Bombay High Court
Shri Nimba Bula Patil vs The State Of Maharashtra on 18 November, 2010
Author: S. S. Shinde
Bench: S. S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 2033 OF 1996(A)
(WRIT PETITION NO. 3581 OF 1991, BOMBAY)
Shri Nimba Bula Patil,
@ Nimba Bula Bedse,
Age 51 years,
R/o. Chhadvel (K), Taluka Sakri
District Dhule ig ...Petitioner
Versus
1 The State of Maharashtra
2 Tahsildar, Sakri
3 Shri Ananda Sonu Kokani,
R/o. Karde, Post. Chhdvel,
Tq. Sakri, District Dhule
4 Shri Pandit Shankar Patil,
R/o. Chhadvel (K),
Tq. Sakri, District Dhule ...Respondents
.....
Mr. M.V. Dhongde, counsel for the petitioners
Mrs. V.A. Shinde, A.G.P. for R. No.1 and 2
Mr. R.C. Patil, advocate for respondent No.3
Mr. B.R. Warma, advocate for respondent No.4
.....
CORAM: S. S. SHINDE, J.
DATED: 18TH NOVEMBER, 2010
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2
JUDGMENT :-
1 Heard learned counsel for the petitioner and learned counsel for respective respondents.
2 At the oral request of counsel for the petitioner, the following words are permitted to be deleted from prayer clause (a). "and LRC.TRB.6 of 1990" . Amendment to be carried out forthwith.
3This writ petition takes exception to the judgment and order dated 26.3.1991 passed by the Member, Maharashtra Revenue Tribunal, Bombay camp at Dhule in LRC. TRB C 1/1988 alongwith the appeal No. LRC.TRB.6 of 1990.
4 The background facts of the case are as under;-
The petitioner is resident of village Chhadvel (K), District Dhule.
The subject matter of the petition is land survey No. 110/2 admeasuring about 9 Acres and 21 Gunthas. The said land originally belongs and was in possession of one Pandit Shankar Patil. Shri Pandit Shankar Patil exchanged the land survey No. 110/2 to Ananda Sonu Kokani for his land survey No.492 and thereafter the said respondent No.3 Tribal Ananda Sonu Kokani sold the said land survey No. 110/2 to the present petitioner for Rs.5000/- in or about in the year ::: Downloaded on - 09/06/2013 16:37:25 ::: 3 1971.
It is the case of the petitioner that thereafter the said land was entered in the revenue record in the name of the petitioner. The petitioner is in actual and physical possession of land survey No. 110/2 since 1971. According to the petitioner, the land was purchased in accordance with provisions of law particularly Section 36 of the Maharashtra Land Revenue Code, 1966. Section 36 of the Code as it then stood recognized the character of heritable and transferable property from whom the petitioner purchased and was entitled to do so on his own. It is case of the petitioner that vendor of land sold the land entirely out of free will and for full consideration.
It is the case of the petitioner that the respondent No.3 Tribal Ananda Sonu Kokani was never in possession of the land survey No. 110/2 and only the title was passed in the name of tribal transferor. It is the case of the petitioner that since respondent No.3 was never in possession of the land survey No. 110/2, the petitioner entered into purchase transaction of the land survey No. 110/2. It is further case of the petitioner that after purchase of the said land, the petitioner effected several improvement in the land and by spending huge amount.
::: Downloaded on - 09/06/2013 16:37:25 ::: 45 There were certain amendment in Section 36 of the Act and Officer of respondent No.1 served upon the petitioner a show cause notice and intimated proceeding for restoration of land survey No. 110/2 being case No. ALP/Chhadvel(K)19/76. A separate inquiry was held in respect of land survey No. 492 of village Korde being Adivasi Case No. 161 of 1977. The Tahsildar, Sakri tried case No. ALP Chhadvel (K) 19/76, after considering the say of both the parties. The Tahsildar was pleased to pass order for restoration of land survey No. 110/2 to the Tribal-transferor on 31.1.1986. It appears that the case being Adivasi case No. 161 of 1977 filed in respect of survey No. 492 was decided and the land was ordered to be given to the Non Tribal Mr. Pandit Shankar Patil.
6 The petitioner being aggrieved by the judgment and order dated 31.1.1986 passed by the Tahsildar, Sakri in case No. ALP-
Chhadvel(K) 19/76, preferred an appeal being appeal No. LRC.TRB.6 of 1986 before the Maharashtra Revenue Tribunal, Bombay. The learned member of the M.R.T. Bombay camp at Dhule who heard the said appeal was please to allow the same by his judgment and order dated 8.6.1987.
7 The respondent No.3 herein filed review application being No. LRC.TRB. C 1 of 1988/LCR.TRB 6 of 1986 and also filed an appeal ::: Downloaded on - 09/06/2013 16:37:25 ::: 5 against the order dated 21.2.1986 passed by the learned Tahsildar, Sakri in Adivasi Case No. 161 of 1977 being appeal No. LRC.TRB 6 of 1990. The Maharashtra Revenue Tribunal, Bombay Camp at Dhule was pleased to hear both the review and appeal together and was further pleased to dispose of both the matters by common judgment dated 26.3.1991. The Member of the Tribunal, was pleased to set aside the earlier order dated 8.6.1987 passed in appeal No. 6 of 1986 and also order dated 21.2.1986 passed by the learned Tahsildar, Sakri in Adivasi Case No. 161 of 1977 and remanded both the cases for starting de novo enquiry in respect of land Survey No. 110/2 and survey No. 492.
8 The petitioner being aggrieved by the judgment and order dated 26.3.1991, passed by the Maharashtra Revenue Tribunal, Bombay camp at Dhule in Review application being LRC.TRB C 1 of 1988 (LCR. TRB.6 of 1986) and LRC.TB 6 of 1990, has filed this writ petition.
9 Learned counsel appearing for the petitioner invited my attention to the grounds taken in the writ petition and more particularly ground No.3 about maintainability of the review application filed by respondent No.3 in appeal No. LRC/TRB. 6 of 86 and submitted that there is no provisions under the Act to entertain the review application by the ::: Downloaded on - 09/06/2013 16:37:25 ::: 6 Maharashtra Revenue Tribunal. It is further submitted that this court had occasion to consider the maintainability of review application before the Maharashtra Revenue Tribunal under the provisions of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1975 and this court has held that since the power of review is not provided to the Maharashtra Revenue Tribunal under the said Act, the review application is not maintainable. In support of his contention, learned counsel placed reliance on the reported judgment of the Hon'ble Supreme court in the case of Patel Narshi Thakershi and others Vs. Pradyumansinghji Arjunsinghji, reported in AIR 1970 SC 1273 and in the case of Dagadu Sakharam Patil (since deceased through his L.Rs.) Bhikan Dagadu Patil and others Vs. State of Maharashtra and others, reported in 2002 (1) Mh.L.J. 119 and submitted that this writ petition deserves to be allowed only on the ground of non maintainability of the review application. According to the counsel for the petitioner, since the review application filed by respondent No.3 itself was not maintainable, as a consequences, the order passed by the Maharashtra Revenue Tribunal in appeal No. LCR.TRB. 6 of 1986 dated 8.6.1987 is required to be quashed and set aside.
10 On the other hand, learned counsel for the respondents relied on the observations made by the Tribunal in its order and submitted that the Maharashtra Revenue Tribunal after appreciating the rival ::: Downloaded on - 09/06/2013 16:37:25 ::: 7 contentions has passed the impugned judgment and order and therefore, no interference is warranted in the writ jurisdiction.
11 I have given due consideration to the rival submissions advanced by the counsel for the parties. In my opinion, since issue raised in this writ petition that the review application filed by the respondent in appeal No. LRC.TRB.6 of 1986 was not maintainable, goes to the root of the matter. This Court in the case of Dagadu Sakharam Patil (supra), had occasion to consider the provisions of Maharashtra Restoration of Lands to Scheduled Tribes and also Section 6 of the Maharashtra Land Revenue Code, 1966 and other provisions of Maharashtra Land Revenue Code. This Court in the said judgment held thus:
"Section 6(3) of the Maharashtra Restoration of Lands to Scheduled Tribes Act neither specifically provides for power to review nor it discloses such power to the Tribunal by necessary implication. The authority under the said Act does not enjoy any inherent power of review. The provisions contained in section 322 of the Maharashtra Land Revenue Code cannot empower the Tribunal while dealing with the matters under the said Act to exercise powers of review in relation to matters decided under the said Act."
This court in para 14 of the said judgment has further held that ::: Downloaded on - 09/06/2013 16:37:25 ::: 8 in Maharashtra Restoration of land to Scheduled Tribes, the power to review its order by the appellate authority that M.R.T. is not provided and also the provisions of Section 322 of the Maharashtra Land Revenue Code, 1966 cannot be invoked to exercise such review powers in relation to the orders passed under the said act.
12 Keeping in mind the authoritative pronouncements of this Court in the case of Dagadu Sakharam Patil (supra), in my opinion, in the instant case, the Maharashtra Revenue Tribunal had no jurisdiction to entertain the review application filed by respondent No.3 herein. The Hon'ble Supreme Court in the case of Patel Narshi Thakershi and others (supra) held that the power to review is not inherent and it must be conferred by law either specifically or by necessary implication. Therefore, keeping in mind the authoritative pronouncements of this Court as well as the Hon'ble Apex Court, this writ petition deserves to be allowed on the ground that the Maharashtra Revenue Tribunal had no jurisdiction to entertain the review application. Counsel for the respondents have failed to bring anything to the notice of this Court that the Maharashtra Revenue Tribunal had jurisdiction to entertain the review application.
13 In the light of above, writ petition is allowed in terms of prayer clause (a) and stands disposed of. Rule made absolute to the above ::: Downloaded on - 09/06/2013 16:37:25 ::: 9 extent.
14 It is made clear that the writ petition is allowed in respect of survey No. 110/2 of village Chhadvel (K), Tq. Sakri, District Dhule. The order of the Maharashtra Revenue Tribunal dated 8.6.1987 dropping the proceedings in respect of survey No. 110/2 of village Chhadvel is restored. However, it is made clear that so far as order of the Maharashtra Revenue Tribunal dated 8.6.1987 in respect of survey No 492 is not disturbed.
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