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TMI Blog1987 (7) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ts by his order dt. 27th Jan. 1971 dismissed the application for condoning the delay and consequently dismissed the revision as well. Thereafter certain information was brought to the notice of the Director by the Mutawalli of a registered Wakf known as Ashoorkhana Hussaini Kiledar , on the basis of which the Director issued a notice on 22-1-74 calling upon the respondents to show cause why the orders of the Settlement Officer dt. 10th June, 1970, be not revised for the reasons stated in the said notice. This notice was issued in exercise of his suo motu power of revision. The respondents showed cause and after hearing them, the Director of Settlements passed orders of 2nd Jan. 1978, allowing the revision and quashing the orders of the Settlement Officer granting patta. There-upon, the respondents filed W. P. No. 2328/78 in this Court which has been allowed by the learned single Judge under the order impugned in this writ appeal. 2. Two grounds were urged by the respondents-writ petitioners before the learned single Judge, namely, (1) that inasmuch as the Director has already exercised his power of revision once while dismissing the revision petition filed by the Tahsildar on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion at all, and hence there was no decision of the Director on the said revision petition. 6. Mr. S. R. Ashok, the learned Counsel or the respondents-writ petitioners however contended that the said decision requires reconsideration in view of the decision of the Supreme Court referred to above and relied upon by the learned single Judge as well as certain other decisions which he brought to our notice. It would be appropriate to consider his submission on merits. The argument on this count is put forward by the respondents. Writ petitioners on two bases,(1) by dismissing the revision preferred by the Tahsildar by his order dt. 27-1-71 - no doubt on the ground that it is barred by limitation - the Director has, already exercised his revisional power once and thus has become functus officio and cannot exercise the very same power suo motu again, and (2) the order of the Settlement Officer has merged in the order of the Director dt. 27-1-71 and if so, there is no order of Settlement Officer as such which is available for being revised. Inasmuch as the order of the Settlement Officer has merged in the order of the Director dt. 27-1-71, the Director cannot revise his own order; he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge of the Bombay High Court and dismissed on the ground that the appellate Court had not acted illegally in exercising its jurisdiction. Thereupon, the very same party filed a petition under Art. 226 or/and 227 of the Constitution challenging the very same appellate order, which was allowed by a Division Bench of the Bombay High Court. The Division Bench held that the dismissal of the civil revision petition by a learned single Judge does not bar interference under Arts. 226 and 227 of the Constitution. The correctness of the said view was questioned before the Supreme Court. The Supreme Court held that once the High Court had dismissed the revision after bearing both the parties, the order of the appellate court got merged with the order made in revision and thereafter the appellate order cannot be challenged over again by a petition under Arts. 226 and 227 of the Constitution. It was held that the application of the doctrine of merger cannot be rendered inapplicable by drawing a distinction between an application for revision and an appeal. It was also held that the power of revision is in essence akin to power of appeal. Supreme Court observed further that even if it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an order under Sec. 31, a further appeal to the Tribunal did lie. The Supreme Court noticed a conflict of opinion between several High Courts on the said question and held that even an appeal presented beyond the prescribed period of limitation is still an appeal, and an order dismissing such appeal as having been presented beyond the prescribed period is still an order under Sec. 31 of the Act and therefore appealable under Sec. 33 of the Act. The following observations of the Supreme Court bring out the ratio of, the said decision. But the question still remains whether the view taken in Commr. of Income Tax v. Mysore Iron and Steel Works [1949]17ITR478(Bom) and K. K. Porbunderwalla v. Commr. of Income Tax AIR1952Bom157 that an appeal which is filed beyond the period of limitation is, in the eye of law, no appeal, unless and until there is a condonation of delay, and that in consequence, an order passed thereon cannot be held to be passed in appeal so as to, fall within Sec. 31, is right. Now, a right of appeal is a substantive right and is a creature of the statute. Sec. 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it cannot be said in this case that the Director has exercised his power of revision earlier while dismissing the revision petition filed by the Tahsildar. There was no occasion for him to exercise his powers of revision because he refused to entertain the revision petition on the ground that it was barred by limitation. He did not look into the merits of the case. He did not hear the parties nor did he pronounce on the merits of the case. In such a case there is no room either for saying that he has exercised once his powers of revision, nor can it be said that the order of the Settlement Officer got merged with the order of the Director of Settlement and-therefore there is no order of Settlement Officer which is available for being revised on the second occasion. We are, therefore, unable to agree with the learned single Judge, with due respect, that the Director of Settlement had become functus officio after dismissing the Tahsildar's revision on 21-1-71 and was incompetent and powerless to invoke his suo motu powers of revision on 22-1-74. We are equally of the opinion, for the above reasons that the order of the Settlement Officer cannot be said to have merged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of each case. No hard and fast rule can he enunciated in that behalf. It is true that in K. Venkata Reddy v. Director of Survey, 1975 1 APLJ 111 it was held that i here is no time limit for exercise of the said power, the said extreme proposition must be deemed to have been modified by the subsequent Bench decision in Kodanda Rao v. Government of Andhra Pradesh, (1981) 2 APLJ 158 following that decision of the Supreme Court in State of Gujarat v. P. Raghav, [1970]1SCR335 . This question was indeed urged before the Director but was negatived by him probably in view of the earlier Bench decision in K. Venkata Reddy's case. Whether the powers of revision could he exercised after a period of three years is a question to be decided by the appropriate authority in the higher authority having regard to the facts and circumstances of the case. It is one of the factors that should enter the decision of the authority in making up his mind whether to interfere or not. It is evident that when the Director rendered his decision, the subsequent Bench decision of this court in Kodanda Rao v. Government of Andhra Pradesh, (1981) 2 AP 158 was not available. In all the circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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