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Patel Gordhanbhai Garbadbhai Vs. Patel Bhagwandas Sanabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR326
AppellantPatel Gordhanbhai Garbadbhai
RespondentPatel Bhagwandas Sanabhai and anr.
Cases ReferredIn R.G. Davidson v. Mohanlal Sindhi
Excerpt:
.....part of sub-section (1) and has argued that the tribunal has the jurisdiction to entertain a review application suo motu or on the application of a party interested and has also the jurisdiction to make any other on the review application as it thinks just and proper. dabhi who appears for the landlords has indeed made a strong attempt to challenge the finding recorded by the gujarat revenue tribunal on the question as to limitation. 11. it is necessary to note that the revisional jurisdiction which has been conferred upon the revenue tribunal by section 76 of the tenancy act is itself a limited jurisdiction it is within the ambit of that limited jurisdiction that the revenue tribunal has to exercise its jurisdiction to review its own order under sub section (1) of section 17 of..........the order dated 15th february 1973 had not applied its mind to the facts and law of the case. this review application was heard by the revenue tribunal. it may be noted that the order dated 15th february 1973 of which there view was sought was made by mr. h.k. oza, a member of gujarat revenue tribunal. since he had retired, when the review application was made, the review application was heard by mr. c.m. joshi. the revenue tribunal considered the plea as to limitation which was raised by the landlords and held that it was not sustainable. however, in the review application the learned member of the gujarat revenue tribunal reappreciated the evidence and recorded a different conclusion on be merits of the case. therefore, though he dismissed the contention as to limitation raised on.....
Judgment:

S.H. Sheth, J.

1. The petitioner is the tenant in respect of Section Nos. 31,32,33,37 and 39 of village Vantadi under Bhiloda Taluka of Sabarkantha District and of Section Nos. 76,78,79, 86 89 and 91 of village Dhuleta under Bhiloda taluka of Sabarkantha District. All the aforesaid survey numbers of village vantadi admeasure 20 acres and 18 gunthas. All the aforesaid survey numbers of village dhuleta admeasure 56 acres and 29 gunthas. The total is 77 acres-7 gunthas. The respondents are the landlords and they are brothers.

2. According to the petitioner, all the aforesaid lands were owned by the respondents and one Fulabhai on 1st April, 1957. The respondents were then minors. However, since one of the co-owners Fulabhai was major, according to the petitioner, the lands vested in him as the deemed purchaser. The respondents Nos. 1 and 2 filed an application under Section 31 read with Section 29 of the Bombay Tenancy and Agricultural Lands Act, 1949 (hereinafter referred to as the tenancy Act for the sake of brevity) for recovering possession of all lands on the ground that they require them bona fide for their personal cultivation. They had, prior to the institution of the aforesaid proceedings, terminated the tenancy of the petitioner by a notice dated 11th October 1962. The aforesaid proceedings were instituted by them on 18th October 1962. The mamlatdar of bhiloda decided the application by his order dated 15th November 1964 and held that it was not maintainable. He, therefore, dismissed it. The landlords appealed against that order to the Prant Officer, Himatnagar who by his order dated 16th April 1964 held that the petitioner had ceased to be the tenant in respect of all the lands except 8 acres-22 gunthas. He, therefore, ordered the tenant to surrender to the landlords under Section 15 of the tenancy Act all other lands admeasuring 68 acres-25 gunthas.

3. The tenant challenged that order in a revision application which he filed before the Gujarat Revenue Tribunal. The revenue tribunal by its order dated 28th march 1969 remanded the case to the Prant Officer, Himatnagar to take evidence on the question whether any of the lands which were the subject matter of those proceedings had been acquired by the State Government for Hathmati Reservoir and to determine how much land was left with the tenant for the purpose of continuing the aforesaid proceedings. On remand the Prant Officer by his order dated 20th September 1971 held that the tenant had ceased to be the tenant in respect of 68 acres and 25 gunthas because that much area he had been holding in excess of the ceiling area. So far as the remaining land admeasuring 8 acres and 22 gunthas was concerned, the tenant was allowed to continue in possession thereof. The prant officer did not decide, after remand, how much land had been acquired by the State Government for hathmati reservoir.

4. The tenant appealed against that decision to the Gujarat revenue tribunal the revenue tribunal by its order dated 15th February 1973 partially allowed the revision application and found that 64 acres and 2 gunthas were acquired by the Government for hathmati reservoir and that the tenant had in his possession land admeasuring 13 acres and 5 gunthas. The revenue tribunal, therefore, ordered that the possession of half of the said land should be handed over by the tenant to the landlords under Section 31 because the landlords were found to be bona fide requiring it for their personal cultivation the revenue tribunal while stating the details in its judgment held that Section No. 86 admeasuring 7 acres 16 gunthas and Section No. 89 admeasuring 5 acres-28 gunthas-both of village dhuteta had remained with the tenant the landlords felt aggrieved by this decision of the Gujarat Revenue Tribunal. They did not challenge it in a writ petition before this court. However, they filed before the Gujarat revenue tribunal an application for review of the said order on two grounds. It was contended that the Gujarat Revenue Tribunal had not considered the question of limitation and that the revenue tribunal while making the order dated 15th February 1973 had not applied its mind to the facts and law of the case. This review application was heard by the revenue tribunal. It may be noted that the order dated 15th February 1973 of which there view was sought was made by Mr. H.K. Oza, a member of Gujarat revenue tribunal. Since he had retired, when the review application was made, the review application was heard by Mr. C.M. Joshi. The revenue tribunal considered the plea as to limitation which was raised by the landlords and held that it was not sustainable. However, in the review application the learned member of the Gujarat Revenue Tribunal reappreciated the evidence and recorded a different conclusion on be merits of the case. Therefore, though he dismissed the contention as to limitation raised on behalf of the landlords, he reviewed the order made by his predecessor-in-office and set aside the earlier order on merits.

5. It is that order which is challenged by the tenant in this petition.

6. At the outset I may state that Respondent No. 1 has filed an affidavit-in -reply to this writ petition. The petitioner have filed an affidavit -in-rejoinder. In my opinion it is not permissible to the parties to me affidavits in reply arid in redivided and to place new facts on record because the subject mat of dispatches petition have been adjudicated upon by quasi judicial tribunals below whatever facts were hot pleaded before the tribunals below cawed not be added in order either to sustain the petition or to answer it. Whatever facts were pleaded by the, parties before the tribunals are already on record, in my opinion, therefore, the affidavits-in-reply and in rejoinder are thoroughly redundant and cannot be taken into account. I have therefore, completely ignored them. In my opinion, this Court be justified, in ignoring such affidavits because this Court is bound by the findings of fact recorded by the quasi judicial tribunals on merits.

7. The question which Mr. Majmudar, appearing on behalf of the tenant, has raised before me is whether the Revenue Tribunal has the jurisdiction to reappreciate the evidence and to rehear the matter in to the Bombay Revenue Tribunal Act, 1957.

8. In order to appreciate the contention which Mr. Majmudar has raised before me it is necessary to turn to Sub-section (1) of Section 17 of the said Act. It, inter alia, provisions as follows:

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 decisions was made, or that there has been some mistake or error apparent on the face of the record, or for any other sufficient reason.

It is not necessary for the purpose of this case to refer to the second provisio to Sub-section (1) and to Sub-section (2). Mr. Dabhi who appears for the respondents has placed strong reliance upon the principle part of Sub-section (1) and has argued that the Tribunal has the jurisdiction to entertain a review application suo motu or on the application of a party interested and has also the jurisdiction to make any other on the review application as it thinks just and proper. He has more particularly tried to point out to me that the power of reviewing its own suo motu is not the power which has been conferred upon the Civil Court under Order 47 of the Code of Civil Procedure. This distinction which Mr. Dabhi has pointed out to me is indeed a correct distinction. The jurisdiction to review its own decision conferred upon the Revenue Tribunal under Sub-section (1) of Section 17 is wider than the jurisdiction to review its own order conferred upon the Civil Court by Rule 1 of order 47 of the code of civil procedure inasmuch as the revenue tribunal has the jurisdiction to suo motu review its own order which the civil court does not have. However, I am not able to accede to the argument raised by Mr. Dabhi that the expression as it thinks just and proper used in the principal part of Sub-section (1) of Section 17 confers upon the Revenue Tribunal wide and plenary jurisdiction to review its own order in any manner as it thinks fit and to come to any conclusion on evidence and on law. In my opinion, the first proviso to Sub-section (1) restricts the amplitude of the jurisdiction to review its own order conferred by Sub-section (1) of Section 17 upon the revenue tribunal. When the principal part of Sub-section (1) is read in light of the first proviso it is quite clear that the revenue tribunal can review its own order on any of the following three grounds.

(1) discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of a party applying for review or could not be produced by him at the time when the decision was given.

(2) some mistake or error apparent on the face of the record.

(3) any other sufficient reason.

So far as this aspect of the case is concerned, it is quite clear that though the general language in which Sub-section (1) of Section 17 of the Bombay Revenue Tribunal Act, 1957 has been worded is different from the general language in which Rule 1 of order 47 of the Code of Civil Procedure has been worded, the grounds on which the power to review its own order can be exercised by the revenue tribunal are the same as those on which the power to review its own order can be exercised by the Civil Court. It appears from the judgment of the Revenue Tribunal pronounced in the review application that the learned member of the revenue tribunal has thought that there must be one of the three grounds existing in order to enable revenue tribunal to entertain a review application and as soon as there is such a ground in existence in order to enable the Revenue Tribunal to entertain a review application the Revenue Tribunal not only can decide upon the ground alleged for review but also can reappreciate and rehear the matter on merits and come to any conclusion as it thinks fit. I am not able to concur in this view expressed by the learned member of the Revenue Tribunal. If any one or more of the three grounds are existing, the Revenue Tribunal indeed has the jurisdiction to entertain the review application. Thereafter it certainly has the jurisdiction to decide upon the existence or validity of the grounds on the basis of which review of its earlier order has been sought. Having thus decided upon the grounds alleged before it the revenue tribunal has indeed the jurisdiction to reshape its earlier decision in light of the findings which it has recorded on the grounds alleged before it for review of its earlier order. None of the three grounds which have been mentioned in the first proviso to Sub-section (1) of Section 17 confers jurisdiction upon the Revenue Tribunal to rehear the matter entirely or to reappreciate the evidence all over again.

9. Before the Revenue Tribunal in the present review application two grounds were urged : (1) the Revenue Tribunal had not considered the question as to limitation (2) the Revenue Tribunal had not applied its mind to the merits of the case. So far as the question as to limitation was concerned, it appears to me from the impugned decision of the Gujarat Revenue Tribunal that it was based upon facts. The learned member who decided the review application found on facts that the revision application was with in time and rejected the landlords plea in that behalf. Having found that the revision application was filed with in time, the Revenue Tribunal ought to have stopped there and refrained itself from reappreciating the evidence and rehearing the Revision Application on merits. Mr. Dabhi who appears for the landlords has indeed made a strong attempt to challenge the finding recorded by the Gujarat Revenue Tribunal on the question as to limitation. The finding which the revenue tribunal has recorded on the question as to limitation is based upon evidence which is a pure finding of fact. It is not open to me in this petition to interfere with that finding. I am, therefore, unable to enter into the merits of the argument advanced by Mr. Dabhi on facts in order to assail the finding recorded by the Gujarat Revenue Tribunal on the question as to limitation.

10. Sofar as the second ground for review was concerned, non-application of mind to facts of the case is not a ground under Sub-section (1) of Section 17 for seeking review of the earlier order of the tribunal. Mr. Dabhi has indeed tried or elevate these called non-application of mind to the facts of the case to the height of want of jurisdiction it is impossible to accede to such an argument if the learned member of the revenue tribunal who decided the revision application had not applied his mind to the facts of the case and had arrived at a perverse conclusion it was open to the landlords to seek against it such remedy as they had under law and not seek review thereof Sub-section (1) of Section 17 does not confer jurisdiction upon the Revenue Tribunal to sit in judgment upon its earlier decision and to correct it as a court of appeal would correct the error of a subordinate court.

11. It is necessary to note that the revisional jurisdiction which has been conferred upon the revenue tribunal by Section 76 of the tenancy Act is itself a limited jurisdiction it is within the ambit of that limited jurisdiction that the revenue tribunal has to exercise its jurisdiction to review its own order under sub Section (1) of Section 17 of the Bombay revenue tribunal Act, 1957 what the revenue tribunal has done by its impugned order can be better appreciated by making a reference to some of the observations made by it this is what the Revenue Tribunal has stated in paragraph 7 of its judgment in the Review Application.

In this case Shri Oza had not pointed out any whereas to how the order of the assistant Collector was covered by any of the three factors provided for in Section 76 for a revisional interference by the Tribunal. Thus his order was without jurisdiction and on that ground also ge urged that the review would be entertainable.

The next observation which the Revenue Tribunal has made in the matter of entertaining the Review Application is as follows:

Though the order grounds urged by Shri Dabhi do get a support from the fact as disclosed in the case papers which would render the Tribunal open to the allegation of non-application of mind. I am not deciding the enterainment of the review application on those grounds as they would not be covered by the factor the error apparent on the face of the record. It is thus decided to entertain the review application on the ground of an error apparent on the face of the record in not mentioning or deciding the point limitation.

The third observation which the Revenue Tribunal has made immediately thereafter is most interesting and indeed starting.

Now having come to the conclusion that the review application is entertainable it is decided to set aside decision.

It my be noted at this stage that the Revenue Tribunal held it feat he revisiting, application, was filed within time. Having recorded that fiding no further question of setting aside the decision under review could arise. However, the Revenue Tribunal did so on re-appreciating the evidence and rehearing the case. The next observation which the Revenue Tribunal has made is as followed:

They do not har the decision of the main application the order on which was under review as after reviewing the order passed a fresh and appropriate order in the main application has to be passed on merits if the judgment under review is set aside.

Thereafter, the Revenue Tribunal has made the following observations:

I, therefore, now take up the consideration of the original revision application filed by Gordhanbhai Garbadbhai against which the point of limitation has been urged by Shri Dabhi saying that the copy of the Dy. Collector's decisions had been sent to Gordhanbhai as well as to the landlords by post on 23-9-71....

The finding which he has recorded on the point as to limitation is as followed:.the point of limitation raised by Shri Dabhi does not survive and it is decided in favour of Gordhanbhai Garbadbhai. The revision application is therefore held as filed within time.

In paragraphs 14 to 23 the Revenue Tribunal has proceeded to examine the merits of the case and come to the conclusion that the order which was made by it in the Revision Application was erroneous.

12. In addition, to assailing the finding as to limitation recorded by the Revenue Tribunal in its judgment in the Review Application Mr. Dabhi has raised before me two more points. He has tried to argue that the Revenue Tribunal when it decided the Revision Application had not applied its mind at all to the facts of the case. Secondly, the Revenue Tribunal had reversed the judgment of the Assistant Collector under revision on grounds other than those mentioned in Section 76 of the Tenancy Act. Even if both these grounds which Mr. Dabhi has urged before me had any substance, the landlords could have challenged the decision of the Revenue Tribunal in the Revision Application in this Court in a writ petition under Article 227 of the Constitution. They did not do so. On the ground of non-application of mind it was not open to the landlords to seek review from the Revenue Tribunal of its earlier order. On a close perusal of what the Revenue Tribunal has stated in paragraphs 14 to 23 of its impugned judgment it is quite clear that in the guise of a review application the Revenue Tribunal had entertained an appeal, reheard the matter and corrected its own earlier decision. It could not have been done.

13. Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh : [1964]5SCR174 the Supreme Court has observed as follows:

There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated or 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. A clear case of error apparent on the face of the record would be made out if without any elaborate argument an error could be pointed out and it could be said that there was a substantial point of law which stared one in the face and about which there could reasonably be no two opinions.

14. In Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. A.I.R. 1954 Supreme Court 526 the Supreme Court construed the expression 'any other sufficient reason' used in Order 47, Rule 1 of the Code of Civil Procedure. A similar expression has been used in Sub-section (1) of Section 17 of the Bombay Revenue Tribunal Act, 1957. Though the aforesaid expression appears to be an expression of wide amplitute the Supreme Court has observed that it must mean a reason sufficient on grounds at least analogous to those specified in the rule.

15. The effect of the principles laid down by the Supreme Court in the aforesaid two decisions is that a Court can review its earlier order, inter alia, on the ground of error apparent on the face of the record or on any other ground which is sufficient and analogous to two other ground specified in Order 47, Rule 1 of the Code of Civil Procedure. Next, while reviewing its earlier decision on these grounds it is not open to a Court of law to convert the review application into an appeal and to rehear the matter and arrive at a different decision purely upon appreciation of evidence. The power to review its earlier order is exercisable only for correcting a patent error. So far as 'error apparent' is concerned, if the Court discovers a patent error in its judgment on review of the decision it indeed corrects that error and reshapes its decision in light of the correction of the error which it has made. In my opinion, a Court of law cannot go beyond it and cannot reappreciate the evidence and arrive at a different conclusion from one which was arrived at by it at an earlier stage. To permit a Court of law to do so is to unduly and unjustifiably expand its power to review its earlier order and to make it synonymous with the appellate power. In my opinion, what is true in case of a Civil Court under Order 47, Rule 1 is true in case of the Gujarat revenue tribunal under Sub-section (1) of Section 17 of the Bombay Revenue Tribunal Act, 1957.

16. Mr. Dabhi has however made an attempt to show that once an error is discovered it is open to the reviewing court to deal with the case in any manner it thinks fit. In support of that contention of his he has cited before me a decision of the High Court of Bombay in Sainal Ranchhod v. Dullabh Dvarka (1873) 10 Bombay High Court reports 360. It is a short judgment in which a division bench of the High Court of Bombay has considered the amplitude of the power of review under the code of civil procedure, 1859. This is what the High Court of Bombay has stated in that decision:

We adhere to the decision in special appeal 200 of 1868 which is in accordance with what has been the invariable rule in this court, viz. that when a review has been admitted, the whole case is re-opened.

I am unable to apply the principle laid down in the aforesaid decision of the High Court of Bombay to the facts of this case firstly because the report of the case does not show in context of what facts the aforesaid observation was made by the High Court of Bombay, secondly, because the aforesaid decision does not state reasons which led the High Court of Bombay to make the aforesaid observation of a very wide amplitude and thirdly because it appears to me to be running contrary to the principle laid down by the Supreme Court in the case of Thungabhadm Industries Ltd. (supra) if is read the above quoted observation made by the High Court of Bombay so as to mean that the entire evidence can be reappreiated and that the matter can be reheard and redecided on review, it runs contrary to the principle laid down in the decision of the Supreme Court in Misthungabhadra Industries Ltd. (supra). If is read it in then arrowsense so as to mean that the power of review can be exercised inter alia, to correct an error apparent on the face of the record that is to say, a patent error and for reshaping the decision in light of the correction of such an error which the court makes, then indeed the principle laid down by the high court of Bombay in the aforesaid decision will not run contrary to the aforesaid decision of the supreme court. Since the report of the decision does not state facts it is not possible for me to decide upon the applicability of the aforesaid principle to the facts of this case.

17. The next decision to which Mr. Dabhi has invited my attention at Vinsh v Saui Chhedalal and Anr. : AIR1964All359 . A learned single Judge of the Allahabad High Court has taken the that the power of the court under order 47, Rule 8 is not restricted the narticu are ground on which the review is granted. In his opinion, the matter is left entirely to the discretion of the court. In this decision the learned judge has considered the question of law raised before him without stating in, his decision the facts in the context of which he was laying down the above stated principle.

18. In R.G. Davidson v. Mohanlal Sindhi : AIR1964All342 to which my attention has been invited by Mr. Majmudar another learned single judge of the High Court has held that success or judge while exercising the power of review cannot sit in appeal on the order of his predecess or and cannot review the order as if he would examine the decision on appeal.

IT It is clear from the two decisions of the supreme court referred to above that the power of reviewing its earlier decision is a limited power and can be exercised only inter alia for the purpose of correcting a patent error or on other sufficient grounds analogous to grounds specified in Rule 1 of order 47 the principle laid down in the aforesaid two decisions, in my opinion, apply to a case under Sub-section (1) of Section 17 of the Bombay Revenue Tribunal Act, 1957. What the Revenue Tribunal did while exercising its review power was to rehear the matter, to reappreciate the evidence and to reconsider the case of both the parties and to arrive at a conclusion different from what it had arrived at an earlier stage. On reading what the Revenue Tribunal has stated in paragraphs 14 to 23 of its impugned decision I have nodoubt in my mind that in the guise of exercising the power to review its earlier decision the Revenue Tribunal has really sat in appeal over its earlier decision and examined the entire case de novo that is not, in my opinion, the scope and ambit of Sub-section (1) of Section 17 of the Bombay Revenue Tribunal. Act, 1957, which governs the Gujarat Revenue Tribunal.

19. The decision on merits recorded by the revenue tribunal in the review application (Application No. Ten. C.A. 15/73) on 29th July 1974 is, for the reasons stated above, without jurisdiction and must be set aside. I, therefore, quash the above-mentioned decision of the Gujarat revenue tribunal in so far as it deals with the merits of the case and restore the decision of the revenue tribunal in Revision Application No. Ten B.A. 9/72 decided on 15th February 1973 rule is made absolute with costs.


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