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Case Number

Civ. Misc. Writ No. 289 of 1955

Attorney(S)

D.S. Chowdhry
Standing Counsel and B.L. Chaturvedi

Judges

Hon'ble Mr. Gopalji Mehrotra

Acts

Sec. 13 of the U.P Agricultural Tenants (Acquisition of Privileges) Act
Sec. 202 of the U.P Zamindari Abolition and Land Reforms Act
CIVIL PROCEDURE CODE
provisions of Sec. 114, C.P.C and Order 47,
Sec. 66 of the Income Tax Act.
U.P Land Revenue Act.

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Smart Summary

Judgment Summary — Mehrotra, J.

Factual and Procedural Background

This petition under Article 226 challenges an order of the Additional Commissioner dated 11 January 1955.

Procedural and factual narrative as recorded in the opinion:

An application under Section 27 of Act X of 1947 was filed by the grandfather of Samokhi Lal (opposite party no. 2) for reinstatement of possession.
During those proceedings a compromise was said to have been arrived at between Kishan Lal and the petitioner (Kalika Prasad) under which four plots were given to Kalika Prasad.
While those proceedings were pending Kalika Prasad obtained a bhumidhari sanad; thereafter proceedings under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act were started (and stayed).
On an application by the opposite party the bhumidhari sanad granted to Kalika Prasad was cancelled by the Assistant Collector under Section 12 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act.
An appeal from the Assistant Collector's cancellation was preferred to the Additional Commissioner, who on 22 November 1954 allowed the appeal, set aside the Assistant Collector's order and maintained the grant of sanad to Kalika Prasad.
Opposite parties applied for a review; on 11 January 1955 the Additional Commissioner recalled his earlier order dated 26 November 1954 (the order of 22 November) and dismissed the appeal with costs — thereby maintaining the Assistant Collector's cancellation of the sanad.
The present petition seeks to quash the Additional Commissioner's order of 11 January 1955 on the ground that the Act does not confer power on the court to review its own order and that the Additional Commissioner thus had no authority to recall his earlier appellate order.

Legal Issues Presented

Whether a court or tribunal (specifically the Additional Commissioner in these proceedings) has the power to review its own appellate order under the U.P. Agricultural Tenants (Acquisition of Privileges) Act in the absence of an express statutory provision granting review.
Whether inherent jurisdiction or the provisions of the Civil Procedure Code (C.P.C.) — including rules on review and Order/Section references — apply to proceedings under the Agricultural Tenants (Acquisition of Privileges) Act so as to permit review by the appellate authority.
Whether suppression of material facts by the petitioner (as alleged by the opposite party) disentitles the petitioner to relief under Article 226.

Arguments of the Parties

Applicant / Petitioner (Kalika Prasad)

Main contention: The Act does not give power to any court to review its own order; the power of review is a creature of statute and cannot be exercised unless expressly conferred. Reliance was placed on authorities (e.g., Sampu Gourda Hanume Gourda v. State of Mysore and others) to support this proposition.
It was submitted that although Section 13 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act gives a right of appeal against cancellation of a sanad, there is no express provision for review; therefore inherent power cannot be invoked to review a signed judgment.
Separately (described in the opinion as “the next contention of the applicant”), it was argued that in order to meet the ends of justice and to avoid abuse of process the Additional Commissioner had inherent jurisdiction to recall an incorrect order. This argument was developed by (a) asserting applicability of C.P.C. procedure to proceedings under the Act (relying on Section 141, C.P.C.), and (b) contending that the State Government has power under Section 16 to make procedural rules without precluding C.P.C. — though the opinion records objections to this line.

Opposite Party (Samokhi Lal / Santokhi and others)

Contended that the petitioner had suppressed material facts and therefore was not entitled to relief under Article 226; the High Court's discretionary power under Article 226 should not be exercised in favour of a petitioner who has suppressed material matters.
Argued that proceedings under the Agricultural Tenants (Acquisition of Privileges) Act are civil in nature and that procedure under the Civil Procedure Code (notably Section 141) should apply to such proceedings, implying that review provisions might be read in or applied.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sampu Gourda Hanume Gourda v. State of Mysore, A.I.R. 1953 Mysore 156	Review is a remedy to be sought and granted only in special circumstances; review is not to be lightly invoked.	The opinion cites this case to support the proposition that review is exceptional and that review jurisdiction must be grounded in statute or special circumstances; used to bolster the view that absent statutory authority review should not be entertained.
Mt. Abhilakhi v. Sadhanand, 1931 A.I.R. All. 244	A Bench hearing an appeal under Letters Patent derives jurisdiction under the Letters Patent and not under Section 114 CPC; such a Bench has no power to review its own judgment (i.e., review power is not inherent).	Relied upon to show that appellate benches or courts do not possess an inherent power to review unless the statute or source of jurisdiction expressly confers it; used to argue against applying CPC review provisions to the present statutory appellate forum.
In re: Kajori Mal Kalyanmal of General Ganj, Kanpur (Income Tax context)	High Court had no power to review its order passed on a reference under Section 66 of the Income Tax Act.	Adduced as an authority illustrating that statutory schemes which create particular jurisdictional routes can exclude a court's power of review unless expressly provided.
Mt. Siraj Fatima v. Mahmood Ali, A.I.R. 1932 All. 293	Subordinate Revenue courts had no power to review their judgments; no provision for review under the U.P. Land Revenue Act; inherent jurisdiction could not be invoked to re-open matters such as partition when statutory provision lacking.	Used to demonstrate that revenue courts created by statute lack inherent review power where the statute does not provide for it; supports the proposition that review cannot be implied.
Ramchandra v. Beero Poallai, A.I.R. 1936 Mad. 531	Generally no court has a power of revising its own appellate orders nor a power of review unless specially conferred by statute.	Quoted to reinforce the general rule that review is a statutory creation and cannot be assumed to exist in appellate bodies unless expressly provided.
Decisions of other High Courts (e.g., Calcutta and Patna citations in the opinion)	Held that the power of review cannot be exercised until there is an express statutory provision to that effect.	These authorities were referenced as supporting authorities for the same general principle: review requires express statutory backing.
Privy Council decision reported A.L.R. 35 All. 331	Distinguished: a case where a void order was ignored by a subsequent order (not an exercise of review); a court can ignore a previous void order (e.g., dismissal for default when plaintiff was dead) rather than be said to exercise a review jurisdiction.	The court distinguished this authority from the present case: where an order is void it may be ignored; but where it is not void, review cannot be assumed without statutory authority.

Court's Reasoning and Analysis

The court analysed the matter in a stepwise manner, strictly on the basis of the statutory scheme and authorities:

Examination of the Assistant Collector's order cancelling the sanad: The Assistant Collector cancelled the sanad on two grounds — (a) the compromise purportedly arrived at between Kalika Prasad and the opposite parties was never acted upon, and (b) in the Section 27 proceedings the opposite parties had been declared tenants-in-chief while Kalika Prasad was recognised only as a sub-tenant, implying a declaration by a competent court that made grant of sanad to Kalika Prasad improper.
Review of the Additional Commissioner's earlier appellate decision: On first appeal the Additional Commissioner (22 November 1954) held that a compromise had in fact been arrived at, that Kalika Prasad had obtained a declaration in respect of four plots without fraud, and that the compromise acted as a bar to subsequent proceedings by Samokhi Lal and Santokhi. Consequently the Additional Commissioner allowed the appeal and restored the sanad.
On the review application the Additional Commissioner entertained review on the ground that courts have wide powers to review orders they had earlier passed incorrectly; he referred to the compromise (but treated it as limited to four plots and subject to dispute) and ultimately recalled his earlier appellate order and dismissed the appeal on 11 January 1955.
Statutory analysis: The court examined the statutory scheme — particularly Sections 12 and 13 of the Agricultural Tenants (Acquisition of Privileges) Act (Section 12 specifying grounds for cancellation of a declaration) and Section 16 (delegating rule-making power to the State Government for procedure) — and considered whether any provision expressly confers a power of review on the appellate authority.
Applicability of Civil Procedure Code: The court rejected the contention that provisions of the C.P.C. (notably Section 114 and Order 47; and the argument under Section 141 C.P.C.) could be used to import a review jurisdiction into the appellate authority created by the statute. The court reasoned that Section 16's rule-making power, and the absence of an express provision for review in the Act, suggests that the C.P.C.'s review provisions cannot be applied as a matter of course to the proceedings under the Act; furthermore, review is not merely a procedural matter but a jurisdictional one, and jurisdiction to review must be granted by statute.
Reliance on authorities: The court surveyed authorities (Full Bench and other decisions) establishing the consistent principle that review is a statutory remedy and cannot be assumed to exist in courts or statutory tribunals unless expressly conferred. The opinion distinguished cases where a prior order was void (and could thus be ignored) from ordinary cases where a court cannot simply re-open its own concluded appellate order on a second thought.
Application to facts: The court concluded that all material matters on which the Additional Commissioner said his previous order was wrong were already before him when the appeal was initially disposed of; no new facts were brought on review. Consequently the Additional Commissioner had effectively sat in appeal over his own prior decision and re-decided the matter without statutory power to do so.
On the allegation of suppression: The court observed that while Article 226 is discretionary and relief should not be granted where material suppression exists, the opposite party did not point out any material fact omitted from the petition that would have prevented a preliminary order — therefore suppression did not bar the remedy in this instance.

Holding and Implications

Holding: The petition is allowed; the court quashes the order of the Additional Commissioner dated 11th January, 1955, with costs.

Implications:

Direct effect: The specific order of the Additional Commissioner dated 11 January 1955 is quashed. (The opinion records this as the relief granted.)
Legal principle applied: The court reaffirmed the proposition — on the authorities it cited — that a power of review is the creation of statute and cannot be exercised by a court or tribunal unless expressly conferred by the statute under which that body derives jurisdiction; inherent jurisdiction cannot be invoked to create such a power in the absence of statutory authority.
No broader precedent created: The opinion confines itself to the statutory interpretation and application to the facts; it does not record any novel rule beyond the settled principle that review requires express statutory sanction. The decision's practical consequence is limited to quashing the Additional Commissioner's review order in this case.

Note: This summary is prepared solely from the content of the provided opinion. No additional facts or inferences beyond the text of the opinion have been introduced.

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Kalika Prasad v. Additional Commissioner, Agra Division And Others Opposite Parties.

Mehrotra, J.:— This is an application under Art. 226 of the Constitution praying that a writ of Certiorari be issued quashing the order passed by the learned Additional Commissioner dated the 11th January, 1955.

2. An application under Sec. 27 of Act X of 1947 was filed by the grand-father of Samokhi Lal, opposite party no. 2 for reinstatement of his possession. In those proceedings a compromise was arrived at between Kishan Lal and the petitioner in the present petition, Kalika Prasad under which four plots were given to him. During the pendency of those proceedings a bhumidhari sanad was obtained by Kalika Prasad applicant. Proceedings under Sec. 202 of the U.P Zamindari Abolition and Land Reforms Act were started. Those proceedings were stayed and on an application made by the opposite party the sanad granted to the applicant was cancelled by the Assistant Collector under Sec. 12 of the U.P Agricultural Tenants Acquisition of Privileges Act.

3. An appeal was preferred to the Additional Commissioner Agra division against the order of the Assistant Collector cancelling the sanad and the Additional Commissioner by his order dated the 22nd November, 1954, allowed the appeal, set aside the order of the Assistant Collector and maintained the order granting sanad to the applicant. Thereafter opposite party filed an application for review of judgment of the Additional Commissioner, who by his order dated the 11th January, 1954, recalled his order dated the 26th November, 1954, and dismissed the appeal with costs. The order of the Assistant Collector cancelling the sanad was, therefore, maintained by the Additional Commissioner by his order dated the 11th January, 1955. By the present petition the order passed by the Additional Commissioner is sought to be quashed on the ground that there is no power given to the court acting under the U.P Agricultural Tenants Acquisition of Privileges Act to review its own order. Sec. 12 of the Act provides that a declaration granted under Sec. 6 may, on the application of any person interested, be cancelled or modified by the Assistant Collector for any of the following reasons namely:—

(a) that the declaration was obtained fraudulently by the making of a false suggestion, or by the concealment from the Assistant Collector of something material to the case;

(b) that the declaration was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof,

(c) that a decree or order passed by a competent court in a suit or other proceedings with respect to the holding for which the declaration has been granted renders it proper that the declaration should be cancelled.

4. The order passed by the Assistant Collector cancelling the original order has been filed as annexure ‘B’ to the counter affidavit and from a perusal of the order it appears that the Assistant Collector cancelled the sanad granted to the applicant on two grounds. Firstly he held that the compromise arrived at between Kalika Pd. applicant to the present petition and the opposite party during the pendency of the proceedings under Sec. 27 of the Act was never acted upon between the parties and secondly on the ground that in those proceedings the opposite parties were declared to be tenants-in-chief and Kalika Prasad was only recognised as a sub-tenant and consequently there was a declaration by a competent court that the opposite parties were tenants-in-chief and the applicant could not be granted a sanad. On appeal the Additional Commissioner held that a compromise had beert arrived at between Kalika Prasad and the opposite parties under which four plots were retained by Kalika Prasad. He had obtained a declaration in respect of these plots and no fraud was committed by him in obtaining the sanad. Certainly that compromise acted as a bar to subsequent proceeding by Samokhi Lal and Santokhi. The court below did not correctly appreciate the situation in granting the relief to the respondents. Earlier in the judgment the Additional Commissioner has taken notes of the contention of the opposite party that there was no compromise between the parties and that the present petitioner had only been declared a sub-tenant in the proceedings under Sec. 27 of the Act. When an application for review was filed the review was entertained on the ground that the powers of a court dispensing justice are very wide and it is always open to court of law to review an order passed incorrectly earlier by him. The Additional Commissioner, thereafter, referred to the compromise and remarked that the compromise was in respect of four plots only, and that it had been rightly rejected by the court below. Kalika Prasad had said that he did not agree with the terms of the Compromise. At the time when the application for grant of a sanad was made, the proceedings under Sec. 27 of the Act were pending, and both the parties desired for the compromise. The main contention in the present petition is that although under Sec. 13 of the U.P Agricultural Tenants (Acquisition of Privileges) Act the right of appeal is given to a party against the order cancelling a sanad, no power to review has been given to any court under the Act and in the absence of any express provision in the Act which confers jurisdiction on the court to determine a particular controversy granting power of review no inherent power can be exercised by a court to review its judgment. The power of review is a power which is the creation of the statute, and unless the power is given to a court to review its order once the judgment has been signed, it cannot be reviewed. Reliance has been placed by the applicant on the case of Sampu Gourda Hanume Gourda v. State of Mysore A.I.R 1953 Mysore 156.. In that case the petitioners were granted certain land. An appeal to the Government against that order of the Revenue Commissioner was also dismissed. Thereafter an application for review of the order passed by the Government was presented and rejected but on a second petition the Government passed an order setting aside the grant of the land to the petitioner. An application was then filed under Art. 226 of the Constitution, and it was held by a Full Bench of that Court that the review is a remedy to be sought for and delivered under the special circumstances. Reference was also made to the case of Mt. Abhilakhi v. Sadhanand 1931 A.I.R Alld. 244.. The question raised in the Full Bench case of this Court was whether a Bench of this Court hearing an appeal under the Letters Patent had power to review its judgment, and it was held that a Bench hearing an appeal from the decision of a Single Judge derives his jurisdiction under the Letters Patent, and not under Sec. 114 of the Civil Procedure Code, and as such it has no power to review its own judgment. In an earlier case reported In re: Kajori Mal Kalyanmal of General Ganj, Kanpur,3 it was held that the High Court had no power to review its order passed on the reference under Sec. 66 of the Income Tax Act. In another case of this Court reported in Mt. Siraj Fatima v. Mahmood Ali A.I.R 1932 Alld. 293. it was held by a Full Bench of this Court that the subordinate Revenue courts had no power to review their judgments. That was a suit brought for setting aside a decree obtained in the revenue court against the minor on the ground that the guardian acted negligently, and it was observed at page 301 of the judgment that there is no provision for a review of judgment by a subordinate Revenue Court under the U.P Land Revenue Act. The doctrine of inherent jurisdiction can hardly be invoked in such a case. It would not be open to the Revenue Court to re-open the partition on the allegation that the guardian of the minor had been negligent. Similarly it has been held by a Calcutta Court in 45 Calcutta 809 and A.I.R 1931 Patna, (?) that the power of review cannot be exercised until there is an express statutory provision to that effect. In Ramchandra v. Beero Poallai A.I.R 1936 Mad. 531 at p. 540., of the report it has been observed by a Full Bench that 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. From the examination of these authorities it is clear that the power to review can only be exercise if it has been expressly conferred by the Statute. There is no inherent powers given to the Courts to reconsider their order once passed unless the power of review is granted expressly under the provisions of the statute. The contention of the opposite party is that there has been suppression of certain material facts and consequently the applicant is not entitled to a relief under Art. 226 of the Constitution. It is true that the power given under Art. 226 is a discretionary power and it has not to be exercised in favour of the petitioner who has suppressed the material facts of the case but the opposite party has not been able to point out any material fact which the petitioner failed to mention in his petition and which, if pointed out to this Court, would not have entitled him to get a preliminary order in the case.

5. The next contention of the applicant is that in order to meet the ends of justice and to avoid abuse of the process of law the Additional Commissioner had inherent jurisdiction, to recall the incorrect order which he passed. This argument has been based on two grounds. Firstly it is contended that the provisions of the C.P.C apply to the proceedings under the Acquisition of the Privileges Act. Sec. 16 of the Act gives power to the State Government to make rules for the purpose of carrying into effect the provisions of the Act. No power has been conferred on the State Government under Sec. 16 to frame rules regarding the maintainability and the disposal of the review applications. No rule has been pointed out which authorises the Additional Commissioner to review his judgment. The Act does not make the provisions of the Civil Procedure Code applicable to the proceedings in appeal under the said section. On the contrary Sec. 16 which expressly gives power to the State Government to frame rules relating to the procedure before the Assistant Collector and the appellate court, suggests that the Civil Procedure Code did not apply to the proceedings under the Act and the proceedings under the said Act are to be governed by the express provisions in rules framed by the State Government under Sec. 16. It is contended that the proceedings under the Agricultural Tenants (Acquisition of Privileges) Act are proceedings of a civil nature and the procedure prescribed in the Civil Procedure Code should be applied in view of the provisions of Sec. 141, C.P.C There are two objections to this contention of the opposite party. Firstly it is said that in view of the power given to the State Government under Sec. 16 to frame rules for the procedure to be followed in proceedings under the Act, the provisions of the Civil Procedure Code have been expressly excluded from its application to the proceedings under this Act and secondly it is contended that Sec. 141 only makes the procedure in suits under the Civil Procedure Code to be applicable to the Proceedings under the Act. But power of review is not a matter relating to the procedure. It is a matter relating to the jurisdiction of the Court. In this connection reference can as well be made to the case of Mt. Abhilakhi v. Sadanand A.I.R 1931 Alld. 244. The provisions of Sec. 114, C.P.C and Order 47, therefore, cannot be made applicable to the proceedings under the Agricultural Tenants (Acquisition of Privileges) Act. Reliance was placed by the applicant on the decision of their Lordships of the Privy Council reported in A.L.R 35 Alld. 331. That was a case where a suit was dismissed for default when the plaintiff was already dead. Subsequently the heirs made an application under Order 22 for substitution of their names on the ground that the suit was still pending and the order of dismissal was void. The trial court granted the application ignoring its previous order dismissing the suit for default and ordered the substitution of names of the heirs. Thereafter an appeal was filed to the Judicial Commissioner's Court and the Judicial Commissioner's Court allowed the appeal and rejected the application for substitution on the ground that as there was an order dismissing the suit for default, no application for substitution could be made as no suit was pending unless the order dismissing the suit for default was set aside on a proper application. The matter went up in appeal to the Privy Council and the order of the appellate court was set aside by the Privy Council and the trial court's order restored. Their Lordships of the Privy Council observed that the Court had ample powers to ignore its previous order which was a void order inasmuch as there could be no default of a person who was dead on the date when the suit came up for hearing. It was not a case where their Lordship came to the conclusion that the trial court had exercised its power of review. It was a case where an order which was void, was ignored by a subsequent order and the suit was regarded as pending. The case is, therefore, entirely distinguishable on the facts. In cases where a previous order passed by a court is ignored on the ground that the order was a void order, the position is entirely different. But there is no power in any Court to review its judgment unless that power is given under the provisions of the Statute. The Statute which confers a right of review itself indicates the limitation under which that power is to be exercised. But in the absence of any such power the Court cannot review its order on the mere ground that at a later stage it considers that its previous order was wrong.

6. I have already stated the facts of the present case in the earlier part of my order and it is apparent that all the matters on which the Additional Commissioner thought that his previous order was wrong, were present before him at the previous stage when the appeal was disposed of and all the points were urged by the parties and it cannot be said that there was any new facts given to the Additional Commissioner on which he could review his previous order. He could not sit in appeal over his own previous judgment and on a second thought quash the order of the subordinate court on the ground that it was erroneous.

7. I, therefore, allow this petition quashing the order of the Additional Commissioner dated the 11th January, 1955, with costs.

8. Petition allowed.

Kalika Prasad v. Additional Commissioner, Agra Division And Others Opposite Parties.

Judgment Summary — Mehrotra, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant / Petitioner (Kalika Prasad)

Opposite Party (Samokhi Lal / Santokhi and others)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kalika Prasad v. Additional Commissioner, Agra Division And Others Opposite Parties.

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