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2016 DIGILAW 3138 (ALL)

RAMBETI v. STATE OF U. P.

2016-09-14

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Arvind Srivastava-III, learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri D.D. Chauhan holding brief of Sri Amresh Singh, learned counsel for the Gaon Sabha. 2. Through this writ petition, prayer has been made to issue writ of certiorari quashing the order dated 1.9.2016 passed by Sub Divisional Officer, Bisalpur, District Pilibhit by which he has stayed his own order dated 31.8.2016. While assailing this order learned counsel for the petitioner submits that the impugned order is without jurisdiction as the Sub Divisional Officer has no power to review of his own order. In his submissions, the order dated 31.8.2016 was passed after due deliberation, therefore, its operation could not be stayed on the application of the strangers unless such order was obtained by playing fraud or misrepresentation upon the authority concerned. 3. Whereas learned standing counsel as well as counsel for the Gaon Sabha have submitted that although under the relevant statute no power of review has been conferred upon the Sub Divisional Officer but the Sub Divisional Officer can review his own order under appropriate circumstances. 4. The brief facts of this case are that the petitioner happens to be fair price shop agent of village Nauwa Nagala, Block Barkheda, Tehsil Bisalpur, District Pilibhit. Her agreement to run fair price shop was suspended on 29.7.2016 by the Sub Divisional Officer on the complaint of the villagers/card holders. The petitioner submitted her reply denying all the charges levelled against her and taking note of that the petitioner’s agreement was restored vide order dated 31.8.2016 after forfeiting security of Rs. 5,000/- deposited by the petitioner. After the aforesaid order was passed, few villagers have made complaint against the petitioner. After receipt of the aforesaid complaint the Sub Divisional Officer has stayed his own order dated 31.8.2016 by which the petitioner’s agreement was restored. 5. The power of suspension/cancellation of fair price shop has been conferred upon the Sub Divisional Officer under the provisions contained in the Government order dated 3.7.1990 read with 17.8.2002. After receipt of the aforesaid complaint the Sub Divisional Officer has stayed his own order dated 31.8.2016 by which the petitioner’s agreement was restored. 5. The power of suspension/cancellation of fair price shop has been conferred upon the Sub Divisional Officer under the provisions contained in the Government order dated 3.7.1990 read with 17.8.2002. Relevant paras 7.1 and 12 conferring power of suspension and cancellation are reproduced herein under: 7-1 ;fn fdlh nqdkunkj }kjk vuqlwfpr oLrqvks ds mBku ;k forj.k esa xMcM+h dh tkrh gS rks Loizsj.kk] f'kdk;r ;k xkao lHkk ds izLrko ij ftykf/kdkjh mudh nqdku fuyafEcr@fujLr dj ldrs gSA 12- ftykiwfrZ vf/kdkjh dks ;g vf/kdkj gksxk fd xzkeh.k {ks= dh nqdkuks dk fujh{k.k rFkk vfu;ferrk ik;s tkus ij nqdkunkjks ds fo:} n.MkRed dk;Zokgh dj ldrs gSA On being confronted as to whether this is only power, conferred by Government order, for suspension and cancellation of the agreement, learned standing counsel submits that there is no other Government order except aforesaid one. 6. From the perusal of the aforesaid Government orders I find that there is no power conferred upon the Sub Divisional Officer to review of his own order. Apart from the aforementioned Government orders, in U.P. Scheduled Commodities Distribution Order, 2004, which governs the field too, there is provision conferring the power of review. 7. The power of review is creation of the statute and if, under the relevant statute, the power of review has not been conferred upon the authority, may be judicial or quashi judicial or administrative. The said power cannot be exercised. In Kalabharati Advertising v. Hemant Vimalnath Narichania and others, (2010) 9 SCC 437 , Hon’ble Apex Court has observed as under : 12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra vires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and another, AIR 1965 SC 1457 ; and Harbhajan Singh v. Karam Singh and others, AIR 1966 SC 641 ). 13. In Patel Narshi Thakershi and others v. Shri Pradyuman Singhji Arjunsinghji, AIR 1970 SC 1273 ; Maj. (vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and another, AIR 1965 SC 1457 ; and Harbhajan Singh v. Karam Singh and others, AIR 1966 SC 641 ). 13. In Patel Narshi Thakershi and others v. Shri Pradyuman Singhji Arjunsinghji, AIR 1970 SC 1273 ; Maj. Chandra Bhan Singh v. Latafat Ullah Khan and others, AIR 1978 SC 1814 ; Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) and others, AIR 1987 SC 2186 ; State of Orissa and others v. Commissioner of Land Records and Settlement, Cuttack and others, (1998) 7 SCC 162 ; and Sunita Jain v. Pawan Kumar Jain and others, (2008) 2 SCC 705 , this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction. 14. Therefore, in view of the above, the law on the point can be summarised to the effect 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. A Division Bench of this Court too in Smt. Urmila Jaiswal v. State of U.P. and others, 2013(4) ADJ 205 (DB), has also taken the same view which read as under : 21. From the proposition of law as laid down in the above cases, it is well established that unless the Statute/Rule permit, the review application is not maintainable in case of judicial/quasi judicial orders. In Order 2004, no power of review has been expressly provided nor such power can be read by implication. Although the Hon’ble Apex Court in Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., AIR 1996 SC 2592 , has taken a different view. The observation made by the Apex Court is quoted herein below : 22. In Order 2004, no power of review has been expressly provided nor such power can be read by implication. Although the Hon’ble Apex Court in Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., AIR 1996 SC 2592 , has taken a different view. The observation made by the Apex Court is quoted herein below : 22. ............”Since fraud affect the solemnity, regularly and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. ......The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mahton v. Sitaram Kumar, AIR 1954 Patna 450) or to set aside the order recording compromises obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pal Singh, AIR 1958 Patna 618; Smt. Tara Bai v. V.S. Krishnaswaymy Rao, AIR 1985 Karnataka 270). 23 “The proposition of law laid down by the Apex Court in the aforesaid case is that every judicial or quashi -judicial authority has power to set aside the order obtained by fraud practiced upon that Court or where the Court is misled by the party and the Court itself commits a mistake which prejudices a party. 8. In United Industries Insurance Company Ltd. v. Rajendra Singh, AIR 2000 SC 1165 , the Apex Court held that every Court or Tribunal has the power to “ review its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension, as would affect the very basis of the claim.” 9. In view of the foregoing discussions, it is clear that every authority, which has passed the order, has also power of review his own order provided the said order has been obtained by playing fraud or misrepresentation or Court itself committed a mistake which prejudices a party. Otherwise review jurisdiction cannot be involved in absence of power conferred upon the authority under the relevant statute. 10. Otherwise review jurisdiction cannot be involved in absence of power conferred upon the authority under the relevant statute. 10. Herein this case from the perusal of the impugned order it does not transpire that the petitioner has played any fraud or concealed any material of facts when the impugned order was passed. 11. In view of foregoing discussions, I am of the opinion that the impugned order dated 1.9.2016 passed by Sub Divisional Officer, Bisalpur, District Pilibhit cannot be sustained in the eyes of law being without jurisdiction. In the result, the writ petition succeeds and is allowed. The impugned order dated 1.9.2016 passed by Sub Divisional Officer, Bisalpur, District Pilibhit is hereby quashed. However, this order will not preclude the affected parties to take any other legal recourse available to them under law.