BALIRAM Vs. GAJANAN

JUDGEMENT

(1.) 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

(2.) H.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 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 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 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.