( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2697 OF 1991 Shri Nivrutti Sukhdeo Sonawane Since deceased by his L.Rs. 1. Bhikubai w/o Nivrutti Sonawane 2. Rajendra s/o Nivrutti Sonawane, Both r/o Chincholi-Gurav, Tq. Sangamner, Dist. Ahmednagar. PETITIONERS VERSUS Shri Dagdu s/o Kondaji Medhe Since deceased, by his L.Rs. 1. Smt. Vithabai d/o Dagdu Medhe R/o Chincholi-Gurav, Taluka Sangamner, Dist. Ahmednagar. 2. The State of Maharashtra 3. The Tahsildar, Sangamner, Tq. Sangamner, Dist. Ahmednagar. 4. The Additional Commissioner, Nasik Division, Nasik. 5. The Circle Inspector, Division Talegaon, Tq. Sangamner, District Ahmednagar. 6. The Director of Tribal Research and Training Institute, 28, Queens Quarter, Pune-1. RESPONDENTS ..... Mr. S.K. Shinde, advocate for the petitioners. Mr. P.B. Vikhe, advocate for the respondent No. 1. Mr. N.N. Jadhav, AGP for respondents/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 22nd January, 2010] ( 2 ) ORAL JUDGEMENT : 1. Challenge in this petition is to order rendered by learned Additional Commissioner, Nasik Division, in suo motu revision proceedings of Adivasi Case No. 16/1989. The learned Additional Commissioner invoked suo motu revisional powers under section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, set aside the order dated 13-08-1978 rendered by the Additional Tahsildar, Sangamner in Adivasi Case No. 131/1977 and directed that the land in question shall be restored to the respondent No. 1, who is legal representative of deceased respondent – Dagdu on the ground that he was a tribal and had transferred the said land to the deceased petitioner Nivrutti, who is non- tribal. 2. Indisputably, land survey No. 3/3 (Gat No. 20) was owned by deceased respondent No. 1 – Dagdu. He alienated the said land on 10-07-1962 in favour of deceased petitioner – Nivrutti. The name of deceased Nivrutti was mutated vide Mutation Entry No. 3513 dated ( 3 ) 15-08-1962 in the concerned revenue record on basis of his purchase. The Additional Tahsildar, Sangamner had commenced suo motu enquiry in the year 1977 under sections 2 and 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, “the Restoration Act”). The Additional Tahsildar issued notices to the parties. He recorded their statements. He framed issues. He came to the conclusion that none of the parties had produced necessary certificates issued by the competent authority regarding tribal status of the vendor i.e. Dagdu. In absence of any tangible material to reach conclusion that said Dagdu was a member of tribal community, known as “Mahadeo Koli”, the learned Additional Tahsildar was pleased to drop the proceedings by order dated 13-08-1978. The order remained unchallenged till suo motu revision was entertained by learned Additional Commissioner vide Adivasi Case No. 16/1989. The learned Additional Commissioner entertained suo motu revision proceedings. In the meanwhile, the respondent No. 1 – Dagdu died and was represented by present respondent No. 1 Smt. Vithabai who claims to be his daughter. She gave oral ( 4 ) and documentary evidence in the proceedings before the Additional Divisional Commissioner. The Additional Commissioner noticed that Smt. Vithabai had filed certificate showing that she belongs to “Mahadeo Koli” community. On the basis of such certificate, the Additional Divisional Commissioner held that Dagdu was also “Mahadeo Koli”. Since it was found that he was a tribal, being member of “Mahadeo Koli” community, the transaction of sale was invalidated and restoration of the land in favour of his daughter i.e. Smt. Vithabai was ordered. 3. Heard learned counsel. 4. The first objection raised by Mr. Shinde S.K. is that after eleven (11) years, suo motu revisional jurisdiction could not have been invoked by the Additional Divisional Commissioner. He argued that the revision itself was barred by limitation. He invited my attention to proviso appended to section 7 of the Restoration Act. He contended that the learned Additional Divisional Commissioner failed to appreciate ( 5 ) the fact that nobody had challenged the order of the Tahsildar in respect of dropping of the proceedings. Mr. Shinde would submit that from the school record of deceased Dagdu, it can be gathered that he was member of Maratha caste and, therefore, could not be regarded as “Mahadeo Koli” (Scheduled Tribe). He urged to allow the petition and quash the impugned judgement rendered by the Additional Divisional Commissioner. Per contra, Mr. Vikhe for the respondent No. 1 supports the impugned judgement. 5. The question of delay is raised by the learned counsel for the petitioners and was also agitated before the learned Additional Divisional Commissioner. The learned Additional Divisional Commissioner referred to a memorandum No. Rev. 1389/6R/234-L-9 dated 06-09-1989 which authorized the action under section 7 of the Restoration Act. Mr. Shinde invited my attention to certain observations in “Santoshkumar Shivgonda Patil and others v. Balasaheb Tukaram Shevale and others” (2009 AIR SCW 6305). The Apex Court held that ( 6 ) where no time limit is prescribed, the invocation of revisional power after lapse of 17 years is an abuse of process. It is observed that ordinarily, reasonable period within which power of revision may be exercised would be three years. Similarly, Mr. Shinde seeks to rely on certain observations in “Mansaram v. S.P. Pathak and others” (AIR 1983 S.C. 1239). The Apex Court considered import of clause 23 (2) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, and held that though no limitation was prescribed, yet, action taken after 22 years was not in keeping with the said provision. There cannot be any quarrel with the proposition that when no limitation is prescribed, then ordinarily, the revisional jurisdiction can be invoked within period of three years. Still, however, this is not a strait-jacket formula as such, in the context of social legislation, of which weaker sections of the society are beneficiaries. The technical bar of limitation need not be strictly interpreted. The very preamble to the Restoration Act will make it manifest that the intention of the Legislature was to give ( 7 ) protection to persons belonging to Scheduled Tribes and to ensure that their lands were restored to them notwithstanding the earlier transfers. It is in this context that section 7 of the Restoration Act may be considered. It reads as follows. “7. Where no appeal has been filed within the period provided by sub-section (2) of section 6, the Commissioner may suo motu or on the direction 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 be heard.” ( 8 ) 6. The language of Proviso would make it explicit that exception is provided for in respect of exercise of revisional jurisdiction within period of three years. It is categorically stated that the record shall not be called after expiry of three years from the date of the order except in cases where directions are issued by the State Government. The impugned order itself shows that directions were issued by the Government to entertain suo motu revision and examine the record so as to set right the irregularities or illegalities committed while denying benefit of the Restoration Act to the tribals. The Government Notification dated 06-09-1989 was, therefore, followed in letter and spirit by the Additional Divisional Commissioner, Nasik. This is not a case where no limitation is provided for to entertain the revision proceedings. In fact, Proviso itself makes it clear that ordinarily, the revisional jurisdiction cannot be invoked beyond period of three years. However, there is exception carved out in the Proviso itself and, therefore, it cannot be said that the learned Additional Divisional Commissioner committed error while invoking the revisional jurisdiction when ( 9 ) the case came out of the zone of such legal exception due to the directions issued by the Government. The contention raised by Mr. Shinde about bar of limitation is, therefore, rejected. 7. Coming to the merits of the matter, it is further contention of Mr. Shinde that deceased Dagdu was not a tribal. The record shows that the caste certificate of deceased Dagdu was not produced. The petitioner No. 1 i.e. Bhikubai w/o deceased Nivrutti gave her statement before the learned Additional Divisional Commissioner, Nasik to the effect that she could not get caste certificate of Dagdu because the Tahsil office informed her that he was not member of tribal community and as such, such certificate could not be issued. The daughter of deceased Dagdu, namely, Vithabai gave her statement before the learned Additional Divisional Commissioner to the effect that said Dagdu died on 01-04-1982 at Chincholi-Gurav and had alienated the land in question to Nivrutti on 10-07-1962. She stated that she was “Mahadeo Koli” and had produced her own caste certificate. Needless to say, ( 10 ) the caste certificate of deceased Dagdu was never produced by anyone. The learned Additional Divisional Commissioner relied upon caste certificate produced by the daughter i.e. Vithabai and held that Dagdu also was member of Scheduled Tribe being “Mahadeo Koli” by caste. The learned Additional Divisional Commissioner ought to have referred the issue of his tribal status to the Caste Scrutiny Committee. That was not done. The petitioners have placed on record copy of the School Leaving Certificate of deceased Dagdu (Exh-R/2 P-46). It is worthwhile to note that caste of deceased Dagdu was not shown as “Mahadeo Koli” in the School Leaving Certificate. In the column No. 2 of the School Leaving Certificate, his religion was shown as “Marathe”. In the absence of reliable material to infer that deceased Dagdu was member of Scheduled Tribe, the learned Additional Divisional Commissioner should not have interfered with the order rendered by the Tahsildar and that too after lapse of more than eleven (11) years, in the exercise of suo motu revisional jurisdiction. Considering these aspects, the impugned order is quite unsustainable and needs to be interfered with. ( 11 ) 8. In the result, the petition is allowed. The impugned order is set aside. The Rule is made absolute accordingly. It is, however, made clear that if the respondents would successfully obtain caste validity certificate of deceased Dagdu, then they will be entitled to apply under section 4 of the Restoration Act and their claim may be considered by the competent authority without being influenced by the observations in this judgement. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp2697-91