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Allahabad High Court · body

2016 DIGILAW 3721 (ALL)

MOHD. AASIF KHAN v. STATE OF U. P.

2016-11-16

ANIL KUMAR

body2016
JUDGMENT Hon’ble Anil Kumar, J.—Heard Shri Ripu Daman Sahi, learned counsel for the petitioners, Shri M. E. Khan, learned Additional Chief Standing Counsel, Shri Anant Chaudhary, learned Standing Counsel, Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mouiddin Khan, learned counsel for the respondent and perused the record. 2. Facts as submitted by learned counsel for the petitioners are that the controversy involved in the present case relates to land recorded as Gata No. 288, measuring about 2.778 hectare in the name of Mustafa Hussian s/o Mahboob Ali, Munawar Ali s/o Jafar Ali and Andul Hafeez s/o Munawar Ali situated in Village Khalispur, District, Lucknow. After the death of Munnawar Ali, his share was transferred to his son Abdul Hafeez and he became the owner of 2/3 part i.e. 7-6-9 in the land recorded as Gata No. 288. Thereafter, he sold some part of his share measuring about 1-9-3 to Abdul Hamid Khan and remaining land vested with him. 3. On 22.8.1994, Abdul Hafeez sold his land measuring about 2 Bigha by registered sale-deed to father of the petitioners/Mojd. Sarif s/o Mohd. Idris and after execution of the sale-deed, father of the petitioner applied for mutation before the Tahsildar, Malihabad. 4. By order dated 6.1.1995 passed by Tahsildar, in a proceeding under Section 34 of Land Revenue Act, 1901, the land recorded in the name of the father of the petitioners in the revenue record. After the death of Abdul Hafeez, opposite party Nos. 4 to 7 moved an application under Section 33/39 of Land Revenue Act before the opposite party No. 3/Sub-Divisional Magistrate, Malihabad, District-Lucknow to which petitioners filed their objections. 5. On 30.9.2013, opposite party No. 3 allowed the said application thereby adding the name of opposite party Nos. 4 to 7 as a co-owner of land recorded as Gata No. 288. 6. Aggrieved by the said order, petitioners filed Revision No. 606 of 2013-14 C-2013100000340 under Section 219 of L. R. Act before the opposite party No. 2/Additional Commissioner, Lucknow Division, Lucknow. On 29.12.2015, opposite party No. 2, after taking into consideration the matter and facts on record as well as written argument filed by the parties, allowed the revision. 7. Thereafter, on 2.1.2016, opposite party Nos. 4 to 7 moved an application for recall of the order dated 29.12.2015. On 29.12.2015, opposite party No. 2, after taking into consideration the matter and facts on record as well as written argument filed by the parties, allowed the revision. 7. Thereafter, on 2.1.2016, opposite party Nos. 4 to 7 moved an application for recall of the order dated 29.12.2015. By order dated 22.2.2016, opposite party No. 2 recalled the order dated 29.12.2015 and restored the revision and directed to be heard on merit. In view of the above said factual background, the impugned order dated 22.2.2016 passed by opposite party No. 2 has been challenged by the petitioners before this Court. 8. Shri R.D. Sahi, learned counsel for the petitioners, while challenging the impugned order, submits that once the opposite party No. 2 had passed an order dated 29.12.2015 on merit in a Revision No. 606 of 2013-14 C-2013100000340 under Section 219 of L. R. Act, then he has no jurisdiction to allow the recall application moved on behalf of opposite party Nos. 4 to 7 and to restore the revision. In this regard, he has placed reliance on the judgment given by a Full Bench in the case of Smt. Anar Kali and others v. Deputy Director of Consolidation and others, 1997 (15) LCD 921. So the impugned order under challenge in the present writ petition is liable to be set aisde. Shri Mohd. Arif Khan, learned Senior Advocate while supporting the impugned order submits that in the instant matter, an application under Section 33/39 of Land Revenue Act has been moved by the opposite party Nos. 4 to 7 to which objections were filed by the petitioners. He further submits that as sale-deed has not seen the light of the day till date, so taking into consideration the said fact, opposite party No. 3/Sub-Divisional Magistrate, Malihabad, District-Lucknow passed an order dated 30.9.2013, which is perfectly valid. However, the same was challenged by the petitioner by filing revision, ex parte allowed by order dated 29.12.2015 as the opposite party Nos. 4 to 7 were not given any opportunity of oral hearing. 9. In view of the above said facts, opposite party Nos. 4 to 7, on 2.1.2016, moved an application for recall of the order dated 29.12.2015, allowed by order dated 22.2.2016. So there is no illegality or infirmity in the said order. Shri Mohd. 4 to 7 were not given any opportunity of oral hearing. 9. In view of the above said facts, opposite party Nos. 4 to 7, on 2.1.2016, moved an application for recall of the order dated 29.12.2015, allowed by order dated 22.2.2016. So there is no illegality or infirmity in the said order. Shri Mohd. Arif Kha, learned Senior Advocate on behalf of opposite party also submitted the following arguments : (a) As per the Law Lexicon, recall of the judgment means that the expression, ‘to recall’ a judgment as understood would be to revoke, cancel, vacate or reverse a judgment for matters of fact. When a judgment is annulled by reason of errors of law, it is said to be reversed. Accordingly, it is submitted by Shri Mohd. Arif Khan, learned Senior Advocate submits that as impugned order is an ex parte, so application for recall is maintainable. Even if there is no power to review of the impugned order vested with the opposite party No. 2 under the statute, the order dated 22.2.2016 is perfect and he can pass the same in view of the provisions of Section 202 of U.P. Land Revenue Act. (b) He further submits that as no opportunity of oral hearing is given to the petitioners, so order dated 29.12.2015 is an ex parte order which is rightly recalled by order dated 22.2.2016. 10. In support of his argument, he has placed reliance on the Division Bench judgment given by Hoble the Apex Court in the case of P.N. Films Ltd. and another v. Overseas Films Corporation Ltd., AIR 1958 Bombay 10 (V 45 C 3), wherein it has been held as under : “In our opinion, even giving to the expression ‘ex parte’ its plain natural meaning, the expression ‘ex parte’ does carry with it the connotation that a Court or a Judge or a Tribunal has proceeded in the absence of other party when it could have had the other party before it or when it was not prevented by law from having the other party before it.” And in the case of Palani Swamy Chetty. v. Salla Muthamma, AIR 1967 Andhra Pradesh 1 (V 54 C 1) Full Bench, this Court held that “if the expression “an order is passed ex parte” is to be restricted only to an order passed against a respondent in his absence either by the Controller or the appellate authority then it would follow that a petitioner before the Controller or an appellant before the appellate authority who is not served with notice of the date fixed for the enquiry of the petition or the hearing of the appeal by the appellate authority, cannot apply to set aside the order.” 11. Accordingly, he submits that as no opportunity of hearing has been given to the petitioners while passing the impugned order dated 29.12.2015, so the same is ex parte order and application for recall is maintainable. He further submits that against the order dated 22.2.2016, the revision is maintainable before this Court and this Court in exercise of its power under Article 226 of the Constitution of India should not interfere. 12. In support of his argument, he has placed reliance on the judgment given by Hon’ble the Apex Court in the case of M.P. Mittal v. State of Haryana and others, (1984) 4 SCC 371 , wherein it has been held that “when that is so, we are of the opinion that he is not entitled to relief in these proceedings. The appeal arises out of a writ petition, and it is well-settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief. On that ground alone, the appeal must fail.” And in the case of Chandra Singh and others v. State of Rajasthan and another, (2003) 6 SCC 545 , Hon’ble the Apex Court held that “issuance of a writ of certiorari is a discretionary remedy. This is a case where the High Court was fully justified in refusing relief. On that ground alone, the appeal must fail.” And in the case of Chandra Singh and others v. State of Rajasthan and another, (2003) 6 SCC 545 , Hon’ble the Apex Court held that “issuance of a writ of certiorari is a discretionary remedy. The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of it jurisdiction under Article 142 of the Constitution of India is entitled to pass such order which will be complete justice to the parties.” And in the case of Bhartiya Seva Samaj Trust through President and another v. Yogeshbhai Ambalal Patel and another, (2012) 9 SCC 310 , wherein it has been held that “it is a settled legal proposition that the Court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. (Vide Gadde Venkateswara Rao v. Government of A.P., AIR 1966 SC 278 and Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, (1999) 8 SCC 16 ).” 13. It is further submitted by Shri Mohd. Arif Khan, learned Senior Advocate that in the present case, sale-deed has not seen the light of day, so no illegality has been done by the opposite party No. 3/Sub-Divisional Magistrate, Malihabad, District-Lucknow while passing the order dated 30.9.2013. However, by order dated 29.12.2015, opposite party No. 2, on the basis of the sale-deed, allowed the revision. Arif Khan, learned Senior Advocate that in the present case, sale-deed has not seen the light of day, so no illegality has been done by the opposite party No. 3/Sub-Divisional Magistrate, Malihabad, District-Lucknow while passing the order dated 30.9.2013. However, by order dated 29.12.2015, opposite party No. 2, on the basis of the sale-deed, allowed the revision. The said illegality has been brought to the notice of the opposite party No. 2 by way of recall application moved by the petitioners. In this regard, he has placed reliance on the paragraph 14 of the application and submits that in the said paragraph, it is categorically stated by the answering opposite party that the order dated 29.12.2015 may be recalled as the same has been obtained by fraud and misappropriation. So in view of the above said facts, order dated 22.2.2016 was passed by the opposite party No. 2 is perfectly valid. 14. Last argument raised by Shri Mohd. Arif Khan, learned Senior Advocate is that in the order dated 29.12.2015 is a non-speaking order as no reasoning has been given by the opposite party No. 2 while passing the same, the submissions made in the written submission filed by the opposite parties were not considered, rather on the point in issue, the impugned order is non speaking order, so application for recall moved by the opposite party is maintainable and cannot be said to be application for review as submitted by learned counsel for the petitioners. 15. In support of his argument, he has placed reliance on the judgment given by a Division Bench of this Court in the case of Babita Kasaudhan v. State of U.P. and others, (2016) 2 UPLBEC 1040, the relevant portion of the same quoted herein below : “Again in the case of Bhikhubhai Vithlabhai Patel and others v. State of Gujarat and another, (2008) 4 SCC 144 , the Hon’ble Apex Court has held in paragraph 33 as under. “33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the Court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.” Requirement of giving reasons in the decision taken is an integral part of the natural justice. Recording reasons is a safeguard against arbitrariness on the part of the decision making authority and minimises the chances of irrelevant or extraneous consideration from entering the decisional process and also minimises the chances of unfairness in conclusions. The recording of reasons ensures that the authority applies its mind to the facts and the reasons which impelled him to take the decision in question germane to the content and scope of the power vested in the authority. Reasons recorded in an administrative order also strengthens the judicial review of the administrative action. Supreme Court with regard to recording reasons, in the case of Prasad v. State of Karnataka, AIR 2009 SC 1911 , has observed as under. “Reasons introduce clarity in an order. Even in respect of administrative orders, Lord Denning M.R. in Breen v. Amalgamated Engg. Union observed: “The giving of reasons is one of the fundamentals of good administration.” In Alexander Machinery (Dudley) Ltd. v. Crabtree, it was observed: ‘Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.’ Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before the Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance.” In Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney, (2009) 4 SCC 240 , the Hon’ble Apex Court in paragraph 8 of the report has held as under. “The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.” Thus, the principles of natural justice is a foundational basis of administrative law and is essential part of fair procedure guaranteed by Article 14 of the Constitution. The same necessarily implies not only giving a notice and opportunity to show-cause, but also considering the explanation, if any, submitted to the show-cause notice, which should reflect from the order, failing which the action cannot pass the test of the natural justice. In the case of Ravi Yashwant Bhoir v. Collector, 2012(4) SCC 407 , the Hon’ble Apex Court in the case of removal of president, has reiterated that proceedings are quasi-judicial in nature and has emphasized on recording of reasons as follows. “43. In Krishna Swami v. Union of India and others, this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed. “47.... Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21.” 44. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21.” 44. This Court while deciding the issue in Sant Lal Gupta v. Modern Co-operative Group Housing Society Ltd. and others, (2010) 13 SCC 336 , placing reliance on its various earlier judgement held as under: “27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. 3. “The giving of reasons for a decision is an essential attribute of Judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind.” The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected.” 45. In Institute of Chartered Accountants of India v. L.K. Ratna and others, AIR 1987 SC 71 , this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The person who is adversely affected must know why his application has been rejected.” 45. In Institute of Chartered Accountants of India v. L.K. Ratna and others, AIR 1987 SC 71 , this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: “30. In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under Section 22 A of the Act. The exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a “finding”. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding”. 46. The emphasis on recording reason is that if the decision reveals the ‘inscrutable face of the sphinx’, it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.” Accordingly, it is submitted by learned Senior Advocate that there is no illegality in the order dated 22.2.2016 passed by opposite party No. 2, the writ petition is liable to be dismissed. 16. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.” Accordingly, it is submitted by learned Senior Advocate that there is no illegality in the order dated 22.2.2016 passed by opposite party No. 2, the writ petition is liable to be dismissed. 16. Shri R.D. Sahi, learned counsel for the petitioners, in rebuttal, submits that from the bare reading of the application for recall of the order dated 29.12.2015 moved by the opposite party Nos. 4 to 7 on 2.1.2016, it is clear that in the said application, nowhere it is stated that they had not been given any opportunity to put forward their case prior passing of the said order and it is ex parte order, rather the written argument filed by the petitioners as well as opposite party Nos. 4 to 7 was considered and discussed by the opposite party No. 2 while passing the order dated 29.12.2015. However, in the recall application moved on behalf of the said opposite parties, it is stated that order dated 29.12.2015 was obtained by fraud and misappropriation, so the said application is nothing, but amounts to application for review and keeping in view the said facts as well as provisions of Section 220 of L. R. Act, power of review is only vested with the Board of Revenue, hence opposite party No. 2 has got no power to review its earlier order dated 29.12.2015, as such, the argument advanced by learned counsel for the respondents in support of the order dated 22.2.2016 are misconceived. 17. He further submits that so far as the argument advanced by learned counsel for the petitioners, that the in view of the provisions as provided under Section 202 of the Act, opposite party No. 2 can recall its earlier order, has got no force. In support of his argument, he has placed reliance on the judgment given by this Court in the case of Hari Narayan and others v. Additional Commissioner (Judicial-II), Faizabad and others, 2015 (33) LCD 1851, wherein it has been held as under : “It is the admitted case of petitioners that while moving the application under Section 33/39, U.P.Land Revenue Act, the aforesaid fact that the petitioners’ name appeared in the revenue records of Fasli 1381-1386 was not mentioned. The said application filed under Section 33/39 of U.P. Land Revenue Act was decided on merits vide order dated 14.2.2005. The intent and import of Section 202, U.P. Land Revenue Act is to provide power to revenue Court or officer by whom an order has been passed in any proceeding under the said Act to make necessary correction in its order either on his own motion or on the application moved by the party, after such notice to the parties as may be necessary. It clearly means that such correction is permissible which is typographical in nature and which does not affect any material part of the case. The Land Revenue Act does not provide power of review to the revenue Courts. The order dated 13.1.2006 clearly amounts to review of the earlier order dated 14.2.2005, as the Court on the basis of certain facts which were not on records earlier has allowed the application for amendment in purported exercise of power under Section 202 of U.P. Land Revenue Act. Such exercise of power is not permissible under the law.” 18. I have heard learned counsel for the parties and gone through the records In the instant matter, it is not in dispute between the parties that a proceeding under Section 33/39 of the Act has been initiated by the opposite party Nos. 4 to 7 to which objections were filed by the petitioners on the ground that land in question has been purchased, which is part of Khata No. 288, by the Abdul Hafeez, father of the opposite party Nos. 4 to 7 by registered sale-deed. Thereafter, the order dated 30.9.2013 was passed thereby allowing the application under Section 33/39 of the Act. 19. Aggrieved by the said order, petitioners filed Revision No. 606 of 2013-14 C-2013100000340 under Section 219 of L. R. Act before the opposite party No. 2/Additional Commissioner, Lucknow Division, Lucknow, allowed by order dated 29.12.2015. After passing of the said order, on 2.1.2016, opposite party Nos. 4 to 7 moved an application for recall of the order dated 29.12.2015 passed in the revision, allowed by order dated 22.2.2016, 20. In view of the above said factual background, the main question which is to be considered in the present case as to whether application dated 2.1.2016 moved by the opposite party Nos. 4 to 7 moved an application for recall of the order dated 29.12.2015 passed in the revision, allowed by order dated 22.2.2016, 20. In view of the above said factual background, the main question which is to be considered in the present case as to whether application dated 2.1.2016 moved by the opposite party Nos. 4 to 7 for recall of the order dated 29.12.2015 is maintainable or not or it amounts to review application, so opposite party No. 2 has got no jurisdiction/power to review its earlier order dated 29.12.2015. 21. In order to decide the controversy involved in the present case, I feel appropriate to go through the provisions as provided under Section 202 and 220 of U.P. Land Revenue Act, which reads as under : “Section 202—Any Court or officer by whom an order has been passed in any proceeding under this Act may, within ninety days of such order, either of his own motion or on the application of a party, correct any error or omission, not affecting a material part of the case, after such notice to the parties as may be necessary. Section 220—The Board may review, and may rescind, alter or confirm any order made by itself or by any of its members in the course of (business connected with settlement). No decree or order passed judicially by it or by any of its members shall be so reviewed except on the application of a party to the case made within a period of ninety days from the passing of the decree or order, or made after such period if the applicant satisfies the Board that he had sufficient cause for not making the application within such period. A single member vested with all or any of the powers of the Board shall not have power to alter or reverse a decree or order passed by the Board or by any member other than himself.” Word ‘review’ in the Book of the Law Lexicon 3rd Edition 2012 has been defined as under : “A review is a proceeding which exits by virtue of statute. It is in its nature a new trial of the issue previously tried between the parties, the cause of action being brought into Court again for trial by a new petition. The proceeding in some respects resembles a writ of error, and also a new trial. It is in its nature a new trial of the issue previously tried between the parties, the cause of action being brought into Court again for trial by a new petition. The proceeding in some respects resembles a writ of error, and also a new trial. The term ‘review’ means a judicial re-examination of the case in certain specified and prescribed circumstances. (See Parduman Singh v. State of Punjab, AIR 1958 Pun 63, 68)..” Further, in the Book of Words and Phrases written by Justice R. P. Sethi, Former Judge, Supreme Court of India, Iind Edition (1950-2008), review has been defined as under : “The dictionary meaning of the word ‘review’ is “the eat of looking, offer something again with a view to correction or improvement”. It cannot be denied that the review is the creation of a statute, the Court in Patel Narshi Thakershi v. Pradyumansnghji Arjunsinghji, (1971) 3 SCC 844 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. Lily Thomas and others v. Union of India and others, (2000) 6 SCC 224 .” Word ‘recall’ in Black’s Law Dictionary Eight Edition at Page 1295 has been defined as under : “recall...............Revocation of a Judgment for factual or legal reason.” On bare reading of Section 220 of U.P. Land Revenue Act, 1901, the position which emerges out is that power of review of an order is only vested with the Board of Revenue. 22. Once the intention of Legislature while enacting under Section 220 of U.P. Land Revenue Act, power of review is not vested with the opposite party No. 2. So taking into consideration the said facts as well as settled legal proposition that unless the Act/rules so permit, the review application is not maintainable in case of judicial/quasi judicial orders. In the case of Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar, AIR 1965 SC 1457 , Hon’ble the Supreme Court had 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.” 23. In the case of Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar, AIR 1965 SC 1457 , Hon’ble the Supreme Court had 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.” 23. In the case of Harbhajan Singh v. Karam Singh, AIR 1966 SC 641 , the 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 receive 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.” In the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur, 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.” (See State of Orissa and others v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 .) In the case of Krishna Ashram Educational Trust v. District Judge, AIR 1995 All 415 , after placing reliance upon a large number of judgments of the Supreme Court, the Allahabad High 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.” 24. Therefore in absence of any statutory provision for review application under the L. R. Act by which the opposite party No. 2 has been given power to recall his earlier order, the action on his part thereby entertain the application for recall of the order dated 29.12.2015 by the impugned order dated 22.2.2016 is without jurisdiction. Moreover, from the bare perusal of the order dated 29.12.2015, the position which emerges out is that when the matter was heard, opposite party Nos. 4 to 7 were not present. Moreover, from the bare perusal of the order dated 29.12.2015, the position which emerges out is that when the matter was heard, opposite party Nos. 4 to 7 were not present. So after hearing the petitioners, parties were given opportunity to file written argument and the same were filed by the parties. After taking into consideration the said written arguments, an order dated 29.12.2015 was passed. Thus, opposite party Nos. 4 to 7 have been given any opportunity of hearing by way of filing written argument in the revision, then in that circumstances, it cannot be said that the order dated 29.12.2015 is an ex parte. In this regard, Hon’ble the Apex Court in the case of Union of India v. Sandur Manganese & Iron Ores Ltd. and others, JT 2012 (10) SC 476, held as under : “The principles of natural justice embody the right to every person to represent his interest to the Court of justice. Pronouncing a judgment which adversely affects the interest of the party to the proceedings who was not given a chance to represent his/its case is unacceptable under the principles of natural justice.” 25. Accordingly, the argument advanced by Shri Mohd. Arif Khan, learned Senior Advocate on the basis of the judgment given in the case of Mrs. Kamala Nair Bombay (Supra) as well as Palani Swamy Chetty (Supra) that the order dated 29.12.2015 is an ex parte order has got no force because in the present case, admittedly parties were given opportunities to file their written arguments and they filed the same and taking into consideration the written arguments submitted by the parties, the order dated 29.12.2015 was passed. So in no manner, it can be said that order dated 29.12.2015 is an ex-parties and in violation of principles of natural justice. (See Ghanshyam Raj Narain Dubey v. Union of India and others, 1998 (16) LCD 36). 26. So far as argument raised by Shri Mohd. Arif Kha, learned Senior Advocate that as sale-deed has not seen the light of day, so the order dated 29.12.2015 is a contrary to the facts of the case, has also got no force because in the order dated 29.12.2015, opposite party No. 2 had taken into consideration the material facts on record i.e. mutation order passed in a proceeding under Section 34 of Land Revenue Act and the written argument filed by the parties. Further, as the order dated 29.12.2015 is a non-speaking order, so opposite party Nos. 4 to 7 can’t get any benefit from case of Babita (supra), which is not applicable in the present case. 27. So far as argument advanced by learned counsel for the petitioner, that the order dated 29.12.2015 can be recalled by the opposite party No. 2 as per provisions of Section 220 of U.P. Land Revenue Act, is wholly misconceived because in the present case, application moved by the petitioner for recall of the order dated 29.12.2015 is nothing but it amounts to review as discussed above. So opposite party No. 2 has got no jurisdiction to review its earlier order as per provisions of Section 220 of U.P. Land Revenue Act and as per said section, power of review is vested with the Board of Revenue. Accordingly, this Court under Article 226 of the Constitution of India has got power of judicial review to consider the validity of the order dated 22.2.2016 on merit coupled with the fact that petitioner has got remedy against the order dated 29.12.2015 by filing revision before the Board of Revenue, as such, the argument in question is rejected having no force. For the foregoing reasons, the writ petition is deserves to be allowed. In the result, writ petition is allowed and the impugned order dated 22.2.2016 passed by opposite party No. 2 is set aside.