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RAJENDRA SINGH versus THE STATE OF U.P. & ORS

High Court of Judicature at Allahabad

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Rajendra Singh v. The State of U.P. & Ors - WRIT - C No. 864 of 2003 [2003] RD-AH 240 (30 July 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No. 864 of 2003

Rajendra Singh ......... Petitioner

Versus

The State of U.P. & Ors. ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. D.P. Gupta, J.

(By Hon'ble Dr. Justice B.S. Chauhan)

This writ petition has been filed challenging the recovery notice (citation) dated 16.04.2003 that the amount of additional tax to the tune of Rs. 62,600/-  was outstanding towards the petitioner. Hence this petition.

Learned counsel for the petitioner has submitted that the petitioner is not liable to pay the amount of tax and, therefore, the recovery certificate should be quashed or in the alternative, the petitioner may be permitted to make a representation before the Assessing Authority that the tax has illegally been demanded and the Assistant Taxation Officer under the Motor Vehicles Taxation Act, 1997 be asked to decide the same.

Learned Standing Counsel, Shri S.P. Kesarwani has raised preliminary objection regarding the maintainability of the writ petition contending that a consequential order can not be challenged without challenging the basic order. Even the basic order of assessment is appellable under Section 18 of the U.P. Motor Vehicles Taxation Act, 1997 and, therefore, no indulgence is required. Basic order of assessment is not even part of the record. Hence the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

It is settled proposition of law that unless the order under challenge is filed and placed on record, the Court has no power to quash the same. In Surender Singh Vs. Central Government, AIR 1986 SC 2166, the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record.  The Apex Court observed as under:-

"In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it.  In absence of impugned order it   would not   be possible to assign the reason which have impelled the authority to pass the order. It  is  therefore, improper to  quash  an order  which  is not produced before  the High  Court in a proceeding under Article 226 of the Constitution."

In the instant case, the order of Taxation Officer has not been filed nor challenged, thus, nothing can be said regarding the said order.

In C.P. Chitranjan Menon & ors. Vs. A. Balakrishnan & ors., AIR  1977  SC  1720,  the Hon'ble Supreme  Court  held that in  absence  of challenge  to  the basic order, subsequent  consequential order cannot be challenged.

Similar view has been reiterated in Roshan Lal & ors. Vs. International Airport Authority of India & ors., AIR  1981  SC  597, wherein the  petitions were primarily confined to the seniority list and the Apex Court held that challenge to appointment orders could not be entertained  because of inordinate delay and in absence of the same, validity of consequential seniority cannot be examined.  In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined.

In  H.M.  Pardasani Vs. Union of India & ors., AIR  1985  SC 781, the Apex Court  observed that if "petitioners  are  not able to establish that the  determination  of  their  seniority  is wrong and  they  have  been  prejudiced  by  such adverse determination,  their  ultimate claim  to promotion would, in deed, not succeed."

Thus, in view of the above, we are of the considered opinion that writ petition against the citation being consequential order is not maintainable.

The submission made by the learned counsel for the petitioner is that it is not necessary for the petitioner to approach the appellate forum as his purpose would be served if this Court directs the authorities concerned to decide his representation regarding his liability to pay and the quantum of the passenger-tax. Assessment Order under the Act 1997 is a quasi-judicial order, and it is a settled legal proposition that review thereof is not permissible for want of statutory provisions in this regard.

In Patel Chunibhai Dajibha Vs. Narayanrao  Khanderao Jambekar, AIR 1965 SC 1457, the Hon'ble  Supreme Court had held that in absence of  any power of review,  the Tribunal could not  have  subsequently reconsidered  its previous   decision  and   the  subsequent  order re-opening the  matter was illegal,  ultra-vires and without jurisdiction.

In Harbhajan Singh Vs. Karam Singh, AIR 1966 SC 641, the Hon'ble Apex Court has held that in absence of any provision in the Act granting express power  of  review,  it is  manifest  that review could  not be made and the order in review was ultra-vires, illegal and without jurisdiction and the High  Court has rightly quashed it by the grant of   writ   under  Article   226   of   the Constitution.

While deciding the said case, the Hon'ble Supreme Court  placed reliance on a large  number of judgments,  particularly  in Drew Vs. Mills, 1891 (1) QB 450; Hession Vs,. Johns, 1914  (2) KB 421; in Re: St. Nazaire Company, (1879) 12 Ch.D..  88; and Baijnath Ram Goyanka Vs.  Nand Kumar Singh, 14 Indian Appeal 54 (PC), wherein it had categorically been held that the power of setting-aside an order, which has been made after hearing the arguments, does not lie unless it is given by the Statute. The Court, under the Statute, cannot review an order deliberately made after argument and entertain a fresh argument upon it with a view to ultimately confirming or reversing it.  The Courts may have limited power only to make a necessary correction if the order, as drawn up, did not express the intention of the Court.  A party is entitled   to assail   the judgment only by the mode as indicated in the Statute and in absence of express provision of review, it cannot be entertained for the reason that review is practically the hearing of an appeal by the same Officer who decided the case.

In Patel Narshi Thakershi & ors. Vs. Pradyumansinghji  Arjunsinghji, AIR 1970 SC 1273, the Hon'ble  Apex  Court held that the  power  to review is  not  an  inherent power.  It must be conferred by law either   specifically or by necessary implication and in absence of any provision in the Act, review of an earlier order is impermissible.

In  Maj.  Chandra Bhan Singh Vs., Latafat Ullah Khan  &  ors., AIR 1978 SC 1814,  the  Apex Court followed the earlier referred two judgments in Chunnibhai  and  Harbhan   Singh  (supra)  and observed that it is well settled that review is a  creature  of Statute and cannot be entertained in absence of a provision therefor.

In Dr. Smt. Kuntesh Gupta Vs. Management of Hindu Kanya   Mahavidhyalaya, Sitapur,  AIR  1987 SC 2186, the Hon'ble  Supreme Court held as under:-

"It   is now   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......  In the circumstances, it must be held that Vice Chancellor acted wholly without jurisdiction..... The said order of the  Vice  Chancellor dated  March  7,  1987   was  a  nullity. (Emphasis added)."

Similar  view has been reiterated by  the Hon'ble Supreme  Court in State of Orissa & ors. Vs. Commissioner of Land Records and Settlement, (1998) 7 SCC 162.

In Krishna Ashram Educational Trust Vs. District Judge, AIR 1995 All.  415, after placing reliance upon a large number of judgments of the Hon'ble Supreme Court, this Court held that in absence of a provision for review, the Authority becomes functus officio after deciding the case and it has no competence to entertain review application and change the order                passed by it earlier. Nor the order/Award be review under the garb of clarification/rectification/correction.

Therefore, in view of the aforesaid settled legal proposition it can be summarised that in absence of any statutory provision providing for review, entertaining an application for review under the garb of clarification/modification/correction is not permissible.

Thus in view of the above, it is crystal clear that review application is not maintainable against the assessment order nor any action of rectification is permissible. Asking the said Authority to decide representation would amount to directing him to review the said order, which is not permissible in law. Creation of a jurisdiction in a Court is a legislative function and it cannot be conferred by any means by the Court. Review/Appeal  is  a creation of statute and  it cannot be created by acquiescence of the party or by the order   of   the   Court.   (Vide   United Commercial  Bank  Ltd.  Vs.  Their  Workmen,  AIR 1951 SC 230;   Kesar Singh and others Vs.  Sadhu,  (1996) 7  SCC 711).  The finding of a Court or  a Tribunal  becomes  irrelevant and  unenforceable/ inexecuteable  once the forum is found to have no jurisdiction.  (Vide State of Gujarat Vs.  Rajesh Kumar Chiman  Lal Barot and another, (1996) 5 SCC 477).

Jurisdiction  cannot be conferred by mere acceptance, acquiescance, consent or by any other means as   it  can  be   conferred  only  by  the legislature  and conferring a Court or  Authority with jurisdiction, is a legislative function.  In Union of India Vs.  Devkinandan Agrawal, AIR 1992 SC 96, the  Hon'ble Apex Court has observed  that "the Court  cannot  usurp legislative  functions.  The Court cannot re-write the legislation for the reason that  it  had no power to legislate.   The power of  legislation  has not been conferred  on the Courts."

In   Karnal    Improvement    Trust   Vs.  Prakashwanti,  (1995)  5  SCC  159,  the  Hon'ble Supreme Court has observed that acquiescence does not confer   jurisdiction   and    an   erroneous interpretation  equally should not be perpetuated and perpetrated    defeating    of    legislative animation.  A similar view has been taken in U.P.  Rajkiya Nirman  Nigam  Ltd.    Vs.   Indure  Pvt.  Ltd., AIR 1996 SC 1373.

In  Sardar  Hasan   Siddique  Vs.   State Transport Appellate Tribunal, AIr 1986 All.  132,  the Division  Bench  of Allahabad High Court  has observed that a Court or a Tribunal cannot derive jurisdiction  apart from the Statute.  No  amount of acquiescence,  waiver  or the like can  confer jurisdiction  if  a  Tribunal   is  lacking,  the doctrine  of nullity will come into operation and any decision  taken  or given by such a  Tribunal will be a nullity.

Similarly  in A.R.  Antuley (supra),  the Hon'ble Supreme Court has observed as under:-

"A decision touching the jurisdiction...... has  to be not  only consistent  with  the fundamental  rights  guaranteed by the Constitution, the same cannot   even be inconsistent with substantive provisions of the  statutory law.....  The criteria of a right to  an appeal is an act which requires legislative Authority neither an inferior Court nor the Superior Court  nor  both combined, can create such a  right,  it being   one of the limitations and exception of jurisdiction."

In view of the above, any concession made by any lawyer which is contrary to the provisions of law or even a consent decree which is in violation  of  the statutory  provisions,  remains un-enforcible and inconsequential.  (Vide Smt.  Nai Bahu Vs.   Lala Ram Narain and others, AIR 1978 SC 22;  and  Natraj  Studio Pvt.  Ltd.  Vs.   Navrang Studio and another, AIR 1981 SC 531).

In  Kondiba  Dagadu Kadam Vs.   Savitribai Sopan Gujar  & ors., AIR 1999 SC 2213, the Hon'ble Supreme Court held as under:-

"It has to be kept in mind that the right of  appeal  is neither a natural  nor  an inherent  right attached to the  litigant being a substative statutory right it has to be regulated in accordance with law in force   at   the   relevant  time.  The conditions  mentioned in the section must be  strictly  fulfilled before an  appeal can  be  maintained and no Court has  the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction."

In view of the above, it is evident that the appeal is a statutory right which can be created only by the legislature and it does  not lie by acquiescence/  consent  of the parties  or even the  writ  court is not competent to  create the appellate  forum  if not provided  under  the statute.

Thus in view of the above, issuing direction to the respondents to decide the representation would amount to review the assessment order indirectly.

It is settled proposition of law that what cannot be done "per directum is not permissible to be done per obliquum", meaning thereby, whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud."

In Jagir Singh Vs. Ranbir Singh, AIR 1979 SC 381, the Apex Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance." While deciding the said case, the Hon'ble Supreme Court placed reliance on the judgment in Fox Vs. Bishop of Chester, (1824) 2 B 7 C 635, wherein it has been observed as under:-

"To carry out effectually the object of a statute, it must be considered as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined."

Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the Apex Court in M.C.Mehta Vs. Kamal Nath & ors., AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of Article 142 of the Constitution, which empowers the Court to pass any order in a case in order to do "complete justice."

Thus, in view of the above, the consequential order can not be challenged without challenging the basic order and the order of assessment is not a part of the record, more so the said order is appellable under Section 18 of the Act 1997, thus writ Court should not generally give indulgence. We so no reason to interfere with the order impugned. The writ petition is accordingly dismissed.

30.07.2003

AHA


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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