MANILAL RAVJI NAYAKA Vs. DHIRAJLAL GANDABHAI DESAI

JUDGEMENT

(1.) THIS appeal under clause XV of the Letters Patent is directed against the order dated 3-10-1978 passed by P.D. Desai, J. (as he then was) summarily rejecting special civil application No. 1965 of 1978. The said petition in its turn was directed against the decision of the Gujarat Revenue Tribunal dated 27-7-1978 passed in exercise of its powers under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948 ('The Tenancy Act' for short). The appellants who were the original petitioners before the learned single Judge contended that they were tenants of the land S.No. 494 admeasuring 3 acres 31 gunthas situated at village Untdi in Bulsar taluka of Bulsar district. Their contention was accepted by the Mamlatdar in the proceedings under Section 70(b) of the Tenancy Act. However, in appeal before the Assistant Collector, the appellants lost and the Assistant Collector took the view that the appellants were not tenants of the land in question. That decision of the Assistant Collector was confirmed by the Gujarat Revenue Tribunal by its aforesaid order, and that is how, the appellants as original petitioners came to this court by filing the petition which purported to be under Art.226/227 of the Constitution of India. THIS petition, as noted earlier, was summarily rejected by P.D. Desai, J. and that has resulted in the present appeal.

(2.) MR. Shethna for the respondents raised a preliminary objection that this appeal does not lie as it is directed against the decision of the learned single Judge in exercise of his powers under Art.227. MR. Shethna fairly stated that in those days because of 42nd Amendment which was holding the field, the word 'Tribunal' was deleted from Art.227. However, by the said amendment, the words 'any other purpose' were also deleted from Art.227. Therefore, the proceedings before the learned single Judge can be treated to be in the nature of revision proceedings and cannot be treated to be proceedings in exercise of extraordinary original jurisdiction of this court and hence the Letters Patent appeal is not maintainable as clause XV would not apply to orders passed by the High Court in exercise of its revisional jurisdiction or supervisory jurisdiction. In support of this contention, he invited our attention to a recent Division Bench decision of this court consisting of P.R. Gokulakrishnan, C.J. and R.J. Shah, J. in the case of Naranbhai v. Naranbhai, reported in 30 Guj LR 21 : ( AIR 1989 Guj 181). The Division Bench speaking through Shah, J. in terms has taken the view that during the relevant time when 42nd Amendment was holding the field and before the position was restored by 44th Amendment, if the High Court's jurisdiction was invoked under Art.226/227 by the petitioner challenging the order of the Tribunal Art.227 would not be available as the word 'Tribunal' was deleted from Art.227 by 42nd Amendment and even Art.226 would not apply as words 'any other purpose' were also deleted from Art.226 by 42nd amendment, and consequently, no Letters Patent appeal will lie against the decision of the learned single Judge in proceedings purporting to be under Art.226/ 227 of the Constitution. This judgment squarely answers the point in favour of the respondent. However, learned Advocate for the appellants invited our attention to an earlier Full Bench decision of this court in the case of Patel Kashiram Lavjibhai v. Narottamdas Bechardas in Letters Patent Appeal No. 260 of 1977 decided on 19-6-1978, reported in 15 Guj LT 181: ( AIR 1979 Guj 1). This very question was examined by the Full Bench. The Full Bench speaking through B. J. Divan, C.J. took the view that when Art.227 was not available for revising decision of the Tribunal on account of 42nd Amendment, such decision can be said to have been rendered under Article 226 in exercise of the High Court's extraordinary jurisdiction and against such decision, Letters Patent Appeal under clause XV could lie. This F.B. decision is also directly on the point and takes a view quite contrary to the view taken by the later Division Bench judgment. Unfortunately, attention of the Division Bench which decided Naranbhai's case ( AIR 1989 Guj 181) (supra) was not invited to this earlier F.B. decision. If this decision was pointed out to the Division Bench, there is no doubt that the Division Bench would have followed the decision of the F.B. which was binding on it. As this earlier binding F.B. decision was not pointed out to the later Division Bench which decided Naranbhai's case (supra), it must be held that the decision of the Division Bench in Naranbhai's case is rendered per incurium and cannot have any binding effect. Consequently, following the aforesaid Full Bench decision directly on the point, we must hold that Letters Patent appeal in the present case is maintainable. The preliminary objection is, therefore, overruled. Appeal dismissed.