Bombay High Court
Bovabhai Budha Girase vs Jirya Dajya Bhil (Deceased) By Legal ... on 15 September, 1987
Equivalent citations: (1987)89BOMLR481
JUDGMENT S.M. Daud, J.
1. A short, but interesting question which arises in this petition is whether the notice at Exh. C is ultra vires the powers of the Collector under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 hereinafter referred to as 'the Act'.
2. The question posed above arises for consideration in the following background :
3. Agricultural land bearing Block No. 146 measuring 2 Hectare & 93 Ares at village Jawade Tarf Board, Taluka Shahada, District Dhule, belonged to deceased respondent No. 1, who is now represented by his widow. The deceased sold this land to the petitioner in 1969. Pursuant to the coming into force of the Act, the deceased Jirya made an application for restoration of the land to him under Section 3 of the Act. The application was moved on November 28, 1979. The application was allowed and that order was impugned in an appeal to the Maharashtra Revenue Tribunal (MRT) by the petitioner. The MRT allowed the appeal wholly, holding that the application moved by the Tribal-transferor being beyond three years, could not have been entertained. The direction for restoration of land made in favour of the tribal, deceased respondent, was set aside. This order was passed on February 26, 1982. Exh. C was issued by the Tahasildar duly empowered under Section 3 of the Act on November 24, 1982. Petitioner questions the validity of the notice at Exh. C, contending that the MRT's decision in appeal decided the matter finally and that Exh. C was without jurisdiction. This contention has to be upheld and I do so for the reasons given below.
4. Mr. Naik representing the petitioner submits that the Collector acting suo motu, as has been done in the instant case vide Exh. C, can so act only if there be no order under Sections 7 or 9 of the Act. Once an order under Section 3 made upon an application of the tribal has been set aside, whether under Section 7 or under Section 9 of the Act, the power of the Collector to act suo motu under Section 3 of the Act does not survive. Mr. Mehere, representing respondents 2 and 3, submits that the Collector can act suo motu "at any time" (Section 3). This being the position under the statute, Exh. C, despite the fact that it was given after the appellate order passed by the MRT, will be valid. It is not possible to accept this submission. 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 au application and met with a reverse, the Collector if he wants to exercise his power 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. Thus viewed, Exh. C is invalid and will have to be quashed. Hence the order:
5. Exh. C is hereby quashed. Parties left to bear their own costs Rule in the above terms made absolute.