Judgment:
A.N. Divecha, J.
1. The order passed by the Deputy Collector (Tenancy Appeals) at Vadodara on 30th May, 1983 in Tenancy Appeal No. 1 of 1977 as affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad on 8th April, 1986 in Revision Application No. TEN.B.A. 1651 of 1983 is under challenge in this petition under Article 227 of the Constitution of India. By the impugned order, the Deputy Collector upset the order passed by the Mamlatdar and Agricultural Lands Tribunal at Karjan ('the first authority' for convenience) on 21st September, 1976 in Tenancy Case No. 1651 of 1975 holding the present petitioner to be entitled to restoration of three parcels of land bearing Survey Nos. 452, 453/2 and 487/5 admeasuring 3 Acres 9 Gunthas, 1 Acre 1 Guntha and 4 Acres 17 Gunthas situated in village Valan, Taluka Karjan, District Vadodara ('the disputed lands' for convenience) under Section 32(1B) of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Act' for brief).
2. The facts giving rise to this petition move in a narrow compass. The petitioner made an application under Section 32(1B) of the Act to the first authority praying for restoration of possession of the disputed lands on the ground that he cultivated them on the specified date, that is, 15th June, 1955. It came to be registered as Tenancy Case No. 1651 of 1975. After recording evidence and hearing the parties, by his order passed on 21st September, 1976, the first authority held the present petitioner to be in possession of the disputed lands on 15th June, 1955 and ordered restoration of their possession to him. Its copy is at Annexure 'A' to this petition. The aggrieved respondents herein carried the matter in appeal before the Deputy Collector (Tenancy Appeals) at Vadodara. Their appeal came to be registered as Tenancy Appeal No. 1 of 1977. By his order passed on 30th May, 1984 in Tenancy Appeal No. 1 of 1977, the Deputy Collector (Tenancy Appeals) at Vadodara accepted the appeal and set aside the order passed by the first authority at Annexure 'A' to this petition. A copy of the appellate order is at Annexure 'B' to this petition. The aggrieved petitioner herein carried the matter in revision before the Gujarat Revenue Tribunal at Ahmedabad. His revisional application came to be registered as Revision Application No. TEN. B.A. 1651 of 1983. By its ex-parte decision rendered of 29th October, 1985 in the aforesaid revisional application, the Gujarat Revenue Tribunal accepted it and set aside the appellate order at Annexure 'B' to this petition and restored the order passed by the first authority at Annexure 'A' to this petition. A copy of its decision is at Annexure 'C' to this petition. The respondents herein thereupon approached the Gujarat Revenue Tribunal at Ahmedabad by means of Restoration Application No. TEN.D.A. 176 of 1985 for setting aside its decision at Annexure 'C' to this petition and for restoration of the revisional application in question to file. By its decision rendered on 12th December, 1985 in the aforesaid restoration application, the Gujarat Revenue Tribunal at Ahmedabad accepted it and set aside its decision at Annexure 'C' to this petition and restored the matter to file. A copy of the decision in the aforesaid restoration application is at Annexure 'D' to this petition. The present petitioner's revisional application was thereupon heard afresh. By its decision rendered on 8th April, 1986 in the aforesaid revisional application, the Gujarat Revenue Tribunal at Ahmedabad rejected it. Its copy is at Annexure 'E' to this petition. The petitioner has thereupon invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India for questioning the legality and validity of the appellate order at Annexure 'B' to this petition as affirmed in revision by the decision at Annexure 'E' to this petition.
3. It appears that the appellate authority decided the case against the present petitioner on the basis of some additional evidence sought to be produced before him with the application made on 17th March, 1978. It is at page 37 on the file of the Deputy Collector (Tenancy Appeal) at Vadodara in the proceedings registered as Tenancy Appeal No. 1 of 1977. Two pieces of documentary evidence were sought to be produced as additional evidence. One was a certified copy of the application made by the petitioner herein on 13th December, 1955 presumably under Section 32P of the Act for restoration of possession of the disputed lands taken away from him by the landlords,, that is, the respondents herein. It is at pages 43 to 45 in the proceedings of Tenancy Appeal No. 1 of 1977. The finding of fact recorded by the first authority in its order at Annexure 'A' to this petition was upset by the appellate authority mainly on the basis of the certified copy of the application purported to have been made by the present petitioner under Section 32P of the Act. As aforesaid, that piece of documentary evidence was produced by way of additional evidence.
4. Shri Mehta for the petitioner has submitted that the appellate authority had no power to take any additional evidence in the appellate proceedings except for the reasons to be recorded in writing. Shri Mehta for the petitioner has invited my attention to the application at page 37 in the appellate proceedings and has submitted that no order is passed granting that application for additional evidence. Shri Mehta has further submitted that no reasons are found to have been recorded in the appellate order at Annexure 'B' to this petition for taking the additional evidence on record. In fact, as submitted by Shri Mehta for the petitioner, the appellate authority has not at all referred to that piece of evidence as additional evidence. According to Shri Mehta for the petitioner, since the additional evidence was relied on by the appellate authority without recording any reason for admitting it to record, the appellate order at Annexure 'B' to this petition cannot be sustained in law. As against this, Shri Patel for the respondents has urged that, since the appellate authority has referred to additional evidence in his impugned order at Annexure 'B' to this petition, it can be deemed to have been accepted and the application for the purpose can be deemed to have been granted. Shri Patel for the respondents has further urged that non-recording of reasons in support of acceptance of the application for additional evidence would at the most be a procedural irregularity and would not vitiate the ultimate decision reached by the appellate authority in appeal. Besides, runs the submission of Shri Patel for the respondents, no such point was canvassed before the Gujarat Revenue Tribunal in revision by or on behalf of the present petitioner, and as such he cannot be permitted to raise this point in this petition under Article 227 of the Constitution of India. Shri Patel for the respondents has further urged that the appellate authority and the revisional Tribunal have concurrently held that the petitioner was not in possession of the disputed lands on 15th June, 1955 for the purpose of Section 32(1B) of the Act and this finding of fact cannot and need not be upset by this Court in exercise of its limited powers under Article 227 of the Constitution of India.
5. In order to appreciate rival submissions urged before me, it would be quite proper to look at the appellate powers of the appellate authority under the Act. Section 74 of the Act provides for an appeal against an order passed by the first authority. Sub-section (2) thereof provides that the provisions of Chapter XIII of the Bombay Land Revenue Code, 1879 ('the Code' for brief) would be applicable to appeals to the Collector under the Act as if the Collector were the immediate superior of the first authority.
6. The relevant provision in Chapter XIII of the Code for the present purpose is Section 209. It reads:
The appellate authority may for reasons to be recorded in writing either annul, reverse, modify or confirm the decision or order of the subordinate officer appealed against, or he may direct the subordinate officer to make such further investigation or to take such additional evidence as he may think necessary, or he may himself take such additional evidence:
Provided that it shall not be necessary for the appellate authority to record reasons in writing-
(a) when an appeal is dismissed summarily, or
(b) when the decision or order appealed from is itself a decision or order recorded in appeal, or
(c) when an appeal is made to the State Government under Section 204.
(Emphasis supplied)
It cannot be gainsaid that the appellate authority under Section 209 of the Code is empowered to take additional evidence himself in the appellate proceedings. The phraseology of Section 209 of the Code leaves no room for doubt that he has to record reasons for taking such additional evidence.
7. It is difficult to agree with Shri Patel for the respondents in his submission to the effect that the appellate authority has to record reasons if he annuls, reverses, modifies or confirms the decision or order of the subordinate officer appealed against and not otherwise. The reason therefor is quite simple. The proviso to Section 209 makes it clear in what circumstances the appellate authority has not to record reasons in writing. It does not say that the appellate authority has not to record reasons in writing while himself taking additional evidence in the appellate proceedings. When the proviso expressly specifies the circumstances or contingencies where the appellate authority has not to record reasons in writing, there is not escape from the conclusion that for all other matters enumerated in Section 209, the appellate authority has to record reasons in writing. The matters enumerated in Section 209 admittedly includes the power to take additional evidence by the appellate authority himself. The canon of construction expressio unius est exdusio alterius is applicable in the present case. Applying this canon of construction, I am of the opinion that, when an express provision is made for the appellate authority not to record reasons in writing with respect to certain matters' he is required to record reasons in writing for other expressly mentioned matters in the main provision.
8. In the present case no order appears on the application for additional evidence made by the present respondents at page 37 in the appellate proceeding. There is no mention in the appellate order at Annexure 'B' to this petition about acceptance or otherwise of additional evidence. When that piece of evidence is referred to in the appellate order at Annexure 'B' to this petition, it must be deemed to have been accepted as rightly submitted by Shri Patel for the respondents. However, that does not mean mat additional piece of evidence was accepted in accordance with law.
8.1 I am unable to agree with the submission urged before me by Shri Patel for the respondents to the effect that non-recording of reasons for accepting additional evidence in the appellate proceedings would be a mere procedural irregularity. Even a bare perusal of Section 209 of the Code would make it clear mat me power to take additional evidence at the appellate stage is circumscribed by the condition that there must be on record reasons in writing for me purpose. The condition precedent for exercise of powers infer alia for taking additional evidence on record at the appellate stage is recording of reasons in writing for me purpose. If that condition precedent is not fulfilled, the exercise of power would stand vitiated. It would be an invalid exercise of power. Any decision based on any such invalid exercise of power would certainly be illegal and invalid. The appellate order at Annexure 'B' to mis petition deserves to be quashed and set aside only on this ground.
9. The decision at Annexure 'E' to mis petition does not show that mis point was canvassed before me Gujarat Revenue Tribunal at Ahmedabad. It is true that the plea as to invalid exercise of the power to receive additional evidence at the appellate stage has been taken up for the first time at the stage of hearing of mis petition under Article 227 of the Constitution of India. It, however, goes to the root of the matter. It pertains to the jurisdiction of the appellate aumority. Even at me cost of repetition, I may reiterate mat the jurisdiction of the appellate authority to receive additional evidence at the appellate stage - is circumscribed by recording of reasons in writing for the purpose. If that condition is not fulfilled, it would be incompetent for the appellate authority to receive such additional evidence. In that case he would be acting without jurisdiction. The plea as to want of jurisdiction can be taken up at any stage in view of the ruling of the Supreme Court in the case of Chandrika Misir and Anr. v. Bhaiyalal reported in : [1974]1SCR290 .
10. It is true that both the appellate authority in his order at Annexure 'B' and the Gujarat Revenue Tribunal in its decision at Annexure 'C' have found that the petitioner was not in possession of the disputed lands on 15th June, 1955, the crucial date for the purposes of Section 32(1B) of the Act. This would certainly be a finding of fact. It is, however, based on the additional piece of evidence on the record of the appellate proceedings. As pointed out hereinabove, that piece of additional evidence could not have been taken on record for mere asking. The power to receive such additional evidence is found to have been invalidly exercised. In that view of the matter, a finding based on such piece of additional evidence can be said to have been vitiated. The appellate order at Annexure 'B' to this petition and the decision at Annexure 'C' to this petition would clearly show that the additional piece of evidence on the record of the appellate proceedings has been mainly relied on for the purposes of recording the finding that the present petitioner was not in possession of the disputed lands on 15th June, 1955. Such a finding can certainly be upset in exercise of even limited powers of this Court under Article 227 of the Constitution of India.
11. In view of my aforesaid discussion, the appellate order at Annexure 'B' to this petition as affirmed in revision by the decision at Annexure 'E' to this petition cannot be sustained in law. The matter will have to be remanded to the appellate authority for his fresh decision according to law even with respect to the application for additional evidence on the record of the appellate proceedings. It would be open to the appellate authority to remand the matter to the first authority if necessary after acceptance, if any of the application for additional evidence. Since the matter is very old, it would be desirable that the appellate authority disposes it of as expeditiously as possible.
12. In the result, this petition is accepted. The order passed by the Deputy Collector (Tenancy Appeals) at Vadodara on 30th May, 1983 in Tenancy Appeal No. 1 of 1977 at Annexure 'B' to this petition as affirmed in revision by the decision by the Gujarat Revenue Tribunal at Ahmedabad rendered on 8th April, 1986 in Revision Application No. TEN. B.A. 1651 of 1983 at Annexure 'E' to this petition is quashed and set aside. The matter is remanded to the Deputy Collector (Tenancy Appeals) at Narmada Bhavan (6th Floor) at Vadodara as the appellate authority for his fresh decision in appeal according to law in the light of the observations made in this judgment after restoring the appeal to file. It would be open to the appellate authority to remand the case to the first authority, if necessary after acceptance, if any, of the application for additional evidence. The appellate authority is directed to dispose of the appeal as expeditious as possible preferably by 31st December, 1993. The Registry is directed to send the writ in this case as expeditiously as possible preferably by 8th October, 1993. It would be open to the petitioner to obtain a certified copy of this judgment and produce it before the appellate authority for expeditious hearing of the appeal in question if necessary. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.