Allahabad High Court
Sudhir Kumar Maheshwari vs Additional District Judge Ct.No.07 And ... on 5 August, 2020
Equivalent citations: AIRONLINE 2020 ALL 1831
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED ON 5.2.2020 DELIVERED ON 5.8.2020 In Chamber Case :- WRIT - C No. - 33434 of 2013 Petitioner :- Sudhir Kumar Maheshwari Respondent :- Additional District Judge Ct.No.07 And 7 Others Counsel for Petitioner :- H.M. Srivastava,Neeraj Srivastava Counsel for Respondent :- Pankaj Rai Hon'ble Salil Kumar Rai,J.
1. Heard Shri H.M. Srivastava and Shri Neeraj Srivastava, counsel for the petitioner.
2. The respondent Nos. 3 to 8 instituted Motor Accident Claim Petition No. 244 of 2008 under Section 166 of the Motor Vehicle Act 1988 (hereinafter referred to as, 'Act, 1988') before Motor Accident Claims Tribunal, District-Bulandshahar (hereinafter referred to as, 'Tribunal') against the petitioner and respondent No. 2 claiming compensation for the death of Shri Nanak Chandra in an accident occurring on 16.6.2008 and caused due to rash and negligent driving of Truck No. U.P. 82 J 9175. The petitioner is the owner of the vehicle, i.e., Truck No. U.P. 82 J 9175 and the vehicle was insured with respondent No. 2, i.e., The National Insurance Company Limited. The respondent Nos. 3 to 8 are the dependents of (Late) Shri Nanak Chand. The Tribunal through its award dated 1.3.2011 awarded, to the claimants, a compensation of Rs. 3,69,500/- with a simple interest of 6% per annum calculated from the date of the institution of the claim petition. In its judgment, the Tribunal recorded that the petitioner had not filed the fitness certificate of the vehicle and, therefore, the Tribunal held that the petitioner, i.e., the owner of the vehicle and not the respondent no. 2, i.e., the Insurance Company, was liable to pay compensation. The petitioner filed a review application for review of the award dated 1.3.2011 alleging that the vehicle was a new vehicle and was registered for the first time on 25.1.2007 and, therefore, under Rule 62(1)(a) of the Central Motor Vehicle Rules, 1989 (hereinafter referred to as, 'Rules, 1989'), the fitness certificate of the vehicle was valid for two years from the date of registration, i.e., from 25.1.2007. The ground for review was that in cases of new vehicles, i.e., vehicles registered for the first time, fitness certificate of the vehicle is issued along with the registration certificate and the petitioner had filed the registration certificate of the vehicle, therefore, it was evident from the documents filed by the petitioner that the vehicle had a fitness certificate. On the aforesaid application of the petitioner, Review Application Case No. 92/2011 was registered before the Tribunal and the Tribunal vide its order dated 18.5.2013 dismissed the said application on the ground that it did not have the power to review its award.
3. The present writ petition has been filed by the petitioner praying for a writ of certiorari to quash the award dated 1.3.2011 passed by the Tribunal as well as the order dated 18.5.2013 of the Tribunal dismissing the review application filed by the petitioner.
4. Challenging the order dated 18.5.2013, the counsel for the petitioner have argued that a vehicle which is registered for the first time is issued a certificate of fitness alongwith the registration certificate itself and the fitness certificate is valid for a period of two years from the date of issue. It was argued that the registration certificate of the vehicle showing that the vehicle had, for the first time, been registered on 25.1.2007 was on record and the said document, by virtue of Rule 62(1)(a) of the Rules was sufficient evidence to prove that the vehicle had a fitness certificate on the relevant date, i.e., the date of accident and the failure of the petitioner to file the fitness certificate was not sufficient to absolve the Insurance Company from paying compensation. It was argued, that for the aforesaid reason, the award of the Tribunal releasing the Insurance Company and holding the petitioner/owner liable to pay compensation to the claimants on the ground that the petitioner had not filed the fitness certificate of the vehicle was contrary to law and thus liable to be quashed. It was further argued by the counsel for the petitioner that the failure of the Tribunal to consider the aforesaid aspect in its award dated 1.3.2011 was a mistake on the part of the Tribunal causing injustice to the petitioner and therefore the Tribunal had the inherent power to recall its award and the opinion of the Tribunal, as recorded in its order dated 18.5.2013, that it had no power to recall or review its previous award is contrary to law and thus the order dated 18.5.2013 is also liable to be set aside. In support of his arguments, the counsel for the petitioner has relied upon the judgements of the Supreme Court reported in Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal & Others, 1980 (Sup) SCC 420, Sunita Devi Singhania Hospital Trust & Another Vs. Union of India & Another, (2008) 16 SCC 365 and the judgements of Allahabad High Court reported in Sandhya Vaish & Another Vs. New India Insurance Company Limited & Others, 2010 (81) ALR 360; and Shaurabh Agrawal Vs. Additional Commissioner (Judicial), Agra Mandal, Agra & Others, 2011 (114) RD 217.
5. I have considered the submissions of the counsel for the petitioner.
6. It is settled law that power of review is not an inherent power and a judicial or a quasi judicial authority can review its previous order on merit only if it is vested with such a power by a statute either expressly or by necessary implication. It would serve no purpose to burden this judgement by reference to the numerous judicial precedents propounding the aforesaid view and it would be sufficient to refer to the observations made by the Supreme Court in paragraph no. 13 of its judgement reported in Naresh Kumar & Others Vs. Government (NCT OF DELHI), (2019) 9 SCC 416. Paragraph No. 13 of the aforesaid judgement is reproduced below :-
"13. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the statute concerned, such power of review cannot be exercised by the authority concerned. This Court in Kalabharati Advertising v. Hemant Vimalnath Narichania, has held as under: (SCC pp. 445-46, paras 12-14) "... 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 Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh.)
13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, Chandra Bhan Singh v. Latafat Ullah Khan, Kuntesh Gupta v. Hindu Kanya Mahavidyalaya, State of Orissa v. Commr. of Land Records & Settlement and Sunita Jain v. Pawan Kumar Jain 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.
14. 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."
(Emphasis supplied)
7. However, the courts have also admitted certain exceptions to the above rule.
8. In United India Insurance Company Ltd. Vs. Rajendra Singh & Others, (2000) 3 SCC P. 581, the Supreme Court held that a court or tribunal can recall or review its orders, if the judgement of the court or tribunal is obtained by practicing fraud or misrepresentation of such a dimension as would affect the very basis of the claim
9. Further, if the court or the tribunal, while adjudicating on merits, commit a procedural illegality which goes to the root of the matter and invalidates the proceedings itself and consequently the order passed therein, the court or the tribunals have the power to recall their order and rehear the case on merits after ascertaining whether they had committed the procedural illegality alleged by the applicant. Such a review has been referred by the courts as procedural review. In this regard it would be relevant to refer to the observations of the Supreme Court in paragraph nos. 19 and 20 of the judgement reported in Kapra Mazdoor Ekta Union Vs. Birla cotton Spinning And Weaving Mills Ltd. & Another, (2005), 13 SCC 777. Paragraph Nos. 19 and 20 of the aforesaid judgement are reproduced below :-
"19. Applying these principles it is apparent that where a Court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains whether it has committed) a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal, it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again.
20. The facts of the instant case are quite different. The recall of the award of the Tribunal was sought not on the ground that in passing the award the Tribunal had committed any procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the award, but on the ground that some mattes which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication."
(Emphasis supplied)
10. Apart from the aforesaid exceptions referred in United Insurance Company Ltd. (Supra) and Kapra Mazdoor Ekta Union (Supra), a Division Bench of this Court in its judgement reported in Debi Prasad & Others Vs. Khelawan & Other, 1956 ALL. L.J. 13 has also listed certain exceptions to the general rule that a judicial or quasi-judicial authority can review its order only if it is vested with the power by express provision or necessary implication. Paragraph No. 16 of the aforesaid judgement is relevant for the purpose and is reproduced below :-
"16. But the rule is subject to certain qualifications.
1. Until a judgment or order has been delivered and signed there is inherent in every Court the power to vary its own orders so as to carry out what was intended and to render the language free from doubt, or even to withdraw the order so that the decision may be recognised--Halsbury's Laws of England (Hailsham Edition) Vol. 19, p. 261; 'Lawrie v. Lees', (1881) 7 AC 19 (35) (G).
2. After the judgment or order has been entered or drawn up or signed, there is power both under Section 152, Civil P. C., and inherent in the Judge who gave or made the judgment or order to correct any clerical mistake or error arising from any accidental slip or omission so as to do substantial justice and give effect to his meaning and intention (1881) 7 AC 19 (G).
3. If an order for judgment has been made or judgment entered without notice to a party when that party had the right to be heard, the Court or Judge may set it aside--The Bolivier 1916-2 AC 203 (H); Halsbury's Laws of England (Hailsham Ed.) Vol. 19, p. 263.
4. If an order has been signed by inadvertence or failure of memory when it was intended that it should not be signed at that stage, the Court or Judge may recall the order--Jai Karan v. Panchaiti Akhara Chota Naya Udasi Nanak Shahi', AIR 1933 All 49 (I).
5. Where a decree has been passed against a dead person, the order may be vacated and the case reheard--Debi Baksh Singh v. Habib Shah', ILR 35 All 331 (PC) (J). The same rule applies to an order passed against a company which has already been dissolved or which was non-existent--Lazard Brothers & Co. v. Barque Industrielle de Moscou 1932-1 KB 617 (624) (K), S. C. on appeal Lazard Brothers & Co. v. Midland Bank Ltd., 1933 AC 289 (296) (L).
6. A Court has larger power of modifying or getting aside interlocutory orders than it has in respect of final orders. Thus an order for sale of unsaleable property may be set aside--Tafazzul Hussain Khan v. Raghoonath Prasad', 14 Moo Ind App 40 (PC) (M)."
(Emphasis supplied)
11. A reading of above case law shows that the courts or tribunals do not have the power to review, on merits, their own orders unless the same is expressly or by necessary implication provided in the statute but can recall and review an order if there has been some procedural illegality which goes to the root of the matter and invalidates the proceedings itself and consequently the order passed therein or if the order has been obtained by practicing fraud on the court. Further, every court has an inherent power to correct any clerical or arithmetical errors in its order. Subject to the aforesaid and also the exceptions listed in Debi Prasad (Supra), any order delivered and signed by a judicial or quasi judicial authority attains finality subject to appeal or revision as provided under the relevant statute and the proceedings cannot be reopened if the court or the quasi judicial authority is not vested with the power of review under the statute.
12. At this stage, it would be appropriate to consider the judgements referred by the counsel for the petitioner. The issue before the courts in Grindlays Bank Ltd. (Supra), Sandhya Vaish (Supra) and Shaurabh Agrawal (Supra) did not relate to the powers of the courts or tribunals to review their orders, on merit, even though the relevant statute did not confer any such power in them. The facts in the aforesaid cases referred by the counsel for the petitioner were covered by the exceptions admitted in United India Insurance Company Ltd. (Supra), Kapra Mazdoor Ekta Union (Supra) and Debi Prasad & Ors. (Supra).
13. The issue before the Supreme Court in Grindlays Bank Ltd. (Supra) was as to whether an order setting aside an ex-parte award would amount to a review and the Supreme Court answered in the negative. The Supreme Court held that no finality is attached to an ex-parte award which is always subject to its being set aside on sufficient cause being shown and the Tribunal, i.e., the Industrial Tribunal in the said case, had the power to deal with an application for setting aside an ex parte award. The issue in the Grindlays Bank Ltd. (Supra) did not relate to review of the order on merits. This aspect of the Grindlays Bank Ltd. (Supra), was also noted by the Supreme Court in Kapra Mazdoor Ekta Union (Supra). The observations of the Supreme Court in paragraph nos. 17 and 18 of Kapra Mazdoor Ekta Union (Supra) are relevant for the purpose and are reproduced below :-
"17. The question still remains whether the Tribunal had jurisdiction to recall its earlier Award dated June 12, 1987. The High Court was of the view that in the absence of an express provision in the Act conferring upon the Tribunal the power of review the Tribunal could not review its earlier award. The High Court has relied upon the judgments of this Court in Kuntesh Gupta (Dr.) v. Management of Hindu Kanya Maha Vidyalaya and Patel Narshi Thakershi v. Pradyumansinghji Arjunsingji wherein this Court has clearly held that the power of review is not an inherent power and must be conferred by law either expressly or by necessary implication. The appellant sought to get over this legal hurdle by relying upon the judgment of this Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal. In that case the Tribunal made an ex-parte award. The respondents applied for setting aside the ex-parte award on the ground that they were prevented by sufficient cause from appearing when the reference was called on for hearing. The Tribunal set aside the ex-parte Award on being satisfied that there was sufficient cause within the meaning of Order 9 Rule 13 of the Code of Civil Procedure and accordingly set aside the ex-parte award. That order was upheld by the High Court and thereafter in appeal by this Court.
18. It was, therefore, submitted before us relying upon Grindlays Bank Ltd. v. Central Government Industrial Tribunal that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal clearly highlighted this distinction when it observed (SCC p. 425, para 13):-
"Furthermore, different considerations arise on review. The expression 'review' is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal".
(Emphasis supplied)
14. In Sandhya Vaish (Supra), the Motor Accident Claims Tribunal had awarded interest to the claimant on the compensation amount at the rate of 9% per annum, but had not specified the period for which the interest was to be paid although it did not award interest for the period the claim petition stood dismissed in default. The aforesaid fact is evident from the contents of paragraph no. 5 of the reports. The claimants filed an application for review. The failure of the tribunal to specify the period for which the interest had to be paid made the award of the tribunal, so far as it related to payment of interest, unenforceable. The award of the Tribunal regarding payment of interest on the compensation amount could not have been satisfied without specifying the period for which the interest was to be paid. The error in the award in not specifying the period for which interest was payable could be corrected by the Tribunal in its inherent power to make the award enforceable as every court or tribunal has the inherent power to vary its own orders so as to carry out what was intended in the judgment or to correct any clerical mistake or error arising from any accidental slip or omission. The said exceptions to the general rule that no court or tribunal has the inherent power to review its own order, was recognized by the Division Bench of this Court in Debi Prasad (Supra).
15. In Shaurabh Agrawal (Supra), an ex-parte order was passed against the petitioner without serving any notice on him. Evidently, the case fell within the exceptions enumerated before.
16. In Sunita Devi Singhania Hospital Trust (Supra), the applicant had filed an application under Section 129-B(2) of the Customs Act for recall of the original order on the ground that certain issues raised by him and the facts involved in his case had not been considered by the Customs Excise and Service Tax Appellate Tribunal which passed the original order on the basis of facts involved in the appeal filed by another assessee whose case had been clubbed with the case of the applicant. The Tribunal dismissed the application on the ground that the application was barred by limitation. In this context, the Supreme Court held that, in such situations, the period of limitation prescribed in Section 129-B(2) of the Custom Act was not attracted if the application was filed within a reasonable time. In this regard, the observations of the Supreme Court in paragraph nos. 20 and 25 of the judgement reported in Sunita Devi Singhania Hospital Trust (Supra) are relevant and are reproduced below :-
"20. While the judges' records are considered to be final, it is now a trite law that when certain questions are raised before the Court of law or Tribunal but not considered by it, and when it is brought to its notice, it is the only appropriate authority to consider the question as to whether the said contentions are correct or not. For the aforementioned purpose the provisions of limitation specified in Sub-section (2) of Section 129 B of the Customs Act would not be attracted. We, however, do not mean to lay down a law that such an application can be filed at any time. If such an application is filed within a reasonable time and if the Court or Tribunal finds that the contention raised before it by the applicant is prima-facie correct, in order to do justice, which is being above law, nothing fetters the judges hands from considering the matter on merit.
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25. It may be true, as has been contended by Mr. Abhichandani, learned senior counsel that Section 14 of the Limitation Act, 1963 will have no application in view of the fact that provisions governing limitation are contained in the Customs Act. It is so for in a matter of this nature the Tribunal was required to consider the application filed by he appellant which was filed within a reasonable time. It should have also considered that the appellant had been bonafide pursuing its remedies before this Court."
(Emphasis supplied) The observations of the Court in paragraph No. 20 of the reports show that the issue before the Supreme Court in the said case was regarding the power of the Tribunal to entertain an application under Section 129-B(2) of the Customs Act if the said application was filed after the prescribed period of limitation but otherwise within a reasonable time. It would also be relevant to note that the judgement of the Supreme Court in Sunita Devi Singhania Hospital Trust (Supra) was passed under Article 142 of the Constitution of India.
17. There is no provision in Act, 1988 conferring the power of review on the Tribunal. It was in these circumstances that a Single Judge of this Court in Smt. Raj Kumari Vs. Motor Accident Claim Tribunal, Jaunpur, 2002 ALJ 833 held that the Motor Accident Claims Tribunal did not have the power to review its own order either under the old Act or under the new Act.
18. It is in the light of the aforesaid that I proceed to decide the merits of the present writ petition.
19. A reading of the review application filed by the petitioner (annexed as Annexure No. 4 to the writ petition) shows that the grievance of the petitioner was that the vehicle was a new vehicle registered for the first time on 25.1.2007 and under Rules 62(1)(a) of the Rules, 1989, the fitness certificate issued to the vehicle was valid for two years. The fitness certificate of a vehicle registered for the first time is issued alongwith the registration certificate itself. A reading of the grounds narrated in the review application show that the argument of the petitioner was that the registration certificate had been filed by the petitioner and the same was sufficient evidence that the vehicle had a fitness certificate valid for a period of two years. It was not stated in the review application that the fitness certificate had been filed alongwith the registration certificate. A reading of the award dated 1.3.2011 also shows that a photocopy of the registration certificate had been filed but the fitness certificate had not been filed by the petitioner before the Tribunal. The recital in the award that the petitioner, i.e., the owner of the vehicle had not filed the fitness certificate has not been controverted by the petitioner in the review application. Even if the argument of the petitioner based on Rule 62(1)(a) of the Rules, 1989 and that the registration certificate filed by the petitioner was sufficient evidence that the vehicle had a fitness certificate valid for two years and failure of the petitioner to file the fitness certificate was not material and sufficient to hold the petitioner, and not the Insurance Company, liable to pay compensation, is accepted, the same can be a ground for a review of the award on merits. The failure of the Tribunal to consider the aforesaid aspect is not a mistake or illegality committed by the Tribunal in the procedure followed by it while hearing the claim petition. The said ground does not fall in any of the exceptions narrated previously in the present judgement. The error, if any, by the Tribunal relates to misinterpretation of an evidence filed by the petitioner before the Tribunal or ignoring a relevant and material document and therefore could be an error apparent on the face of record, a ground for review on merits if the Tribunal had the substantive power to review its order on merits. The Motor Accident Claims Tribunal has no power to review its order on merits. Thus, the tribunal rightly refused to review its award and rightly dismissed the application filed by the petitioner.
20. For the aforesaid reasons, there is no illegality in the orders dated 1.3.2011 and 18.5.2013 passed by the Tribunal.
21. The writ petition lacks merit and is accordingly dismissed.
22. Interim order, if any, stands vacated.
Order Date :- 5.8.2020 Anurag/-