UDHAV UTTAM PATIL Vs. DAGA HOLKYA BHIL

JUDGEMENT

(1.) RULE. Respondents waive service. By consent of the parties, rule made returnable forthwith.

(2.) THIS group of petitions raises a common challenge regarding the right of the Divisional Commissioner to reopen the inquiry already concluded by the Collector under the provisions of section 3 of the Maharashtra Restoration of Lands to the Scheduled Tribes Act, 1974 (the Act for, short), by invoking the powers under section 7 of the said Act. By the said impugned notices dated 13th August, 1996 the Additional Divisional Commissioner, Nasik Division at Nasik has proposed a suo motu revision of the judgment and order passed by the Deputy Collector after about twenty years. It is contended that the judgment and order passed by the Deputy Collector had become final and the impugned show cause notices proposing to reopen the settled position are illegal and such powers cannot be allowed to be invoked after a gap of about twenty years or after a reasonably long period. The relevant provisions of sections 3, 4 and 7 of the said Act read, as under :---"3 (1) Where due to transfer - (a) the land of a Tribal-transferor is held by a non-Tribal-transferee, or (b) the land acquired in exchange by a Tribal-transferor is less in value than the value of the land given in exchange, and the land so transferred is in possession of the non-Tribal-transferee, and has not been put to any non-agricultural use on or before the 6th day of July 1974, then, notwithstanding anything contained in any other law for the time being in force, or any judgment, decree or order of any Court, Tribunal or authority, the Collector either suo motu at any time, or on the application of a Tribal transferor made within thirty years from the commencement of this Act shall, after making such inquiry as he thinks fit, direct that - (i) the lands of the Tribal tranferor and non-Tribal transferee so exchanged shall be restored to each other; and the Tribal-transferor, or as the case may be, the non-Tribal transferee shall pay the difference in value of improvements as determined under Clause (a) of sub-section (4), or (ii) the land transferred otherwise than by exchange be taken from the possession of the non-Tribal transferee, and restored to the Tribal transferor, free from all encumbrances, and the Tribal transferor shall pay such transferee and other persons claiming encumbrances the amount determined under Clause (b) of sub-section (4) : provided that, where land is transferred by a Tribal transferor in favour of 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 transferred shall be restored to the Tribal transferor. Explanation.-Where the lands of a Tribal and non-Tribal are purported to have been transferred to each other, otherwise than by exchange, but the date on which the instructions for such transfers are registered is the same or, where such instruments are registered on different dates, but the interval between the dates of registration is thirty days or less, then, notwithstanding anything contained in such instruments, for the purposes of this section, such transfers shall be deemed to be by way of exchange. Where any land of a Tribal is, at any time on or after the 1st day of April 1957 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 made within thirty years from the commencement of this Act 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, 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 land in accordance with the relevant tenancy law shall be refunded to such non-Tribal transferee either in lump sum or in such annual instalments not exceeding twelve (with simple interest at 4-1/2 per cent, per annum) as the Collector may direct. The provisions of Clauses (d), (e), (f) and (g) of sub-section (4) of section 3 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 person 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. 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.

(3.) BEFORE dealing with the merits of the challenge to the impugned notices, as raised by the petitioners, it would be desirable to trace the legislative history of the Act. By a Government Resolution the State Government appointed a committee to inquire into and report to the State Government inter alia on how far the provisions of the Maharashtra Land Revenue Code, 1996 and the relevant tenancy law i. e. the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, the Hyderabad Tenancy and Agricultural Lands Act, 1950 and the Bombay Tenancy and Agricultural Lands Act, 1948 had been effective in giving protection to the persons belonging to the Scheduled Tribes as well as to suggest among other things suitable amendments therein, if any of the existing provisions were found to be inadequate. The said committee submitted its report on 7th April, 1972 and drew the attention of the Government to the difficulties experienced by the administration in view of the scheme of section 36 of the Maharashtra Land Revenue Code, 1966 (for short, L. R. Code ). According to section 36 (2), occupancy of persons belonging to such Scheduled Tribes could not be transferred except with the previous sanction of the Collector. However, these provisions were not found sufficient and persons belonging to the Scheduled Tribes, because of their poverty, lack of education and general backwardness, had been exploited by various persons who could take advantage of the sad plight of these Tribals. The committee, therefore, recommended that provisions should be made for restoring to the persons belonging to Scheduled Tribes the land which had been duly transferred to non-Tribals. The Government accepted these recommendations and considered it necessary to provide for restoration of the lands which have gone into the hands of the non-tribals to their original tribal owners.