Judgment:
A.M. Khanwilkar, J.
1. This petition takes exception to the order passed by the Maharashtra Revenue Tribunal, Nagpur dated 27-10-1998 in Tribunal Appeal No. B-109/5/98 decided.
2. This writ petition was heard on 17-8-2000 and the judgment was also pronounced in open Court. However, immediately before rising of the Court, the learned Counsel for the petitioner mentioned the matter and urged that the judgment may not be signed since vital matters have not been brought to the notice of the Court including the decision of this Court reported in : (1985)87BOMLR342 Barikrao Nayansing Rajput v. Bandu Ana Bhil and others. At that time the Counsel for the respondent had already left the Court and therefore, the petitioners' Counsel was asked to inform the other side and mention the matter by giving notice to the other side. The matter was once again mentioned before me on 22-8-2000 and a request for rehearing the matter was made, when the Counsel for the contesting respondent i.e. respondent No. 3 was present alongwith the Counsel for the petitioners. By consent the matter was placed for hearing on 8-9-2000. However, it appears that the proceedings for mentioning which took place in chamber at 4.15 p.m. on 22-8-2000 have not been recorded. Nevertheless the matter was fixed for hearing on 8-9-2000, however, the matter could not be taken up for hearing due to paucity of time. The matter reached for hearing on 14-9-2000 but was adjourned for today. The matter has reached today for hearing.
3. Today the learned Counsel for respondent No. 4 has taken objection for rehearing of the matter by relying upon the decision of the Apex Court reported in : [1988]1SCR941 Vinod Kumar v. Banaras Hindu University and others, to contend that since the judgment was pronounced in the open Court, though not signed, the Court has become functus officio for which it would be impermissible for this Court to rehear the matter. This objection has been countered by the Counsel appearing for the petitioner by relying on the same judgment in para 8 of the said decision which is reproduced thus :
'There may be exceptions to the rule, for instance, soon after the judgment is dictated in open Court, a feature which had not been placed for consideration of the Court is brought to its notice by Counsel of any of the parties or the Court discovers some new facts from the record. In such a case the Court may give direction that the judgment which has been delivered would not be effective and the case shall be further heard. There may also be cases though their number would be few and fair between where when the judgment is placed for signature the Court notices a feature which should have been taken into account. In such a situation the matter may be placed for further consideration upon notice to the parties. If the judgment delivered is intended not to be operative, good reasons should be given'.
4. In my view since the Counsel for the petitioner submits that certain vital aspects of the case have not been looked into, including the decision of the Division Bench of this Court, it would be expedient that the matter is reheard and decide in accordance with law. The learned Counsel pointed out that the petitioner No. 1 is already 71 years of age and pendency of the matter requiring the petitioner to take recourse to other proceedings would unnecessarily delay the matter. It appears from the proceedings that this Court expressed concerned for the pendency of the matter particularly because the petitioner No. 1 was already 70 years old widow and fighting the litigation for number of orders. In the circumstances, I am of the view that to do substantial justice in the matter, and also because no prejudice would be caused to the respondents if the matter is reheard with the able assistance of the Counsel for both the sides, and for arriving at a correct decision, it would be expedient to rehear the case. In the circumstances, I proceed to overrule the objection raised by the Counsel for respondent No. 4 and rehear the matter on merits.
5. Briefly stated, the facts are:---The petitioners' predecessor in title was the original owner in respect of the suit property. Since the petitioners' predecessor was in arrears of land revenue the property was put to auction by the Tahsildar to recover the arrears of land revenue and the same came to be purchased by respondent No. 1 Miraji on 11-3-1968. It is also not in dispute that respondent No. 1 Miraji thereafter sold the suit lands to respondent No. 2 Nagorao on 1-7-1974, who in turn sold the same in favour of respondent No. 3 M/s. Taluka Sangrampur Buddhavihar Samiti, on 7-10-86. It is relevant to point out that, in the meantime, the petitioners had approached the competent authority by way of application praying for restoration of the suit lands by virtue of the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 on the ground that they were tribals belonging to Takankar Community which is notified as Scheduled Tribe. The said application came to be allowed by the authority on 20-3-1989. This decision was taken up in appeal before the Maharashtra Revenue Tribunal at the instance of respondent No. 3 which was allowed on 18-9-93 and the application filed by the petitioners came to be dismissed. The petitioners thereafter preferred a writ petition before this Court, bearing No. W.P. 296/1994. The said writ petition was allowed by this Court. However, this Court remanded the matter to the Maharashtra Revenue Tribunal to reconsider the same on a limited issue referred to in the said order. It would be therefore proper to reproduce the paragraph 4 of the decision of this Court which reads thus :---
'Para 4, I therefore, propose to allow this petition by remanding it to the Maharashtra Revenue Tribunal to decide the controversy. The Maharashtra Revenue Tribunal would examine as to whether there was a subsequent transfer from Miraji in favour of another non-tribal and if there was transfer, as to when that transfer took place. If that transfer is prior to 15-4-1971, then the question of restoration would not arise at all. However, the M.R.T. would go into the exact date of transfer. It is only for this limited purpose that the remand is being directed. In the result the petition partly succeeds. The matter is remanded to Maharashtra Revenue Tribunal to decide the matter in the light of the observations made by this Court. In the circumstances, there shall be no order as to cost'.
On plane reading of the said order it would appear that the remand order of this Court was for limited purposes, namely as to whether the subsequent transfer from respondent No. 1 in favour of respondent No. 2 (non tribal) was prior to 15-4-1971. This Court conclusively held that if that transfer was prior to 15-4-1971 then the question of restoration of the said land would not arise at all. The Court thus recorded a clear finding that if the transfer between respondent No. 1 and 2 both of whom are non tribal, was prior to 15-4-1971 only then the said transaction can be saved from the clutches of the provisions of this Act. In other words, if the transfer between respondent No. 1 and 2 was effected after 15-4-71 then the provisions of the Act would squarely apply and proper relief was to be granted in favour of the petitioners.
6. Although the remand was for the aforesaid limited purpose and the same was made to M.R.T., however, for reasons best known to the authorities, Tahsildar proceeded with the inquiry and passed order on 22-5-1998. There was no occasion for the Tahsildar to make the said inquiry as the remand directed by this Court was to the M.R.T. and not to the Tahsildar and that too it was for a limited purpose. After the order was passed by the Tahsildar, the matter went before the M.R.T., which in turn by its impugned decision dated 27-10-1998 allowed the revision, but remanded the matter back to the Tahsildar for fresh inquiry and disposal in accordance with law in the light of the observations in the impugned judgment. As mentioned above, the tribunal ought to have confined the scope of hearing to the extent of the remand order passed by this Court, but for the reasons best known to the tribunal it travelled much beyond that and made observation on issues which were wholly irrelevant. To that extent the Tribunal has exceeded jurisdiction. In so far as the issue with regard to the transaction between the respondent No. 1 Miraji and another non tribal was concerned, the Tribunal accepted the fact that the same was after 15-4-1971. Having recorded that finding the issue which was to be answered on remand stood concluded and it was not open to the Tribunal to dwell upon any other matter, but to pass consequential order on the basis of the said finding. The Tribunal having held that the transaction between respondent No. 1 Miraji and respondent No. 2 another non-tribal, was after 15-4-1971 in view of the conclusive decision of this Court that if the transfer was after 15-4-1971 between the said persons, in that situation the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes 1974 would be squarely attracted. In other words the Tribunal had no other option but to pass consequential order allowing the application preferred by the petitioner.
7. The learned Counsel for the respondent No. 4 however, while supporting the decision of the Tribunal in toto contends that the question whether the petitioners were belonging to Takankar Community which is notified as scheduled tribe or not was the main question which would go to the root of the matter in deciding the entitlement of the petitioners for getting the benefits of the provisions of the Act of 1974. He further contends that in any case, even assuming without admitting that the petitioners belong to Takankar community, however the said community came to be notified as Scheduled Tribe community only w.e.f. 1-5-1976 and therefore, it is not open to the petitioners to stake claim in respect of the suit property by taking recourse to the provisions of the Act of 1974 in as much as the said lands were sold by respondent No. 1 much before that date on 1-7-1974 in favour of respondent No. 2 and both of them belong to non tribal community. In support of this submission, reliance has been placed on three decisions including one decision of the Apex Court reported in 1989 Mh.L. J. 815, and two other cases reported in Sheikh Mohammed Sheikh Gulab v. Additional Registrar, Aurangabad 1997(2) Mh.L.J. 450, and Lachmanna Malanna Alurwar v. Maharashtra Revenue Tribunal 1992 (2) Mh.L.J.1139. In my view although the respondents are right in contending that the observations made by this Court that if the transfer between the two non tribal is after 15-4-1971, the provisions of the Act would be attracted is incorrect position and contrary to the settled position enunciated in the aforesaid decisions, however, in the present case, since this Court has already recorded a clear finding in the previous round to that effect, it is not open for the respondents to challenge the said finding which has become final and therefore binding upon them. It is not in dispute that the remand order made by this Court in Writ Petition No. 296/1994 was for the limited purpose, with a clear finding recorded, which remained unchallenged: and instead all the respondents participated before the authorities below in remand proceedings, therefore, it is impermissible for them to challenge the correctness of this finding in this writ petition. It is well settled that even if the order is nullity and passed without jurisdiction, so long as the same is not set aside by the Court of competent jurisdiction, it remains binding between the parties. Reference can be made to the decision reported in : [1997]2SCR152 which has taken this view. In the circumstances, it is not possible for this Court to reopen the said issue or to sit over the decision already arrived at by this Court in the previous proceedings. Proper course open for the respondents would be to make grievance about the correctness of the said finding, being contrary to law, before some other forum which would be available to them in accordance with law.
8. The grievance of the respondents No. 1 to 3 is that they were not noticed when the order was passed by this Court directing the remand, however, in my view, this plea would be of no avail, since the respondents participated before the authority below, after remand.
9. In so far as the present petition is concerned, for the reasons stated hereinbefore. I am inclined to take the view that the Tribunal having recorded the finding on the issue, which was subject matter of remand pursuant to the order passed by this Court, in Para 6 of its decision: no further investigation in the matter was permissible. In the circumstances, the order passed by the Tribunal while allowing the revision application of the petitioner, but remanding the matter to the Tahsildar for further inquiry, is in excess of jurisdiction and the same deserves to be set aside. On the other hand, in view of the finding recorded by the Tribunal in paragraph 6 of the impugned decision, the only course open is to allow the application preferred by the petitioners for restoration of the suit land.
10. In the circumstances this writ petition succeeds, the order passed by the Tribunal is set aside to the extent it directs remand of the matter to the Tahsildar for fresh inquiry, instead the application preferred by the petitioner for restoration is allowed. No orders as to costs.
11. At this stage the learned Counsel for respondents No. 1 to 3 prays that operation of this judgment be stayed. Since the respondents are presently in possession of the suit land and they would be threatened with immediate dispossession, request for stay operation of this judgment to enable the said respondent to take recourse to appropriate remedy is thus proper. In the circumstances, the effect and operation of this judgment is stayed for a period of four weeks from today.
12. Parties to act on the steno copy.