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Mishra, J.—The petitioner is the owner of premises bearing door No. 140, Royapettah High Road, Madras-4, which comprises of approximately 13 grounds and 357 sq.ft. He has stated that since he was desirous of putting up construction over the said land for commercial purposes, that is to say, basement floor, ground floor and first floor for which he had got due approval in June, 1986 from the second respondent, the competent authority and since there was such scope for further development, he (Petitioner) revised his original plan and wanted to construct upto fifth floor as per the revised plan prepared by his architects. He submitted revised proposals to the second respondent with all material details. The second respondent however, by his letter dated 22.11.1987 refused planning permission for the proposed additional construction on the ground that there were certain minor deviations and violations of the Development Control Rules. The petitioner thereafter invoked the jurisdiction of the first respondent, that is to say, the State Government under S. 113 of the Tamil Nadu Town and Country Planning Act, 1971, on 25.11.1987. The first respondent accepted the petitioner''s appeal and issued order vide G.O. Ms. No. 1986, Housing and Urban Development dated 31.12.1987 granting exemption to the construction being put up by the petitioner. Consequent upon the exemption granted by the Government which enabled the petitioner to approach the second respondent for getting necessary planning permission for proceeding with the additional construction, the petitioner approached the 2nd respondent and submitted revised proposals and revised plan along with the order of exemption and notification issued by the Government. The second respondent after considering the proposal submitted by the petitioner, approved it directing the petitioner to remit a sum of Rs. 32,000 towards development charges and also a sum of Rs. 3,20,000 as security deposit. The petitioner remitted the said amount on 27.6.1988. The second respondent by his letter dated 4.7.1988 approved the plan submitted by the petitioner as Plan No. C/PP/137 A to G/88 and sent the plan along with planning permit No. 5716 dated 4.7.1988. Having so received the planning permission, consequent upon the exemption granted under S. 113 of the Tamil Nadu Town and Country Planning Act, the petitioner proceeded with the construction over and above the first floor, invited prospective purchasers to enter into agreements with him for the sale of the flats so constructed over and above the first floor, entered into financial arrangement with Banks and proceeded ahead with the construction as per the revised plan. The petitioner received offers from third parties for allotment based on which the petitioner entered into development agreements with third parties, including cases for which the consideration exceeding Rs. 10 lakhs after obtaining the permission of the Income Tax Authorities under Chapter XX-C of the Income Tax Act. In other words, on receipt of the exemption order and the planning permission, petitioner has substantially altered his position. The petitioner however, has received a communication from the first respondent dated 28.4.1989 under which the first respondent has sought to cancel the exemption granted in favour of the petitioner. The communication bearing letter No. 26533/ U.D.I. (1)/89-1 dated 28.4.1989 states: In the reference cited. Government issued orders in exercise of the powers conferred by S. 113 of the Tamil Nadu Town and Country planning Act, 1971 (Tamil Nadu Act 35 of 1972), granting exemption to the construction being put up by you at premises No. 140, Royapettah High Road, Madras even though the construction put up by you is a gross violation of the provisions contained in the Development Control Rules and the Madras Metropolitan Development Authority has raised valid objections to the construction being put up by you Although the power to grant exemption under S. 113 of Tamil Nadu Act 35 of 1972 is purely discretionary, it is seen from the records that the said power his been exercised arbitrarily and capriciously in that no reason has been adduced for granting the exemption. In the absence of adducing any reasons for the grant of exemption despite the violation of the Development Control Rules and the objections raised by the Madras Metropolitan Development Authority it has necessarily to be held that the order passed in G.O. Ms. No. 1986, Housing and Urban Development, dated 31-12-1987 is arbitrary and cannot stand the test of reasonableness and non-arbitrariness in the matter of exercise of the discretionary power Such exorcise of power is against the interest of the public and the constitution being put up by you in the aforesaid premises in highly irregular.
You are, therefore, requested to show cause within fifteen days from the date of receipt of this letter as to why the order granting exemption should not be cancelled. If no reply is received within the said period, it will be presumed that you have no explanation to offer and further action will be pursued accordingly.
The petitioner has come to this Court questioning this notice.
The first respondent has filed a counter affidavit. The receipt of petitioner''s application for additional construction of 2nd floor upto 5th floor over and above the sanctioned basement floor, plus ground floor plus first floor, the orders passed by the Madras Metropolitan Development Authority refusing permission, exemption granted by the first respondent, State Government under S. 113 of the Tamil Nadu Town and Country Planning Act and consequent planning permission granted by the 2nd respondent are not disputed in the counter affidavit: It is stated that the Consumer Action Group, Madras has filed W.P. No. 926 of 1988 on the file of the Supreme Court of India New Delhi praying the Court to declare, among others the orders of exemption issued under S. 113 of the Act as ultra viaes and quash the same on the ground that the exemptions granted in those 62 Government Orders were against public interest. The instant case is one out of the said 62 Government Orders. The Writ Petition is still pending in the Supreme Court. But, no stay has been granted in the matter. In April, 1989, it was brought to the notice of the Government of Tamil Nadu that in 181 planning permission appeal cases in which Orders of exemption were issued under S. 113 of the Tamil Nadu Town and Country Planning Act, 1971 irregularly, the exemptions were against public interest. The Government decided to issue show cause notice only in 15 cases in which either the construction had commenced and yet to be completed or the construction had not yet commenced. Accordingly show cause notices were issued. It is also stated:
It is respectfully submitted that after causing inspection of the site at No. 140, Royapettah High Road, Mylapore, Madras on 15-11-1989, the 2nd respondent has reported that the petitioner completed the construction of basement floor plus ground floor plus first floor and partly occupied and further construction work stopped. This report clearly indicates that the petitioner herein has not yet commenced the additional construction from 2nd floor and hence the averment made by the writ petitioner in paragraph 5 of the affidavit stating that he has proceeded with the construction work over and above first floor for which permission was granted to him is not at all correct. Actually, the petitioner has not at all commenced the additional construction from 2nd floor.
Learned Counsel for the petitioner has contended that the Government Order calling upon the petitioner to show cause why exemption granted under S. 113 of Tamil Nadu Act 35 of 1972 be not cancelled, is wholly without jurisdiction. The order granting exemption was quasi-judicial in nature inasmuch as it conferred a privilege/right under which the petitioner became entitled to the planning permission for additional constructions. In the absence of any power given to the 1st respondent to review its order granting exemption, notice, howsoever gross the allegations may be, is illegal. He has also contended that the alleged exercise of power either arbitrarily or capriciously or without assigning any reason for granting exemption by the first respondent if accepted, would amount to a wrong done by the 1st respondent and not by the petitioner. It is nowhere stated in the notice that there was any misrepresentation or fraud committed by the petitioner or that he played any part in influencing the decision of the first respondent in making the order of exemption. No person in authority can claim any premium on his own recalcitrance as in that case the beneficiary of the order would be wronged irreparably. Learned Counsel for the first respondent however, has submitted that the power to review is available to the first respondent under S.15 of the Tamil Nadu General Clauses Act. The impugned notice has been ordered, according to the Learned Counsel Additional Government Pleader (Writs) to remove a wrong to the public by an order, which was issued arbitrarily and in which no proper examination of the relevant provisions of the Act and the rules framed therein was made.
An examination of the provisions of the Tamil Nadu Town and Country Planning Act, 1971 shows that exhaustively dealing with the procedures with respect to grant of permission to construct building etc., and other object of the Act, Planning Authorities have been vested with the powers to hold inquiry and decide in accordance with law and in certain matters where the Legislature has found that appeal or revision should be provided, it has made specific provisions for appeal, revision and even review (under S. 81 of the Act). The review however, has been confined to the orders passed under Ss. 76 to 78 and 80 of the Act on the basis of the discovery of new and important facts which, after the exercise of due diligence were not then within the knowledge of the appellant or the application of the respondent or could not be produced by him when the order was made, or on the basis of some mistake or error apparent on the face of the record or for any other sufficient reason. The appropriate planning Authority has also been vested with the power of revocation and modification of permission to develop under S. 54 of the Act. It provides :
(1) If it appears to an appropriate planning authority that it is expedient, having regard to the development plan prepared, that permission for any development, granted under this Act or any other law, should be revoked or modified, the said planning authority may, after giving the person concerned an opportunity of being heard against such revocation or modify the permission to such extent as may be necessary:
Provided that--
(a) where the permission relates to the carrying of building or other operation no such order shall effect such of the operations as have been previously carried out, or be passed after those operations have been completed.
(b) where the permission relates to a change of use of land or building, no such order shall be passed at any time after the change has taken place.
(2) When permission is revoked or modified under sub-S.(1), and if the owner claims from the appropriate planning authority, within such time and in such manner as may be prescribed, compensation for the expenditure incurred in carrying out the development after the grant of permission, which has been rendered abortive by the revocation or modification, the said planning authority shall, after giving the owner reasonable opportunity of being heard assess and offer such compensation to the owner as it thinks fit.
(3) If the owner does not accept the compensation and gives notice, within such time as may be prescribed of his refusal to accept, the appropriate planning authority shall refer the matter for adjudication of the Tribunal, and the decision of the Tribunal thereon shall, subject to any appeal, revision or review as provided for in this Act, be final and binding on the owner and the appropriate planning authority.
These provisions in the Act clearly show that the appropriate planning authority may revoke or modify any development plan and accordingly review the permission granted under the Act or any other law subject to the conditions enumerated in S. 54 of the Act and in cases where appeal, revision or review are provided for, recourse may be taken to such provisions. The State Government''s power under S. 113 of the Act, however is wide enough, to grant exemptions notwithstanding anything contained in the Act and subject to such conditions as the State Government may deem fit.
The respondents have made a reference to S. 15 of the Madras General Clauses Act which runs as follows:
Where an Act confers a power to make any rules or bye-laws, or to issue orders, the power shall be construed as including a power exercisable in the like manner and subject to the like content and conditions, if any, to rescind, revoke amend or vary the rules, byelaws or orders.
Orders are generally classified as statutory orders, Judicial Orders and Administrative orders. In the latter category of orders, some are quasi-Judicial orders because they involve some adjudication or consequences affecting some-one''s legal rights. While it may be seen that certain administrative orders, which intend to give effect to some policy of the State, are issued without any observance of the rules of natural justice or modified rescinded or annulled, statutory orders which are always in the nature of subordinate legislation so long as they do not suffer from any vires or invalidity, can also be rescinded, modified, recalled or repealed. This, however, will not be permissible in the case of a judicial order. Review of an adjudication without complying with the rules of natural justice and without following rules of fair play is just not permissible. Such rules of natural justice and fair play have been extended to quasi-judicial orders also. True, adherence to the rules as strictly as it is expected by a Court of law, is not expected from quasi-judicial authorities. But they cannot make orders without substantially complying with such rules. Taking notice of the distinctive character of the Courts in India, the inherent power to recall, review or rescind an order earlier passed by it has been recognised. It has however, not been so recognised with respect to exercise of quasi-judicial powers by the statutory authorities or authorities, who are called upon by a Statute to make certain orders or to decide certain disputes or issues. Judicial pronouncements thus say in no uncertain terms that unless specifically conferred by law or statute, no statutory authority can review recall or rescind an order of a quasi judicial nature. In Anantharaju Shetty v. Appu Hegade AIR 1919 Madras 244, this Court has expressed on the subject:
It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the statute. Prima facie a party who has obtained a decision is entitled to keep it unassailed unless the legislature has indicate the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the Trial Court unless such a power is given to it by statute.
The view expressed in Anantharaju Shetty''s case AIR 1919 Madras 244 has held the field so constantly that almost every time the Courts, confronted with such a question, have reiterated the words of Seshagiri Aiyar, J. that the power to review must be given by the Statute.
In Bhola Prasad v. U.A. Goswami AIR 1963 Patna 437, a Division Bench of the Patna High Court reiterated the said view in a case in which the Chancellor of the University after making an order in exercise of the power under S.8(4) of the Bihar State Universities (Patna, University of Bihar, Bhagalpore and Ranchi) Act, 1960, issued notice as to why the order already passed be not recalled. Having held that the Chancellor was acting in the case in quasi judicial capacity and referring to several judgments including the case of Anantharaju Shelly and some earlier judgments of the Patna High Court, it stated:
no authority taking a contrary view was cited by the either the Advocate-General or Mr. B.C. Ghoshrather. The former did not combat the proposition of law in regard to the Chancellor''s power of review as expressed by me above.
I shall refer to this case once again while considering the question whether S.13 of the Madras General Clauses Act gives to the State Government power to review the order passed under S. 113 of the Town and Country Planning Act. The view that there can be no review of an earlier order unless the law vests the authority making the order with the power of review finds support from a series of judgments of the Supreme Court such as Patel Narshi Thakershi and Others Vs. Shri Pradyumansinghji Arjunsinghji, D.N. Roy v. State of Bihar AIR 1971 S.C. 1045 and State of Assam and Another Vs. J.N. Roy Biswas, . The only distinction, however, which has been drawn to the rule that unless vested with the power to review by a statute, no government or authority can review an order already passed by it has been pointed out by the Supreme Court in R.R. Verma and Others Vs. Union of India (UOI) and Others, in the following words:
To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any Government must be free to alter its policy or its decision in administrative matters. If they are to carry on their daily administration they cannot be hide-bound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. Here again, we emphasise that if administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court.
The view expressed in these authorities lend support to what I have already stated earlier that an administrative authority''s administrative decision which concerns the policy and otherwise does not affect any person''s civil rights, is left out of the rule that unless vested with the power to review no Government or authority can recall, rescind or otherwise interfere with an order already passed by it.
I may also refer to a judgment of the Supreme Court in the case of Province of Bombay Vs. Kusaldas S. Advani and Others, wherein it has been held:
That if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be quasi-judicial act provided the authority is required by the statute to act judicially.
In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially.
This can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The interference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute A duty to act judicially may arise in widely different circumstances which will be impossible and indeed inadvisable to attempt to define exhaustively .Thus to take out from the realm of the administrative acts or an act pursuant to the policy decision of the Government, it will be enough if it is shown that certain objective criteria bad to be applied before the Government took a decision whether to exempt or not a certain builders or applicants who applied for construction of a house from the conditions under which a building has to be constructed and the grant of concession has substantially affected them or not.
The petitioner has alleged that after receiving the Government order, he obtained the planning permit and having so received the planning permission, proceeded with the construction over and above the first floor, invited prospective purchasers to enter into agreements with him for the sale of the flats so constructed over and above the first floor, entered into financial arrangement with Banks and proceeded ahead with the construction as per the revised plan. In the return, i.e. in the counter affidavit, however, the respondents have disputed that any construction has been made by the petitioner over and above the 1st floor. Even if that part of the assertion of the petitioner is left out, there is still enough left to show that the Government''s order moved the petitioner to alter his position so much that he had obtained the planning permission invited prospective purchasers to enter into agreements with him for the sale of the flats and entered into financial arrangements with the Banks.
In my considered view, the State Government exercised a quasi-judicial power under S. 113 of the Town and Country Planning Act and it cannot review its order passed under S. 113 of the Act as no such provision has been made under the Act. The State Government accordingly is not vested with the power to review its earlier order.
Respondents have clearly misunderstood S.15 of the Madras General Clauses Act. Referring to S. 21 of the General Clauses Act (Central Act) a Bench of the Patna High Court in Ramnath Prasad v. State Transport Appellate Authority Bihar AIR 1957 Patna 117 observed,
In this connection, it was also argued by the learned Advocate-General that the R.T.A. which passed the order on the 26th February, 1953, had the power by virtue of S. 21 of the General Clauses Act (X of 1897) to add, to amend, vary or rescind it and to make it effective from 25th of April, 1953. This contention, however, is not sound, and must be rejected. S. 64 of the Act does not speak of any ''order''.
What it speaks of is that any person aggrieved by the refusal of the R.T.A. to ''grant'' a permit can appeal under S.64(a) of the Act. Nowhere in S.64, the word ''order'' occurs and as such there is no question of varying or rescinding or amending any order and therefore, S. 21 of the General Clauses Act cannot be applied to such a case. There must be an order first before it can be varied or amended by virtue of S. 21.
After considering this judgment and S. 24 of the Bihar and Orissa General Clauses Act which provided,
Where, by any Bihar and Orissa Act or Bihar Act, a power to make or issue notifications, schemes, rules, bye-laws or forms, it conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, schemes, rules, bye-laws or forms so made or issued.
A Bench of the Patna High Court in Bhola Prasad, cited supra, has said "Ss. 23 to 27 of the Bihar and Orissa General Clauses Act correspond respectively to Ss. 21 to 24 of the General Clauses Act (Central Act 10 of 1897) and are under the heading ''Provisions as to Orders. Rules, etc., made under Enactments''. Reading S. 24, by itself or in the context of the other sections under the said heading, it is clear that the power to make or issue orders spoken of in the said section is of a legislative nature and not of a judicial nature. The expression ''to make or issue orders'' has got to be read ejusdem generis and, when so read, it is manifest that the ''orders'' spoken of in S. 24 of the Act are orders made or issued in exercise of the power of a kind of subordinate legislation conferred by any Act, to wit, the various Control Orders made under the Defence of India Act within the meaning of S. 21 of the Central Act. The power under S. 8(4) of the Act is exercisable ''by order in writing'', but is not a power ''to take an order'' within the meaning of the said provision of the Bihar and Orissa General Clauses Act. If that were not so all authorities and Courts will derive their power to add to, amend, vary or rescind any order-judicial, quasi-judicial or administrative of the like nature at any time any number of times they choose to exercise it.
11a. After a reference to this authority, it is clear that the words ''to make rules or bye-laws or'' to make or issue orders'' in S.15 of the Madras General Clauses Act must be given the same meaning as the word ''orders'' given in S. 24 of the Bihar and Orissa General Clauses Act and thus exercise of power conferred by it must be confined to legislative orders and not extended to even administrative orders muchless to quasi-judicial orders.
Learned Counsel for the parties, however, has drawn my attention to certain in limine orders passed in certain cases of similar nature rejecting the contention that the notice itself lacks jurisdiction and therefore a writ petition should be entertained without subjecting the petitioners therein to the jurisdiction of the State Government to show cause. Rejecting the arguments in one of the orders, the learned Judge of this Court has observed:
Mr. Mohan Parasaran, Learned Counsel appearing for the petitioner contends that under S. 113 of the Act, once the Government granted the exempt on, it has no jurisdiction to cancel the same under the Act. As such, the notice itself lacks jurisdiction and the petitioner is entitled to maintain the writ petition at this stage. I am not able to agree with the said contention of the Learned Counsel for the petitioner. The 1st respondent has issued a notice asking the petitioner to show cause as to why the exemption should not be cancelled. It is open to the petitioner to submit his explanation to the Government and raise all the points both legal and factual; so that the Government can consider the matter fully, it is open to the petitioner to raise the point of jurisdiction also before the authorities. I am sure, the authorities will consider the question whether they have jurisdiction or not to consider the question of canceling the exemption already granted.
If recourse is taken to the observation made in the summary order of this Court in W.P. No. 7577 of 1989 Judgment, dt. 15-6-1989, S. Palaniswamy v. State of Tamil Nadu, by Commissioner and Secretary to Government. Housing and Urban Development Department Madras-9 Member Secretary, M.M.D.A., Madras-7 (Bakthavatsalam, J.), quoted above, the result will be that an authority who has no jurisdiction, will sit to examine whether it has got jurisdiction or not. It has been well settled by now that a Court or Tribunal of limited jurisdiction is sometimes no-doubt given the power also to decide the jurisdictional facts and then assume jurisdiction in the matter. But where no such power is conferred and there are no jurisdictional facts to be decided, no authority can assume jurisdiction to go into any matter, as in the instant case where no power of review has been given to the State Government and thus there are no jurisdictional facts to be examined by the State Government whether of existence or non-existence thereof, or whether it would assume or not assume jurisdiction. A Full Bench of the Patna High Court, in Patna Municipal Corporation v. Ram Bachan Lal AIR 1961 Pata 142, after referring to a large number of authorities both Indian and English has pointed out that a local authority, an administrative authority or any Tribunal of limited jurisdiction cannot assume jurisdiction to do anything or to pass any order by arriving at a wrong decision of facts. The Full Bench came to the said conclusion after referring to the observations of Lord Esher in (1888) 21 QED 313 at 319-20 which may be extracted:
When an interior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it shall have jurisdiction to do such thing, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may instruct the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision for otherwise there will be none. In the second of the two cases, I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
The law thus is well settled. this Court by asking the petitioner to appear before the State Government and conceding to the State Government that it would decide whether it has got jurisdiction or not, would create a jurisdiction in the State Government which the Legislature has not vested in it. This will be wholly not permissible. I do not therefore agree with the proposed order in Writ Petition No. 7577 of 1989, firstly because nothing has been decided in that case and second because the direction therein is contrary to the law of the land. Moreover it is only the ratio of a case which is binding and not a direction or observation therein. Having considered this case in all its aspects, my concluded opinion is that the proceedings of the first respondent dated 28-4-1989 in Lr. No. 26533/U.D.I (i)/89 1 Housing and Urban Development have to be quashed and are hereby quashed. Consequently the respondents are hereby forborne from interfering with the petitioner''s right to proceed with the construction at No. 140, Royapettah High Road. Madras-4 in terms of the exemption granted in G.O. Ms. No. 1985 Housing and Urban Development dated 31-12-1987. The writ petition is allowed. No costs.