Judgment:
Borde R.M., J.
1. This petition is moved by non-trible transferee raising exception to the judgment and order passed by Maharashtra Revenue Tribunal at Bombay in Revision Application No. 1/92 decided on 15-6-1992 thereby confirming the order passed by Tahsildar, Nandurbar on 10-1-1992 ordering restoration of possession of lands to respondents herein/trible transferor in view of provisions of Section 3 of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the Restoration Act).
2. Some undisputed facts are thus:
Agricultural land which is subject-matter of dispute bears gat No. 71/1 admeasuring 7 H and 88 R situate at village Bhayane Tq. Nandurbar, Dist. Dhule. The land originally belongs to respondents who belong to tribal community. Said land was sold in public auction held on 30-5-1969 for recovery of loan dues. Petitioner/non-trible transferee is the person who has purchased the property in public auction held on 30-5-1969 by offering highest bid price of Rs. 9696/-. Amount receivable by the State Government was deducted from bid amount and balance amount was received by the tribal transferor from the State Government. Auction sale was confirmed by the Collector, Dhule on 1-7-1974. In pursuance to the auction sale, petitioner has been put in possession of the disputed property and is enjoying possession till this date.
3. It is stated that suo motu enquiry was initiated by Tahsildar, Nandurbar in Case No. 26/75 under the provisions of 6(3) of the Maharashtra Land Revenue Code. Tahsildar, after holding enquiry, drew conclusion that the suit land is new and impartiable tenure and transfer which has been effected is in violation of provisions of Section 36(3) of Maharashtra Land Revenue Code. Tahsildar has directed that the non-tribal transferee be evicted from the suit land and possession be restored to the respondent herein or his successors. Order was passed by Tahsildar on 28-12-1975.
4. There was another litigation in the form of Special Civil Application No. 2405/76 presented to this High Court at the instance of non-tribal transferee raising challenge to initiation of proceedings by Tahsildar by invoking provisions of Section 36(3) of Maharashtra Land Revenue Code. This High Court after giving opportunity of hearing to the respondent/tribal transferor has recorded finding that transfer within meaning of Section 36(3) of Land Revenue Code does mean a voluntary act of the owner and further does not include auction sale which has been effected for recovery of Government dues. Thus, this Court ruled that purchase of land by the petitioner under auction sale cannot amount to transfer by respondent in his favour and the question of contravention of Section 36(3) or any other law prima facie does not arise.
5. This Court therefore proceeded to allow the petition and has quashed the proceeding holding the same as beyond jurisdiction. Necessary consequence of the order passed by the High Court is that order passed by Tahsildar on 28-12-1975 stands quashed and set aside and the question of restoration of land under the order passed by Tahsildar in fact does not arise. However, it appears that suo motu enquiry was initiated in Case No. 1/91 by Tahsildar, Nandurbar by invoking provisions of Section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. Tahsildar during the course of enquiry directed issuance of notice to both the parties and after considering rival contentions, Tahsildar came to the conclusion that transfer effected for recovery of Government dues is also a transfer within meaning of Section 3 of the Act and as such tribal transferor is entitled to receive possession of the land back from the non-tribal transferee. The Tahsildar, Nandurbar therefore ordered restitution of land to respondent herein. The transferee raised challenge to the order passed by the Tahsildar by filing appeal before the Maharashtra Revenue Tribunal which was registered as Appeal No. 1/92. Appeal came to be heard and disposed of by Maharashtra Revenue Tribunal by order dt. 15-6-1992 which was dismissed and the order passed by Tahsildar has been confirmed.
6. I have heard arguments of Shri P.R. Patil, learned Counsel for the petitioners and Shri R.C. Patil, learned Counsel for respondent Nos. 1-A to 1-G. The questions which fell for consideration in the petition are whether it was open for the Tahsildar to initiate suo motu enquiry by invoking provisions of Section 3 of the Act inspite of there being an earlier enquiry by the Tahsildar under Section 36(3) of the Maharashtra Land Revenue Code which order has been quashed and set aside by this Court in Special Civil Application No. 2405/76. Thus, inspite of quashment of order passed by the Tahsildar by this Court in respect of restoration of possession to Adiwasi, whether it was open for the revenue authorities to re-open the matter once again by invoking provisions of Section 3 of the Act. Second question that falls for consideration is whether definition of transfer within meaning of Section 2(i)(c) is inclusive of transfer of land under the provisions of Section 36(3) and if such transfer is excluded whether it was open for the authorities to invoke provisions of Section 3 and issue directions in respect of restitution of land to the tribal transferor.
7. In order to understand the controversy, it would be appropriate to refer to the definition of transfer given in the Act.
2(i) 'transfer' in relation to land means the transfer (c) for recovering any amount of land revenue due from such Tribal, or for recovering any other amount due from him as an arrear of land revenue, or otherwise under the Maharashtra Co-operative Societies Act, 1960 or any other law for the time being in force but does not include a transfer of land falling under the proviso to Sub-section (3) of Section 36 of the Code; and the expressions, ''Tribal-transferor' and 'non-Tribal-transferee' shall be construed, accordingly;
On perusal of definition of transfer' it would be clear that transfers falling under the provisions of Section 36(3) of the Land Revenue Code are excluded and as such it would not be open for the authorities to invoke provisions of Section 3 of the Act for directing restoration of land which has been transferred in view of provisions of Section 36(3) of the Code. It is clear on perusal of order passed by the Tahsildar on 28-12-1975 in Case No. 26/75 that transfer of land was in view of proviso to Section 36(3) of the Code. Judgment in Special Civil Application 2405/ 76 also refers to the fact that transfer of land during auction proceedings in the year 1976 was under the provisions of Section 36(3) of the Code. In this view of the matter, it was not open for the respondent authorities to invoke provisions of Section 3 of the Act and proceed to pass orders in respect of restoration of possession of land in favour of non-tribal transferee.
8. So far as second contention relating to exercise of powers under Section 3 of the Act by the authorities in view of conclusion of the proceedings initiated earlier is concerned, it is to be taken into account that the proceedings initiated in earlier round of litigation were in respect of restoration of land in favour of respondent herein who was also party to the earlier proceeding. The proceedings were initiated by invoking provisions of Land Revenue Code. Once this Court has determined the issue involved in the matter and quashed the proceedings it was not proper on the part of the revenue authorities to again exercise powers for extending benefits to the tribal transferee which has been refused in earlier round of litigation and which has attained finality. It has been specifically observed by this Court that transfer as defined in the Code is not a voluntary transfer at the instance of owner. However, sale of land in consequent to holding of auction cannot be construed as transfer and it was not therefore permissible for the Collector to exercise powers for extending relief to the non-tribal transferee. It was therefore improper on the part of respondent authority when the seal of finality has been attached in view of determination of question in Special Civil Application No. 2405/76 decided by this Court on 25-2-1980 to again exercise suo motu powers and investigate in the same matter. On both the counts therefore, the petition succeeds. Firstly, it is not open for the parties to invoke provisions of Section 3 of the Act in view of specific exclusion of transfer under Section 36(3) of the Land Revenue Code as has been specified in Section 2(i)(3) of the Act as well as on the touch stone of propriety also the authority ought not to have exercised suo motu powers for re-opening the enquiry which had attained finality in view of the decision rendered by this Court in Special Civil Application No. 2405/76.
9. Petition therefore succeeds. Order passed by Tahsildar, Nandurbar on 10-1-1992 and confirmed in Appeal No. 1/92 by the Maharashtra Revenue Tribunal, Bombay on 15-6-1992 are quashed and set aside. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs.
Pending civil application, if any, stands disposed of.