Bombay High Court
Kalpataru Properties (Thane) Pvt. Ltd vs Laxman Balu Dive (Since Decd.) Through ... on 6 July, 2021
Bench: K.K.Tated, Prithviraj K. Chavan
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4990 OF 2019
Kalpataru Properties (Thane)
Pvt.Ltd. ..... Petitioner
Vs.
Laxman Balu Dive (Since Decd.)
Through Lrs. And Ors. ..... Respondents
WITH
WRIT PETITION NO.3319 OF 2020
Tiku Pravinchand Parekh & Ors. ..... Petitioners
Vs.
Laxman Balu Dive Decd Thru. Lrs.
And Ors. ..... Respondents
Mr.Girish Godbole Senior Advocate i/b Mr.Makarand B.
Savant for the Petitioner in Writ Petition No.4990/2019 and
for Respondent no.3 in Writ Petition No.3319/2020
Mr.Sanjiv Punalekar a/w Mr.Madhur Rai and Mr.Jimmy
Gonsalves i/b M/s.PRS Legal for Respondent no.1.1 in both
the matters
Mr.V.S.Gokhale 'B' Panel Counsel for the State in both the
matters
None for the Petitioner in Writ Petition No.3319/2020
Ms.Neeta Karnik a/w Mr.Foss for the Respondent nos.1.2 in
both the matters
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Mr.H.N.Vakil i/b M/s.Mulla and Mulla and Craigie Blunt and
Caroe for the Respondent no.1.1 in Writ Petition
No.4990/2019
Mr.Suneet Kumar Tyagi for the Respondent no.2 in Writ
Petition No.4990/2019
CORAM: K.K.TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATED : JULY 06, 2021 P.C. . Heard.
2. No one appeared for the Petitioner in Writ Petition No.3319 of 2020. Mr. Godbole, the learned counsel appearing for the Petitioner in Writ Petition No.4990/2019 submits that the issue involved in both the matters is the same.
3. By these two Writ Petitions, Petitioners are challenging the order dated 05.01.2019 passed by Respondent no.3 under section 257 of the Maharashtra Land Revenue Code, 1966 directing Respondent no.4 Divisional Commissioner, Konkan Division to consider the original Respondent No.1's case in respect of order dated 19.07.1979 passed by Tahsildar in Adivasi Case No.118 of 1979 in respect of the lands bearing Old Survey Numbers 59117 and 59118 situated at Vilage Chitalsar Manpada, Talura and District Thane.
4. The learned counsel for the Petitioner submits that in Mohite 2/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt the present proceedings, predecessor of the Respondent No.1 Laxman Balu Dive, Ratnya Shravan, and Sakrya Janya filed Adivasi Case No.118 of 1979 under section 3 and 4 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the said Act). That Adivasi Case was dismissed by the Tahsildar by order dated 19.07.1979. The said order was not challenged by the Applicants in that matter.
5. The learned counsel for the Petitioner submit that thereafter one Prakash Laxman Dive and Rukhmini Suresh Dokphode also preferred Adivasi Application Case No.1 of 2016 under section 4 of the said Act in respect of the following property :
Name of Gat No. Hissa No. Area Assessment Village (Per. H.R.) Mauze 59/A 17/A 0-68-7 0-55 Chitalsar 59/A 17/B 0-03-0 0-02 Manpada Taluka and 59/A 17/C 0-67-4 6-17 District 59/A 17/D 0-09-0 0-08 Thane 59/A 17/E 0-04-0 0-03 59/A 17/F 0-23-6 1-43 59/A 17/A 0-79-5 6-10 59/A 17/B 0-02-5 0-01 59/A 17/C 0-03-5 0-04 59/A 17/D 0-02-5 0-18
6. The learned Counsel for the Petitioner submits that, that Adivasi Case No.1 of 2016 dismissed by the Tahsildar by order dated 02.03.2017. Being aggrieved by the said Mohite 3/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt order, original Applicants preferred Revision No.API/TRB/THN/03/2017 before Maharashtra Land Tribunal, Mumbai under section 6 of the Maharashtra Restoration of Lands to Schedule Tribes Act, 1974. He submits that even Maharashtra Revenue Tribunal, Mumbai dismissed the said Appeal by order dated 07.09.2017.
7. The learned counsel for the Petitioner submits that thereafter those Applicants preferred Writ Petition No.11974 of 2017 Shri Prakash Laxman Dive VS/ Smt. Nilaben Pravinchand Parekh & Ors. before this court on Appellate Side. He submits that after hearing both the sides, this court (Coram: Ranjit More & Smt.Anuja Prabhudesai, JJ.) also dismissed Writ Petition by order dated 20.06.2018. He relies on paragraph nos.2 to 6 of the said order which reads thus:
"2. The record reveals that initially the proceeding for restoration of the land under Section 3 and 4 of the Maharashtra Restoration of the land to Schedule Tribe came to be filed in the year 1979 before the Tahsildar & ELT between the petitioner's father Laxman and D.Dayabhai & Co. Pvt. Ltd. The Tahsildar & DLT by his order dated19th July, 1979 observed that the case does not fall under the provisions of Section 3 and 4 of the Maharashtra Restoration of Land to Schedule Tribes Act, 1974. The Tahsildar observed that the name of the petitioner's father has already been removed from the record and he has not become occupant, tenant or purchaser of the land on Mohite 4/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt 1st April, 1997. It was also observed that there is no transfer of the said land from tribal to non tribal and therefore the provisions of Section 3 and 4 of the Maharashtra Restoration of Land to Schedule Tribes Act, 1974 are not applicable and accordingly dropped the proceeding.
3. This order was never challenged by the petitioner's father, nor by the petitioner, and therefore has attained finality. The petitioner and his sister, however, subsequently in the year 2016 again approached the Tahsildar, Thane for restoration of the subject land under the provisions of Section 3 and 4 of the Maharashtra Restoration of Land to Schedule Tribes Act, 1974 by filing Tribal Case No. 1 of 2016. This case was dismissed by the Tahsildar on the ground that the earlier proceeding was initiated by the petitioner's father, and that proceeding was dropped in the year 1979. The petitioner challenged the order by filing appeal before the Maharashtra Revenue Tribunal. As stated above, the Maharashtra Revenue Tribunal dismissed the appeal agreeing with the finding recorded by the Tahsildar.
4. We are of the considered view that the petitioner or his father having chosen not to challenge the order dated 19th July, 1979,whereby the proceeding under Section 3 and 4 of the Maharashtra Restoration of Land to Schedule Tribes Act were dropped, it was not open for the petitioner to file fresh proceeding under Mohite 5/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt the said provisions for the same relief. We are therefore not inclined to interfere with the impugned order.
5. The learned Counsel for the petitioner however submits that the Tahsildar's order passed in the year 1979 is nonest and that the petitioner or his father were not aware of the same and were therefore entitled to file the application was filed before the Tahsildar in the year 2016. The submission of the petitioner cannot be accepted as the petitioner himself, as a legal heir of his father, had earlier filed Writ Petition No. 7953 of 2003. Copy of which is annexed at page 291 to this petition. The petitioner had filed said petition seeking direction to the Government for initiating appropriate proceeding to restore the possession of the subject land to the petitioner by removing the present occupant thereon. He had also sought to set aside the sale deed executed by the Court Receiver in favour of D. Dayabhai & Co.. In para 11 of the appeal, the petitioner has made following averments:
" 11. The father of the Petitioner, namely Laxman Bala Varli @ Dive, in the year 1979 initiated proceedings under the provisions of Maharashtra Restoration of Lands to the Schedule Tribes Act, 1974. But the said proceedings came to be dropped as there was no transfer from tribal to nontribal, because the Mohite 6/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt present purchasers have purchased the said land from Dayabhai & Co. i.e. the respondent No.1 herein, who in turn had purchased the same from the Court Receiver. Annexed herewith and marked as Exhibit "D" is the true copy of the intimation of the order passed in the said proceedings."
6. The above stated averments clearly indicate that the petitioner was very much aware of the order passed by the Tahsildar in the year1979 under which the proceeding under Section 3 and 4 of the said Act were dropped. The said petition was dismissed by the Division Bench of this Court by order dated 27th June, 2005. This order has also attained finality. Having failed to get the relief in earlier proceedings, the petitioner cannot reagitate the same issue by filing fresh proceedings. Hence, in our considered view, the Tahsildar was justified in dismissing the proceeding of the petitioner."
8. The learned counsel for the Petitioner submits that thereafter deceased Laxman Bala Dive filed Application dated 16.10.2017 to the State Government for taking suo moto proceedings for setting aside the order dated 19.07.1979 passed by the Tahsildar. He submits that the Respondent no.3 learned Minister passed the impugned order. He submits that at the time of passing impugned order, the learned Minister failed to consider the provisions Mohite 7/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt of the said Act as well as earlier Applications filed by the predecessor of Respondent no.1 and also the order passed by this court in Writ Petition No.11974 of 2017. He submits that admittedly, after more than 35 years, Respondent no.1 wants to re-open the case which was decided by the learned Tahsildar by order dated 19.07.1979.
9. The learned counsel for the Petitioner submits that even bare reading of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 clearly shows that for taking suo moto proceedings under section 7 of the said Act, State Government has to give proper reasons. He submits that in the present proceedings in hand, Respondent no.3 State of Maharashtra passed impugned order on the basis of Application dated 16.10.2017 filed by Respondent no.1. He relies on section 4, 6 and 7 of the said Act which reads thus:
"4. Where any land of a Tribal is, at any time on or after the 1st day of April1957 and before the 6th day of July 1974, purchased or deemed to have been purchased or acquired under or in accordance with the provisions of the relevant tenancy law by a non- Tribal-transferee or where any acquisition has been regularised on payment of penalty under such law and such land is in possession of a non-Tribal transferee and has not been put to any non-agricultural use on or before the 6th day of July 1974, then the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu at any time or on an application by the Tribal made1[within thirty years from the 6th July 2004] and after making such inquiry as he thinks fit, direct that the land shall, subject to the provisions of sub-section (4)of section 3, Mohite 8/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt be restored to the Tribal free from all encumbrances and that the amount of purchase price or a proportionate part thereof, if any, paid by such non- Tribal-transferee in respect of such lands in accordance with the relevant tenancy law shall be refunded to such non-Tribal-transferee either lump sum or in such annual instalments not exceeding twelve (with simple interest at 4½ per cent. per annum) as the Collector may direct. The provisions of clauses (d), (e), (f) and (g) of sub-section (4) of section3 shall, so far as may be, apply in relation to the recovery of the amount from the Tribal and payment thereof to the non-Tribal-transferee and the persons claiming encumbrances, if any :
Provided that, where land is purchased or acquired by 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 purchased or acquired shall be restored to the Tribal-transferor.
6.(1) An appeal against any decision or order passed by the Collector may, notwithstanding anything contained in the Code, be made to the Maharashtra Revenue Tribunal constituted under the Code.(2)Every such appeal shall be made within a period of sixty days from the date of receipt of the decision or order of the Collector. The provisions of sections 4, 5,12 and 14 of the Limitation Act, 1963, shall apply to the filing of such appeal.(3)In deciding an appeal under sub-section (1), the Maharashtra Revenue Tribunal shall exercise all the powers which a Court has subject to the regulations framed by that Tribunal under the Code and follow the same procedure which a Court follows,in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908.Mohite 9/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 :::
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7. Where no appeal has been filed within the period provided by sub-section (2)of section 6, the Commissioner may sou 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 maybe, 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 cases 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."
10. The learned counsel for the Petitioner submits that considering the delay on the part of the Respondent No.1 to challenge the order dated 19.07.1979, impugned order passed by learned Minister is required to set aside.
11. The learned counsel for the Respondent no.11 submits that though they are owners of the property, the learned Minister failed and neglected to give them notice and or hear before passing the impugned order. He submits that on this ground also, said order is required to be set aside.
12. The learned counsel for the Respondent no.2 submits that initially the said property was purchased by them in auction. He submits that Respondents failed and neglected to give them any notice in the present proceedings. Hence, Mohite 10/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt impugned order passed by the learned Minister is required to be set aside.
13. The learned counsel for the Respondent nos.1.2 vehemently opposed the present Writ Petition. She submits that in the present proceedings, impugned order dated 05.01.2019 passed by the learned Minister under section 7 of the said Act. She submits that State Government has power to take up the matter on suo moto basis. She further submits that even this court by order dated 20.04.2018 in Smt.Rukhmini Suresh Dokphode vs. State of Maharashtra in Writ Petition No.14019 of 2017 directed State to decide the Respondent No.1's representation dated 16.10.2017 as expeditiously as possible, preferably within three months from the date of receipt of copy of order. She submits that bare reading of the order dated 20.04.2018 in Writ Petition No.14019 of 2017 and impugned order passed by the learned Minister clearly shows that, same was passed by the learned Minister on suo motu basis as per section 7 of the said Act. She further submits that in any case, Divisional Commissioner will decide the matter on its own merits and therefore, there is no question of interfering with the order passed by the learned Minister. She submits that under section 7 of the said Act, there is no question of limitation. In support of this contention, she relied on Apex Court order in the matter of Sandu (Dead) by Legal Representatives vs. Gulab (Dead) by Legal Representatives and Ors. reported in (2015) 9 SCC 405. Paragraphs 5, 6 and 9 read thus:
Mohite 11/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 :::4 wp4990-19.odt "5. The Assistant Collector, Jalgaon in the State of Maharashtra initiated proceedings under Section 4 of the Act as per notice dated 03.12.1975 in respect of land Gat. No. 71 measuring 2 hectares and 7 ares on the ground that the land originally belonged to the tribal and as the same was transferred to a non-tribal after 1957. It was found that the land was sold by the tribal to the non-tribal on 12.07.1971. However, restoration was declined and order dated 31.12.1975 was passed dropping the proceedings on the ground that the tribal was not prepared to purchase the land.
The order reads as follows:
"ORDER"
This case is started suo motu. The suit land belongs to the Shri Gulab Dagadu and etc. who is a member of Tribal Communities. He sold the suit land to Shri Sandu Dayaram on 27.5.1971 for Rs.12,000/-. The transferee belongs to Non- Tribal community. The case was fixed for hearing on 22.12.1975 and after hearing the case is dropped on the following grounds:-
(1) The transferor Shri Gulab Dagadu Tadvi and Supadu Dagadu Tadvi are not willing to purchase the land."
The file was hence closed. Gulab, since deceased and represented by his legal heirs, is the respondent herein. The non-tribal transferee, since deceased and represented by his legal heirs, is the appellant.
6. Thereafter, it appears, in 1985, the Additional Commissioner,Nasik (under Section 2 of the Act, the Commissioner includes Additional Commissioner) initiated suo motu proceedings under Section 7 of the Act, after the Government granted the sanction under Mohite 12/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt Section 7 of the Act by letter dated 10.05.1982. In the order dated 28.03.1989, the revisional authority entered a finding that the land was liable to be restored. The order dated 31.12.1975 passed by the Assistant Collector, Jalgaon was set aside.
9. The High Court in the impugned judgment dated 26-07-2005/27.07.2005 took the view that the Commissioner could not have exercised its revisional jurisdiction under Section 7 of the Act since the same was exercised beyond a period of three years. As a matter of fact, the Government of Maharashtra had accorded sanction for the revision by its order dated 10.05.1982 and the revisional proceedings had been initiated apparently in 1985. Under the proviso to Section 7 of the Act, the revisional authority has to exercise the suo motu powers within three years from the date of the order passed by the Collector except in a case where a direction is issued in that regard by the State Government. Where the State Government accords sanction for initiation of the revision under Section 7 of the Act, the proceedings can be initiated beyond the period of three years. In such a case, the revisional proceedings will not be vitiated on the ground that the same is hit by limitation of the period of three years as prescribed under Section 7 of the Act. But the proceedings should be initiated within a reasonable time from the date of permission given by the Government. In the case before us, the direction is issued by the State Government in 1982 and it appears the revisional authority has initiated proceedings in 1985. In the given circumstances, we are of the view that the power exercised by the revisional authority is within a reasonable time."
Hence, present Writ Petition is required to be dismissed with costs.
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14. In similar way, the learned counsel for the Respondent no.1.1 also vehemently opposed the present Writ Petition. He submits that if stay is granted by this court, then irreparable loss will be caused to them. He submits that construction activities are going on, on the said land and if third party rights are created, then nothing will survive in the present proceedings. He further submits that let the Divisional Commissioner to decide the matter after hearing both the sides immediately.
15. We have heard both the sides. It is to be noted that in the present proceedings, initially, the learned Tahsildar passed order dated 19.07.1979 in Adivasi Case No.118 of 1979 under section 3 and 4 of the said Act dismissing the claim of predecessor of Respondent no.1. Apart from that, again other legal heirs challenged the same order i.e. 19.07.1979 in another proceedings by way of Adivasi case No.1 of 2016. Same was rejected by the Tahasildar by order dated 02.03.2017. Being aggrieved by the said order, they preferred Appeal No.3 of 2017 before Maharashtra Revenue Tribunal. Same was also dismissed by the Tribunal by order dated 07.09.2017. Thereafter, predecesors of Respondent no.1, Prakash Laxman Dive preferred Writ Petition No.11974 of 2017. Same was dismissed by this court by order dated 20.06.2018.
16. It is to be noted that the Apex Court in the matter of Sandu (supra) held that the proceedings should be initiated within a reasonable time, from the date of permission given Mohite 14/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 ::: 4 wp4990-19.odt by the Government under section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. It is to be noted that the issue in the case in hand is "whether the sou motu proceedings can be initiated after lapse of 35 years and that too, on the basis of the application filed by the affected party". In any case, in the present proceedings, initially Adivasi Case No.118/1979 was filed by Laxman Balu Dive & Ors., predecessor of Respondent No.1 was dismissed by the Tahasildar, by order dated 19.07.1979. Thereafter again, the Predecessor of Respondent No.1 Prakash Laxman Dive and Rukhmini Suresh Dive preferred Adivasi Case No.1/2016 in respect of the same land. That was also dismissed by the Tahasildar, by order dated 02.03.2017. Thereafter the predecessor of Respondent No.1 had preferred appeal under section 6 of the Maharashtra Restoration of Lands to Scheduled Tribes Act 1974 before the Maharashtra Revenue Tribunal, Mumbai. The Tribunal dismissed the said appeal by order dated 07.09.2017. That order was challenged by them before this court in Writ Petition No.11974/2017. That Writ Petition was also dismissed by this court by order dated 20.06.2018. Apart from that, during the course of arguments, the learned counsel Mr.Godbole for the Petitioner in Writ Petition No.4990/2019 made a statement before this court that, near about entire construction has been completed on the said land.
17 In view of these facts, we are of the opinion that the Petitioner has made out a case for the following order:
Mohite 15/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 :::4 wp4990-19.odt a. Rule.
b. Interim relief in terms of prayer clause (b) and (c) in Writ Petition No.4990 of 2019 which reads thus:
"(b) pending the final disposal of the present petition, this Hon'ble Court be pleased to stay the execution, implementation and effect of the impugned Order dated 05.01.2019 passed by the Respondent No.3 in Proceeding No. RTS-
2718/1141/Case No. 160/ J- 4 of 2018;
(c) pending the final disposal of the present petition, this Hon'ble Court be pleased to direct the Respondent Nos.3 to 7 or any other officer working under their supervision / direction, not to make any changes in the relevant record of rights in respect of the said lands, based upon the impugned Order dated 05/01/2019 passed by the Respondent No.3 in Proceeding No. RTS-2718/1141/Case No.160 / J-4 of 2018."
c. The learned counsel for the Respondent waives service.
(PRITHVIRAJ K. CHAVAN, J.) (K.K.TATED, J.) Mohite 16/16 ::: Uploaded on - 07/07/2021 ::: Downloaded on - 08/07/2021 00:28:29 :::