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2021 DIGILAW 282 (ALL)

Balram v. State of U. P.

2021-02-18

V.K.BIRLA

body2021
JUDGMENT : V.K. Birla, J. 1. Heard Sri Ram Sagar Yadav, Advocate holding brief of Sri Rajnesh Kumar, learned counsel for the petitioner and learned Standing Counsel and Sri Puneet Bhadauria, learned counsel for the respondent No. 4, Rasbihari and Sri H.N. Singh, learned counsel appearing for the respondent No. 5. 2. Present petition has been filed with following prayers: "I. Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 31.12.2020, passed by respondent No. 2 i.e. Additional Commissioner (Judicial), Kanpur Region, Kanpur in Appeal No. 02089 of 2019 (Computer Case No. C2019030000002089) (Balram v. Sub Divisional Magistrate), under Section 13 (1) of the U.P. Essential Commodities (Supply & Distribution), whereby, the respondent No. 2 allowed the recall application of the respondent No. 4 and recalled his judgment and order dated 26.6.2020, passed in the aforesaid appeal (Annexure 5 to this writ petition). II. Issue a writ, order or direction in the nature of mandamus permit the petitioner to" carry the stock of essential commodities and to restore the order dated 26.6.2020, passed by respondent No. 2." 3. By the order impugned herein dated 31.12.2020, the order passed by the appellate authority dated 26.6.2020 was recalled and the appeal was restored to its original number. Initially, the appeal of the petitioner herein was allowed by the Commissioner by the aforesaid order dated 26.6.2020 and his fair price shop license was restored. The said order was recalled on the ground that fraud has been played. Thus, the recall of the earlier order dated 26.6.2020 is on the ground that a fraud had been played in obtaining the said order. 4. Challenging the aforesaid order, placing reliance on a judgment of Hon'ble Division Bench of this Court in case of Smt. Urmila Jaiswal v. State of U.P. and others, 2013(4) ADJ 205 (DB), submission of learned counsel for the petitioner is that the appellate authority has no power of review and therefore, the order impugned herein is without jurisdiction. He submits that the statute does not confer any power on the appellate authority to review his own order. 5. He submits that the statute does not confer any power on the appellate authority to review his own order. 5. Per contra, learned counsel appearing for the caveator-respondent has placed reliance on a judgment of Hon'ble Apex Court in case of Industrial Infrastructure Development Corporation (Gwalior) v. Commissioner of Income Tax, Gwalior, Madhya Pradesh, (2018) 4 SCC 494 and submitted that in paragraph 21 of the aforesaid judgment, it has been held by the Supreme Court that a quasi-judicial order can be generally varied or reviewed when obtained by fraud. 6. Learned Standing Counsel has also supported the impugned order by submitting that any order obtained by fraud can be recalled or reviewed by the authority concerned and there is no bar to the same. 7. I have considered the submissions and have perused the record. 8. It is not in dispute that the impugned order dated 31.12.2020 recalling the earlier order dated 26.6.2020 has been passed on the ground that the same is obtained by playing fraud. 9. Insofar as power of any authority to review or recall its own order in case of fraud is too well-settled. In case of United India Insurance Co. Ltd. v. Rajendra Singh, AIR 2000 SC 538, the Hon'ble Supreme Court has held that no Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wrangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. Paragraphs 3, 14, 15, 17 of Rajendra Singh (supra) are quoted as under: "3. "Fraud and justice never dwell together." (Frans etjus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything" (Lazarus Estate Ltd. v. Beasley, 1956 (1) QB 702 .) 14. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagnnath (dead) by Lrs. and others { 1994 (2) SCC 1 } the two Judges Bench of this Court held: "Fraud avoids all judicial acts, ecclesiastical or temporal-observed Chief Justice Edward Coke of England about three centuries ago. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagnnath (dead) by Lrs. and others { 1994 (2) SCC 1 } the two Judges Bench of this Court held: "Fraud avoids all judicial acts, ecclesiastical or temporal-observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree- by the first Court or by the highest Court-has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings." 15. In Indian Bank v. Satyam fibres (India) Pvt. Ltd. 1996 (5) SCC 550 } another two Judges bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus: "Since fraud affects the solemnity, regularity 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." 17. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall 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." 10. The Hon'ble Single Bench of this Court in case of Smt. Rambeti v. State of U.P. and others, 2017(1) ADJ 59 , has also held that every authority, who has passed the order has also the power to review its own judgments provided the order is obtained by playing fraud or misrepresentation. In this case, the judgment, which was referred to by the learned counsel for the petitioner, in Smt. Urmila Jaiswal (supra) has also been considered in paragraph 7 of the judgment. In this case, the judgment, which was referred to by the learned counsel for the petitioner, in Smt. Urmila Jaiswal (supra) has also been considered in paragraph 7 of the judgment. Paragraphs 7, 8 and 9 of Smt. Rambeti (Supra) are quoted as under: "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 quasi 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. 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. 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. Ms. 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. Krishnaswamy 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 quasi judicial authority has power to set aside the order obtained by fraud practised upon that Court or where the Court is misled by the party and the Court itself commits a mistake which prejudices a party. 8. 23. "The proposition of law laid down by the Apex Court in the aforesaid case is that every judicial or quasi judicial authority has power to set aside the order obtained by fraud practised 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." 11. Paragraph 21 of Industrial Infrastructure Development Corporation (supra) is also quoted as under: "21. The general power, under Section 21 of the General Clauses Act, to rescind a notification or order has to be understood in the light of the subject-matter, context and the effect of the relevant provisions of the statute under which the notification or order is issued and the power is not available after an enforceable right has accrued under the notification or order. Moreover, Section 211 has no application to vary or amend or review a quasi judicial order. A quasi judicial order can be generally varied or reviewed when obtained by fraud or when such power is conferred by the Act or Rules under which it is made. (See Interpretation of Statutes, Ninth Edition by GP. Singh page 893)." 12. In such view of the matter, I am of the opinion that the order impugned herein does not suffer from any jurisdictional error. 13. I am consciously not referring to the merits of the findings recorded by the trial Court as it may prejudice rights of the parties in appeal, which has been restored to its original number. 14. Accordingly, no interference is warranted in the order impugned herein. 15. The petition is devoid of merits and is, accordingly, dismissed.