Bombay High Court
Anoopchand Nathmal Baid vs Maharashtra Revenue Tribunal And Ors. on 30 January, 1986
Equivalent citations: 1986(3)BOMCR157
JUDGMENT M.S. Deshpande, J.
1. This writ petition is directed against the order passed by the Maharashtra Revenue Tribunal reviewing its earlier order passed in revision and holding that the petitioner was in possession of the suit lands for the first time in 1971-72 and not in 1970-71 as per its finding recorded while deciding the revision application.
2. The petitioner filed an application under section 50 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act ('Vidarbha Tenancy Act', for short) before the Agricultural Lands Tribunal claiming that he was in possession of Survey Nos. 81, 83 96/3 and 98/1, total area 58.33 acres of Belghat from the land-holder Champabai and continued to be tenant until 1974-75. He gave a statutory notice to the landholder making an offer to purchase the land on 1-11-1974. As no sale-deed was executed by the landholder, the petitioner filed an application to the Additional Tahsildar and Agricultural Lands Tribunal for the purchase of the land and fixation of price. That application was not opposed by the landholder, but the Additional Tahsildar found that the petitioner was tenant only from the year 1971-72 and that since the offer to purchase the land had not been made within one year, the ownership in the land could not be claimed under section 50 of the Act. This order was challenged before the Sub-Divisional Officer in appeal and the appeal also came to be dismissed. The revision application was filed before the Maharashtra Revenue Tribunal by the petitioner and it made the following observations :
"From the pleadings and evidence of the parties, it is clear that the applicant became the tenant, for the first time in 1970-71 and as such, the right of purchase would be governed by section 50 of the Tenancy Act. Provisions of section 50 of the Tenancy Act are absolutely clear on the point that the tenant is required to give an offer of purchase within one year of the commencement of tenancy. In the instant case, the notice is admittedly given on 1-11-1974 and it is clearly beyond the prescribed limitation of one year. The applicant has thus lost his only remedy to purchase the land under the provisions of the Tenancy Act."
3. The Maharashtra Revenue Tribunal further observed that it was clear that the right of ownership cannot be transferred to the tenant during the life time of the widow and rejected the application. The State of Maharashtra then filed an application for review of the Maharashtra Revenue Tribunal's order because of the observation that the petitioner became tenant of the land for the first time in 1970-71. The grievance of the state Government was that the above finding of the Maharashtra Revenue Tribunal was relied upon by the non-applicants Anoopchand and Abhyakumar in Ceiling appeal Nos. 153/80 and 154/80 in support of their contention that the suit fields were held by Anoopchand from the tenure holder Champabai prior to 26-9-1970 and are not liable to be calculated in the holdings of Abhyakumar, who is the heir of Champabai. It was contented that both the ceiling appeals were dismissed on account of the finding that the crop statements for the year 1970-71 evidencing the possession of Anoopchand prior to 26-9-1970 were manipulated and consequently the transfer of the suit fields by Champabai in favour of Anoopchand was hit by section 10 of the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961, as amended. It was urged that the original crop statements for the year 1970-71 were manipulated and this being a new fact, discovered later, the Maharashtra Revenue Tribunal's observations in the order dated 16th October, 1980, in Tenancy Revision No. 76 of 1980 to the effect that Anoopchand was a tenant of the fields in 1970-71, called for a review. The application was opposed by the petitioner firstly on the ground of delay and secondly because it could not be urged by the State Government, which had in its possession all the documents, that a new fact has come to its knowledge when the order was passed in Ceiling appeal (sic) Tribunal.
4. The Maharashtra Revenue Tribunal despite the application for review treated the matter as suo motu review proceedings. It noted that the Additional Tahsildar as well as the Sub-Divisional Officer had recorded a concurrent finding that the petitioner Anoopchand had come into possession of the land for the first time in 1971-72 as evidenced by the entries in the Khasara, that the crop statement for 1970-71 was filed by the petitioner before it only on 3-10-1980, and that the contention was that this document which had not been produced before the Additional Tahsildar and the Sub-Divisional Officer, had been manipulated. In the view of the Maharashtra Revenue Tribunal as there was no other oral or documentary evidence to prove that the petitioner was in possession of the lands as a tenant in 1970-71 and the admission of the landholder was collusive, it could not, in absence of evidence hold that the petitioner was a tenant in 1970-71. According to the learned Member of the Maharashtra Revenue Tribunal the crop statement for 1970-71 filed before him could not have been taken into account at the revisional stage for reaching the finding that the petitioner was tenant in 1970-71. He held the error to be so manifest that it could not be allowed to remain on record and observed as follows:---
"I am not going into the allegations that the crop statement for 1970-71 as filed before me on 3-10-1980 is full of manipulations and has thus become unreliable. Without referring to the allegations of manipulations, I am convinced that my finding that Anoopchand was the tenant in 1970-71 requires to be reviewed because of the fact that the clear finding of Additional Tahsildar and Agricultural Lands Tribunal that Anoopchand is a tenant for the first time in 1971-1972 has been maintained by me in revision without any modification and also because no new finding could be introduced at the revisional stage without there being any evidence in support."
5. The first point urged on behalf of the petitioner by Shri B.N. Mohta is that the Maharashtra Revenue Tribunal did not have the power under the Tenancy Act to review its own decision. Section 111 of the Act invests the Maharashtra Revenue Tribunal with power of revision and limits the exercise of that power only to three grounds, namely that the order of the Collector was contrary to law; that the Collector failed to determine some material issue of law; or that there was a substantial defect in following the procedure provided by the Act, which has resulted in the miscarriage of justice. Sub-section (2) provides that in deciding applications under this section the Maharashtra Revenue Tribunal shall follow the proceeding which may be prescribed by rules made under this Act after consultation with the Maharashtra Revenue Tribunal. It is clear that the Vidarbha Tenancy Act which creates new rights, prescribes new procedure and creates special forums does not invest the Maharashtra Revenue Tribunal with the power of review. Shri Ahmed 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 (Vidarbha Region) Act. It is, therefore, clear that the powers which the Maharashtra Revenue Tribunal can exercise, under the Bombay Tenancy and Agricultural Lands (Vidarbha 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 arises under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act.
6. Shri Ahmed relied on the observations of a learned Single Judge of the Court in Hanumant Maharaj Sansthan v. Jagannath Ramkrishna Patil, in Writ Petition No. 757 of 1969 decided on 15th June, 1973 reported in 1974 Mh.L.J. Note No. 23, but there the learned Judge was not called upon to consider whether the Maharashtra Revenue Tribunal was invested with the power of review, as the judgement proceeds on the assumption that the powers of review has been conferred on the Maharashtra Revenue Tribunal in matters under the Bombay Tenancy and Agricultural Lands (Vidharba Region) Act. There cannot be any controversy now about the position that the power of review is not an inherent power and it must be conferred by law either specifically or by necessary implication, in view of the observations of the Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji, which arose out the provisions of the Sourashtra Land Reforms Acts (25 of 1951) where the powers of revision were conferred by sections 61 and 63 and there was no provision investing either of these authorities including the Government with the power of review. Apropos the observation of the Maharashtra Revenue Tribunal that it was reviewing its earlier order passed in revision suo motu, this Court though while considering the power of review under the Civil Court Procedure Code has held in Damomal Kausomal v. Union of India, that the power to review a prior order is principally the power vested in an officer to review an order previously made by himself and not by anybody else, and that the power to review being co-extensive with the powers vested in the Civil courts under the Civil Procedure Code, the officers cannot review that earlier decision suo motu. It is so because under section 114 of the Civil Procedure Code the Court can act so only on an application by the aggrieved party. This view on the power of review conferred under the Civil Procedure Code was followed by the Madras High Court in Vishwanthan v. Muthaswamy Gounder, A.I.R. 1970 Madras 221.
7. The next contention was that there was no error apparent on the face of the record in the present case. The Maharashtra Revenue Tribunal permitted the document to be filed and on the basis of that document held in revision that the petitioner was in possession from 1970-71. Though there was no other positive evidence before the Maharashtra Revenue Tribunal on this point, both the parties in the Courts below had admitted that the petitioner was a tenant in possession in 1970-71, but the Khasara for 1970-1971 had not been produced there. The document which Maharashtra Revenue Tribunal allowed to produce went to fill up that lacuna pointed out by the two Courts below. They were unwilling to hold, because of the non production of that document, that the petitioner was in possession in 1970-71. It is difficult to see how in the circumstances of the present case, it could be said that there was an error apparent on the face of the record. As has been pointed out in M/s. Northern India Caterers v. Lt. Governor of Delhi, , an error apparent on the face of the record exists if of two or more views canvassed on the point, it is possible to hold that the controversy can be said to admit of only one of the them. If the view adopted, by the Court in the original judgement is a possible view having regard to what the record states. It is difficult to hold that there is an error apparent on the face of the record.
8. The position in the present case, therefore, is that the Maharashtra Revenue Tribunal did not have the power to review the decision which it had rendered, that it could not have reviewed its order suo motu and there was no error apparent on the face of the record which could have justified the review of the decision rendered.
9. It must, however, be noted that the controversy raised in the present case had another dimension. Though the orders passed by the Additional Tahsildar and the Sub-Divisional Officer had been maintained in revision, there was an observation by the Maharashtra Revenue Tribunal that the petitioner was in possession from 1970-71. This observation, though it may appear to have been immaterial for the purposes of the petitioner's right to purchase the land, as in any event his right to purchase had not been exercised within a year, was calculated to affect the surplus to be determined in the proceedings under the Ceiling Act. This apprehension was voiced by the Additional Tahsildar in his order but was overlooked by the Maharashtra Revenue Tribunal while permitting the Khasara for 1970-71 to be filed. As pointed out on behalf of the respondent State this very observation has been used in the ceiling proceedings by the petitioner and the land-holder for urging that petitioner had been holding the land as a tenant in 1970-71 irrespective of its utility to him to purchase the land.
10. The Maharashtra Revenue Tribunal in the review proceedings declined to go into the allegations regarding the manipulation and unreliability of the crop statement for the year 1970-71 filed before it on 3-10-1980. Shri Mohta urged that if the contention was that the Khasara for 1970-71 was manipulated, the suspicion should have been got removed and an adverse finding should not have been recorded against the petitioner without hearing him upon the alleged manipulation. On the other hand the State relied on the finding of the Maharashtra Revenue Tribunal in the ceiling proceedings that the Khasara for 1970-71 had been manipulated. It was for the Court of exclusive jurisdiction i.e. the Tenancy Court to decide the question whether in the year 1970-71 the petitioner was in occupation as tenant. It would be desirable to remove all the lurking doubts and permit the parties to lead evidence on the question whether the Khasara for 1970-71 was manipulated and whether the possession of the petitioner as tenant was from 1970-71 as was claimed in his application originally.
11. In the result, the orders passed by all the authorities below are set aside and the matter is remitted back to the Additional Tahsildar and Agricultural Lands Tribunal for a fresh decision on the question whether the petitioner was in possession as a tenant in the year 1970-71, after giving the parties concerned an opportunity to adduce such evidence as may be necessary. The Additional Tahsildar shall decide the matter within six months from the date of the receipt of the record and proceedings by it. Rule made absolute in these terms. There will be no order as to costs.