of the entire L.R. Plot No. 37S, Ac. 0.14 in favour of .the petitioners, unmindful of the fact that the petitioners had claimed only Ac. 0.02 decimal out of the entire area of L.R. Plot No. 37S. The revisional order under Annexure-S, however, was not challenged by the opposite parties which become final. Having found that the Commissioner had committed mistake by directing recording of the entire Ac. 0.14 decimals instead of Ac. 0.02 decimal out of the said plot, the opposite parties filed a petition, registered as Misc. Case No. 219 of, 1997, under Section 151, C.P.C. to recall the revisional order. Having found that the Commissioner had committed mistake by directing recording of the entire Ac. 0.14 decimals instead of Ac. 0.02 decimal out of the said plot, the opposite parties filed a petition, registered as Misc. Case No. 219 of, 1997, under Section 151, C.P.C. to recall the revisional order. By order dated 20.02.1999 finding the mistake committed by him, the Commissioner recalled the revisional order under Annexure-S, but instead of rectifying the mistake, heard the revision again and by the impugned order under Annexure-11 substituted a different decision altogether by dismissing the revision and thereby rejecting the claim of the petitioners. 4. Learned counsel for the petitioners submits that though every Court and Tribunal has the inherent jurisdiction to correct any apparent clerical or typographical error in its order, it cannot review the entire decision and re-appreciate the case unless power of review is specifically conferred by the statue. It is submitted that the Commissioner, Consolidation has no power of review and, therefore, he could not have passed the impugned order rejecting the claim of the petitioners, which had been allowed by him by his previous order under Annexure-S. 5. Opposite party nos. 3 and 4 have filed a counter affidavit and learned counsel for opposite parties submits that though a Tribunal or quash judicial authority cannot review its own order on merits unless the power of review is specifically conferred on him, the Commissioner has given correct decision as per the impugned order since his earlier order under Section S was wrong and, therefore, the impugned order warrants no interference. 6. It is trite law that a Court or Tribunal cannot review its own decision unless the power of review has been specifically conferred on him. It is, however, permissible to rectify any typographical or arithmetical error which power is inherent with every Court and Tribunal. 7. This Court in the case of Balaram Swain & Anr. V. Rabindra Swain & Ors. : 2009 (Supp.-1) OLR 534 has held that the Commissioner, Consolidation has no power to review his decision. The apex Court in the decision reported in AIR 2001 (SC) 1084 : Jayalakshmi Coelho v. Oswald Joseph Coelho have held that a power to rectify under Section 152, C.P.C. does not amount to a power to give second thought over the matter. The apex Court in the decision reported in AIR 2001 (SC) 1084 : Jayalakshmi Coelho v. Oswald Joseph Coelho have held that a power to rectify under Section 152, C.P.C. does not amount to a power to give second thought over the matter. Such power is confined to something initially intended by Court but left out or added against such intention. A division Bench of this Court in the case of Gopinath Deb v. Budhia Swain and others : 54 (1982) C.L. T. 515 has held that the power of review is not inherent in a Court or Tribunal, it is a creature of the statute. Courts or Tribunals of limited jurisdiction created under special statutes have no inherent power to review. While dealing with the scope of power of review under order 47 Rule (1) of the C.P.C, the apex Court in the decision reported in AIR 2000 (SC) 1650 : Lily Thomas, etc. v. Union of India and others have held that "mistake apparent on face of record" cannot mean error which has to be fished out and searched. 8. In course of his argument, the learned counsel for the opposite parties with reference to averments in the plaint in the earlier civil suit filed by the opposite parties submits that it is clear that the suit was filed not in respect of the entire Ac. 0.04 decimal of Sabik Plot No. 258, but it was limited only to Ac. 0.02 decimal out of the same and therefore, the decision in the impugned order is the correct decision where;3s the decision under review (Annexure-8) was the wrong decision and, therefore, the right decision should not be interfered with. He has also relied upon the decision in (1996) 5 SCC 550 : Indian Bank v. Sat yam Fibres (India) Pvt. Ltd. in which it has been held that the National Consumer Commission has inherent power to recall its judgment and order, if found to be obtained by fraud/forgery, as fraud amounts to abuse of process of the Commission. This deci!2ion, has no application to the facts of the present case since there is no question of fraud or forgery practiced by the petitioners, on the Consolidation Commissioner for passing of the first revisional order under Annexure-8. This deci!2ion, has no application to the facts of the present case since there is no question of fraud or forgery practiced by the petitioners, on the Consolidation Commissioner for passing of the first revisional order under Annexure-8. The other decision relied upon by the learned counsel for the opposite parties is 1999 (II) OLR (SC) 151: Budhia Swain and others v. Gopinath Deb and others, wherein the Court relied upon the ratio laid down in the case of Indian Bank (Supra) and held that a Tribunal or a Court may recall an order earlier made by it if: (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the Court prejudicing a party, or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had' died and the estate was not represented. Elucidating further, the apex Court took note of the decision in AIR 1964 (SC) 907 : Ittyavira Mathai v. Varkey, where it has been held as follows: “... ... But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no. jurisdiction to do. It had the jurisdiction over, the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it had acted beyond its jurisdiction. As has often been said Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them, cannot be treated as nullities. ... ... ... ..” 9. The decisions cited by the learned counsel for the opposite parties have no application inasmuch as there was no question of fraud, forgery or lack of jurisdiction of the Commissioner, Consolidation etc. a mistake to be rectified by recall must be an apparent mistake which goes against what had been intended, or a clerical or arithmetical mistake. ... ..” 9. The decisions cited by the learned counsel for the opposite parties have no application inasmuch as there was no question of fraud, forgery or lack of jurisdiction of the Commissioner, Consolidation etc. a mistake to be rectified by recall must be an apparent mistake which goes against what had been intended, or a clerical or arithmetical mistake. A Court or Tribunal is entitled to decide right or wrong, but a wrong decision does not entitle the Court to review the earlier decision and pass a correct decision on merits by re-appreciating the facts afresh. 10. In the instant case, not only the Commissioner, Consolidation has no power to review, but also he lacks power to decide the revision afresh on merits on a re-appreciation of the entire matter holding that the earlier decision was wrong, which is wholly impermissible. 11. In the light of the discussions made above, I am of the view that order under Anriexure-11 is wholly unsustainable and accordingly I quash the same. The first revisional order under Annexure-8 is restored subject to modification that Ac. 0.02 decimals of land out of Ac. 0.14 decimals in L. R. Plot No. 758 shall be recorded in favour of the petitioners. The writ petition is accordingly allowed.