IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6115 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- HARISHKUMAR @ HASITKUMAR VASUDEVPRASAD THAKER Versus CHHOTABHAI R PARMAR -------------------------------------------------------------- Appearance: MR GIRISH D BHATT for Petitioner MR AJ PATEL for Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 09/03/2001 ORAL JUDGEMENT #. Heard the learned counsel for the parties. #. Challenge has been made by the petitioner by this petition under Article 227 of the constitution to the order of the Gujarat Revenue Tribunal dated 23-1-1990 in Revision Application No. TEN.B.A.962/76 and prayer has been made for setting aside of the same. #. Briefly stating the facts of the case are that the petitioner who was a military man had filed an application under section 29 (3) of the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as `the Act') in the Court of Deputy Collector for obtaining possession of the suit land. This application came to be rejected by the Deputy Collector. Against the said order, the petitioner filed the aforesaid revision application, which came to be rejected under the impugned order of the Tribunal. Hence, this special civil application. #. Learned counsel for the petitioner submitted that the Tribunal under the impugned order decided three revision applications. In all these three revision applications, the petitioner therein filed review applications. Learned counsel for the petitioner admits the review applications filed by the petitioner was subsequently withdrawn. However, the review application No.5/90 came to be decided on 28-2-1991. The Tribunal accepted as a fact that there is an error apparent on the face of its order as none of the counsel appearing for the parties have brought to its notice the provision as contained under section 43-1E of the Act aforesaid. The Tribunal has granted relief only in that revision application. This is a matter Shri Bhatt submitted also be given the same treatment and it may be remanded back to the Tribunal for decision on merits after considering the effect of provisions of section 43-1E of the Act aforesaid in the matter. #. Shri A.J. Patel, learned counsel who is appearing for the respondents contended that the review has been granted by the Tribunal as party therein settled the matter. So it is not a case where any decision has been given on merits. He submitted that he is the counsel who appeared for the respondent in the application also and that matter has been compromised. Next it is contended that the provision contained in section 43-1E has been considered by the learned Tribunal and it is not the case which deserves any consideration. He has argued the matter on merits also to convince the court that on merits, the petitioner has no case and as such it will be a sheer wastage of the valuable time of the Tribunal in case the matter is remanded back to it. #. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. #. It is not correct to contend by Shri A.J. Patel, counsel for the respondents that the review has been ordered by the Tribunal only on the ground as the matter has to be compromised. It does not come out from the order that the review has been granted by the Tribunal so that the parties may compromise the matter. I fail to see how far it would have been necessary for the Tribunal as it is always open to the parties to settle their dispute. We have to go by the contents of the order and if the order passed by the Tribunal on review applications is right, I do not find therein that this was the only consideration for review of the order. It is different matter that the counsel for the respondents may raised any contention but on such ground otherwise also it is not permissible to the Court to review its order. In para-6 of the order passed on review application, I find that the Tribunal has reproduced the provisions contained in section 43-1E of the Act. In para-7 of the order the Tribunal stated that that provision was not brought to its knowledge at the time when both the learned advocates argued the three matters. The Tribunal in unambiguous terms stated that there is an error or mistake on the face of the record while deciding the right, title and interest of the applicant which are created under the said Chapter III-AA and sec. 43-1A to 43-1D. After recording this finding, the Tribunal held that after considering the arguments advanced by the learned advocate Shri J.D. Patel and also considering the provisions of law added by the new amendment in the year 1965, I allow this review application, set aside the judgment and order passed in Revision Applications No.961/76 and 695/77 and order to rehear both the revision applications. In case the petitioner would not have withdrew the review application, there is all possibility that the same would have been also allowed by the Tribunal. Be that as it may. Though in para-8 reference to some purshis passed by the respondent in the matter has been made but from para-9, I find that the Tribunal has considered the matter on merits also and found that the applicant therein is entitled to claim the possession of suit survey number as the opponents therein had not become the owners of the suit survey number by paying the installments as no inquiry under section 32G had started before Chapter III-AA was added in the Act. In view of this fact, the contention raised by the learned counsel for the respondents is devoid of any substance and it cannot be accepted. #. It is no more res integra that in case where the Court is satisfied that the matter is to be remanded back to the lower Court or Tribunal for rehearing of the matter, it should not have expressed its opinion on the merits of the matter. It is different matter that Shri A.J. Patel, learned counsel for the respondent has consumed time more than what it was necessary in the case to advance the argument on merits though the Court expressed its opinion that matter is fit to be remanded back. But as I consider it to be a fit case to remand it to the Tribunal, I will not touch any of the contentions raised by the learned counsel for the respondents otherwise it may affect the case of either of the parties before the Tribunal. Once the Tribunal itself has accepted as a fact that there is an error or mistake apparent on the face of the order, meaning thereby, it has not considered a relevant provision of the Act how far it is correct to contend that it is not a fit case for remand. The Tribunal has given a categorical finding that it is a case for review of the order passed by it and that order is set aside though in relation to two revision applications but judgment in all the three revision applications was common judgment. So this judgment given by the Tribunal is equally applicable in the case of the petitioner. It is not in dispute that the order which has been passed by the Tribunal on review applications though of other person has not been challenged by the respondents in this case. In view of this fact, the order of the Tribunal in review application attained the finality and that equally applies to this case also, more so, when Mr. Patel was the counsel there for the respondent therein. #. Otherwise also, I fail to see what prejudice will be caused to the respondents in case this matter is remanded back to the Tribunal. They are in possession of the land in dispute and they shall continue in possession till the matter is decided finally by the Tribunal. Learned counsel for the respondents contended that the respondents may not be in a position to engage an advocate. However, whether it is correct or not, it is difficult to say at this stage but this has not come from the mouth of the respondents. But if they are not in a position to engage an advocate and their case falls under any of the category as provided under section 12 of the Legal Services Authority ACt, 1985 certainly they will be entitled for free legal aid. Moreover, because the party may not be in a position to engage an advocate how far it can be a ground not to remand the matter back where the Court is satisfied that the matter deserves to be remanded back. ##. In the result, this petition succeeds and the same is allowed. The order of the Tribunal dated 23-1-1990 so far it relates to revision application No.TEN.B.A.962/76 is quashed and set aside and the matter is remanded back to the Tribunal with a direction to decide the matter afresh in accordance with law. The Tribunal is directed to restore the revision applications to its original number and decide the same on merits in accordance with law within a period of six months from the date of receipt of writ of this order. Rule is made absolute accordingly with no order as to costs. ********** zgs/-