pvr 1 wp1718-03 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1718 OF 2003 1.Hanil Era Textiles Ltd. & Anr. ...Petitioners vs. 1.The Union of India & Ors. ...Respondents --- Mr.V.Sridharan with Ms.Lakshmi Menon i/b. M.P.Vashi & Associates. Mr.G.R.Sharma with N.D.Sharma, for Respondents. --- CORAM: D.K.DESHMUKH & K.K.TATED, JJ. DATED: 23rd February,2011 P.C.: 1. By this petition, the petitioners challenge the order dated 4.6.2003 passed by Respondent no.2. The relevant facts are that the petitioner no.1 is a company incorporated under the Companies Act and is engaged in manufacturing pvr 2 wp1718-03 of Acrylic Yarn, Cotton Yarn, Blended yarn etc. The first petitioner is 100% export oriented unit in textile sector. According to the policy of the Government, 100% export oriented unit is entitled to sell certain percentage of its produce in the Domestic Tariff Area (DTA) after obtaining permission of the Development Commissioner- Respondent no.2. The dispute in this petition relates to the year 1996-97, 1997-98 and 1999-2000. The petitioner, so far as the year commencing from 1.7.1996 to 30.6.1997 is concerned, applied for permission and was granted permission allowing DTA sale by order dated 29.1.1998. So far as the subsequent order i.e. from 1.7.1997 to 30.6.1998 is concerned, DTA sale permission was granted by order dated 7.6.1999. The petitioner filed a writ petition in this Court being Writ Petition no.2388 of 2000 challenging a part of the permission granted relating to the year 1997-98. That writ petition was decided on 31.10.2001. The Court set aside the order and remanded the matter back for a pvr 3 wp1718-03 fresh order. On 9.1.2002, the Respondent no.2 passed a fresh order granting DTA sale permission for the year 1997-98. The Respondent no.2 had passed an order dated 23.11.2001 allowing DTA sale for the period 1999-2000. The Respondent no.2 passed the impugned order dated 4.6.2003 reviewing his order relating to the year 1996-97, 1997-98 and 1999-2000 and he cancelled the DTA sale permission for some year and for some year reduced the percentage of the production which could be sold in DTA. The petitioners are before this Court challenging the order passed in Review dated 4.6.2003. 2. The learned Counsel appearing for petitioners submitted, firstly, that the order dated 4.6.2003 has been passed in utter breach of the principles of natural justice inasmuch as no show cause notice is given to the petitioners asking the petitioners to show cause as to why the order should not be reviewed; secondly that the Respondent no.2 does not have power to review pvr 4 wp1718-03 the order passed by him granting permission for DTA sale; thirdly, that even on merit the order could not have been made because the reason that has been given for reviewing the order is a non existent reason. 3. We have heard the learned Counsel appearing for Respondents. The learned Counsel appearing for Respondents, firstly, submitted that the order impugned in this petition is an appealable order and therefore, we should not entertain this petition; secondly he submitted that in the order granting DTA sale permission, the power to review the order is reserved, and therefore, the Authority has power to review the order. He also submitted that there was no necessity of issuing any show cause notice because what has been done by the impugned order is that the calculation mistake in the order is corrected. 4. There is no dispute before us that Order pvr 5 wp1718-03 dated 4.6.2003 results in affecting the petitioners adversely. Obviously, therefore, the order could not have been made without complying with the principles of natural justice. It is now a settled law that the administrative power vested in the Authorities, statutory and non- statutory, has to be exercised in consonance with the principles of natural justice and the order made in violation of principles of natural justice is non est being in violation of guarantee given under Article 14 of the Constitution of India. There are three well recognized exceptions to the Rule of exhausting alternate remedy viz. (i) when the order impugned before the High Court in the petition under Article 226 of the Constitution of India is made in violation of fundamental rights; (ii) when the order which is impugned in the petition before the High Court is made in breach of principles of natural justice; and (iii) when the order impugned before the High Court is a non est order and is made without authority of law. In the pvr 6 wp1718-03 present case, as we find that on the face of it the order is made in breach of the principles of natural justice and also in breach of fundamental rights guaranteed by Article 14 of the Constitution of India, in our opinion, the petitioners cannot be asked to exhaust alternate remedy before approaching this Court. No statutory provision which empowers the Respondent no.2 to review the order has been pointed out to us. The learned Counsel appearing for Respondents, however, relied on the following condition in the order granting permission. It reads as under:- (4) This permission may be subject to such review, revision and curtailment as Government may consider necessary. Even if this condition is taken to confer power of review, such power of review is conferred on the Government and not on Respondent no.2. The learned Counsel appearing for Respondents pvr 7 wp1718-03 submitted that this order has been made in terms of the directions of the Ministry of Commerce and Industries. In our opinion, when power to review is conferred on a authority, it is for that authority to exercise that power and for making an order that authority cannot direct its subordinate to review the order in exercise of power of review which is conferred on that authority. It is further to be seen here is that no authority or Court has inherent power of review. The power of review has to be conferred on the authority. If any authority is necessary for this well established principle, it is to be found in the judgment of the Supreme Court in the case Harbhajan Singh Vs. Karam Singh & Ors., AIR 1966 SC 641 . What is observed in paragraph 7 by the Supreme Court, in our opinion, is relevant. It reads as under:- 7. In Drew V. Willis Lord Esher, M.R.pointed out that no court (and I would add  no authority ) has ... a power of setting aside an order which has pvr 8 wp1718-03 been properly made, unless it is given by statute . In another case Hession V. Jones Bankes, J. pointed out that the Court, under the statute, has no power  to review an order deliberately made after argument and to entertain a fresh argument upon it with a view to ultimately confirming or reversing it and observed: Then as to the inherent jurisdiction of the Court. Before the Judicature Acts the Courts of common law had no jurisdiction whatever to set aside an order which had been made. The Court of Chancery did exercise a certain limited power in this direction. All Courts would have power to make a necessary correction if the order as drawn up did not express the intention of the Court; the Court of Chancery however went somewhat further than that, and would in a proper case recall any decree or order before it was passed and entered; but after it had been drawn up and perfected no Court or Judge pvr 9 wp1718-03 had any power to interfere with it. This is clear from the judgment of Thesiger, L.J. in the case of in re.St.Nazaire Co.(1879)12 ChD 88. The same principle was laid down by the Madras High Court in Anantharaju Shetty V. Appu Hegada in which Seshagiri Aiyar, J. observed: It is settled law that a case is not open to appeal unless the statute give 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 had indicated 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. It is, thus, clear that power to review has to be pvr 10 wp1718-03 specifically conferred on the authority. We have not been shown any provision conferring such power. The authority cannot confer power of review on itself, the power has to be conferred by a Statute. In our opinion, thus, the order impugned in the petition is made without any authority of law because the respondent no.2 who has made the order, had no power to review his own order. As we find that the order is without authority of law, in our opinion, it is not necessary to examine the third contention urged on behalf of the petitioners. In our opinion, even assuming that there is a calculation mistake in the order and even assuming that respondent no.2 had authority to review its order or to correct the mistake in the order, if correction or mistake in the order results in adverse consequences to a citizen, the respondent no.2 was under a bounden duty to comply with the principles of natural justice. Looking at the matter from any point of view, in our opinion, the order impugned has to be set aside. In the pvr 11 wp1718-03 result, therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a). No order as to costs. (D.K.DESHMUKH,J.) (K.K.TATED,J.)