Ramsing Sakharam Girase and ors. Vs. Kalusing @ Kaysing Jairam Bhil Naik and ors. - Court Judgment

Excerpt:
property - auction of sale deed - section 36 (3) of maharashtra restoration of lands to sheduled tribes act, 1974 (act) - respondents belonged to tribal community - respondent's land sold in public auction for recovery of dues - petitioner purchased said land and auction sale confirmed by government - petitioner was in possession - in suo moto action enquiry tahaseeldar restored possession to respondent on ground of non-tribal transfer - petitioner filed appeal - high court in other special civil application concluded that transfer of land valid and in accordance with section 36 (3) of act - appeal allowed - in an other enquiry tahaseeldar restored possession on ground of section 36 (3) of act - petitioner filed appeal before maharashtra revenue tribunal - appeal dismissed - hence, present petition - held, that once this court has determined the issue involved herein revenue tribunal has no powers to exercise his jurisdiction - hence, petition allowed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 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.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.