Bombay High Court
Baliram S/O Reva Chavhan Thr. P.O.A. ... vs Gajanan S/O Shekarao Wanjare And Others on 30 January, 2020
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
WP-1701-19 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1701 OF 2019
Baliram s/o Reva Chavhan
Aged about 54 years Occ. Agriculturist
Through his Power of Attorney Holder
Shri Shrikant s/o Baliram Chauhan
Aged about 30 years Occ. Self Employed
r/o Near Gajanan Maharaj Mandir,
Pusad, District Yavatmal ... Petitioner
-vs-
1. Gajanan s/o Shekrao Wanjare
Aged about 35 years Occ.Agriculturist
r/o Adegaon Post Adegaon Tehsil Pusad
District Yavatmal
2. Ravichand Dhansingh Rathod
Aged about 62 years Occ. Agriculturist
r/o Gandhinagar Pusad District Yavatmal
3. Rajusingh Dhansingh Rathod
Aged about 61 years Occ. Agriculturist
r/o Adegaon Post Adegaon Tehsil Pusad
District Yavatmal
4. Asha Rajusingh Rathod
Aged about 55 years Occ. Agriculturist
r/o Adegaon Post Adegaon Tehsil Pusad
District Yavatmal
5. The Tahsildar, Pusad
Tehsil Office Pusad District Yavatmal ... Respondents
Shri A. M. Sudame, Advocate for petitioner.
Shri R. D. Narkhede, Advocate for respondent No.1.
Shri H. D. Dubey, Assistant Government Pleader for respondent No.5.
CORAM : A. S. CHANDURKAR, J.
Date on which the arguments were heard : December 19, 2019 Date on which the order was pronounced : January 30, 2020. ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 2/9 Order :
The challenge raised in this writ petition is to the order passed by the Maharashtra Revenue Tribunal dated 06/02/2019 in the appeal preferred by the petitioner under Section 6 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, the said Act). By the said order the appeal preferred by the predecessor of the petitioner has been dismissed and the order dated 28/09/2017 passed by the Tahsildar directing restoration of land bearing Survey (old) No.38/2 (new) 176 admeasuring 2H.06R to the respondent No.1 has been upheld.
2. It is case of the respondent No.1 that his father Shekorao had nominally sold the aforesaid land to one Dhansingh Rathod. The father of the respondent No.1 belonged to "Andh" tribe. After partition the land in question came to the share of his son-respondent No.2. Thereafter, the respondent No.2 sold the land to the respondent No.3. Subsequently on 22/06/1994 the respondent No.3 sold the said land to the petitioner. In the year 2016 the respondent No.1 who is the son of Shekorao filed an application before the Tahsildar seeking restoration of the aforesaid land on the ground that the transfer effected by his father was in violation of the provisions of Section 3 of the said Act as the said land was sold to a non- tribal. This application was opposed by the petitioner and the Tahsildar on 28/09/2017 held that since the initial transfer by the father of respondent ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 3/9 No.1 was in violation of provisions of Section 3 of the said Act the said land was liable to be restored in favour of the respondent No.1. This order was challenged by the petitioner by filing an appeal but that appeal has been dismissed by upholding the order passed by the Naib Tahsildar.
3. Shri A. M. Sudame, learned counsel for the petitioner submitted that when the land was initially transferred by the father of respondent No.1 in the year 1958, the transferor was not a tribal in view of the fact that "Andh" tribe was included in the list of Scheduled Tribes only in the year 1974. The transfer therefore could not be said to have been effected by a tribal in favour of non-tribal. Referring to the provisions of Section 2(1)(j) of the said Act as well as the provisions of Section 36-A of the Maharashtra Land Revenue Code, 1966 (for short, the Code) it was submitted that if on the date on which a person transferred his land was not a tribal but the tribe in question was inserted in the Scheduled Tribe Order subsequent to the transfer, then such person was not entitled to seek restoration of such land under Section 3 of the said Act. He referred to the decision of the Division Bench in Tukaram Laxman Gandewar vs. Piraji Dharmaji Sidarwar by LRs Laxmibai and ors 1989 Mh.L.J. 815 wherein it has been held that only if a transferor was a tribal on the date of the transaction he would be entitled for restoration of the transferred land under Section 36-A of the Code. It was his submission that the aforesaid judgment of the Division Bench has been ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 4/9 consistently followed by various learned Single Judges in Lachmanna Malanna Alurwar vs. Maharashtra Revenue Tribunal and ors. 1992(2) Mh.L.J. 1139, Gopal s/o Jianna Madrewar vs. Poshatti s/o Bhojanna Khurd and ors. 1997(1) ALL MR 341, Sheikh Mohammed s/o Sheikh Gulab vs. The Additional Commissioner, Aurangabad Division and ors. 1997(1) ALL MR 680, Shirvram s/o Jairam and anr. vs. Tukaram s/o Raghoji Aage and anr. 1997 (1) Mh.L.R. 27 and Chandrabhagabai w/o Dhondiba Gutte (died LRs) Godavaribai w/o Laxman Gutte and ors. vs. Ladva s/o Narayan Sidarwad and ors. 2006(1) Mh.L.J. 485. Considering this consistent view it was clear that the land in question was not liable to be restored in favour of the respondent No.1 as 'Andh' was recognised as Scheduled Tribe after the transfer of the land. He further submitted that another Division Bench in Kashibai wd/o Sanga Pawar and ors. vs. State of Maharashtra 1993(2) Mh.L.J. 1168 has however held that irrespective of the date on which a tribe is recognised as such and included in the Scheduled Tribes Order, 1950 such tribal transferor would be entitled to be restored the lands transferred by him. Though Section 36-A of the Code has been held to be prospective, the provisions of Section 3(1) of the said Act have been held to apply to past transactions. According to the learned counsel the earlier decision of the Division Bench in Tukaram Laxman Gandewar (supra) had been held to have been rendered per incurium while taking the aforesaid view. It was his submission that the later Division Bench ought to have referred the aforesaid question to a larger Bench instead of holding the earlier judgment to have been rendered per incurium. According to him considering the ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 5/9 consistent view taken after the initial judgment of the Division Bench in Tukaram Laxman Gandewar (supra) the impugned orders were liable to be set aside. He also referred to the decisions in Mahadeolal Kanodia vs. The Administrator General of West Bengal AIR 1960 SC 936, Dr Vijay Laxmi Sadho vs. Jagdish (2001) 2 SCC 247 and the decisions of the Full Bench in Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh and ors. 2000(3) Mh.L.J. 555 as well as in Vinayak Hari Kulkarni vs. State of Maharashtra and ors. 2010(4) Mh.L.J. 868 in support of his contentions. It was thus submitted that the impugned orders were liable to be set aside.
4. On the other hand Shri R. D. Narkhede, learned counsel for respondent No.1 supported the impugned order and placed heavy reliance on the later judgment of the Division Bench in Kashibai Pawar and others (supra). According to him it has been rightly held in the said decision that Section 3 of the said Act was applicable to past transactions also and even if "Andh" tribe was recognised as a Scheduled Tribe after the transaction, the respondent No.1 would be entitled to the relief of restoration. He therefore submitted that no interference with the impugned order was called for.
5. On hearing the learned counsel for the parties and after perusal of the various decisions referred to by them it can be seen that the judgment of the Division Bench in Tukaram Laxman Gandewar (supra) is the earliest ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 6/9 decision in time wherein it has been held that in a case where on the date of transfer, the transferor was not a tribal recognised by the Scheduled Tribes Order, 1950, such transferor would not be entitled to rely upon the provisions of Section 36-A of the Code for seeking restoration of such transferred land. This judgment of the Division Bench has thereafter been consistently followed by various learned Single Judges as can be seen from the decisions in Lachmanna Malanna Alurwar, Gopal Jianna Madrewar, Sheikh Mohammed Sheikh Gulab, Shirvram s/o Jairam and anr. and Chandrabhagabai Dhondiba Gutte (supra) which decisions were relied upon by the learned counsel for the petitioner. In addition it can be seen that the aforesaid view of the Division Bench was also followed in Bhujaji Mahadu Ingole Thr. LRs Vishwanath Bhujaji Ingole and ors. vs. Additional Commissioner, Aurangabad Division, Aurangabad and ors. 1997(2) Mh.L.J. 261 as well as the judgment dated 12/01/2018 in Writ Petition No.3763 of 1995 (Sitaram and ors. vs. Ananda and ors.) at the Aurangabad Bench of this Court. It can also be seen from all the aforesaid judgments rendered by various learned Single Judges that the subsequent judgment of the Division Bench in Kashibai Sanga Pawar (supra) was not brought to their notice. In Kashibai Sanga Pawar (supra) another Division Bench has held the earlier judgment of the Division Bench in Tukaram Laxman Gandewar (supra) had been rendered per incurium on facts and therefore were treated as not binding. In the said decision it has been held that though the provisions of Section 36-A of the Code do not have ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 7/9 retrospective effect, the provisions of Section 3(1) of the said Act operate even on past transactions between the parties. Thus even if on the date of transfer the transferor was not a tribal as per the Scheduled Tribes Order, 1950, if the concerned tribe was subsequently included in the Scheduled Tribes Order, 1950 by virtue of an amendment, the transferor would be entitled to rely upon Section 3(1) of the said Act to seek restoration of the transferred land even though the land may have been transferred prior to such subsequent inclusion. It may be stated in the passing that both these decisions of the Division Bench were referred to in Letters Patent Appeal No.40/2001 (Taluka Sangrampur Buddavihar Samiti Varvat Bakal Thr. Its Secretary and anr. vs. State of Maharashtra Thr. The Secretary, Department of Revenue and Forest, Mantralaya, Mumbai and ors.) decided on 05/10/2017 but the Division Bench did not go into that aspect as the proceedings were remanded to the learned Single Judge for fresh adjudication.
6. Another relevant aspect that requires to be noted is that in Chandrabhagabai Dhondiba Gutte (supra) the contention as regards the retrospective effect of Act No.108 of 1976 by which the Scheduled Tribes Order, 1950 came to be amended was sought to be urged. After referring to the judgment of the Constitution Bench of the Honourable Supreme Court in State of Maharashtra vs. Milind 2001(1) Mh.L.J. 1 it was observed that even if ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 8/9 by birth a person is born in a tribal community unless that community is recognised as a Scheduled Tribe, such person cannot get the status of a tribal. The transactions in question were dated 22/06/1969 and 20/03/1970. As the transferor belonged to "Naikda" tribe which tribe was recognised as a 'Scheduled Tribe' by virtue of Act No.108 of 1976 from 27/07/1977, it was held that the transferor was not entitled to restoration of the transferred land. Thus after the decision of the Division Bench in Kashibai Sanga Pawar (supra) which was decided on 18/11/1992, additional reasons have been given while following the judgment of the earlier Division Bench in Tukaram Laxman Gandewar (supra) based on the subsequent judgment of the Honourable Supreme Court.
7. In the light of these decisions it is found therefore that the aforesaid position cannot be reconciled. On one hand it has been held by the Division Bench in Tukaram Laxman Gandewar (supra) that the date of recognition of a transferor as a tribal by the Scheduled Tribes Order is relevant and if such recognition is granted after the date of transfer, the transferor would not be entitled to seek restoration of the land in question. The aforesaid view has been thereafter consistently followed. On the other hand the subsequent decision in Kashibai Sanga Pawar and ors. (supra) holding the earlier judgment of the Division Bench to be per incurium has not been noticed in all the subsequent decisions of the learned Single ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 ::: WP-1701-19 9/9 Judges. It is therefore necessary that the aforesaid divergence in views is resolved and for said purpose the course prescribed by the provisions of Rule 7 of Chapter I in Part-I of the Bombay High Court Appellate Court Rules, 1960 is required to be adopted. This course is found to be preferable rather than to adjudicate the present proceedings by following a particular view. Resolution of the divergence in views would result in conclusively answering the question that arises. In this regard reference can be made to the observations of the Full Bench of this Court in Karim Abdul Rehman Shaikh vs. Shehnaz Karim Shaikh and ors. 2000(3) Mh.L.J. 555 and especially paragraphs 1 and 2 thereof.
8. In that view of the matter the papers be placed before the Honourable the Chief Justice to consider whether the matter can be advantageously heard by a Bench of two or more learned Judges to answer the following question :
" Whether the subsequent recognition of the transferor as a tribal after transfer of the land would entitle the transferor to seek restoration of possession of land under Section 3(1) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 as held in Kashibai wd/o Sanga Pawar and ors. vs. State of Maharashtra 1993(2) Mh.L.J. 1168 or whether such subsequent recognition would be of no assistance to the tribal transferor as held in Tukaram Laxman Gandewar vs. Piraji Dharmaji Sidarwar by LRs Laxmibai and others 1989 Mh.L.J. 815 ?"
Order accordingly.
JUDGE Asmita ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 01:45:03 :::