2002(1) ALL MR 589
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
R.M.S. KHANDEPARKAR, J.
Dagadu Sakharam Patil (Deceased ) Vs. The State Of Maharashtra & Ors.
Writ Petition No.1735 of 1996
15th March, 2001
Petitioner Counsel: Shri. V.T. CHAUDHARI
Respondent Counsel: Shri. V. O. SAPKAL Shri. B. R. WARMA Shri. R.R. PATIL
Maharashtra Restoration of Lands to Scheduled Tribes Act (1974), S.6(3) r/w Ss. 7, 9A - Maharashtra Land Revenue Code (1966), Ss. 322, 315 - Appeal under - Scope - Whether includes power to review - No express power to review provided under Restoration Act - Contention that power to review can be exercised U/S.322 of the Code - Held, once Tribunal disposes off an appeal it becomes functus officio in relation to such an appeal and has no power to review its judgment - Mere fact that S.6 provided appeal to Tribunal does not mean that Tribunal would exercise all powers under Code in respect of matters arising under Restoration Act - Expression "in any case" in S.322 does not include cases dealt under Restoration Act - Thus contention unsustainable.Maharashtra Land Revenue Code (1966), Ss.322, 315.AIR 1970 SC 1273, 1986 Mh.L.J. 520 - Rel on. (Paras 7,8,9,14)
Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 [Para 5]
Anoopchand Nathmal Baid Vs. Maharashtra Revenue Tribunal at Nagpur, 1986 Mh.L.J. 520 [Para 5]
Vishwanathan Vs. Muthuswamy Gounder, AIR 1978 Madras 221 [Para 10]
Mrs. Indira Bhalchandra Gokhale Vs. Union of India, AIR 1990 Bombay 98 [Para 13]
Purapabutchi Rama Rao Vs. Purapa Vimalakumari, AIR 1969 AP 216 [Para 13]
2. The petitioners challenge the judgment and order dated 29.6.1982 passed by the Maharashtra Revenue Tribunal in Review applications No.5/1982 and 6/1982 thereby reviewing the judgment and order dated 29.9.1980 of the Tribunal in Appeal registered as Rev. Trb. No.34/1979. By the impugned judgment and order the tribunal while reviewing its earlier judgment and order dated 29.9.80 has remanded the matter to the Tahsildar, Shahada for holding fresh inquiry and to pass decision on merits in accordance with law on the dispute between the parties. The dispute relates to claim for restoration of land in accordance with the provisions of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter called as the said Act).
3. The learned Advocate for the petitioners has conceded that the petitioners do not press for the relief in terms of prayer clause (a) of the petition. The relief in that regard, therefore, stands rejected, as not pressed for.
4. Few facts, relevant for the decision, are that the respondent no.2 had filed an application under the said Act for restoration of suit lands comprising of Survey No.106 and 110 situated in the village Chikhali (Bk). It was the case of the respondent no.2 that the suit lands were allotted to his share by virtue of partition. The petitioners were tenants prior to the partition and in terms of the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called as the Tenancy Act), the land was transferred to the petitioners' predecessors. The respondent no.2, therefore, in terms of the said Act, had filed said application to the Tahsildar of Shahada for restoration. The Additional Tahsildar who inquired into the matter, held that the respondent no.2 being Mohammedan, is not a tribal within the meaning of the said expression under the said Act and, therefore, the facts disclosed in the matter did not affect the transfer of the land as it was not a case of transfer by a tribal in favour of a non tribal. Being aggrieved by the said order of the Tahsildar passed on 26.5.1978, the respondent no.2 preferred an appeal before the Maharashtra Revenue Tribunal under section 6 of the said Act which came to be registered as Rev. Trb. 34 of 1979. The tribunal by its judgment and order dated 29th September, 1980 refused to interfere in the order of the Additional Tahsildar and dismissed the said appeal by the said order. Thereafter, an Officer on Special Duty in Konkan Division, at Secretariat in Bombay by his letter dated 24.10.1991 addressed to the Registrar of Tribunal sought to bring certain facts to the notice of the tribunal and the said letter was registered by the tribunal as Suo Motu Review Petition and the same was allowed by the impugned order.
5. The impugned judgment and order is sought to be assailed firstly on the ground that the tribunal had no powers to review its order under the said Act and, therefore, the impugned judgment and order is without jurisdiction. Drawing attention to section 6 and 9 of the said Act, and placing reliance upon the decision of the Apex Court in the matters of Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji reported in AIR 1970 SC 1273 and Anoopchand Nathmal Baid v. Maharashtra Revenue Tribunal at Nagpur reported in 1986 Mh.L.J. 520, it was submitted by the learned Advocate for the petitioners that the provisions contained in the said Act no where provide for review powers to the tribunal and, therefore, the tribunal could not have exercised such powers to interfere in its own decision disposing of the appeal finally. Referring to section 322 and 315 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as the said Code), it was submitted that the provisions therein regarding review powers do not extend to the tribunal while exercising its jurisdiction in relation to the matters arising under the said Act. It was also submitted that even assuming that the powers for review are vested in the Tribunal while dealing with the matters under the said Act, the order in appeal was passed on 29.9.1980 and the application for review was made on 28.12.1981 and, therefore, considering the provisions of section 322(2) of the Code, the said application was hopelessly barred by Law of Limitation and, therefore, there was no question of exercising the powers of review beyond the period of 90 days from its order dated 29.9.1980 in appeal. On the other hand, it was sought to be contended on behalf of the respondent no.2 that the said Act being a social and beneficial legislation in the interest of the tribals, no fault can be found with the order of the tribunal attempting to give full effect to the provisions of the said Act by exercising the review powers. According to the learned Advocate appearing for the respondent no.2, section 6(3) of the said Act empowers the tribunal to follow the same procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908 and, therefore, any order passed in appeal would be subject to review and to that extent, powers of review by necessary implications are apparent from the provisions contained in sub-section (3) of section 6 of the said Act. According to the learned Advocate, applying golden rule of interpretation that would be the only meaning of sub-section (3) of section 6 of the said Act. He further submitted that the power to review may not be specifically conferred but, nevertheless, it can be apparent from the provisions of law contained in a statute by necessary implications. It was further submitted that section 9A which was subsequently added to the said Act, debars Advocates from appearing before the authorities under the said Act and that itself shows that it is the duty of the Government to take appropriate steps to help the tribals for whose benefit the said Act has been brought into force. Being so, no fault can be found with the tribunal exercising suo motu powers by converting the letter addressed to the Registrar of the Tribunal as an application for review of its earlier order and more particularly, when it is brought to the notice of the tribunal that the earlier judgment was apparently incorrect.
6. Section 6 of the said Act deals with the provisions relating to appeal and section 7 relating to revisional powers. Sub Section (1) of Section 6 provides that an appeal against any decision or order passed by the Collector may, notwithstanding anything contained in the Code, be preferred to the Maharashtra Revenue Tribunal constituted under the Code. The expression "Code" has been defined in section 2(1)(a) of the said Act to mean Maharashtra Land Revenue Code, 1966. Sub section (2) of Section 6 provides that every such appeal shall be made within a period of sixty days from the date of receipt of the decision or order of the Collector and the provisions of section 4, 5, 12 and 14 of the Limitation Act, 1963 shall apply to the filing of such appeal. Sub-section (3) thereof provides that in deciding an appeal under sub-section (1), the Maharashtra Revenue Tribunal shall exercise all the powers which a Court has subject to the regulations framed by that Tribunal under the Code and follow the same procedure which a Court follows, in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908.
7. The provisions of law contained in sub-section (3) of section 6 is sought to be interpreted by the respondent no.2 to empower the Tribunal to review its order. In that regard, stress is laid on the powers which are bestowed upon the Tribunal by the said provision to follow the procedure which the Court follows in deciding appeals or decrees and order passed under the Code of Civil Procedure. However, while seeking to interpret the said provision as giving powers of review by necessary implication on account of permissibility of applying the procedure which the Court adopts while dealing with the appeals against the decrees and orders passed under Code of Civil Procedure, the limitation imposed upon the scope of such powers by the very opening words of the said sub-section is totally ignored. The said sub-section opens with the words "In deciding an appeal under sub-section (1)". In other words, the provisions contained in sub-section (3) empowering the Tribunal to follow the procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, are relating to the powers of the Tribunal in the matter of disposing appeal and not regarding the procedure to be followed subsequent to the disposal of the appeal. Once, an appeal is disposed of by an authority, the authority becomes functus officio in relation to such appeal. The expression used in the said sub-section clearly discloses that powers empowering to follow the procedure followed by a Civil Court is in relation to "deciding an appeal" and it does not extend to the procedure subsequent to the decision in an appeal. Being so, the interpretation sought to be given by the respondent no.2 to subsection (3) to contend that the same by implication empowers the Tribunal to review its judgment and order, does not appear to be correct. The Apex Court in Patel Narshi Thakershi's case has held that it is well settled that the power to review is not inherent power and it must be conferred by law either specifically or by necessary implication. As already observed above, section 6(3) of the said Act neither specifically provides for power to review nor it discloses such power to the tribunal by necessary implication. The authority under the said Act does not enjoy any inherent power of review.
8. Attempts were made also to show that section 322 of the said Code provides for review powers to the tribunal and the tribunal deciding the matter under the said Act being tribunal constituted under the said Code, would by necessary implication enjoy the same review powers in relation to the orders passed under the said Act. Section 322(1) of the said Code provides that 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. Sub-section (2) thereof provides that 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 decision or order of the Tribunal, provided that, in computing the period of limitation, the provisions of the Limitation Act, 1963, applicable to the applications for review of a judgment or order of a Civil Court, shall, so far as may be, apply to applications for review under the said section. Bare perusal of section 322 of the Code discloses that the tribunal constituted under the said Code is empowered to review its decisions and orders, in any case. However, the expression "in any case" has to be read in context with the other provisions of the said Code. Obviously, the Code itself does not deal with the matters which are covered by the said Act. Besides, as rightly submitted by the learned Advocate for the petitioners, the said Act contains detailed provisions regarding the procedure relating to appeals and revision applications against the orders passed by the authorities under the said Act. Merely, because section 6 says that appeal would lie to tribunal constituted under the Code, that by itself cannot lead to a conclusion that the tribunal while exercising its jurisdiction under the said Act, would also exercise all the powers available to it under the said Code. This is very clear from the fact that the said Act makes elaborate provision in respect of procedure to be followed in deciding appeal under the said Act. Otherwise, the statute could have simply provided that the procedure to be followed shall be the same as provided in the said Code. The Legislature in its wisdom has restricted the powers of the authorities to decide appeals and revision applications and has excluded the powers of review. In such circumstances, the expression "in any case" in section 322 of the said Code cannot be interpreted to include those cases which are dealt with the under the said Act. In this regard certainly, the decision of the learned Single Judge of this Court in Anoopchand Nathmal Baid's case (supra) is of assistance. Therein, it was held thus :-
"Shri. Ahmad the learned Assistant Government Pleader referred to the provisions of section 322 of the Maharashtra Land Revenue Code, 1966, which permits the Maharashtra Revenue Tribunal 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 to review its own decision or order in any case, and pass in reference thereto such order as it thinks just and proper. The State Government, however, was not a party to the proceedings before the Maharashtra Revenue Tribunal in the revision application nor was it heard by issuing a notice to it under section 320 of the Maharashtra Land Revenue Code. The proviso to section 322 restricts the right of the party to move the Tribunal and the review can be only on 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 reasons and requires notice to be given to the party interested to appear or being heard in support of the order. Section 315(1), provides that the jurisdiction of the Tribunal shall be in cases arising under the provisions of the enactments specified in Schedule J which refers to four other Acts, but not to the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act. It is, therefore, clear that powers which the Maharashtra Revenue Tribunal can exercise, under the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act would be only those as have been conferred by that Act. The provisions of Chapter XV of the Maharashtra Land Revenue Code, 1966, do not, therefore, render any assistance to the learned Assistant Govt. Pleader for urging that the power of review can be exercised by the Maharashtra Revenue Tribunal, also in cases which arise under the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act."
9. Being so, the provisions contained in section 322 of the said Code cannot empower the tribunal while dealing with the matters under the said Act to exercise powers of review in relation to matters decided under the said Act.
10. The contention that the review powers could not have been exercised suo motu does not require any consideration in the matter in hand once it is held that the Tribunal, deciding the matter in appeal under the said Act, cannot exercise review powers. Undoubtedly, the learned Single Judge of Madras High Court in Vishwanathan v. Muthuswamy Gounder and others reported in AIR 1978 Madras 221, has held that the provisions contained in section 114 of C.P.C. does not confer on the Court general power to review its earlier order suo motu.
11. The petitioners are also justified in contending that even assuming that the tribunal had powers of review, there was absolutely no material on record to exercise such power of review beyond the period of limitation prescribed under section 322 of the Code. There was absolutely, no material on record to exercise such power beyond the period of limitation provided under subsection (2) of section 322 of the said Code. Undisputedly, section 322(2) of the Code provides that 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. The letter of the Officer on Special Duty in the case in hand was sent on 28.10.1981 in relation to the order dated 29.9.1980 which was sought to be reviewed. Being so, apparently, the request for review was beyond the period of 90 days and there was no justification for the same disclosed in the application.
12. The contention on behalf of the respondent no.2 that considering the fact that the said Act is a welfare legislation in the interest of the tribals and therefore, no fault can be found with the Government Officer seeking to invoke the review power as well as no fault can be found with the impugned order granting review in the interest of justice and to give full effect to the said beneficial legislation in favour of the tribals, is devoid of substance. Merely because the statute is a beneficial legislation, the provisions contained therein cannot be interpreted in such a manner as would amount to virtually legislate the provisions therein by the Court.
13. It was then contended and not without justification, by the learned Advocate for the petitioners that the remand of the matter could not be allowed for the purpose of enabling the parties to fill the lacuna and in that regard, reliance is sought to be placed in the decision of learned Single Judge of this Court in the matter of Mrs. Indira Bhalchandra Gokhale v. Union of India and another reported in AIR 1990 Bombay 98 and of Andhra Pradesh High Court in the matter of Parupabutchi Rama Rao vs. Purapa Vimalakumari reported in AIR 1969 AP 216. The learned Single Judge of this Court in Mrs. Indira Bhalchandra Ghokhale's case has held that the O.41, R.27, C.P.C. is not to be taken recourse to merely because a party at the stage of appeal finds that some material could have tilted the decision in its favour had it been produced . Similar is the decision of the Andhra Pradesh High Court in the case referred to above.
14. Considering the fact that the provisions contained in the said Act nowhere disclose power to review its orders by the appellate authority and that the provisions of section 322 of the said Code cannot be invoked to exercise such review powers in relation to the orders passed under the said Act, the impugned order cannot be sustained and is liable to be quashed and set aside.