Kalandi Tiadi and Others vs Ananda ' Ananda Chandra Das and Others

G.B. Pattnaik, J.—The short but an interesting question of law that arises in this appeal for decision is whether the Deputy Commissioner of Endowments who is the appellate authority u/s 44(1) of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the "Act") against the order of the Assistant Commissioner of Endowments in art application u/s 41 of the Act, has the power of reviewing his decision, ''or not. The aforesaid question arises in the following circumstances:

The Appellants filed an application before the Assistant Commissioner of Endowments invoking his jurisdiction u/s 41 of the. Act praying therein that the Commissioner should enquire into the nature of the Deities and their respective properties as given in the Schedule and declare the Deities as private Deities and their endowments to be private endowments and declare the Appellants to be the Hereditary Trustees of the Deities and the endowments. That application was registered as O.A. Case No. 27 of 1981. Respondents 1 and 2 in this appeal contested the proceeding and alleged that the Deities were temples and had no Hereditary Trustees. The Additional Assistant Commissioner of Endowments on consideration of materials before him held that the Deities were temples and the properties were public endowments, but he came to the conclusion that the Appellants were the Hereditary Trustees. Respondents 1 and 2 filed an appeal u/s 44(1) of the Act before the Deputy Commissioner of Endowments which was registered as F.A. No. 16 of 1986. The Deputy Commissioner by his judgment dated 17th of February, 1987, dismissed the said appeal and confirmed the judgment of the Additional Assistant Commissioner. Subsequently, Respondents 1 and 2 filed an application for review. That review application was heard and the Deputy Commissioner reviewed his earlier judgment by order dated 24th of June, 1988, legality of which is being assailed in this appeal. By reviewing the earlier judgment, the Deputy Commissioner held that the declaration of the Additional Assistant Commissioner that the Appellants were Hereditary trustees could not be sustained and accordingly set aside the same.

Mr. S. Misra-1, the learned Counsel for the Appellants, contends that the review being a creature of statute and no power of review having been conferred on the appellate authority under the provisions of the Act, the Deputy Commissioner had no jurisdiction and, therefore, the impugned order is one without jurisdiction. The learned Counsel places reliance on two decisions of this Court in Pratap Chandra Patra and Ors. v. Commissioner of Orissa Hindu Religious Endowments Bhubaneswar and Ors. 1972 (1) C.W.R. 823 and Gopinath Deb Vs. Budhia Swain and Others, in support of his contention.

Mr. S. Misra-2, the learned Counsel appearing for the Respondents, on the other hand, contends that in view of Rule 43 of the Orissa Hindu Religious Endowments Rules (hereinafter referred to as the "Rules") making the entire CPC applicable to a proceeding under the Act, the power of review conferred under Order 47 of the CPC would apply and, therefore, the Deputy Commissioner had the power to review his earlier order. In support of his aforesaid contention, he places reliance on the decision of this Court in the case of Hazari Jena and Anr. v. Bachha Mallik and Ors. ILR 1979 Cut 442. Mr. Misra the learned Counsel for the Respondents, further contends that in fact the Respondents had preferred an appeal against the earlier order of the Deputy Commissioner to this Court, but the said order having been reviewed, the appeal was permitted to be withdrawn and it would, therefore, be inequitable now to hold that there was no power for review.

Before examining the correctness of the rival submissions, it is necessary to notice and dispose of another matter, namely, the application for compromise that was filed in this Court. In this Court, a compromise petition was filed wherein the Respondents agreed to the Appellants being allowed to continue as Hereditary Trustees. As the compromise in question could not be accepted without noticing the Commissioner, notice was issued to the Commissioner of Endowments and thereafter in compliance with Order 1, Rule 8, Sub-rule (4) of the Code of, Civil Procedure, notice of the compromise petition was given to all persons interested by advertising the same in the daily ''Samaj'' Mr. Naidu has entered appearance for the Commissioner. It was submitted by Mr. Naidu that the compromise could not be given effect to in view of the nature of dispute between the parties and Mr. S. Misra-2 appearing for the Respondent also fairly conceded to the aforesaid position. Having heard the learned Counsel for the parties, I am also of the opinion that the compromise is not in accordance with law and cannot be given effect to and, therefore, the application for compromise stands rejected.

Now coming to the merits of the appeal, the question for my consideration is whether the appellate authority has the power to review his earlier judgment having disposed of the appeal on merits. Admittedly, no power of review has been conferred on any authority under the provisions of the Act. But Rule 43 of the Rules provides that in relation to all proceedings before the Commissioner or the Assistant Commissioner against whose orders an appeal lies to the High Court under the provisions of the Act, the Commissioner or the Assistant Commissioner shall follow the provisions of the Code of Civil Procedure, the Indian Evidence Act and the G.R. & C.O. of the Orissa High Court as far as they are applicable and in so far as they are consistent with the Act and the Rules. This rule has been made in exercise of power under Sub-section 2(d) of Section 76 of the Act which empowers the State Government to make rules in respect of the powers of the State Government, the Commissioner, the Deputy Commissioner or an Assistant Commissioner to hold enquiries, to summon and examine witnesses and to compel the production of documents. Against an order passed u/s 41, admittedly an appeal lies to the Deputy Commissioner u/s 4(1) and against the said order of the appellate authority an appeal lies to the High Court under Sub-section (2) of Section 44. Therefore, in disposing of the appeal, the Deputy Commissioner has the, power to follow the provisions of the CPC as far as practicable and in so far as they are consistent with the Act and the Rules. But the crucial question that arises for consideration is whether in the absence of the power of review conferred under the statute, can it be said to have been conferred by incorporation in the Rules making the CPC applicable to an appeal u/s 44(1).

In Pratap Chandra Patra''s case 1972(1) CWR 523 the question arose as to whether an order passed by the Commissioner u/s 19 of the Orissa Hindu Religious Endowments Act could be reviewed by him later. In considering that question, a Bench of this Court held that there was a sharp distinction between a provision for review and a provision for appeal and a petition for review was only entertained under special circumstances provided under Order 47, Rule 1. Having examined the facts and circumstances of that case, their lordships came to the conclusion that the subsequent Commissioner could not have reviewed the order passed by the earlier Commissioner. In my considered opinion, the aforesaid decision does not discuss the point in issue nor has there been any elucidation on the question of law, That apart, the application of Order 47 of the CPC would arise by virtue of Rule 43 of the Orissa Hindu Religious Endowments Rules only when against the order an appeal lay to the High Court. In order u/s 19 of the Orissa Hindu Religious Endowments Act not being appealable to the High Court, the question of application of Rule 43 does not arise.

The question whether the Collector under the Orissa Estates Abolition Act can review earlier order came up for consideration in Gopinath Deb''s case 54(1982) CLT 513 It was observed by this Court:

The term ''review'' means a judicial re-examination of the case in certain specified and prescribed circumstances. The power of review is not inherent in a Court or Tribunal. It is a creature of the statute. A Court or Tribunal cannot review its own decision unless it is permitted to do so by statute. The Courts having general jurisdiction like Civil Court have inherent power. But the Courts or Tribunals of limited jurisdiction created under special statutes have no inherent power The learned O.E.A. Collector (O.P. No. 14) could not exercise inherent powers u/s 151, CPC to review his own order.

Though u/s 38-A of the Orissa Estates Abolition Act, a power of review had been conferred upon the Collector, but that power could be exercised within one year from the date of the decision or order and on the ground that there has been a clerical error or arithmetical mistake in the course of the proceeding. Having examined the case in hand, the Bench came to the conclusion that the application for review having been filed beyond the prescribed period of one year could not have been entertained. Though the aforesaid decision is in relation to the provisions of the Orissa States Abolition Act, but the general discussion on the power of review by a Court or Tribunal of limited jurisdiction would apply to the case in hand since the Deputy Commissioner under the Orissa Hindu Religious Endowments Act is a Court of limited jurisdiction created under the special statute.

In Hazari Jena''s case (I.L.R. 1979 Cut 442), the provisions of the Orissa Hindu Religious Endowments Act as well as Rule 43 of the Orissa Hindu Religious Endowments Rules were considered and it was held that in respect of a proceeding u/s 41 of the Act all the provisions of the CPC would apply and, therefore, Section 151 of the Code would be attracted.

In view of the aforesaid pronouncement making the entire CPC applicable, the learned Counsel for the Respondents contends that Order 47 of the CPC providing for review would also apply and therefore, the impugned order cannot be said to be without jurisdiction. But as has been observed by this Court in Gopinath Deb''s case, referred to supra, the power of review on a Court or Tribunal by application of Order 47 of the CPC is rather restrictive in nature and by virtue of Rule 43 of the Orissa Hindu Religious Endowments Rules, even though it can be held that Order 47 of the Code would apply to a proceeding before the appellate authority before whom the appeal u/s 41 is pending, yet the further question that requires to be answered is whether the appellate authority was justified in invoking the power of review contained in Order 47, Rule 1. The provisions of Order 47, clearly indicate that a person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, could invoke the jurisdiction of the Court for review. But in the present case, the Respondents had preferred an appeal against the order of the Deputy Commissioner and that appeal was pending in the High Court. Therefore, the Deputy Commissioner could not have exercised his power of review in view of Order 47, Rule 1(a). Then against, the authority can review his order if he is satisfied that there has been some discovery of new and important matter which after exercise of due diligence was not within the knowledge of the party or could not be produced by him at the time when the decree or order was passed. On examining the impugned order, I am satisfied that the Respondents have not made out any such case. At review can also be made if any mistake or error apparent on the face of record is pointed out. The impugned judgment does not indicate that any such mistake or error apparent on the face of the earlier order had been committed In that view of the matter, the appellate authority had no jurisdiction to review the earlier order passed by his predecessor-in-office. Consequently, I hold that no case has been made out by the Respondents within the ambit of Order 47 Rule 1, Civil Procedure Code. Therefore, the impugned order cannot be sustained. I would, accordingly set aside the impugned order of the Deputy Commissioner as he has transgressed his powers conferred upon, him under Order 47, Rule 1 Civil Procedure Code.

In the net result, therefore, the order of the Deputy Commissioner of Endowments dated 24th of June, 1988 is set aside and this appeal is allowed, but in the circumstances, without any order as to costs.

Appeal allowed.