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2016 DIGILAW 1392 (BOM)

Bairao Jivanrao Patil v. Gulab Supdu Tadavi

2016-08-05

K.K.SONAWANE, S.V.GANGAPURWALA

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JUDGMENT : S.V. Gangapurwala, J. 1. Petitioner - Bajirao Jivanrao Patil is purchaser of land from Rupchand Chindhu Patil. On 26-03-1970 predecessor-in-title of Rupchand had purchased agricultural property from deceased Gulab Supdu Tadvi, who was a tribal. The Assistant Collector, Jalgaon initiated suo-motu proceedings for restoration of land to the tribal. The proceedings were dropped in view of order passed by the Assistant Collector on 28-02-1976. The Additional Commissioner, Nasik Division, Nasik took up suo-motu proceedings against order of Assistant Collector dated 28-02-1976 purportedly exercising power under section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short “ Act of 1974”) and the notice was issued by Additional Commissioner to the petitioner on 15-06-1993. The Additional Commissioner, eventually, allowed revision under his order dated 15-12-2011. 2. When the matter was before the learned Single Judge, learned counsel for petitioner relying on judgment of learned Single Judge of this Court in the case of Shridhar Damodhar Kamlaskar (Wani) deceased heirs and others Vs. Sonu Ganaji Dhumase and others reported in 2003(2) Bom. C.R. 50 urged that revisional powers exercised by Additional Commissioner under section 7 of the Act of 1974 could not have been exercised beyond period of three years. Learned counsel for the respondent No. 1 relying on the judgment in the case of Udhav Uttam Patil Vs. Daga Holkya Bhil since deceased through L.R. And others reported in 2001(2) Bom. C.R. 597, contended that the Commissioner can exercise the powers conferred under section 7 of the Act of 1974 suo-motu any time within a period of 30 years from the commencement of the Act or period of three years from conclusion of enquiry by the Collector under sections 3 or 4 of the Act of 1974. 3. Learned Single Judge of this Court observed that view adopted by learned Single Judge in Udhav's case (Supra) appears to be contrary to view adopted by learned Single Judge in Shridhar' case (Supra) and as such, learned Single Judge thought it fit that the matter may be referred to the larger Bench. Thus, the matter is placed before us, on the reference made by the learned Single Judge. 4. Thus, the matter is placed before us, on the reference made by the learned Single Judge. 4. Reference is made to this court on following issues:- (1) Whether the term 'at any time' as incorporated in Section 7 of the Act in respect of exercise of revisional powers by the Commissioner suo-motu or at the instance of State Government, shall be construed as prescribing limitation for 30 years from the commencement of the Act (i.e. 1st November 1975) or a period of three years from conclusion of inquiry by the Collector under sections 3 & 4 of the Act and that if any of the requirement is satisfied, (whether) it must be held that revisional power has been exercised within reasonable time? (2) Whether the interpretation put forth by the learned Single Judge in Udhav's case (Supra) in respect of suo-motu exercise of powers by the Commissioner, is in consonance with the provisions of Section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974? 5. Mr. V.T. Chaudhari, learned counsel for the petitioner submits that revisional jurisdiction of the Commissioner is governed by section 7 of the Act of 1974. Said provision categorically and specifically lays down limitation period of three years for the Commissioner to exercise suo-motu powers of revision. After expiry of three years, the Commissioner cannot exercise suo-motu powers of revision nor can entertain revision at the behest of the party. Proviso to section 7 of the Act of 1974 makes it crystal clear. 6. Learned counsel for petitioner relies on the judgment of learned Single Judge of this Court, in the case of Chandrakant Raghunath Parab and others Vs. State of Maharashtra and others reported in 2011(2) Mh.L.J. 687 , so also also judgment of the learned Single Judge of this court in the case of Shridhar Damodhar Kamlaskar (Wani) deceased heirs and others Vs. Sonu Ganaji Dhumase and others reported in 2003(2) Bom. C.R. 50 and the judgment of the Apex Court in the case of Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim reported in (1997) 6 Supreme Court Cases 71 so also in the case of State of Gujrat Vs. Patil Raghav Natha and others reported in (1969)2 Supreme Court Cases 187 and submits that where no period of limitation is prescribed, concept of reasonable time applies and which ordinarily would not be more than three years. 7. Fatmabai Ibrahim reported in (1997) 6 Supreme Court Cases 71 so also in the case of State of Gujrat Vs. Patil Raghav Natha and others reported in (1969)2 Supreme Court Cases 187 and submits that where no period of limitation is prescribed, concept of reasonable time applies and which ordinarily would not be more than three years. 7. Learned counsel further submits that provision is explicitly clear and exercise of revisional powers by the Commissioner after three years is not permissible. According to learned counsel, full bench of this court in the case of Manohar Ramchandra Manapure and others Vs. State of Maharashtra and another reported in 1989 Mh.L.J. 1011 interpreted the provisions of section 45(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings Act), which is a pari-materia provision and has held revisional powers cannot be exercised after period of three years. 8. Mr. M.K. Deshpande learned counsel for respondent No. 1 submits that Act of 1974 is beneficial and social welfare legislation meant for restoration of the property to the tribal. Scheduled Tribes constitute a separate class and they require special protection against exploitation. The Act of 1974 is a statute enacted by the State to fulfill constitutional guarantee of the State Policy enshrined under Article 46 of the Constitution of India, as such term 'at any time' appearing in section 7 of the Act of 1974, will have to be interpreted liberally. Learned counsel for respondent No.1 relies on the judgment of learned Single Judge of this court in the case of Udhav Uttam Patil Vs. Daga Holkya Bhil since deceased through L.R. And others reported in 2001(2) Bom.C.R. 597 , so also, judgment of learned Single Judge of this case in the case of Vasant Sunderrrao Kondbattunwar Vs. Sakharam Kawaduji Uike and others reported in 2008(5) Mh.L.J. 322 . and judgment of the Apex Court in the case of Lingappa Pochanna Appelwar and others Vs. State of Maharashtra and another reported in 1985 AIR 389, also judgment of learned Single Judge of this Court of Sakharam Bhoju Vs. State of Maharashtra and others reported in 2004(3) Mh.L.J. 1018. 9. Learned counsel for respondent No. 1 submits that social welfare legislation has to be construed so as to effectuate the purpose of the Act and relies on the judgment of the Apex Court in the case of Hindustan Level Ltd Vs. State of Maharashtra and others reported in 2004(3) Mh.L.J. 1018. 9. Learned counsel for respondent No. 1 submits that social welfare legislation has to be construed so as to effectuate the purpose of the Act and relies on the judgment of the Apex Court in the case of Hindustan Level Ltd Vs. Ashok Vishnu Kate and others reported in (1995) 6 Supreme Court Cases, 326 and in the case of Workmen Employed in Associated Rubber Industry Ltd. Bhavnagar Vs. Associated Rubber Industry Ltd. Bhavnagar and another reported in (1985)4 Supreme Court cases, 114. 10. We have considered the submissions canvassed by learned counsel for respective parties. Before adverting to the contentions put forth by the learned respective counsel, it will be appropriate to consider the scheme of the Act of 1974 itself. There cannot be any debate with proposition that the Act of 1974 is beneficial and social welfare legislation meant as an instrument for alleviating oppression, redressing bargaining imbalance, canceling unfair advantages and generally overseeing and ensuring probity and fair dealing, as observed by the Apex Court in the case of Lingappa referred to supra. 11. The Scheduled Tribes as class no doubt require special protection against exploitation and the Restoration Act is a measure undertaken by the State placing restriction on transfer of property by persons belonging to Scheduled Tribes. Even the State policy enshrined under Article 46 of the Constitution of India, enjoins that State shall promote with special care educational and economic interests of the weaker sections of the people and in particular, Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. 12. Section 3 of the Act of 1974 gives power to the Collector either suo-motu or on the application of a tribal-transferor made within thirty years from the 6th July, 1974 (now vide amendment by Maharashtra 43 of 2011 from 06-07-2004) to make enquiry as he thinks fit and direct restoration of land to the tribal-transferor etc. It is manifest that for achieving object of the Act of 1974 liberally period of 30 years from 6th July, 1974(now vide amendment by Maharashtra 43 of 2011 from 06-07-2004) is made available to the Collector to make suo-motu inquiry or on the application of a tribal-transferor for restoration of the land. It is manifest that for achieving object of the Act of 1974 liberally period of 30 years from 6th July, 1974(now vide amendment by Maharashtra 43 of 2011 from 06-07-2004) is made available to the Collector to make suo-motu inquiry or on the application of a tribal-transferor for restoration of the land. Section 6 of the Act of 1974 provides remedy by way of appeal against decision or order passed by the Collector. The appeal can be filed within a period of 60 days from the date of receipt of the decision or order of the Collector. Even provisions of sections 4, 5, 12 and 14 of the Limitation Act, 1963 are made applicable for filing such appeal. 13. In case, no such appeal is filed within a period as provided in sub-section (2) of Section 6 of the Act of 1974, the Commissioner has been given power to exercise revisional jurisdiction suo-motu. Said powers can be exercised by the Commissioner suo-motu or on the directions of the State Government. It would be appropriate to reproduce section 7 of the Act of 1974, as it is said provision, which is subject-matter for consideration of the present reference. “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 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.” 14. In the case of Udhav referred to supra learned Single Judge of this court held that revisional powers under section 7 of the Act of 1974 can be exercised by the Commissioner within 30 years from the date of application of the Act i.e. Act of 1974 or within three years from the order of the Collector. Reading section 7 of the Act of 1974, it nowhere prescribes period of 30 years from the date of application of the Act of 1974. In fact, section 7 of the Act of 1974 is not dealing with original proceeding. Section 7 of the Act of 1974 contemplates revisional jurisdiction wherein after decision of the Collector, if no appeal is filed to the Maharashtra Revenue Tribunal, within a period as provided therein, the Commissioner is given power to call for 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, and as to the regularity of the proceedings of such Collector as the case may be and pass such order thereon as he thinks fit. We cannot read into the provision which is specially excluded by statue and if it is done so then that would tantamount to legislating, which is impermissible. 15. No doubt, it is stated in section 7 of the Act of 1974 that the Commissioner may suo-motu or on the directions of the State Government “at any time” call for record, however, phraseology “at any time” is circumscribed by period provided in proviso wherein it is laid down that no such record shall be called after the expiry of three years from the date of such order except in cases where directions are issued by the State Government. Phraseology “at any time” is qualified by period provided in the proviso. 16. Normally, function of proviso is to except something out of the enactment or to qualify something enacted therein, but for the proviso would be within purview of the enactment. Proper functioning of the proviso is that it qualifies generality of the main enactment by providing exception. Reading proviso as appearing in section 7 of the Act of 1974, it is clear that it is so embedded in the section that it forms an integral part of enactment and thus acquires the tenor and color of substantive provision itself. Proper functioning of the proviso is that it qualifies generality of the main enactment by providing exception. Reading proviso as appearing in section 7 of the Act of 1974, it is clear that it is so embedded in the section that it forms an integral part of enactment and thus acquires the tenor and color of substantive provision itself. Proviso abrogates the power of Commissioner to take up suo-motu proceeding after three years of the order being passed by the Collector. The proviso will have to read harmoniously with section. The provision with proviso will have to be read as a whole harmoniously in a manner that both co-exist and none of it becomes a dead letter. The term “at any time” will have to be interpreted in a way that within a period of three years the Commissioner “at any time” may take up suo-motu proceeding after order is passed by the Collector. Exception would be in a case, State Government issues directions to the Commissioner in that case limitation period of three years would not arise. 17. A reference can be usefully made to the Judgment of the Apex Court in the case of Sandu (D) by L.Rs. Vs. Gulab (D) by L.Rs. And ors. reported in (2015) 9 SCC 405 . In said case, the Apex Court has considered the scheme of the Act of 1974, more particularly, section 7 with which we are concerned. In said case, Assistant Collector, Jalgaon initiated proceedings under section 4 of the Act of 1974 vide notice dated 03-12-1975 and on 31-12-1975 the Collector dropped the proceedings. In the year 1985, Additional Commissioner initiated suo-motu proceeding under section 7 of the Act of 1974, after Government granted sanction by letter dated 10-05-1982 and the revisional proceedings initiated in the year 1985 were held to within limitation by the Apex Court. The Apex Court has observed that, 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. When the State Government accords sanction for initiation of the revisional proceeding under section 7 of the Act, the proceedings can be initiated beyond the period of three years. When the State Government accords sanction for initiation of the revisional proceeding under section 7 of the Act, the proceedings can be initiated beyond the period of three years. It has been also observed that proceedings should be initiated within reasonable time from the date of permission granted by the Government. In that case, the State Government had given permission in the year 1982 and the Commissioner i.e. revisional authority initiated proceedings in 1985, it was held by the Apex Court that revisional authority has exercised powers within reasonable time. 18. As such, it will have to be held that under section 7 of the Act of 1974 the Commissioner cannot exercise revisional powers suo-motu beyond a period of three years of the order being passed by the Collector, while exercising powers under section 3 of the Act of 1974 unless direction is issued by the State Government or permission is granted by the State Government. In that case only, proceedings can be initiated beyond period of three years. After permission is granted by the State Government, Commissioner should initiate proceeding within a reasonable time and as far as possible three years in such a case would be a reasonable time. 19. In light of the above observations, judgment of the learned Single Judge of this Court in the case of Udhav referred to supra stating that within a period of 30 years from the date of commencement of the Act, revisional jurisdiction can be exercised by the Commissioner does not appear to be correct view. 20. Reference, as such, is answered accordingly. 21. Place the matter before learned Single Judge for deciding the writ petition on merits.