@JUDGMENTTAG-ORDER
Ashok B. Hinchigeri, J.—The petitioner has called into question the order, dated 14.03.2006 (Annexure-A) passed by the second respondent/Assistant Commissioner taking up the Appeal No. 67/2015-16 for reconsideration based on the representation and application of the respondent No. 4.
2. The facts of the case in brief are that the Tahasildar effected M.R.No. 23/1997-98 in respect of the land measuring 30 guntas at Sy.No. 98/11 of Rayasandra Village. By the said M.R., the mutation entry and the khatha were effected in favour of the respondent No. 4. The petitioner challenged the said M.R. by way of appeal in 2015 invoking Section 136(2) of the Karnataka Land Revenue Act, 1964 (for short ''KLR Act''). On finding that the respondent No. 4 had not purchased the land standing at Sy.No. 98/11, the Assistant Commissioner set-aside the said entry and directed the restoration of the entries, as they stood prior to the said M.R. This was done on 19.12.2015. The respondent No.4 submitted a representation on 06.01.2016 (wrongly shown as 06.01.2015). The said representation was for reconsideration and the recalling of the order, dated 19.12.2015. On the representation, the Assistant Commissioner has endorsed ''put up recall ''. On the same day, the Assistant Commissioner also stayed his own order, dated 19.12.2015 as is evident from his order, dated 06.01.2016 (Annexure-G) addressed to the Special Tahasildar. On 14.03.2016, the Assistant Commissioner adjourns the matter to 31.03.2016 for the appearance of the petitioner.
3. The petitioner''s Learned Advocate Sri D.P. Mahesh submits that once the Assistant Commissioner passes the final order under Section 136(2) of the KLR Act, he becomes fimctus-officio. He has no power to recall his order, reconsider or review the matter. In support of his submissions, he relies on the Apex Court''s judgment in the case of Harbhajan Singh v. Karam Singh and others, (1966) 1 SCR 817 to advance the submission that if there is no provision in the statute granting express power of review, the officer can not review his previous order.
4. Nextly he relies on the Apex Court''s judgment in the case of Patel Narshi Thakershi and others v. Shri Pradyumansinghji Arjunsinghji, 1971 (3) SCC 844. The relevant portion of para 4 read by him is as follows:
"......... 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 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........."
5. He submits that the review is only a creation of statute and that therefore if the reviewing power is not expressly granted, the question of exercising the review jurisdiction would not arise at all. Drawing support from the case of Dr.(Sml) Kuntesh Gupta v. Management of Hindukanya Mahavidyalaya, Sitapur (U.P.) and others, (1987) 4 SCC 525, wherein it is held 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.
6. He relies on the Apex Court''s judgment in the case of Kapra Mazdoor Ekta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and another, (2005) 13 SCC 777 to advance the submission that the power of review is not an inherent power and that therefore it cannot be exercised invoking Section 25 of the KLR Act. He submits that review of the final order, dated 19.12.2015 is not traceable to any provision in the KLR Act. He read out paras 31 and 33 from the Apex Court''s decision in the case of Sunita Jain v. Pawan Kumar Jain and others, (2008) 2 SCC 705:
"31. The section makes it clear that a court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it.
33. It is also well settled that power of review is not an inherent power and must be conferred on a court by a specific or express provision to that effect (Vide Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji). No power of review has been conferred by the Code of a criminal court and it cannot review an order passed or judgment pronounced."
7. Nextly, he brings to my notice, the Apex Court''s judgment in the case Kalabharati Advertising v. Hemant Vimalnath Narichania and others, (2010) 9 SCC 437, and submits that unless the statues/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. If an order in review is passed without the statute conferring an express power of review, it is ultra vires, illegal and without jurisdiction. It is further held in the said decision that the application for review under the garb of clarification/modification/correction is not permissible.
8. Learned Counsel read out Para 17 from the Apex Court''s decision in the case of Binabhai Bhate v. State of Madhya Pradesh and others, (2011) 13 SCC 32.
"17. So far the power of review is concerned, the High Court does not have the power of review as such power of review has to be specifically provided for in the Act. A power of review against an order passed is a creature of the statute and since no such power of review is provided for under the provisions of the Act, the High Court was justified in holding that there could be no review to the order passed. So far the review and modifications of the development plan or adjoining plan as provided in Sections 23 and 23-A of the Act are concerned, the said provisions are not applicable in the present case for the State Government has not made any modification in the development plan, and therefore, the contentions appearing for the appellant are held to be without any merit. Besides, the said power is exclusively vested with the State Government and in appropriate case, the State Government is empowered to exercise such power as and when deemed proper. This is not a case where the State Government thought it fit to invoke such power."
9. The Learned Counsel for the petitioner submits that the Assistant Commissioner has endorsed on the fourth respondent''s representation, dated 06.01.2016 (wrongly mentioned as 06.01.2015 in Annexure-E) as ''put up recall''. He submits that the Assistant Commissioner cannot recall his order, dated 19.12.2015 unilaterally and without issuing notice to the petitioner. He submits that there is yet another irregularity in the proceedings. Though the respondent No. 4 was granted interim stay on 06.01.2016 itself, the petitioner was put on notice belatedly only on 14.03.2016.
10. Sri D. Ashwathnarayana, the Learned Counsel for the respondent No. 4 submits that the Assistant Commissioner acts as a Revenue Court under Section 24 of the KLR Act. He submits that under Section 25 of the KLR Act, the Assistant Commissioner can exercise the inherent powers of the Revenue Courts. It is by exercising the inherent power conferred by Section 25 of the KLR Act that the Assistant Commissioner has entertained the review application. He submits that the error apparent on the face of the record calling for review is that the petitioner''s appeal was taken up for final disposal on merits without passing any order on his delay condonation application.
11. Sri Ashwathnarayana relies on the Apex Court''s judgment in the case of Sunitadevi Singhania Hospital Trust and another v. Union of India and another, (2008) 16 SCC 365, wherein it is held that the Administrative Tribunals have the inherent power to recall their own orders passed in violation of the principles of natural justice. He has also relied on this Court''s decision in the case of Sanganagouda v. Tahsildar, Shorapur, Gulbarga District, (2005) 1 KLJ 357 and Smt. A.E. Daksha Yanamma v. Karnataka Appellate Tribunal and others, AIR 1995 KAR 341 for advancing the submission that the Revenue Courts can exercise inherent powers invoking Section 25 of the KLR Act. The very purpose of conferring the inherent powers on the statutory authorities is to prevent the abuse of process.
12. The Learned Counsel submits that the endorsement on the petitioner''s letter at Annexure-E is not indicative of recalling the order dated 19.12.2015 as such; the endorsement is only for putting up the recalling application. He submits that giving such endorsement falls within the executive authority of the Assistant Commissioner, when he has to do something on the spot. The Learned Counsel submits that it is incorrect on the part of the petitioner''s side to state that the Assistant Commissioner has acted only on the representation. As a matter of fact, the review application is filed on 06.01.2016 and that based on the same, a letter is written for the stay of the order, dated 19.12.2015.
13. Sri A.G. Shivanna, the Learned Additional Advocate General submits that there seems to be an error apparent on the face of the record. Although there is a delay of seventeen years in filing the appeal, the Assistant Commissioner has disposed of the main matter by allowing the appeal without passing any order on the delay condonation application. It is this aspect of the matter which has warranted the entertaining of the recalling application from the respondent No.4. He has relied on this Court''s order dated 08.10.2015 passed in W.P. No. 41243/2015 and the case of K.R. Lakshman v. State of Karnataka and others, 1995 (5) KLJ 137, to advance the submission that the review jurisdiction is conferred to the Revenue Court to do justice and to prevent injustice.
14. The submissions of the Learned Counsel have received my thoughtful consideration. The question that falls for my consideration is whether the Assistant Commissioner is justified in entertaining the application filed by the respondent No. 4 for recalling the order, dated 19.12.2015. There is no provision in the Land Revenue Act or the Rules framed thereunder for reviewing the order passed on merit. Once the Assistant Commissioner passes the order under Section 136(2) of the said Act, he becomes functus-officio.
15. The entertaining of the application for recall is sought to be justified with reference to Section 25 of the Act. 1 find it hard to give acceptability to the same as the Apex Court itself in the case of Kapra Mazdoor and Kalabharati(supra) has held in no uncertain terms that the power of review is not an inherent power.
16. Though the word used in the fourth respondent''s application is ''recall'', the perusal of its supporting affidavit shows that it is in the nature of the review. Even assuming that the Assistant Commissioner is conferred with the power to recall his order, it is confined only to the circumstances such as preponement of the case without notice to the parties or where the matter is decided without service of notice on the parties. But it cannot be extended to the situations where the matter is decided on merit. Even if the Assistant Commissioner has wrongfully decided the appeal, he cannot re-open the case. As held by the Apex Court judgment in the case of Assistant Commercial Taxes Officer v. Makkad Plastic Agencies, (2011) 4 SCC 750, under the garb of seeking clarification/modification/rectification the re-opening of the case cannot be sought. It is trite that the review can only be a creature of statute. It may not be out of the context to mention that the Criminal Courts cannot and do not review their orders as Criminal Procedure Code has not conferred the review power upon them. Thus, viewed from any angle, the Assistant Commissioner''s order to re-open the case is unsupportable and unsustainable.
17. Let me examine this case assuming that the review power is indeed available to the Assistant Commissioner. As held by the Apex Court in the case of Dr. Subramanya Swamy v. State of Tamil Nadu and others, (2014) 5 SCC 75, even an erroneous decision cannot be a ground for the Court to undertake review as the first and foremost requirement of entertaining a review petition is that the review of the order which is sought, suffers from any error apparent on the face of the order. In the case of K.R. Lakshman (supra) relied upon by the Learned Additional Advocate General, it is held that the review jurisdiction can be exercised to remove an error, not every kind of error but only an error apparent on the face of the record. Review jurisdiction is not exercisable to rectify the order passed on merit.
18. It is also helpful to refer to the Apex Court''s judgment in the case of Harinagar Sugar Mills Ltd. and another v. State of Bihar and others, (2006) 1 SCC 509, wherein, it is held that though the review may have been maintainable but a party cannot be allowed to reagitate the points which had already been decided by the Court. It is extremely helpful to refer to what the Apex Court has to say in the case of Haridas Das v. Usha Rani Banik, AIR 2006 SC 1634. The review provisions, if any, do not postulate the rehearing of the case because the party has not highlighted all the aspects of the case and could perhaps have argued more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict.
19. That the appeal was disposed of on merits without considering the delay condonation application is no ground for seeking the review of the order.
20. Two other aspects of the matter which cannot be glossed over are that there is no application for stay in the recall/review petition. The Assistant Commissioner proceeds to grant the stay based on the letter of the fourth respondent. Secondly, the day on which the Assistant Commissioner grants the stay (06.01.2016), he informs the Special Tahsildar that he (Assistant Commissioner) has stayed the order, dated 19.12.2015. But the Assistant Commissioner does not put the petitioner on notice till 14.03.2016. There can be no justification whatsoever for deferring the issuance of the notice for two months and two weeks after granting the stay order.
21. For all the aforesaid reasons, I quash the impugned proceedings. If the respondent No. 4 has any grievance over the order, dated 19.12.2015, it shall be open to him to challenge the same in the appropriate proceedings.
22. The respondent No. 4 has unnecessarily invoked the Assistant Commissioner''s review jurisdiction which does not exist and the Assistant Commissioner has proceeded to exercise it. Therefore, both are made liable to pay the cost of Rs. 2,000/-. Rs. 1,000/- shall be paid by the respondent No.4 and the equal sum of Rs. 1,000/- shall be paid by the second respondent - Assistant Commissioner to the petitioner within ten days from the date of the issuance of the certified copy of today''s order.
23. Now that the main matter itself is disposed of, I.A.No. 1/2016 for vacating stay does not survive for consideration. It is also dismissed as having become unnecessary.
