1999 Supreme(Guj) 266

Gujarat High Court
Judgename :M.S.Shah
ATULBHAI BALABHAI PATEL - Appellant
Versus
STATE - Respondent
S.C.A. 8915 of 1997
Decided On : 05/12/1999

Headnote:Bombay Tenancy & Agricultural Laws Act, 1948 - Sec. 76 - Power of revision conferred on Bombay Revenue Tribunal - Whether extends to review its own decision in view of Secs. 12 & 17 (1) of Bombay Revenue Tribunal Act, 1957 - Provision under Sec. 17 (1) of the Act empower Tribunal to review its own decision or order in any case arising under any enactment in the first schedule to the Tribunal Act - Act of 1948 is not included in the alleged schedule - Similarly Sec. 12 merely save the powers of Tribunal conferred upon it under any other law to entertain & decide appeals/revisions or other proceedings - It does not add to powers of Tribunal under any other law - Hence if the Tenancy Act 48 does not confer power of review upon Tribunal, Sec. 12 can not be invoked to wider Scope of Sec. 17 of the Tribunal Act - However, it is to be clarified that there are two kind of reviews one procedure & other on merits - Procedure defect is also open for correction by review but judicial review on merit can only be made if power is conferred under law - As a result it is held, that while exercising the revisional jurisdiction under Sec. 76 of Tenancy Act, Tribunal has power of procedural review which inheres in every Tribunal but it does not have power of substantial review.

       This Court finds considerable substance in the submission made by the learned counsel for the petitioners that the power of review under Sec. 17 of the Tribunal Act is available only in respect of cases arising under the enactments specified in the first schedule to the Tribunal Act. The provisions of Sec. 9 of the Tribunal Act clearly provide that the powers being conferred on the Tribunal to entertain and decide appeals and revisions under the Tribunal Act are only in respect of the enactments specified in the first schedule to the Tribunal Act. Admittedly, the Tenancy Act is not included in the first schedule to the Tribunal Act. Hence, the Tribunal while exercising the powers under the Tribunal Act, cannot deal with the cases arising under the Tenancy Act.

       Even under the provisions of Sec. 12 of the Tribunal Act, the Tribunal would not be in a position to entertain appeals or revisions under the Tenancy Act since the Tenancy Act is not one of the enactments in the first schedule. All that Sec. 12 of the Act does is merely to save the powers of the legislature to confer power on the Tribunal to decide appeals/revisions arising from orders under other enactments and that is how the power to hear revision applications under Sec. 76 of the Tenancy Act is conferred on the Tribunal by specific provisions of Sec. 76 of the Tenancy Act. In other words, what Sec. 12 of the Tribunal Act does is merely to save the powers or functions of the Tribunal conferred upon it or which may be conferred upon it by or under any other law to entertain and decide appeals/revisions or other proceedings. Section 12 of the Tribunal Act does not add to the powers or functions of the Tribunal under any other law. Hence, if the Tenancy Act does not confer any power of review upon the Tribunal while exercising the revisional power under Sec. 76 of the Act, Sec. 12 of the Tribunal Act cannot be invoked to give wider meaning of Sec. 17 of the Tribunal Act.

       [Para 7]

       It is, therefore, required to be clarified that the expression review is used in the two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. When a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justiciae to prevent the abuse of its process, and such power inheres in every Court or Tribunal. The principle that the power to review must be conferred by statute either specially or by necessary implication is inapplicable to decisions of a Judicial Tribunal which is supposed to do complete justice to the parties before it. To extend the principle to decisions rendered by a Judicial Tribunal would indeed lead to untoward and startling results. This general principle is, of course, subject to the rider that such power of even procedural review may be excluded if there is any indication in the statute contrary to the aforesaid general principle. Having examined the scheme of the Tenancy Act, it is clear that there is nothing contrary to the aforesaid general principle to exclude the inherent power of the Tribunal for procedural review.

       [Para 9]

       It must be held that while exercising the revisional jurisdiction under Sec. 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.

       [Para 10]