Dua, J. - (1.) 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 provision conferring such power ?
(2.) 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 Jagir Singh etc. v. The Settlement Commissioner etc, (1959) 61 P.L.R. 480 (F.B.) a decision by a Bench of three Judges of this Court. 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 Baijnith Ram Goenka v. Nand Kumar Singh, I L. R. 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 Monghyr 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 in Lala Pryag Lal v. Jai Narayan Singh, I. L. R. 22 Cal 418, 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 as Baijnath Ram Goenka v. Nand Kumar Singh, I. L. R 40 Cal 552. (P. C.). The learned counsel for the petitioners has referred us to the arguments for the appellant before the Judicial Committer 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. Ananiharaju Shetty v. Appu Hegade, A.I.R. l919 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 unsoiled, '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(supra) and Baij Nath Ram Gaenka (supra) were also noticed by the learned Judge and it was observed that the Board in Baij Nath's case(supra) had also declared in explicit terms that the power to review is not inherent in a Court. Ramachandra M. Deo Garu v. Beero Pollai etc., A. I. R 1636 Mad. 631 (F. B.) 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 Bai etc.A I. R 1841 Mad. 272 and S.J.S. Fernandas v. V. R. Chetty, A. I. R. 1953 Mad. 236. The Bombay High Court has In re Pranlad Krishna Kurne, A. I. R. 1951 Bom. 25 (F. B.), also made the following 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 harbeas corpus under Article 226 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 Ramnath Prasad v. S.T. A. Authority, A. I R 1967 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 in Rameshwar Sinha v. State of Bihar : A I. R. 1960 Pat. 6. From Allahabad High Court Debt Prasad etc. v. Khelawan etc. : A I. R. 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, Civil Procedure Code. After referring to two English decisions and to the decision of the Privy Council in Baij Nath Ram Goenka's case(supra), this rule was stated to be subject to certain qualifications. Briefly stated those qualifications are : (a) Before delivering and assigning 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 omission 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 may 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 authorized 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: Rasunddin Mia v. Raisaheb Dr. Hem Chandra Das, A. I R. 1961 Asa 124, V. Kesavan v. K. S. Raghavan etc., A. I. R. 1953 Coc. 488, Puttu Lal Gobind Dass v. Achchey Lal Nandu Lal, A. I. R. l956 V. P. 42, Ram Rakha Mal Bhandari v. Dina Nath Bhatia etc. : A. I. R. 1941 Lah 419, Jamadar Uttam Singh v. Punjab State etc., (1960) 62 P. L. R. 164 and The Ambala Bus Syndicate Private Ltd. v. State Government etc. : A. I. R. 1963 P&H. 92.
(3.) UTTAM Singh's case(supra) 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 & 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 & Kushia who thereupon preferred an appeal to the Additional Assistant Director but without success, considering themselves 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 Hoshiarpur in November, 1957, he afforded a hearing to the landowners concerned in the presence of the Director; On 3rd December, 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 an administrative decision made by him. Be that as it may, the fact remains that even if an administrative 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 (supra) which had been decided on 2nd February, 1959 was not brought to the notice of the Division Bench. In The Ambala Bus Syndicate case (supra), 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 (supra). Although I felt that some of the observations contained in Jagir Singh's case (supra) were too widely expressed, yet as I was disallowing the writ petition on another ground, I did not suggest reference to 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, volatile 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 Roop Singh v. State of Punjab, (1963) 65 P. L. R. 576 S C, according to which when Government delegates its power under East Punjab Act 50 of 1946 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 interfere with it under section, 42 of the Act, This decision has been pressed into service by the petitioner's learned counsel for the limited submission that the, order of the Government there was not sought to be supported on the basis of an inherent power of review vesting in the Government.;