What is distinction between Procedural review and substantive review?

We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji MANU/SC/0433/1970 : AIR1970SC1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in Sub-section (1) of Section 11 and not in Sub-section (3) of Section 11. Furthermore, different considerations arise on review. The expression 'review' is used in 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. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal. {Para 13}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2355 of 1979

Decided On: 12.12.1980

 Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Ors.

Hon'ble Judges/Coram:

Y.V. Chandrachud, C.J. and A.P. Sen, J.

Citation: 1980 (supp) SCC 420,MANU/SC/0308/1980

Author:A.P. Sen, J.

Print Page

Whether civil court has jurisdiction to try suit where finality is given to order of special tribunal?

 Under Section 27 of the Act save as otherwise expressly provided in the Act every order made by any officer or authority under the Act, including a managing corporation, shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. The jurisdiction of the Civil Court was therefore barred in the matter of the sale. It is true that where the special tribunal or authority acts ultra vires or illegally, the Civil Court has by virtue of Section 9 of the Civil Procedure Code power to interfere and set matters right. As was laid down by the Judicial Committee of the Privy Council in Secretary of State v. Mask and Co. MANU/PR/0022/1940, if the provisions of the Statute have not been complied with or the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Courts have jurisdiction to examine those cases. This rule was reiterated by the Supreme Court in State of Kerala v. N. Ramaswami Iyer and Sons AIR 1966 SC 1938.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4718 of 1990

Decided On: 21.09.1990

Gurbax Singh S/o Chanda Singh

Vs.

 The Financial Commissioner and another

Hon'ble Judges/Coram:

S. Ranganathan and K.N. Saikia, JJ.

Citation: 1991 Supp.(1) SCC 167

Print Page

Whether Appeal Before DRT Maintainable Even If Amount Involved Is Less Than Rs 10 Lakh?

 In the instant case, we are concerned with the challenge to the proceedings initiated underSection 13 of the Act. There is a specific provision in the Act to the effect that the proceedings initiated under the Act cannot be challenged before a Civil Court because the Civil Court has no jurisdiction to entertain any matter arising under the Act and in that event, the concerned debtor has to approach the Tribunal under the provisions of Section 17 of the Act.

23. Thus, the Tribunal would be exercising its appellate jurisdiction when the action initiated under the provisions of Section 13 of the Act is challenged before the Tribunal. There is a difference between the Tribunal’s original jurisdiction under the provisions of the DRT Act and the appellate jurisdiction under the Act.

24. The issue with regard to availability of a forum for challenging the action under the provisions of the Act had been dealt with by this Court in the case of Mardia Chemicals Ltd. (supra). This Court, in the said case, unequivocally held that the aggrieved debtor can never be without any remedy and we firmly believe that the legislature would normally not leave a person without any remedy when a harsh action against him is initiated under the provisions of the Act.

25. So as to know the appellate jurisdiction of the Tribunal, one has to look at the provisions of the Act as Section 17 of the Act specifically provides a right to the aggrieved debtor to challenge the validity of an action initiated under Section 13(4) of the Act before the Tribunal. Moreover, the Act was enacted in 2002 and the legislature is presumed to have knowledge about the provisions of Section 1(4) of the DRT Act. So harmonious reading of both the aforestated Sections would not be contrary to any of the legal provisions.

26. For the aforestated reasons, we are of the view that the application submitted by the appellant bank under Order VII Rule 11 of the CPC should have been granted by the trial Court as, according to Section 34 of the Act, a Civil Court has no jurisdiction to entertain any appeal arising under the Act.

27. Thus, we hold that the Debt Recovery Tribunal constituted under the DRT Act has jurisdiction to entertain an appeal as per Section 17 of the Act even if the amount involved is less than Rs.10 lakh. But, the said appellate jurisdiction need not be misunderstood with the original jurisdiction of the Tribunal.

Reportable

Supreme Court of India

State Bank Of Patiala vs Mukesh Jain & Anr on 8 November, 2016

Bench: Anil R. Dave, L. Nageswara Rao

Citation: (2017)1 SCC 53

Print Page

Whether district Judge while entertaining application U/S 34 of arbitration Act functions as civil court or mere tribunal?

Now, turning to the next question as to
whether the present appeal is maintainable and whether the
original petition was under Article 227 or 226 of the
Constitution of India, it may be pointed out that since the
filing of the proceeding under Section 34 of the 1996 Act
before the learned District Judge is against the statute, the 
subsequent order, dated 18.07.2016, cannot cure the initial
illegality. As it has already been held hereinabove that the
Court of the learned District Judge does not exercise
jurisdiction of a regular civil court but is a Court of limited
jurisdiction,
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1841 of 2016
IN
Civil Writ Jurisdiction Case No. 746 of 2016

Bihar Rajya Bhumi Vikas Bank Samiti, Bihar-Jharkhand, Now
known as Multi-State Co-operative Land Development Bank
Ltd., Bihar & Jharkhand, 
V
 State of Bihar.
CORAM: CHIEF JUSTICE
AND
HONOURABLE DR. JUSTICE RAVI RANJAN

Date: 28-10-2016

Print Page

Whether court or tribunal can extend period of limitation for filing of suit?

There is no case for anybody that even for part of the
day, the Registry was closed. But Section 5 of the Act which
deals with “Extension of prescribed period in certain cases”,
applies only to appeals or applications and not to suits.
Therefore, no court or tribunal can extend the period of
limitation for filing a suit. Even if any cause, beyond the control
of the plaintiff is shown also, the only extension is what is
permitted under Section 4 of the Act, the period coming under
court holiday.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5862 OF 2016
(Arising out of S.L.P.(C) No. 27853 of 2012)

AJAY GUPTA .V RAJU @ RAJENDRA SINGH YADAV

Citation:2016 (5) ALLMR 443 SC

Print Page

Whether Tribunals are necessary parties to proceedings where legality of its orders are challenged?

 The tribunal is not required to defend its orders when they are challenged before the High Court in a Special Civil Application under Articles 226 and 227. The lis is between the management and a member of its teaching or non-teaching staff, as the case may be. It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. When the remedy is invoked, the tribunal is not required to step into arena of conflict for defending its order. Hence, the tribunal is not a necessary party to the proceedings in a Special Civil Application.

9 The Appellant instituted a proceeding before the tribunal to challenge an order of dismissal passed against him in disciplinary proceedings. Before the tribunal, the legality of the order of dismissal was in question. The lawfulness of the punishment imposed upon the Appellant was a matter for the employer to defend against a challenge of illegality in the Special Civil Application. The tribunal was not required to defend its order in the writ proceedings before the learned Single Judge. Even if the High Court was to require the production of the record before the tribunal, there was no necessity of impleading the tribunal as a party to the proceedings. The tribunal not being required in law to defend its own order, the proceedings under Articles 226 and 227 of the Constitution were maintainable without the tribunal being impleaded.

Reportable

Supreme Court of India

M.S.Kazi vs Muslim Education Society & Ors on 22 August, 2016

Bench: T.S. Thakur, A.M. Khanwilkar, D.Y. Chandrachud

Print Page

Leading judgment on inherent powers of tribunals

It   is   a   settled   principle   that   where   a   Tribunal   or
statutory   appellate   Authority   that   has   been   conferred   with
jurisdiction to decide proceedings under a statute, it is also clothed
with   such   ancillary     or   incidental   powers   as   are   necessary   to
discharge its functions effectively for the purposes of doing justicebetween the parties. The reliance placed by the learned Counsel
for the petitioners on the decision of the Supreme Court in Income
Tax Officer (supra) in that regard is apposite.  In para 4 thereof, it
has been observed by the Supreme Court as under:
“4.....................................................................
It is a firmly established  rule that an express
grant   of   statutory   power   carries   with   it   by
necessary implication to authority to use all
reasonable means to make such grant effective
(Sutherland   Statutory   Construction,   Third
Edition, Articles 5401 and 5402).  The powers
which have been conferred by Section 254 on
the   Appellate   Tribunal   with   widest   possible
amplitude must carry with them by necessary
implication all powers and duties incidental
and necessary to make the exercise of those
powers fully effective.  In Domat's Civil Law,
Cushing's  Edition, Vol. I  at  page  88, it has
been stated:
“It is the duty of the judges to apply the
laws,   not   only   to   what   appears   to   be
regulated   by   their   express   dispositions
but   to   all   the   cases   where   a   just
application of them may be made, and
which appear to be comprehended either
within   the   consequences   that   may   be
gathered from it.”
Maxwell   on   Interpretation   of   Statutes,
Eleventh Edition contains a statement at
p.   350   that   “where   an   Act   confers   a
jurisdiction, it impliedly also grants the
power   of   doing   all   such   acts,   or
employing such means, as are essentiallynecessary to its execution. Cui jurisdictio
data   est,   ea   quoqe   concessa   esse
vindenture,   since   guibus   jurisdictio
explicari   non   potuit.”    An   instance   is
given based on Ex Parte, Martin, (1879)
4  QBD   212   at   p.  491  that   “where   an
inferior court is empowered to grant an
injunction,   the   power   of   punishing
disobedience   to   it   by   commitment   is
impliedy conveyed by the enactment, for
the power would be useless if it could
not be enforced.”
The judgment of the Supreme Court in Radhakrishna

Mani Tripathi (supra) proceeds on aforesaid principle.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2300 OF 2015
PETITIONERS:
         
Shri Omprakash Nathuji Vaidhya, 
V The   Divisional   Joint   Registrar,   Cooperative  Societies,   
        CORAM: A.S. CHANDURKAR, J.
        DATED: 14thDECEMBER, 2015.
Citation: 2016(2) MHLJ 936

Print Page

Whether tribunal can reject claim petition on ground that claimant was not understanding content of affidavit of examination in chief?

In   the   present   case   the   appellant   had   no   knowledge   of
English   but   her   affidavit   had   been   prepared   in   English.     In   such

situation   it   was   necessary   for   the   Tribunal   to   have   taken   into
consideration said aspect and it could have directed the appellant to
prove her case on the basis of an affidavit prepared either in Hindi or
in vernacular.   The Tribunal could have insisted for filing an affidavit
in   a   language   understood   by   the   claimant.     Merely   because   the
claimant's counsel  had prepared the affidavit in English, a language not
understood by the appellant, same would  be no reason to dismiss the
claim by holding that claimant had not proved her case.  
It is to be noted that the provisions of Chapter XIII of the Act
of 1989 are beneficial provisions aimed at awarding compensation on
account of untoward incidents to ensure that compensation is granted
in  a  deserving  case.   It  is always open  for  the  Claims Tribunal  in
exercise of the powers conferred under Section 18(1) of the   Act of
1987 to regulate its own procedure and insist for filing an affidavit in a
language understood by the claimant especially when it is the mandate
of   Section   18(1)   that  the   Claims   Tribunal    has   to   be   guided   by
principles of natural justice.   In that view of the matter the Claims
Tribunal was not justified in non­ suiting the appellant on the ground
that her affidavit was filed in English and that she was not aware of its
contents.  The impugned order therefore cannot be sustained on that
count.  The point as framed is answered accordingly.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
APPEAL   AGAINST   ORDER  NO.    49    OF     2004
Shilabai wd/o Raghunath Hemne,
V
Union of India 
CORAM:   A. S. CHANDURKAR  J.
Dated    :   SEPTEMBER  14, 2015.
Citation;2016(3) MHLJ345

Print Page

When civil suit will lie to question order of tribunal created by statute even if its order is expressly or by necessary implication made final?

It is well settled that despite exclusion of jurisdiction of the
Civil Court, where the grievance is in relation to failure to comply with
statutory provisions, such cases can be examined by the Civil Court.  In
State of Kerala Vs. M/s. N. Ramaswami Iyer and Sons, AIR 1966 SC
1738 in para 8 it has been held thus:
“8. It is true that even if the jurisdiction of
the civil court is excluded, where the provisions of
the   statute   have   not   been   complied   with   or   the
statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure, the
civil courts have jurisdiction to examine those cases:
Secretary of State v. Mask and Co., 67 Ind APP 222:
(AIR 1940 PC 105).  
In Firm Seth Radha Kishan Vs. Administrator, Municipal Committee,
Ludhiana, AIR 1963 SC 1547 which considering the aspect of ouster of
jurisdiction of the Civil Court by a special statute, it was held as under:
“7. Under S. 9 of the Code of Civil Procedure
the Court shall have jurisdiction to try all suits of
civil nature excepting suits of which cognizance is
either   expressly   or   impliedly   barred.     A   statute,
therefore, expressly or by necessary implication, can
bar the jurisdiction of civil Courts in respect of a
particular matter.   The mere conferment of special
jurisdiction on a tribunal in respect of the said matter
does   not   in   itself   exclude   the   jurisdiction   of   civil
Courts.     The   statute   may   specifically   provide   for
ousting the jurisdiction of civil Courts, even if there
was no such specific exclusion, if it creates a liability
not existing before and gives a special and particular
remedy for the aggrieved party, the remedy provided
by it must be followed.   The same principle would
apply if the statute had provided for the particular
forum in which the remedy could be had.   Even in
such   cases,   the   Civil   Court's   jurisdiction   is   not

completely ousted.  A suit in a civil Court will always
lie to question the order of a tribunal created by a
statute, even if its order is expressly or by necessary
implication, made final, if the said tribunal abuses its
power or does not act under the Act but in violation
of its provisions.”
Similarly, in Krishanlal Vs. State of J & K (1994) 4 SCC 422, it was
held that violation of a mandatory statutory provision while passing the
impugned order would not amount to an act done under the Act.   In
para 11 it was observed thus:
“11. We may not labour much on this point
because of the aforesaid legal proposition and also
because of what was pointed out by a Constitution
Bench in Dhulabhai v. State of M.P. That exclusion of
jurisdiction   of   civil   court   should   not   be   readily
inferred.  So we agree with Shri Mehta that the High
Court erred in law in holding that the civil courts'
jurisdiction was barred, in as much as there being
violation   of   mandatory   provision   as   contained   in
Section 17(5) of the Act, it can well be said that the
respondents   had   no   jurisdiction   to   pass   the
impugned order and by doing so they committed a
“jurisdictional error”.                             
15] From the aforesaid it is clear that the jurisdiction of the civil
Court is available for determining the question as to whether infirmity in
the  action impugned goes to  the root of  the proceedings making  it
invalid or where the basic procedural requirements which are vital in
nature have not been followed.  The jurisdiction to that extent has been
held to be preserved.  
16] Thus,  from the aforesaid, it is clear that the jurisdiction of
the   Civil   Court   for   the   purposes   of   examining   as   to   whether   the
statutory  requirements have been  duly  complied or not or whether
basic   procedural   requirements   have   been   followed   or   not   can   be
examined.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND  APPEAL   NO.   491     OF     2012
APPELLANT:

Kishor   S/o   Ramalu   @   Rambhau
Telang,   
                                                                                               
VERSUS
RESPONDENTS:


 The   Municipal   Commissioner,
Nagpur   Municipal   Corporation,

CORAM:   A. S. CHANDURKAR  J.
                                  Dated    :   JANUARY   20, 2015.
Citation;2016(1)ALLMR175

Print Page