Advocates:
['D N PATKI', 'S K ADKINE R TO', '', 'G P']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 2859 OF 1993

Maroti S/o Punjaji Khamkar

Died through L.Rs.

1.

Shantabai W/o Maroti Khamkar

and others

.. Petitioners

Versus

Rama S/o Shekya Died through L.Rs.

1.

Deubai W/o Rama and others

.. Respondents

Shri D. N. Patki, Advocate for Petitioners.

Shri S. K. Adkine, Advocate for Respondent Nos. 1 to 3.

Smt. R. K. Ladda, A.G.P. for the Respondent No. 4.

CORAM : S. V. GANGAPURWALA, J.

DATE : 07TH MARCH, 2012.

PER COURT :

.

The present respondent Nos. 1 to 3 had filed an application

purportedly U/Sec. 36 of the Maharashtra Land Revenue Code,

1966 (hereinafter referred to as the "Code" for the sake of

brevity) for restoration of possession of the agricultural land on

the ground that the said land was owned and possessed by the

tribal and has been transferred to the non tribal without the

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permission/sanction of the competent authority. The Additional

Tahsildar Kinwat allowed the said application and directed the

present petitioners to hand over the possession of the said land to

the tribal by evicting the non tribal transferee. The present

petitioners preferred an appeal before the Maharashtra Revenue

Tribunal, Aurangabad. The M. R. T. dismissed the appeal

confirming the judgment and order of the Additional Tahsildar,

Kinwat. The said orders have been assailed in the present writ

petition.

2.

Shri Patki, the learned counsel for petitioners strenuously

contends that the Additional Tahsildar lacked the jurisdiction to

decide the application U/Sec. 36(3) of the Code. The learned

counsel relies on the provisions of Sec. 330-A of the Code and

contends that the Collector by notification may delegate the

powers to such officers not below the rank as may be specified in

the notification. According to the learned counsel by notification,

the Collector had delegated the powers U/Sec. 36(3) of the Code

to the Tahsildar and not to the Additional Tahsildar. In such

circumstances, the Additional Tahsildar could not have exercised

the powers. According to the learned counsel as per Sec. 7 of the

Code, the Tahsildar is the authority appointed and entrusted

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with a local and revenue administration. The Additional

Tahsildar or the Niab Tahsildar are appointed to assist him. The

learned counsel submits that even in the schedule the powers are

delegated to the Tahsildar and not to the Additional Tahsildar.

In absence of the same the Additional Tahsildar could not have

exercised the powers. The judgment delivered by the Additional

Tahsildar as such is without jurisdiction. The learned counsel

further contends that the Court cannot read those words in the

statute which are not incorporated in the statute. The learned

counsel relies on the judgment of the Apex Court in a case of

Ranajoy Bose Vs. A.B. Roy and another reported in (2002) 4

SCC 704 and another judgment of the Apex Court in a case of

Chairman Indore Vikas Pradhikaran Vs. Pure Industrial

Coke and Chemicals Ltd. and others reported in (2007) 8

SCC 705. The learned counsel contends that the Code is a

special statute. The special act will have to be interpreted in a

strict sense and when the special law provides for special forum,

then recourse cannot be taken to the general law. The learned

counsel relies on the judgment of the Apex Court in a case of

Board of Wakf West Bengal Vs. Anis Fatma Begum and

another reported in (2010) 14 SCC 588.

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3.

The learned counsel further contends that as per the order

dated 30

th July, 1975, the Collector has delegated the powers to

the Tahsildar U/Sec. 36(3) and not to the Additional Tahsildar.

The learned counsel contends tha