Trustee of The Baldev Gaushalatrust and Others vs Jashbhai Bhailalbhai Patel and Others

Abhilasha Kumari, J.—This petition has been filed under Articles 226 and 227 of the Constitution of India, with the following prayers ;-

[A] Your Lordships be graciously pleased to admit and allow this petition and be further pleased to quash and set aside the impugned orders dated 4th April, 1972, 22nd December, 1993 and 14th March, 2006 respectively and appropriate writ, direction or order be directed to be issued to the respondents in that behalf.

[B] Any other and further relief/s may kindly be granted in the interest of justice.

[C] Pending, admission, hearing and final disposal of this petition, Your Lordships be graciously be pleased to stay, execution and implementation of the impugned orders dated 4th April, 1972, 22nd December, 1993 and 14th March, 2006 respectively in the interest of justice and thereby direct respondents to maintain status-quo qua subject lands in the interest of justice and an appropriate writ, direction or orders as deemed fit be also passed.

The petitioners are the Trustees of a registered public trust, claiming to be the landlords of the lands, bearing Survey No. 362, admeasuring 1 Acre 62 Gunthas, Survey No. 3667, admeasuring 1 Acre 27 Gunthas, Survey No. 370, admeasuring 1 Acre 20 Gunthas, and Survey No. 371, admeasuring 3 Acre 39 Gunthas, [hereinafter referred to as the "lands in question"] situated at Village Dakor, Taluka Thasra, District Kheda. The respondents Nos. 1 to 5 claimed tenancy rights over the lands in question and filed an application before the Mamlatdar and ALT, Thasra for being declared as tenants and for fixing the purchase price under the provisions of Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 [the "Act"for short]. Vide order dated 4th April, 1972, rendered in Tenancy Case No. 61/32-G, the Mamlatdar and ALT, Thasra, declared that respondents Nos. 1 to 5 are entitled to purchase the lands in question as tenants and fixed the purchase price under the provisions of Section 32G of the Act. The petitioner Trust filed an Appeal against this order before the Deputy Collector, L.R. [Appeals], Kheda, which was registered as Tenancy Appeal No. 146/88. The Deputy Collector, vide order dated 19th September, 1988, allowed the appeal of the petitioner and set aside the order of the Mamlatdar and ALT, Thasra.

Being aggrieved by the order dated 19th September, 1988 passed by the Deputy Collector, the respondents Nos. 1 to 5 filed a Revision Application before the Gujarat Revenue Tribunal [the "Tribunal" for short], which was numbered as TEN.B.A.844/88. By order dated 22nd December, 1993, the Tribunal quashed and set aside the order of the Deputy Collector, dated 19th September, 1988 and restored the order of the Mamlatdar and ALT, Thasra dated 4th April, 1972, whereby the purchase price of the lands in question had been fixed. The petitioner Trust filed a Review Application before the Tribunal against the order dated 22nd December, 1993 rendered by the Tribunal in favour of the respondents Nos. 1 to 5. This Application has been dismissed by the Tribunal vide order dated 14th March, 2006 on the ground that there is no error apparent on the face of the record and, further, that the Review Application is not maintainable.

Being aggrieved by the order dated 14th March, 2006 of the Tribunal rendered in the Review Application, the petitioner has filed the present petition.

Mr. P.M. Bhatt, learned Counsel for the petitioner Trust, has submitted that the order dated 14th March, 2006, passed by the Tribunal is contrary to law and, therefore, deserves to be quashed and set aside. He has further submitted that the order dated 22nd December, 1993 has also been passed without application of mind and the relevant provisions of law have not been properly considered. It is submitted by the learned Counsel for the petitioner that the Exemption certificate issued u/s 88B of the Bombay Tenancy and Agricultural Lands Act, 1948 has not been cancelled or challenged before this Court, and no order could have been passed and, therefore, the said order is illegal and deserves to be quashed and set aside.

Mr. P.M. Bhatt, has submitted that the Tribunal was wrong in not exercising the powers of Review when the revisional authority had committed error on the face of the record. The compromise arrived at between the parties was not considered in its proper perspective, and it was not noticed that the lands in question were not covered by the said compromise and, therefore, the order dated 14th March, 2006 deserves to be set aside.

Mr. Pathik Acharya, learned Assistant Government Pleader, has submitted that the order dated 22nd December, 1993, rendered in Revision Application No. 884/88, has never been challenged by the petitioner Trust until the Review Application was filed before the Tribunal against this order. The order of the Mamlatdar and ALT, in favour of the respondents Nos. 1 to 5 which is impugned in this petition was rendered on 4th April, 1972 and there is a gross delay in challenging the same. It is further submitted that there is also gross delay in challenging the order dated 22nd December, 1993 by way of Revision proceedings which have culminated in the order dated 14th March, 2006. Since the order dated 22nd December, 1993 has not been challenged by the petitioner Trust and the Review Application has also been dismissed vide order dated 14th March, 2006, the order in revision has attained finality, having merged with the order dated 14th March, 2006, passed on the Review Application.

I have heard Mr. P.M. Bhatt, learned Counsel for the petitioner and Mr. Pathik Acharya, learned Assistant Government Pleader and have gone through the averments made in the petition as well as the documents annexed thereto. Although the petitioner has made certain submissions on merits, the first question which falls for decision by this Court is the legality and validity of the order dated 14th March, 2006. Admittedly, the petitioner Trust had filed a Revision Application challenging the order dated 22nd December, 1993 of the Tribunal which was dismissed. The Review Application against this order has also been dismissed by the impugned order. A perusal of the impugned order reveals that the Tribunal has taken into consideration all the contentions raised by the petitioner and has come to the conclusion that firstly, there is no error in the order dated 22nd December, 1993 and, therefore, the Review Application is devoid of merit and secondly that the Tribunal does not have power of substantive review, since the jurisdiction conferred u/s 76 of the Act does not confer the power of substantive review. This position of law cannot be disputed. In the case of Atulbhai Balabhai Patel v. State of Gujarat and Ors. reported in 1999(2) GLH pg.314, the Court has considered this issue and has come to the following conclusion.

In view of the above discussion, it must be held that while exercising the revisional jurisdiction u/s 76 of the Tenancy Act, the Tribunal has the power of procedural review which inheres in every Tribunal, but it does not have the power of substantive review. The Tribunal, therefore, cannot rehear the matter on merits.

The earlier order dated 22nd December, 1993 of the Tribunal, whereby the Revision Application of the petitioner has been dismissed was the subject matter of the review proceedings, which have culminated in the impugned order dated 14th March, 2006. As such, since the review proceedings are a continuation of the original proceedings, the order dated 22nd December, 1993 has now merged in the order dated 14th March, 2006. In this regard, a judgment of this Court in the case of Kamdar Ladat Simiti of Nanikram Shobraj Mills Ltd & Asso Uni v. Nanikram Shobraj Mills Ltd. Reported in 2004(3) GLH pg. 175 is relevant. The Court has held as under:

When the person aggrieved has availed of a statutory remedy such as appeal or revision, the original order merges in the order of the superior authority, so that thereafter his remedy, if any lies only against the decision of the appellate authority and not the original order.

In view of the above principle of law, this Court cannot independently look into the legality or validity of the original order dated 22nd December, 2003 in revision in the present proceedings, as this order has now merged in the order dated 14th March, 2006.

In view of the aforesaid position, I do not find any reason to interfere with the order dated 14th March, 2006. The writ petition is devoid of merit and deserves to be dismissed. It is, accordingly, dismissed.