Bombay High Court
Pundalik Sonu Shimpi vs Radhabai Sampat Dhumase And Ors. on 14 June, 2002
Equivalent citations: 2002(6)BOMCR160
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Additional Commissioner, Nasik Division, Nasik dated March 23, 1989 whereby the order passed by the Tahsildar, Kalwan dated 26th January, 1982 in favour of the petitioner came to be set aside in exercise of powers under section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the said Act).
2. The petitioner has challenged the correctness of the order on merits, but the main ground that persuades me to dispose of this writ petition is the ground of limitation. According to the petitioner, the order passed in favour of the petitioner by the Tahsildar, Kalwan is dated 26-1-1982. This order was sought to be reviewed suo motu by the Additional Commissioner in the year 1987; whereas section 7 of the Act postulates that the powers under section 7 can be invoked by the Commissioner suo motu provided that the record shall be called for before the expiry of three years from the date of the order which is sought to be reviewed.
3. According to the petitioner, in the present case, there is nothing on record to indicate that any direction was issued by the State Government to exercise the powers under section 7 of the Act after lapse of three years from the date of the order of the Tahsildar dated 26-1-1982. This submission is made on the premise that the subject show cause notice has been issued to the petitioner only in the year 1987, which presupposes that the Commissioner decided to take suo motu action only on or around that time. On the other hand, the Commissioner has dealt with the question of limitation by observing that the Tahsildar had decided the case on 26-1-1982 and the record of the case was received in his office on 19-7-1982 i.e. before the expiry of three years from the date of Tahsildar's order.
4. Before we proceed to examine the matter further, I would think it apposite to advert to section 7 of the Act, which reads thus:
"Section 7. Where no appeal has been filed within the period provided by sub-section (2) of section 6, the Commissioner may suo motu or on the direction of the State Government at any time-
(a) call for the record of any inquiry or proceeding of any Collector for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of, such Collector, as the case may be, and
(b) pass such order thereon as he thinks fit:
Provided that no such record shall be called for after the expiry of three years from the date of such order except in case where directions are issued by the State Government; and no order of the Collector shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard."
The section enables the Commissioner to call for the record of any inquiry or proceeding of any Collector for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of, such Collector. The inhibition to exercise this power is that: (a) no appeal has been filed against such order within the period of limitation provided in section 6(2) of the Act (b) three years have not expired from the date of such order and (c) no order of modifying, annulling or reversing the order of the Collector be passed unless opportunity is given to the interested parties to appear and are heard. In so far as the first inhibition is concerned, the language of section 7 would possibly permit the Commissioner to invoke the powers on the direction of the State Government. I refrain to elaborate further on this aspect as this question does not directly arise in the present case. We are also not concerned with the third aspect (i.e. (c) above) in the present case. The moot question is-whether there is any time factor for exercising this revisional powers? On conjoint reading of this section, if the Commissioner was to take suo motu action under this provision then, he is obliged to do so within a period of three years from the date of such order. No doubt the proviso postulates that "no such record shall be called for after the expiry of three years from the date of such order", however, that would not mean that it will be open to the Commissioner to initiate suo motu action at any time on the ground that the subject record was already received in his office before the expiry of three years from the date of such order. In the latter case, the Commissioner will be obliged to take a conscious decision to initiate suo motu action in the matter before the expiry of three years from the date of such order. Once the Commissioner takes such a decision within three years from the date of such order and this can be established from the contemporaneous record then, that would be sufficient to invest him with the power to continue with the suo motu action and not otherwise. Any other construction would invest an unbridled authority in the Commissioner to initiate action at any time which would go completely against the legislative intent. It is well settled that even when there is no express time period provided for the statutory authority to take any action, even in such a situation the rule of law obliges the authority to act within a reasonable time. This does not mean that on expiry of three years from the date of such order no revisional powers can be invoked. In such a situation the Commissioner will have to obtain a specific direction from the State Government in respect of that case. On the language of section 7 of the Act the State Government will be competent to issue appropriate directions to the Commissioner, which can be even after the expiry of three years from the date of such order but obviously within a reasonable time, only when the Commissioner can continue with the Revisional proceedings under this section. In other words, in cases where the Commissioner intends to call for the record of any inquiry or proceedings of any Collector, that shall be done before the expiry of three years from the date of such order; whereas when the Commissioner has already received the record of any inquiry or proceedings of any Collector, in that case he shall take a consious decision to initiate suo motu action and record the same on the file but before the expiry of three years from the date of such order. In the latter case though the actual proceedings would spill-over to beyond three years but then it is possible to take the view that the exercise of power will relate back to the former date which was within limitation. However, on expiry of three years from the date of such order, action under this provision can be instituted only on the direction of the State Government.
5. In the present case, it is not possible to discern as to whether the show cause notice issued to the petitioner by the Commissioner in 1987 was the result of a conscious decision already taken by the Commissioner before the expiry of three years from 26-1-1982 or was on account of the direction issued by the State Government. In absence of this relevant details it will not be possible to examine the plea regarding limitation. As observed earlier, the date of receipt of record in the office of the Commissioner is wholly impertinent. Such an event cannot elongate the authority of the Commissioner to take suo motu action under this provision after the expiry of three years from the date of such order.
6. In the circumstances order passed by the Additional Commissioner, Nasik Division, Nasik is set aside and the matter is remanded to the Additional Commissioner to examine all the relevant aspects of the matter in the context of question of limitation provided under section 7 of the Act. That decision be taken within six months from the receipt of writ of this Court. All other questions relating to merit are kept open to be considered by this Court if and when such occasion would arise.
Petition disposed of accordingly. No costs.