# Smt. Urmila Jaiswal v. State of U.P.and others

- **Citation:** (2013) 1 ILRA 381
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-04
- **Bench:** Ashok Bhushan, Abhinava Upadhya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-urmila-jaiswal-v-state-of-u-p-and-others-42505
- **Pages:** 10

## Headnote

Constitution of India, Art.-226- Power of
Review-Appeal against cancellation fair
price shop-dismissed -subsequently-on
review
application-commissioner
allowed the appeal and remanded back
for fresh decision-whether power of
review can be exercised in absence of
statutory
provision?-Held-'No'
under
clause 28 of U.P. Scheduled commodities
distribution
order
2004-no
such
provision of review impugned order
including entire subsequent proceedingwithout jurisdiction.

Held: Para-26

Thus, from the proposition of law as
noted above, it is clear that when the
Statute does not confer any power of
review
expressly
or
by
necessary
implication the power of review cannot
be inherent. The distinction which is
sought to be raised by the counsel for
the respondent no.4 that a mistake was
said to be corrected by Commissioner
under
the
inherent
power
is
not
acceptable. The Commissioner expressly
exercised the power of review and
allowed the review application vide
order dated 28.12.2012, which is beyond
his jurisdiction.

Case Law discussed:
1997 R.D. Page 562; 2003 ACJ 1906; 2007(9)
ADJ 581 (DB); AIR 1996 SC 2592; 2005(4)
AWC 3563; ADJ 2010 (3) 685; 2008(2)
UPLBEC 1256; AIR 1999 SC 3609; 1987 (4)
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
SCC 525; 2005(13)SCC 777; (2010) 9 SCC
437; ADJ 2010 (3) 685; 2008(1) ADJ 718

## Text

1 All] Smt. Urmila Jaiswal Vs. State of U.P.and others
381

17. As such, although the petitioner
has been initially appointed on the post of
Gram Panchayat Adhikari on 13.07.1983,
however, by order dated 02.05.1984 his
services were terminated/dispensed, again
appointed on the said capacity uptill
16.12.1987, thereafter, his services were
terminated.

18. Lastly, the petitioner was given
appointment on the post of Gram
Panchayat Adhikari by an order dated
09.05.1989
(Annexure
No.
6)
in
pursuance to the Government Order dated
20.10.1986, even if the words mentioned
in the appointment order are "पुनः िनयु'$
समायो.जत"
but
the
said
date
(09.05.1989) shall be the date of his
appointment in the department on the post
of Gram Panchayat Adhikari and that date
shall be the starting point of his career.
So, the relief as claimed by the petitioner
for giving benefit of the service rendered
by him w.e.f. 13.07.1983 to 26.05.1989
on the post of Gram Panchayat Adhikari
cannot be granted, as such, the petitioner
cannot derive any benefit from the law as
laid down by Hon'ble the Supreme Court
in the case of Sushil Kumar (Supra)
because the same is not applicable in the
facts and circumstances of the present
case.

19. For the foregoing reasons, the
writ petition lacks merit and is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ABHINAVA UPADHYA, J.

Civil Misc. Writ Petition No. 10384 Of 2013
Smt. Urmila Jaiswal

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.S.P. Gupta
Sri Anil Pandey

Counsel for the Respondents:
C.S.C
Sri Akhilesh K. Dwivedi
Sri Ramesh Rai

Constitution of India, Art.-226- Power of
Review-Appeal against cancellation fair
price shop-dismissed -subsequently-on
review
application-commissioner
allowed the appeal and remanded back
for fresh decision-whether power of
review can be exercised in absence of
statutory
provision?-Held-'No'
under
clause 28 of U.P. Scheduled commodities
distribution
order
2004-no
such
provision of review impugned order
including entire subsequent proceedingwithout jurisdiction.

Held: Para-26

Thus, from the proposition of law as
noted above, it is clear that when the
Statute does not confer any power of
review
expressly
or
by
necessary
implication the power of review cannot
be inherent. The distinction which is
sought to be raised by the counsel for
the respondent no.4 that a mistake was
said to be corrected by Commissioner
under
the
inherent
power
is
not
acceptable. The Commissioner expressly
exercised the power of review and
allowed the review application vide
order dated 28.12.2012, which is beyond
his jurisdiction.

Case Law discussed:
1997 R.D. Page 562; 2003 ACJ 1906; 2007(9)
ADJ 581 (DB); AIR 1996 SC 2592; 2005(4)
AWC 3563; ADJ 2010 (3) 685; 2008(2)
UPLBEC 1256; AIR 1999 SC 3609; 1987 (4)
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
SCC 525; 2005(13)SCC 777; (2010) 9 SCC
437; ADJ 2010 (3) 685; 2008(1) ADJ 718

(Delivered by Hon'ble Ashok Bhushan, J)

1. Heard learned counsel for the
petitioner, Shri Ramesh Rai, learned
counsel for the respondent no.4 and
learned
Standing
Counsel
for
the
respondent nos. 1 to 3.

2. By this writ petition, the
petitioner has prayed for quashing the
order dated 28.12.2012 passed in the
review application filed by the respondent
no.4 as well as the consequential order
dated 12.02.2013 restoring the supply of
respondent no.4.

3. We have heard learned counsel
for the parties.

4. The issue which has been raised
for consideration in the petition is legal in
nature, therefore, with the consent of the
parties, the writ petition is being finally
disposed of at the stage of admission.

5. The brief facts of the case as on
record are that the respondent no.4 was
allotted
fair
price
shop
of
Gram
Phulwariya. He has been running his shop
since 1993. By order dated 26.02.2011,
the fair price shop of the respondent no.4
was cancelled. Against the said order, the
respondent no.4 filed an appeal being
appeal
no.90/88/173/G-2011,
which
appeal was also dismissed by the
Commissioner on 13.04.2012. After the
appeal
was
dismissed
by
the
Commissioner on the basis of resolution
of Gaon Sabha dated 20.09.2012, fresh
allotment
was
made
in
favour
of
petitioner Smt. Urmila Jaiswal by order
dated 12.10.2012. The respondent no.4
after dismissal of his appeal has filed a
review application on 01.06.2012, which
review application was allowed by order
dated 28.12.2012 and the matter was
remitted to District Supply Office for
passing a fresh order. After the order of
the Appellate Authority dated 28.12.2012,
the District Supply Officer has passed an
order on 12.02.2013 by which fair price
shop agreement of respondent no.4 was
restored. Consequently, the petitioner's
fair price shop agreement was cancelled.

6. The petitioner has come up in the
writ petition challenging the order of the
Commissioner dated 28.12.2012 allowing
the review application as well as the
consequential order dated 12.02.2013.

7. Learned counsel for the petitioner
challenging
the
aforesaid
orders
contended that the Commissioner having
once dismissed the appeal by order dated
13th April 2012, had no authority or
jurisdiction to review the order and pass
subsequent order on 28.12.2012, which is
without
jurisdiction
and
all
the
consequential proceedings are vitiated
accordingly. He has submitted that the
appeal of the Commissioner is provided
under Clause 28 of U.P. Scheduled
Commodities Distribution Order, 2004,
and there is no provision for review nor
any such power has been conferred on the
Appellate Authority. He submits that
statute having not conferred any power of
review on the commissioner, the review
application
could
not
have
been
entertained, therefore, the orders passed
are without jurisdiction.

8. Learned counsel for the petitioner
has placed reliance on Full Bench
judgment of this Court reported in 1997
R.D. Page 562 (Smt. Shivraji and
1 All] Smt. Urmila Jaiswal Vs. State of U.P.and others
383
Others
Vs.
Dy.
Director
of
Consolidation, Allahabad and others),
2003 ACJ 1906 (Sudha Sharma Vs.
State of U.P.) and Division Bench
judgment of this Court reported in
2007(9)
ADJ
581
(DB)
(
Syed
Madadgar Husain Rizvi and another
Vs. State of U.P. and Others).

9. Sri Ramesh Rai, learned counsel
for the respondent no.4 refuting the
submission of the petitioner contended
that the petitioner has no locus to
challenge the orders passed by the
Commissioner in review being subsequent
allottee. It is submitted that the review
application was entertained and pending
on the date when allotment was made in
favour of the petitioner. Hence, the
petitioner has no right or locus to
challenge the orders. It is further
submitted that the Appellate Authority
has inherent power to correct the earlier
order on 13.04.2012. He submits that
every judicial or quasi-judicial authority
has inherent power to correct the mistake.
It is further submitted that setting aside
the order dated 28.12.2012 has resulted in
restoration
of
earlier
order
dated13.04.2012, which was an illegal
order. Hence, this Court shall not exercise
its discretion in setting aside the order of
the Appellate Authority even though the
same may be without jurisdiction. The
result of which is to restore the illegal
order.

10. Shri Ramesh Rai has placed
reliance on the judgment of the Apex
Court reported in AIR 1996 SC 2592
(Indian Bank Vs. M/s Satyam Fibres
(india) Pvt. Ltd. In support of his
argument that petitioner has no locus he
has placed reliance on a Division Benches
judgments reported in 2005(4) AWC
3563 Kesari Devi Vs. State of U.P., ADJ
2010 (3) 685 Desh Raj Vs. State of U.P,
2008 (2) UPLBEC 1256 (Amin Khan
Vs. State of U.P. & Others). In support
of his submissions that quashing the order
dated 28.12.2012, an illegal order shall
revive. He has placed reliance on the
Apex Court judgment reported in AIR
1999 SC 3609 (Maharaja chintamani
Saran Nath Shahdeo, Vs. State of Bihar
and Others.

11. We have considered the
submissions of the learned counsel for the
parties and have perused the record.

12. Against an order cancelling the
fair price shop agreement, the appeal is
contemplated in Clause 28 of the 2004
Order (hereinafter referred to as 'Order
2004'). Clause 28 of the Order 2004 is
quoted below:

"28. Appeal- (1) All appeal shall lie
before
the
concerned
Divisional
Commissioner who shall hear and dispose
of the same may by order delegate his/her
powers to the Assistant Commissioner
Food for hearing and disposing of the
appeal.

(2) Any person aggrieved by an order
of the Food Officer or the designated
authority refusing the issue or renewal of
a ration card or cancellation of the ration
card may appeal to the Appellate
Authority within thirty days from the date
of receipt of the order.

(3) Any agent aggrieved by an order
of the competent authority suspending or
cancelling agreement of the fair price
shop may appeal to the Appellate
Authority within thirty days from the date
of receipt of the order.
384 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

(4) No such appeal shall be disposed
of unless the aggrieved person or agent
has been given a reasonable opportunity
of being heard.

(5) Pending the disposal of an appeal
the Appellate Authority may direct that
the order under Appeal shall not take
effect until the appeal is disposed of."

13. Against an order suspending or
cancelling the fair price shop agreement,
the appeal is contemplated within 30
days. The provision further contemplates
that no appeal shall be disposed of unless
the aggrieved person or agent has been
given a reasonable opportunity of being
heard. Power of granting interim order
has also been given under Clause 28 of
the Statute.

14. In the present case appeal was
filed by the respondent no.4 against an
order dated 26.02.2011 by which fair
price shop agreement of the respondent
no.4 was cancelled by District Supply
Officer. The appeal was dismissed on
13.04.2011 after hearing the respondent
no.4 by detailed order, copy of which has
been annexed as annexure-2 to the writ
petition. The Appellate Authority has
placed reliance on the Government Order
dated 17th August 2002 and has held that
the appellant being not resident of village
phulwariya, his fair price shop agreement
was rightly cancelled by the District
Supply Officer.

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 powr of review under the
statute
expressly
or
by
necessary
implication, has an inherent power of
review of its previous order in any
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 practising fraud on theCourt, 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.
1 All] Smt. Urmila Jaiswal Vs. State of U.P.and others
385

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
Vice-Chancellor
in
considering
the
question of approval of an order or
dismissal of the Principal, acts as a quasijudicial 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:

" 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,
386 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
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 exparte 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
ex-parte Award. That order was upheld
by the High Court and thereafter in
appeal by this Court.

18. It was, therefore, submitted
before us relying upon Grindlays Bank
Ltd. v. Central Government Industrial
Tribunal 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 ultravires, 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).
1 All] Smt. Urmila Jaiswal Vs. State of U.P.and others
387

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 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."

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. The submission on which Shri
Rai has much emphasised is that every
quasi-judicial or judicial authority has
inherent power to correct the mistake. He
has placed reliance on para 23 of the
Indian Bank Vs. M/s Satyam (Supra). The
Apex
Court
laid
down
following
proposition of law in paragraph 23, which
is quoted below:

"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 quasi-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.
Emphasis has been laid by the learned
388 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
counsel for the respondent on the phrase "
the court itself commits a mistake".

24. Learned counsel for the
respondent no.4 submits that the appeal
filed under Clause 28 was decided by the
Commissioner on 13.04.2012 and was
decided after hearing the respondent no.4
who was the appellant. In deciding the
appeal it cannot be said that Appellate
Authority has committed any mistake. A
decision of the authority rendered after
appreciation of evidence and hearing
submission of the parties, even if, on
appreciation of evidence and material,
two views are possible, the said decision
cannot be said to have suffered from
mistake. The government order on which
reliance has been placed was considered
and even if the decision may be held to be
erroneous
on
interpretation
of
the
Government Order or precision of the fact
that exercise shall not be turn to be a
mistake committed by the Court. The
word 'mistake' has been defined in Law
Lexicon, which is as follows:

"Mistake. An unconscious ignorance
or forgetfulness of a fact, past or present,
material to the contract, or a belief in the
present existence of a thing material to the
contract, which does not exist; some
intentional act, omission, or error arising
from ignorance, surprise, imposition, or
misplaced confidence; in a legal sense,
the doing of an act under an erroneous
conviction, which act, but for such
conviction would not have been done.

Misapprehension as to the existence
of a thing, arising either from ignorance
or from a false belief on the point.

25. The submission of the learned
counsel for the respondent no.4 that the
court committed a mistake in passing an
order on the appeal, thus cannot be
accepted.

26. Thus, from the proposition of
law as noted above, it is clear that when
the Statute does not confer any power of
review
expressly
or
by
necessary
implication the power of review cannot be
inherent. The distinction which is sought
to be raised by the counsel for the
respondent no.4 that a mistake was said to
be corrected by Commissioner under the
inherent power is not acceptable. The
Commissioner expressly exercised the
power of review and allowed the review
application vide order dated 28.12.2012,
which is beyond his jurisdiction.

27. Now much emphasis was laid by
the learned counsel for the respondent
no.4 that the petitioner has no locus to
challenge the order. He submits that the
petitioner was the subsequent allottee and
he has no authority to challenge the order
restoring the fair price shop agreement.
The facts as has been brought on record
clearly indicate that the fair price shop
agreement of the respondent no.4 was
cancelled on 26.04.2011. The appeal filed
against the said order was dismissed by
the Commissioner on 13.04.2012. After
dismissal of the appeal, the shop was
clearly vacant and thereafter resolution
was passed in favour of the petitioner for
allotment of the shop and allotment was
made on 12.10.2012. The submission of
the respondent no.4 is that the petitioner
was a subsequent allottee and since the
review was entertained on 01.06.2012 the
petitioner had no rights cannot be
accepted. Admittedly, not even interim
order
was
passed
on
the
review
application. We having found that there is
no power of review. The proceedings of
1 All] Smt. Urmila Jaiswal Vs. State of U.P.and others
389
review were clearly without jurisdiction.
Thus, petitioner has right on the basis of
the resolution of the Gaon Sabha dated
12.10.2012 and he has every locus to
challenge the order dated 28.12.2012 and
consequential orders thereafter.

28. Learned counsel for the
respondent no.4 has placed reliance on a
Division Bench judgment in Kesari Devi
Vs. State of U.P (Supra). In the said
judgment the court considered the word
"person aggrieved". The Upadhyaksha of
Zila Panchayat was held to be not
necessary party and having no locus. The
said case is clearly distinguishable. Since
in the present case the petitioner allotment
of fair price shop agreement was made
after dismissal of the appeal. The said
case does not help the respondent no.4 in
the present circumstances.

29. Learned counsel for the
respondent no.4 has placed reliance on the
judgment of Desh Raj Vs. State of U.P.
reported in ADJ 2010 (3) 685. In the
said case the subsequent allottee who was
allotted the shop after cancellation of the
agreement was held to have no locus to
challenge the subsequent order. There
cannot be any dispute to the proposition
as laid down in the above case, but in the
present case the appeal against the
cancellation order was dismissed and the
shop of the respondent no.4 was restored
on the basis of review order which was
without jurisdiction. The said case is
clearly distinguishable and not applicable.

30. Another judgment is Sri Pal
Yadav Vs. State of U.P. & Others
reported in 2008 (1) ADJ 718, where on
account of cancellation of fair price shop
of respondent, the petitioner of that writ
petition was allowed to run the shop as
stop-gap
arrangement
during
the
pendency of the appeal. The license was
restored. Hence, the petitioner has no
locus of being heard. There cannot be any
dispute to above proposition. But facts of
the present case are different since the
allotment was made in favour of the
petitioner when appeal was dismissed and
the shop has been restored on the basis of
the review order which is held without
jurisdiction.

31.

Last
submission
of
the
respondent no.4 is that this Court shall not
quash the order dated 28.12.2012 of the
Commissioner since the consequences of
the order would be revive an earlier order
dated 13.04.2012, which is an illegal
order.

32. In Maharaja chintamani
Saran Nath Shahdeo, Vs. State of Bihar
and Others (Supra) the compensation
was determined to the appellant and
thereafter on a redetermination additional
compensation was paid. The member of
Board of Revenue took a suo motu action
and
reopen
the
compensation.
Consequently a notice was issued for
refund of the compensation. Challenging
the action it was contended by the
petitioner on that petition that Board of
Revenue has no jurisdiction to pass any
order and only an appeal should have
been filed in the said context. The Apex
Court laid down following in paragraph
15 and 37.

"15. Therefore, in view of the above
ratio laid down by this Court, we hold that
even if the Member of Board of Revenue
had no power to issue direction for giving
notice for refund of the excess amount
paid, no exception can be taken to the said
order if it is not found that legally the
390 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
appellant was paid excess compensation
under the Act.

37. For what has been stated above
we hold that the order of the learned
Member of Board of Revenue directing
the action to be taken for refund of the
excess compensation was valid and
proper though he had no jurisdiction to
pass the order. In the event it is set aside it
would amount to reviving an invalid order
of payment of excess compensation to the
appellant."

33. The Apex Court in the said case
held that the order of the Board of
Revenue, even if, without jurisdiction
cannot
be
set
aside
since
the
consequences would be that there will a
revival of invalid order of payment of
excess compensation to the appellant. The
determination of compensation was made
under Bihar Land Reforms Act, 1950. It
was held by the Apex Court that excess
payment was paid to the appellant and
payment of compensation was clearly
against the statute. Hence, the Apex Court
held that the order although without
jurisdiction
would
not
have
been
reviewed. Present is the case where it
cannot be said that the order of the
Commissioner earlier deciding the appeal
on 13.04.2012 was illegal or without
jurisdiction. Counsel for the respondent
no.4 contended that Commissioner has
wrongly interpreted the Government
Order dated 17th August 2002 and
applied the same. After referring the
Government Order the Commissioner has
taken one view of the matter,which
cannot be said to be without jurisdiction
or illegal. We make it clear that in this
writ petition since the order passed by the
Commissioner on 13.04.2012 has not
been challenged nor we are required to
express any opinion on the merits of the
said order, hence, we refrain ourselves in
expressing any opinion on correctness or
otherwise of the said order on merits.

34. We confine ourselves to the
issue that subsequent order of the
Commissioner reviewing the order being
without jurisdiction, all consequential
proceedings falls on the ground. We leave
it open to the respondent no.4 to question
the order dated 13.04.2012 in appropriate
proceedings.

35. With the above observations, the
writ petition is allowed.

36. The order dated 28.12.2012
passed on the review application by the
respondent
no.2
as
well
as
the
consequential order dated 12.02.2013
passed by the respondent no.3 are set
aside.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 11075 Of 2013

Anant Ram and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Mishra

Counsel for the Respondents:
C.S.C.

Constitution of India, Art-226- Imposition
of penalty-deficiency of stamp duty-land in
question not declared-as non agricultural
purpose under section 143 of U.P. Z.A. of
Land Reform Act-but also can not denied