Writ Petition No.737 of 2018

10th July, 2019.

Petitioner Counsel: Shri V.R. CHOUDHARI
Respondent Counsel: Shri K.S. NARWADE, Shri A.V. PALSHIKAR

Cases Cited:
Nagorao Hiraman Gedam Vs. State of Mah. and others, W.P. No.4398/2013 (Nag.) [Para 4,5]
Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior and others., 1986 ALLMR ONLINE 523 (S.C.) : AIR 1987 SC 88 [Para 5,8]
N. Mani Vs. Sangeetha Theatre and others, (2004) 12 SCC 278 [Para 6,7]
Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar and others, 2009 ALL SCR 464=2009(1) Mh.L.J. 1 [Para 6]

JUDGMENT

JUGDMENT :- Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties.

2. The petitioners have challenged the order dated 18.01.2018 passed by the Maharashtra Revenue Tribunal in the appeal that was filed by the petitioners under Section 6 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 ( for short, 'the said Act') whereby the said appeal has been dismissed and the order daed 28.01.2016 passed by the Tahsildar has been maintained.

3. The facts relevant for adjudicating the present writ petition are that it is the case of the respondent no.1Nagorao that his fatherHiraman had on 07.04.1969 sold field Gat No.309 admeasuring 1 H 88 R for a consideration of Rs.4,500/to the petitioner no.1-Leelabai. It is the claim of the respondent no.1 that he belongs to 'Gond' Scheduled Tribe, while the petitioners are non tribals. The father of the respondent no.1 had initiated proceedings under the said Act seeking restoration of possession. The said proceedings were dismissed on the ground that a caste certificate had been issued to Leelabai's husband. An appeal filed by Hiraman was also dismissed on 03.05.1976. After passage of sometime, suo motu proceedings were initiated by the Special Land Acquisition Officer for restoration of possession to Hiraman under the provisions of the said Act. Directions were issued by the Special Land Acquisition Officer to restore the land to Hiraman. Thereafter the Maharashtra Revenue Tribunal allowed the appeal filed by the present petitioners and set aside that order. The Additional Commissioner however exercised suo motu revisional powers and directed the petitioners to restore the land in favour of Hiraman. This order was challenged in Writ Petition No.484/1995 and the same was allowed on the ground that the Additional Commissioner could not have exercised suo motu powers.

4. Thereafter on 11.05.2001 the Scrutiny Committee invalidated the caste claim of the husband of Leelabai and held that he did not belong to any Scheduled Tribe. Hence Writ Petition No.2824/2007 was filed by the respondent no.1 herein praying that the order passed by the Maharashtra Revenue Tribunal dated 15.10.1977 be set aside. A prayer was also made for restoring the land to the respondent no.1. That writ petition however came to be withdrawn unconditionally. Thereafter on 12.06.2013 the Scrutiny Committee invalidated the claim of Leelabai who had purchased the property on 07.04.1969. On the basis of that adjudication a fresh application under Section 36A of the Maharashtra Land Revenue Code, 1966 (for short, 'the Code') came to be filed by the respondent no.1 on 20.07.2013. In those proceedings the petitioners raised an objection to the jurisdiction of the Tahsildar to entertain the same. As that application raising preliminary objection was not being decided, the respondent no.1 filed Writ Petition No.4398/2013 (Nagorao Hiraman Gedam Vs. State of Mah. and others) before this Court. This Court by its order dated 30.06.2014 directed the Tahsildar to decide the application filed by the respondent no.1 on its own merits. Being aggrieved by that order, the petitioners had filed Special Leave Petition(Civil) No.19688/2014 which however came to be dismissed on 30.10.2015. The Tahsildar thereafter turned down the preliminary objection that was raised by the petitioners to the maintainability of the proceedings and by order dated 28.01.2016 allowed the application filed by the respondent no.1 with a direction to the petitioners to restore possession. This order was challenged before the Maharashtra Revenue Tribunal by the petitioners and by the impugned order the said appeal of the petitioners has been dismissed. Being aggrieved, present writ petition has been filed.

5. Shri V.R. Choudhari, learned counsel for the petitioners submitted that the application moved by the respondent no.1 by invoking the provisions of Section 36A of the Code was itself not maintainable. The proceedings were required to be filed before the Collector but the same were filed before the Tahsildar. According to him, the provisions of Section 36A of the Code were not at all applicable in view of the fact that the said provisions were inserted by way of an amendment which came into force on 06.07.1974. As the transfer had taken place on 07.04.1969, which was prior to the amendment, the provisions of Section 36A of the Code could not have been invoked. This aspect was not considered by the Tahsildar or by the Maharashtra Revenue Tribunal in proper perspective. It was then submitted that the respondent no.1 had filed Writ Petition No.2824/2007 (Nagorao Hiraman Gedam Vs. State of Mah. and others) seeking restoration of possession. The said writ petition was withdrawn by the respondent no.1 without seeking leave of the Court. Hence it was not permissible for the respondent no.1 to again agitate the prayer as regards restoration of possession as that prayer was barred under the principles of resjudicata. In that regard, he placed reliance on the decision in Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior and others., AIR 1987 SC 88 : [1986 ALLMR ONLINE 523 (S.C.)]. This objection was also raised before the Maharashtra Revenue Tribunal but the same has not been duly considered. He further referred to legal heirs certificate to indicate the names of the legal heirs of Hiraman and submitted that the present proceedings had not been initiated by all his legal heirs. On that count also the same did not deserve to be entertained on merits. He also referred to the order passed by the Maharashtra Revenue Tribunal on 30.06.2016 in Tribal Appeal No.APL/ST.RESTO/AMR-16/2016 to urge that similar appeal filed before the Maharashtra Revenue Tribunal was not entertained for want of jurisdiction. However, in the present case by taking a different view the order of restoration of the land has been maintained. It was thus submitted that on these counts, the prayer seeking restoration of the possession does not deserve to be granted and the impugned orders were liable to be set aside.

6. Shri K.S. Narwade, learned counsel for the respondent no.1 however supported the impugned orders. He submitted that merely because the application that was moved by the respondent no.1 on 20.07.2013 was styled as one under Section 36A of the Code, the same would not mean that it was not liable to be entertained. That application was liable to be treated as one filed under section 3 of the said Act before the Tahsildar. The Tahsildar therefore rightly entertained the said proceedings. He further submitted that in the initial proceedings the petitioners had relied upon the caste certificates that were issued in favour of the petitioner no.1 and her husband. The said proceedings were adjudicated in that context. However subsequently on 11.03.2001 the caste certificate of the husband of the petitioner no.1 was invalidated and on 12.06.2013, the caste certificate of the petitioner no. 1 was also invalidated. It is on that count that the application dated 20.07.2013 came to be filed. The same was based on the orders of invalidation. As it was declared that the petitioners were not tribals, the respondent no.1 was entitled for restoration of possession. He submitted that merely because the proceedings in Writ Petition No.2824/2007 came to be withdrawn without any liberty, the same would not be a ground for holding the present proceedings to be not maintainable and barred by principles of resjudicata. The present proceedings were filed on a distinct cause of action and hence were maintainable. The impugned orders came to be passed after giving due opportunity to the petitioners and it could not be said that the said orders were vitiated on account of absence of due opportunity. Moreover, other legal heirs of Hiraman had not opposed initiation of the present proceedings and therefore the objection raised that all legal heirs of Hiraman were not joined in the present proceedings was not liable to be entertained. In support of his submissions, learned counsel relied upon the decision in N. Mani vs. Sangeetha Theatre and others, (2004) 12 SCC 278 and Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar and others, 2009(1) Mh.L.J. 1 : [2009 ALL SCR 464]. It was thus submitted that both the authorities had after due application of mind directed restoration of the lands in favour of the respondent no.1 and that order did not call for any interference.

Shri A.V.Palshikar, learned Assistant Government Pleader for respondent nos. 2 and 3 also supported the impugned adjudication. He sought to rely upon the affidavit in reply filed on behalf of the respondent nos. 2 and 3.

7. I have heard learned counsel for the parties at length and have perused the documents placed on record. Considering first objection to the jurisdiction of the Tahsildar to entertain the proceedings initiated by the respondent no.1 vide application dated 20.07.2013, it can be seen that the said application refers to the provisions of Section 36A of the Code and seeks restoration of possession. It refers to the sale deed of the year 1969 which was executed by the tribal in favour of a nontribal. Section 3 of the said Act gives power of restoration of lands that have transferred by tribals in favour of nontribals when said transfer had taken place before 06.07.1974. Under Section 4 of the said Act lands that have been transferred from 01.04.1957 to 06.07.1974 can be sought to be restored under Section 3 of the said Act. The provisions of Section 36A of the Code have been introduced by virtue of the amendment that came into force on 06.07.1974. It is this submission of the learned counsel for the petitioners that as the transfer in question had taken place on 07.04.1969 which is prior to 06.07.1974, the respondent no.1 ought to have invoked the provisions of Section 3 of the said Act and not the provisions of Section 36A of the Code as the said provisions related to such transfers after 06.07.1974. In this regard, it is to be seen that under Section 3 of the said Act, the Collector either suo motu or on the application made by the tribaltransferor can after making such enquiry direct restoration of the lands that have been transferred contrary to the provisions of the said Act. Section 2(1)(b) of the said Act defines the expression "Collector" to include an Additional Collector and Assistant or Deputy Collector and any other Officer not below the rank of Tahsildar especially empowered by the State Government to exercise powers and perform duties of the Collector under the said Act. It could thus be seen that besides the Collector, the Additional Collector or Assistant or Deputy Collector exercising powers and duties of the Collector under the Code as well as any other Officer not below the rank of the Tahsildar as empowered by the State Government can exercise jurisdiction under Section 3 of the said Act. The proceedings in question have been entertained by the Tahsildar. Thus merely because in the application the provisions of Section 36A of the Code have been mentioned that alone would not be a reason to hold that the Tahsildar had no jurisdiction to adjudicate the proceedings. It is well settled that if an Authority otherwise has power under law then merely because reference has made to a wrong provision of law that would not vitiate the exercise of such power as long as the power exists and can be traced to a source available in law. The learned counsel for the respondent no.1 is justified in referring to the decision in N.Mani (supra) in that regard. It is thus found that since the Tahsildar was empowered to adjudicate an application under Section 3 of the said Act, mere reference of the provisions of Section 36A of the Code in the application would not vitiate to exercise of such power. The said contention raised on behalf of the petitioners cannot be accepted.

It is also to be noted that under the provisions of Section 9A of the said Act no pleader is entitled to appear on behalf of any party in any proceedings under the said Act before any of the Authorities. It is a matter of common knowledge that in view of this provision the proceedings are required to be conducted by the parties themselves after obtaining guidance from other sources. When it is found that the Tahsildar was empowered under Section 3 of the said Act to exercise jurisdiction, a wrong mention of the provisions of Section 36A of the Code in the application dated 20.07.2013 that was required to be pursued without assistance of any Pleader cannot be a reason to nonsuit the respondent no.1.

8. As regards the contention that the subsequent proceedings were barred by principles of resjudicata in view of the fact that the Writ Petition No.2824/2007 that was filed by the respondent no.1 seeking restoration of possession had been withdrawn unconditionally and therefore the present proceedings were not liable to be adjudicated, the same is without any merit. It is clear from the record that initially it was the case of the petitioner no.1 and her husband that since they were in possession of the caste certificates, they were not liable to restore possession of the land in question to the respondent no.1. When the said writ petition was withdrawn on 21.10.2008, the caste certificate standing in the name of the petitioner no.1 had not been invalidated. The record indicates that only on 12.06.2013 the caste certificate that was issued to the petitioner no.1 came to be invalidated. It is thereafter that the present proceedings have been filed on 20.07.2013. Moreover, a prayer for restoration of possession was made directly before this Court in the aforesaid earlier writ petition. Subsequently, the respondent no.1 has after adjudication of the status of the petitioners as nontribals initiated the present proceedings. Withdrawal of the earlier writ petition therefore would not have much bearing on the initiation and entertainment of the present proceedings. Hence the ratio of the decision in Sarguja Transport Service [1986 ALLMR ONLINE 523 (S.C.)] (supra) would not be applicable to the case in hand. It would have been a different matter if the respondent no.1 had again directly approached this Court seeking restoration of the possession without taking recourse to the provisions of Section 36A of the Code. Hence on that count also, the attempt on the part of the petitioners to non-suit the respondent no.1 cannot succeed.

9. Insofar as the adjudication on merits by the Maharashtra Revenue Tribunal is concerned, it is seen that due opportunity was given to the petitioners to putforth their say. The objections raised on behalf of the petitioners have been adjudicated upon. In the light of the admitted fact that the sale deed was executed on 07.04.1969 after which on 12.06.2013 the caste certificate of the petitioner no.1 has been invalidated coupled with the fact that the respondent no.1 is armed with a validity certificate of belonging to 'Gond' Schedule Tribe, it is crystal clear that the sale deed dated 07.04.1969 is hit by bar contained under the said Act. Hence the respondent no.1 was entitled to be restored the said land under Section 3 of the said Act. The petitioners also cannot gain any advantage of the absence of other legal heirs of Hiraman in the present proceedings. It is thus found that by applying correct legal provisions the direction to restore possession has been issued which is within jurisdiction. In absence of any jurisdictional error, there is no reason to interfere with the impugned order. The writ petition therefore fails. Rule stands discharged with no orders as to costs.

Interim order shall continue to operate for a period of eight weeks from today.

Petition dismissed.