Writ Petition No.3719 of 1992

8th February, 2011

Petitioner Counsel: Mrs. V. V. THORAT
Respondent Counsel: Mr. R. R. SALVI,Mr. J. S. D'MELLO,Mr. S. S. KULKARNI

Cases Cited:
Puna Arjun Mali Vs. Mana Maka Bhil, 1992 Mh.L.J. 46 [Para 5,12]
V. S. Charati Vs. Hussein Nhanu Jamadar, (1999)1 SCC 273 [Para 5,13]
State of Punjab Vs. Gurdev Singh Ashok Kumar, AIR 1991 SC 2219 [Para 5,14]
Tayabbhai M. Bagasarwalla Vs. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240 [Para 5]
Jagu Tukaram Waghamale Vs. Dnyandeo Bala Waghmale, 1998(1) ALL MR 267=1998(2) Bom.C.R. 433 [Para 6,15]
Tribhavandas Jeevraj Patel Vs. Babu Govind Ghatal, 1990 Mh.L.J. 452 [Para 6,16]

JUDGMENT

JUDGMENT:- Heard the learned Counsel appearing on behalf of the petitioner and the learned Counsel appearing on behalf of respondents.

2. Petitioner is challenging the order passed by the Maharashtra Revenue Tribunal (MRT) dated 31/07/1992 in appeal against the order dated 30/09/1985 passed by the Additional Tahsildar & ALT, Vasai. There is a chequered history in respect of the dispute arising between the parties.

3. Briefly stated, the father of the respondents one Ziprya was initially declared as a tenant by the Agricultural Lands Tribunal (ALT) by order dated 19/08/1959. He, however, did not pay the purchase price and, thereafter, an application was made by the landlord before the Additional Tahsildar and ALT, Vasai under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (For short "B.T. & A.L. Act") The Additional Tahsildar made an inquiry on the application filed by the landlord dated 11/6/1966 and the Circle Inspector submitted report on 16/12/1966 after preparing the panchanama. The statements of parties were recorded. The statement of the said Ziprya, however, could not be recorded since, according to the Circle Inspector, he was absconding. The ALT further observed that the Petitioner was cultivating the land as a tenant and the said Ziprya was absent from the village after the purchase price was fixed and, therefore, he held that earlier order dated 19/08/1959 should be treated as nullity and fresh proceedings should be taken to dispose of the lands in the name of the real tenant, the petitioner herein. Thereafter, further inquiry was held and the landlord admitted that the Petitioner herein was a real tenant in possession. Panchas also supported this fact. The Circle Inspector also in his report stated that the petitioner was cultivating the land since 8/10 years and, therefore, he was a lawful tenant and, therefore, purchase price was fixed at Rs 3000/- and the ALT held that petitioner's name should be entered in the revenue record as tenant in possession since tiller's day and that a certificate of purchase under section 32-M should be issued. Accordingly, the said certificate was issued on 07/06/1968 and the entry was made in the record of rights.

4. It appears that a complaint was filed by the MLA of the said village and, on the basis of the said complaint, Additional Tahsildar & ALT initiated proceedings under section 36-A of the Maharashtra Land Revenue Code, 1966. These proceedings were initiated almost after a lapse of 18 years from the order declaring the petitioner as tenant in 1968. In the said proceedings, notices were issued to the parties and daughters of the original tenant were brought on record. The ALT came to the conclusion that this was a fit case for restoration of the land to the tribal and, therefore, he passed an order under section 36-A for restoration of the land to the daughters of the said Ziprya by judgment and order dated 30/01/1984. This order was challenged by the petitioner herein before the MRT. The MRT was pleased to allow the appeal and the order of the Additional Tahsildar & ALT, Vasai was set aside and the matter was remanded for fresh inquiry in accordance with law. The MRT held that the provisions of section 36-A of the Code were not applicable to the facts of the said case since the amending Act came into force on 06/07/1974 and under the circumstances the matter was remanded. After remand, the Additional Tahsildar held that the said Ziprya never cultivated the suit land and it was cultivated by the petitioner and he was in possession after full payment of purchase price. He, therefore, held that the tribal could not prove that the land was in possession of their father as tenant as on 01/04/1957 and, therefore, held that there was no transfer within the meaning of section 2(1)(i) of the Restoration Act and, therefore, proceedings were dropped. The said order was passed on 30/09/1985. Against this order, an appeal was filed by the respondents before the MRT almost after six years on 22/04/1991. The MRT, however, came to the conclusion that the order passed by the ALT was a nullity and could not have been passed in view of the provisions of section 32-G read with section 32-A. The MRT also held that Tahsildar has no jurisdiction to declare the earlier order of 1959 to be nullity and it therefore held that the order passed by the Tahsildar in 1968 declaring the petitioner as a tenant was illegal. The MRT condoned the delay taking into consideration the fact that the tribal was a Pardhi and that he was ignorant and poor. The MRT also held that no legal title could vest in the petitioner herein by the second order of the Tahsildar and, therefore, certificate which was issued under section 32-M was also null and void. The MRT, therefore, allowed the appeal and directed that the land should be restored to the daughters of the tribal who are respondents herein.

5. Mrs. Thorat, the learned Counsel appearing on behalf of the heirs of the petitioner submitted that the provisions of section 36-A of the Code would not be applicable to the facts of the present case since the provisions of section 36-A were brought in force in 1974 prospectively and, therefore, it could not be given retrospective effect. She submitted that the ALT's finding in its order dated 18/05/1968 were not challenged and the said finding had become final. She submitted that even the provisions of section 36 of the Code would not be applicable to the facts of the present case since the tribal was not in occupation of the said land. She submitted that this had been established by virtue of the report of the Circle Officer which was submitted in the second inquiry and also on account of statements of Ziprya's daughters before the ALT and the letter written by tribal to ALT in 1963 which was not disputed at any stage by his daughters. It is submitted that the mutation entry also was set aside. There was also a finding recorded by the MRT earlier that the petitioner was illegally in possession. It is, therefore, submitted that admitted position is that the said Ziprya was never in possession and was never cultivating the said land and that being the factual aspect, the provisions of section 36 would not be applicable.

She then submitted that since there was no transfer within the meaning of section 2(1)(i) of the Maharashtra Restoration of Land to Scheduled Tribes Act, 1974 (For short "Restoration Act") the Tribunal could not have passed an order of restoration. She submitted that so far as the petitioner is concerned, he was declared as a tenant by the ALT in 1968 which order was never challenged independently by the tribal. The said tribal claimed that he was a tenant though that order has been subsequently set aside in 1968. Under these circumstances, therefore, it is urged that there was no transfer within the meaning of the said provision. Reliance is also sought to be placed by the learned Counsel appearing on behalf of the petitioner on the judgment of the learned Single Judge of this Court in Puna Arjun Mali and another Vs. Mana Maka Bhil and others, 1992 Mh.L.J. 46.

She further submitted that since the order of 1968 was not challenged, it was not open for the MRT to have set aside the said order in proceedings which were initiated under section 36 of the Maharashtra Land Revenue Code, 1966. In support of the said submission, reliance is placed on the judgments of the Apex Court in V. S. Charati Vs. Hussein Nhanu Jamadar (Dead) by Lrs., (1999)1 SCC 273, State of Punjab Vs. Gurdev Singh Ashok Kumar, AIR 1991 SC 2219 and in Tayabbhai M. Bagasarwalla Vs. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240.

6. On the other hand, Mr. Salvi, the learned Counsel appearing on behalf of the heirs of the tenant submitted that once the order was passed under section 32-G of the B.T. & A.L. Act and the purchase price was fixed, the said order could not be set aside by the ALT. He submitted that even if the tenant does not pay the purchase price, there is a provision in the B.T. & A.L. Act viz. section 32-K whereby the said purchase price could be recovered as arrears of land revenue. He submitted that, however, there is no provision for setting aside the said declaration of tenant being deemed purchaser once the order under section 32-G was passed. He submitted that, therefore, the second order which was passed in 1968 was a nullity and the said order being nullity had no legal effect and, therefore, the authorities were justified in initiating proceedings for restoration under section 36-A of the Code. He submitted that though, initially, proceedings were initiated under section 36-A, by virtue of order of remand, proceedings were thereafter initiated under section 36. He submitted that in the first order which was passed by the ALT in 1959, it was held that tribal Ziprya was a deemed purchaser under section 32-G and he was in possession. It is submitted that, therefore, since the tribal was in possession and his possession was illegally taken by the petitioner, the authorities were justified in restoring the said possession to his legal heirs. He submitted that limitation for initiation of these proceedings though, initially, was 3 years, it was later on increased to 30 years taking into consideration ignorance of these tribals and their gullibility and likelihood of these tribals being taken for a ride.

He relied upon the judgment of the learned Single Judge of this Court in Jagu Tukaram Waghamale Vs. Dnyandeo Bala Waghmale & another, 1998(2) Bom.C.R. 433 : [1998(1) ALL MR 267]. He submitted that it had been held by the learned Single Judge of this Court that once the competent authority had confirmed the tenant's rights under section 32-G of the Act, the same could not be reopened and disturbed by the Revenue Authorities under the said Act and the said order was without jurisdiction. He also relied upon another judgment of the learned Single Judge of this Court in Tribhavandas Jeevraj Patel and others Vs. Babu Govind Ghatal, 1990 Mh.L.J. 452. He submitted that, by the said judgment, this Court had held that merely because purchase price had not been paid, the order under section 32-G would not become ineffective and, therefore, the authorities who had made the order under the provisions of Restoration Act were justified in taking the view that the land was liable to be restored to the tribal/tenant.

7. I have heard both the Counsel appearing on behalf of the petitioners and the respondents at length.

8. In the present case, so far as the landlord is concerned, the landlord, initially, supported the petitioner herein and filed an application for recalling the order passed by the Tahsildar in 1959 and, on the basis of this application, the earlier order was set aside and the order was passed in 1968 declaring the petitioner to be a tenant under section 32-G. Thereafter, the petitioner paid the purchase price and certificate under section 32-M was issued.

9. The first question which falls for consideration in these proceedings is : whether the order could have been passed for restoration of the land to the tribal under provisions of 3(1)(ii) of the Restoration Act? The said Act came into force on 28th May, 1975. The word "transfer" has been defined under section 2(1)(i) as under:-

2(1)(i) "transfer" in relation to land means the transfer of land belonging to a tribal made in favour of non-tribal during the period commencing on the 1st day of April, 1957 and ending on the 6th day of July, 1974 either

(a) by act of parties, whether by way of sale, gift, exchange, mortgage or lease or any other disposition made inter-vivos, or

(b) under a decree or order of a Court, or

(c) for recovering any amount of land revenue due from such Tribal, or for recovering any other amount due from him as an arrear of land revenue, or otherwise under the Maharashtra Co-operative Societies Act, 1960 or any other law for the time being in force but does not include a transfer of land falling under the proviso to sub-section (3) of Section 36 of the Code; and the expression "Tribal-transferor" and "non-Tribal-transferee" shall be constructed, accordingly;"

Section 3 of the said Act lays down the procedure of restoration or transfer of land to tribals in the circumstances mentioned in the said section. The order passed by the Collector restoring the land to tribal can be challenged by filing appeal to the MRT constituted under the Maharashtra Land Revenue Code and when no appeal is filed against the said order, the Commissioner can suo motu or on the direction of the State Government pass appropriate orders. However, the said power of suo motu inquiry has to be exercised within three years from the date of the order except in cases where directions are issued by the State Government.

10. In the present case, the order appears to have been passed by the MRT under section 36 of the Maharashtra Land Revenue Code. Section 36 specifically stipulates that the occupancy of persons belonging to schedule tribe shall not be transferred except with the previous sanction of the Collector. Sub-section (3) of section 36 states that where an occupant belonging to Scheduled Tribes in contravention of sub-section (2) transfers possession of his occupancy, the said transfer can be challenged within thirty years of such transfer of possession. In the present case, therefore, there has been no transfer of land from the tribal to non-tribal. The dispute, essentially, is regarding possession and the tenancy of the said land between the tribal and non-tribal. The tribal's heirs claim that the tribal was declared as tenant after he was found to be in possession and, thereafter, the said order was illegally set aside in 1968. On the other hand, it is the contention of the heirs of the non-tribal that he was the tenant and the landlord also accepted his tenancy and the earlier order which was passed was set aside by the ALT which was a competent authority and the said order had become final since it was not challenged at any time. Their contention, therefore, is that the tribal was never in possession and, as such, there was no transfer within the meaning of section 36 and that the tribal was never in occupation and, therefore, order of restoration could not have been passed.

11. he second question is regarding the finding recorded by the ALT in the first order dated 19/08/1959 and in the second order dated 17/05/1968. It is a matter of record that so far as the second order dated 17/5/1968 is concerned, the said order was never challenged by the Tribal or his legal heirs. Suo motu proceedings previously were initiated under section 36-A of the Maharashtra Land Revenue Code, which proceedings were then dropped by virtue of the finding given by the MRT. The order passed on 17/05/1968, therefore, in my view, had become final and it could not have been reopened in proceedings which were initiated either under section 36-A or 36 of the Code. Even assuming that the said order which was passed on 17/05/1968 was a wrong order or could not have been passed, as long as the said order was not challenged before the proper forum, it could not have been set aside or declared as nullity in proceedings which were initiated either under section 36-A or 36 of the Code. There is ample evidence on record which indicates that the petitioner - non-tribal was in possession except one or two stray entries which are made in favour of tribal which were later on set aside and were never challenged. Neither the tribal nor his heirs were diligent in pursuing the matter further which is evident from the fact that the proceedings under section 36-A were initiated after a lapse of almost 18 years and after the last order was passed in favour of the petitioner - non-tribal in 1985. The appeal before the MRT was preferred in 1991. Therefore, viewed from any angle, MRT had committed an error of law which is apparent on the face of record in setting aside the order of ALT.

12. In my view, ratio of the judgment in Puna Arjun Mali, 1992 Mh.L.J.46 (supra) would squarely apply to the facts of the present case. The question in the said case which fell for consideration before the learned Single Judge of this Court was : whether a deemed purchase or a statutory transfer under the tenancy law is included in the term transfer defined for the purpose of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 by section 2(1)(i) and the learned Single Judge, after taking into consideration the provisions of the said Act, held that deemed purchase under the statute in favour of the petitioners cannot be said to be transfer within the meaning of section 2(1)(i) of the Restoration Act. It has to be noted that the proceedings were initiated, initially, under section 36-A and, thereafter, under section 36 of the Code. I have already observed that both the provisions are not attracted in the present case. No proceedings were initiated under the Restoration Act.

13. The Apex Court in V. S. Charati, (1999)1 SCC 273 has observed that the decision rendered by the Tribunal in the absence of challenge becomes final and binding on both parties and merely because it is wrong, it would not become a nullity. In the said judgment the Apex Court in para 9 has observed as under:-

"9. It is submitted by the respondent that the Agricultural Lands Tribunal was not right in dropping proceedings under Section 32-G. Its order of 31-5-1961 is bad in law. He relied upon a decision of the Bombay High Court in the case of Nago Dattu Mahajan Vs. Yeshodabai Huna Mahajan, (1976)78 Bom.L.R. 427 where this Court had held that under Section 31, the landlords have a choice to avail of one of the two provisions of resumption, namely, either Section 31(1) or Section 31(3). No landlord can avail of both the provisions. Learned counsel for the respondent, therefore, contends that in the present case, the appellant having exercised his choice under Section 31(1), could not have urged in the proceedings under Section 32-G his disability as a minor under Section 31(3). The order of 31-5-1961 of the Agricultural Lands Tribunal, however, was not challenged by the respondent. The order of 31-5-1961 has become final and the decision rendered by the Agricultural Lands Tribunal as between the appellant and the respondent is binding on both the parties. A decision, simply because it may be wrong, would not thereupon become a nullity. It would continue to bind the parties unless set aside. The effect of the decision of 31-5-1961 on the parties, therefore, cannot be ignored. In the present case, since the tenant could not complete his purchase by reason of the proceedings under Section 32-G being dropped, he cannot now contend that the decision has no legal effect or that the proceeding under Section 32-G ought to have been completed and, therefore, he should be looked upon as a purchaser."

(emphasis supplied by me)

In my view, the ratio of the said judgment in V. S. Charati (supra) would squarely apply to the facts of the present case. In the present case also, it is the contention of the tribal that the tenant could not pay the purchase price and therefore on that ground proceedings under section 32-G could not have been dropped and the said order was final and the subsequent order was a nullity. Before the Apex Court in V. S. Charati (supra) also, it was urged that the ALT was not right in dropping the proceedings under section 32-G and the order dated 31/05/1961 was bad in law. It was urged that under section 31, landlords have a choice to avail one of the two provisions of resumption, namely, either Section 31(1) or Section 31(3) and he could not avail both the provisions. Repelling the said contention, the Apex Court has made the observation on which emphasis is supplied by this Court. On the same analogy, therefore, the tribal or his heirs not having challenged the second order passed by the ALT in 1968, cannot seek a declaration about the said order being a nullity in proceedings which are initiated either under section 36-A or 36 of the Maharashtra Land Revenue Code.

14. The Apex Court also in State of Punjab Vs. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219 in para 5 has observed as under:-

"5. In the instant cases, the respondents, were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs."

In the said case respondents were dismissed from service and, therefore, they approached the Court with a grievance that their dismissal from service was not dismissal in law and the said order of dismissal was illegal, inoperative and not binding on them and they were, therefore, seeking a declaration that the dismissal was void and inoperative and not binding on them and to continue them in service. In this context, the Supreme Court in para 5 of its judgment has observed as under:-

"5................If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs."

Similarly, in paras 6 and 7 of the said judgment the Supreme Court has observed as under:-

"6. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith Vs. East Elloe Rural District Council, (1956) AC 736 at p. 769 Lord Redcliffie observed:

"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

"7. Apropos to this principle, Prof. Wade states: the principle must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see: Administrative Law 6th Ed. p.352). Prof. Wade sums up these principles:

"The truth of the matter is that the Court, will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may by hypothetically a nullity, but the Court may refuse to quash it because of plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case, the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p.352)".

The observations made by the Supreme Court in State of Punjab Vs. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219 would squarely apply to the facts of the present case.

15. So far a the judgment in Jagu Tukaram Waghamale, 1998(2) Bom.C.R. 433 : [1998(1) ALL MR 267] is concerned on which reliance is placed by the learned Counsel appearing on behalf of respondents, there cannot be any manner of doubt regarding the ratio of the said judgment. In the said case, there was no dispute with regard to tenancy of the petitioner and in respect of the property. There was also no dispute that section 32-G proceedings were never concluded in favour of the petitioner and, therefore, the learned Single Judge made those observations in para 4 of the said judgment. In the said case, a suit was filed and the petitioner claimed to be tenant and the order was passed in favour of the petitioner under section 32-G of the B.T. & A.L. Act on 10/10/1965. That being the position, under those circumstances, the learned judge observed that the said order under section 32-G could not be challenged in the suit. Ratio of the said judgment, therefore, would not apply to the facts of the present case.

16. So far as the judgment in Tribhavandas Jeevraj Patel, 1990 Mh.L.J. 452 is concerned, in the said case, the order was passed in favour of the tenant who was tribal and proceedings were initiated for fixing the purchase price under section 32-G of the B.T. & A.L. Act. The tenant did not pay the instalments and he made a statement that he was unable to pay the purchase price pursuant to which the order was passed under section 32-P and the possession was ordered to be given to the landlord-owner and, under those circumstances, the learned Single Judge observed that merely because the tenant was unable to pay the purchase price, his tenancy could not be terminated and the purchase price could be recovered as laid down under section 32-K of the said Act. In the present case, the facts are slightly different. It is no doubt true that tribal was declared as a tenant and deemed purchaser under section 32-G of the B.T. & A.L. Act. He was unable to pay the purchase price. However, in this case, by subsequent order which was passed in 1968 by the ALT, the earlier order passed was set aside. This subsequent order passed in 1968 was never challenged by the tribal or by his heirs and was incidentally considered in the proceedings which were initiated for restoration. The ratio of the judgment in Tribhavandas Jeevraj Patel, 1990 Mh.L.J. 452 (supra), therefore, would not apply to the facts of the present case, since, in the said case, possession was restored to the landlord under section 32-P of the B.T. & A.L. Act. Here, in this case, the petitioner has been declared to be a tenant and he has also been declared to be a deemed purchaser and certificate under section 32-M also has been issued. The tribal did not bother to challenge this order and, therefore, the said order had become final. In proceedings under section 36-A, therefore, the MRT could not have reopened the order passed by ALT in 1968. The ratio of the said judgments relied upon by the learned Counsel appearing on behalf of the respondents, therefore, would not apply to the facts of the present case.

17. In this view of the matter, judgment and order dated 31/07/1992 passed by the MRT is set aside and the order passed by the ALT dated 30/09/1985 is confirmed. Rule is made absolute in terms of prayer clause (a).

18. Writ Petition is accordingly allowed and disposed off.

Petition allowed.