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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNCHAL PRADESH) AIZAWL BENCH : AIZAWL
NELSON SAILO, J.
Zothansanga, S/o Saithangpuii Sailo – Appellant
Versus
The State of Mizoram represented by the Secretary to the Government of Mizoram – Respondent
WP(C) No. 51 of 2020
Decided on : 26-03-2021
Employment and service – Claim and compensation - Bank - Without jurisdiction - Whether the authority concerned can recall an order passed earlier without there being any provision - respondent in the meantime, vide Communication informed the Settlement Officer of the Land Revenue & Settlement Department to implement the Office Order dated 10.06.2019, but the Settlement Officer did not take any follow-up steps - Respondent No. 5 in the meantime, again filed Civil Suit on the same subject but this time, against the official defendants only, i.e., the State of Mizoram, the Director of Land Revenue & Settlement Officer and Settlement Officer of Land Revenue & Settlement Department. But again respondent filed an application for withdrawal of the suit with liberty to file afresh on the same subject matter or part of claim –
Finding of the Court:
Although the learned Government Advocate has contended that the mutation in respondent No. 5 was done in the year 2012 and much prior to Act of 2013 came into existence, what we are concerned here is with regard to the Order being reviewed by the same authority beyond the prescribed period stipulated by Section 93 of Act of 2013. The Apex Court in the case Advertising while considering the question posed before it as to whether the authority concerned can recall an order passed earlier without there being any provision provided in that regard came to the conclusion in the facts of that case that it was a settled proposition that unless the statute/rules so permit review application cannot be maintainable in case of judicial/quasi-judicial orders - In absence of any provision in the Act granting an expressed power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra illegal and without jurisdiction - Apex Court by further referring to its earlier decisions also observed that review is a creation of statute and that the jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction - Apex Court in the case of State Bank of India content of the facts involved in that case held that a quasi-judicial authority will become officio only when its order is pronounced, or published/notified or communicated to party concerned. But when an order is made in an office noting in a file but is not pronounced, published or communicated nothing prevents the authority from correcting it or altering it for valid reasons –
Result: Petition disposed of
JUDGMENT :
Heard Mr. Zoramchhana, learned counsel for the petitioners and Ms. Mary L. Khiangte, learned Government Advocate appearing for the respondent Nos. 1 to 4. Also heard Mrs. Dinari T. Azyu, learned counsel appearing for the respondent No. 6. None appears for the respondent No. 5.
2. This Court vide Order dated 11.02.2021 indicated that if the respondent No. 5 remains unrepresented on the next date, the matter will be proceeded ex-parte against the said respondent. The respondent No. 5 is again not represented today despite service of notice and as such, the matter is proceeded ex-parte against her.
3. Brief facts as projected by the petitioners is that they are owners of their respective plots of land covered by Land Settlement Certificate Nos. 103201/01/604 of 2002 and 103201/01/605 of 2002. One Sh. JC Sengluaia disputed the Land Settlement Certificates of the petitioners by contending that the same encroached upon his land which was covered by LSC No. AZL.1891/1986. He therefore filed Civil Suit No. 127/2010 before the Court of Civil Judge, Aizawl. The Civil Suit on contest was dismissed by the Court below. However, during the pendency of the Civil Suit, the two LSCs were transferred in the name of the respondent No. 5 at the behest of the respondent No. 6, who is also the mother of the petitioners purportedly on the basis of Sale Deeds, which were not even signed by the original LSCs holders, i.e., the petitioners themselves. Being aggrieved, the petitioners filed a joint representation on 17.07.2018 before the Director of Land Revenue & Settlement Department (respondent No. 2) praying for the cancellation of the transfer of land belonging to them to the respondent No. 5.
However, the representation remain unattended and therefore, the petitioners filed WP(C) No. 38/2019 before this Court. This Court, upon having regard to the pending representation disposed of the writ petition on 28.03.2019 by directing the respondent No. 2 to consider and dispose of the representation of the petitioners by way of a speaking order within a period of 1 (one) month from the date of receipt of a certified copy of the order.
4. Pursuant to the above direction, the respondent No. 2 vide Order dated 10.06.2019 (Annexure-3) found irregularity in the transfer of the LSCs in favour of the respondent No. 5 and accordingly directed the cancellation of the LSCs issued in favour of the respondent No. 5 with a further direction to the Settlement Officer/Asst. Settlement Officer, Aizawl District, Aizawl to immediately issue fresh LSCs in favour of the original LSC holders, i.e., the two petitioners.
5. Against the Order dated 10.06.2019, the respondent No. 5 preferred Civil Suit No. 55/2019 along with an application for stay of the Order dated 10.06.2019 vide CMA No. 318/2019 before the Court of Senior Civil Judge-III, Aizawl. The Court below initially issued a stay order on 24.07.2019 but subsequently, vide Order dated 14.11.2019, vacated the interim order.
6. Against the order of the Senior Civil Judge, the respondent No. 5 approached this Court by filing FAO No. 3/2019 but the same was dismissed as withdrawn vide Order dated 27.11.2019 and the appellant/respondent No. 5 was not given liberty for re-filing the appeal against the impugned Order, i.e., the Order dated 14.11.2019 passed by the Senior Civil Judge-III.
7. Be it stated herein that following rejection of CMA No. 318/2019, the respondent No. 5 also withdrew Civil Suit No. 55/2019 on 28.11.2019. The Senior Civil Judge-III while allowing withdrawal of the suit did not give liberty to the respondent No. 5 for re-filing another suit on the same subject against the private defendants, who are the present writ petitioners and also the respondent No. 6.
8. The respondent No. 2 in the meantime, vide Communication dated 03.12.2019 informed the Settlement Officer of the Land Revenue & Settlement Department, Aizawl District, Aizawl to implement the Office Order dated 10.06.2019, but the Settlement Office
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