Gujarat High Court
Yunus vs Special on 1 March, 2012
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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SCA/14826/2011 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14826 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? Yes
2
To be
referred to the Reporter or not ? Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================================
YUNUS
IBRAHIM ADAM PATEL - Petitioner
Versus
SPECIAL
SECRETARY REVENUE DEPT.(APPEALS) & 9 - Respondents
=========================================================
Appearance
:
MR
DEVANG S. NANAVATI FOR MR HEMANT K MAKWANA
for
Petitioner
MS NISHA M THAKORE, ASSTT. GOVERNMENT PLEADER for
Respondents:1,6-9.
NOTICE SERVED BY DS for Respondent(s) : 1,5 -
10.
MR KASHYAP R JOSHI for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 01/03/2012
C.A.V.
JUDGMENT
Rule. Ms.Nisha M.Thakore, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1, 6 to 10. Mr.Kashyap R.Joshi, learned advocate, waives service of notice of Rule for respondents Nos.2 to 4. Respondent No.5 has been served but has not put in an appearance, therefore it is not considered necessary to issue notice of Rule to the said respondent. In view of the fact that it is the order of the Additional Secretary (Appeals) that is under challenge, the said respondent would not have much of a role to play in the petition.
By filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for the issuance of a Writ of Certiorari or any other Writ, order or direction, to quash and set aside the communication/ order dated 06.08.2011 of the Special Secretary (Appeals), Revenue Department, on the grounds stated in the petition.
The brief facts of the case relevant for the decision of the petition are that Mutation Entry No.3796 dated 10.11.1999, pertaining to revenue records of village Kantharia, District: Bharuch, reflecting family partition of various parcels of land between families of the heirs of Wali Ahmed and heirs of Wali Musa, came to be certified by the Circle Officer, Aali, pursuant to a Deed of Partition. It is the case of the petitioner that out of the various lands owned by the heirs of Ahmed Musa, Survey Nos.37/1 and 45/1 came to be owned by the present petitioner vide various Sale Deeds executed by the predecessors-in-title of the petitioner. Against the certification of Revenue Entry No.3796, some of the heirs of Wali Musa, the respondents Nos.2, 3 and 4 herein, preferred a Dispute Application before the Deputy Collector, Bharuch. Vide order dated 15.12.2008, the Deputy Collector cancelled Revenue Entry No.3796, and remitted the case to the Mamlatdar, Bharuch, to proceed in the matter after giving the parties an opportunity to submit fresh evidence on record, and pass an appropriate order. Against the order dated 15.12.2008 of the Deputy Collector, respondent No.5 herein, as Power-of-Attorney holder of the heirs of Ahmed Musa, preferred an appeal before the Collector, Bharuch. The Collector, vide order dated 25.06.2009, remanded the matter to the Deputy Collector, with a direction to decide the case within three months. Pursuant thereto, the Deputy Collector, vide order dated 30.11.2009, held that as Regular Civil Suit No.164 of 2001 was pending before the Competent Court, Revenue Entry No.3796 be restored subject to the outcome of the Civil Suit. Respondent Nos.2 - 4 preferred an appeal against this order of the Deputy Collector, before the Collector, Bharuch. Vide order dated 27.12.2010, the Collector partly allowed the appeal, by cancelling Entry No.3796 and directing maintenance of status-quo, stating that the order would be subject to the final outcome of the civil suit. The petitioner preferred a revision application against the order of the Collector dated 27.12.2010, before the Additional Secretary (Appeals), Revenue Department, along with an application for grant of a stay order. The revision application of the petitioner is pending final decision. However, upon the application for grant of an interim order, the Additional Secretary (Appeals), by order dated 30.04.2011, granted relief to the petitioner holding that "in relation to the impugned order of the Collector, Bharuch, status-quo may be maintained with respect to the Disputed Entry No.3796". An application was preferred by the learned advocate for respondents Nos.2-4 on 01.08.2011 before the Additional Secretary without notice to the petitioner, submitting that the authorities below had wrongly interpreted the order dated 30.04.2011 granting status-quo and that the Circle Officer had wrongly certified Entry No.4482 dated 02.07.2011, which had changed the condition of the land. The Additional Secretary (Appeals), vide communication/ order dated 06.08.2011, interpreted the order dated 30.04.2011, stating that status-quo be maintained as on 30.04.2011 and not of the order of the Collector dated 27.12.2010. It is the case of the petitioner that the communication/ order dated 06.08.2011 was issued by the Additional Secretary (Appeals) to the Collector, without notice to the petitioner. Aggrieved thereby, the petitioner has approached this Court by way of the present petition.
Lengthy and elaborate submissions have been advanced by Mr.Devang Nanavati, learned advocate for the petitioner, the gist of which is summarised as below:
(a) That the power of review has not been conferred upon the Additional Secretary (Appeals). A quasi-judicial authority cannot review its own order unless there is an express provision in the statute. As per the Rules of Business, the Additional Secretary (Appeals), while hearing a revision application under Sections 203, 204 and 211 of the Bombay Land Revenue Code, 1879 ("the Code" for short), has been conferred appellate and revisional powers, including powers of suo-motu revision. However, no powers of review have been conferred either by the Rules of Business or by the statute, therefore, review of the order dated 30.04.2011 by the Additional Secretary (Appeals) is not permissible in law.
(b) Even if it is assumed that powers of review were available to the Additional Secretary (Appeals), the review would have to be heard by the same authority, which is not the case in the present petition. The order dated 30.04.2011, granting status-quo has been issued by another authority whereby the so-called interpretation of the order has been made by another authority of the same designation.
(c) That, the impugned order dated 06.08.2011 is in the form of an internal communication from the Additional Secretary (Appeals) to the Collector, whereby the former has interpreted the meaning of "status-quo" in an erroneous manner so as to adversely affect the case of the petitioner and almost render the revision filed by him infructuous.
The impugned communication appears to have been issued in exercise of administrative powers and such powers cannot be used to interpret the order of status-quo which has the effect of reversing the order dated 30.04.2011.
(d) The impugned order has been passed without issuance of notice. No opportunity of hearing has been granted to the petitioner. The said order appears to have been passed upon an application made by respondents Nos.2 to 4, as is mentioned in the said order. No notice has been issued on the said application and the order of status-quo granted on 30.04.2011 has been reversed and consequential action taken, to the detriment of the petitioner, which is impermissible in law.
(e) That, the impugned order, passed by usurping power not vested by law in the authority, is a nullity.
(f) That, a public order that has been made in exercise of quasi-judicial powers, cannot be construed in light of an explanation given subsequently on the administrative side.
On the point that that a quasi-judicial authority of the revenue has no power of review unless the power of review has been expressly conferred on it by the statute, the learned advocate for the petitioner has placed reliance upon the following judgments:
(1)Bhagwanji Bawanji Patel v. State of Gujarat And Anr. - 1971(12) GLR 156 (2) Harbhajan Singh v. Karam Singh - AIR 1966 SC 641 (3) G.J.Kanga and Anr. v. S.S.Basha - 1992(3) Bombay CR 582 (4) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur And Others
- 1987 (32) ELT 8 (SC) (5) Patel Narshi Thakershi And Others v. Shri Pradyumansinghji Arjunsinghji - (1971)3 SCC 844 In support of the submission to the effect that the orders passed by usurping power not vested in the authority are a nullity, reliance has been placed upon the following judgments:
(1) The Purtabpore Co. Ltd. v. Cane Commissioner of Bihar And Others - (1969)1 SCC 308 (2) Pancham Chand And Others v. State of Himachal Pradesh And Others - (2008)7 SCC 117 (3) Commissioner of Income Tax, Shimla v. Greenworld Corporation, Parwanoo - (2009)7 SCC 69 (4) Commissioner of Police, Bombay v. Gordhandas Bhanji - AIR 1952 SC 16(1) In support of the submission that an order passed by a quasi-judicial authority cannot be construed in light of an explanation given subsequently, reliance has been placed upon Commissioner of Police, Bombay v. Gordhandas Bhanji (supra).
On the strength of the above submissions, it is prayed that the petition be allowed.
Ms.Nisha M.Thakore, learned Assistant Government Pleader appearing for respondents Nos.1, 6 to 9, has opposed the prayers made in the petition by submitting that the impugned communication dated 06.08.2011, cannot be termed as an order. It is, in fact, an internal communication addressed by the Additional Secretary (Appeals) to the Collector, telling his subordinate how to interpret a quasi-judicial order. It is submitted that the communication has been issued on the administrative side on the basis of an application filed by respondents Nos.2 to 4 and is more in the nature of a clarification rather than an order. As no irregularity or illegality has been committed by the concerned authority in issuing the said communication, the Court may not interfere, and the petition may be rejected.
Mr.Kashyap R.Joshi, learned advocate for respondents Nos.2 to 4, has submitted that the petition is not maintainable as the petitioner is challenging the communication dated 06.08.2011, which is not a formal order. It is further submitted that the said communication does not constitute any kind of review and only calls for a report from the Collector on the basis of an application filed by respondents Nos.2 to 4, therefore, the petition may be dismissed.
In support of the above submission, the learned advocate for respondents Nos.2 to 4 has placed reliance upon the judgment reported in Kapra Mazdoor Ekta Union v. Management of M/s.Birla Cotton Spinning and Weaving Mills Ltd. And others - AIR 2005 SC 1782.
Having heard the learned counsel for the respective parties, the first question to be determined by this Court is whether the impugned communication dated 06.08.2011, issued by the Additional Secretary (Appeals) to the Collector, amounts to a review of the order dated 30.04.2011, and if so, whether review of an order under Section 211 of the Land Revenue Code ("the Code" for short) is permissible in law, or not. A perusal of the communication dated 06.08.2011 reveals that it is an internal communication addressed by the Additional Secretary (Appeals) to the Collector, copies of which have been endorsed to the respective parties. It is in reference to order dated 30.04.2011 of the Additional Secretary (Appeals). It refers to an application made by respondents Nos.2 to 4 regarding mutation entry No.4482 dated 02.07.2011, recorded as a consequence of the order dated 30.04.2011, whereby respondents Nos.2 to 4 have stated that as a result of the said entry, the status of land has been changed by a wrong interpretation of the order dated 30.04.2011, therefore, the said order may be clarified. In the communication dated 06.08.2011, the Additional Secretary goes on to interpret the meaning of "status quo" and to state that it means "status quo" as it existed on 30.04.2011. He further asks the Collector to submit a report in seven days. From the above, it is amply clear that the interpretation of the order dated 30.04.2011, wherein it is stated that "status quo may be maintained in respect of the impugned order of the Collector in respect of the disputed entry No.3796"
has been made as "status quo as it existed in order dated 30.04.2011 be maintained" which would mean that Entry No.4482 dated 02.07.2011 that was recorded as a consequence of order dated 30.04.2011, would be cancelled. It is also evident that the impugned communication dated 06.08.2011 has been issued by a superior officer to his subordinate officer [the Additional Secretary (Appeals) to the Collector] on the basis of the application made by respondents Nos.2 to 4. The revision application of the petitioner is pending decision before the Additional Secretary (Appeals), under Section 211 of the Code. The matter is, therefore, sub-judice before the revisional authority who is exercising quasi-judicial powers under the Code.
There are only three provisions of law under the Code that empower exercise of appellate or revisional powers and they are Sections 203, 204 and 211. They are reproduced hereinbelow:
"203.
Appeal to lie from any order passed by a revenue officer to his superior:
In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or oder passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether such decision or oder may itself have been passed on appeal from a subordinate officer's decision or order or not.
204. Appeal when to lie to the State Government:-
Subject to the provision in the Bombay Revenue Tribunal Act, 1939, an appeal shall lie to the State Government from any decision or order passed by a Survey Commissioner, except in the case of any decision or order passed by such officer on appeal from a decision or order itself recorded in appeal by any officer subordinate to him.
... ... ...
211. Power of State Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers:-
The State Government and any revenue officer, not inferior in rank to an Assistant of Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
The following officer may in the same manner call for and examine the proceedings of any officer subordinate to them in any manner in which neither a formal nor a summary inquiry has been held, namely a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.
And to pass orders thereupon - If in any case, it shall appear to the State Government, or to such Officer aforesaid, that any decision or order or proceedings so called for should be modified, annuled or reversed, it or he may pass such order thereon as it or he deems fit:
Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit."
Upon perusal of the above-quoted sections, it does not transpire that powers of review have been conferred upon the revisional authority.
There is a notification dated 12.12.2008 of the State Government defining the powers of officers at all levels which reads as below:
"Government of Gujarat Revenue Departments Order No.OFM/102008/82/B Sachivalaya, Gandhinagar Dated the 12th December, 2008 Subject:
Orders defining powers of Officers at different levels under Instruction 4(1) of the instructions issued under Rule 15 of the Gujarat Government Rules of Business, 1990.
In pursuance of instruction 4(1) contained in the instructions issued under rule 15 of the Gujarat Government Rules of Business, 1990, I, Anandiben Mafatbhai Patel, Minister-in-charge of the subjects allotted to the Revenue Department hereby direct that the cases relating to the said subjects specified in the Scheduled appended hereto may be disposed off at such levels as are indicated in the said Schedules.
(Anandiben Mafatbhai Patel) Minister"
Schedule VII to the said Notification, insofar it is relevant for the purpose of the point in issue is as follows:
Schedule VII Unless the Minister-incharge himself takes up any of the following cases and decides the same, the following cases in appeal or revision, as the case may be, disposed off by the Additional Chief/ Principal Secretary/ Secretary (Appeals) or such other officer or officers not below the rank of the Joint/ Deputy Secretary as the Additional Chief/ Principal Secretary/ Secretary (Appeals) may direct.
Sr No. Name of the Act or Rules Section or Rules Subject matter
1.
The Bombay Land Revenue Code, 1879 Section 203, 204 and 211 Appeals and Revisional powers including powers of revision suo-moto or on reference
2. ...
...
...
The above makes it clear that even as per the Rules of Business, powers of review have not been allocated to the Additional Chief/ Principal Secretary/ Secretary (Appeals) or such other officer or officers not below the rank of the Joint/ Deputy Secretary, as the case may be.
There is no dispute regarding the fact that while deciding a revision application under any of the above-quoted provisions of the Code, the Secretary is exercising quasi-judicial powers. Whether the Additional Secretary (Appeals) is acting as a quasi-judicial authority can be determined from the tests laid down by the Supreme Court, as stated in The Purtabpore Co. Ltd. v. Cane Commissioner of Bihar And Others (supra).
"17. In Province of Bombay v. Kusaldas S. Advani and Others - (1950)SCR 621 at p.725, Das, J. formulated the following tests to find out whether proceeding before an authority or a tribunal is a quasi judicial proceeding:
(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially."
Applying the above tests to the functions to be performed and the power to be exercised by the Appellate/ Revisional authority under Section 211 of the Code, it leaves no manner of doubt that under Section 211, the authority is exercising quasi-judicial powers.
It is now a settled position of law that a quasi-judicial authority derives its powers from the statutory provisions under which it is empowered to Act and cannot exercise power not vested in it by the statute. The extent of power to be exercised by a quasi-judicial authority is circumscribed by the language of the statute. The position of law whether the State Government has power to review its own order under Section 211 of the Code is no longer res-integra. In Bhagwanji Bawanji Patel v. State of Gujarat And Anr. (supra), the Court has observed in Paragraph 9 that:
"9. The contention of Mr.Padia, the learned Advocate for the appellant, is that the Government can exercise its powers under sec.211 only once, and once any such powers are exercised by the State Government either suo motu or at the instance of some one else under any provision of law which entitles it to revise the same, its powers stand exhausted. In other words, according to him, it cannot revise the order passed by it, or, rather, it cannot review its own order once passed in absence of any specific provision whereby such powers are given to it in law. Now, it is common ground and over which no dispute is raised by Mr.Chhaya, the learned Assistant Govt. Pleader for the state, that there is no provision in the Land Revenue Code, whereby the State Government can review its own order already passed in exercise of its powers under sec.211 of the Land Revenue Code, and, therefore, if the contents of the letter dated 23-8-60 can be taken as a decision so communicated in the matter, the remedy of the State Government under sec.211 would not survive. It may, if permissible in law, have recourse to a remedy by filing a suit in a civil Court. But it cannot review its own order. No such powers are shown to have been in the State Govt. under the provisions of the Land Revenue Code."
In Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur And Others (supra), the Supreme Court has held that:
"11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity."
From the above judicial pronouncements, it is clear that the power of review is not available to the State Government under Section 211 of the Code, as none has been expressly conferred by the Statute.
By issuing communication dated 06.08.2011, the Additional Secretary (Appeals) has made an interpretation of the interim order dated 30.04.2011 which is at variance with the interpretation made by the Collector by mutating Entry No.4482 in the revenue record as a consequence thereof. The communication dated 06.08.2011, though an internal one between the Additional Secretary (Appeals) and the Collector, does, in effect, amounts to a review of the order dated 30.04.2011, as it seeks to change the interpretation put by the Collector on the order dated 30.04.2011. The aspect that the impugned communication is an internal and appears to be issued on the administrative side would not save it from the consequences of exercise of power not vested in the authority on the quasi-judicial side. Rather, it would aggravate the situation. When the power of review is not expressly conferred on the quasi-judicial authority by the statute, it cannot be exercised in the guise of an administrative communication that has the effect of review of a quasi-judicial order. A power that cannot be exercised by the concerned authority on the quasi-judicial side cannot be exercised by way of a communication on the administrative side, pertaining to the very matter which is pending in revision. Such a course of action, as has been adopted by the Additional Secretary (Appeals) by issuing communication dated 06.08.2011, is wholly impermissible in law.
Admittedly, the communication dated 06.08.2011, has been issued on the basis of an application filed by respondents Nos.2 to 4 seeking clarification of the interim order dated 30.04.2011 passed in the revision application. It is not disputed that no notice has been issued to the petitioner upon the said application and neither has he been heard. The Additional Secretary (Appeals) has, straightaway, given his interpretation to the order dated 30.04.2011 to the Collector vide the impugned communication, which is at variance with the interpretation already made by the latter. In effect, the Additional Secretary (Appeals) has reviewed the order dated 30.04.2011 passed by his predecessor. No power of review under Section 211 of the Code is conferred upon the Competent Authority, therefore, none can be exercised in quasi-judicial proceedings under that provision. What cannot be done under the statute cannot be achieved through an administrative communication by the superior officer [Additional Secretary, (Appeals)] to a subordinate officer [Collector], in pending revision application under Section 211 of the Code, wherein one of the parties has filed an application for clarification; and that, too, without issuance of notice or affording the petitioner an opportunity of hearing.
The Competent Authority under Section 211 cannot take off the quasi-judicial hat, so to say, and put on the administrative hat at will, on its own whims and fancies, by mixing up its quasi-judicial functions with the administrative ones. Such an action cannot stand the scrutiny of law.
The argument of the learned Assistant Government Pleader and learned advocate for respondents Nos.2 to 4, that by the impugned communication dated 06.08.2011, the Additional Secretary (Appeals) has only asked the Collector to make a report, and the said order is only clarificatory in nature, is unconvincing. A clarification that wears the guise of a review cannot be permitted to be made when no express powers of review are conferred upon the revisional authority under Section 211 of the Code.
The decision in Kapra Mazdoor Ekta Union v. Management of M/s.Birla Cotton Spinning and Weaving Mills Ltd. And others (supra), cited by the learned counsel for respondents Nos.2 to 4, goes against the case of the respondents instead of helping them. It is observed by the Supreme Court as 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 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 and others (supra), 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."
The above dicta of the Supreme Court fortifies the view of this Court that a review is not permissible in the absence of a provision in the statute conferring the power of review on the concerned authority.
Another salient aspect of the matter is that by way of the impugned communication / order dated 06.08.2011, an attempt is being made to issue a clarification of the order dated 30.04.2011 by way of a subsequent explanation that actually amounts to a review. In this regard, it would be pertinent to refer to the observations made by the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji (supra) in this regard.
"8. It will be necessary at this stage to determine whether this was a cancellation by the Commissioner of on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other authority. We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commissioner but merely intimation by him of an order passed and made by another authority, namely the Government of Bombay.
9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to hum they are addressed and must be construed objectively with reference to the language used in the order itself.
10. Turning now to the language used, we are clear that by no stretch of imagination can this be construed to be an order which in effect says -- "I, so and so, by virtue of the authority vested in me, do hereby order and direct this and that." If the Commissioner of Police had the power to cancel the license already granted and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order."
The order dated 30.04.2011 has been made after hearing the parties and, being a quasi-judicial order, can be termed as a public order made in exercise of statutory powers vested in the Additional Secretary (Appeals). As has been held by the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji (supra), public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. This judgment would apply on all fours to the impugned order/ communication dated 06.08.2011, and on this ground as well, the impugned order cannot be permitted to stand.
In view of the clear position of law emerging from the judicial pronouncements quoted hereinabove, it is not necessary to discuss the other judgments cited by the learned counsel for the petitioner, in detail.
As a culmination of the above discussion, it can be concluded that:
(1) The Bombay Land Revenue Code, 1879, does not confer the powers of review upon the Competent Authority under Sections 203, 204 and 211, of the Code. The petitioner has filed the revision application under Section 211 of the Code that does not empower the revisional authority [in this case the Additional Secretary (Appeals)], to exercise the power of review. Even under the Rules of Business, the power of review has not been conferred upon the authorities competent to act under Sections 203, 204 and 211 of the Code.
(2) The impugned communication dated 06.08.2011 has not been issued in accordance with law, as it seeks to review the order dated 30.04.2011, passed in exercise of power under Section 211 of the Code, when no power of review is conferred by the statute.
(3) The impugned communication dated 06.08.2011 has been issued by the Additional Secretary (Appeals), to the Collector (a superior authority to a subordinate officer) on the administrative side, purportedly as a clarification, when it actually amounts to review of the order dated 30.04.2011, passed in revision proceedings which are quasi-judicial in nature. An order passed in quasi-judicial proceedings cannot be sought to be reviewed under the guise of clarification on the administrative side.
(4) The impugned communication dated 06.08.2011 has been issued on the basis of an application for clarification made by respondents Nos.2 to 4. No notice has been issued to the petitioner and no opportunity of hearing has been granted to him before issuing the impugned communication, which action amounts to a violation of the principles of natural justice, causing prejudice to the petitioner.
(5) As a consequence of the impugned communication and during the pendency of the revision application, action that adversely affects the petitioner has been taken without hearing him, thereby rendering the revision application almost infructuous.
Considering the above-mentioned aspects of the matter and for the reasons stated hereinabove, the impugned communication dated 06.08.2011, cannot be sustained in law.
Resultantly, the petition is allowed. The impugned communication dated 06.08.2011, is quashed and set aside. Any action taken as a consequence of the impugned communication is also quashed and set aside. Rule is made absolute, to the above extent. There shall be no orders as to costs.
It is clarified that nothing contained in this order be construed as an observation on the merits of the revision application that is pending before the revisional authority.
(Smt. Abhilasha Kumari, J.) (sunil) Top