THAKORE SAHEBKHANJI HETAMKHANJI v. STATE — 1964 DIGILAW 54 (GUJ)

N. K. VAKIL, J. ( 1 ) SPECIAL Civil Application No. 295 of 1962 and Special Civil Application No. 355 of 1962 raise common questions of law that would govern the facts of the two cases. They have been argued before me at the same time and the learned advocates appearing on behalf of the parties in both are the same and they have requested that the matters may be dealt with together and disposed of by one judgment I find that there will be no difficulty in doing so. I shall however deal with certain set of facts of the two cases separately wherever they require separate consideration. ( 2 ) SPECIAL Civil Application No. 295 of 1962 deals with the estate of the ex-Thakore of Bihora Taluka Sankheda District Baroda. Special Civil application No. 355 of 1962 concerns the estate of the ex-Thakore of Bhilodia Taluka Dabhoi District Baroda. It is alleged by both the Thakores that the merger agreements were made by them and the Union of India on the 10th June 1948 by which the administration of the said estates passed on to the Central Government and the estates ultimately merged in the Province of Bombay. After the said merger the Bombay Merged Territories and Areas (Jagirs Abolition) Act 1953 came to be passed and was put into effect on the 1st of August 1954. Thereafter these Thakores and the other Thakores concerned had raised the question of the applicability of the said Act with regard to their estates and was challenged by them by filing suits in the Civil Courts. The Thakore of Bihora filed a Civil Suit No. 918 of 1955 in the Civil Court (S. D.) Baroda and the Thakore of Bhilodia had filed Civil Suit No. 1225 of 1955 in the same Court. We are not concerned with the other proceedings taken by the Thakores. These suits inter alia sought a declaration that their estates could not be considered as Jagirs and further that they should not be treated as Jagirdars and therefore the Act could not apply to their case. Both the suits were dismissed and both of them filed appeals in the District Court at Baroda. These appeals also were dismissed. Being aggrieved by those decisions both these petitioners filed the second appeals before this High Court and these appeals are pending. Both the suits were dismissed and both of them filed appeals in the District Court at Baroda. These appeals also were dismissed. Being aggrieved by those decisions both these petitioners filed the second appeals before this High Court and these appeals are pending. In the meantime compensation proceedings in respect of both these estates were started and both the petitioners filed their respective claims under various heads available to them under the Bombay Merged Territories and Areas (Jagirs Abolition) Act. I shall refer to this Act as the Act in this judgment. The petitioner in Special Civil Application No. 295 of 1962 had claimed Rs. 45754/in all and he was awarded Rs. 67820. Being dissatisfied with this award he filed an appeal to the Revenue Tribunal. That appeal was rejected except that the award was modified by giving Rs. 987-4-0 more than the award made by the Compensation Officer. So far as the petitioner of Special Civil Application No. 355 of 1962 is concerned also a particular award was made and being dissatisfied he also approached in appeal the Revenue Tribunal wherein also a slight modification was made and the rest of the claim was rejected. Both of them being dissatisfied with the judgment of the Revenue Tribunal and the Compensation Officer have tiled these petitions under Article 227 of the Constitution of India. ( 3 ) BEFORE I go to deal with the contentions raised by the learned advocate on behalf of the petitioners on merits on questions of fact I shall deal with a common law point which Mr. Pradhan raised on behalf of his clients. the petitioners. He submitted that the Revenue Tribunal had no jurisdiction to decide the two appeals because of the bar of sec. 10 of the Bombay Revenue Tribunal Act. He argued that the jurisdiction of the Revenue Tribunal to decide all appeal would be barred when the matter questioned before it is sub-justice in a Court of law. He urged that the vires of the Act was challenged or in other words the point that the Jagirs Abolition Act did not apply to their estates was raised by the present petitioners in the compensation proceedings and this being a matter which was already sub judice as the said point was agitated in the Civil Court and which was the subject-matter of the second appeals pending in the High Court. These being prior proceedings sec. 10 of the Bombay Revenue Tribunal Act bars the jurisdiction of the Revenue Tribunal to proceed with the appeals. Section 10 (1) reads as follows :-"10. (1) The Tribunal shall have no jurisdiction in any matter which is sub-judice in a court of law. " ( 4 ) AT first sight the argument of the learned advocate on behalf of the petitioners sounds impressive; but when all the relevant provisions of the Bombay Revenue Tribunal Act as well as Jagirs Abolition Act are taken into account it is found that it cannot be sustained. It will be therefore necessary to look into these relevant provisions. These provisions are secs. 9 11 and 12 of the Bombay Revenue Tribunal Act and secs. 16 and 17 of the Jagirs Abolition Act. Section 9 of the Bombay Revenue Tribunal Act deals with the jurisdiction of the Tribunal and sub-sections (1) and (4) thereof may be seen. Sub-sec. (1) reads as follows :-"9. (1) Subject to the provisions of this section the Tribunal shall have jurisdiction to entertain and decide appeals from and revise decisions and orders of officers not below the rank of a Collector or Deputy Commissioner in respect of cases arising under the provisions of the enactments specified in the First Schedule. " ( 5 ) SUB-SECTION (4) reads as follows:"9. (4) Notwithstanding anything contained in any other law for the time being in force when the Tribunal has jurisdiction to entertain and decide appeals from and revise decisions and orders of any person officer or authority in any matter aforesaid no other person officer or authority shall have jurisdiction to entertain and decide appeals from and revise decisions or orders of such person officer or authority in that matter. " ( 6 ) THEREFORE sub-section (1) vests the jurisdiction in the Tribunal to entertain and decide appeals and to revise such decisions or orders. But it says that these powers are restricted to cases arising under the provisions of the enactment specified in the First Schedule. So only appeals arising under such enactments could be heard by the Tribunal. Appeals from any other enactments could not be entertained or decided by the Tribunal. Similarly sub-section (4) lays down that whatever was within the province or exclusive jurisdiction of the Tribunal no other authority would have the right to entertain or decide. So only appeals arising under such enactments could be heard by the Tribunal. Appeals from any other enactments could not be entertained or decided by the Tribunal. Similarly sub-section (4) lays down that whatever was within the province or exclusive jurisdiction of the Tribunal no other authority would have the right to entertain or decide. Then sub-section (1) of section 10 we have already seen. Sub-section (2) of that section lays down that the Tribunal shall also have no jurisdiction in respect of a matter which in its opinion involves a question as to the validity of any Act Ordinance or Regulation or any provision contained in any Act Ordinance or Regulation the determination of the invalidity of which in its opinion is necessary to the disposal of that matter. With the Explanation we are not much concerned. Section 10 therefore provides that certain matters will be beyond the jurisdiction of the Tribunal. Section 11 refers to the resumption of the jurisdiction by the State Government in certain matters which was also vested in the Tribunal by the old Act. This has not got any direct bearing on the question on hand but section 12 is the most important provision in this Act which has a bearing on the question on hand. It is as follows:"12. Nothing contained in this Act shall affect any powers or functions of the Tribunal conferred upon it or which may be conferred upon it by or under any other law for the time being in force to entertain and decide any appeals applications for revision or other proceedings. " ( 7 ) THEREFORE this section in clear terms lays down that if any powers or functions are vested in the Tribunal at the time sec. 12 came into effect or may be so vested under any other law for the time being in force to entertain and decide any appeals or other proceedings they shall not be affected by any of the provisions contained in the Bombay Revenue Tribunal Act. The point therefore that arises for consideration is whether on the proper interpretation of sec. 12 sec. 10 which bars the jurisdiction of the Tribunal regarding the matter which is sub judice in any Court of Law can have any application to an appeal before the Tribunal which has arisen under the Jagirs Abolition Act. The point therefore that arises for consideration is whether on the proper interpretation of sec. 12 sec. 10 which bars the jurisdiction of the Tribunal regarding the matter which is sub judice in any Court of Law can have any application to an appeal before the Tribunal which has arisen under the Jagirs Abolition Act. That takes us to the consideration of the relevant provisions of the Jagirs Abolition Act. Sec. 16 of the Act is as under :-"an appeal shall lie against an award of the Collector to the Gujarat Revenue Tribunal constituted under the Bombay Revenue Tribunal Act 1957 notwithstanding anything contained in the said Act. " ( 8 ) SEC. 16 of the Jagirs Abolition Act therefore empowers the Revenue Tribunal to entertain an appeal against an award of the Collector given under the Act notwithstanding anything contained in the said Act. At one stage the learned Assistant Government Pleader Mr. Surti appeared to urge that the words notwithstanding anything contained in the said Act would mean that notwithstanding sec. 10 of the Bombay Revenue Tribunal Act the appeal shall lie. I however find it difficult to put so wide a construction as put by Mr. Surti. These words notwithstanding anything contained in the said Act only can mean that notwithstanding anything contained in the Bombay Revenue Tribunal Act an appeal shall lie against an award of the Collector under the Act to the Revenue Tribunal. These words were necessary to be included because as I have already pointed out the jurisdiction given to the Revenue Tribunal under sec. 9 itself was a restricted jurisdiction as it could only entertain appeals from those Acts which were included in the First Schedule of that Act. But this interpretation put by me on sec. 16 makes no difference to the final conclusion to which I have reached that sec. 10 cannot come in the way of disposing of the appeal arising out of the Bombay Merged Territories and Areas (Jagirs Abolition) Act. Sec. 17 of the Jagirs Abolition Act also has a bearing on this question under consideration :-"17. (1) The Gujarat Revenue Tribunal shall after giving notice to the appellant and the State Government decide the appeal and record its decision. Sec. 17 of the Jagirs Abolition Act also has a bearing on this question under consideration :-"17. (1) The Gujarat Revenue Tribunal shall after giving notice to the appellant and the State Government decide the appeal and record its decision. (2) In deciding an appeal under this Act the Gujarat Revenue Tribunal shall exercise all the powers which a court has and shall 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. " sec. 16 vested the powers in the Revenue Tribunal to entertain the appeal sec. 17 further empowers the Revenue Tribunal to decide the appeal and record its decision and in so doing it is authorised to exercise all the powers which a Civil Court has and further that it shall follow the same procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Civil Procedure Code. Therefore there is no manner of doubt that under the effect of these two sections the Revenue Tribunal has been vested with powers of a Civil appellate Court to entertain and decide the appeal. No restriction is created under these sections on these powers as an appellate Court. When this position of law is considered in juxta-position with the provisions of law of the Bombay Revenue Tribunal which I have considered sec. 12 can only mean that when an appeal is heard by the Bombay Revenue Tribunal under the powers that are vested under sec. 16 and 17 of the Jagirs Abolition Act nothing contained in the Bombay Revenue Tribunal Act can effect that power or function of the Revenue Tribunal vested in it and conferred on it by the Jagirs Abolition Act. The words nothing contained in this Act in sec. 12 will certainly include one of its provisions which is to be found in sec. 10 which prohibited the Tribunal if it were dealing with matters arising under the Bombay Revenue Tribunal Act from entertaining or deciding any matter which was sub judice in a Court of law. I therefore hold that sec. 12 will certainly include one of its provisions which is to be found in sec. 10 which prohibited the Tribunal if it were dealing with matters arising under the Bombay Revenue Tribunal Act from entertaining or deciding any matter which was sub judice in a Court of law. I therefore hold that sec. 10 of the Revenue Tribunal Act cannot be invoked in these proceedings by the petitioner to bar its jurisdiction to proceed with and decide the appeal filed by them because of their having agitated the question of the vires of the Jagirs Abolition Act in civil proceedings which are pending. I may mention here that this particular point of law was not agitated in the manner that it has been before me before the Revenue Tribunal. But I allowed it to be agitated before me as it was likely to go to the root of matter as it challenged the very jurisdiction of the Tribunal to deal with this matter. ( 9 ) THE next point which was urged on behalf of the petitioners is that even if it is assumed that the Tribunal has jurisdiction to entertain the matters and proceed with them it ought not to have proceeded with them as under sec. 10 of the Civil Procedure Code the appeals before the Tribunal should have been stayed in view of the fact that the Civil courts and at the relevant time the High Court was seized of the appeals in which the applicability of the Act to their estates was challenged. I am unable to accept this submission also. In my judgment sec. 10 of the C. P. Code cannot have any application to the facts of the case. The wording of section 10 itself shows that it cannot have any application to the present proceedings and the relevant words in sec. 10 are. . . . . . where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed. . . . . It is obvious that in the compensation cases from which the appeals were pending before the Revenue Tribunal the reliefs claimed were that compensation may be granted for various items provided by the Jagirs Abolition Act. . . . . It is obvious that in the compensation cases from which the appeals were pending before the Revenue Tribunal the reliefs claimed were that compensation may be granted for various items provided by the Jagirs Abolition Act. Now with no stretch of argument it can be said that the Civil Courts had jurisdiction to grant this relief claimed in the present proceedings. It was the exclusive jurisdiction of the Jagir Abolition Officer and authorities nominated under the Act. Therefore to my mind this section has no application. . . . . . . ( 10 ) THE result of this train of reasoning is that both the petitions cannot stand and they are dismissed with costs Rules discharged. Petitions dismissed. .