Bombay High Court
Suresh Ganpatrao Borkar And 3 ... vs Hirkanabai W/O Shankar Sayam And ... on 29 November, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1057 OF 2015
Dayaram s/o Chirkut Borkar,
aged about 66 years, Occupation
Agriculturist, r/o Kanhalgaon, Post
Kanhalgaon (Sonurli) Tahsil Nagbhid,
District Chandrapur. ... PETITIONER
VERSUS
Shri Raghu Mona Kulmethe (deceased-
through LRs. daughter -
1. Hirkanabai Shankar Sayam,
aged adult, r/o Kojbichak, Post
Sonurli, Taluka Nagbhid,
District Chandrapur.
2. The State of Maharashtra,
through its Secretary, Revenue
and Forest Department,
Mantralaya, Mumbai - 32. ... RESPONDENTS
....
Shri M.D. Zoting, Advocate for the petitioner.
Shri L.H. Kothari, Advocate for respondent No.1.
Shri K.L. Dharmadhikari, Assistant Government Pleader for respondent
No.2.
....
WITH
WRIT PETITION NO. 1095 OF 2015
1. Suresh Ganpatrao Borkar,
2. Ashok Ganpatrao Borkar,
3. Ramesh Ganpatrao Borkar,
4. Jijabai Ramkrushna Borkar,
All residents of Kanhalgaon,
Post Kanhalgaon (Sonurli),
Tah. Nagbhid, Distt. Chandrapur. ... PETITIONERS
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VERSUS
1. Hirkanabai Shankar Sayam,
aged adult, r/o Kojbichak, Post
Sonurli, Taluka Nagbhid,
District Chandrapur.
2. The State of Maharashtra,
through its Secretary, Revenue
and Forest Department,
Mantralaya, Mumbai - 32. ... RESPONDENTS
....
Shri M.D. Zoting, Advocate for the petitioner.
Shri L.H. Kothari, Advocate for respondent No.1.
Shri K.L. Dharmadhikari, Assistant Government Pleader for respondent
No.2.
....
CORAM : PRASANNA.B.VARALE, J.
DATED : 29TH NOVEMBER, 2016.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel appearing on behalf of the respective
parties. Shri L.H. Kothari, the learned Counsel waives notice on behalf of
respondent No.1 and Shri K.L. Dharmadhikari, learned Assistant
Government Pleader waives notice on behalf of respondent No.2.
2. It is the case of the petitioners that the petitioners purchased
the land of a tribal. The Sub Divisional Officer, Brahmapuri initiated
proceedings suo motu for restoration of land. A report was sought for from
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the Additional Tahsildar, Brahmapuri. The copy of the said report and the
order passed by the SDO is placed on record at "Annexure-A". Perusal of
the report shows that on initiation of the proceedings for restoration of the
land to tribal transferer Tulsabai Raghu Kulmethe from non-tribal
transferee Ganpat Ramkrishna. Notices were issued to the parties.
Statements were recorded. It was stated in the statement of tribal
transferer Tulsabai that she has transferred the said land i.e. land out of
Khasra No.10 to the extent of 11.50 HR of village Sunuli Chak to the non-
tribal transferee Ganpat Ramkrishna for a consideration of Rs.20,000/-.
The petitioner Nos.1 to 3 (in Writ Petition No. 1095 of 2015) are the sons of
transferee Ganpat Ramkrishna. In view of the statement and in view of the
facts recorded that the tribal-transferer does not undertake to cultivate the
suit field personally as provided under Section 3(3) of the Act, the
Additional Tahsildar, Brahmapuri proposed for dropping the proceedings.
In the order passed by the SDO dated 05.07.1976, in view of the report of
the Additional Tahsildar, passed the order thereby dropping the
proceedings. Though the order dated 11.10.2002 passed by the SDO,
Brahmapuri is not placed on record, it is submitted by the learned Counsel
for the petitioners that the SDO in the second suo motu proceeding,
passed the said order and the said order was challenged by the petitioners
in an appeal before the learned Member, Maharashtra Revenue Tribunal.
3. The learned Member of the Tribunal, on hearing the parties
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and on perusal of the record and material, arrived at a conclusion that the
SDO could not have exercised the powers of revision under Section 7 of the
Act. As such powers vest with the Divisional Commissioner. The learned
Member then arrived at a conclusion that the order passed by the SDO
dated 11.10.2002 is unsustainable as the order is passed by the SDO
exceeding his jurisdiction. Resultantly, the appeal was allowed. The order
dated 11.10.2002 was quashed and set aside. The learned Member of the
Tribunal made it clear in the order dated 14.08.2013 while allowing the
appeal that the Divisional Commissioner, Nagpur at his level can conduct
a fresh enquiry by exercising the powers under Section 7 of the Act and
may pass order by exercising those powers. The Additional Commissioner,
Nagpur Division, Nagpur by exercising the powers and by giving an
opportunity to the petitioners and respondent No.1, passed the order
thereby ordering that the possession of the land be immediately given to
the tribal legal heir Smt. Hirkanabai Shankar Sayam of Smt. Tulsabai
Raghu Kulmethe.
4. Shri Zoting, the learned Counsel for the petitioners vehemently
submits that the Commissioner was exercising those powers on receiving
an application filed by the respondent No.1. It is further the submission of
the learned Counsel for the petitioners that as the SDO had passed the
order dated 11.10.2002 by exercising the powers and the learned Member
of the Tribunal allowed the appeal of the petitioner thereby setting aside
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the order dated 11.10.2002, the Commissioner could not have exercised
the powers of revision under Section 7. Shri Zoting, the learned Counsel
for the petitioners places reliance on the judgment of this Court in the case
of Bovabhai Budha Girase .v. Jirya Dajya Bhil (deceased) by legal heir
Smt. Kausabai and others (reported in 1987 Mh.L.J., 892). He also makes
a submission to the effect that the Commissioner while passing the order
dated 31.12.2014 exercised the powers at a very belated stage i.e. beyond
thirty years.
5. Shri Kothari, the learned Counsel for respondent No.1 and Shri
Dharmadhikari, the learned AGP for respondent No.2 support the orders
passed by the Additional Commissioner impugned in the present petition.
The learned AGP invites my attention to the documents placed on record
along with the reply namely decision of this Court in Writ Petition No. 3916
of 2010 dated 27.01.2011, the circular issued by the State of Maharashtra
dated 28th October, 1994 and the Circular issued by the State Government
dated 31st May, 2012.
6. On the backdrop of the rival contentions of the respective
parties, I have gone through the material placed on record. Though the
learned Counsel for the petitioners placed heavy reliance on the order
passed by the learned Member of the Tribunal to submit that the
Divisional Commissioner could not have exercised the powers of revision,
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perusal of the order by the learned Tribunal itself shows that the learned
Member of the Tribunal in clear and unambiguous words observed that
the SDO erred in an enquiry by exercising the powers under Section 7. The
learned Member further observed that the powers of revision under
Section 7 of the Act vest with the Divisional Commissioner. The learned
Member further observed that as the circular dated 29th January, 1994 was
not placed on record, he was unable to express any opinion on that aspect
but the learned Member further observed that the Divisional
Commissioner by exercising the powers under Section 7 may suo motu
take up the proceedings for an enquiry and by giving an opportunity of
hearing to the parties, may pass such orders. Not only this, in the order
dated 14th August, 2013, while allowing the appeal of the petitioners, by
clause (3) of the order, the Tribunal reiterated that the Divisional
Commissioner, Nagpur, by exercising the powers under Section 7, may
take a decision afresh. Thus, I am unable to accept the submission of Shri
Zoting, the learned Counsel for the petitioners that the Divisional
Commissioner erred in exercising the powers under Section 7.
7. The other submission of Shri Zoting, the learned Counsel for
the petitioners that the Commissioner exercised the powers on the
application of the respondent dated 31.12.2014 and it was not the powers
exercised suo motu by the Commissioner is also unacceptable. Perusal of
the order passed by the Commissioner clearly shows that by circular dated
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28th October, 1994, the State Government directed the Divisional
Commissioner, Nagpur Division to scrutinize 105 matters of the
Brahmapuri Sub Division in Chandrapur district by exercising the powers
under Section 7 of the Act. The copy of the circular dated 28th October,
1994 is placed on record along with the reply filed by the State
Government. The order of the Commissioner then refers to a
communication dated 07.08.2014 i.e. letter No. KV/SDO/Shiraste/2014/
1315. By this communication, the Commissioner received certain cases for
revision. Perusal of the order passed by the Additional Commissioner,
Nagpur Division clearly shows that the Commissioner was exercising the
powers suo motu as well on the backdrop of the circular issued by the
government dated 28th October, 1994 and communication dated
07.08.2014. It seems that while the Commissioner was exercising the
powers and scrutinizing these cases, simultaneously an application was
also filed by the respondent. It was submitted in the application, the
respondent prayed for restoration of the land along with the caste validity
certificate issued in favour of respondent Smt. Hirkanabai who is the legal
heir of tribal Smt. Tulsabai Kulmethe. The judgment and order passed by
the learned Single Judge of this Court in Writ Petition No. 3916 of 2010 also
makes it clear that under the provisions of Section 7 of the Act of 1974, the
Commissioner can exercise his suo motu powers to revise the order passed
by the SDO by giving an opportunity of hearing to the parties. Insofar as
the ground raised by the learned Counsel for the petitioners that the
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Commissioner exercised the powers at a belated stage is concerned,
perusal of the circular dated 31st May, 2012 placed on record along with the
affidavit filed by the State shows that the period of 30 years is extended and
it has made clear in the said circular that the extension of the period would
operate retrospectively. As there is no challenge to this circular, I am
unable to accept the submission of Shri Zoting, the learned Counsel for the
petitioners that the Commissioner erred in passing the order by exercising
the powers belatedly.
8. Thus, considering all these aspects, I find no error committed
by the Additional Commissioner in order dated 31.12.2014. Though Shri
Zoting, the learned Counsel for the petitioners placed reliance on the
judgment of this Court in the matter of Bovabhai Budha Girase .v. Jirya
Dajya Bhil (deceased) by legal heir Smt. Kausabai and others (cited supra),
in my opinion, the said judgment is not of any help to the learned Counsel
for the petitioners in view of the facts referred to above.
9. The petition thus being devoid of merits deserves to be
dismissed and the same is accordingly dismissed. Rule is discharged.
Needless to state that interim orders passed by this Court dated 02 nd
March, 2015 and 03rd March, 2015 respectively stand vacated.
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10. Though the learned Counsel for the petitioners prays for stay to
the order of this Court for a period of four weeks, I see no reason to grant
the prayer. Prayer for stay is rejected.
JUDGE
*rrg.
