KASHIBAI SANGA PAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants who are non-tribal transferees have preferred the instant letters patent appeal challenging the judgment of the learned Single Judge maintaining the orders of the authorities under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short the 'Restoration Act') directing restoration of the suit land to the original respondent No. 2 tribal transferor.

(2.) The facts are that suo motu proceedings were initiated by the Additional Tahsildar, Pusad under section 3 of the Restoration Act for restoration of Field Survey No. 23/1, area 10 acres 4 gunthas, Tahsil Pusad, District Yavatmal to the tribal transferor i.e. the original respondent No. 2 who has died during the pendency of the instant L.P.A. and therefore, whose name has been deleted by the appellants in this appeal. There was no dispute between the parties that the original respondent No. 2 was Andh by caste and that the appellants were non-tribals. The Additional Tahsildar, Pusad, by his order dated 20th February, 1981, held that the sale transaction between the parties in this case being on 12-1-1972 was within the period referred to in the definition of the expression "Transfer" given in section 2(i) of the Restoration Act. He, therefore, directed restoration of the suit land to the original tribal transferor as provided under section 3 of the said Act. An appeal was preferred by the appellant before the Maharashtra Revenue Tribunal (for short the "M.R.T."). However, the same came to be dismissed by the judgment of the M.R.T. dated 21-4-1987. The appellants thereafter preferred a writ petition in this Court registered as Writ Petition No. 1344 of 1987 which came to be dismissed by this Hon'ble Court by the judgment rendered on 11-1-1990. Feeling aggrieved, the appellants have preferred the instant L.P.A. against the judgment of the learned Single Judge, maintaining the orders of the learned authorities, under the Restoration Act directing restoration of the suit land to the original respondent No. 2.

(3.) The only question which is raised in this appeal by the learned Counsel for the appellants is that the original respondent No. 2 was respondent of Wanoli in Tahsil Pusad, District Yeotmal and his caste Andh was not recognised as a Scheduled Tribe in the Schedule to the Scheduled Tribes Order, 1950. The submission thus is that on the date of the sale deed executed on 12-1-1972, the original respondent No. 2 was not a tribal within the meaning of the said expression, because the Caste Andh was for the first time included in Schedule II relating to the Scheduled Tribes in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (for short, the Amendment Act, 1976) which came into force with effect from 27th July, 1977. In support of her submission, the learned Counsel for the appellants has relied upon the recent judgment of the learned Single Judge of this Court in the case of (Lachmana Malanna Alurwar v. M.R.T. and others)1, 1992 Mh.L.J. 1139. She has also brought to our notice the unreported judgment of another learned Single Judge of this Court in Writ Petition No. 1625 of 1986 decided on 26th October, 1990, (Bandu Kaniram Rathod v. State of Maharashtra and another)2, taking a similar view. Perusal of the above judgments show that in support of their view, both the learned Single Judges have relied upon the judgment of Division Bench of this Court in the case of (Tukaram v. Piraji)3, 1989 Mh.L.J. 815, and the same is therefore relied upon on behalf of the appellants also in the instant L.P.A. The learned Counsel for the State has controverted the above submissions made on behalf of the appellants and has relied upon the judgment of the Single Judge of this Court in the case of (Chhotelal v. State)4, 1990 Mh.L.J. 766.