# Brijendra Mani Yadav v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-24
- **Case number:** Misc Single No. 15444 of 2020
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijendra-mani-yadav-v-state-of-u-p-ors-45137
- **Pages:** 9

## Headnote

Petitioner challenged review order of
Respondent-wherein a contrary finding
recorded-declaring the Petitioner and his
family members not a resident of the
concerned village-directed their name to
be removed from electoral list-Act of 1947
or Rules of 1994 have no provision
enabling
Sub
Divisional
Magistrate/
Assistant Electoral Registration Officer to
review its order-impugned order quashed-

Writ Petition allowed. (E-9)

List of Cases Cited:-

## Text

10 All. Brijendra Mani Yadav Vs. State of U.P. & Ors.
155
order
is
produced
before him. The
petitioners shall produce all the material
and documents as directed by the Regional
Provident fund Commissioner within a
period of one month from today. Subject to
the protection given to the petitioners in the
various orders passed by this court, the
Regional Provident fund Commissioner
shall exercise the powers as provided to
him under the Act of 1952 to procure all the
material necessary for deciding the dispute
pending before him, and conclude the
proceedings in the time provided by this
court in accordance with law after giving
the opportunity of hearing to the petitioners
within the time provided. In case the
document are not filed, the Provident Fund
Commissioner shall close the opportunity
to file documents and proceed to hear and
pass final orders on the basis of material
before
him
making
best
assessment
judgment.

56. In light of the above, the writ
petition is dismissed with cost of Rs. 50,000/-
(Fifty Thousand). The cost is required to be
deposited with the Senior Registrar of this
Court within a period of one month from
today. In case the said amount is not
deposited within one month, the Senior
Registrar shall take steps and intimate this
order to the District Magistrate/Collector
Lucknow, who shall proceed and recover the
amount of cost from the petitioners as arrears
of land revenue. On receipt of the amount of
cost, by the Senior Registrar, the same shall
be transferred to the State Legal Service
Authority, Uttar Pradesh.
----------
(2020)10ILR A155
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.
Misc Single No. 15444 of 2020

Brijendra Mani Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pravin Kumar Singh

Counsel for the Respondents:
Rajnish Ojha

Petitioner challenged review order of
Respondent-wherein a contrary finding
recorded-declaring the Petitioner and his
family members not a resident of the
concerned village-directed their name to
be removed from electoral list-Act of 1947
or Rules of 1994 have no provision
enabling
Sub
Divisional
Magistrate/
Assistant Electoral Registration Officer to
review its order-impugned order quashed-

Writ Petition allowed. (E-9)

List of Cases Cited:-

1. Whirlpool Corporation Vs Registrar of Trade
Marks Mumbai & ors., (1998) 8 SCC 1,

2.Urmila Jaiswal Vs St. of U.P. & ors., 2013 (4)
ADJ 205

3.Naresh Kumar & ors. Vs Govt. (NCT of Delhi)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Sudeep Seth, learned
Senior Advocate assisted by Sri Pravin
Kumar Singh, learned counsel for the
petitioner as well as learned Additional
Chief Standing Counsel for the State
respondents, and Sri Abhijeet Raj, learned
counsel for respondent no. 5, through video
conferencing
in
view
of
COVID-19
pandemic.

2. By means of instant writ petition
the petitioner has assailed the order dated
156 INDIAN LAW REPORTS ALLAHABAD SERIES
24th August, 2020, passed by respondent
no.
4
-
Deputy
Collector/Assistant
Electoral Registration Officer (Panchayat),
Lalganj, District - Pratapgarh, whereby he
has reviewed his own earlier order dated
25.05.2020, and consequently recorded a
contrary finding, declaring that petitioner is
not a resident of Village - Ramgarh Raila
and further directed that name of the
petitioner as well his family members be
removed from the electoral list of village -
Ramgarh Raila. The brief facts of the case
are as under:-

(i) The petitioner contested the
elections in 2015 for the post of Gram
Panchayat- Ramgarh Raila and was elected
as Gram Pradhan while respondent no.5
who also contested the said elections lost
by a margin of 78 votes.

(ii) The respondent No.5 had
raised an objection regarding inclusion of
the name of the petitioner in the electoral
roll of Village Ramgarhia Raila and
thereafter after a detailed enquiry by
opposite party No.4 by means of order
dated 10/11/2015 the name of the petitioner
in the electoral role was retained.

(iii) Against the order dated
10/11/15 respondent No.5 filed an appeal
under Rule 21A of the U.P Panchayati Raj
(Registration of Electors) Rules, 1994
which was rejected on 20.11.2015. The
order dated 20.11.2015 was challenged
before this Court in writ petition No.279
(M/S) of 2015. The said petition was
disposed of by this Hon'ble Court vide
judgment and order dated 17.12.2019
where the order dated 20.11.2015 was
quashed and the matter was remanded back
to
opposite
party
No.4
for
fresh
consideration.

(iv) Consequent to the remand of
the matter the opposite party No.4, after
giving due notice to the parties concerned,
decided the matter by means of a detailed
and speaking order dated 25/5/2020,
thereby the representation of Opposite
party no. 5 was rejected.

(v) Counsel for the petitioner has
further
submitted
that
the
petitioner
apprehended miscarriage of justice at the
hands of opposite party No.4, and therefore
moved the representation before District
Magistrate, Pratapgarh stating that oppostie
party No.4 was acting in collusion with
opposite party No.5 and therefore requested
that the matter be transferred to another
Sub Divisional Magistrate. The District
Magistrate on 18/8/2020 had made an
endorsement on the application preferred
by
the petitioner
directing
the
Sub
Divisional Magistrate, Lalganj to do the
needful. It has been alleged by the
petitioner that opposite party No.4, in the
most hurried manner, without fixing any
date, allowed the review application moved
by opposite party No.5.

(vi) It is in light of the aforesaid
facts that this Court has been called upon to
decide as to whether opposite party No.4
has the jurisdiction to review his own order
dated 25.05.2020.

3. It has been submitted by learned
counsel for the petitioner that order dated
24.08.2020, has been passed by the Deputy
Collector/Assistant Electoral Registration
Officer (Panchayat), Lalganj, District -
Pratapgarh on the application for review
preferred
by
respondent
no.
5
on
28.01.2020, seeking review of earlier order
dated 25.05.2020.

4. It is further submitted on behalf of
petitioner that proceedings were initiated
by the Deputy Collector/Assistant Electoral
Registration Officer on the basis of
complaint made by respondent no. 5 with
regard to petitioner, alleging that he is not
10 All. Brijendra Mani Yadav Vs. State of U.P. & Ors.
157
the resident of village - Ramgarh Raila and
therefore his name should be struck off
from the electoral list of village - Ramgarh
Raila. The Deputy Collector/Assistant
Electoral Registration Officer in exercise of
power under Rule 16 of the U.P. Panchayat
Raj (Registration of Electors) Rules, 1994
(hereinafter referred to as "the Rules,
1994") after issuing notice to the petitioner
and taking necessary evidence, rejected the
application of respondent no.5 by means of
order
dated
25.05.2020,
holding
the
petitioner, Brijendra Mani Yadav to be a
resident of village - Ramgarh Raila and not
resident of any other village as alleged in
the complaint.

5. The learned counsel for the
petitioner urged that the impugned order
dated 24.08.2020, is beyond jurisdiction,
inasmuch as the Deputy Collector/Assistant
Electoral
Registration
Officer
having
exercised power under Rule 16 of the
Rules, 1994 becomes functus officio and
said Act of 1947 or the Rules of 1994 does
not clothe him with any power of review of
his orders, and in absence of any specific
provision under the said Act or Rules, the
Deputy
Collector/Assistant
Electoral
Registration Officer denuded of exercising
power
of
review
and
therefore
the
impugned order is clearly illegal, arbitrary,
beyond jurisdiction and deserves to be set
aside.

6. Sri Abhijeet Raj, learned counsel
has put in appearance on behalf of
respondent no. 5. He has raised preliminary
objection regarding maintainability of the
writ petition. He has submitted that against
the impugned order passed by Deputy
Collector/Assistant Electoral Registration
Officer dated 24.08.2020, the petitioner has
efficacious alternative remedy under Rule
21A of the Rules, 1994, of an appeal before
the District Magistrate. Learned counsel for
respondent no. 5 has vehemently submitted
that in the light of the fact that when
statutory alternative remedy is available,
writ petition should not be entertained in
exercise of power under Articles 226 and
227 of the Constitution of India and the
petition deserves to be dismissed at the
very outset.

7. Counsel for respondent no. 5
further submitted that there is inherent lack
of jurisdiction in the order passed by the
Deputy
Collector/Assistant
Electoral
Registration Officer and therefore he had
moved an application for review.

8. Heard learned counsel for the
parties and perused the record.

9. The application for review which
has been annexed along with the writ
petition indicates that the said application
was moved with the primary allegation that
the petitioner was not residing in village -
Ramgarh Raila and further the house which
has been shown to be inhabited by the
petitioner, belongs to one Daya Ram and in
case proper enquiry in this regard is made,
it would be evident that petitioner is not
resident of village Ramgarh Raila and
therefore, the finding of fact arrived at by
the Deputy Collector/Assistant Electoral
Registration Officer in his earlier order
dated 25.05.2020, were erroneous and the
order deserves to be reviewed.

10. It has been recorded by the
Deputy
Collector/Assistant
Electoral
Registration Officer, in the impugned order,
that notices were issued to the petitioner,
while the petitioner in his writ petition has
stated that notices were never served upon
him. The petitioner has submitted that
when he came to know about the
158 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings pending before the Deputy
Collector/Assistant Electoral Registration
Officer, he appeared on 17.08.2020 and
sought time to file objections and the
Deputy
Collector/Assistant
Electoral
Registration Officer granted him three day's
time for the said purpose, but he could not
file any objection within the said period
and subsequently the review application
was decided against him. He has further
submitted that no date for final hearing was
either fixed or communicated to him and
therefore he submitted that no order sheet
in this regard was prepared.

12. In the present writ petition only
ground urged by the petitioner is that the
impugned
order
is
wholly
without
jurisdiction inasmuch as the respondent -
Sub
Divisional
Magistrate/Assistant
Electoral Registration Officer has reviewed
his earlier order dated 25.05.2020 where he
has considered the entire facts afresh and
re-appreciated the evidence and has come
to a contrary finding and has thereby
allowed the review application.

13. It has been submitted that the Act,
1947 nor the Rules empower the Sub
Divisional Magistrate/Assistant Electoral
Registration Officer to exercise power of
review on merits and in absence of such
power he had no jurisdiction or authority to
embark
upon
the
re-appreciation
of
evidence afresh to record a contrary
finding.

14. The entire exercise in entertaining
the application for review and embarking
upon exercise of reviewing his earlier order
is illegal, arbitrary and violative of Article
14 of the Constitution of India.

15. With regard to the plea of
alternative remedy, this Court in exercise of
power under Article 226 of the Constitution
of India usually remits the matter to the
appropriate authority or Tribunal where a
person has efficacious alternative remedy
by way of appeal, review etc., but in
appropriate cases where the impugned
order has been passed in gross violation of
principles of natural justice or where the
action of respondents is shown to be wholly
without jurisdiction then this Court in such
appropriate
cases
would
necessarily
interfere and exercise its power under
Article 226 of the Constitution of India.

16. In the case of Whirlpool
Corporation Vs. Registrar of Trade
Marks Mumbai and others, 1998 (8)
SCC 1, this aspect of the matter has been
elaborately considered by Hon'ble Apex
Court. The position of law as laid down by
the Apex Court in Wirlpool Corporation
(supra) is quoted herein below :-

"14.
The
power
to
issue
prerogative writs under Article 226 of the
Constitution is primary in nature and is not
limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari
for the enforcement of any of the
Fundamental Rights contained in Part III
of the Constitution but also for "any other
purpose".

15. Under Article 226 of the
Constitution, the High Court having regard
to the facts of the case, has the discretion to
entertain or not to entertain a writ petition.
But the High Court has imposed upon itself
certain restrictions one of such is that if an
effective
and
efficacious
remedy
is
available, the High Court would not
normally exercise its jurisdiction. But the
alternative remedy has been consistently
10 All. Brijendra Mani Yadav Vs. State of U.P. & Ors.
159
held by this Court not to operate as a bar
in at least three contingencies, namely,
where a writ petition has been filed for the
enforcement of any of the Fundamental
Rights or where there has been a violation
of principles of natural justice or where an
order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law
on this point but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field."

17. In the light of aforesaid judgment,
where the issue raised is solely with regard
to jurisdiction of the authority in reviewing
his order which goes to the root of the
matter,preliminary objection of alternative
remedy raised by the respondents is
misconceived and is liable to be rejected.

18.

The
moot
question
for
consideration before this Court is whether
the Sub Divisional Magistrate/Assistant
Electoral
Registration
Officer
had
jurisdiction to review his order dated
25.05.2020, who after hearing all the
parties and considering all the relevant
facts, had recorded definite finding of fact
whether the petitioner was in fact resident
of Village - Ramgarh Raila or not in favour
of petitioner.

19. The Panchayati Raj Act, 1947 or
the Rules framed thereunder do not ascribe
any power of review with the Sub
Divisional Magistrate/Assistant Electoral
Registration Officer.

20.

Learned
counsel
for
the
respondents also could not point out any
such power vested in the Act or Rules for
exercise of such power of review by the
Sub
Divisional
Magistrate/Assistant
Electoral Registration Officer.

21. A Division Bench of this Court in
the case of Urmila Jaiswal Vs. State of
U.P. and Others, 2013 (4) ADJ 205, while
considering
the
matter
pertaining
to
allotment of Fair Price Shop where appeal
was dismissed and subsequently the review
application was allowed, and the issue
raised before the said Division Bench was
as to whether the Commissioner could have
reviewed his earlier order, the Division
Bench of this Court after considering the
catena of cases while allowing the writ
petition, held as under :-

"15. Now the question which is to
be answered as to whether the Appellate
Authority can review its order since the
respondent no.4 has filed the review
application
dated
01.06.2012
taking
various grounds of review and one of the
ground was that the Government Order
issued on 17th August 2002 was not
attracted on the respondent no.4. The
Commissioner heard the review on merits
and had passed an order allowing the
review application and setting aside the
earlier order of cancellation. The Order
2004 does not contain any provision
empowering the Appellate Authority to
review its order. There is no dispute that the
Appellate Authority has exercised the
quasi-judicial power. The Full Bench relied
by the learned counsel for the petitioner in
Smt. Shivraji (Supra) has laid down
following proposition of law. Para 35 of the
said judgment is quoted below:

35.
Any
tribunal
exercising
judicial or quasi-judicial power, which is
not vested with power of review under the
statute
expressly
or
by
necessary
implication, has an inherent power of
review of its previous order in any
160 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances. In our view the decisions
only lay down the proposition that a
tribunal
exercising
judicial
or quasi
judicial power has the inherent power to
correct a clerical mistake or arithmetical
error in its order and has the power to
review an order which has been obtained
by practicing fraud on the Court, provided
that injustice has been perpetrated on a
party by such order. Therefore, these
decisions should not be construed as laying
down any proposition of law contrary to
the well settled principle of law that any
order delivered and signed by a judicial or
quasi judicial authority attains finality
subject to appeal or revision as provided
under the Act and if the authority passing
the order is not specifically vested with
power of review under the statute, it cannot
reopen the proceeding and review/revise its
previous order.

16. The Full Bench held that any
Tribunal exercising judicial or quasijudicial power, which is not vested with
power of review under the Statute expressly
or by necessary implication, has no power
of review except an inherent power to
correct the clerical mistake or to correct
the order, which has been obtained by
practising the fraud on the Court.

17. A Division Bench judgment in
Sudha Sharma (supra) as well as Syed
Madadgar Husain Rizvi (supra) lays down
the same principles. The Division Bench
has held that a quasi judicial authority is
not permitted to review its order unless it is
so expressly conferred by the Statute itself.

18. The Apex Court in 1987(4)
SCC 525 Dr (Smt.) Kuntesh Gupta Vs.
Management
of
Hindu
Kanya
Mahavidyayla, Sitapur (U.P.) & Others
had occasion to consider the issue as to
whether
the
Vice-Chancellor
of
a
University under the provisions of U.P.
State Universities Act, 1973 has power of
review. The Vice-Chancellor had passed an
order on 24.01.1987 disapproving the order
of dismissal of the appellant. Subsequently,
the Vice-Chancellor had review the said
order on 07.03.1987. While considering the
aforesaid case, following was laid down by
the Supreme Court in paragraph 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
ViceChancellor in considering the question of
approval of an order or 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 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."

19. The Apex Court in 2005 (13)
SCC 777, Kapra Mazdoor Ekta Union Vs.
Birla Cotton Spinning and Weaving Mills
Ltd. and another had again considered the
power of review. The Tribunal had
reviewed
its
earlier
award
dated
12.06.1987. The matter was taken to the
High Court, which held that in absence of
an express provision in the Industrial
Disputes Act, Tribunal could not review its
earlier award. The matter was taken to the
Apex Court, where one of the submission
raised was 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. Rejecting the
submissions following was laid down in
paragraph 17 and 18: "
10 All. Brijendra Mani Yadav Vs. State of U.P. & Ors.
161

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
Dr.
(Smt.)
Kuntesh
Gupta
v.
Management of Hindu Kanya Maha
Vidyalaya, Sitapur (U.P.) and Ors. and
Patel Narshi Thakershi and Ors. v.
Pradyumansinghji
Arjunsingji
:
AIR1970SC1273 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. v. Central Government Industrial
Tribunal and Ors. (supra). In that case the
Tribunal
made
an
ex-parte
Award.
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 exparte 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 and Ors. (supra) 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
and Ors. (supra) clearly highlighted this
distinction when it observed :-

"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 mis-apprehension 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 debit a justitiae to prevent the
abuse of its process, and such power
inheres in every court or Tribunal".

20. Again in (2010) 9 SCC 437,
Kalabharti
Advertising
Vs.
Hemant
Vimalnath Narichania and Others, the
power of review in the absence of statutory
provisions was considered by the Apex
Court. Following proposition was laid in
paragraph nos. 12, 13 and 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 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 Anr. : AIR 1965
SC 1457 and Harbhajan Singh v. Karam
Singh and Ors. : AIR 1966 SC 641).
162 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In Patel Narshi Thakershi
and Ors. v. Shri Pradyuman Singhji
Arjunsinghji : AIR 1970 SC 1273; Maj.
Chandra Bhan Singh v. Latafat Ullah
Khan and Ors. : AIR 1978 SC 1814; Dr.
Smt. Kuntesh Gupta v. Management of
Hindu Kanya Mahavidhyalaya, Sitapur
(U.P.) and Ors. : AIR 1987 SC 2186; State
of Orissa and Ors. v. Commissioner of
Land Records and Settlement, Cuttack
and Ors. : (1998) 7 SCC 162 and Sunita
Jain v. Pawan Kumar Jain and Ors :
(2008) 2 SCC 705, this Court held that the
power to review is not an inherent power. It
must
be
conferred
by
law
eitherexpressly/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."

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 judicial
orders. In Order 2004, no power of review
has been expressly provided nor such power
can
be
read
by
implication.
The
Commissioner after dismissing the appeal
filed under Clause 28 of Order 2004 has
entertained the review application on merits
and had allowed the review on merits."

22. Hon'ble Apex Court in the case of
Naresh
Kumar
and
Other
Vs.
Government (NCT of Delhi) and one
more connected case, reported in (2019) 9
SCC 416, while considering the same
proposition held as under :-

"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 :

"......12.
It
is
settled
legal
proposition that unless the statute/rules so
permit, the review application is not
maintainable in case of judicial/quasijudicial 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 Narsi Thakershi v.
Pradyuman Singhji Arjunsinghji, Chandra
Bhan Singh v. Latafat Ullah Khan, Kuntesh
Gupta v. Hindu Kanya Kahavidyalaya,
State of Orissa v. Commr. of Land Records
& Seettlement 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
10 All. Shah Rasheed Ahmad Vs. Custodian of Enemy Property, G.O.I., New Delhi & Ors.
163
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
grab
of
clarification/modification/correction is not
permissible.""

23. In the present case the exercise of
power
by
the
Sub
Divisional
Magistrate/Assistant Electoral Registration
Officer in entertaining the application of
respondent no. 5 and thereby reviewing his
own earlier order dated 25.05.2020, was
clearly without jurisdiction in the light of
the fact that there is no provision in the Act
of 1947or Rules of 1994 enabling the Sub
Divisional Magistrate/Assistant Electoral
Registration Officer to do the same.

24. In case respondent no. 5 was not
satisfied with the findings of fact recorded
by the Sub Divisional Magistrate/Assistant
Electoral Registration Officer, it was open
for him to file an appeal under Section 21A
of the Rules, 1994.

25. In the light of above, the impugned
order dated 24.08.2020, being without
jurisdiction, is hereby quashed.

26. The writ petition is allowed.
----------

(2020)10ILR A163
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE JASPREET SINGH, J.
Misc Bench No. 16278 of 2020

Shah Rasheed Ahmad ...Petitioner
Versus
Custodian of Enemy Property, G.O.I., New
Delhi & Ors. ...Respondents

Counsel for the Petitioner:
Shyam Mohan Pradhan, Akhilesh Kumar
Kalra, Rahul Kapoor

Counsel for the Respondents:
C.S.C., A.S.G.

Property treated as enemy propertybelongs to real uncle of the Petitionerwho were Pakistani nationals-property
was incorporated in Schedule-II of the
Declaration
and
authorization
vestedsame was in the knowledge of the partiesnever challenged-impugned order legal
and consequential orders.

Writ Petition dismissed. (E-9)

(Delivered by Hon'ble Pankaj Mithal, J. &
Hon'ble Jaspreet Singh, J.)

1. Heard Shri Shyam Mohan learned
counsel
for
the
petitioner
and
the
Additional Solicitor General of India Shri
S. B. Pandey, learned Senior Advocate
assisted by Shri Raman Pandey for
opposite party no.1 while the notices have
been received on behalf of the opposite
parties no.2 to 4 by the office of the Chief
Standing Counsel.

2. The petitioner by means of the
present
petition
has
prayed
for
the
following reliefs:-

(i) issue a writ, order or direction
or writ in the nature of certiorari quashing
the
orders
dated
17.07.2020
and
14.08.2020, passed by the respondent no.1
and respondent no.3 as contained in
Annexure No.1 & Annexure No.2, order