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Pradyumansinhji Arjunsinhji Jadeja and anr. Vs. Patel Narshi Thakarshi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR322
AppellantPradyumansinhji Arjunsinhji Jadeja and anr.
RespondentPatel Narshi Thakarshi and ors.
Cases ReferredSyed Yakoob v. K.S. Radhakrishnan and Ors.
Excerpt:
- - the special mamlatdar recorded further evidence and, by his order, dated 19th october 1954, that officer held that, (1) the giras was joint, (2) that the memo, dated 20th october 1950, was not reliable, and (3) directed allotment of gharkhed land on the basis that the estate was joint. according to mankodi, the revision application dated 4th september 1956 came within the mischief of the first proviso to sub-section (2) of section 63. in order that that proviso may apply, one of the two conditions must be satisfied. there is a controversy between the parties as to whether, the first condition is or is not satisfied on the facts of the present case, and the controversy arises on the interpretation of the expression 'in any case' used at the commencement of the first proviso. in our.....n.m. miabhoy, c.j.1. this is a petition under articles 226 and 227 of the constitution of india. the petition has a long and chequered background, but, the point which arises for determination is a narrow one and that point is about the legality of the order dated 29th march 1962, passed by g. f. mankodi. commissioner, rajkot division, in exercise of the power vested in the government under section 63 of the saurashtra land reforms act, 1951 (hereafter called the reforms act), by which, that officer held that the order, dated 22nd october 1956, passed by the former state of saurashtra was void, and restored the order, dated 19th october 1954, passed by the special mamlatdar, gondal, under which, it was held that petitioners and their uncle were joint and that, therefore, they were not.....
Judgment:

N.M. Miabhoy, C.J.

1. This is a petition under Articles 226 and 227 of the Constitution of India. The petition has a long and chequered background, but, the point which arises for determination is a narrow one and that point is about the legality of the order dated 29th March 1962, passed by G. F. Mankodi. Commissioner, Rajkot Division, in exercise of the power vested in the Government under Section 63 of the Saurashtra Land Reforms Act, 1951 (hereafter called the Reforms Act), by which, that officer held that the order, dated 22nd October 1956, passed by the former State of Saurashtra was void, and restored the order, dated 19th October 1954, passed by the Special Mamlatdar, Gondal, under which, it was held that petitioners and their uncle were joint and that, therefore, they were not entitled to allotment of separate gharkhed lands.

2. The facts which are necessary to be stated to dispose of the petition are as follows: One Jethiji was the girasdar holding a giras estate known as Menghani Taluka, the giras being situated in Kotdasan-ghani Mahal. That Jethiji had three sons, named, (1) Jesangji, (2) Arjunsinhji, and (3) Mohansinhji. In the present petition, we will be concerned with the first two sons of Jethiji. On the death of Jethiji, the giras estate devolved upon the aforesaid three sons of Jethiji. Arjunsinhji died in or about 1945, leaving behind him two sons, Pradyumansinhji and Balwantsinhji, who are respectively petitioners Nos. 1 and 2. The case of Jesangji (hereafter called the uncle) and the two petitioners was that the estate had been divided between petitioners' father and their two uncles sometime in 1938, but, the Rojkam in that respect was executed only on 20th October 1950, in which, the alleged partition of the estate in 1938 was recorded. On 1st September 1951, the giras estate became abolished under the Reforms Act. Petitioners and their uncle contended that each of them was entitled to a separate allotment of gharkhed land on the ground that the giras estate was divided. Therefore, petitioners and their uncle separately made an application each on 25th November 1951 under Section 19 of the Reforms Act to the Special Mamlatdar, Gondal, for such allotment. The applications were number 552 of 1951-52 and 553 of 1951-52, respectively. It appears from the record that petitioners joined respondents Nos. 1, 2 and 3 in their application as opponents, alleging that they were their tenants, whereas their uncle joined some other persons, whom he alleged to be his own tenants, as opponents. Both the sets of tenants opposed the applications on the ground that the giras estate was still joint and that, therefore, petitioners and their uncle were only entitled to joint gharkhed land and not separate. The Special Mamlatdar, Gondal, held, on 4th July 1952, that the estate was joint. Petitioners and their uncle (hereinafter called the girasdars) preferred appeals to the Deputy Collector, Gondal, which appeals-were rejected on 14th May 1953. The girasdars went in revision to the Revenue Tribunal (hereafter called the Tribunal), On 28th of January 1954, the Tribunal passed an order remanding the matter to the Special Mamlatdar, Gondal, for further enquiry, giving certain directions to that officer. The Special Mamlatdar recorded further evidence and, by his order, dated 19th October 1954, that officer held that, (1) the giras was joint, (2) that the memo, dated 20th October 1950, was not reliable, and (3) directed allotment of gharkhed land on the basis that the estate was joint. The girasdars did not file appeals to the District Deputy Collector and, therefore, the appeals to that officer became time-barred. However, on 4th September 1956, petitioners alone filed an application to the Government, challenging the order, dated 19th October 1954, of the Special Mamlatdar. The application was under Sub-section (2) of Section 63 of the Reforms Act, which confers power of revision on the State Government. The Government concerned was the State of Saurashtra. That Government decided the revision application on 22nd October 1956, and passed on order, (1) setting aside the whole of the order of the Special Mamlatdar dated 19th October 1954, including the order passed against Jesang and in favour of his tenants, and (2) remanded the matter to the Mahalkari, Kotdasanghani to rehear and decide the case on its own merits. It appears that, in the meanwhile, the post of the Special Mamlatdar, Gondal, had been abolished and his jurisdiction became vested in the Mahalkari, Kotdasanghani. The latter officer decided the matter by his order, dated 21st December 1957, holding, (1) that the giras estate was separate, and (2) that petitioners were entitled to separate land for gharkhed. It appears that, after this order was passed, Jesang settled his dispute with the tenants claimed to be his own and, therefore, the tenants of Jesang did not file an appeal against the above order of the Mahalkari. Respondents 1,2 and 3, however, preferred an appeal to the District Deputy Collector, which was rejected by that officer by his order, dated 25th February 1958. Respondents Nos. 1, 2 and 3 preferred a revision application to the Tribunal. By its order dated 29th April 1958, the Tribunal rejected that application, holding, (1) that it had no jurisdiction to entertain the revision application, and (2) that the revision application must be filed under Section 63 of the Reforms Act to the State Government. Accordingly, on 24th May 1958, respondents 1, 2 and 3 made a revision application to the State of Bombay which had, in the meantime, inherited the jurisdiction of the State of Saurashtra, under Section 63 of the Reforms Act. That Government directed the. Commissioner, Rajkot Division, to hear the parties and to pass a suitable order. One P. K. Shunglu, who was then the Commissioner, Rajkot Division, heard the matter and made a report on 10th November 1958 to the State of Bombay, recommending that the order, dated 21st of December 1957 of the Mahalkari and the order, dated 25th February 1958, of the District Deputy Collector, should be set aside, as they were wrong on merits. The State of Bombay agreed with this report and directed the Commissioner, Rajkot Division, by its order, dated 1st May 1959, that the parties should be heard as to why the above two orders should not be cancelled as proposed by the Government. M. G. Monani, the then Commissioner, heard the parties and he made a report on 28th September 1959 to the State of Bombay, recording, inter alia, the argument advanced on behalf of respondents 1, 2 and 3 that the revisional order dated 22nd October 1956 passed by the State of Saurashtra was void but without himself making any recommendation in that regard. However, on or about 19th July 1960, the State of Gujarat, which had, in the meantime taken the place of the State of Bombay, delegated its function under Section 63 of the Reforms Act by a notification to the Commissioners of Divisions and, therefore, the matter came back to the Commissioner, Rajkot Division, for passing of suitable order on the revision application dated 24th May 1958 of respondents 1, 2 and 3. By its letter, dated 6th November 1960, the State of Gujarat informed the parties to contact the Commissioner. On 29th March 1962, G. F. Mankodi, Commissioner, Rajkot Division, passed the impugned order. As already indicated, by that order, that officer held that the order, dated 22nd October 1956, passed by the former State of Saurashtra, was void, and restored the order, dated 19th October 1954, passed by the Special Mamlatdar, Gondal, which had been set aside by the above order dated 22nd October 1956. The present petition is directed against the above order dated 29th March 1962.

3. The petition, as originally framed, was only under Article 227, but, later on, it was amended so as to invoke the jurisdiction of this Court also under Article 226 of the Constitution. By the amendment, petitioners challenged the vires of the Bombay Commissioners of Divisions Act, under which, G. F. Mankodi had acted, and the power of the State Government to delegate its authority under Section 63, Sub-section (2), of the Reforms Act to the Commissioner. Mr. Nanavati, Learned Counsel for petitioners, fairly conceded that he was not able to press the aforesaid two challenges in view of the decision of this Court in Kanaiyalal Maneklal Chinai and Ors. v. The State of Gujarat and Ors. reported in VII G.L.R., page 717, and the decision of their Lordships of the Supreme Court in the case of Arnold Rodricks and Anr. v. State of Maharashtra and Ors. reported in : [1966]3SCR885 . Mr. Nanavati, therefore, concentrated his attack upon the legality of the order dated 29th March 1962 passed by Mankodi.

4. Now, the impugned order is based solely on the ground that the order dated 22nd October 1956 is void. The ground on which. Mankodi has held it to be void is that the State of Saurashtra had no jurisdiction to entertain the revision application dated 4th September 1956 on the ground that the Tribunal had dealt with the case at an earlier stage which ended in the Tribunal's order dated 28th January 1954. According to Mankodi, the State of Saurashtra was deprived of its jurisdiction under Sub-section (2) of Section 63 because of the aforesaid event. This view of Mankodi is based upon proviso (i) of Sub-section (2) of Section 63. It will be convenient to reproduce Sub-sections (1) and (2) of Section 63 at this stage:

63. -Government's power of control and revision:

(1) In all matters connected with this Act Government shall have the same authority and control over Mamlatdars and Collectors acting under this Act as they have and exercise over them in the general and revenue administration.

(2) The Government may call for and examine the record of any inquiry or proceedings of the Mamlatdar or the Collector acting under this Act, for the purpose of satisfying itself as to the legality or propriety of any decision and, if in any case, it shall appear to Government that any decision or order or proceedings so called for, should be modified, annulled or reversed, it may pass such order thereon as it deems fit;

Provided that the Government shall not pass any order in exercise of its powers under this sub-section:

(i) in any case in which an application for revision against any decision or order of the Collector has been made under this Act to the Revenue Tribunal or until such application is barred by limitation;

(ii) in any case in which an appeal against any decision or order of the Mamlatdar has been preferred under this Act to the Collector or until such appeal is barred by limitation.

According to Mankodi, the revision application dated 4th September 1956 came within the mischief of the first proviso to Sub-section (2) of Section 63. In order that that proviso may apply, one of the two conditions must be satisfied. One condition is that there must be an application for revision made to the Revenue Tribunal. Another condition is that such application must be barred by limitation. Now, there is no doubt whatsoever that the second condition was not applicable to the facts of the present case on the date on which petitioners made the application dated 4th September 1956. An application to the Tribunal from the order dated 19th October 1954 was already barred. There is a controversy between the parties as to whether, the first condition is or is not satisfied on the facts of the present case, and the controversy arises on the interpretation of the expression 'in any case' used at the commencement of the first proviso. According to Mankodi, whose view is being supported by Mr. Vakharia and Mr. Sompura, learned Assistant Government Pleader, the expression 'in any case' means a case that originally started before the Mamlatdar. The contention is that, if there is any such case which has, at any stage, gone for revision before the Tribunal, then, the jurisdiction of the Government under Sub-section (2) is barred for ever in regard to that case. The argument is that, the proviso must be so construed that, in any case, arising under the Reforms Act, if a matter has once at any stage been carried before the Tribunal, then it is only the latter authority which can revise any decision or order passed at any subsequent stage in the proceeding, and the jurisdiction of the Government is completely ousted by the fact that one single revision application has been filed at any stage in such proceeding. We have no hesitation in holding that proviso (i) is not susceptible of such an interpretation at all. If we read the main portion of Sub-section (2), it is quite clear that that sub-section confers power upon the State Government to revise 'any decision or order...or proceeding. ' by passing suitable orders modifying, annulling or reversing such decision, order or proceeding. Now, it is quite clear that the power to revise the decision or order or proceeding is in regard to any decision or order or proceeding. The main part of Sub-section (2) does not limit the power of the Government to revise any decision, or order, or proceeding passed at any stage. The conferment of the power is couched in general terms. The power confers jurisdiction to call for and examine the record of any enquiry or proceeding and the purpose for which the power is conferred is to satisfy the Government 'as to the legality or propriety of the proceeding of the officer concerned. ' Sub-section (2) then proceeds to say that, after the record is so called for and examined 'if in any case it shall appear to the Government that any decision or order or proceedings so called for should be modified, annulled or reversed, it may pass such order thereon as it deems fit'. Now, the expression 'if in any case' used in the main part of the sub-section must necessarily refer not to the case as it originally started, but, must refer to the case as then existing at the stage at which the legality or propriety of the impugned decision or order or the regularity of the proceeding has got to be determined. The expression 'in any case' used in Sub-section (2) is not capable of meaning, as is contended for by Mr. Vakharia and Mr. Sompura, as refering to a proceeding at any interim stage. In our judgment, therefore, the expression 'in any case' used in the first proviso must be construed in the same sense in which it is used in the main part of the Sub-section (2). We are unable to see any good reason as to why the Legislature should have thought of depriving a party of the benefit of the jurisdictional authority of the Government, simply because, at some earlier stage, the proceeding had been dealt with by the Tribunal. The subject of the Tribunal's jurisdiction is dealt with by Section 52. It is true that, the Tribunal has been conferred all powers to revise the orders of the lower authorities. But, it is quite clear that, the parties have been given the further right of invoking the revisional jurisdiction of the Government in those cases where, for some reason, the parties have not been able to move the jurisdiction of the Tribunal in regard to any decision or order recorded by the lower authority. The revisional power which is conferred upon the Government is of the widest amplitude and is intended to empower the Government to correct errors committed by the lower authorities. The only limitations which have been placed upon that revisional jurisdiction are that the revisional jurisdiction cannot be exercised so long as the right to prefer an appeal or an application to the Tribunal subsists and is not to be exercised in a case where the Tribunal itself is seized of that particular case. In our judgment, the expression 'case' must necessarily mean the case in regard to which the decision or order or proceeding is impugned, and the intention appears to be that, if any decision or order or proceeding is already the subject matter of a revisional application before the Tribunal or is one which could be dealt with by it on account of the fact that the limitation for preferring such application has not become time-barred, then, the Government cannot exercise its jurisdiction. But, the moment one gets a decision or order or proceeding, in regard to which the above limitations are not to be found, then, the intention appears to be that such decisions or orders or proceedings may be dealt with by the Government in the interest of justice, if its jurisdiction is invoked or if it is minded to do so. Mr. Vakharia, however, supports the finding of Mankodi on a few more grounds. The main ground which is urged by Mr. Vakharia is that, the power which the Government exercises under Sub-section (2) of Section 63 is essentially an administrative power and, therefore, the intention of the Legislature is to place a clog upon that power, in case the jurisdiction of the quasi-judicial tribunal, like the Revenue Tribunal, happens to be invoked at an earlier stage. We have no hesitation in holding that Mr. Vakharia is not right in contending that the power exercised by the Government under Sub-section (2) of Section 65 is an administrative power.

5. The main contention of Mr. Vakharia is that, the power being to call for the record 'for the purpose of satisfying itself as to certain matters, the power that is conferred on the Government is necessarily a power to satisfy itself subjectively about the legality or propriety of the matter. He contends that, in every case where a matter is left to the subjective satisfaction of an authority, the power is of an administrative nature. Mr. Vakharia supplements this argument by reference to the latter part of Sub-section (2), wherein, in regard to the power to modify, annul or reverse a decision or an order, the Legislature has used the expression ' it shall appear to the Government' necessary to do so. In support of this contention, Mr. Vakharia relies upon the case of In re. Jayantilal Nathubhai Parekh, reported in A.I.R. 1949 Bombay, page 319. In that case, a Division Bench of the Bombay High Court, whilst construing Section 2 of the Bombay Public Security Measures Act VI of 1947, made the following observations at page 324:

Section 2, which permits the detention of a person says that an order for detention can be made if the Provincial Government, or where the power is delegated to its subordinate officer then the said officer is satisfied that the person who is to be detained is acting in a manner prejudicial to the public peace and the maintenance of public order or the tranquility of the Province or any part thereof; and whenever words like 'satisfaction' or 'it appears' have been used in an enactment or a regulation, the interpretation which has now been established is that the 'satisfaction' is undoubtedly a condition precedent to the exercise of the powers under the section. But all the same, what the Courts have got to see, when subsequently an application is made challenging the existence of that satisfaction, is whether there was the subjective satisfaction of the authority which made the order and not whether there were grounds upon which a reasonable person could be satisfied that it was necessary to make the order; such being at times called an objective test of the satisfaction.

It is difficult to see how the aforesaid passage can support the contention that the power exercised in the above circumstances is administrative in nature. But, even supposing that the power which was being exercised under Section 2 of the Public Security Measures Act is an administrative power, there is a clear distinction between the exercise of that power and the power which is vested under Sub-section (2) of Section 63. It is quite clear that when the authority exercises the power under Section 2 of Act VI of 1947 aforesaid, the matter is between the citizen on the one hand and the authority on the other, whereas, when the power is being exercised under Sub-section (2) of Section 63, there is a Us between two citizens in which an authority is called upon to decide between the rival claims made by the parties in regard to a certain matter. Now, prima facie whenever such is the case, the exercise of the power is quasi-judicial in nature rather than administrative. When we turn to the conferment of revisional powers upon the High Court made by Section 435 of the Criminal Procedure Code and Section 115 of the Civil Procedure Code, we find that exactly the same expressions have been used in those two statutes as they have been used in Sub-section (2) of Section 63, and, it is now settled law that when the High Court exercises its power under the aforesaid two statutes, the power is judicial in nature in spite of the fact that the words like 'satisfaction' or 'appearing' have been used in those two sections. But contends Mr. Vakharia that, the real test is whether there is a duty to act judicially, and when the aforesaid words are used, the presumption would be that there is no duty to act judicially. Mr. Vakharia is right in contending that this is also an important test. But, in our judgment. Mr. Vakharia is not right in contending that when the aforesaid words are used, automatically it follows that there is no duty to act judicially. In deciding this factor, the nature of the power is also an important factor to be taken into consideration and, in our judgment, having regard to the function which the Government is called upon to perform and having regard to the matters in which the Government is required to act, there cannot be any doubt that the intention of the Legislature must be that the Government must act judicially in spite of the use of the aforesaid words. It cannot be disputed that the powers, which the lower authorities exercise in regard to the matters over which revisional jurisdiction is conferred in favour of the Government, are quasi-judicial powers. The Mamlatdar determines the right of citizens. An aggrieved citizen has been given the power to prefer an appeal and it is either the original or the appellate order which becomes the subject matter of the revisional jurisdiction of the Government. It would be odd if the Legislature were suddenly to convert a quasi-judicial proceeding into an administrative proceeding and confer power upon an administrative authority to disturb the findings solemnly recorded by a quasi-judicial authority.

6. There is one more point which Mr. Vakharia relied on. He contends that the word 'proceeding' in Sub-section (2) is wide enough to include a proceeding before a judicial tribunal, and if we were to hold that the Government is exercising quasi-judicial functions, then, the Government will have the power of disturbing the proceeding of the Tribunal and that having regard to the provisions contained in Section 52, such could not have been the intention of the Legislature. In our judgment, there is no merit in this contention. Sub-section (2) does not leave any doubt that the only record which the Government is empowered to call for and examine is the record 'of any enquiry or proceedings of the Mamlatdar or the Collector acting under the Act. ' Alternatively, Mr. Vakharia contends that, in any case, there will be two rival authorities having jurisdiction over the proceedings of the Mamlatdar and the Collector inasmuch as the Tribunal also has the same authority. It is not necessary for us to examine this contention in detail. It is sufficient to point out that it is exactly in order to avoid a conflict of this particular kind that the Legislature has wisely introduced the limitations contained in the proviso. Under the circumstances, in our judgment, the contention of Mr. Vakharia that the power under Sub-section (2) of Section 63 is administrative, deserves to be rejected.

7. Alternatively, Mr. Vakharia contends that, even if our finding is correct that the order dated 22nd October 1956 is not void, we have no power to disturb the finding recorded by Mankodi by his order dated 29th of March 1962 that it was void because the error which Mankodi has committed cannot be said to be an error apparent on the face of the record. Relying upon the authority in Syed Yakoob v. K.S. Radhakrishnan and Ors. reported in : [1964]5SCR64 , Mr. Vakharia contends that a writ of certiorari cannot issue unless this condition is satisfied and, in his submission, the error is not apparent on the face of the record. Mr. Vakharia contends that the view which has appealed to Mankodi is a reasonable view which can be taken about the construction of the expression 'in any case' used in the first proviso and, therefore, the error cannot be said to be apparent. One of the tests which is applied for the purpose of determining as to whether the error is apparent on the face of the record or not is to find out whether the impugned provision is capable of two constructions. In our judgment, the error which has been committed by Mankodi is a jurisdictional error. As a result of the erroneous view that he has taken about the power of the State of Saurashtra in passing the order dated 22nd October 1956, it is quite clear that Mankodi has assumed to himself the power of reviewing that order. If the order dated 22nd October 1956 was within the jurisdiction of the State Government, then, Mankodi, exercising the same power as the State of Saurashtra did, will have no power of setting aside that order, as he was exercising the same power as the State of Saurashtra did. In this connection, it is noteworthy that Mankodi has not rest content by merely holding that the order dated 22nd October 1956 was void, but, he has gone one step further by making a further order to the effect that the order dated 19th October 1954 should be restored. From another stand point, it is also equally clear that, as a result of the aforesaid error, Mankodi has refused to exercise the jurisdiction which otherwise would be vested in him if he had not entertained the aforesaid erroneous view. If the order dated 22nd October 1956 is not void, then, there is no doubt whatsoever that the subsequent proceedings which were taken before the Mahalkari and the District Deputy Collector, which ended in the orders dated 21st December 1957 and 25th February 1958 respectively, would be valid orders and the last order dated February 25th, 1958 could be made a subject matter of a revision application under Section 52 of the Reforms Act and if the limitations placed in the first proviso to Sub-section (2) of Section 63 are not operative, the same can be made the subject matter of a revisional application under Sub-section (2) of Section 63. As a result of the aforesaid erroneous order of Mankodi, it is quite clear that the aforesaid two orders, dated 21st December 1957 and 25th February 1958, have remained to be considered by the revisional authority which such authority was bound to consider, provided, the requirements of the statute are satisfied. Under the aforesaid circumstances, we are not in a position to uphold the contention of Mr. Vakharia that even if the view which was taken by Mankodi is erroneous, the order passed by him should not be dealt with by us by issuing a writ of certiorari.

8. For the above reasons, we have come to the conclusion that the impugned order dated 29th March 1962 is erroneous in law and requires to be quashed. We propose to pass such an order.

9. That brings us to the next question as to what further order should be passed in order that this unfortunate dispute between petitioners and respondents Nos. 1, 2 and 3 may end. Ordinarily, the order would be that the matter should be remanded to the Government to be dealt with under Sub-section (2) of Section 63 of the Reforms Act. But, both the sides, including Mr. Sompura, learned Assistant Government Pleader, are agreed that the matter should not be remanded to the Government for being dealt with under the latter provision and, in our judgment, very rightly so. There is no doubt whatsoever that, having regard to the fact that respondents 1, 2 and 3 had preferred a revision application against the order dated 25th February 1958, the first proviso to Sub-section (2) of Section 63 would be operative and the jurisdiction of the Government to revise the latter order would be barred. In that view of the matter, both sides are agreed before us that the order which was passed by the Tribunal on 29th of April 1958 was an erroneous order and that, acting under Article 227 of the Constitution, we should quash that order and direct the Tribunal to proceed further with the revision application of respondents Nos. 1, 2 and 3. We understand that the revision application is No. 87 of 1958 which was filed before the Bombay Revenue Tribunal, We have had the benefit of reading the judgment delivered by the Revenue Tribunal in which it held that it had no jurisdiction to deal with the order dated 25th of February 1958 in exercise of its revisional jurisdiction. We will just mention in a moment the reason why the Tribunal held so. We may mention that, Learned Counsel on both sides agree before us that that reasoning is erroneous and requires to be set aside. Now, the reason which found favour with the Tribunal for holding that it had no jurisdiction in the aforesaid matter was that, in its view, when in any matter arising under the Act the revisional jurisdiction of the State Government is invoked at any stage under Sub-section (2) of Section 63, then, the exercise of such jurisdiction must terminate necessarily at that jurisdictional stage. In the view of the Tribunal, therefore, if a remand is made by the Government in the exercise of its revisional jurisdiction under Sub-section (2) of Section 63, then, the correct procedure is that any order which is passed as a result of the remand must be reported back to the Government and the latter, in the exercise of the aforesaid power, must pass final orders thereon. Now, in the present case, when the Government passed the order dated 22nd October 1956, there is not the slightest doubt that, the Government directed that fresh proceedings must start before the Mahalkari. There is no doubt that the intention of the Government was that any fresh order which the Mahalkari would make would itself be subject to the same process which any original order passed by that authority would be subject to in the exercise of the appellate or revisional jurisdiction of higher authorities. The remand order has been understood in that particular manner by the parties themselves. It was for this reason that an appeal was filed without any protest from the order of the Mahalkari to the District Deputy Collector. Therefore, the order of remand was not one in which the original revisional proceeding had been kept intact and the lower authorities were only called upon to make report to the revising authority. If and when such an order is passed, it may be that the Tribunal may not have any jurisdiction to deal with an order passed by the lower authority under such circumstances. But, having regard to the fact that the revisional proceeding under Sub-section (2) of Section 63 terminated before the Government and was no longer pending, and that, the Government had directed fresh orders to be passed by the lower authorities, the question for consideration is, whether there is anything in Sub-section (2) of Section 63 which keeps the jurisdiction of the Government alive in spite of the fact that it had passed an order terminating the same. Now, we have read and re-read Sub-section (2) of Section 63 for the purpose of discovering whether there is anything in that sub-section which supports the view taken by the Bombay Revenue Tribunal and, with due respect, we are unable to find anything in that sub-section which supports the aforesaid view. We are unable to find any limitation in that sub-section upon the power of the Government to order a remand terminating its own proceedings and calling upon the lower authorities to decide the matter afresh. Under the circumstances, in our judgment, the view which was taken by the Bombay Revenue Tribunal in its judgment delivered on 29th April 1958 is clearly wrong and requires to be set aside in the interests of justice, because, it is quite clear that if we were not to vacate that judgment and to restore Revision Application No. 87 of 1958, manifest injustice will be done to respondents Nos. 1,2 and 3 inasmuch as they will be without any remedy to have the correctness of the appellate order dated 25th of February 1958, by which they have been aggrieved, decided in accordance with law, inspite of the fact that they had taken regular proceedings, within the period of limitation to have that matter decided by the appropriate authority.,

For the aforesaid reasons, we quash the impugned order dated 19th Match 1962 passed by Mankodi and, in the exercise of our power under Article 227 of the Constitution, further quash the order of the Bombay Revenue Tribunal dated 29th of April 1958, passed by it in Revision Application No. 87 of 1958, and direct that the Gujarat Revenue Tribunal shall proceed to determine the aforesaid application in accordance with law.

10. Having regard to the circumstances of this case, each party will bear its own costs. Rule made absolute to the extent mentioned in this judgment. Each party will bear its own costs.


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