Bombay High Court
Lachhobai Wd/O Gopal Yadao And Ors. vs State Of Maharashtra And Anr. on 12 February, 2004
Equivalent citations: 2004(4)MHLJ142
Author: S.T. Kharche
Bench: S.T. Kharche
JUDGMENT S.T. Kharche, J.
1. By invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, this writ petition challenges the order dated 29-12-1990 passed by the Maharashtra Revenue Tribunal (MRT) in Revenue Appeal No. 162/B-109/88 whereby the learned Tribunal confirmed the order dated 17-12-1983 passed by the Tahsildar in revenue case No. 6/LND-31/82-83 holding that the respondent No. 2 tribal-transferor is entitled for restoration of the land which is in possession of the non tribals i.e. Kashiram Laxman and Tukaram Daji and also directing them to deliver possession to the tribal, by exercising powers under Section 3(4) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short the restoration Act).
The relevant facts are as under :
2. Respondent No. 2 Chindhu Halbi belongs to tribal caste and he owned agricultural land gat No. 31/1 area 3.00 acres (i.e. survey Nos. 94 and 95 of mouza Salaitola, Tahsil Salekasa, District Bhandara). He transferred the said land to Kashiram Laxman and Tukaram Daji by virtue of sale deed dated 1-5-1969. Thereafter Kashiram and Tukaram had also transferred the said land to one Jagdish Mendhe and subsequently and finally on 14-2-1983, Jagdish Mendhe had transferred the said land by way of sale to the petitioners, i.e. 2.00 acres to the petitioner No. 1 and 1.00 acre to the petitioner No. 2 and the possession was also delivered to them. The tribal had initiated the proceedings by way of application under Section 3 of the Restoration Act before the Tahsildar. The Tahsildar held enquiry and by exercising his jurisdiction, he recorded findings that the tribal Chindhu is entitled for the restoration of land by virtue of Sub-section (3) of Section 4 of the Act and consequently directed to restore the land to the tribal by delivering possession free from all encumbrance with further direction that the cost of the land and value of improvement shall be determined after due enquiry as per rule 5 of the Maharashtra Restoration of Lands to Scheduled Tribes Rules, 1975 (for short, the Restoration Rules). Kashiram and Tukaram who were the non tribal-transferors, did not challenge the decision of the Tahsildar. The petitioners had been in possession of the land as it is said to have been transferred to them, and therefore, they had carried appeal before the MRT. The learned Tribunal, after hearing the parties dismissed the appeal by holding that the petitioner had no locus standi to challenge the order of the Tahsildar and that the petitioners did not acquired any right, title or interest in the land by virtue of the transfer made in favour of them by Jagdish Mendhe, on 14-2-1983 during the pendency of the restoration proceedings which were pending before the Tahsildar. This is how, the petitioners are before this Court in this writ petition.
3. Mr. Badiye, the learned counsel for the petitioners contended that the Restoration Act came into force on 1-11-1975 and the tribal Chindhu had instituted the proceedings for restoration of land on 27-1-1976 which is barred by the period of limitation, because as per Section 3, the application has to be made to the Collector or the Collector can suo motu institute the said proceedings within three years from the commencement of this Act. The next submission of Mr. Badiye is that the petitioners were not made party to the restoration proceedings before the Tahsildar and no notice was issued to them and they were taken by surprise after they had received the notice from the Tahsildar to deliver the possession to the tribal. Mr. Badiye further contended that no opportunity of hearing was given to the petitioners by the Tahsildar, and therefore, the order passed against them without hearing them by the Tahsildar, cannot be sustained in law and therefore, the matter be remanded to the Tahsildar for fresh decision on merits, in accordance with the law.
4. The learned A.G.P. contended that the Tahsildar was perfectly justified in entertaining the proceedings instituted on an application by the tribal for restoration of land on 27-1-1976 which were perfectly within the period of limitation of three years from the date on which the Restoration of Lands Act came into force. He contended that the land admittedly belongs to the tribal Chindhu, who had transferred it to Kashiram and Tukaram by virtue of the sale deed dated 1-5-1969 and Tahsildar was perfectly justified in ordering restoration of land in view of the provisions of Section 4(3) of the Restoration Act. He contended that the petitioners were strangers and they have no locus standi to prefer any appeal before the MRT. He contended that the Tribunal has rightly dismissed the appeal on the ground that the petitioner had no locus standi for challenging the order of the Tahsildar and that the alleged transaction dated 14-2-1983 in favour of the petitioners was made during the pendency of the restoration proceedings and as such it is void. He further contended that there is no merit in the writ petition and the same may kindly be dismissed.
5. I have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is necessary to reproduce Sub-section (1) of Section 3 of the Restoration Act, which reads thus :
(1) Where due to transfer --
(a) the land of a Tribal-transferor is held by a non-tribal-transferee, or (b) the land acquired in exchange by a Tribal-transferor is less in value than the value of the land given in exchange, and the land so transferred is in possession of the non-tribal-transferee, and has not been put to any non-agricultural use on or before the 6th day of July, 1974, then, notwithstanding anything contained in any other law for the time being in force, or any judgment, decree or order of any Court, Tribunal or authority, the Collector, either suo motu at any time, or on the application of a Tribal-transferor made, within thirty years from the commencement of this Act shall, after making such inquiry as he thinks fit, direct that -- (i) the lands of the Tribal-transferor and non-Tribal-transferee so exchanged shall be restored to each other; and the Tribal-transferor, or as the case may be the non-Tribal-transferee shall pay the difference in value of improvements as determined under Clause (a) of Sub-section (4), or
(ii) the land transferred otherwise than by exchange be taken from the possession of the non-tribal-transferee, and restored to the Tribal-transferor, free from all encumbrances and the Tribal-transferor shall pay such transferee and other persons claiming encumbrances the amount determined under Clause (b) of Sub-section (4) :
Provided that, where land is transferred by a Tribal transferor in favour of non-tribal transferee before the 6th day of July 1974, after such transferee was rendered landless by reason of acquisition of his land for a public purpose, then only half the land so transferred shall be restored to the Tribal-transferor.
Explanation.-- Where the lands of a Tribal and non-tribal are purported to have been transferred to each other, otherwise than by exchange, but the date on which the instruments for such transfers are registered is the same or, where such instruments are registered on different dates, but the interval between the dates of registration is thirty days or less, then, notwithstanding anything contained in such instruments, for the purposes of this section, such transfers shall be deemed to be by way of exchange.
6. Plain reading of the aforesaid provisions of law would reveal that, where due to transfer the land of a tribal-transferor is held by the non-tribal transferee, or the land acquired in exchange by a tribal transferor is less in value than the value of the land given in exchange and the land so transferred is in possession of the non-tribal-transferee and has not been put to any non-agricultural use on or before the 6th day of July, 1974, then, notwithstanding anything contained in any other law for the time being in force, or any judgment, decree or order of any Court, Tribunal or authority, the Collector either suo motu at any time or on the application of a Tribal-transferor made within thirty years from the commencement of this Act shall, after making such inquiry as he thinks fit, pass appropriate orders, in accordance with the provisions of the Restoration Act. It is not in dispute that the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 came into force on 1-11-1975 and the tribal transferor filed the application for restoration of the land on 27-1-1976 before the Tahsildar which was perfectly within three years from the date on which the Act came into force, and therefore, the contentions of Mr. Badiye that the said restoration proceedings have been barred by the period of limitation appears to be totally misconceived and liable to be rejected.
7. It is also not in dispute that the original owner of the land is respondent No. 2 Chindhu who is a tribal-transferor. It is not in dispute that he had transferred the land to one Kashiram Laxman and Tukaram Daji who were non tribal transferee by virtue of the sale deed dated 1-5-1969. As per Sub-section (i) of Section 2(1) of the Restoration Act, "transfer" in relation to land means the transfer of land belonging to a tribal made in favour of a non tribal during the period commencing on the 1st day of April 1957 and ending on the 6th day of July, 1974, either --
(a) by act of parties, whether by way of sale, gift, exchange, mortgage or lease or any other disposition made inter-vivos, or
(b) under a decree or order of a Court, or
(c) for recovering any amount of land revenue due from such Tribal, or for recovering any other amount due from him as an arrears 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.
8. Therefore, the present transfer by the tribal transferor in favour of the non-tribal transferee is covered under the definition of transfer. It is relevant to note that the petitioners were not party to the restoration proceedings which was started before the Tahsildar and in such circumstances, it is not possible to accept the contention of the petitioners that Kashiram and Tukaram had transferred the said land in favour of Jagdish and thereafter Jagdish had sold the said land to the petitioners on 14-2-1983. The petitioners did not produce any sale deed before the MRT to ascertain as to what was the date of the alleged transaction by which the land was transferred by way of sale by Kashiram Laxman and Tukaram Daji to Jagdish Mendhe.
9. It is also equally significant to note that Jagdish Mendhe is said to have transferred the said land in favour of the petitioners on 14-2-1983 when the restoration proceedings were pending before the Tahsildar, between the period 27-11-1976 till 17-12-1983, and therefore, Jagdish Mendhe could not have transferred the said land to the petitioners. Instead of appearing before the Tahsildar, they had chosen to prefer appeal before the MRT. The MRT was perfectly justified in observing in the order as follows:
"The appellants contended that the suit land is purchased by them from the non-tribal Mendhe and not from the tribals and therefore, provisions of the Restoration Act do not apply to the facts of this case. The respondent and the learned O.S.D. strongly opposed to this contention. I have perused the record of this case. The dates are material in this case. The learned Tahsildar passed his order on 17-12-83 against the non-tribal transferees Shri Kashiram and Shri Tukaram. The appellant showed me a Sale deed executed by Shri Mendhe transferring the suit land to the appellant which was dated 14-2-1983. It is clear from this Sale deed that the appellants entered into a sale purchase transaction during the pendency of the proceedings before the Tahsildar, under the provisions of the Restoration Act. Moreover, it is not known as to how Shri Mendhe could sale the suit land which was sub-judiced. The appellants cannot acquire any right, title and interest in the suit land, during the pendency of the restoration proceedings before the Tahsildar".
The learned Member of the Tribunal also made it clear that the order was passed against, non-tribal Kashiram and Tukaram who did not prefer any appeal against the order of Tahsildar. However, even the names of the petitioners were not recorded in the record of rights on the basis of the alleged transaction dated 14-2-1983. In such circumstances it is not possible to accept the contention of Mr. Badiye, the learned counsel for the petitioners that the land has been transferred in their favour and as such they have acquired right, title and interest in the said land. When the first transfer of land dated 1-5-1969 is hit by the provisions of Land Restoration Act it follows that all subsequent transfers also would be void. The Tahsildar or the Member of the Tribunal apparently had no jurisdiction to decide the title, and therefore, the only remedy left with the petitioner was to file a civil suit in the Civil Court for declaration of title. Therefore, this Court is of the considered opinion that there is no error or illegality in the impugned order. In the result, writ petition stands dismissed. Rule discharged.