JUDGMENT R.M. Lodha, J.
Page 3207
1. The question referred to the larger Bench is: whether the Maharashtra Revenue Tribunal has jurisdiction to review its own order passed in the revision application under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948?
2. While making reference, the Single Judge noticed the judgment in the case of Anoopchand Nathmal Baid v. Maharashtra Revenue Tribunal at Nagpur and Ors. 1986 Mh.L.J., 520 wherein while considering the question whether the Maharashtra Revenue Tribunal (for short, `the Tribunal') has the power under the Maharashtra Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958 to review its own decision, the Single Judge held that under Section 315(1) of the Maharashtra Land Revenue Code, 1966 (for short, `MLR Code'), the Tribunal could exercise its jurisdiction only in cases arising under the provisions of the enactment specified in Schedule `J' of the MLR Code and since the Bombay Tenancy and Agricultural Lands (Vidharbh Region) Act, 1958 is not referred to in the schedule, the powers which the Tribunal could exercise were only those conferred by the Tenancy Act and, thus, the power of review could not be exercised by the Tribunal in the cases arising under the Tenancy Act. In the reference order, another judgment of the Single Judge of this Court in the case of Genu Laxman Shinde v. Chandrakant Dagadu Kotulkar 1999(1) Mh. L.J., 235 has been noticed wherein it was held that the Tribunal possesses power to review its order passed under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948. Having noticed the inconsistency in the aforesaid two judgments, the Single Judge thought fit to have the said controversy resolved by the larger Bench. This is how the matter has been placed before us.
3. It is not necessary to refer to the facts of the case in details. Suffice, however, to say that with regard to the tenancy rights in respect of Gat No.416, admeasuring 3 Hectares 90 Ares at village Hirave, Taluka Purandar, District Pune, the dispute ultimately reached the Tribunal in the revision application under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, `the Tenancy Act'). The Tribunal dismissed the said revision application on 16.10.1982. The present respondents filed review application before the Tribunal seeking review of the order dated 16.10.1982 which was allowed on 16.11.1987. Aggrieved thereby, the petitioner preferred writ petition raising the ground that the review application made by the respondents before the Tribunal was not maintainable and hence, the order allowing the review application was bad-in-law.
Page 3208
4. The Bombay Revenue Tribunal Act, 1939 (for short, `Act of 1939') was enacted to provide for the constitution of the Revenue Tribunal for the province of Bombay. It came into force on 29th May, 1939. The powers and functions of the Bombay Revenue Tribunal constituted under Section 3 of the Act of 1939 were provided in Section 4. Section 4 of the said Act reads thus-
4. (1) The Tribunal shall exercise such jurisdiction to entertain appeals and revise decisions in revenue cases as was vested in the Provincial Government immediately before the first day of April 1937 under any law for the time being in force.
(2) In particular and without prejudice to the generality of the foregoing provision the Tribunal shall have jurisdiction to entertain appeals and revise decisions-
(a) in all revenue cases arising under the provisions of the enactments specified in the Schedule in which such jurisdiction was vested in the Provincial Government immediately before the first day of April 1937, and
(b) in all cases specified in Section 9.
(3) Save as expressly provided in any enactment for the time being in force, the Provincial Government may, by notification in the Official Gazette, direct by general or special order that the Tribunal shall also have jurisdiction to entertain and decide appeals and applications for revision in any case in which the Provincial Government may have jurisdiction to entertain and decide such appeals and applications. The Provincial Government may, at any time, by like notification cancel any direction issued by it under this sub-section.
5. Section 7 of the Act of 1939 empowered the Tribunal to review its own decision or order either on its own motion or in the application of the party interested in the circumstances referred therein. Section 7 thereof reads thus-
7. (1) The Tribunal may, either on its own motion or on the application of any party interested, review its own decision or order in any case and pass in reference thereto such order as it thinks fit: Provided that no such application made by any party shall be entertained unless the Tribunal is satisfied that there has been a discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of such party or could not be produced by him at the time when its decision was made or that there has been some mistake or error apparent on the face of the record or for any other sufficient reason:
Provided further that no such decision or order shall be varied or revised unless notice has been given to the parties interested to appear and be heard in support of such order.
(2) An application for review under sub-section (1) by any party shall be made within 90 days from the date of the decision or order of the Tribunal:
Provided that in computing the period of limitation, the provisions of the Indian Limitation Act, 1908, applicable to applications for review of a judgment or order of a civil court shall, so far as may be, apply to applications for review under this section.
Page 3209
6. The Act of 1939 was replaced by the Bombay Revenue Tribunal Act, 1957 (for short, `Act of 1957). Section 9 thereof provided for the jurisdiction of the Tribunal and Section 17 provided for review of the orders of the Tribunal. Sections 9 and 17 of the Act of 1957 read thus-
9. Jurisdiction of Tribunal.- (1) Subject to the provisions of this section, the Tribunal shall have jurisdiction to entertain and decide appeals from and revise decisions and orders of officers, not below the rank of a Collector or Deputy Commissioner, in respect of cases arising under the provisions of the enactments specified in the First Schedule.
(2) Save as expressly provided in any enactment for the time being in force, the State Government may, by notification in the Official Gazette, direct that the Tribunal shall also have jurisdiction to entertain and decide appeals from and revise decisions and orders of such persons, officers and authorities in such other cases as the State Government may determine; and for that purpose the State Government may, by notification in the official Gazette add to, amend or omit, any of the entries in the First Schedule, and thereupon the Tribunal shall have jurisdiction in such matter and the jurisdiction of any other person, officers or authority therein shall cease.
(3) The State Government may, at any time, in like manner, cancel such notification or omit any entry from the First Schedule, and resume to itself such jurisdiction: Provided that nothing herein shall prevent the State Government after such resumption of jurisdiction from conferring any such jurisdiction on any other person, officer or authority.
(4) Notwithstanding anything contained in any other law for the time being in force, when the Tribunal has jurisdiction to entertain and decide appeals from and revise decisions and orders of any person, officer or authority in any matter aforesaid, no other person, officer or authority shall have jurisdiction to entertain and decide appeals from and revise decisions or orders of such person, or authority in that matter.
17. Review of orders of Tribunal- (1) The Tribunal may, either on its own motion or on the application of any party interested, and where the State Government is heard under Section 15 on the application by that Government, review its own decision or order in any case, and pass in reference thereto, such order as it thinks just and proper. Provided that no such application made by any party shall be entertained unless the Tribunal is satisfied that there has been the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of such party or could not be produced by him at the time when its decision was made, or that there has been some mistake or error apparent on the face of the record, or for any other sufficient reason: Provided further that no such decision or order shall be varied or revised, unless notice has been given to the parties interested to appear and be heard in support of such order.
(2) An application for review under subsection (1) by any part or, as the case may be, by the State Government shall be made within 90 days from the date of the decision or order of the Tribunal:
Page 3210 Provided that in computing the period of limitation, the provisions of the Indian Limitation Act 1908, applicable to applications for review of a judgment or order of a Civil Court shall, so far as may be, apply to applications for review under this section.
7. Upon reorganisation of the States and the State of Maharashtra having come into existence with effect from 1st May, 1960, the Act of 1957 was renamed as Maharashtra Revenue Tribunal Act. It was repealed by Maharashtra Land Revenue Code, 1966. Chapter XV of the MLR Code deals with Maharashtra Revenue Tribunal (for short, `the Tribunal'). The jurisdiction of the Tribunal is provided in Section 315 that reads thus-
315. (1) Notwithstanding anything contained in Chapter XIII of this Code or any other law for the time being in force, but subject to the provisions of this section, in cases arising under the provisions of the enactments specified in Schedule,-
(a) an appeal shall lie to the Tribunal from original orders or decisions made or passed by the Collector; and
(b) an application for revision shall lie to the Tribunal from an order or decision made or passed by the Collector in appeal, against an order of decision made or passed by any subordinate officer or authority.
(2) An application for revision under clause (b) of sub-section (1), shall lie on the following grounds only, that is to say-
(i) that the order or decision of the Collector was contrary to law;
(ii) that the Collector failed to determine some material issue of law; and
(iii) that there was a substantial defect in following the procedure laid down by law which has resulted in the miscarriage of justice.
(3) Save as expressly provided in any enactment for the time being in force, the State Government may, by notification in the Official Gazette, direct that the Tribunal shall also have jurisdiction to entertain and decide appeals from and revise decisions and orders of, such persons, officers and authority in such other cases as the State Government may determine; and for that purpose the State Government may, by notification in the Official Gazette, add to, amend or omit, any of the entries in Schedule J; and thereupon, the Tribunal shall have jurisdiction in such matter; and the jurisdiction of any other person, officer or authority therein shall cease.
(4) The State Government may, at any time in like manner, cancel such notification or omit any entry from Schedule J and resume to itself such jurisdiction: Provided that, nothing herein shall prevent the State Government after such resumption of jurisdiction from conferring any such jurisdiction on any other person, officer or authority.
(5) Notwithstanding anything contained in any other law for the time being in force, when the Tribunal has jurisdiction to entertain and decide appeals from, and revise decisions and orders, of, any person, officer or authority in any matter aforesaid, no other person, officer or authority shall have jurisdiction to entertain and decide appeals from and revise decisions or orders of, such person, officer, or authority in that mater.
Page 3211 (6) Every appeal or application for revision made made this section shall be filed within a period of sixty days from the day of the order or decision of the Collector. The provisions of Sections 4, 5, 12 and 14 of the Limitation Act, 1963, shall apply to the filing of such appeal or application for revision.
8. The Tribunal has been given power to review its decision or order in any case on its own motion or on the application of any party interested in the manner on the grounds provided therein. Section 322 of the MLR Code reads thus-
322. (1) The Tribunal may, either on its own motion or on the application of any party interested and where the State Government is heard, under Section 320 on the application by that Government, review its own decision or order in any case, and pass in reference thereto such order as it thinks just and proper:
Provided that, no such application made by any party shall be entertained, unless the Tribunal is satisfied that there has been the discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of such party or could not be produced by him at the time when its decision was made, or that there has been some mistake or error apparent on the face of the record, or for any other sufficient reason:
Provided further that, no such decision or order shall be varied or revised, unless notice has been given to the parties interested to appear and be heard in support of such order.
(2) An application for review under Sub-section (1) by any party or, as the case may be, by the State Government shall be made within 90 days from the date of the decisions or order of the Tribunal:
Provided that, in computing the period of limitation, the provisions of the Limitation Act, 1963, applicable to applications for review of a judgment or order of a Civil Court, shall, so far as may be, apply to applications for review under this section.
9. It may not be out of place to say that Chapter XV has been deleted from the MLR Code by the Maharashtra Act XXV of 2002. We are informed that litigation in this regard is pending before the Supreme Court. Be that as it may, we are concerned with the legal position prior to the deletion of Chapter XV.
10. At this stage, we may also notice Section 76 of the Tenancy Act which reads thus-
76. Revision.- (1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the [Maharashtra Revenue Tribunal] constituted under the said Act against any order of the Collector on the following grounds only-
(a) that the order of the Collector was contrary to law;
(b) that the Collector failed to determine some material issue of law; or
(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
Page 3212 (2) In deciding applications under this section the [Maharashtra Revenue Tribunal] shall follow the procedure which may be prescribed by rules made under this Act after consultation with the [Maharashtra Revenue Tribunal.]
11. We are benefited by the Division Bench judgment of this Court in the case of Raghunath Gambhirshet Wani v. Ganpat Motiram Mahar 55 BLR, 298 wherein the Bench speaking through M.C. Chagla, C.J. held that the Tribunal constituted under the Act of 1939 has jurisdiction to review its own decision or order passed in the revisional jurisdiction under Section 76 of the Tenancy Act. The Division Bench dealt with Sections 4 and 7 of the Act of 1939 and observed thus-
In our opinion that is not the proper interpretation to put upon Sections 4 and 7 of Act XII of 1939. That Act sets up a new Tribunal and Section 7 confers upon that Tribunal generally certain power, viz. the power and jurisdiction to review its own decisions. Section 4 defines its functions and so long as this Act stood on the statute book, the only functions which the Tribunal could discharge were the functions mentioned in Section 4, and in discharging those functions it could exercise the power of review conferred upon it under Section 7. But when the Tenancy Act was passed, further functions were allocated to the Tribunal, and one of those functions was the power to act as a revisional body in certain tenancy matters specified in the Tenancy Act. But when the functions of the Tribunal were increased, the Tribunal still had the power to review its decisions conferred upon it under Section 7. The power to review conferred upon it under Section 7 was not limited to the exercise of the functions enumerated in Section 4 but that power attached to the Tribunal as such and it could always be exercised by the Tribunal, whatever powers might be conferred upon it from time to time. Therefore, the power to review is the power that attaches to the Tribunal as such irrespective of what jurisdiction may be conferred upon it from time to time by the Legislature. Therefore, it would not be correct to say that as Section 76 of the Tenancy Act conferred a new power upon the Tribunal that power had to be exercised without the power of review conferred upon it under Section 7. As we said before, that power attached to the Tribunal as such and the Tribunal could review its own decisions in whatever capacity those decisions might be arrived at and whatever jurisdiction the Tribunal might be exercising. Therefore, in our opinion, when exercising its revisional powers under Section 76, the Tribunal has the power to review its own decisions.
12. Section 4 and Section 7 of the Act of 1939 are identical to Section 9 and Section 17 of the Act of 1959 as well.
13. The interpretation put upon Sections 4 and 7 of the Act of 1939 by M.C. Chagla, C.J. admits of no doubt. We fully agree with the aforenoted reasoning. In the case of Anoopchand, the judgment of the Division Bench in Raghunath was not brought to the notice of the learned Single Judge.
14. In so far as MLR Code is concerned, pertinently in Section 315 of the MLR Code, it is provided that in the cases arising under the provisions of the Page 3213 enactments specified in the schedule, interalia, an application for revision shall lie to the Tribunal from the order specified therein on the grounds set out in sub-section (2) thereof. The Bombay Tenancy and Agricultural Lands Act, 1948 is specified in the Schedule-K with the amendments by virtue of Section 334. However, Section 76 of the Tenancy Act has not been affected by the amendment. Section 322 empowers the Tribunal to review its own decision or order on its own motion or on the application of any party interested. Since the Tenancy Act is specified in Schedule `K' appended to the MLR Code, the revision application preferred under Section 76 of the Tenancy Act shall also be covered by Section 315 of the MLR Code and, therefore, by virtue of Section 322, the tribunal acquires the power to review its own decision or order.
15. Even if it be assumed that the revision application filed under Section 76 of the Tenancy Act is an independent revisional proceeding to which Section 315 of the MLR Code is not applicable, yet, in so far as power of review given to the Tribunal under Section 322 of the MLR Code is concerned, such power is given to the Tribunal generally and is not limited to the exercise of jurisdiction enumerated in Section 315 but that power has been conferred on the Tribunal as such and the same could be exercised as and when the case for reviewing its decision or order is made out under Section 322. The power of review has been conferred on the Tribunal by express provision contained in Section 322 of the MLR Code. Such power of review is given to the Tribunal as such whether it exercises the jurisdiction under Section 315 of the MLR Code or any other law.
16. Mr. Nakwa cited two judgments of the Supreme Court. In the case of Kapra Mazdoor EKta Union v. Birla Cotton Spinning and Weaving Mills Ltd. and Anr. , the Supreme Court in para 19 observed thus-
Applying these principles it is apparent that where a court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication.
In Harinagar Sugar Mills Ltd. and Anr. v. State of Bihar and Ors. (2006) 1 SCC 509, in para 11 of the report, the Supreme Court observed thus-
11. The High Court holding the review to be maintainable in view of the law laid down by this Court in Kunhayammed v. State of Kerala, dismissed the same on merits by observing that the appellants could not be permitted to reargue the same points which had been agitated before it earlier and rejected by the High Court by its order dated 30.8.2001. It was observed that the right of review is not a right of appeal in the sense that the points which have been decided earlier can be reheard again. It was held that there was neither any error of law apparent on the face of the record nor any similar legal infirmity justifying review of the order dated 30.8.2001.
Page 3214
17. It needs no elaboration that power of review is not inherent in the court and such power has to be vested in the court or quasi-judicial authority by express provision or by necessary implication. As noticed above, Section 322 of the MLR Code confers the express power of review to the Tribunal.
18. In what we have discussed above, we have no hesitation in holding that the power of review conferred upon the Tribunal under Section 322, is not limited to the exercise of functions enumerated in Section 315 but that power is attached to the Tribunal as such and it could always be exercised by the Tribunal whenever the case for review is made out. Such power includes review of the order passed under Section 76 of the Tenancy Act.
19. The view of the Single Judge in the case of Anoopchand Nathmal Baid is not the legally correct view and we, accordingly, overrule the said decision. The view of the Single Judge in Genu Laxman Shinde is in consonance with the legal position noticed by us above and, therefore, we approve the said view.
20. Our answer to the reference is : The Maharashtra Revenue Tribunal has jurisdiction to review its own decision given under the Bombay Tenancy and Agricultural Lands Act, 1948.
Let the writ petition be now posted before the Single Judge for its disposal.