BHOGILAL M. VAISHNAV v. STATE — 1993 DIGILAW 518 (GUJ)

ABICHANDANI, J. ( 1 ) THE petitioner challenges the judgment and order passed by the Gujarat Revenue Tribunal on 12/04/1990 in Review application No. TEN. C. K. 1 of 1990, by which the Tribunal set aside the earlier order passed by Ex-member of the Tribunal in Appeal No. TEN. A. K. 6 of 1987 dated 30/08/1990 and quashed the orders of the Collector and Deputy Collector dated 30/06/1987 and 2/05/1986 respectively, declaring that the respondent No. 2 was entitled to get 1 Acre 32 Gunthas of land in respect of which he had been shown as an encroacher and for which he had put up claim against the Government. ( 2 ) IT appears that the respondent No. 2 made an application on 19- 11-1982 claiming that the portion of 1 Acre and 32 Gunthas of land in respect of which he was shown as an encroacher, in fact, belonged to him being part of the Survey No. 982 and shown as part of the Government land bearing Survey No. 984, Though, initially, the respondent No. 2 claimed that the land was of his ownership during the proceedings, he made a statement before the Circle Inspector for allotting the land in question to him by way of a grant on payment of occupancy price claiming that it was in his possession and it was situated adjoining his land. It appears that on 13-12-1982 considering the claim of the respondent No. 2 and other rival claimants, the Deputy Collector made an order allowing the application of the respondent No. 2 and granting the land admeasuring 1 Acre and 32 Gunthas to him on payment of occupancy price equivalent to 36 times the annual assessment. One of the rival claimants Gurukrupa Co-operative housing Society preferred an appeal against that order to the Collector, which was dismissed with a direction for modifying the price which subsequently was raised pursuant to this direction by the Deputy Collector on 14-11-1983 and was fixed at Rs. 1,500. 00 per acre. The respondent No. 2 did not challenge that order. However, the rival claimant Gurukrupa society preferred a revision application to the Government. The Government set aside the order of the Deputy Collector as confirmed by the Collector and directed the Collector to take further proceedings for grant of the land in question in accordance with the existing orders of the Government. However, the rival claimant Gurukrupa society preferred a revision application to the Government. The Government set aside the order of the Deputy Collector as confirmed by the Collector and directed the Collector to take further proceedings for grant of the land in question in accordance with the existing orders of the Government. Thereupon the respondent No. 2 filed Special Civil Application No. 3629 of 1984 against that order. That petition came to be withdrawn on 10th august, 1984, in view of the statement on behalf of the Government that the Collector shall examine the question of allotment in the light of the claim of the present respondent No. 2, as well as the claim of others and that his claim will not be deemed to have rejected for all time to come by the Special Secretarys order. It appears that thereafter the respondent No. 2 re-agitated the issue by making a fresh application dated 24-8-1984 to the Deputy Collector. The application of the respondent no. 2 for grant of land came to be dismissed on 2/05/1986. The appeal preferred by respondent No. 2 before the Collector also came to be dismissed on 30/06/1986. That order was challenged by the respondent No. 2 in a revision application, which was heard by the Addl. Chief Secretary, Revenue Department (Appeals) who held that the Government had no jurisdiction to entertain the revision application and that only appeal could lie before the Tribunal against such an order of the Collector. The matter was thereafter heard by the Tribunal and the Tribunal by its detailed order dated 30/08/1990 found that the claim of the respondent No. 2 that the land was earlier owned by him was flimsy and that the respondent No. 2 was not the owner of the land in question and in fact the question of ownership of the land was irrelevant in view of the fact that the respondent No. 2 had himself sought for the allotment of the land by the Government to him on payment of occupancy price. In this view of the matter, holding that the claim of the respondent no. 2 of the ownership of the land was totally unwarranted and baseless and that there was an allotment of land by grant, the Tribunal held that it had, therefore, no jurisdiction to entertain the appeal. In this view of the matter, holding that the claim of the respondent no. 2 of the ownership of the land was totally unwarranted and baseless and that there was an allotment of land by grant, the Tribunal held that it had, therefore, no jurisdiction to entertain the appeal. The finding of the Tribunal as regards jurisdiction was thus based on the question of fact which had a bearing on the issue of jurisdiction. Since the Addl. Chief Secretary had earlier not entertained the appeal and relegated the respondent No. 2 to the Tribunal, the Tribunal finding that it had no jurisdiction to entertain the appeal, dismissed the same on the above ground. Thereafter the respondent No. 2 filed a review application which has been entertained by the President of the Tribunal by his detailed order allowing the appeal. ( 3 ) THE moot question that arises for consideration is as to whether the tribunal could have reviewed the earlier order, as sought to be done by it, under Sec. 17 of the Bombay Revenue Tribunal Act, 1957. The Tribunal when moved for review by the respondent No. 2, initially made a preliminary order on 29-1-1991, deciding to review the matter. The Tribunal found that if the appeal was not legally competent, the papers could have been returned for presentation to proper forum and there was no need to confirm the orders of the lower authorities. It will be noticed that the finding that the appeal was not legally competent was based on the facts established. The Tribunal had, earlier, considered the issue of ownership of land and found that the claim of the respondent No. 2 over the land could not be sustained on the ground of ownership and further found that this was a case of grant, pure and simple and therefore, the matter did not fall under the provision of Sec. 37 (2) of the bombay Land Revenue Code specified in the First Schedule to the Bombay revenue Tribunal Act. Therefore, the appeal could not be entertained by the tribunal inasmuch as it has jurisdiction under Sec. 9 of that Act only in respect of the matters enumerated in the said Schedule. If the Tribunal at a later stage found fault in the papers not being returned then the question of review would have been confined only to the aspect of returning the papers. If the Tribunal at a later stage found fault in the papers not being returned then the question of review would have been confined only to the aspect of returning the papers. The Tribunal, however, did not confine the review application only to that aspect which was highlighted in its preliminary order dated 29-1-1991 when it decided to list the matter for final hearing for the purpose of reviewing the earlier decision. ( 4 ) IT was contended on behalf of the petitioner that the Tribunal was entitled to review its earlier decision on the ground of some mistake or error apparent on the face of the record or for any other sufficient reason and, therefore, having once decided to review the matter it was open to the tribunal to re-appreciate the entire evidence and to come to its own findings. The Tribunal indeed has having initially by its order dated 29-1-1991 opened up the door for review on the ground that the Tribunal ought to have returned the papers and need not have confirmed the orders of the Collector and the deputy Collector while holding that the appeal did not lie, has embarked upon reappreciation of the entire evidence for coming to a different conclusion. A bare reading of the order of the Tribunal made earlier and the order made in review clearly discloses that the Tribunal has while reviewing the earlier order, virtually sat in appeal over it and reappreciated the entire evidence for coming to different findings. The Tribunal cannot under the guise of exercise of review jurisdiction under Sec. 17 of the Bombay Revenue Tribunal Act, 1957 exercise an appellate power and do reappraisal of the entire evidence for coming to different conclusions purely upon appreciation of evidence. The power of review under Sec. 17 does not permit the Tribunal to act as a Court of appeal. All that the Tribunal can do is to correct patent errors or to exercise power for similar sufficient reasons. The Tribunal has, in the instant case, virtually usurped powers of an appellate forum and has reheard and redecided the matter. Such a course was not permissible to the Tribunal to adopt. All that the Tribunal can do is to correct patent errors or to exercise power for similar sufficient reasons. The Tribunal has, in the instant case, virtually usurped powers of an appellate forum and has reheard and redecided the matter. Such a course was not permissible to the Tribunal to adopt. ( 5 ) THE order of the Tribunal made earlier was a well reasoned order and after considering the material on record the Tribunal had come to the conclusion that the claim of the respondent No 2 of ownership over the disputed land was baseless. The Tribunal had indeed taken into account all the relevant facets for holding that the claim of ownership over the disputed land could not be sustained and that it was a question of grant, pure and simple. The necessary consequence of this finding was that the appeal could not be entertained since the matter did not fall within the ambit of Sec. 37 (2) of the Code, as held by the Tribunal. If the reviewing Tribunal found fault with the earlier Tribunals not returning the papers and treated it as an error apparent on the face of the record, it could have at the best corrected that error but could not have exceeded its power of review. Even in not returning the papers, it would not appear that the earlier Tribunal committed any error apparent on the face of the record. This was because, the forum was entirely different and it is not as if papers were to be returned by a court for being presented to an appropriate Court. If the fault which the reviewing Tribunal noticed was only as regards confirming the orders of the collector and the Deputy Collector, then the Tribunal at best could have said that the question of confirming the orders did not arise since the tribunal had no jurisdiction to entertain the appeal. Viewing from any angle, there was absolutely no scope for the Tribunal to reappreciate the evidence and come to a different conclusion that it had jursidiction to hear the appeal when the earlier Tribunal had rightly found that it had no jurisdiction to hear the appeal. ( 6 ) IT is, therefore, evident that the Tribunal has exceeded its jurisdiction in entertaining the review application. ( 6 ) IT is, therefore, evident that the Tribunal has exceeded its jurisdiction in entertaining the review application. The reviewing Tribunal seems to have wholly misconstrued the order made by this Court earlier and taken it to be an order laying "open the doors for Champaklals Claim of the land". The order passed (N. H. Bhatt, J.) on 10-8-1984 reads as under :"mr. Dave appearing for the State Government states that the Special Secretarys order is to be understood and is actually meant to be understood to convey that the Collector shall examine the question of allotment in the light of the petitioners claims as well as the claim of others and that the petitioners claim will not be deemed to have been rejected for all time to come by the Spl. Secretarys order. The Deputy Collector obviously will consider the Governments resolution in vogue for the purpose of deciding the claim of the petitioner and others. In view of that statement and clarification, Mr. Mankad withdraws this petition, which is rejected as withdrawn. Till the Collector takes the final decision, the situation in respect of land, as is existing today, shall be maintained. . . . . . " ( 7 ) THERE is a clear reference in the above order to the claim of rival claimants to be considered by the Collector, who would also consider the claim that the respondent No. 2 may be put. The petition was withdrawn as a result of which subject to the statement made by the Government Pleader, the order which was passed by the Revenue Secretary stood confirmed. In the second round of the litigation, the Deputy Collector by his order dated 2-5-1986 rejected the claim of the respondent No. 2 and the appeal against the order was rejected by the collector. This was in context of the rival claims being considered pursuant to the statement made before the High Court. The High Court in its order had referred to the Collectors considering the rival claims which obviously was in the context of the orders earlier made. This was in context of the rival claims being considered pursuant to the statement made before the High Court. The High Court in its order had referred to the Collectors considering the rival claims which obviously was in the context of the orders earlier made. The Government on 21-1-1984, set aside the earlier orders of the Deputy Collector and Collector dated 13-12-1982 and 20-10-1983 respectively and directed refund of the occupancy price to be given to the respondent No. 2 and had further directed the Collector to consider the demand of the co-operative societies for the said land and process them as per the extant orders of the Government for such disposal. It was in context of these directions that the apprehension of the respondent No. 2 that his claim may not be considered by the Collector was allayed pursuant to the statement made on behalf of the state Government which is recorded in the order of this Court dated 10-8-1984 and the petition came to be withdrawn since the claim of the respondent No. 2 was also now required to be considered along with other rival claimants. The statement made before the High Court for the Government and the directions were obviously intended only to ensure consideration of the case of the respondent no. 2 along with claim of the co-operative societies for allotment of land. Therefore, the order of the High Court did not open any doors for the reviewing tribunal to embark upon any reappreciation of evidence for finding out ownership of the respondent No. 2 especially when in the second round the Deputy Collector, the Collector and the Tribunal all found that the claim of the respondent No. 2 of ownership was baseless. ( 8 ) WHEN the Tribunal which made the order on 30/08/1990, found that it had no jurisdiction since the matter did not fall under Sec. 37 (2) while rejecting the appeal on that count there was no need to further confirm the orders of the Collector and Deputy Collector. The order of the Collector would have been in view of the, decision of the Tribunal open to challenge before the appropriate forum. The order of the Collector would have been in view of the, decision of the Tribunal open to challenge before the appropriate forum. It will be open for the respondent No. 2 to approach the government in revision in view of the decision of the Tribunal rendered on 30th august, 1990 and: it will be for the appropriate forum to consider such revision in accordance with law. ( 9 ) IN view of the above discussion, the order made by the Tribunal on 1 2/04/1990 reviewing the earlier decision dated 30/08/1990 is hereby set aside and rule is made absolute with no order as to costs. .