# Ms Marion Biotech Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 1094
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-19
- **Case number:** Writ C No. 2373 of 2024
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-marion-biotech-pvt-ltd-v-state-of-u-p-ors-53430
- **Pages:** 22

## Headnote

Constitution of India, Article 226 - Drugs
and Cosmetics Act, 1940 - Sections 4, 16,
17, 17A, 17B, 25(3) - Drugs and Cosmetics
Rules, 1945 - Rule 85(3) - Functus Officio
and
Review
Jurisdiction
-
Petitioner
challenged the order dated 04.10.2023, which
allowed a review application and suspended the
appellate order dated 11.08.2023, reviving
petitioner's drug license (Form 25 and Form 28)
except for drugs using Propylene Glycol, due to
substandard DOK-1 Max Syrup linked to child
deaths in Uzbekistan. Petitioner argued the
Appellate Authority lacked jurisdiction to review
its order absent statutory provisions, became
functus officio post-appeal, and passed the
review order ex parte, violating Section 25(3) of
the Act. Respondents contended the review was
justified due to public interest, substandard
drugs containing excess Diethylene Glycol
(DEG)
and
Ethylene
Glycol
(EG),
and
misrepresentation of Uzbekistan court orders,
citing inherent powers to correct fraud, per
Indian Bank vs. Satyam Fibres. The court held
that the Appellate Authority, having decided
the appeal, became functus officio under Rule
85(3), and no statutory review power existed
under the Act or Rules. No fraud, forgery, or
misrepresentation was established, as all
facts, including Uzbekistan court orders and
drug deficiencies, were known during the
appeal, per Naresh Kumar vs. Government
(NCT of Delhi) and Patel Narshi Thakershi vs.
Pradyuman Singhji. The review order, passed
ex parte on the same day as the application,
lacked new evidence or legal basis. Writ
petition
allowed,
review
order
quashed.
(Paras 15-33)

Writ petition allowed.
5 All. Ms Marion Biotech Pvt. Ltd. Vs. State of U.P. & Ors.
1095
List of Cases cited:

## Text

_Characters 0–39,972 of 75,887. This is a partial read: ask again with offset=39972 for what follows._

1094 INDIAN LAW REPORTS ALLAHABAD SERIES
tenant then he does not become so by order
under this Section. Benefit of sub-sec. (6)
shall be available only to a person who is
found to be tenant. An order which is
passed without hearing or even notice
obviously cannot operate as res judicata.
In Haji Abdul Karim's case (1978 (UP)
RCC 691) this aspect has been brought
elaborately. Distinction between nature
of jurisdiction exercised u/s 7E of old Act
and in Rule 6 was also pointed out. It was
held that no assistance could be derived
from Raj Kumar's case (AIR 1971 All
273) to establish that order under S. 30
operated as res judicata. Nor can the
order be said to suffer from infirmity of
not being a reasoned order. By very
nature of jurisdiction excercised the
order is not required to be detailed like a
judgment. It must exhibit application of
mind. To that there appears to be no
doubt."

16. In view of the reasoning recorded
above, the writ petition lacks merit and is
dismissed. The writ petition also deserves
to be dismissed as the petitioner before this
Court neither claims to be a landlord nor is
a landlord and as such, the order impugned
has no effect on him.

17. It is further clarified that mere
deposit of rent under section 30 of the Act
by the respondent no.3 would not grant any
benefit in any proceedings that are
instituted against him for his eviction or
otherwise by the landlord/owner.
----------
(2025) 5 ILRA 1094
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2025

BEFORE

THE HON'BLE DINESH PATHAK, J.
Writ C No. 2373 of 2024

Ms Marion Biotech Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Neeja Srivastava, Sr. Advocate, Veerendra
Singh

Counsel for the Respondents:
A.S.G.I., C.S.C., R.P.S. Chauhan

Constitution of India, Article 226 - Drugs
and Cosmetics Act, 1940 - Sections 4, 16,
17, 17A, 17B, 25(3) - Drugs and Cosmetics
Rules, 1945 - Rule 85(3) - Functus Officio
and
Review
Jurisdiction
-
Petitioner
challenged the order dated 04.10.2023, which
allowed a review application and suspended the
appellate order dated 11.08.2023, reviving
petitioner's drug license (Form 25 and Form 28)
except for drugs using Propylene Glycol, due to
substandard DOK-1 Max Syrup linked to child
deaths in Uzbekistan. Petitioner argued the
Appellate Authority lacked jurisdiction to review
its order absent statutory provisions, became
functus officio post-appeal, and passed the
review order ex parte, violating Section 25(3) of
the Act. Respondents contended the review was
justified due to public interest, substandard
drugs containing excess Diethylene Glycol
(DEG)
and
Ethylene
Glycol
(EG),
and
misrepresentation of Uzbekistan court orders,
citing inherent powers to correct fraud, per
Indian Bank vs. Satyam Fibres. The court held
that the Appellate Authority, having decided
the appeal, became functus officio under Rule
85(3), and no statutory review power existed
under the Act or Rules. No fraud, forgery, or
misrepresentation was established, as all
facts, including Uzbekistan court orders and
drug deficiencies, were known during the
appeal, per Naresh Kumar vs. Government
(NCT of Delhi) and Patel Narshi Thakershi vs.
Pradyuman Singhji. The review order, passed
ex parte on the same day as the application,
lacked new evidence or legal basis. Writ
petition
allowed,
review
order
quashed.
(Paras 15-33)

Writ petition allowed.
5 All. Ms Marion Biotech Pvt. Ltd. Vs. State of U.P. & Ors.
1095
List of Cases cited:

1. Naresh Kumar and Others vs. Government
(NCT of Delhi), (2019) 9 SCC 416

2. Patel Narshi Thakershi and Others vs.
Pradyuman Singhji Arjun Singhji, (1973) 3 SCC
844

3. Manas Medicos Mansa through its Proprietor
Chaman Lal vs. St. of Punjab and Others, 2010
SCC Online P&H 5184

4. Indian Bank vs. Satyam Fibres (India) Pvt.
Ltd., (1996) 5 SCC 550

5. S.P. Chengalvaraya Naidu (dead) by LRs vs.
Jagannath (dead) by LRs and Ors., (1994) 1
SCC 1

6. Budhia Swain and Ors. vs. Gopinath Deb and
Ors., (1999) 4 SCC 396

7. United India Insurance Company Ltd. vs.
Rajendra Singh and Ors., (2000) 3 SCC 581

8. A.VS Papayya Sastry and Ors. vs. Govt. of
A.P. and Ors., (2007) 4 SCC 221

9. Internet and Mobile Association of India vs.
Reserve Bank of India, (2020) 10 SCC 274

10.
Orissa
Administrative
Tribunal
Bar
Association vs. U.O.I.and Others, 2023 SCC
OnLine SC 309

11. Lalit Narayan Mishra vs. St. of Himachal
Pradesh and Others, 2016 SCC OnLine HP 2866

12. VG Naidu vs. Pahalraj Gangaram, 2016 SCC
OnLine Mad 9710

13. Shivraji and Others vs. Deputy Director of
Consolidation and Ors., 1997 RD 562

14.
Deep
Chand
vs.
Additional
Director,
Consolidation of Holdings, Punjab, Jullunder,
164 PLJ 313

15. S.L. Kapoor vs. Jagmohan and Others,
(1980) 4 SCC 379

16. Huang vs. Secretary of St. of Home
Department, (2007) UKHL 11

17. Hira Lal Patni vs. Sri Kali Nath, AIR 1962 SC
199

18. Satish Chandra Chatterjee vs. Kumar Satish
Kantha Roy & ors., AIR 1923 PC 73

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Sri V.P. Srivastava (Senior
Advocate) assisted by Sri Veerendra Singh
and Neeja Srivastava, learned counsel for
the petitioner and Sri Manish Goyal (Senior
Advocate), learned Additional Advocate
General, assisted by Sri A.K. Goyal,
learned Additional Chief Standing Counsel
for the State respondents Nos. 1 to 5 as
well as Sri Shashi Prakash Singh (Senior
Advocate), Additional Solicitor General of
India, assisted by Sri R.P.S. Chauhan,
learned counsel for respondents No. 6.

2. Petitioner is aggrieved with the
order dated 4.10.2023 (Annexure no.16)
passed by the Appellate Authority/Special
Secretary
Food,
Safety
and
Drug
Administration, State of U.P. (respondent
no.2), whereby review application dated
4.10.2023 moved on behalf of the Assistant
Commissioner (Drugs) has been allowed
and previous order dated 11.8.2023 passed
in Appeal No.1005 of 2023 under Rule
85(3) of The Drugs and Cosmetics Rules,
1945 (in brevity 'Rules 1945') has been
suspended, and the manufacturing company
(petitioner) has been directed to produce
the certified copies of the orders passed by
different courts of Republic of Uzbekistan
and submit a compliance report to the Drug
Licensing-Cum-Controlling Authority of
Uttar Pradesh and Drug Controller General
of India after enforcing the process of
Corrective and Preventive Action (CAPA).
1096 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Facts culled out from the record are
that petitioner is a private limited company
having its manufacturing unit at B-48-49,
Sector 67, District Gautam Budh Nagar. He
has been granted drugs license in Form 25
and Form 28 under the provisions of Rules
1945 to manufacture the drug both for
indigenous and foreign sales. In pursuant to
the license issued by the competent
authority, he has been permitted to
manufacture tablets, capsules and syrups
with various active ingredients. Present
writ petition relates to the manufacturing of
DOK-1, Max tablets and Syrups having
active
pharmaceutical
ingredients
of
Paracetamol BP 500 mg, Guaifenesin BP
200 mg and Phenylethrine Hydrochloride
BP 10 mg. By letter dated 29.9.2022
(Annexure no.3), he has been permitted to
manufacture additional drug item (quantity
based) only for the purposes of export. On
the
information
received
from
the
authorities concerned qua death of 15
children
in
Samarkand,
Republic
of
Uzbekistan owing to consumption of DOK1 Max Syrup, the Joint Inspection Team of
Central and State Drug Authorities have
conducted several inspections at the factory
premises
of
the
petitioner
between
27.12.2022 to 12.1.2023 and collected
samples of drugs for the purposes of testing
and analysis. Subsequently, show cause
notice dated 30.12.2022 has been issued to
the petitioner, under Rule 85(2) of Rules
1945, as to why his drugs license (Form 25
and
Form
28)
should
not
be
cancelled/suspended because of violation
of the license conditions as enunciated
under Rule 74 and 78 of the Rules 1945.
Petitioner has filed his reply dated
13.1.2023. However, in the meantime,
samples collected by the Joint Inspection
Team has been sent for testing and
analysis,
and
its
report
has
been
communicated
to
the
petitioner
by
subsequent
notice
dated
3.3.2023
(Annexure No.7) and 4.3.2023 (Annexure
No.8) with an observation that as per test
reports dated 1.3.2023 and 14.1.2023
respectively sent by Government Analyst,
Regional
Drugs
Testing
Laboratory
(RDTL), Chandigarh, samples are found
"Not of Standard Quality" for the reasons
that samples contains DI Ethylene Glycol
(DEG) and Ethylene Glycol (EG) more
than required standard.

4. Drugs Licensing-Cum-Controling
Authority U.P. has cancelled the drugs
licence of the petitioner (Form 25 and Form
28) by order dated 13.3.2023 (Annexure
no.9) without waiting period of 28 days as
enunciated under Section 25 (3) of the
Drug and Cosmetics Act 1940 (in brevity
Act, 1940). Having been aggrieved with the
order dated 13.3.2023, petitioner has
preferred an appeal dated 1.6.2023 under
Rule 85 (3) of Rules 1945. Appellate
Authority (respondent no.2) has partly
allowed the appeal, with the assistance of
departmental team constituted for this
purpose,
vide order
dated
11.8.2023
(Annexure no.13) and revived the drugs
license of the appellant (petitioner) except
the
manufacturing
of
drugs
wherein
Propylene Glycol (P.G.) are permitted to be
used. In pursuance of the appellate order
dated 11.8.2023, Drug Licensing Cum
Controlling Authority U.P. has issued
permission
letter
dated
14.9.2023
(Annexure no.14) for manufacturing the
drugs excepting those wherein Propylene
Glycol (P.G.) is a required ingredient. At
later
stage,
Assistant
Commissioner
(Drugs) Headquarters, Food Safety and
Drug Administration, U.P., Lucknow, has
filed review application dated 4.10.2023
against the appellate court's order dated
11.8.2023. Appellate Authority (respondent
no.2) has allowed the review application
5 All. Ms Marion Biotech Pvt. Ltd. Vs. State of U.P. & Ors.
1097
and suspended the order dated 11.8.2003
passed in Appeal No. 1005 of 2023 with a
direction that manufacturing company
(petitioner) shall produce the certified
copies of the orders passed by different
courts of Uzbekistan and submit a report to
the Drugs Licensing and Controlling
Authority, U.P. and Drug Controller
General of India after implementing the
process of Corrective and Preventive
Action (C.A.P.A.), vide order impugned
dated 4.10.2023, which is under challenge
before this Court.

5. Learned counsel for the petitioner
submits that:-

5(i)
The
appellate
authority,
under Rules 1945, has inherent lack of
jurisdiction to review its previous order
dated 11.8.2023, inasmuch as neither in the
Act 1940 nor in the Rules 1945 there is any
power conferred on appellate authority to
review its order. Power of review cannot be
exercised without any statutory provision.
It has to be specifically, and by necessary
implications, proved under the provisions
of law to enable the authority concerned to
exercise power of review.

5(ii) Even otherwise, there is no
mistake or error apparent on the face of
record, or discovery of any new or
important material or evidence which
despite due diligence was not within the
knowledge of the party seeking review or
for any other sufficient reason warranting
the review of the previous order passed by
appellate authority. In support of his
submission,
learned
counsel
for
the
appellant has placed reliance upon the
judgment of Naresh Kumar and Others
Vs. Government (N.C.T. of Delhi), (2019)
9 SCC 416; Patel Narshi Thakershi and
Others Vs. Shri Pradyuman Singhji
Arjun Singhji (1973) 3 SCC 844; Order
passed by the Punjab and Haryana High
Court in the case of Manas Medicos
Mansa through its Proprietor Chaman
Lal Vs. State of Punjab and Others, 2010
SCC Online P&H 5184.

5(iii) It is next submitted that
once the appellate authority has decided the
appeal on merits under Rule 85(3) of Rules
1945, it become functus officio from the
date of order passed in the appeal,
inasmuch as appellate order became final
between the parties subject to remedy
available in the statute and he has inherent
lack of jurisdiction to review his previous
order.

5(iv) Learned counsel for the
petitioner has also laid emphasis on the
provision enunciated under Section 25(3)
of the Act 1940, wherein 28 days' time has
been accorded to the aggrieved person
(manufacturer) to file any objection along
with relevant documents against the report
of analyst. In the present matter, as per
submission advanced by learned counsel
for the petitioner, statutory period has not
been exhausted and sans opportunity to file
objection, petitioner's drug license has been
cancelled.

5(v) It is next submitted that
review
order
under
challenge
dated
4.10.2023 has been passed sans opportunity
of hearing accorded to the petitioner,
inasmuch as review application was filed
on 4.10.2023 and it has been allowed on
the same day, vide an ex parte order.

6. Per contra, learned counsel for the
respondents has contended that -

6(i) In the report of Government
Analyst (R.T.D.L.), Chandigarh, substance
of Glycol has been found more than the
permitted degree which is disastrous for the
health of children. Section 4 of the Act
1940
is
charging
section
wherein
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption is drawn as to the poisonous
substance. He has drawn attention of the
court to Chapter IV of the Act 1940,
especially, Section 16, which lays down
standard of the quality of the scheduled
drugs

6(ii) He has further invited the
attention of the court to Sections 17, 17(A)
and 17(B) of the Act 1940 and tried to
prove that drugs manufactured by the
petitioner are substandard and, in the public
interest, order of the appellate court has
rightly been reviewed.

6(iii) It is next submitted that the
provisions of the Act 1940 have an
overriding effect over the rules which are
subordinate piece of litigation, therefore,
remedy to file review is always available to
the party concerned (Authority) in case
order has been passed in violation of
provisions of Act 1940. Even otherwise,
Rule 85(3) of Rules 1945 does not bar to
file a review against the appellate order. He
has emphasized that legal right enshrined
under Article 19(1)(g) read with Article
19(6) of the Constitution of India are not
absolute and are subject to right to life and
personal liberty guaranteed under Article
21 of the Constitution of India. Therefore,
even assuming that there is no power of
review, authority concerned has an inherent
jurisdiction to review its order in public
interest.

6(iv) Due to false representation
of
the
manufacturing
company,
the
erroneous order was passed by the
appellate authority which needed to be
corrected. Accordingly, Drug Licensing
and Controlling Authority, U.P. has rightly
submitted the review application before the
appellate authority. The company failed to
provide the correct copy of the Inter
District Economic Court of Tashkent. It is
submitted that it emerge during the
discussion that Apex Court of Uzbekistan
corrected the earlier decision of Inter
District Economic Court of Tashkent dated
13.01.2023, in which the Inter District
Economic Court passed an order to destroy
all the "DRUGS UNFIT FOR USE"
manufactured by the company. The Apex
court replaced the word "DRUGS UNFIT
FOR USE" with the words "DRUGS
UNFIT FOR USE" DOK-1max syrup
100ml" and Ambronol Syrup 15mg/5ml,
series AAS2201 and AAS2202". The rest
of the decision of the Inter District
Economic
Court
of
Tashkent
dated
13.1.2023 is unchanged. Thus, it was found
that the accused company has earlier given
misleading presentation stating that the
Apex Court of Uzbekistan has banned only
two drugs, namely, Dok-1 Syrup and
Ambronol Syrup and rest of medicines are
allowed. It is also came into notice, during
the meeting, that the case is still pending in
the courts of Uzbekistan for final decision.
In support of his submissions learned
counsel for the respondents has relied upon
the judgment passed by Hon'ble Supreme
Court in Indian Bank Vs. Satyam Fibres
(India) Pvt. Ltd. (1996) 5 SCC 550; S.P.
Chengalvaraya Naidu (dead) by LRs Vs.
Jagannath (dead) by LRs and Ors.
(1994) I SCC 1; Budhia Swain and Ors.
Vs. Gopinath Deb and Ors. (1999) 4 SCC
396; United Indian Insurance Company
Ltd. Vs. Rajendra Singh and Ors. (2000)
3 SCC 581; A.V. Papayya Sastry and
Ors. Vs. Govt. of A.P. and Ors. (2009) 4
SCC 221.

6(v) Learned counsel for the
respondents has tried to submit that power
to
prohibit
something
as
res
extra
commercium is always a legislative policy,
therefore,
authorities
under
their
jurisdiction conferred through legislation
can examine the correctness of previous
proceeding which are damaging and against
the provisions of law. In support of his
5 All. Ms Marion Biotech Pvt. Ltd. Vs. State of U.P. & Ors.
1099
submission, he has placed reliance upon the
judgment passed by the Hon'ble Apex
Court in the case of Internet and Mobile
Association of India Vs. Reserve Bank of
India, (2020) 10 SCC 274.

7.
Having
considered
the
rival
submissions advanced by learned counsel
for the parties and upon perusal of record,
It is manifest that the issue involve in the
instant writ petition lies in a narrow
compass as to "whether appellate authority
under Rule 85(3) of the Rules 1945 has got
jurisdiction to review his previous order
dated 11.8.2023 passed in Appeal No. 1005
of 2023, in absence of any statutory
provision for review, and became functus
officio
after
exercising
its
appellate
jurisdiction."

8. Learned counsel for the petitioner
has hammered the order impugned for want
of jurisdiction of the appellate authority to
revisit his earlier order and submits that
once the appeal is decided finally under
Rule 85(3) of the Rules 1945, the appellate
authority become functus officio and he
cannot entertain any application in the
nature of review to decide the question
involve in the matter afresh. However,
learned counsel for the respondents has
contended that appellate authority under the
statute can rectify his order at any time, in
case he feels that the order has been passed
on incorrect facts, therefore, he cannot be
considered as a functus officio. In view of the
point involved in the instant matter, as
mentioned above, it would be befitting to
define the phrase "Functus Officio". Needless
to say that any judge or quasi-judicial
authority would be considered as functus
officio in the eventuality that he/she has
performed his/her duty finally in its official
capacity
and
nothing
remains
to
be
decided/considered/revisit on the said subject
matter unless there is a legal provision to do
so. In the recent judgment of Orissa
Administrative Tribunal Bar Association
vs. Union of India and others, 2023 SCC
OnLine SC 309, Hon. Supreme Court has
discussed the phrase "functus officio". The
relevant paragraphs of the aforesaid judgment
are quoted herein below:-

107. P. Ramanath Aiyer's The Law
Lexicon (1997 edition) defines the term
functus officio as:-

"A term applied to something
which once has had a life and power, but
which has become of no virtue whatsoever
One who has fulfilled his office or is out of
office an authority who has performed the act
authorised so that the authority is exhausted"

108. Black's Law Dictionary (5th
edition) defines the term as follows

"Having fulfilled the function,
discharged the office or accomplished the
purpose, and therefore of no further force or
authority an instrument, power, agency, etc.
which has fulfilled the purpose of its creation,
and is therefore of no further virtue or effect

109. The doctrine of functus
officio gives effect to the principle of
finality. Once a judge or quasi-judicial
authority has rendered a decision, it is not
open to her to revisit the decision and
amend. correct clarify, or reverse it (except
in the exercise of the power of review,
conferred by law) Once a Judicial or quasijudicial decision attains finality, it is
subject to change only in proceedings
before the appellate court

110. For instance, Section 362 of
the Code of Criminal Procedure 1975
provides that a court of law is not to alter
its judgment once it is signed

"362 Court not to alter judgment.
Save as otherwise provided by this Code or
by any other law for the time being in
force, no Court, when it has signed its
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment or final order disposing of a case,
shall alter or review the same except to
correct a clerical or arithmetical error."

111. In Hari Singh Mann v.
Harbhajan Singh Bajwa35, this Court
recognized that Section 362 was based on
the doctrine of functus officio

70. The section is based on an
acknowledged principle of law that once a
matter is finally disposed of by a court, the
said court in the absence of a specific
statutory provision becomes functus officio
and disentitled to entertain a fresh prayer
for the same relief unless the former order
of final disposal is set aside by a court of
competent
jurisdiction
in
a
manner
prescribed by law. The court becomes
functus officio the moment the official
order disposing of a case is signed. Such an
order cannot be altered except to the extent
of correcting a clerical or an arithmetical
error."

112. The doctrine of functus
officio exists to provide a clear point where
the adjudicative process ends and to bring
quietus to the dispute. Without it, decisionmaking bodies such as courts could
endlessly revisit their decisions. With a
definitive endpoint to a case before a court
or quasi-judicial authority, parties are free
to seek judicial review or to prefer an
appeal. Alternatively, their rights are
determined
with
finality.
Similar
considerations do not apply to decisions by
the state which are based entirely on policy
or expediency.

115. Turning to the present case,
the appellants' argument that the Union
Government was rendered functus officio
after establishing the OAT does not stand
scrutiny. The decision to establish the OAT
was administrative and based on policy
considerations. If the doctrine of functus
officio were to be applied to the sphere of
administrative decision-making by the
state, its executive power would be
crippled. The state would find itself unable
to change or reverse any policy or policybased decision and its functioning would
grind to a halt. All policies would attain
finality and any change would be close to
impossible to effectuate.

114. This would impact not only
major policy decisions but also minor ones.
For example, a minor policy decision such
as a bus route would not be amenable to
any modification once it was notified. Once
determined, the bus route would stay the
same regardless of the demand for say, an
additional stop at a popular destination.
Major policy decisions such as those
concerning
subsidies,
corporate
governance, housing, education and social
welfare would be frozen if the doctrine of
functus officio were to be applied to
administrative
decisions.
This
is
not
conceivable because it would defeat the
purpose of having a government and the
foundation of governance. By their very
nature, policies are subject to change
depending on the circumstances prevailing
in society at any given time. The doctrine of
functus officio cannot ordinarily be applied
in
cases
where
the
government
is
formulating and implementing a policy.

115. In the present case, the State
and Union Governments' authority has not
been exhausted after the establishment of
an SAT. Similarly, the State and Union
Governments cannot be said to have
fulfilled the purpose of their creation and to
be of no further virtue or effect once they
have established an SAT. The state may
revisit its policy decisions in accordance
with law. For these reasons, the Union
Government was not rendered functus
officio after establishing the OAT."

9. In the matter of Lalit Narayan
Mishra vs. State of Himachal Pradesh
5 All. Ms Marion Biotech Pvt. Ltd. Vs. State of U.P. & Ors.
1101
and others, 2016 SCC OnLine HP 2866,
Division Bench of Hon'ble Himachal
Pradesh High Court has held that "Functus
officio" is a Latin term meaning having
performed his or her office. With regard to
an officer or official body, it means without
further authority or legal competence because
the duties and functions of the original
commission have been fully accomplished.
"Functus" means having performed and
"officio" means office. Thus, the phrase
functus officio means having performed his or
her office, which in turn means that the public
officer is without further authority or legal
competence because the duties and functions
of the original commission have been fully
accomplished.

10. Trayner's Latin Maxims, 4th Edn.
gives the expression functus officio the
following meaning "Having discharged his
official duty. This is said of any one holding a
certain appointment, when the duties of his
office have been discharged. Thus a Judge,
who has decided a question brought before
him, is functus officio and cannot review his
own decision."

11. In Wharton's Law Lexicon, 14th
Edn., the expression functus officio is given
the meaning: "a person who has discharged his
duties, or whose office or authority is at an
end."

12. P. Ramanatha Aiyar's Law Lexicon
gives the expression the meaning: "A term
applied to something which once has had a life
and power, but which has become of no virtue
whatsoever. Thus when an agent has
completed the business which he was
entrusted his agency is functus officio."

13. In Black's Law Dictionary Tenth
Edition, meaning of functus officio is:
"having performed his or her office (of an
officer or official body) without further
authority or legal competence because the
duties and functions of the original
commission
have
been
fully
accomplished."
In
other
words,
the
authority, which had a life and power, has
lost everything on account of completion of
purpose/activities/act. (Emphasis supplied)

14.
Dealing
with
the
execution
proceedings, Hon'ble Single Bench of
Madras High Court in the matter of VG
Naidu vs. Pahalraj Gangaram, 2016 SCC
OnLine Mad 9710 has observed that till
the time of limitation subsists, there can be
any number of execution applications and
if statute, provides power to correct certain
account of certain kinds of errors, then the
doctrine of functus officio would be subject
to such qualification and its applicability
would dependent upon the nature and
extent of power conferred on the authority
functioning. It is further observed that
"principle of finality is attached to the
doctrine of functus officio, but, there are
exceptions to the principle of finality.
However, the court's inherent power to set
aside the judgment only be invoked in
exceptional
circumstances
to
avoid
miscarriage of justice. Fraud as is a
genuine, albeit limited, exceptions to the
important principle of finality of litigation.
 (Emphasis supplied)

15. Having considered the nature and
scope of functus officio, as discussed in
preceding
paragraphs,
in
the
given
circumstances of the present case, it can
safely
be
culminated
that
appellate
authority having been passed the order
dated 11.8.2023 became functus officio.
The moment he passed the order being an
appellate authority, his appellate power as
enshrined under Rule 85 (3) of Rule 1945
comes to an end subject to further authority
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
or legal competence. Thus, statutory
provision
of
review
is
essential
to
authenticate the order passed by the
reviewing authority. The case of Naresh
Kumar and Others (supra) has arisen out
of land acquisition proceeding, wherein
judgment/award passed by the appellate
authority has been reviewed, subsequently,
while the award has attained finality. In this
backdrop of the facts, the Hon'ble High
Court has held that power of review can be
exercised only when the statute is provide
for the same and in absence of any such
provision in the statute concerned, the
power of review cannot be exercised by the
authority concerned. Similar view was
taken by a Full Bench of this High Court in
the matter of Shivraji and Others Vs.
Deputy Director of Consolidation and
Ors, 1997 RD 562. Aforesaid matter was
arising out of the proceeding under the UP
Consolidation of Holdings Act, 1953. The
Deputy
Director
of
Consolidation
(revisional authority under Section 48 of
the U.P.C.H. Act) has reviewed his
previous order sans any statutory provision
of review under the Act. The Full Bench of
this Hon'ble High Court has discussed the
matter in detail and held that the power of
review has to be specifically conferred. The
consolidation authorities particularly the
Deputy Director of Consolidation is not
vested with any power of review of his
order and, therefore, cannot reopen any
proceeding and cannot review or revise his
earlier order. However, as a judicial or
quasi-judicial authority, he has the power to
correct any clerical mistake or arithmetical
error, manifest in his order in exercise of its
inherent power as a tribunal.

16. Dictum of Hon'ble Supreme Court
in the matter of Patel Narshi Thakershi
and others (supra) decided by Full
Bench
(Hon'ble
Three
Judges)
is
important as well wherein power of review
has not been acknowledged as inherent
power of any authority unless statute
provides. Relevant Paragraph No. 4 of the
aforesaid judgment is quoted hereinbelow:-

4. The first question that we have
to consider is whether Mr. Mankodi had
competence to quash the order made by the
Saurashtra Government on October 22,
1956. It must be remembered that Mr.
Mankodi was functioning as the delegate of
the State Government. The order passed by
Mr. Mankodi, in law amounted to a review
of
the
order
made
by
Saurashtra
Government. It is well settled that the
power to review is not an inherent power. It
must be conferred by law either specifically
or by necessary implication. No provision
in the Act was brought to our notice from
which it could be gathered that the
Government had power to review its own
order. If the Government had no power to
review its own order, it is obvious that its
delegate could not have reviewed its order.
The question whether the Government's
order is correct or valid in law does not
arise
for
consideration
in
these
proceedings so long as that order is not set
aside or declared void by a competent
authority. Hence the same cannot be
ignored The Subordinate Tribunals have to
carry out that order. For this reason alone
the order of Mr. Mankodi was Liable to be
set aside.

17. Learned counsel for the appellant
has placed reliance, as well, on the case of
Mansa Medicos (supra) decided by
Hon'ble Single Judge of Punjab and
Haryana High Court, wherein judgment of
Five Judges Larger Bench of Panjab and
Haryana High Court in the case of Deep
Chand
vs.
Additional
Director,
Consolidation
of
Holdings,
Punjab,
5 All. Ms Marion Biotech Pvt. Ltd. Vs. State of U.P. & Ors.
1103
Jullunder, 164 P.L.J. 313 has been relied
upon in paragraph Nos. 12 and 13, which
are quoted hereinbelow:-

12. The issue raised before a fiveJudge Full Bench of this Court in Deep
Chand's case (supra) was as under:-

"How far the Additional Director,
Consolidation, was competent to recall or
review his orders on the merits in the
absence
of
any
statutory
provision
conferring such power?"

13.
The
Full
Bench,
after
analysing the gamut of judicial precedents
on the subject had arrived at the conclusion
that power to correct apparent clerical or
similar mistakes may be presumed, but only
if they do not affect the substance of the
decision; otherwise there can be no power
of review on the merits except to the extent
that the statute confers it and further held
that
the
Additional
Director
of
Consolidation was not empowered to recall
or review his earlier erroneous and unjust
order whenever it was discerned that the
error was due to his own mistaken view on
the merits of the controversy.

18. However, it has been held by way
of several judicial pronouncements that
proposition of law qua functus officio and
lack of review jurisdiction under the
statutes are subject to exceptions of fraud,
collusion and misrepresentation. Any court
or tribunal has inherent power to recall or
review its judgement or order, if said order
or judgement is found to be obtained by
fraud/forgery, inasmuch as fraud vitiates
everything
even
the
utmost
solemn
proceedings. In the case of Indian Bank
(supra) Hon'ble supreme court has held
that courts in India possess inherent power,
specially under Section 151 CPC, to recall
its judgement or order if it is obtained by
fraud on court. In the case of fraud on a
party to the suit or proceeding, the court
may direct the affected party to file a
separate suit for setting aside the decree
obtained by fraud. Inherent powers are
power which are resident in all courts,
especially all superior jurisdiction. These
powers spring not from legislation but from
nature and constitution of the tribunal or
courts themselves so as to enable them to
maintain their dignity, secure obedience to
its process and rules, protect its official
from indignity and wrong and to punish
unseemly behaviour. Since fraud affects the
solemnity, regularity and orderliness of the
proceedings of the court and also amount to
an abuse of process of courts, the courts
have been held to have inherent power to
set aside an order obtained by fraud
practised
upon
the
court.(Emphasis
supplied)

19. In the facts and circumstances of
the case of Indian Bank (supra), wherein
National Consumer Dispute Redressal
Commission at Delhi has allowed the claim
of respondent (in Civil Appeal before
Hon'ble Supreme Court) and same was
subsequently reviewed on the application
moved on behalf of the appellant, Hon'ble
Supreme Court has defined the word
'fraud' and 'forgery' in paragraph Nos. 24
to 32, which is quoted hereinbelow:-

24. We may now turn to the next
and allied questions; what is forgery,
whether forgery is a fraud and whether in
the instant case, forgery and fraud are
proved?

25. Forgery has its origin in the
French word "Forger", which signifies:

"to frame or fashion a thing as
the smith doth his worke upon the anvil.
And it is used in our law for the fraudulent
making and publishing of false writings to
the prejudice of another man's right
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
(Termes de la Ley) (Stroud's judicial
Dictionary, Fifth Edition Vol. 2).

26. In Webster's Comprehensive
Dictionary,
International
Edition,
"Forgery' is defined as :

"The act of falsely making or
materially altering, with intent to defraud;
any writing which, if genuine, might be of
legal efficacy or the foundation of a legal
liability."

27. This Definition was adopted
in Rembert vs. State, 25 Am. Rep. 639. In
another case, namely, State vs. Phelps, 34
Am. Dec. 672, it was laid down that forgery
is the false making of any written
instrument, for the purpose of fraud or
deceit. This decision appears to be based
on the meaning of forgery as set out in
Tomlin's Law Dictionary.

28. From the above, it would be
seen that fraud is an essential ingredient of
forgery.

29. Forgery under the Indian
Penal Code is an offence which has been
defined in Section 463, while Section 464
deals with the making of a false document.
Section 465 deals with the making of a
false document. Section 465 prescribes
punishment
for
forgery.
"Forged
document" is defined in Section 470 while
Section 471 deals with the crime of using
as genuine, the forged document.

30. Forgery and Fraud are
essentially matters of evidence which could
be proved as a fact by direct evidence or by
inferences drawn from proved facts.

31. The Privy Council in Satish
Chandra Chatterjee vs. Kumar Satish
Kantha Roy & Ors. Air 1923 PC 73, laid
down as under:

"Charges of fraud and collusion
like those contained in the plaint in this
case must, no doubt, be proved by those
who made them- proved by established
facts or inferences legitimately drawn from
those facts taken together as a whole.
Suspicions and surmises and conjecture are
not permissible substitutes for those facts
or those inferences, but that by no means
requires that every puzzling artifice or
contrivance resorted to by one accused or
fraud must necessarily be completely
unravelled and cleared up and made plain
before a verdict can be properly found
against him. If this were not so many a
clever and dexterous knave would escape.

32. The above principle will
apply not only to court of law but also to
statutory
tribunals
which,
like
the
Commission, are conferred power to
record evidence by applying certain
provisions of the Code of Civil Procedure
including the power to enforce attendance
of the witnesses and are also given the
power to receive evidence on affidavits.
The Commission under the Consumer
Protection Act, 1986 decides the dispute by
following the procedure indicated in
Section 22 read with Section 13(iv) and (v)
of the Act.

20.
In
the
matter
of
S.P.
Chengalvaraya Naidu (supra), opposite
party has obtained preliminary decree by
playing fraud on the Court and in this
backdrop of the case, Hon'ble Supreme
Court has held that non-disclosure of
relevant and material document with a view
to obtain advantage amounts to fraud.
Relevant portion of paragraph Nos. 5 and 6
are quoted hereinbelow:-

5. The High Court, in our view,
fell into patent error. The short question
before the High Court was whether in the
facts and circumstances of this case,
Jagannath obtained the preliminary decree
by playing fraud on the court. The High
Court, however, went haywire and made
observations which are wholly perverse.
5 All. Ms Marion Biotech Pvt. Ltd. Vs. State of U.P. & Ors.
1105
We do not agree with the High Court that
"there is no legal duty cast upon the
plaintiff to come to court with a true case
and prove it by true evidence". The
principle of "finality of litigation" cannot
be pressed to the extent of such an
absurdity that it becomes an engine of
fraud in the hands of dishonest litigants.
The courts of law are meant for imparting
justice between the parties. One who comes
to the court, must come with clean-hands.
We are constrained to say that more often
than not, process of the court is being
abused. Property-grabbers, tax- evaders,
bank-loan-dodgers and other unscrupulous
persons from all walks of life find the court
- process a convenient lever to retain the
illegal-gains indefinitely. We have no
hesitation to say that a person, who's case
is based on falsehood, has no right to
approach the court. He can be summarily
thrown out at any stage of the litigation.

6. The facts of the present case
leave no manner of doubt that Jagannath
obtained the preliminary decree by playing
fraud on the court. A fraud is an act of
deliberate deception with the design of
securing something by taking unfair
advantage of another. It is a deception in
order to gain by another's loss. It is a
cheating intended to get an advantage.
Jagannath was working as a clerk with
Chunilal Sowcar.

21. Hon'ble Supreme Court in the
matter of Budhia Swain and others
(supra) has elucidated the review/recall
jurisdiction of tribunal or court and given
certain conditions wherein power of
review/recall can be exercised. Relevant
paragraphs No. 8 and 9 of the aforesaid
cited judgment are quoted hereinbelow:-

8. In our opinion a tribunal or a court
may recall an order earlier made by it if

(i) the proceedings culminating
into an order suffer from the inherent lack
of jurisdiction and such lack of jurisdiction
is patent,

(ii) there exists fraud or collusion
in obtaining the judgment,

(iii) there has been a mistake of
the court prejudicing a party or