Writ Petition No.1901 of 1991

21st November, 2003

Petitioner Counsel: Mr. B. N. MOHTA
Respondent Counsel: Mr. N. B. NAITAM,Mrs. WANDILE

Cases Cited:
Kashibai wd/o. Sanga Pawar Vs. State of Maharashtra, 1993 Mh.L.J. 1168 [Para 5]
Dr. Smt. Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.), 1987 SCC 2186 [Para 11]
Bovabhai Budha Girase Vs. Jirya Dajya Bhil (deceased) by legal heir, 1987 Mh.L.J. 892 [Para 12]

JUDGMENT

JUDGMENT :- Heard the learned counsel for the Petitioner, and Mrs. Wandile, the learned Assistant Government Pleader for Respondent Nos.1, 4 and 5.

2. This petition is directed against the order dated 14th June, 1991 passed by the Maharashtra Revenue Tribunal, Nagpur, by which the Maharashtra Revenue Tribunal dismissed the petitioners' appeal and confirmed the order of the Additional Tahsildar restoring the whole land purchased by the petitioners to the respondent tribal.

3. The field survey No.12 admeasuring 5.75 acres was purchased by the petitioner No.1 along with his brother from the respondent No.2 for valuable consideration of Rs.3,000/- vide sale deed dated 15-4-1967.

4. The respondent No.2 is admittedly "Gond". However, due to area restriction within Nagpur district "Gonds" were not considered to be tribal in the Nagpur district in the year 1967.

5. Some time in the year 1977-78 in exercise of powers under section 3, the Additional Tahsildar, Katol initiated suo motu proceeding for resumption of land in favour of the respondent No.2. In these proceedings half of the lands were restored to the tribal. Admittedly when these proceedings were instituted there was no area restriction and respondent No.2 was a tribal. Mr. Mohta, the learned counsel for the petitioners fairly pointed out that this issue is covered by the judgment of a Division Bench of this Court in case Kashibai wd/o. Sanga Pawar and others Vs. State of Maharashtra, reported in 1993 Mh.L.J. page 1168, where this Court has observed as follows :-

"Section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act confers protection upon the tribal as defined in the Act. It has nothing to do with what status he held when actually the transaction was entered into by him. It could not have been the intention of the Legislature that the person claiming to be a tribal should hold the status of a tribal on the date of the transaction according to the law applicable at that time."

The respondent No.2 was though a tribal in an area, on the date of the transaction his tribe was not recognised as tribal only for certain purposes. S.3 was nonetheless available for restoration of his lands since the area restriction was removed.

6. The next point raised on behalf of the petitioners is as follows :

When the lands were initially restored to the tribal in pursuance of suo motu proceeding initiated by the Tahsildar in the year 1977-78 only half of the lands purchased by the petitioners were so restored. Therefore, the subsequent initiation of suo motu proceeding to restore other half of the land and order dated 17-11-87 passed in pursuance thereof restoring the whole land to the respondent No.2 as impermissible.

7. Mr. Mohta, the learned counsel for the petitioners submitted that the power to suo motu initiate proceeding for restoration of land to the tribal conferred by Section 3 could not have been exercised having been once exercised and brought to a conclusion.

8. Mrs. Wandile, the learned Assistant Government Pleader, however, submitted that when in the first instance suo motu powers were exercised half of the lands were only restored because of certain Government Resolutions which have been subsequently withdrawn by the Government. However, according to the learned counsel, the power which can be exercised suo motu, is capable of being exercised at any time. According to learned Assistant Government Pleader, it can therefore, be exercised repeatedly.

9. Section 3(i) to the extent, it is relevant reads as follows :-

"3.(1) Where due to transfer -

(a) the land of a Tribal-transferor is held by a non-Tribal-transferee, or

(b) the land acquired in exchange by a Tribal-transferor is less in value than the value of the land given in exchange,

and the land so transferred is in possession of the non-Tribal-transferee, and has not been put to any non-agricultural use on or before the 6th day of July, 1974, then, notwithstanding anything contained in any other law for the time being in force, or any judgment, decree or order of any Court, Tribunal or authority, the Collector either suo motu at any time, or on the application of a Tribal transferor made within thirty years from the commencement of this Act shall, after making such inquiry as he thinks fit, direct that-

(i) the lands of the Tribal transferor and non-Tribal transferee so exchanged shall be restored to each other; and the Tribal-transferor, or as the case may be the non-Tribal transferee shall pay the difference in value of improvements as determined under clause (a) of sub-section (4), or

(ii) the land transferred otherwise than by exchange be then taken from the possession of the non-Tribal transferee, and restored to the Tribal transferor, free from all encumbrances, and the Tribal transferor shall pay such transferee and other persons claiming encumbrances the amount determined under clause (b) of sub-section (4) :

Provided that, where land is transferred by a Tribal transferor in favour of a non-Tribal transferee before the 6th day of July, 1974, after such transferee was rendered landless by reason of acquisition of his land for a public purpose, then only half the land so transferred shall be restored to the Tribal transferor."

10. On a plain reading of the aforesaid provision, it is clear that the Collector can exercise the powers of suo motu at any time. However, the fact that it can be exercised at any time does not mean that it can be exercised repeatedly. If this power was construed of which power being exercised repeatedly, the repetition could be without any limits and such an interpretation would result in conferral of arbitrary powers. Moreover, it is important to note that the Act nowhere confers powers on the Collector to reopen the proceeding or review any order passed earlier. On the other hand the Act provides for an appeal under section 6 to the Maharashtra Revenue Tribunal and for a revision by the Commission suo motu or any direction of the State Government. It is significant to note that the Legislature has not conferred any power on the Collector under section 3 to reopen a case already decided.

11. It is clear that the power to re-open the case once decided is the same thing as the power to review it. Therefore, in absence of power to review, it must be held that the conferral power to suo motu initiation of proceeding under section 3 of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 does not carry with it the power to repeatedly exercise that power. It is not possible to accept this argument that such a power is inherent. This is settled law, vide Dr. Smt. Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others reported in 1987 Supreme Court Cases 2186, where the Supreme Court has observed as follows :-

"It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives-its jurisdiction."

12. I am supported in my view by a judgment of the learned Single Judge of this Court in case Bovabhai Budha Girase Vs. Jirya Dajya Bhil (deceased) by legal heir, reported in 1987 Mh.L.J. 892. That was a case where suo motu proceedings were resorted to again after the appellate and revisional power has been exercised. This Court observed as follows :-

"To reconcile section 3 with sections 7 and 9, it has to be held that the exercise of power suo motu by the Collector under section 3 must be before the exercise of power by the State Government under section 7 in revision or by the MRT in appeal under section 9. If this view were not to be accepted there would be no end to the uncertainty that the transferor or transferee would face because of the hanging sword in the shape of the Collector's suo motu powers under Section 3. To reconcile the seemingly conflicting provisions, it will have to be held that the Collector can exercise suo motu power under section 3 of the Act at any time, if the tribal-transferor does not prefer an application for restoration of the land under the Act. Wherever the tribal-transferor has made an application and met with a reverse, the Collector if he wants to exercise his powers suo motu must do so only if the revisionary powers of the Commissioner or the appellate powers of the MRT have not been had recourse to. Once the revisionary and/or appellate power has been invoked, the Collector loses the power to act suo motu vide section 3 of the Act."

13. I am of view that it makes no difference if the first order has not been subjected to appeal under the provisions of the Act. It nonetheless achieves finality under the Act if nor challenged. In this view of the matter, the subsequent order of suo motu proceeding commenced dated 19-11-80 directing the restoration by the Collector of the other half of the lands of the respondent No.2 is without jurisdiction and therefore, is liable to be set aside.

14. In the circumstances, this petition is allowed to the above extent. The order of the M.R.T. dated 14th June, 1991 is set aside. Similarly, the order dated 17-11-1987 passed by the Collector is also set aside by the Tahsildar under section 3 is also set aside. Rule is made absolute.

15. The petitioner shall be entitled to exercise the choice over which half of the land purchased by him should be retained. C.A. No.2225/1992 is disposed of.

Petition allowed.