JUDGMENT S.N. Srivastava, J.
1. Present petition has been filed assailing the order passed by the Vice Chancellor Deen Dayal Upadhya University Gorakhpur dated 16.6.2006 whereby the Vice Chancellor gave recognition to Committee of Management consisting of 12 members of the society excluding Mohd. Abdullah in exercise of powers under Section 2(13) of the U.P. States Universities Act, which was said to have been elected in the election held on 27.11.2005. By this order, Sri Aman Ullah Khan was recognized as President and Sri Akbar Ali Makrani was recognized as Secretary of the Committee of Management.
2. Before dealing with the arguments of the learned Counsel for the parties, it would be apt to set out a summary of facts bearing on the controversy involved in this Petition. The controversy in the instant petition centres round Muslim Girls Degree College now christened as Jawwad Ali Shah Imambara Girls Post Graduate College (Hereinafter, referred to as "Post Graduate College"). The society of the aforesaid college, needless to say, manages the affairs of the said Post Graduate College. A committee of management of which Mohd. Abdullah, petitioner No. 2 was the constituent came to be recognized by the Vice Chancellor vide his order dated 2.11.2002 the term of which was to enure upto 7.6.2005. Thereafter, a fresh election was held and the Vice Chancellor in exercise of power under Section 2(13) of the U.P. State Universities Act, accorded recognition to the said Committee of Management vide order of the Vice Chancellor dated 26.9.2005. Subsequently by means of order dated 11.1.2006, the Vice Chancellor reviewed his own order and instead, gave recognition to Committee of Management headed by Opposite parties of which Akbar Ali Makrani was claimed to have been elected as secretary/Manager. In the wake of this order, the petitioners preferred a writ petition impugning the order dated 11.1.2006 which petition was numbered as writ petition No. 9808 of 2006 Jawwad Ali Shah Imambara Muslim Girls degree College v. the Vice Chancellor, Deen Dayal Upadhya University Gorakhpur. This Court after hearing the learned Counsel for the parties, quashed the order dated 11.1.2006 vide its order dated 10.3.2006 and directed the Vice Chancellor to pass fresh orders within eight weeks after affording opportunity of hearing to all concerned. It would appear that thereafter Vice Chancellor of the said University issued notices for hearing, fixing 19.5.2006. The hearing was adjourned to 29.5.2006 on which date, it would further appear, the Vice Chancellor was not present and therefore the matter was adjourned to 6.6.2006. On 5.6.2006, it would further appear, the petitioner No. 2 filed objection having complexion of preliminary objection. On 16.6.2006, the parties appeared and decision was pronounced leaning In favour of Opp. Parties. By means of order dated 16.6.2006, the Vice Chancellor gave recognition to the Committee of Management headed by Akbar Ali Makrani at the same time holding the Committee of Management which had earlier been recognized on the basis of election on 27.11.2005 to be invalid in exercise of power under Section 2(13) of the U.P. State Universities Act.
3. Learned Counsel for the petitioner canvassed that by order dated 26.9.2005,t he Vice Chancellor had held the Committee of Management of which petitioner No. 2 was the constituent, to be validly elected committee pursuant to election 5.6.2005 in exercise of power under Section 2(13) of the Universities Act and by the impugned order he has recognized fresh Committee of Management relying upon certain documents produced by the contesting Opp. Party No. 5 sans any opportunity of hearing to the petitioner. It is further canvassed that inspite of petitioner's preliminary objection and demand of papers relied upon and submitted by the Opp. Parties no document was supplied and therefore, it is argued, impugned order was passed relying upon fresh materials relating to claims about fresh election of Opp. parties. It is further canvassed that under the provisions of the U.P. State Universities Act, there is no power of review vested in the Vice chancellor. It was further canvassed that review is a statutory remedy provided under the statute and this power cannot be exercised by any authority unless so empowered by the statute. It was further canvassed that by the impugned order, the earlier election which had been rightly recognized by the Vice Chancellor, cannot be undone inasmuch as he has no right to review the earlier order and further he has no right to give recognition to new Committee of Management headed by Ali Akbar Makrani and it is further argued, in passing the impugned order whereby he recognized a new committee of Management consisting of different sets of members of the society clearly amounts to review and is thus without jurisdiction. It was further canvassed that only exception to exercise the power of review in this regard is fraud and misrepresentation and there being no finding in the impugned order of any fraud and misrepresentation ascribable to the petitioners, the impugned order is open to question and therefore is unsustainable. He further submitted that in case, the Vice Chancellor was at all inclined to rely upon certain fresh papers relating to fresh membership or of a new election as dated 27.1.2005 submitted by the contesting Opp. parties, it was incumbent upon the Opposite parties to supply copies of such papers to the petitioner. This having not been done, it is argued, the impugned order is one having been passed in flagrant violation of the principles of natural justice. The learned Counsel also drew attention of the Court to the fact that the Committee of Management headed by the petitioner has been managing the affairs of the College since the very inception and further in view of the specific finding of the Vice Chancellor in his earlier order leaning in favour of petitioner that Akbar Ali Makrani was not a member of the society, and therefore, he cannot be held to be a member merely on the ground that the writ petition filed against the order of the Authority under Societies Registration Act has been rendered infructuous by efflux of time. Finally, it was canvassed that the entire finding recorded by the Vice chancellor in the impugned order is vitiated in law and is liable to be quashed. Per contra, Sri C.L. Pandey learned Counsel appearing for Opp. parties contended that the petitioners had alternative efficacious statutory remedy under Section 68 of the Universities Act 1973 before the Vice chancellor. He further contended that ample opportunity was afforded to the petitioner and still not a single document was filed by the other side after the order dated 10.3.2006 had been passed in writ petition No. 9808 of 2006 and the application in the form of preliminary objection was rightly rejected on 5.6.2005. It is further contended that the copies of documents furnished by the Opp. parties before the Vice Chancellor had already been supplied to the petitioner and further that the election dated 27.11.2005 was rightly recognized by the impugned order which was a speaking order and was informed with plausible reasons. He also contended that the impugned order passed by the Vice Chancellor does not amount to review but the same was passed stricto senso, in observance of the order of this Court in writ petition filed by the petitioner on earlier occasion. He also contended that the election dated 5.6.2005 electing the Committee of Management headed by petitioner was held without notice or information to the members of new body and that the Vice Chancellor rightly recognized the election in which management committee headed by Opp. parties was elected. Ultimately, it has been urged that the writ petition deserves to be dismissed as findings recorded by the vice chancellor are based on materials on record.
4. Facts being tangled and intertwined, the entire record was summoned by this Court, which was produced by Smt. Sunita Agarwal, learned Counsel for the University. When a question was posed to Smt. Sunita Agarwal whether after receiving proceeding of election dated 27.11.2005 submitted by Opp. Party No. 4 copies of the proceeding of election and other papers relied upon by him were served to the petitioner when the earlier election dated 5.6.2005 electing committee of Management headed by the petitioner having been duly recognized by the Vice Chancellor was set aside by the impugned order, Smt. Sunita Agarwal made a categorical statement that there is no indicium on record to show that any of the documents were supplied to the petitioner even for perusal. She further made a statement across the bar that after the recognition given in favour of the petitioner, a writ petition bearing No. 6557 of 1991 Jawwad Ali Shah Iammbara v. Asstt. Registrar, Chits funds and Societies was dismissed for default and a letter was sent to the Vice Chancellor by the University counsel and therefore he suo motu recalled the earlier order and gave recognition to the Committee of Management headed by Opp. Parties. This was the cause of action for the earlier order which was quashed on the ground that it was passed without giving opportunity of hearing.
5. Having heard the learned Counsel for the parties, the first question that crops up for consideration is whether the Vice Chancellor had power to review under the U.P. State Universities Act 1973.
6. Sri C.L. Pandey, learned Counsel for the Opp. Parties did not have my attention called to any provision under the U.P. Universities Act 1973 envisaging provision for review by the Vice Chancellor of his own order. In this connection, it bears no dispute that power of review is a power created by the statute and this could only be exercised by the authority vested with such power under the statute. As stated supra, no such power is envisaged in the statute of Deen Dayal Upadhya University Gorakhpur and therefore, impugned order commends itself for being quashed on this ground alone. Again reference be made to the argument of the learned Counsel for the contesting Opp. Party the quintessence of which is that the order impugned herein was passed in compliance of the order of this Court and therefore the question whether power of-review could be exercised by the Vice Chancellor under the Universities Act is not open to be raised by the learned Counsel for the petitioner. In connection with this argument, it may be noticed that while setting aside the order as being violative of the principles of natural justice, this Court directed the Vice chancellor to pass appropriate order after giving opportunity of hearing to the parties by a speaking order. This order of the Court cannot be construed to mean that the vice chancellor was given liberty to review its order. As stated supra, the power of review is not envisaged in the entire statute. From a perusal of the order, it crystallizes that the impugned order has all the indicia of having been passed by way of review. In case the Vice Chancellor had any inclination to review his earlier order, he should have noted such provision in his order and in case he was satisfied that the statute does not envisage any power of review, he should have decided the case on merits derecognizing the earlier Committee of Management and recognizing the new Committee of Management.
7. The question now arises whether a quasi judicial tribunal can review its own orders. The general rule is that a quasi judicial tribunal becomes functus officio as soon as it makes a decision relating to a particular matter. It cannot, therefore, review its own decision unless so empowered by statute. There is another aspect to be considered. In case the statute does not envisage power of review, the power has been deemed to be inherent in the authority in case it is required to be exercised to reopen an exparte proceeding not on the ground that a party failed to appear but on the ground that a decision was reached behind the back of a necessary party without issuing notice upon him and secondly to rectify its own mistake which was committed overlooking a change in the law which had taken place before its decision.
8. The pronounced view of the Apex Court in the following decision is that power of review is a statutory power and no court or authority has power to review unless given by the statute. (See-Patel Narshi Thabershi and Ors v. Pradyumansinghji Arjun Singhji , Grindlays Bank Ltd v. The Central Government Industrial Tribunal and Ors. , Harswarup v. The General manager, Central Railways and Ors. AIR 1993 SC 518, K.N.Thomas v. State of Kerala and Ors. , Ram Lakhan v. presiding Officer and Ors. ), Daman Singh and Ors. v. State of Punjab and Ors. .
9. Even if it be assumed that any authority could have inherent power to recall its own order, this power only exists, if the order is assumed to have been obtained by fraud or by misrepresentation. The question now is whether there was any misrepresentation or fraud. I have searched the entire order and there is no inkling anywhere in the entire order referring to any allegation on record nor is there any finding that the petitioner committed any fraud or misrepresentation inveigling the Vie Chancellor to pass the order and by this reckoning, the power of recall on these two grounds is also not available to the Vice Chancellor. In this connection, decision of the Apex Court in United India Insurance Company Ltd v. Rajendra Singh and Ors. (2000 (18) LCD. 586 may be noticed. It has been held that in cases where judgment and decree obtained by playing fraud, the Court has inherent power to recall its orders. In this decision, the Apex Court has noticed with approval the decision and .
10. There is also a third aspect to be taken into reckoning. The order can be said to be liable to be recalled in case, any mistake has crept into it. Then question arises what is the scope of mistake. The scope of mistake cannot be stretched beyond all proportions. It can be employed in case, there is some apparent error of law, be it from the order itself. The mistake which can furnish foundation for recall cannot be enlarged to mean that in case a writ petition is dismissed on the ground of having become infructuous by efflux of time and the counsel for University acquaints the vice chancellor with the information that the said writ petition had been dismissed as having become infructuous, it cannot be taken aid of to mean an error apparent on the face of record empowering the vice chancellor to review the entire judgment camouflaging the order to be one passed as recall order.
11. In the above conspectus, it is clear that the earlier order passed by the Vice Chancellor giving recognition to the Committee of management headed by the petitioner did not suffer from any such apparent mistake as to entitle and empower the Vice Chancellor to review its earlier order.
12. In Committee of Management, Sri Durgaji Post Graduate College Chandeshwar, Azamgarh through its Manager Kanhayia Singh v. Veer Bahadur Singh Purvanchal University Jaunpur through its Registrar and Ors. (2003 (1) UPLBEC 462, the, Apex Court held that there was no occasion for Vice Chancellor to issue a direction to exercise jurisdiction under Section 1334 and further that the recognition is only a summary proceeding till the competent court directions otherwise.
13. From a perusal of the impugned order it transpires that the Vice Chancellor while passing the impugned order had relied upon the judgment dated 16.11.2005 passed in Writ Petition No. 6557 of 1991 by which recognition of Committee of Management elected on 5.6.2005 was withdrawn by an order dated 22/26th Sept 2005. An application for recalling the writ petition was again dismissed on 30.3.2006. The documents relied upon by the Vice Chancellor while passing the impugned order reviewing its earlier order are enumerated below. (1) The list dated 20th Dec. 1980 issued by Syed Mazhar Ali Shah containing 20 persons of which 12 persons are shown to be alive. (2) The proceeding of election dated 27.11.2005 relied upon by the Opposite party, (3) the renewal order dated 14.3.1989 passed in favour of Akbar Ali Makrani and further renewal order dated 29.11.2005 granting renewal with effect from 10.10.2005 upto 10.10.2010, (4) the letter dated 11.2.99 by which Mehmood Hasan resigned from the post of Vice President. (5) The document by which the election-dated 5.6.2005 was not accepted on the ground that in th'e meeting dated 16.11.2005, six new members were enrolled which was not in accordance with law.
14. All these documents, which were not considered by the earlier judgment, were taken into account by passing the impugned order. As stated above, the learned Counsel for the University has made a categorical statement that after the order passed in favour of the petitioner, no documents were supplied to him and as such the arguments of learned Counsel for the petitioner commend to me for acceptance that documents relied upon by him were not supplied to the petitioner before passing the order. Moreover, as the Vice Chancellor is wholly incompetent to review its order and as stated supra, it has no power to review the order under statute and there is no finding of fraud, misrepresentation or mistake on the part of the petitioner the order is wholly unsustainable in law and is liable to be quashed.
15. Yet another aspect worthy of consideration is that from a perusal of the record, it transpires that the Vice Chancellor had relied upon a number of documents and also proceeding of fresh election dated 27.11.2005 for derecognizing the committee of Management headed by petitioners and in recognizing the Committee of management headed by contesting Opp. Parties besides taking note of order passed for renewal of the society copies of which were never supplied to the petitioners. In this connection, the statement made across the bar by the learned Counsel for the University may also be noticed the quintessence of which is that even though those documents and proceedings of election were relied upon by the Vice Chancellor, there is nothing on record to establish that copies of these papers were supplied or were made available to the petitioner even for inspection or perusal. There is no reference of the papers in the earlier order and in this view of the matter, these papers relied upon by the Vice Chancellor must have been submitted by the Opp. parties. It would thus be clear that the impugned order has been passed recognizing fresh committee of Management headed by Opp. parties without giving opportunity of hearing. The endorsement dated 5.6.2006 mentioning that all papers were given is clearly an error apparent on the face of the record. There is nothing on record to show that any of the documents relied upon by the Vice Chancellor submitted by contesting Opp. parties in the impugned order were given to the petitioner and by this reckoning the order at its face value appears to be erroneous and vitiated in law.
16. In view of above discussion, this Court veers round to the view that the impugned order passed by the Vice Chancellor suffers from an error of law and is liable to be quashed.
17. As a result of foregoing discussion, the writ petition succeeds and is allowed and the impugned order passed by Vice Chancellor dated 16.6.2006 is quashed. In consequence, the Committee of Management headed by the petitioner shall stand revived till any competent civil court passes an order otherwise. In the facts and circumstances of the case, there would be no order as to costs.