Equivalent Citation: (1964)ILR 1Punjab and Haryana665, (1964)66PLR318 AIR 1964 punjab 249(FB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Decided On: 19.12.1963
Ratio Decidendi
"Judicial and quasi-judicial Tribunals do not possess any wider or more extensive inherent power than Courts."
JUDGMENT
Inder Dev Dua, J.
1. Deep Chand, Raj Karan and Kanwar Chand have approached this Court under Article 226 of the Constitution alleging that consolidation proceedings were held in village Taj Nagar, District Gurgaon in 1952. The draft scheme was prepared, published and confirmed in accordance with law and similary the holdings were repartitioned according to the scheme and the boundaries of the holdings as demarcated were also shown on the shajra. All the landowners including Har Narain, Respondent No. 2, took possession of their respective holdings and are still ' in possession. Deep Chand Petitioner dug a well and constructed a house on his land by spending Rs. 20,000/- or Rs. 25,000/-. Har Narain applied for the consolidation of his Chahl and Nehri land but his prayer was disallowed by the Assistant Consolidation Officer on 26-11-1952. Thereafter, he applied under Section 42 of the Consolidation Act urging that he had not been given any area worth -/8/-, but his application was filed after perusing a report called from the Consolidation Officer through the Settlement Officer as per order dated 28-5-1956. Thereupon, he moved the State Government on 3-10-1956 again by means of an application under Section 42 of the Act. This application was forwarded to the Director, Consolidation who after calling for the report from the Settlement Officer dismissed it on 27-6-1957, with the following remarks:
In my opinion, no further action is needed in view of the above facts. The papers be filed.
Still another application under Section 42 of the Act was submitted by Respondent No. 2 addressed to the Minister Incharge Consolidation. This was heard and disposed of by the Additional Director on 18-3-1960. In this order, after making the following observations
From the perusal of the record alone ho (Har Narain) does not appear to have suffered any injustice and there is hardly any need for interference under Section 42 of the Consolidation of Holdings Act....
the Consolidation Officer (F.S.) was directed to have a look at Har Narain's plots and to make suitable recommendations if he was of the opinion that the plot was such as required interference on grounds of equity. The Consolidation Officer (F.S.) made some recommendations and the Additional Director Consolidation by his order dated 18-3-1961 made adjustments to the following effect:
Har Narain Respondent will part with his certain holdings in favour of Deep Chand Petitioner; Deep Chand Petitioner will part with his certain land in favour of Raj Karan and Kanwar Chand Petitioners who will part with their certain land in favour of the Respondent Har Narain.
It is this order which is being assailed in the present proceedings. In para 5 of the writ petition it has also been asserted that Har Narain had made quite a number of petitions under Section 42 of the East Punjab Consolidation Act which were rejected after considering reports called from the Settlement Officer. As the Petitioners were never served with notice in any one of the said petitions except the one on which the impugned order dated 18-3-1961 was passed, they have tried to trace the other petitions but succeeded in only finding a few of them. The competency of the Additional Director, Consolidation to pass the order dated 18-3-1961 on the facts and circumstances of this case has been assailed and challenged.
2. In the written statement filed by Respondent No. 1, it has been admitted that the consolidation proceedings in the village in question have since been completed and records consigned to the record room. The impugned order dated 18-3-1961 has been pleaded to have been passed on the revision petition filed by Respondent No. 2 under Section 42 of the Consolidation Act. In reply to para 5 it has not been disputed that Respondent No. 2 had preferred applications under Section 42 of the Consolidation Act, but it has been submitted that they were filed in limine. Feeling aggrieved, Respondent No. 2 preferred another revision petition under Section 42 of the Act to the Government on which it was ordered that the case should be heard by the Director, Consolidation and it was as a result of this order that after hearing Respondent No. 2 the case was sent to the Consolidation Officer, Flying Squad by the Additional Director in exercise of the delegated powers under Section 42 vide his order dated 18-3-1960. The Additional Director, according to the reply, observed in the said*order that in view of the fact that Har Narain's petitions had been dealt with and filed several times earlier, interference would be necessary only if great and unbearable harm to him was disclosed. On investigation the Consolidation Officer, Flying Squad made a report on 16-8-1960 in which he stated that though it was difficult to disturb the possession of the right-holders at this late stage yet equity and justice demanded that the inferior land valued at -/4/- be divided amongst the right-holders according to their pre-repartition area. The Consolidation Officer, Flying Squad as a result of his investigation sent his proposal for the approval of the Additional Director, who after hearing the affected parties accepted the same: vide the impugned order. The power of the Deputy Commissioner to pass an order under Section 42 of the Act has been questioned in the reply on the ground that the Government had not delegated any power to the said officer. It has finally been pleaded that the Additional Director, Consolidation has inherent power and is competent to review his order passed in limine. In the written statement filed by Har Narain, Respondent No. a, the assertions contained in para 5 of the petition have been denied and it has been submitted that only one regular petition under Section 42 of the Consolidation Act had been submitted by him which was heard on merits and finally decided on 13-3-1061- No other petition under Section 42 was, according to his plea, rejected on merits. He has also controverted the plea that the impugned order was made on any revision or review application and it has been pleaded that no previous application under Section 42 had been heard and decided in accordance with law.
3. On behalf of the Petitioners reference has been made to the majority view of the Supreme Court in Roop Chand v. Punjab State Writ Petn. No. 77 of 1957 decided by the Supreme Court on 10th October, 1962 MANU/SC/0332/1962 : AIR 1963 SC 1503, according to which the Government cannot interfere under Section 42 of the Consolidation Act with an order passed by an officer in pursuance of the power of the Government delegated to him. In my opinion, the point raised in that case was somewhat different, for, there the power delegated was appellate power under Section 21 of the Act. In the case in hand the position is not exactly identical. Here, the previous orders were not passed on applications purporting to be under Section 42 of this Act. The impugned order, particularly the earlier part of it, passed on 18th March, 1960 clearly shows that a large number of applications were presented by the Petitioners and several of them were filed on the report of the Settlement Officer, in para 5 of the return by Respondent No. 1 also previous applications under Section 42 of the Act are stated to have been filed or dismissed in limine.
4. The question, therefore, arises; does the disposal of the petitions under Section 42 in limine make any difference? The Petitioners have cited Jamadar Uttam Singh v. Punjab State MANU/PH/0209/1960 : 1960-62 Pun LR 164 : AIR 1960 P&H 230 decided by (Bhandari C.J. and Falshaw, J. (as he then was) which suggests that an order of dismissal in limine passed under Section 42 cannot be said to be of no effect. This decision is also an authority for the view that a tribunal under the Consolidation Act has no power to vacate an earlier order and to replace it by another, but this is immediately followed by the observation that even if the tribunal has some inherent power it cannot be exorcised without assigning reasons for recalling the previous order and passing a new one. The question arises whether this observation affects the earlier view negativing any power in the tribunal to vacate an earlier order and to replace it by another one. There is, however, also another earlier Full Bench -decision in Jagir Singh v. Settlement Commissioner Pepsu MANU/PH/0136/1959 : 1959-61-Pun LR 480 : AIR 1959 P&H 457 (FB) where every tribunal, is held to have inherent power to correct its own error provided the circumstances are such that the correction of 'that error is necessary in' the interest of justice. Here,' again the question arises whether this broad observation is to be read in its own context or it (sic) down a proposition different from the one stated in Jamadar Uttam Singh's case, MANU/PH/0209/1960 : 1960-62 Punj LR 164 : AIR 1960 P&H 230. In my opinion, the question is of some importance and I would direct that the papers be laid before my Lord the Chief Justice for passing necessary orders under para 1(xx) proviso (b) Chapter 3-B, Volume V, High Court Rules and Orders and giving me the assistance of another Judge for hearing and deciding this case.
ORDER OF REFERENCE TO FULL BENCH
(D/- 23-8-1963)
(D/- 23-8-1963)
A.N. Grover and Inder Dev Dua, JJ.
5. It is unnecessary to state the facts which are set out in detail in the referring order dated 5th April 1963 of my learned brother Dua, J.
6. The main point on which the decision of the writ petition hinges is whether the Additional Director, Consolidation, was competent to review the order of the Director, Consolidation, dated 27th June,. 1957. It is claimed inter alia that the subsequent order dated 13th March 1961 was made, and could have been validly made in exercise of the inherent power that every Tribunal possesses to correct its own error provided, of course, the circumstances are such that the correction of that error is necessary in the interest of justice. A. Full Bench of this Court consisting of Dulat, Mehar Singh and R.P. Khosla, JJ. in 1950-61 MANU/PH/0136/1959 : Pun LR 480 : AIR 1959 P&H 457 (FB) while considering the scope of the power to review held that the State Government was not debarred from recalling an invalid and unjust and erroneous order made by it previously under Section 41 of the Pepsu Holdings (Consolidation and Prevention of Fragmentation) Act, 2007 (sic) That section was identically the same as Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. What had happened in that case was that after a scheme of consolidation had been framed and confirmed, the Revenue Minister visited the village in question and heard some complaints against the scheme and after considering them on the spot, he formed the opinion that the scheme, had not been prepared on fair and equitable lines. He directed the repartition of the entire village to be done afresh. Later on, the Government issued sin order in the following terms:
* * * that it has been decided that Ex-Revenue Minister's order dated ,13th February 1953, being legally without jurisdiction and ultra vires, be ignored and no repartition need be done do novo. * * * *
The argument addressed to the Full Bench was that the second order was invalid because the State Government having once exercised its power through the Reyenue Minister, the same State Government could not subsequently reverse that order or recall it. Dulat, J. delivering the judgment of the Bench observed:
* * * it seems to be essential to affirm that every tribunal has inherent power to correct its own error, provided, of course, the circumstances are such that the correction of that error is necessary in the interest of justice. Such inherent power is necessarily implied in the setting up of any authority on whom the responsibility of deciding any matter rests, and it seems to me that to deny such power to any tribunal would render that tribunal incapable of properly deciding the matters entrusted to it.
Reference was made in particular to the decision of the Allahabad High Court in Aijaz Ahmad v. Nazirul Hasan MANU/UP/0436/1935 : AIR 1935 All 868 which was followed by this Court in Assistant' Custodian, Evacuee Property v. Seth Rattan Chand 55 P&H LR 336 . After quoting a passage from the judgment of Iqbal Amad, J. of the Allahabad High Court, Dulat, J. proceeded to observe:
I am not aware if this rule has ever been doubted and the Supreme Court in Keshardeo v. Radha Kissen MANU/SC/0006/1952 : AIR 1953 SC 23 approved of it. I am not of course, saying that every time a Court or any other tribunal happens to make a wrong order it can subsequently reverse it, and I am aware that this inherent power, which' must vest in all tribunals, has to be exercised sparingly 'and only in circumstances which compel its exercise. All I am saying is that if a tribunal, and for that matter any other legal authority, decides to recall an order on the ground that it is invalid, the act of recall cannot be quashed merely on the ground that no such recall is permitted by any express provision of a statute. The question has to be decided in view of all the circumstances attending the recall.
7. The learned Counsel for the Petitioners has assailed the correctness of the view expressed by the Full Bench in two ways. It is contended firstly that the power to recall or review an order made by a Tribunal must be conferred by some express provision of a statute and in the absence of such a provision it cannot be validly exercised. Secondly, in the absence of any statutory provision the so called inherent power to recall or review its own order can only be exercised by a Tribunal within very narrow limits and that the observations which have been made, particularly in the concluding portion of the judgment which seem to indicate that a Tribunal is not debarred from recalling any invalid or unjust or erroneons order made by it previously are couched in a very wide language which may lead support to the argument that if an order is considered to be unjust erroneous even on the merits, it can be reviewed as has been sought to have been done in the present case.
8. It has to be seen what was the context in which the observations of Iqbal Ahmad, J., were made in the Allahabad case and whether the Supreme Court in Keshardeo's case MANU/SC/0006/1952 : AIR 1953 SC 23 had approved of the same. If that rule has the imprimatur of the Supreme Court, then that would be the law of the land and there would be no further room for argument. It is pointed out that the observations of the Allahabad High Court were made in a different context and entirely different set of circumstances which relate "to the second line of attack canvassed by the learned Counsel for the Petitioners for assailing the correctness of the observations contained in the Full Bench decision.
9. The question whether in the absence of a statutory provision a Court or a Tribunal is competent to review its own order has come up for consideration before the Courts in numerous cases, some of which may be referred, to with advantage. In Baijnath Ram Goenka v. Nand Kumar Singh ILR 34 Cal 677 the question was whether the Commissioner or any Revenue Authority had power to review his own order annulling the sale held for arrears of Government revenue. The decision in Lala Pryag Lal v. Jai Narayn Singh ILR 22 Cal 419 was followed in which the following observations have been made:
I cannot admit that such a power of review is inherent in every Judicial or Revenue Officer. It is a power expressly given by law to Judicial Officers under certain conditions, and therefore it cannot be assumed that, when not so given, it is inherent in every officer. If this had been so, there need not have been any legislation on the subject.
Their Lordships of the Privy Council in Baijnath Ram Goenka v. Nand Kumar Singh ILR 40 Cal 552 (PC), affirmed this decision in the following words:
Their Lordships are clearly of opinion that the order of the 23rd March, 1900, was final and conclusive, and that, so far as the Commissioner was concerned, he had no power to review that order, in the way in which he has reviewed it.
In Ramnath Prasad v. State Transport Appellate Authority, Bihar Patna MANU/BH/0037/1957 : AIR 1957 Pat 117 a Bench consisting of Ramaswami C. J. and Raj Kishore Prasad, J. held in a case under the Motor Vehicles Act that a power of review was not inherent in any authority and the moment a right to decide is exercised, the authority becomes functus officio, except for the matter of grave clerical error, or mistakes committed by the authority, for which the authority is responsible, and there is, therefore, no inherent power to review apart from the statute except to correct its own mistake. This was followed in Rameshwar Sinha v. State of Bihar MANU/BH/0002/1960 : AIR 1960 Pat 6 by a Bench of which Ramaswami C. J. was a member. A Full Bench of the Mysore High Court in, Sampa Gowda v. State of Mysore AIR 1953 Mys 156 has expressed the view that review is a remedy to be sought, for and applied under special circumstances. The jurisdiction or power to review cannot be assumed or imported in the absence of any specific provision therefore or of an indication of the conditions for the exercise of it. It is unnecessary to refer to the other cases which have been cited by the learned Counsel for the Petitioners who contends that all this case law does not appear to have received consideration by the Full Bench of our Court." It is not disputed by him that in certain limited circumstances the Court can always recall and review its own orders in exercise of inherent powers but it is submitted that that is limited and restricted to only those matters where the mistake has arisen owing to the fault of the authority or Court itself. It is contended that the Allahabad case on which the Full Bench relied was also of a very different nature inasmuch as there the allegation was that the decree-holder by the exercise of fraud had kept the judgment-debtor utterly uninformed of the execution proceedings and thus succeeded in purchasing property of considerable value at a very low price, but the Allahabad case certainly seems to lay down the rule and it is open to a Tribunal or a Court to recall and cancel its invalid orders and to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. According to the learned Counsel for the Petitioners, in MANU/SC/0006/1952 : AIR 1953 SC 23 the question was of the scope of Section 115 of the Code of Civil Procedure and" there is no reference to the Allahabad decision which according to the Full Bench was approved by their Lordships. In Ambala Bus Syndicate Private Ltd v State Government MANU/PH/0024/1963 : AIR 1963 P&H 92 my learned brother Dua, J. has observed that when an order is without jurisdiction, it is never too late to give effect to the plea that it is a nullity. But orders which are not so vitiated do become final and to permit all such orders to be varied or reversed on the merits whenever a quasi-judicial Tribunal or Court chooses to do so would be too sweeping a proposition to canvass and uphold. He proceeded to observe:
I am, therefore, extremely doubtful if the Full Bench decision, is truly an authority for such a wide proposition of such far-reaching consequences. The brief discussion before the Court in that case, so far as it is possible to discern from the judgment, also suggests that it was perhaps not intended to uphold the existence of an inherent power in all quasi-judicial tribunals to vary on the merits all quasi-judicial orders without regard to time and without adverting to the nature of the error or infirmity attaching to those orders.* * *It is one thing to say that clerical or accidental mistakes and errors may be corrected under inherent power, or ultra vires and wholly invalid orders which are without jurisdiction and; therefore, nullities, should be ignored or recalled or orders tainted with similar infirmities may be set right, it is quite another thing to throw over-board the established doctrine of res judicata.
10. As the point raised is one of the great importance inasmuch as the general observations made in the Full Bench decision are capable of being applied by Tribunals and other Authorities exercising quasi-judical functions for reviewing their, orders even on the merits on the ground that, they are unjust and erroneous, as has been sought to have been done in the present case, I am of the view that the following question deserves to be examined and answered by a larger Bench:
How far in the present case the Additional Director, Consolidation, was competent to recall or review his orders on the merits in the absence of any statutory provisions conferring such power?
The papers may be laid before my Lord the Chief Justice for constituting a larger Bench.
Judgment of the Full Bench
(D/- 19-12-1963)
(D/- 19-12-1963)
11. In this case we are called upon to answer the following question:
How far in the present case the Additional Director, Consolidation, was competent to recall or review his orders on the merits in the absence of any statutory provisions conferring such power?
12. Reference to a Bench of five Judges has been necessitated by the fact that doubt was entertained about the correctness of some of the observations contained in MANU/PH/0136/1959 : 1959-61 Pun LR 480 : AIR 1959 P&H 457, a decision by a Bench of three Judges of this Court.
13. Facts material for our present purpose are clear from the two referring orders and, therefore, need not be stated again. Shri K.L. Kapur, the Petitioners' learned Counsel, has submitted that a power of review is not inherent in a quasi-judicial tribunal and like appeals and revisions this power must be conferred by statute. He has, however, conceded the existence of inherent power to recall an invalid order or an order which is a nullity; it has further been conceded that inherent; power to correct clerical or arithmetical mistakes or mistakes arising from accidental slip or omission may also be considered to vest in a quasi-judicial tribunal. In support of his contention, he has, to begin with, relied on ILR 34 Cal 677 . The facts in that case are that the Plaintiff's property was sold for arrears of Government revenue by the Collector of Monthly and was purchased by Defendant No. 2. The Plaintiff and his co-sharers appealed to the Commissioner the Plaintiff's appeal was dismissed but that of the co-sharers allowed and the sale set aside. Subsequently, the Commissioner reviewed his order cancelling the sale, and, after setting it aside, affirmed the sale Defendant No. 1 was in consequence put in possession of the property by the Collector. A suit was thereupon instituted challenging the Commissioner's power to review his previous order. The Court of first instance upheld the challenge to the power of review in the Commissioner. On appeal to the High Court, competency of the Commissioner to review his previous order was sought to be supported. The argument apparently urged was that the word "final" in Section 25 of Bengal Act XI of 1959 only meant "not open to appeal". The High Court disagreed with the Appellant's contention and following a previous decision of that Court inILR 22 Cal 419 approvingly quoted a lengthy passage therefrom. Only relevant portion may here be reproduced:
I cannot admit that such a power of review is inherent in every Judicial or Revenue Officer. It is a power expressly given by law to Judicial Officers under certain conditions and therefore, it cannot be assumed that, when not so given, it is inherent in every officer. If this had been so, there need not have been any. legislation on the subject. We cannot hold that all this legislation was unnecessary. But in respect of the matters now before us, we find that those portions of the Code of Civil Procedure which confer the power to review a judgment and regulate the exercise-of such powers have not been extended to proceedings under the Bengal Acts of 1868 and 1880....
An appeal was taken from this decision to the Privy Council whose judgment is reported asILR 40 Cal 552 (PC). The learned Counsel for the Petitioners has referred us to the arguments for the Appellant before the Judicial. Committee at P. 553 of the report and has pointed out that it was submitted before the Board that every Court had an inherent power to alter on review an. erroneous order made by itself this submission, according to the learned Counsel, did not find favour with the Board as is apparent from the brief order. Anantharaju Shetty v. Appu HegadeAIR 1919 Mad 244 is the next decision cited. At p. 246, Seshagiri Aiyar J. has observed as follows:The last argument related to the inherent power of a judicial officer to review his own judgment. It is settled law that a case is not open to appeal unless the statute gives such a right. The power of review must also be given by the statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed, unless the Legislature had indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the trial Court unless such a power is given to it by statute.
The learned Judge then referred to some English and Indian decisions in support of his view. The decisions of the Calcutta High Court in the cases of Pryag Lal ILR 22 Cal 419 and Baij Nath Ram Goenka ILR 34 Cal 677 were also noticed by the learned Judge and it was observed that the Board in Baij Nath's case ILR 40 Cal 552 (PC) had also declared in explicit terms that the power to review is not inherent in a Court., Ramachandra M. Deo Garu v. Beero Pollai AIR 1936 Mad 531 (FB) has next been cited and reliance has been placed on the following observations at p. 540:
Generally no Court has got a power of revising its own appellate orders nor has a Court the power of review unless specially conferred on it.
The same view was taken in two later Single Bench decisions of the Madras Court in M.J. Kutinha v. Mrs. Nathal Pinto Bai AIR 1941 Mad 272 and Fernandes v. Ranganayakulu Chetty AIR 1953 Mad 236 . The Bombay High Court has In re, Prahlad Krishna MANU/MH/0040/1951 : AIR 1951 Bom 25 (FB) also made the folloing observations at p. 27:
It is clear that no Court has an inherent power of review. A power of review like a power of appeal must be conferred by statute. As far as the Criminal Procedure Code is concerned, no power of review is given to the High Court in criminal matters, and there is nothing in Article 226 which would induce us to hold that the Constitution has conferred a power upon the High Court of review in matters falling under that Article.
It is true that in that case the precise question before the Court was whether in an application for a writ of habeas corpus under Article (sic) of the Constitution it was open to the High Court to reconsider the matter on the same material but the Petitioners' learned Counsel relies on the observations quoted above as laying down a general principle on the absence of inherent power of review in a Court where the statute does not grant it. Coming to the Patna Court, on behalf of the Petitioners, reliance has been placed on two decisions, both under the Motor Vehicles Act. In MANU/BH/0037/1957 : AIR 1957 Pat 117, a Division Bench of that Court considered it to be well-settled that a power of review is not inherent in any authority. The moment a right to decide is exercised, the authority becomes functus officio, except for the matter of grave clerical errors or mistakes committed by the authority, for which it is responsible. There is therefore, according to that Court, no inherent power to review apart from the statute, except to correct its own clerical mistake. This decision was relied on by another Division Bench inMANU/BH/0002/1960 : AIR 1960 Pat 6. From Allahabad High Court Debi Prasad v. Khelawan MANU/UP/0013/1957 : AIR 1957 All 67 has been cited where a Division Bench observed that as a general rule no Court or Judge has power to rehear, review, alter or vary any judgment or order after it has been entered or drawn up respectively. Reliance for this observation was placed on Halsbury's Laws of England (Hailsham Edition) Vol. 19 p. 260 and Order 20, Rule 3, Code of Civil Procedure. After referring to two English decisions and to the decision of the Privy Council in Baij Nath Ram Goenka's case ILR 40 Cal. 552 (PC) this rule was stated to be subject to certain qualifications. Briefly stated those qualifications are:
(a) Before delivering and signing a judgment the Court can vary its order so as to clarify its intention rendering the language free from doubt.(b) The correction of any clerical mistake or error arising from accidental slip or omisison so as to, do substantial justice and effectuate the Court's meaning and intention.(c) If an order or judgment is entered without, notice to a party who has a right to be heard, the Court or Judge may set it aside.(d) If an order has been signed by inadvertence or failure of memory when it was intended not to be signed, it can be recalled,(e) When a decree is passed against a dead person it way be vacated and the case reheard; and(f) A Court has larger power of modifying or setting aside interlocutory orders.
After these illustrations, the Court again observed as follows:
It will thus be seen that unless authorised by statute a Court or Judge has no inherent power to set aside or modify a final order once made merely because it is wrong.
The other decisions cited on behalf of the Petitioners in support of this proposition are Rasunuddin Mia v. Dr. Hem Chandra Das AIR 1961-Assam 124, V. Kesavan v. K.S. Raghavan AIR 1953 Ker 439 , Puttu Lal Govind Dass v. Achchey Lal Nandu Lal MANU/PH/0209/1960 : AIR 1956 Vind. Pra 42, Ram Rakha Mal v. Dina Nath AIR 1941. Lah 419, 1960-62 Pun LR 164 : AIR 1960 P&H 230 and AIR 1963 Punj 92.
14. Uttam Singh's case 1960-62 Pun LR 164 : AIR 1960 Punj 230 is a Division Bench, decision by Bhandari, C. J. and Falshaw, J., (as he then was) on Letters Patent Appeal against the judgment, of Mehar Singh, J. In that case-during the course of consolidation proceedings a plot of land was allotted to three persons Ujagar, Raja and Kushia while two plots were allotted to Uttam Singh. Uttam Singh objected to this allotment as his land had been split up into two portions but his objections were overruled by the Consolidation Officer. On appeal by him, the Settlement Officer directed variation in the land allotted to Ujagar, Raja and Kushia who thereupon preferred an appeal to the Additional Assistant Director but without success. Considering them selves aggrieved, they presented two applications to the Minister, Consolidation of Holdings, who forwarded one of them to the Director retaining: the other with himself; he also sent for the records. When the Minister visited Hosiarpur in November, 1957, he afforded a hearing to the land-owners concerned in the presence of the Director. On 3-12-1957, he forwarded the second application also to the Director asking him to dispose it of under Section 42 of the Consolidation Act after affording the parties concerned an opportunity of' hearing. In the result both the applications presented by the said three persons were-with the Director in December, 1957. On 26th) March, 1958, he dismissed the first application forwarded to him by the Minister by a short order-Later he summoned the parties and after hearing them he set aside the order of the Additional Assistant Director under Section 42 and restored that of the Consolidation Officer with, inter alia, the following observations:
The C.H.M. had heard this case on 29th November, 1957 at Hoshiarpur and had expressed his opinion that it would be better to shift the Petitioners to one side of the path as before.
It was this order that was assailed by means of a writ petition and in the course of the judgment, it was observed:
It is impossible to make a broad general: statement which is applicable to all administrative-tribunals and to all situations, as to whether it is or is not within the power of an administrative officer to rehear, to reconsider or to modify and administrative decision made by him.... Be that as it may, the fact remains that even if an administratiye tribunal has inherent power to review its own order, it cannot exercise this power arbitrarily and without reason.6. The first point for decision in the present case is whether the first order passed by the Director can be said to be an order, passed under Section 42 of the statute. It is true that Section 42 empowers the State Government to call for and examine' the record of any case pending before or disposed of by any officer and to pass such order in reference thereto as it thinks fit, but it is not necessary that an order under Section 42 should be passed only after the records have been sent for and examined. It is a matter of everyday experience that Courts of law often dismiss applications for revision summarily without sending for or examining the records. If, therefore, the Director dismissed the Respondents' application on the 26th March, 1958, in limine and without examining the records, it cannot be said that his order was void and of no effect. The order dated the 26th March, 1958, was clearly an order under Section 42 of the statute.7. This brings me to consideration of the second question which has arisen in the present case namely, whether, a tribunal constituted by the Act of 1948, has been invested with the power to vacate an order passed by it and to replace it by another order. The answer is clearly in the negative. Even if a tribunal possesses some inherent power, the Director has given no reason for recalling his previous order and for passing a new one.
It appears that the Full Bench decision in Jagir Singh's case MANU/PH/0136/1959 : 1959-61 Pun LK 480 : AIR 1959 P&H 457 which had been decided on 2-2-1959 was not brought to the notice of the Division Bench in Ambala Bus Syndicate's case MANU/PH/0024/1963 : AIR 1963 P&H 92 I was called upon to consider the power of review in the tribunals constituted under the Motor Vehicles Act. Some of the cases cited before us in the instant case were also brought to my notice including the Full Bench decision in Jagir Singh's case, 1959-61 Pun LR 480 : MANU/PH/0136/1959 : AIR 1959 P&H 457. Although I felt that some of the observations contained in Jagir Singh's case, MANU/PH/0136/1959 : 1959-61 Pun LR 480 : AIR 1959 P&H 457 were too widely expressed, yet as I was disallowing the writ petition on another ground, I did not suggest reference ±0 a larger Bench. I however, did observe that orders which are ultra vires and without jurisdiction are ordinarily considered as nullities and it is never too late to give effect to the plea that -they are void. But orders not so vitiated become final and to permit all such orders to be varied or reversed on the merits whenever a quasi-judicial tribunal chooses to do so was with respects considered by me to be a doubtful proposition. To accede to such an unqualified power without statutory sanction was, in my view, violative of the rule which attaches finality to litigation and controversies before judicial and quasi-judicial tribunals. The Petitioners have also drawn our attention to a recent Supreme Court judgment in MANU/SC/0332/1962 : 1963-65 Pup LR 576 : AIR 1963 SC 1503 according to which when Government delegates its power under East Punjab Act 50 of 1948' to an officer and that officer in pursuance to such delegation hears an appeal and makes an order, the order of the officer is considered as the order of "the Government and the Government cannot inter-fere with it under Section 42 of the Act. This decision has, been pressed into service by the Petitioners' learned Counsel for the limited submission that the order of the Government there was not Bought to be supported on the basis of an inherent power of review vesting in the Government.
15. Shri Kapur has also made a reference to Halsbury's Laws of England, 3rd Edition, Vol. 22, paragraph 1665 at p. 785, where it is stated that as a general rule, except by way of appeal, no Court, Judge, or master has power to rehear, review, alter, or vary any judgment or order after it has been entered or drawn up respectively, either in an application made in the original action or matter, or in a fresh action brought to review such judgment or order. The object of the rule is to bring litigation to finality but it is subject to a number of exceptions, According to the learned Counsel, the case in hand does not fall under anyone of the exceptions illustrated there. A passing reference has also been made to Daryao v. State of U.P. MANU/SC/0012/1961 : AIR 1961 SC 1457, for the proposition that the rule of res judicata is not a technical rule but is based on public policy and that it is in the public interest that individuals should not be vexed twice over with the, same kind of litigation, the contention being that unless a power is, specifically conferred there should be no review of orders finally determining the, controversies, and that the inherent or implied power of review would be violative of this rule.
16. The Petitioners' counsel has further submitted that MANU/UP/0436/1935 : AIR 1935 All 868, from which Dulat, J., who prepared the judgment of the Full Bench in Jagir Singh's case, MANU/PH/0136/1959 : 1959-61 Pun LR 480 : AIR 1959 P&H 457 quoted a passage, does not lay down or support the broad proposition considered by the Full Bench to have been enunciated in that decision. Similarly, the Supreme Court decision in AIR 1953 SC 23, it has been contended, does not approve any such broad proposition.
17. The learned Advocate-General has in reply expressed his inability to support the existence of any general power of review as the passage from the Full Bench decision in Jagir Singh's case MANU/PH/0136/1959 : 1959-61 Pun LR 480 : AIR 1959 P&H 457 quoted in the referring order seems to convey and has indeed frankly conceded that there is no basis for the existence of any such general and unqualified inherent power of review. An officer discharging quasi-judicial functions, it is agreed, cannot review any and every erroneous order merely or solely because it is later considered to be wrong on the merits but asserts Mr. Sikri, that an inherent power to recall an erroneous order does vest in such an officer, the contention being that to recall an erroneous order is not to review the order but to exercise a different jurisdiction or power. It has further been contended that, in any event, there are several exceptions to the rule against the existence of an inherent power of review. The instant case, according to the counsel, falls within those exceptions. He too has relied for his submission on para 1665 of Vol. 22 of Halbury's Laws of England, (Simonds Edition). In addition, reference has been made to two Indian and one English decisions. In re S.N. Komaraswami AIR 1951 Mad 767 (sic), a Division Bench" laid down that a quasi-judicial tribunal like the Rent Controller or the appellate tribunal has an inherent power to set right mistakes made by la-advertence so long as the amendment does not amount to a review of the adjudication already made, in Shib Prosad Mondal v. The State of West Bengal MANU/WB/0148/1959 : AIR 1959 Cal 543, a case concerned with Motor Vehicles Act, a learned Single judge observed as follows:
In my opinion it is unnecessary to draw a close parallel with judicial proceedings. The R.T.A. carries out duties which are administrative but in certain respects of a quasi-judicial nature. I do not see why, when it finds that an order has been made inadvertently overlooking that the law had meanwhile been changed, that order cannot be rectified. All that the R. T. A. purported to do was to rectify a gross mistake which appeared on the face of the proceedings. It is not to be considered with the same strictness and formality as a review in a purely judicial proceeding. I should think that for an administrative body sometimes carrying out quasi-judicial functions, there is an implied power to rectify such mistakes.
The third case cited is Thymic v. Thymic (1955) 3 All ER 129 , a decision by the Court of appeal in a divorce matter. We have been referred to p. 145 where the following observations of Ever shed, L.J., in Meier v. Meier (1048) P. 89 at p. 95 are reproduced with approval:
I prefer not to attempt a definition of the extent of the Court's inherent jurisdiction to vary, modify or extend its own orders, if in its view, the purposes of justice require that it should do so.
and also where Morris, L. J., has without categorising or indicating limits, mentioned some illustrations in regard to the Court's powers. Main reliance has been placed by Mr. Sikri on the language of the illusrations (a) and (b) in which in addition to reliance on R.S.C, Order 28 Rule 11, for the power to correct clerical mistakes and errors arising from accidental slip or omission, the Court is also stated to possess inherent powers for this purpose. The counsel has further contended that such inherent power cannot be exhaustively defined and, even though he has not been able to lay his hand on any reported precedent similar to the instant case, he has, nevertheless, asserted that the present is a case in which the exercise of the Court's inherent power of review is called for.
18. The contention that power to recall an erroneous order is distinct and different from power of review and is, therefore, inherent in every quasijudicial tribunal, is supported neither by statute nor by any recognised principle or precedent, and indeed the difference appears to be too tenuous to form the basis of a sound argument. In the absence of statute, persuasive principle or binding authority, I am, as at present advised, unable to persuade myself to sustain the bald contention, for, in my view, power to recall an order like the one before us is only another name for the power to review it, and, therefore, cannot be claimed as a separate and distinct jurisdiction as suggested.
19. I am also of the view that neither para 1665 of Halsbury's Laws of England, Vol. 22, nor the ratio of the decided cases relied upon by Shri Sikri support his contention. Para 1665 occurs in Sub-section (i) of Section 2 headed "Amendment and setting aside judgments or orders". the preceding para 1664 speaks" of amendment before judgments or orders are drawn up; according to this para on discovering that an oral and im-perfected order was outside the Judge's jurisdiction, he has power to withdraw it. Para 1665, as the marginal heading suggests, deals with amendment of judgments and orders after they are drawn up and it unecuivocally lays down the general rule to be against the power to rehear, review, alter or vary any judgment or order after it has been entered or drawn up, the object of this rule apparently being to bring litigation to finality. That quasi-judicial tribunals are also governed by this general rule is not disputed before us. On behalf of the Petitioners also it has been conceded that in case of orders which are invalid or void they may be set aside and to this extent the exception to the general rule has not been questioned by the Petitioner's learned Counsel. The short question on which, on this view, the controversy centers is, whether the impugned order in the instant case is invalid or void and whether there is any further exception to the general rule against the existence of the inherent power of review, and if the impugned order is covered by it.
20. Shri Sikri has urged that there are other exceptions to the general rule prohibiting review. According to him, an order of summary dismissal can. always be recalled because it cannot be described to be an order on the merits. Whether or not this broad and unqualified contention, so put, is right does not call for considered determination, because in the instant case the Director, Consolidation has actually passed an order on 27-6-1957 after calling for a report from the Settlement Officer, and, as his order clearly shows, it was in the light of the position disclosed in the Settlement Officer's report that the final order was made. This order is in the circumstances clearly one passed by the Director after going into the merits and, being final, could only be set aside either on appeal or revision or review in accordance with the statutory provisions. It is not contended and indeed is not possible to contend that this order is a nullity being void and can, therefore, be ignored as non est.
21. At this stage I may point out that Order 28 Rule 11 of the rules of the Supreme Court is not identical with Section 152, Code of Civil Procedure, but the language of this section nor the rule embodied in it is claimed to be applicable to the case in hand. The observations from the decision in Meier's case, 1948 P 89 reproduced in Thynne's case 1955-3 All ER 129 must also, in my opinion, be read in their own context. The short point: which arose in that case was whether the decree absolute could be set aside and appeal against the decree nisi re-instated on the ground that failure to furnish the requisite security had been due to mistake on the part of the Appellant's solicitors. The head-note in that case which illustrates the position, is in the following terms:
A wife who had obtained a decree nisi for divorce against her husband applied for an order for security of her costs of an appeal by her husband and the Court of appeal directed that security should be provided by a specified date and that in the event of failure by the Appellant to provide security, the appeal should stand dismissed.... Owing to a mistake on the part of the Appellant's solicitors, payment of the security was not made by the date ordered, with the result that the appeal against the decree nisi stood dismissed, and in due course the decree was made absolute. On learning the fuels the Appellant applied to the Court of appeal to set aside the decree absolute and re-instate the appeal.Held, that there was no power in the Court by virtue of its inherent jurisdiction or otherwise to set aside the decree absolutely and re-instate the appeal. Per Somervell, L. J. There is no authority under which the Court has jurisdiction to deprive a party of rights which he has lawfully acquired under an order of the Court in circumstances of complete regularity on his part.
It is obvious that the observations of Evershed, L. J. are authority for the broad proposition canvassed on behalf of the Respondents before us. Judicial authority, it may be observed, belongs not to the exact words used in a judgment taken out of the context but to the principle accepted and' applied as necessary ground for decision. The passage quoted by the Respondents' learned Counsel does not, in my opinion, contain any such principle and is thus of no assistance to him.
22. Section 151, Code of Civil Procedure, undoubtedly reserves to the Court the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of. the Court but this power, though undefined, and rightly so, in my opinion, cannot be utilised for permitting a judicial or a quasi-judicial tribunal to vary and alter any order passed by it on the ground that it is later considered to be erroneous on the merits as indeed the existence of such wide power is rightly not canvassed by the learned Advocate-General.
23. It is, in my opinion, profitable here to refer to a recent decision of the Supreme Court in Mrs. V.G. Peterson v. O.V. Forbes MANU/SC/0099/1962 : AIR 1963 SC 692 and reproduce the following instructive observations:
When, however, we find that the Court acted without jurisdiction in attaching the property and in any case, in ordering such property to be handed over to Government we have to remember the other great principle which was stated many years ago in these words by Cairns, L.C. in Rodger v. Comptior D' Escompte de Paris, (1871) 3 PC 465 at p. 475:One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors....To say that, we are aware, is not to say that whenever a Court after wrongly deciding a case between two parties discovers that the decision was wrong it has the inherent jurisdiction to reopen the matter and to set matters right by altering the decision. In many cases when the Court had made a mistake the party who has suffered for that mistake is without any remedy except what he can get in accordance with the provisions of appeal, revision or review. As the Courts are careful to point out again and again, Courts of law have the jurisdiction to decide wrongly as (sic) as rightly and the mere fact that the decision is wrong does not give a party a remedy.
These observations, in my opinion, clearly negative any inherent power or jurisdiction in a judicial, and if I may say so with respect, also in a quasi-judicial tribunal, to re-open a decided cause and set matters right by altering the decision merely on discovering an error in it, on the merits.
24. To concede such a wide power of review, would, in my opinion, introduce into judicial and quasi-judicial decisions, disconserting element of permanent uncertainty and unpredictability tending to give an impression of quasi-judicial lawlessness, which 1 cannot persuade myself to, uphold. If Courts do not possess such a wide and sweeping power, it is difficult to accede such a, wide power in statutory judicial or quasi-judicial tribunals.
25. The case of void orders, or orders which, are without jurisdiction certainly stands on a different footing. It has often been said that an order which is a nullity or which is invalid does not require to be set aside and may be properly ignored, for, it is not only bad but is incurably bad. It is automatically null and void without more ado, though it is sometimes convenient to have it declared to be so. Again, power to correct apparent clerical or similar mistakes may also be presumed, but only if they do not affect the substance of the decision; otherwise there can be no power of review on the merits except to the extent that the statute confers it. Adverting for a moment to the question of the inherent power to save the suitors from the Court's own mistakes, two recent decisions of the Supreme Court may profitably be referred to as illustrative of this power. In Shivdeo Singh v. State of Punjab MANU/SC/0395/1961 : AIR 1963 SC 1909, on a writ petition by "A" for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of "B", G.D. Khosla, J., (as he then was) had cancelled the order, though "B" was not a party to the writ proceedings. Subsequently on "B's" filing a. petition under Article 226 for impleading him as a party to "B's" writ petition and re-hearing' the whole matter, Khosla, (sic) allowed his petition. On appeal, the Letters Patent Bench also affirmed this order. The Supreme Court on further appeal observed that there was nothing in Article 226 to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The Court then proceeded to observe:
Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In-doing so, he merely did what the principles of natural justice required him to do. It is said that the Respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed-out, it is precisely because they were not made-parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, in Jang Singh v. Brij Lal C.A. No. 087 of 1962 (SC), another decision by the Supreme Court (on appeal by special leave from the judgment and decree of this Court) a compromise preemption decree was secured by Jang Singh who was directed to deposit by 1-5-1958 Rs. 5,951/- less Rs. 1000/-, already deposited by him, failing which his suit was to stand, dismissed. On 6-1-1958 he applied to the Court for making the deposit. The Clerk of the Court, which was also the executing Court, prepared and handed over to the decree-holder who was admittedly illiterate, a challan for (sic) Rs. 4,950/- in the bank; the correct amount, however, was Rs. (sic) Jang Singh deposited Rs. 4,950/- on the same day. On his application for possession in May, 1958, the Naib Nazir reported that the entire amount, had been deposited in Court. On application by the vendee for payment of the deposit to him, the Naib Nazir reported that the deposit made was short by Re. 1/- with the result that the vendee prayed for the dismissal of the suit. The trial Court dismissed it but the first Appellate Court, on taking some evidence relieved Jang Singh, holding that he had been prevented from depositing the full amount by the act of the Court. Second appeal from this decree was allowed by a learned Single Judge of this Court holding that the finding of the Court of first appeal was unsupported by evidence. On appeal with special leave, the Supreme Court reversed the decision of ibis Court. Hidayatullah, J., who prepared the judgment of the Bench, spoke thus:This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person. The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahlmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared. It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must. be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at, least shared by the Court. If the litigant, acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the boun-den duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim:'Actus curiae neminem gravabit'In the present case the Court could have ordered Jang Singh to make the deposit after (sic) a certified copy of the decree thus levying it to him to find out the correct amount and make the correct deposit. The Court did not do this. The Court, on the other hand, made an order and through its Clerk prepared a challan showing the amount which was required to be deposited. Jang Singh carried out the direction in the order and also implication in the challan, to the letter. There was thus an error committed by the Court which the Court must undo and which cannot be undone by shifting the blame on Jang Singh. To dismiss his suit because Jang Singh was also partly negligent does not exonerate the Court from its responsibility for the mistake. Jang Singh was expected to rely upon the Court and its officers and to act according to their directions. That he did so promptly and fully is quite clear. There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of Jang Singh can be ordered to be dismissed.and a little lower down again:* * * the only conclusion that can be reached is that Jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court. In these circumstances, following the well-accepted principle that the act of Court should harm no one, the District Judge was right in reversing the decision of the Sub-Judge Sirsa.
The observations in these decisions though relate (sic) Courts, may on general principles equally apply to judicial and quasi-judicial tribunals. These decisions illustrate the narrow and restricted limits within which the inherent power of relieving suitors from the mistakes of Courts may legitimately be invoked for promoting the cause of justice which, according to our system, is administered according to law; they clearly do not lend any support to the broad and unqualified proposition that Courts are empowered to recall or review their earlier erroneous and unjust orders whenever it is discovered that the error was due to their own mistaken view on the merits of the controversy, and the observations in Mrs. Peterson's case AIR 1963 SC 692, clearly seem to negative it. I may observe that it is not claimed that judicial and quasi-judicial tribunals possess, in this respect, any wider or more extensive inherent power than the Courts. Speaking with all respect, therefore, I do venture to think that the observations in the Full Bench decision in Jagir Singh's case MANU/PH/0136/1959 : 1959-61 Pun LR 480 : AIR 1959 P&H 457 reproduced in the referring order of the Division Bench dated 23-8-1963 are too broadly worded and do not represent the correct exposition of law.
26. In the light of the foregoing discussion, in my opinion, the Additional Director was not competent to recall or review his orders on the merits in the case in hand and I would answer the question accordingly. In the circumstances of the case, there would be no order as to costs.
A.N. Grover, J.
27. I agree.
Jindra Lal. J.
28. I agree.
D. Falshaw, C. J.
29. I agree.
Harbans Singh, J.
30. I agree. Final Order of the Division Bench (D/- 19-12-1963)
Inder Dev Dua, J.
31. The Full Bench has held that the Additional Director was not competent to recall and review his order on the merits of the case in hand in, the absence of any statutory provision conferring: such power. No such power has been brought to our notice and it is not disputed that in view of the decision of the Full Bench the impugned order of Respondent No. 1 dated the 18th of March, 1961, must be quashed. The writ petition is accordingly allowed and the impugned order quashed and set aside. In the circumstances of this case there will be no order as to costs of these proceedings.
A.N. Grover, J.
32. I agree.
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