DONGARZINGA RAJPUT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN both these petitions, filed under Articles 226 and 227 of the constitution, a common judgment and order dated 27th February, 1987, passed by the Maharashtra Revenue Tribunal (the tribunal, for short), deciding the Appeal Nos. 32 and 20 of 1985, has been i assailed. However, the substantive relief, as set out in prayer clause 13 (a), clearly shows that the Petitioners prayed for setting aside the order of restoration of the suit land by the Tahsildar, Sakri and confirmed by the tribunal and, therefore, these are the petitions filed under Article 227 of the constitution. Though in the body of the petitions and amongst the grounds of challenge, the Petitioners have questioned the constitutional validity of the proviso below subsection (3) of section 36 of the Maharashtra land Revenue Code ('the Code', for short); as amended by the Maharashtra land Revenue Code and Tenancy Law (Amendment), 1974, there is no prayer for declaring the said proviso as ultravires the constitution.

(2.) BOTH the Petitioners are real brothers and each one of them had purchased agricultural land from Gat No. 430 of village Balsane in Sakri taluka of Dhule district by a registered agreement signed on 26th January, 1969. The first Petitioner had purchased 7 Acres and the second petitioner had purchased 11 Acres and 20 Gunthas land which was owned by the Respondents, Mutation entry was accordingly effected on 26th October, 1969. In or about October, 1975, show cause notices were issued to the petitioners by the Tahsildar under section 36 (3) of the Code on suo motu proceedings initiated by him for restoration of land to the vendors who are tribals. On receipt of these notices, the Petitioners, along with others, had approached this Court in Special Civil Application No. 135 of 1978 and the same was decided on 5th of October, 1984. The notices were set aside with liberty to issue fresh notices after the challenge to the constitutional validity of section 36 of the Code is decided by the Supreme Court in the pending appeal. In the meanwhile, the authorities were directed to maintain statusquo regarding the possession of the suit land.

(3.) CHALLENGE to the constitutional validity of sections 3, 4 and 9a of the Maharashtra Restorations of Lands to Scheduled Tribes Act, 1975 (the restoration Act, for short) came to be decided by the Supreme Court in the case of Lingappa Pochanna Appealwar v. State of Maharashtra and another on 4th December, 1984. The Supreme Court turned down the challenge to the constitutional validity of the said sections and, thereafter, the tahsildar issued fresh notices. Both the parties were served with the notices and they remained present. Their statements were recorded on 22nd July, 1985. The Tahsildar, by his fresh order dated 14th August, 1985 ordered that the land admeasuring 7 Acres out of Gat No. 430 be taken from the possession of the non-tribal Petitioner in the first petition and land admeasuring 11 Acres 20 Gunthas from the same Gat number be taken from the possession of the non-tribal Petitioner in the second petition and restored to the tribal free from all encumbrances as per the provisions of section 36 (2) of the Code. Two separate appeals were preferred before the Tribunal from this order of the Tahsildar and both these appeals have been dismissed on 27th February, 1987. While granting rule, stay to the execution of the orders passed by the Tahsildar and confirmed by the Tribunal, was ordered by this Court on 28th October, 1987 and, thus, the petitioners continued to be in possession of the subject lands.