Khodaji Vihaji Thakor vs Gujarat Revenue Tribunal, ...
2021 Latest Caselaw 5764 Guj

    C/LPA/593/2018                            JUDGMENT DATED: 10/06/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 593 of 2018

       In R/SPECIAL CIVIL APPLICATION NO. 6487 of 2018

                             With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
          In R/LETTERS PATENT APPEAL NO. 593 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

=============================================

1   Whether Reporters of Local Papers may be allowed
    to see the judgment ?

2   To be referred to the Reporter or not ?

3   Whether their Lordships wish to see the fair copy
    of the judgment ?

4   Whether this case involves a substantial question
    of law as to the interpretation of the Constitution
    of India or any order made thereunder ?

=============================================
               KHODAJI VIHAJI THAKOR & 4 other(s)
                             Versus
       GUJARAT REVENUE TRIBUNAL, AHMEDABAD & 3 other(s)
=============================================
Appearance:
MR VIMAL A PUROHIT(5049) for the Appellant(s) No. 1,2,3,4,5
Advocate Not Given (MA) for the Respondent(s) No. 4
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4.1
=============================================

 CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                        Date : 10/06/2021


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      C/LPA/593/2018                           JUDGMENT DATED: 10/06/2021




                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Clause 15 of the Letters Patent is at the instance of the unsuccessful writ applicants of a writ application and is directed against the order passed by the learned Single Judge of this Court dated 24.04.2018 in the Special Civil Application No.6487 of 2018 whereby the learned Single Judge declined to interfere with the challenge to an interim order passed by the Gujarat Revenue Tribunal and accordingly, rejected the writ application.

2. We have heard Mr. Mehul Suresh Shah, the learned senior counsel assisted by Mr. Vimal Purohit, the learned counsel appearing for the appellants (original writ applicants) and Mr. Chintan Dave, the learned AGP appearing for the respondents.

3. It appears from the materials on record that the subject matter of this litigation is a parcel of land bearing survey/plot no.161 situated at the village: Chiloda, Taluka & District: Gandhinagar. This parcel of land was alloted to one Shree Shankarbhai Lalubhai in his capacity as a Jividar upon depositing the amount of three pats of assessment. The said land was alloted on new and unalienable tenure basis. The entry with respect to such allotment order also came to be mutated in the revenue records vide entry no.1048 dated 16.10.1962. After the demise of Shankarbhai Lalubhai, the names of the present appellants came to be entered in the revenue records in their capacity as the legal heirs of late Shankarbhai. It appears that the appellants herein executed a

C/LPA/593/2018 JUDGMENT DATED: 10/06/2021

registered agreement to sale in favour of the respondent no.4 herein viz. Radar Indusing @Indrasing Naransing. The respondent no.4 not being an agriculturist, the said agreement to sell was declared as one executed in violation of section 63 of the Bombay Tenancy Act. In such circumstances, the Mamlatdar and ALT initiated suo moto proceedings under section 84C of the Tenancy Act. The proceedings in this regard reached up to the Gujarat Revenue Tribunal. The Tribunal, after hearing all the parties concerned, vide order dated 21.01.2015 allowed the revision application filed by the appellants herein. The proceeding initiated by the Mamlatdar and ALT under section 84C of the Tenancy Act came to be quashed and set aside.

4. It appears that two and a half years thereafter, the Collector, Gandhinagar preferred a review application before the Gujarat Revenue Tribunal along with an application to condone the delay in preferring such review application. The delay came to be condoned and vide an interim order dated 10.04.2018, directed the appellants herein to maintain status quo. It appears that the main review application is still pending for determination before the tribunal.

5. The appellants herein, being dissatisfied with the interim order of status quo passed by the tribunal dated 10.04.2018, came before this Court by filing the Special Civil Application No.6487 of 2018. The learned single judge declined to interfere with such interim order passed by the tribunal on the ground that the same had not determined any rights of the parties finally. In such circumstances, the learned single judge declined to interfere and rejected the writ application.

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6. Being dissatisfied with the order passed by the learned single judge, the appellants (original writ applicants) are here before this Court with the present appeal.

7. The short point for the consideration of this Court is whether the interim order passed by the Gujarat Revenue Tribunal in a review application is sustainable in law? In other words, whether the Gujarat Revenue Tribunal, constituted under the Bombay Revenue Tribunal Act, 1957, while exercising the powers of revision under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, has the power to review its own decisions?

8. The two questions posed by us for our consideration are no longer res integra in view of the two decisions of this Court; one in the case of Atulbhai Balabhai Patel vs. State of Gujarat reported in 1999 LawSuit(Guj) 261 and the other in the case of Revandas Ranchhodbhai Rathod vs. Jyotiben Wd/o Rameshbhai Madhusudan Thaker & Others reported in 2011 LawSuit(Guj) 415.

9. This Court has taken the view that the Gujarat Revenue Tribunal exercising the powers of revision under Section 76 of the Bombay Tenancy and Agricultural Lands Act,1948 does not have the power of reviewing its own decision on the basis of any statutory provisions contained in the said Act or in the Bombay Land Revenue Tribunal Act, 1957. The tribunal does not have the inherent power of substantial review.

10. At this stage, it would be necessary to refer to the relevant statutory provisions having a bearing on the

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controversy in the present petition. The relevant provisions of the Bombay Revenue Tribunal Act, 1957 are as under:

"Sub-section (1) of Section 9 of the Tribunal Act provides that 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. The said schedule does not include the Tenancy Act.

Sub-sections (2) and (3) of Section the Government to add to, amend entries in the first schedule.

Section 12 provides that nothing contained in this Act shall affect any powers or functions of the Tribunal which may be conferred by or under any other law for the time being in force to entertain and decide appeals, applications or revisions.

Section 13 provides that in exercising the jurisdiction upon it by or under this Act, the Tribunal shall have all the powers of a Civil Court for various specified purposes and for such other purposes as may be prescribed.

Section 14 empowers the President of the Tribunal, subject to the provisions of the Act and to the previous approval of the State Government, to make regulations for regulating the practice and procedure of the Tribunal.

Section 17(1) is required to be produced in its entirety and the same reads as under :-

"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 of 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."

Sub-section (2) of Section 17 provides for the period of limitation.

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Sections 18 and 19 read as under :-

"18. Manner of executing orders passed by Tribunal.- All orders passed by the Tribunal shall be executed in the same manner in which similar orders, if passed by the State Government or other competent authority, as the case may be, could have been executed."

"19. Exemption from Court fees.- Notwithstanding anything contained in the Court-fees Act, 1970 (VII of 1970) or any corresponding law in force in any part of the State of Bombay, no court fee shall be levied on any appeal or application madeto the Tribunal.

Provided that where the Tribunal exercises any powers or functions under any tenancy law or other special law and that law provides for the levy of court fee on any appeal or application to the Tribunal, nothing contained in this section shall affect the provision for levy of such fee."

The Bombay Revenue Tribunal Regulations, 1951 are framed in exercise of the powers conferred by Section 14 of the Tribunal Act. Regulation 55 reads as under :-

"55.Tribunal to follow provisions of Civil Procedure Code in matters not provided for in these Regulations : The Tribunal shall, in any matter not provided for in these regulations follow the procedure, as far as it is applicable, laid down in the Code of Civil Procedure, 1908."

As far as the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 are concerned, the following two provisions are relevant :

Section 76 of the Tenancy Act.

"76(1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957 an application for revision may be made to the Gujarat Revenue Tribunal constituted under the said Act against any order of the Collector except an order under Section 32P of an order in appeal against an order under sub- section (4) of Section 32G on the following grounds only:

(a) that order of the Collector was contrary to law, or

(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 or that there has been failure to take evidence or error in appreciating important evidence which has resulted in the miscarriage of justice.

(2) In the deciding applications under this Section, the Gujarat Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the

C/LPA/593/2018 JUDGMENT DATED: 10/06/2021

Gujarat Revenue Tribunal."

Section 78 of the Tenancy Act.

"78. (1) The Collector in appeal and the Gujarat Revenue Tribunal in appeal under section 75 and in revision under section 76 may confirm, modify or rescind the order in appeal or revision or its execution or may pass such other order as may seem legal and just in accordance with the provisions of this Act.

(2) The orders of the Collector in appeal or of the Gujarat Revenue Tribunal or of the State Government in appeal or revision shall be executed in the manner provided for the execution of the orders of the Mamlatdar and Tribunal under section 73."

11. In Atulbhai Balabhai Patel (Supra), a learned Single Judge of this Court, after due consideration of all the above referred provisions of law, ultimately held as under:

"7. Having heard the learned counsel for the parties, this Court finds considerable substance in the submission made by the learned counsel for the petitioners that the power of review under Section 17 of the Tribunal Act is available only in respect of cases arising under the enactments specified in the first schedule to the Tribunal Act. The provisions of Section 9 of the Tribunal Act clearly provide that the powers being conferred on the Tribunal to entertain and decide appeals and revisions under the Tribunal Act are only in respect of the enactments specified in the first schedule to the Tribunal Act. Admittedly, the Tenancy Act is not included in the first schedule to the Tribunal Act. Hence, the Tribunal while exercising the powers under the Tribunal Act, cannot deal with the cases arising under the Tenancy Act. Even under the provisions of Section 12 of the Tribunal Act, the Tribunal would not be in a position to entertain appeals or revisions under the Tenancy Act since the Tenancy Act is not one of the enactments in the first schedule. All that Section 12 of the Act does is merely to save the powers of the legislature to confer power on the Tribunal to decide appeals/revisions arising from orders under other enactments and that is how the power to hear revision applications under Section 76 of the Tenancy Act is conferred on the Tribunal by specific provisions of Section 76 of the Tenancy Act. In other words, what Section 12 of the Tribunal Act does is merely to save the powers or functions of the Tribunal conferred upon it or which may be conferred upon it by or under any other law to entertain and decide appeals/revisions or other proceedings. Section 12 of the Tribunal Act does not add to the powers or functions of the Tribunal under any other law. Hence, if the Tenancy Act does not confer any power of review upon the Tribunal while exercising the revisional power under Section 76 of the Act, Section 12 of the Tribunal Act cannot be invoked to give wider meaning to Section 17 of the Tribunal Act. The words "the Tribunal may .... .... review its own decision or order in any case......." merely mean that the Tribunal can review its own decision or order in any case arising under any enactment in the first schedule to the Tribunal Act. If the legislature intended that the Tribunal exercising revisional power under Section 76 of the Tenancy Act could exercise all the powers conferred

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upon the Tribunal under the Tribunal Act, the wording of sub-section (2) of section 76 of the Tenancy Act would have been quite different. The legislature could and would have simply provided that in deciding applications under Section 76 of the Tenancy Act, the Gujarat Revenue Tribunal shall exercise the same powers and follow the same procedure as are conferred on and prescribed for the Tribunal under Bombay Revenue Tribunal Act, 1957. It is to be noted that the power of review such as one conferred by the provisions of Order 47, Rule 1 of the CPC is a substantive power and is not a mere matter of procedure. The provisions of the Tenancy Act do not confer any such power of review on the Gujarat Revenue Tribunal. The revisional power of the Tribunal under Section 76 of the Tenancy Act itself is narrowly circumscribed. The Tribunal is not to exercise any original jurisdiction, but it merely sits in revision over the orders of the Collector, if the order is contrary to law or if the Collector failed to determine some material issue of law or if there was a substantial defect in procedure or there was failure to take evidence or there was error in appreciating important evidence which has resulted in the mis-carriage of justice. The legislature does not, therefore, appear to have intended to confer further powers as contained in the first proviso to Section 17 of the Tribunal Act which contains grounds of review, analogous to the grounds of review under Order 47 Rule 1 of the CPC. Hence, the contention of the learned counsel for the respondents that the power of review of the Tribunal exercising the revisional powers under Section 76 of the Tenancy Act must be inferred as arising out of the provisions of Section 17 read with Section 12 of the Tribunal Act cannot be accepted.

8. However, that is not the end of the matter as the question posed in this petition must be treated to have been covered by the decision of a Division Bench of this Court in the case of Ram Kirpal vs. Union of India & Anr., 39(3) GLR 1892. It has been held in the said decision that "as a general rule, a judgment, decree or final order once drawn up and signed, cannot subsequently be altered, varied or amended in any manner by the Court or Tribunal which pronounced it. However, there is a well recognized exception to the said general rule. It is a maxim of law that an act of a Court shall prejudice no man - actus curiae neminem gravabit.

Every Tribunal has an inherent jurisdiction, apart from statutory jurisdiction to correct any error committed by itself, It can invoke such jurisdiction and can exercise it in an appropriate case when its conscience is aroused and if it considers that without the exercise of such powers, the ends of justice would be frustrated."

The aforesaid ratio has been laid down by the Division bench after considering the decisions of the Apex Court in the case of J.K. Synthetics vs. Collector of Central Excise, 1996 (6) SCC 92, Satyanarayan Laxminarayan Hegde & Ors. vs. Mallika Arjun B. Tirimela, AIR 1960 SC 137 and Grindlay Bank Ltd. vs. Central Government Industrial Tribunal & Ors., 1980 (Suppl.) SCC 420 as well as the decision of the Apex Court in the case of S. Nagaraj & Ors. vs. State of Karnataka & Anr., JT 1993(5) SC 27.

It is further required to be noted that the Division bench has further made a distinction between substantive review and procedural review. The Division Bench has held that the power of procedural review is inherent in every Tribunal even in the absence of any statutory provision and that it is only for substantive review that a specific statutory provision is required to be inserted in the statute under which the Tribunal is set up or is

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exercising jurisdiction.

9. It is, therefore, required to be clarified that the expression "review" is used in the two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. When a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justiciae to prevent the abuse of its process, and such power inheres in every Court or Tribunal. The principle that the power to review must be conferred by statute either specially or by necessary implication is inapplicable to decisions of a Judicial Tribunal which is supposed to do complete justice to the parties before it. To extend the principle to decisions rendered by a Judicial Tribunal would indeed lead to untoward and startling results. This general principle is, of course, subject to the rider that such power of even procedural review may be excluded if there is any indication in the statute contrary to the aforesaid general principle. Having examined the scheme of the Tenancy Act, it is clear that there is nothing contrary to the aforesaid general principle to exclude the inherent power of the Tribunal for procedural review.

10. In view of the above discussion, it must be held that while exercising the revisional jurisdiction under Section 76 of the Tenancy Act, the Tribunal has the power of procedural review which inheres in every Tribunal, but it does not have the power of substantive review. The Tribunal, therefore, cannot rehear the matter on merits.

11. In view of the above discussion, it is held that while the Gujarat Revenue Tribunal exercising the powers of revision under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948 does not have the power of reviewing its own decision on the basis of any statutory provisions contained in the said Act or in the Bombay Revenue Tribunal Act, 1957, the Tribunal does have the inherent power of procedural review as explained by a Division Bench of this Court in the case of Ram Kirpal vs. Union of India & Anr. 39(3) GLR 1892."

12. The very same question of law fell for consideration before a Division Bench of this Court in the case of Revandas Ranchhodbhai Rathod (supra) to which one of us (J.B. Pardiwala,J) was a party. The proposition of law as laid down in the case of Atulbhai Balabhai Patel (Supra) was followed by the Division Bench but with one rider. The Division Bench observed that no court or tribunal can be regarded as powerless to recall or review its own order if it is convinced that the order was obtained through fraud or misrepresentation. Therefore, if it is a case of fraud or

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misrepresentation, only in such circumstances, the tribunal would be conferred with the powers to review its own order/decision. The principle of law which should be kept in mind in the cases of present type is that the power to review is not an inherent power, it must be conferred by law either specifically or by necessary implication.

13. We put a specific query to Mr. Chintan Dave, the learned AGP appearing for the State-respondents whether the review application has been filed before the tribunal on the ground of some fraud or on the basis of some newly discovered facts amounting to fraud of high degree. Mr. Dave, the learned AGP with his usual fairness pointed out that such is not the case. No fraud has been alleged for the purpose of asking the tribunal to review its decision of 2015. The substantive review is sought for on merits.

14. In such circumstances referred to above, we are of the view that if the review application itself cannot be said to be maintainable in law as the tribunal has no jurisdiction to undertake substantive review of its orders then the tribunal cannot be said to have jurisdiction even to pass an interim order pending the final disposal of the review application. We wonder whether this point was taken up before the learned single judge or not because we don't find any discussion in this regard in the impugned order passed by the learned single judge. However, the position of law being clear, we are of the view that the interim order of tribunal not being sustainable in law, the learned single judge ought not have declined to entertain the writ application and should have quashed the same.

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15. In such circumstances referred to above, this appeal succeeds and is hereby allowed. The impugned order passed by the learned single judge is hereby set aside. The Special Civil Application No.6487 of 2018 is hereby allowed. The interim order passed by the tribunal dated 10.04.2018 is hereby quashed and set aside. In view of this particular order passed by us today, the review application before the tribunal would also not survive.

16. The civil application also stands disposed of accordingly.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)

NEHA