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2015 DIGILAW 868 (GUJ)

SURESHBHAI DULLABHAI PATEL v. RAMNIKBAHI RAVJIBHAI PATEL

2015-09-04

C.L.SONI

body2015
JUDGMENT : C.L. SONI, J. 1. By the present petition filed under Article 226/227 of the Constitution of India, the petitioners have challenged the order dated 26.11.2014 passed by the Gujarat Revenue Tribunal (the Tribunal) in Review Application No. TEN/CS/2 of 2013 filed in Revision Application No. TEN/BS/21 of 2013. 2. The case of the petitioners is that the revision application preferred by respondent Nos. 1 and 2 against the order passed by the Deputy Collector dated 15.3.2013 was not entertained and rejected on finding that neither respondent Nos. 1 and 2 – revisionists nor their father was party before the Mamlatdar and Krushi Panch and therefore, there was no question of giving them hearing by the Deputy Collector and on further finding that it was not possible that the revisionists had no knowledge about the order made by the Deputy Collector. However, another Member of the very Tribunal entertained and allowed the review application preferred by respondent Nos. 1 and 2 on the ground that by not joining the respondent Nos. 1 and 2, though they were bona-fide purchasers, the order of the lower Court (Deputy Collector) would be bad in law by principle of non-joinder of the party and mis-joinder of the party, which aspect the Tribunal did not consider when it passed earlier order dated 19.5.2013 whereby the revision application of respondent Nos. 1 and 2 was rejected and on further ground that such bona-fide purchasers were required to be heard and there is no reason not to accept the submission that such important aspects were ignored by the Tribunal and such administrative discrepancies and procedural mistakes could be considered in the review application. It is the case of the petitioners that the Tribunal has no power to review its decision and that no case for review was made by respondent Nos. 1 and 2. 3. The respondent No.1 has filed affidavit-in-reply opposing the petition and stating that the Tribunal when considered the review application found that the respondent Nos. 1 and 2 were required to be heard by the Deputy Collector and since no hearing was granted, the case was made by respondent Nos. 1 and 2 for reviewing its earlier decision and for restoration of the revision application. 1 and 2 were required to be heard by the Deputy Collector and since no hearing was granted, the case was made by respondent Nos. 1 and 2 for reviewing its earlier decision and for restoration of the revision application. The petitioners have also filed rejoinder to the same pointing out the parameters for taking the case in review and also about the powers of the Tribunal to review its own decision. 4. Learned advocate Mr. N.V. Gandhi appearing for the petitioners submitted that the Tribunal having found that the respondent Nos. 1 and 2 were not entitled to be heard by the Deputy Collector and having also come to conclusion that there was gross delay of more than 10 years and on such aspects, when the Tribunal has not accepted the revision application, such decision of the Tribunal could not be reconsidered in the name of exercising the review power by another Member of the Tribunal. Mr. Gandhi submitted that the Tribunal has allowed the review application as if it is sitting in appeal over its own decision and finding that what was done by another Member of the Tribunal earlier was not proper. Mr. Gandhi submitted that even if the Tribunal is to be taken to have power of review of its own decision, then also, unless the case of respondent Nos. 1 and 2 would wall within the parameters to exercise of the review powers, the Tribunal could not entertain the review application. Mr. Gandhi submitted that in the present case, the respondent Nos. 1 and 2 failed to point out any error apparent on the face of the record or that the review of earlier decision of the Tribunal was required on account of finding any new evidence or material which would warrant reconsideration of earlier decision. Mr. Gandhi submitted that in any case, the Tribunal has no power of review to change its earlier decision except of correcting procedural error and in the present case, the Tribunal has not held in the impugned order that there was a procedural error. 5. Learned advocate Mr. Trilok Patel on the other hand submitted that un-disputably, the respondent Nos. Mr. Gandhi submitted that in any case, the Tribunal has no power of review to change its earlier decision except of correcting procedural error and in the present case, the Tribunal has not held in the impugned order that there was a procedural error. 5. Learned advocate Mr. Trilok Patel on the other hand submitted that un-disputably, the respondent Nos. 1 and 2 were bona-fide purchasers of the land in question and their names were entered in the revenue record and therefore, they were required to be heard by the Deputy Collector before making any order in respect of the land in question. Mr. Patel submitted that when the Deputy Collector committed breach of the principle of natural justice and by such order of the Deputy Collector, the petitioners were directly affected, delay in filing the revision application would not come in the way of the petitioners and therefore, the Tribunal had committed serious error in not entertaining the revision application preferred by respondent Nos. 1 and 2. Mr. Patel submitted that such glaring procedural irregularity committed by the Tribunal was a clear error on the face of the record and therefore, another Member of the Tribunal could not be said to have committed any error in reviewing the earlier decision of the Tribunal. Mr. Patel submitted that the Tribunal has power under Section 17 of the Bombay Revenue Tribunal Act, 1957 to review its own decision and in exercise of such powers, if the Tribunal has restored the revision application by reviewing its earlier decision, this Court may not interfere with the impugned discretionary order of the Tribunal in exercise of the powers under Article 226/227 of the Constitution of India. 6. Learned Assistant Government Pleader Mr. Jaimin Gandhi submitted that this Court may consider the provisions for review powers of the Tribunal and limitation for exercise of the powers of the Tribunal and may take appropriate view of the matter. 7. 6. Learned Assistant Government Pleader Mr. Jaimin Gandhi submitted that this Court may consider the provisions for review powers of the Tribunal and limitation for exercise of the powers of the Tribunal and may take appropriate view of the matter. 7. Having heard learned advocates for the parties, it appears that against the order of the Mamlatdar and Krushi Panch dated 5.1.2000 declaring respondent No.3 Amratbhai Keshavbhai Patel as a tenant of the land in question and deciding the price of the land to be recovered in installments and to sell the land to him subject to restriction under Section 43 of the Tenancy Law, the revision application was preferred before the Deputy Collector and the Deputy Collector by order dated 15.3.2003 set aside the said order. This order of the Deputy Collector was challenged by the respondent Nos. 1 and 2 before the Tribunal by preferring revision application No. TEN/BS/21 of 2013 mainly on the ground that the respondent Nos. 1 and 2 were bona-fide purchasers and their names were entered in the revenue record and therefore, the Deputy Collector was required to hear them before passing the order dated 15.3.2003. The Tribunal however found that the respondent Nos. 1 and 2 preferred revision application after a long delay of 10 years 8 months and 20 days and the reasons provided for such long delay were not acceptable. The Tribunal further recorded that before the Mamlatdar and Krushi Panch, neither respondent Nos. 1 and 2 nor their father was party nor even they challenged any of the orders made by the lower authorities. They purchased the land subsequently and in such circumstances, they had no right to file the revision application. It is further observed that when the respondent Nos. 1 and 2 were not parties, there was no question of giving them any hearing and that it was not possible to believe that the respondent Nos. 1 and 2 had no knowledge about the order made by the Tribunal in the year 2003. On such findings recorded by the Tribunal, the Tribunal did not think it fit to entertain the revision application preferred by respondent Nos. 1 and 2 and by its order dated 19.6.2013, summarily rejected the same. 8. The respondent Nos. 1 and 2 had no knowledge about the order made by the Tribunal in the year 2003. On such findings recorded by the Tribunal, the Tribunal did not think it fit to entertain the revision application preferred by respondent Nos. 1 and 2 and by its order dated 19.6.2013, summarily rejected the same. 8. The respondent Nos. 1 and 2 however preferred review application being TEN/CS/2 of 2013 against the said decision in the revision application and such review application was then allowed by another Member of the Tribunal and the revision application was ordered to be restored to file. 9. The Court having perused the impugned order passed in the review application finds that another Member of the Tribunal has decided the review application as if he was sitting in the appeal over the decision of the Member of the Tribunal who earlier rendered such decision in the revision application preferred by respondent Nos. 1 and 2. 10. Though as per decision of this Court rendered in the case of Atulbhai Balabhai Patel vs. State of Gujarat and Others reported in 1999 (2) GLH 314 , the powers of the Tribunal to review its decision are on very limited grounds as regards procedural irregularities and not to rehear on merits, however even without considering such aspect of the matter, the Court finds that the impugned order made in the review application preferred by respondent Nos. 1 and 2 has gone beyond the limits set for exercising the review powers. 11. In the case of Lily Thomas and Others vs. Union of India and Others reported in (2000) 6 SCC 224 , Hon’ble Supreme Court has held and observed in para 52 and 56 as under:- 52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka held:- "19. Review literally and even judicially means reexamination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai, the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh that an order made by the Court has final and could not be altered:- "…....Nevertheless, if by misprison in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in..... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies. Basis for exercise of the power was stated in the same decision as under:- "It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevaling to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard." Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferrred the substantive power to review any judgment or order by Article 137 of the Constitution. And Cl. (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest in justice or to prevent the abuse of process of Court. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest in justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice." The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength. 56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. 12. In the case of Kamlesh Verma vs. Mayawati and Others reported in (2013) 8 SCC 320 , Hon’ble Supreme Court has held and observed in para 20, 20.1 and 20.2 as under:- 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:- 20.1. When the review will be maintainable:- (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. 20.2. When the review will not be maintainable:- (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. 13. Thus, review is not available as a matter of right and unless it is pointed out that there is error apparent on the face of record committed by the Court or the Tribunal while deciding the matter or that certain material or evidence was not available with the party when the matter was decided and such material or evidence will have bearing on the controversy involved in the main proceedings, and that for any sufficient good cause, review of the decision was required. No such case was ever made out by respondent Nos. 1 and 2. Instead, another Member of the Tribunal has attempted to comment on the decision rendered by the Member of the Tribunal who earlier decided the revision application. The review application is allowed by another Member of the Tribunal on the grounds which did not find favour with the Member of the Tribunal who decided the revision application of respondent Nos. Instead, another Member of the Tribunal has attempted to comment on the decision rendered by the Member of the Tribunal who earlier decided the revision application. The review application is allowed by another Member of the Tribunal on the grounds which did not find favour with the Member of the Tribunal who decided the revision application of respondent Nos. 1 and 2. This was not permissible by any cannons of law and it was required of the Member who decided the review application to be aware about the limitation for exercise of review powers. 14. In above such view of the matter, the impugned order passed on the review application cannot stand scrutiny of law. 15. Learned advocate Mr. Trilok Patel, however requests that this Court may observe that quashing of the impugned order passed on the review application by this Court shall not come in the way of respondent Nos. 1 and 2 in challenging the decision rendered by the Tribunal in their revision application before appropriate Forum. The Court finds that what is being quashed is the impugned order made in the review application and the effect thereof is to restore the order dated 19.6.2013 made in the revision application preferred by respondent Nos. 1 and 2 and therefore, quashing of the order made in the review application can certainly not come in the way of respondent Nos. 1 and 2 to challenge the order dated 19.6.2013 made in their revision application before the appropriate Forum, if permissible in law. 16. For the reasons stated above, the petition is allowed. Impugned order dated 26.11.2014 passed by the Tribunal in Review Application No. TEN/CS/2 of 2013 filed in Revision Application No.TEN/BS/21 of 2013 is hereby quashed and set aside. Rule is made absolute accordingly. ORDER IN CIVIL APPLICATION: Since the main petition is allowed and disposed of, the Civil Application shall not survive. Hence, it is disposed of. Petition allowed.