Bhavneet Singh vs State of Jharkhand and Others

With the consent of the parties, the appeal is taken up for final disposal today itself.

The appellant is aggrieved of the order dated 16th July, 2002, passed by the learned Single Judge in WP (C) No. 3072/2002 whereby the writ

application filed by appellant against the order dated 12th April, 2002, passed by the respondent No. 2 was disposed of (in effect and substance

dismissed). The learned Single Judge declined to interfere with the pending review proceedings before respondent No. 2 and in fact, directed him

to dispose of the review application at his earliest. In this manner, apparently, therefore, the learned Single Judge took the view that exercise of

review jurisdiction by respondent No. 2 was proper and also that he rightly was proceeding to record evidence in the Review proceedings.

Shorn of unnecessary details, the crux of the matter is that against the cancellation of licenses of the appellant, the appellant had preferred an

appeal u/s 8 of the Bihar Excise Act, 1915, which was dismissed by the Appellate Authority. Against the order dismissing this appeal, the appellant

had approached the Member, Board of Revenue, under Clause (3) of Section 8 of the Act, who, in exercise of his revisional jurisdiction, had set

aside the order of the licensing authority and restored the licenses of the appellant. It appears that at a later stage, the Excise Department

approached the Member, Board of Revenue, by way of filing a Review Application. The Member, Board of Revenue, on consideration, dismissed

this Review Application filed by the Excise Department and upheld the order earlier passed by him, whereby he had allowed the revision

application of the appellant. This was done on 10.1.2002. Even while the appellant was still facing difficulty in the reopening of the shops, it

appears that the Excise Department filed a Second Review Application before the Member, Board of Revenue, being Review Case No. 16/2002

(arising out of the Board Case Nos. 4 to 7 of 2001). On 12.4.2002, respondent No. 2 being the Member, Board of Revenue, admitted the

Second Review Application and even condoned the delay and passed an interim order staying the operation of the earlier order passed by his

predecessor till the disposal of the Second Review Application. All this was done ex parte, in the absence of the appellant and without affording

any opportunity of hearing to him. To repeat, the delay was condoned in the appellant''s absence; order staying the operation of the earlier order

until the disposal of the Review Application was also passed in the absence of the appellant. For ready reference, we quote the order dated

12.4.2002 :--

ABSTRACT OF THE ORDER PASSED ON 12.4.2002

Order dated 12.4.2002 Heard, Admitted. The delay is condoned. The operation

of the order of my learned. Predeces-sor is stayed till the

disposal of this review matter. Put up with original case

record on 3.5.2002.

During the pendency of the writ application before the learned Single Judge, respondent No. 2 passed yet another order on 10.8.2002, which

makes a very interesting reading. It is reproduced hereinunder :--

10.8.2002. The learned Special G.P. appears on behalf of the State. The O.P. is absent. The case record No. 216/2000 Bhavneet Singh v.

Department of Excise, has been received from Board of Revenue, Bihar. The learned Special G.P. prayed that Shri Bindeshwar Lal of Bihar

Excise Department, who had received the revision petition of Bhavneet Singh on 28.9.2000 in the Board of Revenue at Patna may be summoned

to give evidence. He also prayed that Shri Sadanand Chaudhary, Retired Asstt. Commissioner, Excise, Bokaro, and Sri B.P. Mandal, present

Asstt. Commissioner, Excise, Bokaro, may be summoned to give evidence. Let notices be issued accordingly, and the D.C. Bokaro is instructed

to ensure their attendance in court without delay to give evidence.

One more chance is being given to the O.P. to appear, failing which the matter will be heard ex parte. Put up on 31.8.2002 for evidence.

Later :

Sd/- L. Singh.

The learned counsel for O.P. appears in Court today. His Hazari in accepted. To 31.8.2002.

Two broad questions emerge from the aforesaid narrative, firstly, whether a review application with respect to an order passed under Bihar

Excise Act, 1915, is maintainable at all and secondly, whether (if a Review application is held maintainable) an authority exercising the power of

review can embark upon the exercise of collecting evidence for the disposal of such a Review Application.

Admittedly, under the Bihar Excise Act, 1915, no provision exists which provides for the exercise of a review power by any authority. Section 8

of the Act is the only provision, which talks of the exercise of the power of control, appeal and revision. It is now an established principle of law

that the exercise of a review power is vested only specifically and explicitly through a Statute. The review power does not inhere in any court or

authority. Such power is traceable only in an express provision of law. If the power of review does not vest in an authority with reference to a

specific provision of law, it cannot be exercised. This principle of law stood established long back by their Lordships of the Supreme Court in the

case of Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, In this judgment, while dealing with the issue as to whether the

Government or a delegate of the Government had any power of review under the Saurashtra Land Reforms Act, their Lordships of the Supreme

Court held as under :--

The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to

review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to

our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its

own order, it is obvious that its delegate could not have reviewed its order.

It is, therefore, manifestly clear that in the absence of any provision in the Bihar Excise Act, 1915, providing for the power of review, the

respondent No. 2, therefore, completely and totally misdirected himself by entertaining the review application because the Bihar Excise Act, 1915,

did not confer any power of review upon him. In so far as the exercise of the review jurisdiction by the predecessor of respondent No. 2 earlier is

concerned, we are not called upon to pronounce upon the validity of that Act of the predecessor of respondent No. 2 whereby he first by

entertaining a review application had dismissed the same, because that issue does not arise for our consideration in this appeal. The fact still

remains that the non-existence of the review power either in the first instance or in the second occasion cannot clothe respondent No. 2 with the

Jurisdiction to review its earlier order. This now brings us to the other question of exercise of the review power for the second time.

A review power, by its very nature, is to review an earlier decision taken by a Court or an Authority. Review is done only once; it cannot be

done the second time. The power of review by its very nature is exercisable only once. It is not open to anyone to contend that a review power

once exercised is open to be exercised a second time, or a third time or even a fourth time. Actually the proceedings having been brought to an

end either at the original stage or through the medium of an appellate jurisdiction or a revisional jurisdiction are rarely opened up by the exercise of

statutory review power. Therefore, we have no hesitation in holding that unless a statute specifically lays down that review power can be exercised

more than once, no authority or Court has any jurisdiction to exercise a review power for the second time. In the present case, therefore, even

though respondent No. 2 did not have the jurisdiction to exercise review power, it having done so once, rightly or wrongly, it was not permissible

for him to exercise such a power second time even if such a power vested in him. There was, therefore, a patent error of jurisdiction, bordering on

absolute illegality.

We now come to the order dated 10th August, 2002, whereby the respondent No. 2, in exercise of the review power, has embarked upon the

exercise of collecting evidence. The scope of the exercise of a review power is limited to finding of errors apparent on the face of the record so as

to correct the miscarriage of justice, not to build up a new case for any of the parties, not to hold any enquiry of any kind.

In the case of Lily Thomas v. Union of India and Ors., reported In AIR 2000 SC 1650 their Lordships of the Supreme Court, while dealing

with the scope of review power, held as under :--

The dictionary meaning of the word ""review"" is ""the act of looking, offer something again with a view to correction or improvement. It cannot

be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, held

that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also

not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law

cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review

petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its

perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj and Others

Vs. State of Karnataka and Another, held :-

Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human

fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made.

Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no

statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts called

out such power to avoid abuse of process or miscarriage of justice. In AIR 1941 1 (Federal Court) the Court observed that even though no rules

had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy

Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajuntier Narain Rae v. Bijai Govind Singh

(1836) 1 Moo PC 117 that an order made by the court has find and could not be altered.

.......nevertheless if by misprison in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same

power which the Courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power

of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a

step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to

enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies. Basis for exercise of the power was

stated in the same decision as under :

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice

being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been

inadvertently made as if the party had been heard.

A review jurisdiction cannot be converted, thus, into a fact-finding enquiry. It cannot be treated as an extension of the original jurisdiction by a

Court or an authority. The limits and the constraints of the exercise of a review power are well known. It does not permit of recording new

evidence or collecting fresh material. It is only on the basis of the available record that a Court or an authority while exercising review jurisdiction

may find errors of law or fact apparent on the face of the order, or on record and, thus, proceed to pronounce orders in conformity with bringing

about justice between the parties, by correcting such an error. In the exercise of review jurisdiction, the errors cannot be corrected by recording

new evidence or supplying fresh material. That, perhaps, is the domain of an appellate Court which may either record evidence itself or remit the

matter to a subordinate Court for recording evidence with respect to an issue especially framed for such a purpose.

Looked at from any angle, from any legal point of view, we find that the exercise of power of review by respondent No. 2 was patently

erroneous, in violation of the provisions of the Bihar Excise Act, 1915, and contrary to the well established principles of law. On taking that view,

we have no hesitation in setting aside and quashing the orders dated 12th April, 2002, and 10th August, 2002, passed by the respondent No. 2.

Consequently, we quash and set aside lock, stock and barrel the review proceedings entertained and continued by the respondent No. 2 by

holding and declaring that under the Bihar Excise Act, 1915, there being no provision for exercise of review power, respondent No. 2 committed a

patent illegality in exercising such power and in entertaining and continuing the review application of the Excise Department.

The appeal is accordingly allowed. The judgment under appeal is set aside with all consequences. The appellant is awarded costs assessed at

Rs. 5000/- (Rs. five thousand).