1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No.1450 of 2008 Vasant Sundarrao Kondbattunwar, aged about 53 years, occupation – Agriculture, resident of Nawargaon, Tq. Bramhapuri, Distt. Chandrapur, presently resident of Sharda Nagar, Hudkeshwar, Nagpur. .... Petitioner. Versus 1. Shri Sakharam Kawaduji Uike, aged about 53 years, occupation – Agriculture, resident of Sayamara, Post Pendhari, Tq. Saoli, Distt. Chandrapur. 2. Tahsildar, Saoli, Tq. Saoli, Distt. Chandapur. 3. The State of Maharashtra, through Secretary, Maharashtra State, Revenue & Forest Department, Mantralaya, Mumbai. ..... Respondents. ***** Mr. P.R. Pudke, Advocate for the petitioner. Mr. S.Y. Deopujari, Asstt. Govt. Pleader for Respondent Nos. 2 and 3. ***** CORAM : A.H.JOSHI, J. Date : 10th April,2008. ORAL ORDER : 2 1. At the outset, learned Advocate Mr. Pudke for the petitioner states that the petitioner is remedyless, though the appeal is provided by law, as the Forum, namely Maharashtra Revenue Tribunal is not constituted. Hence, by dispensing with alternate remedy, petition is taken up for disposal at the stage of admission-hearing. 2. The petitioner has urged in paras 12 to 15 certain points in support of petition, which read as follows:- “12. ....Tahsildar failed to consider the order dated 30.9.1976 stated as above and therefore passed the impugned order dated 25.01.2007 which is illegal, perverse, arbitrary and beyond jurisdiction. ....” “13. That, from perusal of the statement submitted by the Appellant Shri Kawadu Sakharam Uike, it is clearly seen that he was not willing to cultivate the suit land personally nor he was willing to pay such amount as the Collector/SDO/Tahsildar will fix according to provisions under the said Act. ....” “14. That, the learned Tahsildar has not issued any notice to the petitioner and he was not given any opportunity of hearing and also he was not even made party to the said proceedings and without that, the 3 impugned order dated 25.1.2007 is passed by the Tahsildar, Saoli. ...” “15. That, the abovementioned order is passed on dated 30.09.1976. Therefore, the said order dated 30-09-1976 cannot be changed/amended/modified/reviewed/revised now by the Revenue authorities concerned after such a long time of about more than 31 years. In this regard the provisions u/s 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act 1974.....” [copied from Ground Nos. 12, 13, 14 and 15 at page nos. 5 and 6 of the paper-book of Writ Petition]. Of re-opening own order, authority, res judicata etc. 3. Very opening paragraph of impugned order reveals that Tahsildar has received directions by communication dated 14th November, 2005, of re-opening the case. Thus, on what is apparent, this is a case of re-opening on the basis of directions received from Government who is entitled to suo moto revise the proceedings and pass orders. 4. Petitioner's contention that Tahsidlar has no jurisdiction to re-consider the matter his having once decided the same in favour of the purchaser by his order dated 30th June, 2006 seems to be a ground raised without adverting to the opening paragraph of impugned 4 order. 5. Petitioner's contention that the tribal transferor has no right to make a fresh application, as fresh consideration would be barred by principles of res judicta is also misconceived in the light of the fact that proceedings are re-opened on the basis of directions. 6. It is seen from the noting, true copies whereof are placed on record, that the order of Tahsildar, and approval granted by Sub-Divisional Officer for closing the proceedings through order dated 30th June, 1976, discloses that Tahsildar has recorded a compound observation, namely “the tribal is not ready to cultivate the land, and to refund the purchase price of Rs.5,000-00.” 7. Clause [b] of Sub-section [4] of Section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 requires the Tahsidlar to order restoration on the condition that amount equal to 48 times the land revenue assessment or purchase price, 5 whichever is less, alone can be ordered as a condition. Legality of order which was revised and case was re-opened. 8. Learned Advocate for the petitioner has replied in answer to the question of the Court that the land revenue assessment of the land in question is Rs.4-00. Its 48 times would be Rs.1632/-. 9. In any case, the direction to drop the proceedings because the tribal is not willing to pay or refund Rs.5,000-00 is, on the very face of it, contrary to the scheme of law, i.e., Section 3 [4] [b] referred to above, and on this sole ground, the Revisional Authority was undoubtedly within its power and jurisdiction to direct re-opening of the issue and disposal according to law. Re-opening the case after three years from the date of decision would not be permissible. 10. The Act providing for restoration of lands to 6 tribals is a remedial legislative Act enacted by the State Legislature taking into account the poverty and plight suffered by the tribals. This Act aims at restoring the tribals' lands, they were deprived of, which law presumes, were purchased taking disadvantage of their disability. The mischief, which is, thus, sought to be remedied by the Act, would perpetuate if the barrier of three years' limitation created by Section 7 for revision is implemented by reading it to be directory. Such a policy legislation ought not be permitted to be used to defeat its own objects. The limitation of three years prescribed in Section 7, therefore, is liable to be construed as directory in any manner, and not in such a fashion that when any order refusing restoration is contrary to law, it ought never remain in force by taking shelter of the period of limitation prescribed under Section 7. Impugned order being ex parte 11. Next contention is that the order impugned is ex parte. If an order is passed ex parte, it is a question of fact. Such fact is to be proved by:- 7 [a] filing on record of the petition such documents which would show that notice of the petition is not at all issued/delivered, and/or [b] notice is issued, but on a wrong address, is not served, and is treated in law to be served by fiction, and/or [c] Notice is served on a wrong different person, and/or [d] Record reveals service which is not in accordance with law and hence no service in law. [e] There is nothing on record to show that process was at all issued etc. 12. On the basis of all these facts if any person claims that the order, against which he has approached higher forum, is ex parte, particularly by a challenge in a petition under Articles 226 and 227 of the Constitution of India, he has to substantiate his petition by placing on record certified copies etc., of each document or proceeding to show any of the circumstances narrated in foregoing para. 13. The easy course of making a prayer for calling for records, as followed in most of appeals, would not 8 be a proper procedure in Writ Petition. The petitioner will have to satisfy the Court from his efforts by producing material relied upon by him that he is not served. 14. A bald statement that principles of natural justice are not followed turns out to be an 'adjective' than 'objective presentation' of the plea supported by evidence. Present is a case where complaint or grievance of non-observance of principles of natural justice is averred adjectively and hence does not inspire confidence and, therefore, does not need cognizance. 15. Non-observance of principles of natural justice is always a question of fact and unless proved based on specific facts, it carries no weightage. 16. This Court, therefore, declines to accept that the petitioner has succeeded in demonstrating that the order impugned is ex parte. Order of re-opening not challenged. 9 17. It is seen from record that the order dated 14th November, 2005, by which, in exercise of revisional jurisdiction, the proceedings were ordered to be re- opened, is not challenged, at least it is not shown whether it was challenged and in present petition, it has not been challenged. In view of this aspect as well, the re-opening of the issue by Tahsidlar is not open for challenge. 18. In the light of discussion above, this Court is satisfied that the petitioner has failed to make out any case, whatsoever, for interference. Writ Petition is, therefore, dismissed. JUDGE -0-0-0-0- |hedau|