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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • D.U. Shah and A.D. Padiwal for P.M. Thakkar
  • M.I. Hawa
Judges
  • Hon'ble Mr. Justice Amratlal Paramananddas Ravani
Acts
  • S. 33(2) of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as 'the Act')
  • S. 29(3) of the Bombay Tenancy and Agricultural Lands Act, 1948
  • S. 61 of the Madhya Pradesh Industrial Relations Act.
  • S. 37 of the Advocates Act (25 of 1961).
  • S. 9. Section 10
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • D.U. Shah and A.D. Padiwal for P.M. Thakkar
  • M.I. Hawa
Judges
  • Hon'ble Mr. Justice Amratlal Paramananddas Ravani
Acts
  • S. 33(2) of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as 'the Act')
  • S. 29(3) of the Bombay Tenancy and Agricultural Lands Act, 1948
  • S. 61 of the Madhya Pradesh Industrial Relations Act.
  • S. 37 of the Advocates Act (25 of 1961).
  • S. 9. Section 10
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitions arise from four connected matters in which the petitioners are holders of vacant land within the urban agglomeration of Rajkot and subject to the Urban Land (Ceiling & Regulation) Act, 1976 ("the Act"). The petitioners filled forms under S.6 of the Act and submitted objections to draft statements served under S.8(3). All objections were not accepted by the competent authority, which thereafter passed final orders under S.9. Aggrieved by those final orders of the competent authority, the petitioners preferred appeals under S.33 of the Act to the appellate authority. The appellate authority heard the appeals, set aside the judgments and orders of the competent authority and remanded the matters to the competent authority to decide in accordance with law. The petitioners challenged the appellate authority's orders by filing writ petitions under Article 227 of the Constitution of India, arguing that the appellate authority lacked power under S.33(2) to remand the matters to the competent authority.

Legal Issues Presented

  1. Whether, in an appeal filed by a landholder under S.33 of the Act, the appellate authority has the power to remand the matter to the competent authority for decision in accordance with law (i.e., whether the phrase "pass such orders thereon as it deems fit" in S.33(2) includes a power to remand).
  2. Whether the omission of a provision analogous to S.12(5) (which makes Civil Procedure provisions applicable) when framing S.33 indicates that the appellate authority under S.33 does or does not possess remand powers.
  3. Whether allowing remand by the appellate authority under S.33(2) would conflict with the revisional powers of the Government under S.34 of the Act.
  4. Whether orders passed by the appellate authority under S.33(2) are subject to revision by the Government under S.34 (i.e., the nature and finality of S.33(3) orders).

Arguments of the Parties

Petitioners' Arguments

  • The phrase "as it deems fit" in S.33(2) does not include the power to remand the matter to the competent authority; thus the appellate authority can only allow the appeal or confirm/dismiss the appeal, not remand.
  • If remand is permitted, the entire case would be reopened and that power cannot be exercised by an appellate authority under S.33.
  • The provisions of the Civil Procedure Code (notably S.107 and O. XLI) confer remand powers on appellate courts, but there is no corresponding provision in S.33 of the Act; therefore, such remand powers are absent for S.33 appeals.
  • The Government alone (under S.34) can exercise remand/revisional powers; conferring remand power on the appellate authority would create conflict with S.34.
  • The appellate authority's remand would amount to a suo motu exercise of powers similar to revisional powers conferred on the Government.

The opinion does not contain a detailed account of the opposing party's (e.g., competent authority or State) oral or written arguments in the same granular form as the petitioners' submissions.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shivlal Thakershi Gotecha v. The Competent Authority, 1987 (1) 28 Guj LR 267 (AIR 1987 Guj 155) Authority that provisions of Civil P.C. do not apply to proceedings of appeal under S.33 of the Act (para 9 of that judgment). The court respectfully agreed with this decision and used it to support the proposition that interpretation of S.33 must be based on the Act itself, not by importing Civil P.C. provisions.
Babulal Nagar v. Shree Synthetics Ltd., AIR 1984 SC 1164 Interpretation of phrase "as it thinks fit" as conferring very wide jurisdiction, enabling an authority to take an entirely different view on the same facts (paras 16–17 of that judgment). The court relied on this authority to hold that the phrase "as it deems fit" in S.33(2) likewise confers wide jurisdiction on the appellate authority under the Act.
Raja Ram Mahadev Paranjape v. Aba Maruti Mali, AIR 1962 SC 753 The phrase "as he deems fit" does not allow an authority to make orders beyond considerations within the statute; wording is general to cover varied circumstances but is limited by the statute's scheme (para 14 of that judgment). The court used this precedent to emphasize that wide powers must nevertheless be germane to the statute and cannot transcend the limits of the Act.
V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281 Interpretation of "as it deems fit" (in S.37 of the Advocates Act): orders must be germane to the Act and its purposes; the authority's latitude cannot transcend those limits. The court applied this principle to conclude that S.33(2) confers wide powers but those powers are limited to what is germane to the Act and its objectives.
Hiralal v. Sales Tax Officer, AIR 1973 SC 1034 Primary rule of statutory interpretation: when words are plain, precise and unambiguous, the legislative intent is to be gathered from the language itself and literary construction governs (para 21 cited). The court applied this canon to hold that the deliberate omission in S.33 (compared to S.12(5) and S.30) must be read as intentional, and that the words used in S.33(2) reflect legislative intent to confer wide powers.
Minish K. Sheth v. State of Gujarat, 1985 (1) 26 Guj LR 202 (AIR 1985 Guj 56) Earlier decision by the same court where the question whether an appellate order under S.33 is revisable under S.34 was left open. The court noted its earlier observation and distinguished that the revisability question arises in the present petitions; it used S.33(3) to observe that appellate orders appear to be final under the Act.
Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1975 SC 2092 Authority on the concept of who is a "person aggrieved". The court observed that it was unnecessary in these petitions to decide who qualifies as a "person aggrieved" and therefore did not apply the decision to resolve that issue here.

Court's Reasoning and Analysis

The court conducted a stepwise statutory and purposive analysis grounded in the text of the Act and relevant precedents:

  1. The court first identified the object and scheme of the Act: to prevent concentration of urban land, curb speculation/profiteering, impose ceilings on vacant land holdings and provide for acquisition and regulation. This public-interest scheme informs permissible interpretations of powers conferred under the Act.
  2. It then compared different appeal provisions in the Act. Sections 12(5) and 30(4) expressly import the powers and procedure of a Civil Court (i.e., Civil P.C. provisions including S.107 and O. XLI). In contrast, S.33 contains no such incorporation; instead S.33(2) uses the language "pass such orders thereon as it deems fit, as expeditiously as possible."
  3. Relying on literal construction principles (Hiralal), the court concluded the legislature deliberately omitted Civil P.C. provisions from S.33 and chose broader language; therefore interpretation must proceed from S.33's text and the Act's scheme itself.
  4. The court examined authoritative precedents interpreting similar phrases ("as it thinks fit" / "as he deems fit") and extracted two guiding principles:
    • The phrases convey wide jurisdiction and permit an appellate/revisional authority to take an entirely different view on the same facts (Babulal Nagar).
    • That wide jurisdiction is, however, constrained by the statute: orders must be germane to the Act and its objectives and cannot be made on considerations beyond the statute (Raja Ram Mahadev Paranjape; V.C. Rangadurai).
  5. Applying these principles, the court held that the phrase in S.33(2) confers wide powers on the appellate authority which include the power to remand, provided any order (including remand) is germane to the Act and its purposes.
  6. The court rejected the petitioners' contention that only the Government under S.34 may remand. It reasoned that:
    • S.34's revisional jurisdiction expressly excludes matters where an appeal has been preferred under S.12, S.30 or S.33; therefore no conflict arises because the Government's revisional power and the appellate power under S.33 operate on different classes of cases.
    • The two provisions (S.33 and S.34) include similar wide language ("as it deems fit" / "as it may think fit") and therefore the legislature intended overlapping breadth appropriate to each authority's role (appellate and revisional) in policing the competence of the competent authority.
  7. The court also addressed procedural concerns: the appellate authority's powers arise only upon receipt of an appeal under S.33(1); it does not have suo motu powers to call for papers (those are vested in the Government under S.34). Thus, remand by the appellate authority does not amount to exercising the Government's suo motu revisional jurisdiction.
  8. Finally, the court reviewed the record and found no error apparent on the face of it in the appellate authority's exercise of remand in the four petitions; accordingly it declined to substitute its own factual appraisal in Article 227 proceedings.

Holding and Implications

Holding: The court's operative conclusion was that the appellate authority exercising powers under S.33(2) of the Urban Land (Ceiling & Regulation) Act, 1976 may remand a matter to the competent authority for deciding the same in accordance with law, because the phrase "pass such orders thereon as it deems fit" includes the power to remand, subject to the limitation that any order must be germane to the Act and its objectives.

Implications:

  • The immediate consequence is that the appellate authority's orders remanding the matters to the competent authority were held to be within its statutory powers; accordingly, the four writ petitions under Article 227 were dismissed and the appellate orders were sustained.
  • The court clarified there is no conflict between S.33(2) and S.34: S.33 applies to appeals received by the appellate authority and S.34 vests revisional / suo motu powers in the Government only for matters where no appeal has been preferred; both authorities may have similarly wide powers within their respective domains.
  • The exercise of remand power by the appellate authority is not a suo motu exercise akin to S.34 revisional jurisdiction because the appellate authority acts only after an appeal is filed under S.33(1).
  • The court emphasized the limiting principle that the appellate authority's wide powers must remain germane to the Act and its purposes; it cannot pass orders beyond the statutory scheme.
  • No broader change in precedent was announced by this judgment; the court relied upon and applied existing precedent to interpret the language of S.33(2) and the Act's legislative scheme.
  • Practical outcome for the parties: the petitions were dismissed, interim relief earlier granted stood vacated, rules discharged and no order as to costs was made.

Disposition: All four petitions failed and were dismissed. (Rule discharged; no order as to costs; interim relief vacated.)

Show full summary ...

    Nagindas Keshavlal Mehta And Etc. v. The Competent Authority And Dy. Collector, Rajkot And Another Etc.

    1. Even in an appeal filed by a landholder, will it or will it not be open to the Appellate Authority exercising powers under S. 33(2) of the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as 'the Act') to remand a matter to the Competent Authority for deciding the same in accordance with law? Petitioners contend, phrase "as it deems fit" will not take within its sweep the power to remand. The contention needs to be examined in the background of the relevant statutory provisions and the facts that follow.

    2. In all these petitions common questions of law and facts arise, the petitioners are holders of vacant land situated within the urban agglomeration area of Rajkot, to which the provisions of the Act are applicable.

    3. The petitioners had filled in forms under S. 6 of the Act. In response to the notice served together with the draft statement as provided under S. 8(3) of the Act, they submitted objections against the draft statement. Their forms were decided by the competent authority. However, it appears that all objections submitted by the petitioners were not accepted by the competent authority. After following the necessary procedure the competent authority passed final order as provided under S. 9 of the Act. The petitioners felt aggrieved by the order passed by the competent authority and, therefore, they preferred appeal under S. 33 of the Act before the appellate authority. The appellate authority, after hearing the parties set aside the entire judgment and order passed by the competent authority and ordered to remand the matter to the competent authority for deciding the case in accordance with law. In each of the petitions the order passed by the appellate authority is challenged by the petitioners by invoking the provisions under Art. 227 of the Constitution of India.

    4. The petitioners contend that in an appeal filed by an aggrieved person before the appellate authority no order except that of allowing the appeal, or confirming the order passed by the competent authority and dismissing the appeal, can be passed by the appellate authority. Thus, in all these four petitions the common question agitated is as regards the powers of the appellate authority under S. 33 of the Act. The petitioners contend that if the matter is remanded to the competent authority the entire case would be reopened; such power cannot be exercised by the appellate authority exercising powers under S. 33 of the Act.

    5. It is necessary to have a look at certain provisions of the Act. The Act has been enacted with a view to preventing concentration of urban land in the hands of a few persons and speculation and profiteering in urban land. The ultimate purpose sought to be served by the Act is to bring out an equitable distribution of land in urban agglomerations so as to subserve the common good. For this purpose, in urban agglomeration area ceiling on holding of vacant land is imposed under the Act, and provision for acquisition of the land in excess of the ceiling limit is made. There is provision for regulation of construction of buildings on vacant land and such other connected matters.

    6. As provided under S. 3 of the Act, no person is entitled to hold vacant land in excess of the ceiling limit except as otherwise provided under the Act. Section 4 prescribes ceiling limit in respect of different urban agglomeration areas. Section 5 provides that transfer of vacant land after the commencement of the Act shall be void if the same is effected otherwise than in accordance with the provisions of the Act. A person holding vacant land in excess of the ceiling limit is required to fill in form under S. 6 of the Act, and after necessary procedure as laid down under the Act is complied with the final order is to be passed by the competent authority under S. 9. Section 10 provides for acquisition of vacant land in excess of the ceiling limit. In order to appreciate the contention of the learned counsel for the petitioners it is necessary to have a look at the provisions made in the Act with regard to appeals. section 12(1) provides for constitution of an urban land tribunal. The Tribunal so constituted is empowered to hear appeals against orders passed by the competent authority under S. 11(8), determining the amount of compensation to be paid in respect of the land acquired under the Act. The appellate powers of the Tribunal are defined under S. 12(5) of the Act which reads as follows:

    "12(5). In deciding appeals the Tribunal shall exercise all the powers which a civil Court has and follow the same procedure which a civil Court follows in deciding appeals against the decree of an original court under the Code of Civil Procedure, 1908 (5 of 1908)."

    Under S. 13 of the Act a second appeal is provided to the High Court against an order passed by the Tribunal under S. 12 of the Act. Under S. 30(2), an appeal is provided to the Tribunal against any order passed by the competent authority under sub-sec.(l) of S. 30 of the Act in respect of demolition, either wholly or partly of any building or with respect to direction for modification of the construction or stopping the same. The powers of the Tribunal while deciding appeal under S. 30 are the same as that of the Tribunal deciding appeal under S. 12 of the Act. This is clear from the provisions of sub-sec.(4) of S. 30. Thus, as far as appeals under S. 12 and S. 30 are concerned, the powers of the Tribunal and the procedure to be followed are the same as that of a Civil Court deciding appeals against the decree of an original court under the Code of Civil Procedure, 1908.

    11. As provided under S. 107 of the Civil P.C. an appellate court shall have power, subject to such conditions and limitations as may be prescribed (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; and (d) to take additional evidence or to require such evidence to be taken. Specific powers of remand are to be found in O. XLI, Rr. 23 and 23A. Referring to the aforesaid provisions of the Civil P.C. it is contended that there is no such power conferred upon an appellate authority under S. 33 of the Act and therefore the appellate authority exercising powers under S. 33 of the Act cannot order that the case be remanded to the competent authority. The argument cannot be accepted. Provisions of S. 33 of the Act are not required to be interpreted by having recourse to the provisions of Civil P.C. The Act together with the rules framed thereunder provides for its own machinery. It is a piece of legislation which deals with substantive rights of the parties and it also provides as to how the proceedings under the Act will be regulated. Unless specifically provided for in the Act, or the rules framed thereunder, provisions of Civil P.C. cannot be invoked while dealing with matters under the Act. In fact it is the case of the petitioners that the provisions of Civil P.C. are not applicable to the proceedings under the Act. In this connection the learned counsel for the petitioners has drawn my attention to a decision of this High Court in the case of Shivlal Thakershi Gotecha v. The Competent Authority, 1987(l) 28 Guj LR 267: (AIR 1987 Guj 155). My learned brothal M.B. Shah, J. has, in para 9 of the judgment, in terms held that provisions of Civil P.C. do not apply to the proceedings of appeal under S. 33 of the Act. I am in respectful agreement with the aforesaid decision. In above view of the matter the scope of powers of the appellate authority under S. 33 of the Act will have to be decided on the basis of the provisions of S. 33 itself read with other provisions of the Act, and the rules.

    12. In the Act there are three different provisions by which appeal against original order is provided for. Section 12(5) provides for appeal against orders passed by the competent authority under S. 11(8) as regards the determination of amount of compensation. Similarly, S. 30(2) of the Act provides for appeal against an order passed by the competent authority under S. 30(l) of the Act. The aforesaid appeals are to be filed before the Tribunal constituted under the provisions of S. 12 of the Act. Section 12(5) in terms provides that the Tribunal shall exercise all the powers of a civil court and shall follow the same procedure which a civil court follows while deciding appeals against decree of an original court under the Civil P.C., 1908. Thus in case of appeals under S. 12 and under S. 30 of the Act, the power of the Tribunal while deciding the appeals before it is as provided under the Civil P.C. There the provisions of S. 107 and relevant provisions of O. XLI of the Civil P.C. will be applicable. However, in cases of appeal under S. 33, the legislature has consciously omitted to apply the same provisions as provided in S. 12(5) of the Act. There is not only conscious omission, but it has made a deliberate and distinct provision under S. 33(2) of the Act which empowers the appellate authority to "pass such orders thereon as it deems fit, as expeditiously as possible". When the legislature has deliberately made two separate provisions and has consciously omitted to refer to the provisions of Civil P.C. while providing for appeals under S. 33 of the Act, the only course left open to the court is to determine the width of powers of the appellate authority by reading the section itself.

    13. In view of the aforesaid discussion, the question is, whether the phrase "pass such orders thereon as it deems fit" would also include power to remand or not? In the case of Babulal Nagar v. Shree Synthetics Ltd., AIR 1984 SC 1164, the phrase "as it thinks fit" came up for consideration before the Supreme Court. The phrase "as it thinks fit" occurred in S. 61 of the Madhya Pradesh Industrial Relations Act. While interpreting this phrase the Supreme Court has in paras 16, 17 of the judgment observed as follows :

    "The main part of S. 61 clearly spells out the jurisdiction of the Industrial Court to pass any order in reference to the case brought before it as it thinks fit. The expression 'as it thinks fit' confers a very wide jurisdiction enabling it to take an entirely different view on the same set of facts. The expression 'as it thinks fit' has the same connotation as, unless context otherwise indicates, 'as he deems fit"
    '.

    In the case of Raja Ram Mahadev Paranjape v. Aba Maruti Mali, AIR 1962 SC 753, the phrase "as he deems fit" occurring in S. 29(3) of the Bombay Tenancy and Agricultural Lands Act, 1948 came up for consideration, and in para 14 of the judgment the Supreme Court has observed as follows:

    "The words "as he deems fit" do not bestow a power to make any order on considerations dehors the statute which the authorities consider best according to their notions of justice. Obviously, this provision has been framed in general terms because it covers a variety of cases, namely, applications by landlords and tenants in different circumstances, each of which circumstance may call for a different order under the Act."

    Same appears to be the reason why the legislature has used identical language while enacting the provisions of S. 33 of the Act. As pointed out hereinabove, various types of orders passed by the competent authority are made appealable under the provisions of S. 33 of the Act. The very nature of the orders which are made appealable under S. 33 of the Act may, in each case, require a different order under the provisions of S. 33 of the Act. That is the reason why the appellate authority is given wide jurisdiction enabling it to take an entirely different view on the same set of facts, which should be consistent with the object and spirit of the Act.

    14. In the case of V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281, the Supreme Court has interpreted the phrase "as it deems fit" occurring in S. 37 of the Advocates Act (25 of 1961). It is observed by the Supreme Court as follows:

    "Wide as the power may be, the order must be germane to the Act and its purposes, and latitude cannot transcend those limits."

    Thus, having regard to the provisions of S. 33 of the Act, the only limit on the powers of the appellate authority is that the order must be germane to the Act and its purposes. The appellate authority cannot pass an order dehors the provisions of the statute under which it exercises the powers. The provision of the statute which confers powers itself determines the limit of its power though couched in a very wide language. In above view of the matter, if the order of remand of a matter is germane to the Act and its purposes the order would be both within the powers of the appellate authority as well as perfectly legal and valid. It is not argued before me, nor do I find from the record of the cases, that the orders passed by the appellate authority are not germane to the Act and its purposes :

    14A. As per the well established canons of interpretation of statute, first and the foremost rule of construction is the literary construction. All that the court has to see at the very outset is as to what does that provision say? If the provision is unambiguous and if from that provision the legislative intent is clear, other rules of construction of statutes need not be called into aid (see Hiralal v. Sales Tax Officer., AIR 1973 SC 1034 para 21). As a general principle of interpretation, when the words of a statute are plain, precise and unambiguous, the intention of the legislature is to be gathered from the language of the statute itself and no external aid is necessary. However, in the instant case, when one reads the other provisions made by the legislature in Ss. 12 and 30 regarding appeal to the Tribunal, wherein provisions of Civil P.C have been specifically mentioned, it becomes abundantly clear that the legislature intended to confer wide powers on the appellate authority while it used the language "pass such orders therein as it deems fit" in S. 33(2) of the Act.

    14B. Conferment of such wide power is in conformity with the spirit and object of the Act. The mischief sought to be prevented by the Act is the concentration of urban land in the hands of few persons and speculation and profiteering in urban land. The object is equitable distribution of land in the urban agglomerations so as to subserve the common good. Thus society at large has stake in the proper implementation of the Act. If history and realities of life provide any guide, it would be axiomatic to say that human ingenuity has no limits in finding out the ways of avoiding and circumventing the provisions of law, much more so in cases where rights in respect of private property and profit-making are sought to be regulated. Therefore, the legislature has wisely thought it fit to confer very wide powers on the appellate authority exercising powers under S. 33 of the Act and also on the Government exercising revisional powers under S. 34 of the Act. Just as human ingenuity has no limits for inventing and adopting devise for avoiding and circumventing the provisions of law, the appellate authority and the revisional authority exercising powers under the Act also are not fettered with any limitation on their power except the limitations which are germane to the Act and its purposes.

    15. The argument advanced by the learned counsel for the petitioners may be examined from another angle. According to the learned counsel for the petitioners, the appellate authority exercising powers under S. 33 of the Act can either confirm the order passed by the competent authority or allow the appeal and set aside the order passed by the competent authority, but it cannot remand the matter to the competent authority. It may be noted that under the provisions of S. 34 of the Act, the orders against which an appeal is preferred under the provisions of S. 12, S. 30 and S. 33 of the Act are taken out of the purview of the revisional jurisdiction of the Government. Therefore, all that a landholder is required to do is to obtain an erroneous. order from the competent authority which may be largely in his favour; prefer an appeal under S. 33 of the Act to the appellate authority as far as that part of the order which is against him, then sit silent. Ultimately lose the appeal. That order will be final as provided under S. 33(3) of the Act. This erroneous order can be bona fide and can be 'managed' also. The term 'managed' connoter everything that commonsense should dictate having regard to the realities of life prevailing in urban land market. Once an appeal is preferred under S. 33 of the Act the Government cannot take the matter in revision under S. 34 of the Act. The appellate authority while going through the papers of the appeal finds that a grossly erroneous and improper order is passed by the competent authority in favour of the landholder. That part of the order would naturally be not appealed against by the landholder. Even in such cases the appellate authority will have to remain silent spectator and allow the illegality and/or impropriety to perpetuate. To avoid such a situation, the provisions of S. 33. have been made wherein wide powers are conferred on the appellate authority, so that the appellate authority itself can take stock of the situation and prevent the damage being done to the society at large.

    16. The scheme of the Act appears to be that the orders passed by the competent authority may not become final at the leval of competent authority only. Even the orders which are appealable under Ss. 12, 30 and 33 and against which appeal is not preferred are subject to revision by the Government under S. 34. Moreover, all other orders except the orders passed under S. 11 and S. 30(1) of the Act can be challenged in appeal under S. 33 off the Act by any person aggrieved by such order. These orders would be examined by the appellate authority in appeal. Thus, as per the scheme of the Act each and every order passed by the competent authority will come up for scrutiny either at the level of the appellate authority under S. 33 of the Act or at the level of the Government under S. 34 of the Act. Be it noted that appellate authority exercising powers under S. 33 and revisional authority exercising powers under S. 34 of the Act are conferred with almost the same width of powers. Under S. 34 of the Act, the Government has powers to pass orders 'as it may think fit'. As held by the Supreme Court in the case of Babulal Nagar (AIR 1984 SC 1164) (supra) the two phrases "as it may think fit" and "as it deems fit" have same connotation unless the context otherwise indicates. Thus the revisional powers conferred upon the State Government under S. 34 of the Act and the appellate powers conferred upon the appellate authority under S. 33 of the Act are almost equal as far as the nature of the order to be passed by the respective authority is concerned. The intention of the legislature appears to be that the order passed by the competent authority is not to be treated as final. Wherever the landholder prefers an appeal, the appellate, authority exercises powers under S. 33 of the Act. In other cases the Government may suo motu take up proceedings in revision under S. 34 of the Act and may pass the same of similar orders as may be passed by the appellate authority under the Act. The object of keeping check on the powers exercised by the competent authority is thus achieved by making almost similar provisions under S. 33 and S. 34 of the Act.

    17. It is contended that the Government alone can exercise powers of remand and not the appellate authority. The contention cannot be accepted. When the Government exercises powers under S. 34 of the Act it has undoubtedly power to remand the matter to the competent authority. As shown hereinabove, the phrase "as it deems fit" occurring in S. 33(2) of the Act takes within its sweep the power to remand the matter to the competent authority. Thus, this power is definitely conferred upon the appellate authority also.

    18. The learned counsel for the petitioner submitted that on the one hand the Government may exercise powers under S. 34 of the Act and remand the matter to the competent authority and on the other hand if these powers of remand are conferred on the appellate authority, then there will be conflict between the two provisions. There is no such conflict. The matters which go before the appellate authority under S. 33 of the Act are not to go before the Government at all. The revisional powers of the Government are circumscribed by the phrase "and against which no appeal has been preferred under S. 12, 30 or 33 of the Act". The matters in which appeal is preferred, the Government is precluded from exercising revisional jurisdiction under S. 34 of the Act. Moreover orders passed under S. 33 by the appellate authority are final as provided under S. 33(3) of the Act. Therefore, there is no conflict whatsoever between the two provisions as is sought to be projected.

    19. The learned counsel for the petitioners has referred to a decision rendered by me in the case of Minish K. Sheth v. State of Gujarat, 1985 (1) 26 Guj LR 202: (AIR 1985 Guj 56). Therein if has been observed that the question as to whether an order passed by the appellate authority under S. 33 of the Act is revisable by the Government under S. 34 of the Act, did not arise and, therefore, the same was kept open. That question incidently does arise in these petitions. As provided under the provisions of S. 33(3) of the Act it does appear that the orders passed by the appellate authority under S. 33(2) of the Act shall be final as far as the provisions of the Act is concerned.

    20. The earned counsel for the petitioner in special civil application No. 6014 of 1986 has adopted all the arguments submitted by the learned counsel in S.C.P. 5715/86. In addition he submitted that an appeal under S. 33 of the Act can be preferred only by a "person aggrieved" by an order made by the competent authority. In his submission, if the appellate authority can set aside the order passed by the competent authority, which was in favour of the landholder and then if the matter is ordered to be remanded to the competent authority, it would amount to treating the appeal as if the same is preferred by the competent authority. In order to show as to who can be said to be an aggrieved person, the learned counsel for the petitioners has relied upon the decision in the case of Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1975 SC 2092. It is not necessary to consider in these petitions as to who is "aggrieved person". The question is not as to who prefers appeal before the appellate authority. The question which is required to be decided is as to the width of power of the appellate authority exercising powers under S. 33 of the Act.

    21. It is submitted that if the appellate authority sets aside an order passed by the competent authority which may be in favour of the landholder at whose instance the appeal is preferred, it would amount to suo motu exercise of powers. This is not correct. The appellate authority exercises powers only after an appeal is preferred before it. The appellate authority gets powers to decide the appeal only after the appeal is received by it. This is clear from the following words occurring in sub-section (2) of S. 33 of the Act.

    "On receipt of an appeal under subsection (1), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such orders thereon as it deems fit as expeditiously as possible."

    If the landholder or any other person aggrieved by the order passed by the competent authority does not prefer appeal, against an order passed by the competent authority, and if the appellate authority does not receive an appeal, it has no power to call for the papers suo motu. These powers are conferred upon the Government under S. 34 of the Act. While exercising powers under S. 33 of the Act, the appellate authority does not exercise suo motu powers, but it exercises powers in appeals which have been received by it. Therefore to say that the appellate authority exercises suo motu powers which are conferred upon the Government is not correct. It may be that ultimately the order that may be passed by the appellate authority may be the same as that may be passed by the Government under S. 34 of the Act. But that does not mean that the appellate authority exercises suo motu powers when it sets aside an order passed by the competent authority and remands the matters to the competent authority for deciding the same in accordance with law.

    22. Rest of the points urged by the learned counsel for the petitioners pertain to the individual facts of each case. I do not find any error, much less an error apparent on the face of the record, as far as the finding on merits arrived at by the appellate authority is concerned. Be it noted that these are petitions under Art. 227 of the Constitution, and it is not open to me to go into the finding of facts arrived at by the appellate authority. Moreover, in order to see that no prejudice is caused to the petitioners in the proceedings before the competent authority it would be just and proper to refrain from discussing the points having bearing on facts of each case. It is clarified that it will be open to the petitioners to make necessary submissions before the competent authority on facts as well as on law points.

    23. In above view of the matter, I do not find any error, much less an error apparent on the face of the record. In the result all the four petitions fail and they are hereby rejected. Rule discharged with no order as to costs. Interim relief granted earlier in each petition stands vacated.

    24. Petitions dismissed.

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    Comments

    Nagindas Keshavlal M... v. The Competent Author...
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