# Balram v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-18
- **Case number:** Writ-C No. 5604 of 2021
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balram-v-state-of-u-p-ors-46938
- **Pages:** 6

## Headnote

3 All. Balram Vs. State of U.P. & Ors.
633
C.S.C., Sri Hari Narayan Singh, Sri Puneet
Bhadauria

Essential
Commodities
Act
(10
of
1955)
,
S.3
-
U.P.
Essential
Commodities (Regulation of Sale and
Distribution Control) Order (2016) ,
S.13(1) - Review - Fair price shop
license
-
Appellate
authority
i.e.
Commissioner
has
power
to
recall/review
its
earlier
order
of
restoration of fair price shop license, if
order obtained by playing fraud - Held
- every authority, which has passed
the order, has also inherent power of
review of his own order provided the
said
order
has
been
obtained
by
playing fraud or misrepresentation of
such a dimension as would affect the
very basis of the claim or where the
Court is misled by a party or the Court
itself
commits
a
mistake
which
prejudices a party (Para 9, 10)

Dismissed.

List of Cases cited :

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES
mandates that the decision of the Authority
should be a collective decision.

18. From a comprehensive reading of
the
Act
and
the
regulations
made
thereunder, it cannot be said that the
Authority
established
by
the
State
Government as a body in the name of Real
Estate
Regulatory
Authority
(RERA)
cannot delegate its power or frame
regulations to carry out various objects and
purposes of the Act, one of which is for
providing mechanism for speedy dispute
redressal by disposal of the complaints.
Section 21 of the Act cannot be read in the
manner as has been read by the learned
counsel for the petitioners.

Further, the Act does not provide for
benches of the Authority for discharge of
its adjudicatory functions in the manner in
which it provides for benches of the
Appellate Tribunal under Section 43(3) of
the Act. The difference is that the
adjudicatory function is only one of the
functions of the Authority in exercise of its
powers to ensure compliance of the
obligations
under
the
Act
whereas
Appellate
Authority
discharges
only
adjudicatory function of hearing appeals
from the decisions of the Authority or the
adjudicating officer.

19. Ample power has been given in
the Act to the Authority to formulate the
rules of procedure, in regard to the
transaction of its business, in discharge of
its functions in exercise of powers
conferred on it under the Act. The power to
delegate and the power to make regulations
both have been given to the Authority so as
to enable it to carry out the purposes of the
Act. The decision of the Authority to
delegate and the regulations framed by it to
create benches for early disposal of the
complaints, can not be said to be
inconsistent with the Act.

20. For the above discussions, the
orders passed by the Single Member of the
Real Estate Regulatory Authority, subject
matter of challenge in this bunch, cannot be
said to suffer from lack of jurisdiction.

21. As far as the view expressed by
the Division Bench of the Punjab and
Haryana High Court is concerned, on
appreciation of the legal provisions, the
said view cannot be accepted. With due
regards to the learned Judges holding the
bench, it may be noted that certain relevant
provisions of the RERA Act have escaped
their attention.

Even otherwise, as noted above, there
is no challenge to the provisions of the
Regulations, 2019 framed by the Authority
(UPRERA) in the instant case.

For the aforesaid, the writ petitions are
found
devoid
of
merits
and
hence
dismissed.
----------
(2021)03ILR A632
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ-C No. 5604 of 2021

Balram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajnesh Kumar, Sri Ram Sagar Yadav

Counsel for the Respondents:
3 All. Balram Vs. State of U.P. & Ors.
633
C.S.C., Sri Hari Narayan Singh, Sri Puneet
Bhadauria

Essential
Commodities
Act
(10
of
1955)
,
S.3
-
U.P.
Essential
Commodities (Regulation of Sale and
Distribution Control) Order (2016) ,
S.13(1) - Review - Fair price shop
license
-
Appellate
authority
i.e.
Commissioner
has
power
to
recall/review
its
earlier
order
of
restoration of fair price shop license, if
order obtained by playing fraud - Held
- every authority, which has passed
the order, has also inherent power of
review of his own order provided the
said
order
has
been
obtained
by
playing fraud or misrepresentation of
such a dimension as would affect the
very basis of the claim or where the
Court is misled by a party or the Court
itself
commits
a
mistake
which
prejudices a party (Para 9, 10)

Dismissed.

List of Cases cited :

1. Smt. Urmila Jaiswal vs. State of U.P. & Ors
2013(4) ADJ 205 (DB)

2. Industrial Infrastructure Development Corp
(Gwalior) Vs CIT Gwalior MP (2018) 4 SCC
494

3. United India Insurance Co. Ltd. Vs
Rajendra Singh AIR 2000 SC 538

4. Smt. Rambeti Vs State of U.P. And Others
2017 (1) ADJ 59

(Delivered by Hon'ble Vivek Kumar Birla)

1. Heard Sri Ram Sagar Yadav,
Advocate holding brief of Sri Rajnesh
Kumar, learned counsel for the petitioner
and learned Standing Counsel and Sri
Puneet Bhadauria, learned counsel for the
respondent no.4, Rasbihari and Sri H.N.
Singh, learned counsel appearing for the
respondent no.5.

2. Present petition has been filed with
following prayers:-

"I. Issue a writ order or direction in
the nature of certiorari quashing the
impugned order dated 31.12.2020, passed
by respondent no. 2 i.e. Additional
Commissioner (Judicial), Kanpur Region,
Kanpur in Appeal No. 02089 of 2019
(Computer Case No. C2019030000002089)
(Balram Vs. Sub Divisional Magistrate),
under Section 13 (1) of the U.P. Essential
Commodities (Supply & Distribution),
whereby, the respondent no.2 allowed the
recall application of the respondent no.4
and recalled his judgment and order dated
26.06.2020, passed in the aforesaid appeal
(Annexure No. 5 to this writ petition).

II. Issue a writ, order or direction in
the nature of mandamus permit the
petitioner to carry the stock of essential
commodities and to restore the order dated
26.6.2020, passed by respondent no.2."

3. By the order impugned herein
dated 31.12.2020, the order passed by the
appellate authority dated 26.6.2020 was
recalled and the appeal was restored to its
original number. Initially, the appeal of the
petitioner herein was allowed by the
Commissioner by the aforesaid order dated
26.6.2020 and his fair price shop license
was restored. The said order was recalled
on the ground that fraud has been played.
Thus, the recall of the earlier order dated
26.6.2020 is on the ground that a fraud had
been played in obtaining the said order.

4. Challenging the aforesaid order,
placing reliance on a judgment of Hon'ble
Division Bench of this Court in case of
Smt. Urmila Jaiswal vs. State of U.P. And
Others 2013(4) ADJ 205 (DB) submission
of learned counsel for the petitioner is that
the appellate authority has no power of
634 INDIAN LAW REPORTS ALLAHABAD SERIES
review and therefore, the order impugned
herein is without jurisdiction. He submits
that the statute does not confer any power
on the appellate authority to review his own
order.

5. Per contra, learned counsel
appearing for the caveator- respondent has
placed reliance on a judgment of Hon'ble
Apex
Court
in
case
of
Industrial
Infrastructure Development Corporation
(Gwalior) vs. Commissioner of Income
Tax, Gwalior, Madhya Pradesh (2018) 4
SCC 494 and submitted that in paragraph
21 of the aforesaid judgment, it has been
held by the Supreme Court that a quasijudicial order can be generally varied or
reviewed when obtained by fraud.

6. Learned Standing Counsel has also
supported
the
impugned
order
by
submitting that any order obtained by fraud
can be recalled or reviewed by the authority
concerned and there is no bar to the same.

7. I have considered the submissions
and have perused the record.

8. It is not in dispute that the
impugned order dated 31.12.2020 recalling
the earlier order dated 26.6.2020 has been
passed on the ground that the same is
obtained by playing fraud.

9. Insofar as power of any authority to
review or recall its own order in case of
fraud is too well settled. In case of United
India Insurance Co. Ltd. vs. Rajendra
Singh AIR 2000 SC 538 the Hon'ble
Supreme Court has held that no Court or
tribunal can be regarded as powerless to
recall its own order if it is convinced that
the order was wrangled through fraud or
misrepresentation of such a dimension as
would affect the very basis of the claim.
Paragraphs 3, 14, 15, 17 of Rajendra Singh
(supra) are quoted as under:-

"3. "Fraud and justice never dwell
together."
(Frans
etjus
nunquam
cohabitant) is a pristine maxim which has
never lost its temper over all these
centuries. Lord Denning observed in a
language without equivocation that "no
judgment of a Court, no order of a Minister
can be allowed to stand if it has been
obtained by fraud, for, fraud unravels
everything"
(Lazarus
Estate
Ltd.
vs.
Beasley, 1956 (1) QB 702.)

14. In S.P. Chengalvaraya Naidu
(dead) by L.Rs. Vs. Jagnnath (dead) by Lrs.
& ors. {1994 (2) SCC 1} the two Judges
Bench of this Court held:

"Fraud avoids all judicial acts,
ecclesiastical or temporal- observed Chief
Justice Edward Coke of England about
three centuries ago. It is the settled
proposition of law that a judgment or
decree obtained by playing fraud on the
court is a nullity and non est in the eyes of
law. Such a judgment/decree- by the first
court or by the highest court-has to be
treated as a nullity by every court, whether
superior or inferior. It can be challenged in
any court even in collateral proceedings."

15. In Indian Bank Vs. Satyam fibres
(India) Pvt. Ltd. {1996 (5) SCC 550}
another two Judges bench, after making
reference to a number of earlier decisions
rendered by different High Courts in India,
stated the legal position thus:

"Since fraud affects the solemnity,
regularity
and
orderliness
of
the
proceedings of the Court and also amounts
to an abuse of the process of Court, the
Courts have been held to have inherent
power to set aside an order obtained by
fraud practised upon that Court. Similarly,
where the Court is misled by a party or the
Court itself commits a mistake which
3 All. Balram Vs. State of U.P. & Ors.
635
prejudices a party, the Court has the
inherent power to recall its order."

17. Therefore, we have no doubt that
the remedy to move for recalling the order
on the basis of the newly discovered facts
amounting to fraud of high degree, cannot
be foreclosed in such a situation. No court
or tribunal can be regarded as powerless to
recall its own order if it is convinced that
the order was wangled through fraud or
misrepresentation of such a dimension as
would affect the very basis of the claim."

10. The Hon'ble Single Bench of this
Court in case of Smt. Rambeti vs. State of
U.P. And Others 2017 (1) ADJ 59 has also
held that every authority, who has passed
the order has also the power to review its
own judgments provided the order is
obtained
by
playing
fraud
or
misrepresentation.
In
this
case,
the
judgment, which was referred to by the
learned counsel for the petitioner, in Smt.
Urmila Jaiswal (supra) has also been
considered in paragraph 7 of the judgment.
Paragraphs 7, 8 and 9 of Smt. Rambeti
(Supra) are quoted as under:-

"7. The power of review is creation of
the statute and if, under the relevant
statute, the power of review has not been
conferred upon the authority, may be
judicial
or
quashi
judicial
or
administrative. The said power cannot be
exercised. In Kalabharati Advertising v.
Hemant Vimalnath Narichania and others,
(2010) 9 SCC 437, Hon'ble Apex court has
observed as under:-

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
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
ultravires, illegal and without jurisdiction.
(vide:
Patel
Chunibhai
Dajibha
v.
Narayanrao Khanderao Jambekar & Anr.,
AIR 1965 SC 1457; and Harbhajan Singh
v. Karam Singh & Ors., AIR 1966 SC 641).

13. In Patel Narshi Thakershi & Ors.
v. Shri Pradyuman Singhji Arjunsinghji,
AIR 1970 SC 1273; Maj. Chandra Bhan
Singh v. Latafat Ullah Khan & Ors., AIR
1978 SC 1814; Dr. Smt. Kuntesh Gupta v.
Management
of
Hindu
Kanya
Mahavidhyalaya, Sitapur (U.P.) & Ors.,
AIR 1987 SC 2186; State of Orissa & Ors.
v. Commissioner of Land Records and
Settlement, Cuttack & Ors., (1998) 7 SCC
162; and Sunita Jain v. Pawan Kumar Jain
& Ors., (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 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 absence of any statutory
provision for the same is nullity being
without jurisdiction.

14. Therefore, in view of the above,
the law on the point can be summarised to
the effect that in absence of any statutory
provision
providing
for
review,
entertaining an application for review or
under
the
garb
of
clarification/
modification/correction is not permissible.

A Division Bench of this Court too in
Smt. Urmila Jaiswal v. State of U.P. and
others, 2013 (4) ADJ 205 (DB) has also
taken the same view which read as under:-

21. From the proposition of law as
laid down in the above cases, it is well
established that unless the Statute/Rule
permit, the review application is not
maintainable in case of judicial/quasi
636 INDIAN LAW REPORTS ALLAHABAD SERIES
judicial orders. In Order 2004, no power of
review has been expressly provided nor
such power can be read by implication.

Although the Hon'ble Apex Court in
Indian Bank v. M/s. Satyam Fibres (India)
Pvt. Ltd., AIR 1996 SC 2592 has taken a
different view. The observation made by the
Apex Court is quoted herein below:-

22. ............"Since fraud affect the
solemnity, regularly and orderliness of the
proceedings of the Court and also amounts
to an abuse of the process of court, the
Courts have been held to have inherent
power to set aside an order obtained by
fraud practised upon that Court. Similarly,
where the Court is misled by a party or the
Court itself commits a mistake which
prejudices a party, the Court has the
inherent power to recall its order. ......The
Court has also the inherent power to set
aside a sale brought about by fraud
practised upon the Court (Ishwar Mahton
v. Sitaram Kumar AIR 1954 Patna 450) or
to
set
aside
the
order
recording
compromises
obtained
by
fraud.
(Bindeshwari Pd. Chaudhary v. Debendra
Pal Singh, AIR 1958 Patna 618; Smt. Tara
Bai v. V.S. Krishnaswaymy Rao, AIR 1985
Karnataka 270).

23 "The proposition of law laid down
by the Apex Court in the aforesaid case is
that every judicial or quashi judicial
authority has power to set aside the order
obtained by fraud practised upon that
Court or where the Court is misled by the
party and the Court itself commits a
mistake which prejudices a party.

8. In United Industries Insurance
Company Ltd. v. Rajendra Singh, AIR 2000
SC 1165 the Apex Court held that every
court or Tribunal has the power to " review
its own order if it is convinced that the
order was wangled through fraud or
misrepresentation of such a dimension, as
would affect the very basis of the claim."

9. In view of the foregoing discussions,
it is clear that every authority, which has
passed the order, has also power of review
his own order provided the said order has
been
obtained by
playing
fraud
or
misrepresentation or court itself committed
a mistake which prejudices a party.
Otherwise review jurisdiction cannot be
involved in absence of power conferred
upon the authority under the relevant
statute."

11. Paragraph 21 of Industrial
Infrastructure
Development
Corporation (supra) is also quoted as
under:-

"21. The general power, under Section
21 of the General Clauses Act, to rescind a
notification or order has to be understood
in the light of the subject matter, context
and the effect of the relevant provisions of
the statute under which the notification or
order is issued and the power is not
available after an enforceable right has
accrued under the notification or order.
Moreover, Section 21 has no application to
vary or amend or review a quasi judicial
order. A quasi judicial order can be
generally
varied
or
reviewed
when
obtained by fraud or when such power is
conferred by the Act or Rules under which
it is made. (See Interpretation of Statutes,
Ninth Edition by G.P. Singh page 893)."

12. In such view of the matter, I am of
the opinion that the order impugned herein
does not suffer from any jurisdictional
error.

13. I am consciously not referring to
the merits of the findings recorded by the
trial court as it may prejudice rights of the
parties in appeal, which has been restored
to its original number.
3 All. Shiv Ranshu Chhuneja Vs. State of U.P. & Ors.
637

14. Accordingly, no interference is
warranted in the order impugned herein.

15. The petition is devoid of merits
and is, accordingly, dismissed.
----------
(2021)03ILR A637
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2018

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE SHASHI KANT, J.

Writ-C No. 10191 of 2009

Shiv Ranshu Chhuneja ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Awadhesh Kr. Singh, Sri S.N. Singh, Sri
Suresh Srivastava, Ms. Samridhi Arora

Counsel for the Respondents:
C.S.C., Sri A.K. Singh, Sri N. Misra, Sri Subhash
Gosain

A.
Electricity
-
Electrocution
-
Compensation - Indian Electricity Act,
2003, S 161 - Constitution of India Art.
226 - Writ petition challenging order
passed u/s 161 of 2003 Act awarding
compensation
&
for
a
claim
of
compensation on account of electrocution
- maintainability of the writ petition - Held
- order passed by the Chief Electrical
Inspector u/s 161 of 2003 Act awarding
compensation is amenable under Article
226 - award of compensation in exercise
of jurisdiction under Article 226 can be
undertaken provided there are no serious
disputed questions of fact involved (Para
11, 12)

B. Electricity - Electrocution - Quantum of
Compensation - adequate, just and fair
compensation
-
damages
towards
following heads - Aid for helper, minimum
sustenance allowance in order to ensure
survival,
medical
expenses,
ancillary
expenses, running expenses

On account of electrocution petitioner almost
100 % handicapped - accident took in year
2006 when petitioner was 14 years - in the
year 2008 petitioner received compensation of
Rs.50,000/ from the department - petitioner
started earning in 2013 & presently engaged in
private job earning Rs.39,000/- per month -
petitioner was not earning for 7 years i.e.
between 2006 -2013, for the said entire period
petitioner held entitled to Rs.10,000/- per
month for aiding him through a Helper -
petitioner's
full
earning
capacity
stood
diminished on account of his physical disability -
Court
Awarded
Rs.10,000/-
per
month
calculating the longevity of his life upto 70 years
as minimum sustenance allowance in order to
ensure his survival - Court awarded consolidated
sum of Rs.25 lacs in lieu of medical expenses. -
petitioner entitled to a total amount of
Rs.86,20,000 - Court directed that any delay in
payment would carry 9% simple interest per
annum on the unpaid amount (Para 30, 31, 32)

Allowed

List of Cases cited :

1. Neetu Devi Vs State of U.P. & Ors. 2014 (9)
ADJ 649

2. Chokhe Lal Vs State of U.P. & Ors W.P. No.
35095 of 2014 dt 10.07.2014

3. Karan Singh & Anr. Vs State of U.P. & Ors
W.P. No. 6785 of 2015 dt 10.02.2015

4. The State of Tripura & Anr. Vs Sridhan
Choudhury & Anr. AIR 2003 Gauhati 66

5. Chairman, Railway Boad & Ors Vs. Chandrima
Das (Mrs.) & Ors (2000) 2 SCC 465

6. Yash Pal Singh (Minor) and Anr. Vs State of
U.P. & Ors. 2017 (6) AllLJ 49

7. Executive Engineer, Electricity Distribution
Division-II Vs. Chairman, Permanent Lok Adalat
& 4 Ors. W.P. Art. 227 No. 4068 of 2015 dt
17.09.2015