AI Structured Summary
Not yet generated for this judgment
Judgment
A.N. Venugopal Gowda, J.—The petitioner, physically challenged person, had the authorisation issued under the Karnataka Essential Commodities (PDS) Control Order, 1992 (for short, ''the Control Order''), to run a fair price depot at Kudrimani Village, Taluk and District, Belgaum. Said authorisation having been suspended on 28.04.2012 vide Annexure-A, by respondent No. 2, in exercise of the power under sub-clause (2) of Clause 12 of the Control Order, was questioned by filing an appeal before the 1st respondent. By an order dated 23.05.2012, as at Annexure-B, appeal was allowed in part, respondent No. 2 was directed to grant reasonable opportunity of hearing to the petitioner and decide the matter within a period of 60 days and the interim order granted earlier, staying the operation of order of suspension was continued. 2nd respondent having not decided the appeal within the period allowed and the card holders of the fair price depot having represented, the 1st respondent, vide order dated 29.11.2012, as at Annexure-C, having recalled me order passed on 23.05.2012 and upheld the order dated 28.04.2012 of respondent No. 2, this writ petition was filed, to quash the orders as at Annexures-A and C. Sri. Sunil S. Desai, learned advocate, contended that the 1st respondent, exercising quasi-judicial power, having decided the appeal, vide order as at Annexure-B and the Control Order having not conferred any power of review or recall, has acted arbitrarily and illegally in passing the order, as at Annexure-C. He contended that the impugned order being null and void is liable to be quashed.
Smt. K. Vidyavathi, learned AGA and Sri. R.M. Kulkarni, learned advocate for respondent No. 3, on the other hand submitted that the order as at Annexure-A having merged in the order as at Annexure-B, which was not assailed by the petitioner, there cannot be any challenge to the same in this petition. They made submissions in support of the order as at Annexure-C and sought dismissal of me writ petition.
Keeping in view the rival contentions and the record of the case, point for consideration is, whether, Annexure-C is arbitrary, illegal and without jurisdiction?
Respondent No. 2 being the Authorised Authority, under the Control Order, passed the order of suspension, as at Annexure-A. Said order was assailed by filing an appeal, under Clause 17 of the Control Order. Respondent No. 1, in exercise of the quasi-judicial power, passed the order dated 23.05.2012, as at Annexure-B. Relevant portion thereof reads as follows:
Thereafter, respondent No. 1 has passed an order dated 29.11.2012, as at Annexure-C. Relevant portion thereof reads as follows:
Once an Authority exercising quasi-judicial power takes a final decision, such Authority cannot review its decision, unless the relevant statute provides for such review. In H.C. Suman and another Vs. Rehabilitation Ministry Employees Co-operative House Building Society Ltd. New Delhi and others, AIR 1991 SC 2160 : (1991) 3 JT 556 : (1991) 2 SCALE 448 : (1991) 4 SCC 485 : (1991) 3 SCR 839 : (1991) 2 UJ 716 , Apex Court, with regard to the power to review quasi-judicial order, has held that, once a quasi-judicial order becomes final, it cannot be reviewed by the Authority passing the same, unless such power is provided for. Therein, an order expressly rescinding an earlier valid order but impliedly nullifying a final quasi-judicial order issued by the same Authority, having been assailed, on the ground that there is no power conferred, it was held that in the absence of power conferred by the Statute on such Authority, rescission order passed is bad in law.
In Binabai Bhate Vs. State of Madhya Pradesh and Others, (2011) 7 JT 510 : (2011) 6 SCALE 726 : (2011) 13 SCC 32 : (2011) 7 SCR 31 : (2011) 5 UJ 2821 : (2011) AIRSCW 4268 : (2011) 4 Supreme 741 , with regard to power of review, it has been held that, the power of review against an order passed earlier, being a creature of statute and no power of review having been provided for under the statute, the order passed by the High Court holding that there cannot be any review, is justified.
In Haryana State Industrial Development Corporation Ltd. and Others Vs. Mawasi and Others etc. etc., AIR 2013 SC 3874 : (2012) 4 CTC 554 : (2012) 6 JT 211 : (2012) 6 SCALE 60 : (2012) 7 SCC 200 : (2012) AIRSCW 4222 : (2013) AIRSCW 1612 : (2012) 8 Supreme 600 , Apex Court has held as follows:
"26. At this stage, it is apposite to observe that the power of review is a creature of the statute and no court or quasi-judicial body or administrative authority can review its judgment or order or decision unless it is legally empowered to do so."
In Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Others, AIR 2010 SC 3745 : (2010) 9 JT 382 : (2011) 1 RCR(Civil) 216 : (2010) 9 SCC 437 : (2010) 10 SCR 971 , on the issue relating to review in the absence of statutory provision, it has been held as follows:
"12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibhai etc. Vs. Narayanrao Khanderao Jambekar and Another, AIR 1965 SC 1457 : (1965) 2 SCR 328 and Harbhajan Singh Vs. Karam Singh and Others, AIR 1966 SC 641 : (1966) 1 SCR 817 .
In Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 : (1971) 3 SCC 844 , Major Chandra Bhan Singh Vs. Latafat Ullah Khan and Others, AIR 1978 SC 1814 : (1979) 1 SCC 321 : (1979) 1 SCR 891 : (1978) 10 UJ 878 , Dr (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others, AIR 1987 SC 2186 : (1987) 13 ECR 944 : (1987) 32 ELT 8 : (1987) 3 JT 670 : (1987) LabIC 1901 : (1987) 2 SCALE 667 : (1987) 4 SCC 525 : (1988) 1 SCR 357 : (1988) 1 UJ 143 , State of Orissa and Others Vs. Commissioner of Land Records and Statement, Cuttack and Others, AIR 1998 SC 3067 : (1998) 5 JT 662 : (1998) 4 SCALE 682 : (1998) 7 SCC 162 : (1998) 1 SCR 130 Supp : (1998) AIRSCW 2975 : (1998) 7 Supreme 31 and Sunita Jain Vs. Pawan Kumar Jain and Others, (2008) 1 DMC 324 : (2008) 2 JT 19 : (2008) 2 SCALE 13 : (2008) 2 SCC 705 , this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision'' for the same is a nullity being without jurisdiction.
Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible."
In the instant case, order as at Annexure - B having been passed, respondent No. 1 became functus officio. Control Order, 1992, having not conferred power to review or recall an order, respondent No. 1 has acted illegally in passing the order, as at Annexure-C, thereby, rescinding the order passed vide Annexure-B. Undeniably, the petitioner was not provided with an opportunity of hearing before passing the impugned order i.e., Annexure- C. Thus, there is violation of principles of natural justice also. Even otherwise, without assigning any reason, the order as at Annexure-A was upheld. Arbitrariness in the matter is writ large. Annexure-C is perverse and wholly illegal.
In the result, writ petition is allowed and the order as at Annexure-C is quashed. As a consequence, remand of the matter, made to respondent No. 1, vide order as at Annexure-B stands restored. Respondent No. 1 shall decide the case with expedition and within a period of two months from the date a copy of this order becomes available.
No costs.