Bombay High Court
Smt. Kausalyabai Kisand Dhande vs Shri.Fakira Daula Tadvi on 21 June, 2012
Author: S.S. Shinde
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3593 OF 1991
WITH
CIVIL APPLICATION NO.3064 OF 1993
Smt. Kausalyabai Kisand Dhande,
At & Post. Rozade, Tal. Raver,
District Jalgaon. ...PETITIONER
VERSUS
1. Shri.Fakira Daula Tadvi,
since deceased through his
a)
legal heirs :
Sikandar Fakira Tadvi,
b) Akbar Fakira Tadvi,
c) Rahiman Fakira Tadvi,
d) Mauran Fakira Tadvi,
e) Shabira Bapu Fakira Tadvi,
f) Begambai w/o Fakira Tadvi.
1(f) dismissed as per Addl.
Registrar's order dtd.18.2.2002.
All residents of At & Post-
Savkheda, Taluka Raver,
District Jalgaon.
2. Shri. Kasam Daula Tadvi, since
deceased through the legal heirs :
a) Babu Kadam Tadvi,
b) Shri.Sambhu Kasam Tadvi,
c) Shri.Roshan alias Chobu
Kasam Tadvi,
d) Gambhir Kasam Tadvi,
e) Shri.Gulab Kasam Tadvi,
f) Shri. Maibu Kasam Tadvi,
g) Smt. Begambai Gambhir Tadvi,
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All major, residing at village
Rasalpur, Taluka Raver,
District Jalgaon.
3. Shri.Chandkha Daula Tadvi, since
deceased through his legal heirs :
a) Shri.Maybu Chandkha Tadvi-
deceased through his legal heirs:
i) Latif Mehbub Tadvi,
ii) Rajak Mehbub Tadvi,
iii) Nazir Mehbub Tadvi,
iv) Jaitur w/o Ikbal Tadvi,
v) Safvarbai w/o Mehbub Tadvi,
All are major, residing at
village Savkheda Khd,
Tq. Raver, Dist. Jalgaon.
b) Shri. Subhan Chandkha Tadvi,
since deceased through his
legal heirs:
i) Gafur Subhan Tadvi, minor,
ii) Chabir Subhan Tadvi, minor,
iii) Sakur Subhan Tadvi, minor,
iv) Sarvar Subhan Tadvi, through
their guardian mother Fundabai
w/o. Subhan Tadvi.
v) Aitur w/o Ughadu Tadvi,
vi) Rastun w/o Sabka Tadvi,
vii) Fundabai w/o Subhan Tadvi,
All are residing at village
Savkhede Khd. Tal. Raver,
District Jalgaon.
c) Shri. Rasul Chandkha Tadvi,
age: major, Occ: Agriculturist,
R/o. village Savkhede Khd.,
Tal. Raver, Dist. Jalgaon.
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4. The State of Mahrashtra.
5. Scrutiny Committee, Director of
Tribunal Research and Training
Institute, Pune. ...RESPONDENTS
...
Mr. V.T. Choudhari, Advocate for the petitioner.
Mrs. Yogita M. Kshirsagar, A.G.P. for respondent
No. 4.
...
CORAM: S.S. SHINDE, J.
RESERVED ON :13-06-2012
PRONOUNCED ON :21-06-2012
JUDGMENT :
. This writ petition is filed challenging the judgment and order passed by the Maharashtra Revenue Tribunal, Camp Jalgaon, at Bombay dated 2nd August, 1991 in No. Rev.Trb.88 of 1986.
2. The background facts as disclosed in the petition for filing this writ petition are as under :
. The petitioner herein is the resident of village Rozode, Taluka Raver District Jalgaon.::: Downloaded on - 09/06/2013 18:41:33 :::
4 wp3593.91 The suit land is comprised in Survey No. 12/1 admeasuring 0 Hector 98 Ares situated at village Savkhede Khd., Taluka Raver District Jalgaon.
. The suit land was previously held and owned by deceased Fakira Daula Tadvi, deceased Kasam Daula Tadvi and deceased Chandkha Daula Tadvi and they have sold the suit land to Shri. Lotu Iccharam Fagade of Rozode on 15th September, 1967 for consideration of Rs.3500/- and corresponding Mutation Entry No. 875 was mutated on 20th October, 1967. Thereafter, the petitioner herein purchased the suit land from Shri. Lotu Iccharam Fagade in the year 1972 for consideration of Rs.40,000/- and corresponding Mutation Entry No. 880 was mutated in the revenue record on 2nd August, 1972. It is the case of the petitioner that, the petitioner has improved the land by spending thousands of rupees and has converted dry land into bagayat land. The suit land is now consolidated into Gat No. 60.
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3. It is the case of the petitioner that, initially on the basis of an application filed by Fakira Daula Tadvi and others, the Assistant Collector started an inquiry under Section 3 of the Maharashtra Restoration of Lands to the Scheduled Tribes Act, 1974 (For short, "Restoration Act") in the year 1975 but the case remained pending for many years on account of the stay obtained by the petitioner from the High Court and thereafter, the decision of "Lingappa's Case" wherein the constitutional validity of the Restoration Act was challenged and the Hon'ble Supreme Court has upheld the constitutional validity of the Restoration Act and thereafter, again an inquiry was started under the Restoration Act. Meanwhile, the Collector's powers were delegated to the Tahsildar and the Tahsildar resumed the said inquiry in the year 1985-86 and after recording the statements, the Tahsildar was pleased to pass the judgment and order dated 30th April, 1986 thereby it was ordered for restoration of the land to the respondent Nos. 1 to 3.
::: Downloaded on - 09/06/2013 18:41:33 :::6 wp3593.91 . Being aggrieved by the said judgment and order of the Tahsildar, the petitioner herein filed an appeal under Section 6 of the Restoration Act before the Maharashtra Revenue Tribunal being Appeal No. Rev. TRB.88 OF 1986. The M.R.T. dismissed the said appeal by his judgment and order dated 26th August, 1988. Hence this writ petition.
4. This writ petition was heard for admission on 19th November, 1991 when this Court was pleased to issue 'Rule' and interim relief in terms of prayer clause (C).
. The learned Counsel appearing for the petitioner would submit that, the suit land was purchased by the petitioner from Lotu Iccharam Fagade, however, he was not made party before the Tahsildar. Therefore, the judgment and order passed by the Tahasildar without hearing the said Lotu Iccharam Fagade from which the land is ::: Downloaded on - 09/06/2013 18:41:33 ::: 7 wp3593.91 purchased by the petitioner, is nullity. It is further submitted that, in view of the provisions of Section 3 of the Restoration Act, the respondents were bound to give undertaking that, they will personally cultivate the suit land and they will deposit the amount as determined under Section 3 sub-section (4) of the Restoration Act.
However, the respondent Nos. 1 to 3 have categorically stated that, they are not willing to pay any amount, which will be determined under Section 3 sub-section (4) of the Restoration Act.
The Tahsildar has not considered this aspect of the matter. It is further submitted that, the respondents are not tribal, as they held from Muslim Pathan community and they celebrate their marriages and other ceremonies as per Muslim religion. It is further submitted that, the caste/tribe certificate of the respondents should have referred to the Scrutiny Committee headed by the Director of Tribal Research and Training Institute, Pune and after such scrutiny of caste/tribe certificate only, the appropriate ::: Downloaded on - 09/06/2013 18:41:33 ::: 8 wp3593.91 orders should have been passed by the Tahsildar.
It is further submitted that, old Survey Number is no more in existence and same is consolidated alongwith other lands. It is submitted that, the respondents belong to Muslim religion and therefore, the advantage under Restoration Act are not available to them. They cannot claim themselves as tribal and said position is clear by the Government Resolution No. Adiwasi Vikas Bibhag NO. CBC-1684/6309/KA-11 dated 24-04-1985.
5. The learned Counsel also invited my attention to the reported judgments and orders in the cases of Daulat Dhana Mali since deceased by his L.Rs. Ramkrishan Daulat Mali and others vs. State of Maharashtra and others [ 1994 Mh.L.J. 1710], Ulhas Nimba Choudhari and another vs. Sardar Khandu Tadvi B/H and others [2011(3) Mh.L.J. 296], Krushna Wasudseorao Ambekar and others vs. State of Maharashtra and others [2010(1) Bom.C.R. 110], Sakharam Bhoju Rathod vs. ::: Downloaded on - 09/06/2013 18:41:33 ::: 9 wp3593.91 State of Maharashtra and others [2004(3) Mh.L.J. 1018] and unreported judgment of this Court in the case of Pandit Shridhar Lokhande vs. Jamsher Sitru Tadvi deceased heirs Mainabai Jamsher Tadvi and others in Writ Petition No. 1636 of 1994 decided on 17th June, 2010. Relying upon the aforesaid judgments, the Counsel appearing for the petitioner submits that, before rendering any decision, the Tahasildar should have referred the caste/tribe certificate of the respondents for verification. Since the said caste/tribe certificate was not sent for verification, the impugned judgment and order passed by the Tahsildar and which is confirmed by the Maharashtra Revenue Tribunal needs to be interfered.
6. Though the respondents are duly served, none appears for the private respondents.
7. I have given anxious consideration to the ::: Downloaded on - 09/06/2013 18:41:33 ::: 10 wp3593.91 submissions of the learned Counsel for the petitioner. The Tahsildar while deciding Adiwasi Case No. 66-A/66R/75 filed by the respondents has not properly considered the submission of the petitioner that, the respondents i.e. original applicants are from Muslim religion and before passing any orders, the certificate produced by them on record showing that, they are tribal, should be sent to the appropriate forum for verification. The petitioner herein specifically raised the said point before the Tahsildar and therefore, the Tahsildar ought to have referred the said certificate to the appropriate forum for verification. This Court had occasion to consider that, when the specific point is raised before the Tahsildar questioning the validity and authenticity of the certificate submitted by the tribal applicant, the Tahsildar should refer the said certificate to the appropriate forum for scrutiny/verification/validation. However, from careful perusal of the proceedings before the Tahsildar, it appears that the Tahsildar had not ::: Downloaded on - 09/06/2013 18:41:33 ::: 11 wp3593.91 sent the certificate submitted by the respondents for scrutiny to the appropriate forum.
. This Court in the case of Daulat Dhana Mali since deceased by his L.Rs. Ramkrishan Daulat Mali and others vs. State of Maharashtra and others (supra) in paragraph Nos. 8 and 9 has considered the similar controversy and has taken a view that, appropriate authority should refer the tribe certificate issued by the Taluka Executive Magistrate in respect of tribal claim to the scrutiny committee. In the facts of the present case also, the petitioner herein did pray the Tahsildar to refer the tribe certificate produced on record by the respondents herein for scrutiny to the appropriate forum, however, it appears that, the Tahsildar has rejected the said prayer.
In the case of Ulhas Nimba Choudhari and anoth vs. Sardar Khandu Tadvi B/H and others (supra), this Court has taken a view like in the case of Daulat Dhana Mali since deceased by his L.Rs.
::: Downloaded on - 09/06/2013 18:41:33 :::12 wp3593.91 Ramkrishan Daulat Mali and others vs. State of Maharashtra and others (supra) that, the authority should sent the tribe certificate for verification/scrutiny to the appropriate forum before rendering any decision on the claim of tribal for restoration of the land. The same view has been reiterated by this Court in the case of Krushna Wasudseorao Ambekar and others vs. State of Maharashtra and others (supra) and also in the case of Pandit Shridhar Lokhande vs. Jamsher Sitru Tadvi deceased heirs Mainabai Jamsher Tadvi and others in Writ Petition No. 1636 of 1994 decided on 17th June, 2010 (supra).
8. In the case of Pandit Shridhar Lokhande vs. Jamsher Sitru Tadvi deceased heirs Mainabai Jamsher Tadvi and others in Writ Petition No. 1636 of 1994 decided on 17th June, 2010 (supra), the Advocate appearing for the respondents therein i.e. tribal, relied upon the judgment of the Single Judge in the case of Ulhas Bimba Choudhari ::: Downloaded on - 09/06/2013 18:41:33 ::: 13 wp3593.91 and another vs. Burhan Samsa Tadvi (deceased heirs) Abbaskhan Burhan Tadvi and others reported in 2007(1) Mh.L.J. 165, in which the view is taken by this Court that, the Act requiring verification and scrutiny of the caste/tribe certificate came into force in the year 2000 and the certificate was issued much prior to coming into force of the said Act, and therefore, no such certificate is required to be sent for scrutiny/verification.
This Court, in the said judgment, has considered the submissions of the Counsel for the respondents and judgment of this Court in Ulhas Nimba Choudhari vs. Burahan Samsa Tadvi and others (supra) and in paragraph No.10 held ;
"10 "Shri.N.L.Choudhary,the learned counsel for respondent Nos.1 and 2 has, however, relied upon the judgment of the learned Single Judge of this Court in the case of Ulhas Nimba Choudhari Vs. Burahan Samsa Tadvi and others reported in 2007 (1) Mh.L.J. 165. In para 9 of the said ::: Downloaded on - 09/06/2013 18:41:33 :::
14 wp3593.91 judgment, it has been held that the Act requiring verification and scrutiny of the caste certificate came into force in the year 2000 and the certificate was issued much prior to coming into force of the said Act. In the instant case, the photocopy of the certificate produced on record was issued in the year 1993, may be by an authority which was competent to issue the said certificate i.e. the Executive Magistrate. However, the requirement of getting such certificate scrutinized and verified through Caste Scrutiny Committee was subsisting under several Government resolutions. Such a Committee was constituted for the first time in the year 1985 by the Government Resolution. This crucial fact does not seem to have been brought to the notice of this Court when this judgment was delivered. Hence, it proceeds on the assumption that when the Sub- Divisional Officer initiated the proceedings and concluded it, the requirement of getting the caste certificate verified and scrutinized by the Scrutiny Committee was not ::: Downloaded on - 09/06/2013 18:41:33 ::: 15 wp3593.91 subsisting. Apart from this, earlier binding precedent laid down in Daulat's case was also not noticed.
Hence, it is neither necessary to follow this judgment nor to refer the matter to a larger bench. The judgment in Daulat's case has been followed by this Court in 2010 (1) Bom. C.R. 110. Hence, the argument based upon Ulhas's case cannot be accepted."
9. Therefore, it follows from the discussion hereinabove that, before taking any decision in the present cases, the Tahsildar should have referred the tribe/caste certificate of the respondents for scrutiny/verification to the appropriate forum.
10. The another contention of the Counsel for the petitioner is that, the respondents should have given undertaking as required under Section 3 sub-section (4) of the Restoration Act that, they will cultivate the lands personally after lands ::: Downloaded on - 09/06/2013 18:41:33 ::: 16 wp3593.91 are restored to them and they will pay the price as determined by the authority. However, in the present case, the respondents/tribal have flatly denied to deposit the price which would be determined by the authority. On careful perusal of the judgment of Tahsildar it appears that, said point is not answered by him. Therefore, that point should have been addressed by the Tahsildar.
11. It appears that, the Maharashtra Revenue Tribunal mechanically endorsed the findings recorded by the Tahsildar without independent application of mind. Therefore, the judgment and order passed by the Maharashtra Revenue Tribunal and the Tahsildar deserves to be set aside.
12. Accordingly, the impugned judgments and orders are set aside. The matter is remitted back to the Tahsildar, Raver. The Tahsildar, Raver is directed to refer the caste/tribe claim of the concerned respondents to the concerned Caste/Tribe Scrutiny Committee within one month from the date of receipt of the copy of this order and ::: Downloaded on - 09/06/2013 18:41:33 ::: 17 wp3593.91 thereafter, the said Committee to take final decision within six months from the date of receipt of the caste/tribe claim.
13. If the decision of the Caste/Tribe Scrutiny Committee becomes final in favour of contesting respondents, the concerned authority shall ensure that, possession of the land does not continue with the non-tribal petitioner and the same shall not be delivered even to the respondents unless and until the matter is dealt with appropriately under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.
14. With the above observations, the writ petition is disposed of. No order as to costs.
Rule made absolute on the above terms. Civil Application stands disposed of accordingly.
sd/-
[S.S. SHINDE, J.] sut/JUNE12 ::: Downloaded on - 09/06/2013 18:41:33 :::