Judgment:
P.R. Borkar, J.
1. This writ petition challenges issuance of notice dated 13.08.1996, issued by the Additional Commissioner, Nashik Division, Nashik, for revision of the order passed by the Dy. Collector, Dhule, in Case No. 298 of 1973, decided on 17.01.1977, which was a case under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short 'the Act of 1974').
2. Brief facts giving rise to this petition may be stated as below :.
By way of exchange of lands non tribal transferee Giridhar exchanged his land with tribal transferor Dullabha Gangaram Bhil. The lands were situated at village Gunjali, Tal. Taloda, Dist. Nandurbar (earlier Dhule). The lands held by non tribal Giridhar were Survey No. 43/1 admeasuring 3 A. 29 G. plus 21 G. pk., assessed at Rs. 9.50 and Survey No. 43/2 admeasuring 8 Acres plus 2 A. 18 G. pk. assessed at Rs. 20.19 ps. Said lands were exchanged with a land of Dullabha, who was tribal. It is land Survey No. 11 admeasuring 13 A. 15 G. plus 1 A. pk. assessed at Rs. 34.12, situated at Gunjali. In the year 1970, the lands got by Giridhar in exchange, which was Survey No. 11, was partitioned and Giridhar's two sons Keshav and Laxman got Survey No. 11/1 and 11/2 respectively and brother of Giridhar by name Hari got Survey No. 11/3 to his share. Present petitioner No. 1 Bhagabai is predecessor of Survey No. 11/1 from Keshav Giridhar, as per mutation entry No. 44 dated 10.04.1981. Present petitioner No. 2 Latabai is predecessor of Survey No. 11/2 from Laxman Giridhar, as per Mutation Entry No. 45 dated 08.04.1981.
3. After the exchange, the Leave Reserve Dy. Collector, Dhule, suomoto started enquiry under Section 3 of the Act of 1974 bearing Adiwasi Case No. 298/76. At that time, he had issued notices to the non tribal transferee Giridhar, his two sons Keshav, Laxman and brother Hari. Dullabha was also party as transferor. The Dy. Collector recorded statement of the tribal transferor and non tribal transferee No. 1 on 30.04.1976. Non tribal transferee No. 1 Giridhar said that Survey No. 11 was in possession of his sons and brother as a result of partition. The hearing of the case did not proceed for some time as proceedings were challenged in Writ Petition No. 11645 of 1976, but ultimately after withdrawal of writ petition, the matter was taken up for further hearing on 12.10.1976. On that day statements of all parties were recorded. The tribal transferor in his statement shown his willingness to cultivate his own land personally and to pay the amount as may be determined by this Court to the non tribal. Ultimately, the Dy. Collector came to a conclusion that the proceedings deserves to be dropped.
4. In the judgment dated 17.01.1977 the Leave Reserve Dy. Collector gave certain reasons. First is that Survey No. 42/1 was cultivated by the tribal transferor and his mother; whereas Survey No. 43/2 was given in partition to his brothers Naval and Gulab. Similarly, non tribal transferee No. 1 Giridhar has also stated about partition and allotment of portions of land to his sons and brother. Thus, it is observed that the transfer of Survey No. 11 was to non tribal Nos. 2 to 4 prior to 15.03.1971 and hence they do not fall within the meaning of 'successor in interest' and 'non tribal transferee' vide Clauses (g) and (l) of Sub-section (1) of Section 2 of the Act of 1974. In the circumstances, he dropped the proceedings.
5. Thereafter, notice was issued on 13.08.1976 by the Divisional Commissioner, Nashik, for reopening case in revision. Hence, this challenge is by way of writ petition. The main challenge is on the ground of limitation. The learned A.G.P. Shri D.V. Tele submitted that as per Section 7 of the Act of 1974, there is no limitation, if revision is as per directions of the State Government. He referred to provisions of Section 7. Section 7 is as follows :
7. Where no appeal has been filed within the period provided by Sub-section (2) of Section 6, the Commissioner may suomotu or on the directions 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 to be heard.
6. This Court has occasion to interpret the provisions of Section 7 in unreported judgment in the case of Shaikh Nabu Shaikh Abu and Anr. v. Zipa Gokul Bhil and Ors. W.P. No. 1011 of 1997 decided on 02.06.2008. In the said case suomoto revision by the Commissioner was challenged. The judgment para 3 discloses that the proceedings were dropped in the year 1977 and the revisional powers were invoked in the year 1996 and it was argued relying upon case of Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy and Ors. 2003 AIR SCW 4084 and the case of Sridhar Damodar Kamalaskar (Wani) deceased heirs and Ors. v. Sonu Ganaji Dhumase and Ors. : 2003 (2) Bom.C.R.50 that even though statute does not prescribe any period of limitation, the power of suomoto revision has to be exercised within reasonable period and what is reasonable time has to be determined on the facts of each case. In the case of Ibrahimpatnam (Supra), the Court was dealing with the provisions of Section 50B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. In the case of Sridhar (Supra) the Division Bench was considering revisional powers, the Division Bench held that the revisional powers cannot be exercised in a mechanical manner and it should be exercised after conscious application of mind to the facts and circumstances of the case. In the facts and circumstances of the case, in the case cited, suomoto revision was entertained after period of 19 years and it was held that it was not within reasonable period and moreover exercise of revisional power was in a mechanical way. In the circumstances of the case the petition was allowed.
7. The learned A.G.P. Shri D.V. Tele pointed out to me the contents of reply affidavit filed on behalf of the respondents. It is stated therein that the petition is premature. The main issue of notice is yet to be decided and it will be taken on merit after recording evidence and after giving full opportunity to the petitioners to plead their case. It is also stated that in Civil Revision Application No. 4384 of 1984, the Supreme Court has held that the lands which are transferred prior to 15.03.1971 should also be taken in the purview of the Act and accordingly the Government of Maharashtra vide circular dated 15.06.1989 directed the Commissioner to take review of the cases decided by the concerned competent authorities, which were closed or dropped and in the circumstances the Government has given direction to the Commissioner to review the cases. In this case the decision of the Leave Reserve Dy. Collector, Dhule is dated 17.01.1971. The review sought to be made by the Commissioner by way of revision is initiated in 1996. It appears that as per direction of the Supreme Court, the Government of Maharashtra had given directions to the Commissioner to review cases vide Circular, Revenue and Forest Department No. REV/1988/PK/993L9 dated 15.06.1989.
Absolutely there is no reason why though the directions were given in June, 1989, the powers of suo moto revision are being exercised in 1996 that too without giving any reason.
8. This is a case of exchange and prima facie after going through the evidence recorded by the Dy. Collector, the Commissioner ought to have recorded prima facie satisfaction in terms of Section 3 (b) i.e. the land acquired in exchange by tribal transferor is less in value than the value of land given to him in exchange. Under the circumstances unless the basic condition of satisfaction for entertaining revision for restoration is fulfilled, in my opinion, the exercise of power is mechanical and without application of mind. In this view of the matter, I am inclined to follow the ratio laid down in the case of Shaikh Nabu Shaikh Abu and Anr. v. Zipa Gokul Bhil and Ors. W.P. No. 1011 of 1997 decided on 02.06.2008.
9. In the result the Writ Petition is allowed. The notice dated 13.08.1996 initiating review/revision proceeding by the Additional Commissioner, Nashik Division, Nashik, is hereby quashed and set aside. Rule made absolute accordingly.