# State of U.P v. Haushala Prasad

- **Citation:** (2019) 1 ILRA 1128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-16
- **Case number:** Writ-C No. 2810 of 2004
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-haushala-prasad-44415
- **Pages:** 12

## Headnote

Holdings Act 1960: Sections 4A, 5(6),
10(2), 12A; Civil Procedure Code, 1908:
Order 47 Rule 1, Section 151 - Review on
merits - power must have sanction of
statute
specifically
or
by
necessary
implication.

Evaluation of land "capable of" being utilised
for sowing two crops - determinative factor of
whether land should be characterized as
irrigated
or
unirrigated.
Order
of
the
Prescribed,Authority upheld in appeal. Review
application allowed by Appellate Authority on
merits. In the absence of a specific provision
conferring
power
of
review
upon
the
authorities under the Act, it cannot be
recognized as an inherent power. (Para 7)
Distinction between a "merit review" and
"procedural review". The mistake or error
must be established to be glaring, patent,
substantial and of a compelling character. A
petition for review is not a remedy of
rehearing or reconsideration of issues which
stand finally settled by the judgment or order.
The power of "procedural review", is a genre
of review that has been judicially recognised to
inhere in all quasi- judicial authorities.
(Paras 10, 11, 12)

Appellate Authority did not record any
finding that the entire land holding of
the respondent was unirrigated, any
finding that may dislodge the record of
fact by the Prescribed Authority that the land
fell into the command area U/S 4A. The
authorities did not evaluate whether the land
was in fact "capable of" being utilised for
sowing two crops, which is a determinative
factor of whether it should be categorized as
irrigated or unirrigated. (Para 18)

Precedent followed: -

## Text

_Characters 0–39,729 of 40,943. This is a partial read: ask again with offset=39729 for what follows._

1128 INDIAN LAW REPORTS ALLAHABAD SERIES
The contention of a monthly tenancy
being created would undisputedly result
in violation of the mandatory provisions
engrafted in Section 13(13) of the 2002
Act. On both counts, therefore, the
petitioners can neither be recognised in
law to be in lawful occupation nor can
they thwart the action of the Bank
initiated under the 2002 Act.

P. Although the DRT and DRAT
were not correct in construing Clause 7 of
the Rent Agreement to be a clause for
renewal thus violating clause (c) of
Section 65A (2) and would not merit
acceptance, in light of the conclusions
recorded above the petitioners are not
entitled to any relief.

40. In light of the aforesaid discussion
and the conclusions recorded hereinabove, the
challenge to the impugned orders, to the
extent noted above, fails. The writ petition is
dismissed.
------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2019

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ-C No. 2810 of 2004

State of U.P. ...Petitioner
Versus
Haushala Prasad ...Respondent

Counsel for the Petitioner:
S.C.

Counsel for the Respondent:
Sri Durga Prasad, Smt. D. Tiwari, Sri M.N.
Singh, S.C., Sri V.K. Singh

A. U.P. Imposition of Ceiling on Land
Holdings Act 1960: Sections 4A, 5(6),
10(2), 12A; Civil Procedure Code, 1908:
Order 47 Rule 1, Section 151 - Review on
merits - power must have sanction of
statute
specifically
or
by
necessary
implication.

Evaluation of land "capable of" being utilised
for sowing two crops - determinative factor of
whether land should be characterized as
irrigated
or
unirrigated.
Order
of
the
Prescribed,Authority upheld in appeal. Review
application allowed by Appellate Authority on
merits. In the absence of a specific provision
conferring
power
of
review
upon
the
authorities under the Act, it cannot be
recognized as an inherent power. (Para 7)
Distinction between a "merit review" and
"procedural review". The mistake or error
must be established to be glaring, patent,
substantial and of a compelling character. A
petition for review is not a remedy of
rehearing or reconsideration of issues which
stand finally settled by the judgment or order.
The power of "procedural review", is a genre
of review that has been judicially recognised to
inhere in all quasi- judicial authorities.
(Paras 10, 11, 12)

Appellate Authority did not record any
finding that the entire land holding of
the respondent was unirrigated, any
finding that may dislodge the record of
fact by the Prescribed Authority that the land
fell into the command area U/S 4A. The
authorities did not evaluate whether the land
was in fact "capable of" being utilised for
sowing two crops, which is a determinative
factor of whether it should be categorized as
irrigated or unirrigated. (Para 18)

Precedent followed: -

1. Patel NarshiThakershi Vs. Pradumansingh ji
Arjunsinghji, [1970 AIR (SC) 1273] (Paras 8,9)

2. U.P. Steels Limited Vs. State of Uttar
Pradesh, [2003 (1) AWC 145] (Para 7) no
power of review can be recognized to inhere in
authorities under the Act.

3. Lily Thomas Vs. Union of India, (2000) 6
SCC 224 (Para 10)
1 All. State of U.P. Vs. Haushala Prasad
1129
4. Kapra Mazdoor Ekta Union Vs. Birla Cotton Spg.
Wvg. Mills Ltd., (2005) 13 SCC 777 (Para 12)

Precedent distinguished: -

Ram Autar and Others v. The State of U.P.,
[1989 RD page 338] (Paras 6, 7) (E-4)

(Delivered byHon'ble Yashwant Varma, J.)

1. Heard Sri Sanjay Goswami, the
learned
Additional
Chief
Standing
Counsel, for the petitioner and Sri M.N.
Singh who has appeared for the contesting
respondent. The Court notes that an
application for impleadment had been
made on behalf of one Rama Shankar
Singh who is stated to be the vendee in a
sale deed dated 03 February 1983
executed by the respondent here. When
the matter has been taken up, none has
appeared to press that application. The
application
for
impleadment
is
consequently rejected. The Court notes
that even otherwise no prejudice as such
stands caused to the applicant since as
would
appear
from
the
subsequent
paragraphs of this decision both the
Prescribed Authority as well as the
Appellate Authority have recognised the
bona fides underlying the sale transaction
in question and on the basis thereof had
upheld
the
exclusion
of
the
area
comprised in the sale deed dated 03
February 1983 while computing the land
held by the respondent in excess of the
ceiling limit.

2. The State has petitioned this
Court challenging the orders dated 21
December 2000 passed by the Prescribed
Authority as affirmed by the Additional
Commissioner in appeal in terms of its
judgment
dated
29
July
2002.
Additionally, challenge is laid to the order
of 18 October 2002 in terms of which the
Additional Commissioner, purportedly
exercising powers of review, has recalled
his earlier judgment of 29 July 2002 and
also brought to a closure all proceedings
which had been initiated against the
respondent tenure holder under the U.P.
Imposition of Ceiling on Land Holdings
Act 1960. Sri Goswami, the learned
Additional Chief Standing Counsel has,
however, in the course of his submissions
stated that the challenge in the instant
petition stands confined to the order of 18
October 2002 passed on the review
petition as preferred by the respondent. It
is in the above backdrop that the petition
was set down for hearing. The facts in
brief which may be noticed and would be
relevant for disposal of the present writ
petition are as follows.

3. The respondent tenure holder was
put to notice in terms of Section 10(2) of
the Act on 12 March 1993 by the State
with respect to a proposed adjudication
being undertaken in respect of surplus
land held by him. Pursuant to that notice
the respondent tenure holder submitted a
reply which was ultimately considered on
merits and the surplus land computed by
the Prescribed Authority by an order of 21
December 2000. While passing that order
the Prescribed Authority upheld the bona
fides of the transaction as embodied in the
sale deed of 03 February 1983 and
consequently proceeded to grant benefit
of Section 5(6) of the Act to the tenure
holder. Dealing with the nature of the
land, the Prescribed Authority referring to
the revenue records of 1378 and 1399
Faslis proceeded to record that the land
was irrigated and its soil was capable of
bearing two crops. On the strength of
these findings it proceeded to compute the
land which was liable to be recognised as
being held by the landholder in excess of
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
the ceiling limit prescribed. This decision
of the Prescribed Authority was assailed
by the landholder as well as the State.
Both the appeals were dismissed by the
Additional Commissioner on 29 July
2002. The landholder however appears to
have filed an application for review of
this order on 02 August 2002. It is not
disputed before this Court that the
application was purportedly filed under
Section 151 CPC. This application has
been allowed by the Appellate Authority
in terms of its order of 18 October 2002.
Ruling on the question of whether a
power to review vested in it, the Appellate
Authority takes resort to Section 151 CPC
to hold that a quasi-judicial authority must
be recognised to have an inherent power
to review and correct errors apparent on
the face of the record. The Appellate
Authority in terms of the order impugned
has ultimately proceeded to hold that the
majority of the land holding of the
respondent was liable to be viewed as
unirrigated and had only borne a single
crop. It has, on the basis of these findings,
come to hold that the proceedings
initiated against the landholder were
liable to be dropped. The Appellate
Authority in terms of the operative
directions
framed
has
brought
the
proceedings initiated under the Act to a
close.

4. Assailing this order Sri Goswami,
the learned Additional Chief Standing
Counsel, contends that the theory of
inherent power as recognised to be
available with the Appellate Authority is a
view
which
is
clearly
untenable.
According to Sri Goswami, the power to
review must be found to be statutorily
conferred expressly or by necessary
implication. According to him in the
absence of a statutory conferment of such
power, a quasi-judicial authority cannot
be recognised to have the power to review
its earlier decision. According to Sri
Goswami the power which was exercised
by the Appellate Authority in the facts of
this case also does not meet the tests as
judicially recognised and which must
inform the exercise of power under Order
XLVII Rule 1 CPC. Sri Goswami in
support of his submissions has placed
reliance upon the judgment rendered by
three learned Judges of the Supreme
Court in Patel Narshi Thakershi Vs.
Pradyumansinghji Arjunsinghji1. He
has also drawn the attention of the Court
to a decision rendered by a learned Judge
of this Court in U.P. Steels Limited Vs.
State of Uttar Pradesh2 arising out of
proceedings emanating from the Act
wherein it was held that no power of
review can be recognised to inhere in
authorities under the Act.

5. Countering these submissions Sri
M.N. Singh, learned counsel appearing
for the contesting respondent, contends
that from the material which has been
taken into consideration by the Appellate
Authority and as encapsulated in the
impugned order, it is evident that its
earlier decision of 29 July 2002 suffered
from errors apparent on the face of the
record. According to Sri Singh the power
to correct and rectify an error which is ex
facie evident, must be recognised as an
inherent power vesting in every judicial or
quasi-judicial authority. Sri Singh learned
counsel has placed reliance upon the
decision rendered in Ram Autar And
Others v. The State of U.P.3 to submit
that the authorities under the Act were
recognised to have an inherent power to
rectify mistakes apparent on the face of
the record. Sri Singh submits that the
recordal of facts by the Appellate
1 All. State of U.P. Vs. Haushala Prasad
1131
Authority clearly shows and establishes
that the majority of the plots of the
landholder were unirrigated and had
produced only one crop. He submits that
in light of the facts that existed on the
record, the Appellate Authority was
clearly justified in recalling and reviewing
its earlier judgment of 29 July 2002 and
bring the proceedings initiated against the
landholder to a closure. It is these rival
submissions, which consequently fall for
determination.

6. At the very outset let it be noted
that although learned counsel for the
respondent would contend that Ram Autar
is an authority for the proposition that
every quasi-judicial authority has an
inherent power to review, that may not be
a correct reading of that decision. The
learned Judge in Ram Autar has held thus:
-

"15. True, when there is no specific
statutory provision for reviewing an order
by an authority contemplated under the
Act, the authority has no power to review
its order. At this place I think it proper to
mention that no Court or Tribunal is
debarred
from
exercising
inherent
jurisdiction
apart
from
statutory
jurisdiction
to
correct
any
error
committed by itself. The aforesaid power
for correcting error by the Court itself is
based on the maxim that no party should
suffer because of the fault of the Court or
Tribunal. Taking the aforesaid view into
consideration
I
think
it
proper
to
emphasize that every Court and Tribunal
has inherent jurisdiction to rectify its
mistake.
The
question
in
what
circumstance the Court or Tribunal shall
rectify its mistake will depend upon the
nature of the mistake committed by the
Court and whether that mistake cannot be
termed as clerical mistake or mistake
apparent on the face of the record."
(emphasis supplied)

7.

As
is
evident
from
the
observations made in that decision, the
learned Judge essentially sought to hold
that the power of rectification must be
recognised to stand invested in every
quasi-judicial authority. This is evident
from the opening part of paragraph 15
itself where the learned Judge recognises
the settled principle that the power to
review must be statutorily conferred. That
there is an inherent distinction between
the power to "rectify" and the power of
"review" is an issue, which is no longer
res integra. Ram Autar can thus only be
recognised as an authority for the
proposition that the power to rectify must
be recognised as being inherently inhering
in a quasi-judicial authority. In any case
and is evident from a reading of the
subsequent decision of this Court in U.P.
Steels Limited, it has been clearly held
that in the absence of a specific provision
conferring power of review upon the
authorities under the Act, it cannot be
recognised as an inherent power Dealing
with this aspect the learned Judge in U.P.
Steels Limited observed thus:-

"8. The aforesaid order passed by
this Court has become final as validity of
the said order was not challenged before
the Supreme Court. The authorities below
after the aforesaid order was passed by
this Court, decided the case in the light of
the observations made and findings
recorded by this Court and re-determined
the ceiling area of the petitioner. The
petitioner also filed an application giving
its choice as provided under Section 12 A
of the Act. The calculation made by the
authorities below were also verified and
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
certified by the counsel of the petitioner.
Therefore,
after
the
order
dated
23.10.1980, passed by the Prescribed
Authority declaring 46 bighas 14 biswas
5-1/3 biswansi of land as surplus, the
petitioner had no right to file an appeal.
However, the appeal was filed which was
also dismissed. Thereafter, the review
application was also filed, which also met
the same fate and was dismissed by order
dated 10.2.1984. The appellate authority
in its aforesaid order observed as under:

"There were no calculations in the
appellate's judgment. List has been given
and it had been checked by the counsel of
the appellant who had conceded that it
was correct.

It is urged now by him that there
could be a mistake and certain plots in
respect of which declaration under
Section 143 had been granted, were not
excluded. He had to concede that
declaration was not in record in respect of
some of the plots which he claimed to be
covered by that declaration and that it is
not traceable. His contention is that he
should be allowed 234-14-15 bighas of
land it is not necessary to show
declaration under Section 143. That, in
my opinion, is not correct and in any case
review is not rehearing of appeal. If the
counsel had conceded certain point and
there could have been mistake, review
will not be maintainable. Judgment shows
no clerical or arithmetical error and if
there is some mistake for which we have
to go through the record again, it will not
be a ground for review.

As it is, in my opinion, review is not
maintainable and there is no clerical error
which is apparent on the record.

The application is without any force.

9. Under the Act, there is no
provision of filing a review application.
Section 13A of the Act simply provides
for an application for rectification of
clerical mistake. In the present case,
learned
counsel
for
the
petitioner
conceded before the appellate authority
that there was no mistake in the
calculation, thus, the appellate authority
was right in holding that the review was
legally not
maintainable." (emphasis
supplied)

8. The controversy in any case does
not survive in light of the decision
rendered by the Supreme Court in Patel
Narshi Thakershi where in unambiguous
terms it was held that the power to review
could never be recognised as being an
inherent power. Their Lordships held that
the power to review must be conferred by
law either specifically or by necessary
implication. These observations as they
appear in paragraph-4 of the decision are
extracted herein below: -

"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 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
1 All. State of U.P. Vs. Haushala Prasad
1133
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."
(emphasis supplied)

9. In light of the decision of the
Supreme Court which is relied upon by
Sri Goswami, it is manifest that the legal
principle
of
the
power
of
review
necessarily being found to be statutorily
conferred
or
flowing
by
necessary
implication from statute, is beyond the
realm of doubt.

10. Before proceeding further and
dealing
with the challenge to the
impugned order on merits, it would be
apposite to pause and reflect briefly on
the power of review as well as to spell out
the clear and well understood distinction
between a "merit review" and "procedural
review". Review, as is well settled, is a
power conferred to rectify a patent or
glaring error of fact or law apparent on
the face of the record. If a judgment or
order has come to be rendered on an
erroneous assumption, in ignorance of an
essential fact or piece of evidence and its
perpetuation would result in a miscarriage
of justice, the Courts and quasi-judicial
authorities would be bound to correct and
rectify that decision or order. The mistake
or error must be established to be glaring,
patent, substantial and of a compelling
character. The mistake must be found to
be one that goes to the very root and
foundation of the judgment or order
sought to be reviewed.

11. At the same time, a petition for
review is not a remedy of re-hearing or
reconsideration of issues which stand
finally settled by the judgment or order.
Though curative, it is not intended to be a
remedy for fresh consideration or a reassessment of the case on merits. It must,
by its very inherent character coupled
with the need to accord finality to an
adjudicatory process, be confined to the
issue of whether the decision rendered
suffers
from
an
unmistakable,
conspicuous or patent error. As has been
repeatedly stated, the jurisdiction of
review is not intended to be an occasion
to substitute a view already taken. An
elaborate and lucid exposition on the
scope of review is found in the decision of
the Supreme Court in Lily Thomas Vs.
Union of India4 where it was held: -

52.The dictionary meaning of the
word "review" is "the act of looking, offer
something again with a view to correction
or improvement". It cannot be denied that
the review is the creation of a statute. This
Court
inPatel
Narshi
Thakershiv.Pradyumansinghji
Arjunsinghji[(1971) 3 SCC 844 : AIR
1970 SC 1273] held that the power of
review is not an inherent power. It must
be conferred by law either specifically or
by necessary implication. The review is
also not an appeal in disguise. It cannot be
denied that justice is a virtue which
transcends all barriers and the rules or
procedures or technicalities of law cannot
stand in the way of administration of
justice. Law has to bend before justice. If
the Court finds that the error pointed out
in the review petition was under a mistake
and the earlier judgment would not have
been passed but for erroneous assumption
which in fact did not exist and its
perpetration shall result in a miscarriage
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
of justice nothing would preclude the
Court from rectifying the error. This
Court
inS.
Nagarajv.State
of
Karnataka[1993 Supp (4) SCC 595 : 1994
SCC (L&S) 320 : (1994) 26 ATC 448]
held: (SCC pp. 619-20, para 19)

"19. Review literally and even
judicially
means
re-examination
or
reconsideration.
Basic
philosophy
inherent in it is the universal acceptance
of human fallibility. Yet in the realm of
law the courts and even the statutes lean
strongly in favour of finality of decision
legally and properly made. Exceptions
both statutorily and judicially have been
carved out to correct accidental mistakes
or miscarriage of justice. Even when there
was no statutory provision and no rules
were framed by the highest court
indicating the circumstances in which it
could rectify its order the courts culled
out such power to avoid abuse of process
or miscarriage of justice. InRaja Prithwi
Chand Lal Choudhuryv.Sukhraj Rai[AIR
1941 FC 1] the Court observed that even
though no rules had been framed
permitting the highest court to review its
order yet it was available on the limited
and narrow ground developed by the
Privy Council and the House of Lords.
The Court approved the principle laid
down by the Privy Council inRajunder
Narain Raev.Bijai Govind Singh[(1836) 1
Moo PC 117 : 2 MIA 181] that an order
made by the Court was final and could not
be altered:

''... nevertheless, if by misprision in
embodying the judgments, errors have
been introduced, these courts possess, by
common law, the same power which the
courts of record and statute have of
rectifying the mistakes which have crept
in.... The House of Lords exercises a
similar power of rectifying mistakes made
in drawing up its own judgments, and this
Court must possess the same authority.
The Lords have however gone a step
further, and have corrected mistakes
introduced through inadvertence in the
details of judgments; or have supplied
manifest defects in order to enable the
decrees to be enforced, or have added
explanatory matter, or have reconciled
inconsistencies.'

Basis for exercise of the power was
stated in the same decision as under:

''It is impossible to doubt that the
indulgence extended in such cases is
mainly owing to the natural desire
prevailing
to
prevent
irremediable
injustice being done by a court of last
resort, where by some accident, without
any blame, the party has not been heard
and an order has been inadvertently made
as if the party had been heard.'

Rectification of an order thus stems
from the fundamental principle that
justice is above all. It is exercised to
remove the error and not for disturbing
finality. When the Constitution was
framed the substantive power to rectify or
recall the order passed by this Court was
specifically provided by Article 137 of the
Constitution.
Our
Constitution-makers
who had the practical wisdom to visualise
the efficacy of such provision expressly
conferred the substantive power to review
any judgment or order by Article 137 of
the Constitution. And clause (c) of Article
145 permitted this Court to frame rules as
to the conditions subject to which any
judgment or order may be reviewed. In
exercise of this power Order XL had been
framed empowering this Court to review
an order in civil proceedings on grounds
analogous to Order 47 Rule 1 of the Civil
Procedure Code. The expression, ''for any
other sufficient reason' in the clause has
been given an expanded meaning and a
1 All. State of U.P. Vs. Haushala Prasad
1135
decree
or
order
passed
under
misapprehension
of
true
state
of
circumstances has been held to be
sufficient ground to exercise the power.
Apart from Order XL Rule 1 of the
Supreme Court Rules this Court has the
inherent power to make such orders as
may be necessary in the interest of justice
or to prevent the abuse of process of
court. The Court is thus not precluded
from recalling or reviewing its own order
if it is satisfied that it is necessary to do so
for sake of justice."

The mere fact that two views on the
same subject are possible is no ground to
review the earlier judgment passed by a
Bench of the same strength.

53.This
Court
inNorthern
India
Caterers (India) Ltd.v.Lt. Governor of
Delhi[(1980) 2 SCC 167 : 1980 SCC
(Tax) 222 : AIR 1980 SC 674] considered
the powers of this Court under Article 137
of the Constitution read with Order 47
Rule 1 CPC and Order XL Rule 1 of the
Supreme Court Rules and held: (SCC pp.
171-72, para 8)

"8. It is well settled that a party is not
entitled to seek a review of a judgment
delivered by this Court merely for the
purpose of a rehearing and a fresh
decision of the case. The normal principle
is that a judgment pronounced by the
Court is final, and departure from that
principle
is
justified
only
when
circumstances
of
a
substantial
and
compelling character make it necessary to
do
so:Sajjan
Singhv.State
of
Rajasthan[AIR 1965 SC 845 : (1965) 1
SCR 933, 948] , SCR at p. 948. For
instance, if the attention of the Court is
not drawn to a
material
statutory
provision during the original hearing, the
Court will review its judgment:Girdhari
Lal Guptav.D.H. Mehta[(1971) 3 SCC
189 : 1971 SCC (Cri) 279 : (1971) 3 SCR
748, 760] , SCR at p. 760. The Court may
also reopen its judgment if a manifest
wrong has been done and it is necessary
to pass an order to do full and effective
justice:O.N.
Mohindroov.Distt.
Judge,
Delhi[(1971) 3 SCC 5 : (1971) 2 SCR 11,
27] , SCR at p. 27. Power to review its
judgments has been conferred on the
Supreme Court by Article 137 of the
Constitution, and that power is subject to
the provisions of any law made by
Parliament or the rules made under
Article 145. In a civil proceeding, an
application for review is entertained only
on a ground mentioned in Order 47 Rule 1
of the Code of Civil Procedure, and in a
criminal proceeding on the ground of an
error apparent on the face of the record
(Order XL Rule 1, Supreme Court Rules,
1966). But whatever the nature of the
proceeding, it is beyond dispute that a
review proceeding cannot be equated with
the original hearing of the case, and the
finality of the judgment delivered by the
Court will not be reconsidered except
''where a glaring omission or patent
mistake or like grave error has crept in
earlier by judicial fallibility':Sow Chandra
Kantev.Sk Habib[(1975) 1 SCC 674 :
1975 SCC (Tax) 200 : 1975 SCC (L&S)
184 : 1975 SCC (Cri) 305 : (1975) 3 SCR
933]. (emphasis supplied)

12. That then takes us to the concept
of "procedural review" as judicially
formulated. The power of "procedural
review", as distinct from a "merit review",
is the genre of review that has been
judicially recognised to inhere in all
quasi-judicial authorities. The power of
procedural review is invoked where a
judgment has been rendered ex parte,
without notice or in the absence of a
necessary party. It is a power inhering in
all quasi-judicial authorities to recall a
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment or order that has come to be
entered in the absence of parties.
Explaining this concept the Supreme
Court in Kapra Mazdoor Ekta Union
Vs. Birla Cotton Spg. Wvg. Mills Ltd5
held as under:

"18.It
was,
therefore,
submitted
before us, relying uponGrindlays Bank
Ltd.v.Central
Govt.
Industrial
Tribunal[1980 Supp SCC 420 : 1981 SCC
(L&S) 309] 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
inGrindlays Bank Ltd.v.Central Govt.
Industrial Tribunal[1980 Supp SCC 420 :
1981 SCC (L&S) 309] clearly highlighted
this distinction when it observed: (SCC p.
425, para 13)

"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
misapprehension 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 inPatel Narshi
Thakershi case[(1971) 3 SCC 844 : AIR
1970 SC 1273] 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 correctedex debito
justitiaeto prevent the abuse of its process,
and such power inheres in every court or
Tribunal."

19.Applying these principles it is
apparent that where a court or quasijudicial authority having jurisdiction to
adjudicate on merit proceeds to do so, its
judgment or order can be reviewed on
merit only if the court or the quasijudicial authority is vested with power of
review by express provision or by
necessary implication. The procedural
review belongs to a different category. In
such a review, the court or quasi-judicial
authority having jurisdiction to adjudicate
proceeds to do so, but in doing so
commits (sic ascertains whether it has
committed) a procedural illegality which
goes to the root of the matter and
invalidates the proceeding itself, and
consequently the order passed therein.
Cases where a decision is rendered by the
court or quasi-judicial authority without
notice to the opposite party or under a
mistaken impression that the notice had
been served upon the opposite party, or
where a matter is taken up for hearing and
decision on a date other than the date
fixed for its hearing, are some illustrative
cases in which the power of procedural
review may be invoked. In such a case the
party seeking review or recall of the order
does not have to substantiate the ground
that the order passed suffers from an error
apparent on the face of the record or any
other ground which may justify a review.
He has to establish that the procedure
followed by the court or the quasi-judicial
authority suffered from such illegality that
it vitiated the proceeding and invalidated
the order made therein, inasmuch as the
opposite party concerned was not heard
for no fault of his, or that the matter was
heard and decided on a date other than the
one fixed for hearing of the matter which
he could not attend for no fault of his. In
such cases, therefore, the matter has to be
reheard in accordance with law without
1 All. State of U.P. Vs. Haushala Prasad
1137
going into the merit of the order passed.
The order passed is liable to be recalled
and reviewed not because it is found to be
erroneous, but because it was passed in a
proceeding which was itself vitiated by an
error of procedure or mistake which went
to the root of the matter and invalidated
the entire proceeding. InGrindlays Bank
Ltd.v.Central
Govt.
Industrial
Tribunal[1980 Supp SCC 420 : 1981 SCC
(L&S) 309] it was held that once it is
established that the respondents were
prevented from appearing at the hearing
due to sufficient cause, it followed that
the matter must be reheard and decided
again." (emphasis supplied)

13. It would thus be evident that a
procedural review is not really concerned
with the merits of the decision rendered. It
is
restricted
to
cases
where
an
adjudication has come to be made without
notice to a necessary party or where a
party to the cause was prevented by
sufficient cause from attending to the
proceedings. Having noticed the basic
principles which underlie the power of
review, the Court proceeds to consider the
validity of the impugned order.

14. It is manifest from a reading of
the impugned order passed by the
Appellate Authority in this case that it
clearly does not fall in the genre of a
procedural review. This is not a case
where the order of 29 July 2002 came to
be rendered without hearing the tenure
holder or in violation of the principles of
natural justice. The order impugned
clearly
embodies
a
"merit
review"
undertaken by the Appellate Authority. A
merit review power must have sanction of
statute specifically or by necessary
implication. The Act undisputedly confers
no
such
power
on
the
Appellate
Authority. It is thus evident that the
impugned order suffers from a patent
jurisdictional error.

15. That takes the Court to the last
issue of whether the judgment of 29 July
2002 suffered from a glaring or manifest
error meriting its reopening and review.
At the outset the Court notes that the
tenure holder does not appear to have
urged or addressed any challenge to the
findings that came to be recorded by the
Prescribed Authority with respect to the
nature of the land before the Appellate
Authority. The order of 29 July 2002
carries no recital of such contentions
being raised or urged. Although Sri Singh
learned
counsel
for
the
respondent
submits that such a ground was taken in
the memo of appeal, in the considered
view of this Court, that would clearly not
be determinative since it was imperative
for the landholder to establish that the
point was in fact actually urged, raised
and
pressed
before
the
Appellate
Authority. As this Court reads the order of
29 July 2002, it is more than evident that
the objections with respect to the nature
and character of the land does not appear
to have been pressed. Even the review
petition does not assert that such an
assertion was in fact raised but due to
inadvertence has either escaped the
attention of the Appellate Authority or
was not dealt with.

16. Notwithstanding the above, the
Court ventures forth to deal with the
findings on merits which have been
recorded by the Appellate Authority in the
impugned order in terms of which it
proceeds to hold that the land was liable
to be treated as unirrigated and capable of
producing only one crop. In order to
appreciate the question which arises, it
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
would be relevant to refer to the
provisions made in Section 4A of the Act
which reads thus: -

"[4A. Determination of irrigated
land. - The prescribed authority shall
examine the relevant Khasras for the years
1378 Fasli, 1979 Fasli and 1380 Fasli, the
latest village map and such other records as it
may consider necessary, and may also make
local inspection where it considers necessary
and thereupon if the prescribed authority is of
opinion: -

firstly, (a) that, irrigation facility was
available for any land in respect of any
crop in any one of the aforesaid years; by

(i) any canal included in Schedule
No. 1 of irrigation rates notified in
Notification No. 1579-W/XXIII-62-W1946, dated March 31, 1953, as amended
from time to time; or

(ii) any lift irrigation canal; or

(iii) any State tube-well or a private
irrigation work; and

(b) that at least two crops were
grown in such land in any one of the
aforesaid years; or

secondly,
that
irrigation
facility
became available to any land by a State
Irrigation Work coming into operation
subsequent to the enforcement of the
Uttar Pradesh Imposition of Ceiling on
Land Holdings (Amendment) Act, 1972,
and at least two crops were grown in such
land in any agricultural year between the
date of such work coming into operation
and the date of issue of notice under
Section 10; or

thirdly, (a) that any land is situated
within the effective command area of a
lift irrigation canal or a State tube-well or
a private irrigation work; and

(b) that the class and composition of
its soil is such that it is capable of
growing at least two crops in an
agricultural year; then the Prescribed
Authority shall determine such land to be
irrigated land for the purposes of this
Act."

17. As is evident from a reading of
that provision the Prescribed Authority is
enjoined to examine the Khasras for the
years 1378, 1379 and 1380 Fasli along
with other contemporaneous record in
order to ascertain the character of the
land. The provision then takes care of
three independent scenarios in order to
ascertain whether the land is liable to be
treated as irrigated or otherwise. Firstly it
deals with the class of land irrigated by a
canal, lift irrigation canal or any State
tube well together with an enquiry in
respect of the character of the soil which
must be found to be such on which at
least two crops were grown. The second
category of land which is considered is
that which came to have access to
irrigation
facilities
after
the
commencement of the 1972 Amendment
to the statute and on which two crops
were in fact grown in any agricultural
year. The third category of irrigated land
is that which is situate within the effective
command area of a lift irrigation canal
and the soil of which is "capable of" being
utilised to grow at least two crops. The
Prescribed Authority on an examination
of the relevant records pertaining to
1378F had found that the land in question
fell within the command area and its soil
was capable of being utilised for the
plantation of two crops in a year.

18. A careful examination of the
findings recorded by the Appellate
Authority, however, show that it has on
an evaluation of the records for 1378 Fasli
noted that a majority of the plots were
unirrigated and that it was shown from the
1 All. M/s Virat Constructions And Anr. Vs. State of U.P. And Ors.
1139
revenue record that only one crop had
been sown. From a bare perusal of the
findings which are returned, it is evident
that the Appellate Authority has firstly not
recorded any finding that the entire land
holding of the respondent was unirrigated.
Even if he had found that a majority of
the plots were unirrigated, this would
have
necessarily
entailed
a
further
exercise of demarcating plots between the
category of irrigated and unirrigated being
undertaken. In any case the Appellate
Authority does not record any finding that
may dislodge the recordal of fact by the
Prescribed Authority in his original order
where he had held that the land did fall in
the
command
area.
The
Appellate
Authority has also not borne in mind that
in terms of Section 4A it was incumbent
upon the authorities concerned to also
evaluate whether the land was in fact
"capable of" being utilised for sowing two
crops as distinct from whether two crops
had in fact been sown. As is evident from
the
language
employed
and
the
highlighted part of Section 4A extracted
above, land which is "capable of" bearing
at least two crops is also a determinative
factor
of
whether
it
should
be
characterized as irrigated or unirrigated. It
is thus evident that the order of the
Prescribed Authority as was affirmed by
the Appellate Authority could not be said
to be suffering from any palpable or
apparent error on the face of the record
which would have warranted the exercise
of power of review. The Appellate
Authority has clearly undertaken an
exercise of a re-appreciation of the
evidence which existed and sought to
revise and revisit a final decision that had
been made. This was clearly an exercise
beyond
jurisdiction
and
cannot
be
sustained in law. In light of the above, this
Court is of the considered view that the
order of 18 October 2002 merits being set
aside.

19. The petition is accordingly
allowed. The impugned order dated 18
October 2002 is hereby quashed.