SANDU SAYARAM PATIL Vs. GULAB DAGDUTADVISINCE

JUDGEMENT

(1.) BY this writ petition filed under Article 227 of the constitution of India, the petitioner deceased Sandu through his heirs and legal representatives Gulab challenging the judgment and order passed by the Additional Commissioner, Nasik Division, Nasik. Present proceeding arises out of the action taken by the Assistant Collector, Jalgaon, division Jalgaon, under the provisions of Maharashtra Restoration of lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the Act ). It was noticed by the Assistant Collector that land Gat No. 71 admeasuring 2 hectares 11 Ares (hereinafter referred to as the land) was sold by the tribal to the non-tribal and therefore, in exercise of power conferred on him by subsection 3 of the Act issued a notice to non-tribal under Rule 3 sub-rule (4) of Maharashtra Restoration of Lands to Scheduled Tribes rules, 1975 and accordingly a notice in the prescribed form was issued on 3/12/1971 to the tribal and non-tribal, wherein it was stated that the land so transferred will be restored to the tribal. On receipt of the notice, the parties i. e. tribal and non-tribal appeared before the Collector. On 13/12/1975 the Collector recorded the statement of the trials namely Gulab (Bhil) and supadu Dagdu (Bhil), wherein they have stated that the land was of their ownership and they have sold the land to Shri Sandu Dayaram on 27/5/19711 for a consideration of Rs. 12,000. 00 and the purchaser is in possession of the land and the land is being cultivated by him. In the statement they have stated that they are ready to cultivate the land in case the land is restored to them and they are ready to pay compensation as determined as per law. Thereafter, the enquiry was adjourned and on 22/12/1975 again a statement of the trials came to be recorded by the assistant Collector, wherein they have retracted their earlier statement by stating that the statement which was recorded on 13/12/1975 is not acceptable to them. It is contended that they being Muslim by religion and they are not the members of the scheduled tribe. It is stated by them that land was sold for Rs. 12,000. 00 by obtaining necessary permission. Therefore, they stated that they are not ready to take the land back as they have no agricultural implements nor bullocks etc. , further they are not in a positron to pay the amount and further stated that the land be retained with non-tribal. The tribals also stated before the Assistant collector, that the statement which was made by them on 13/12/1975 was under misunderstanding, therefore, they stated that no pressure was brought on them nor any consideration is paid for that to make subsequent statement. On that day i. e. 22/12/1975 the statement of non-tribal was also recorded, where he stated that as the tribals have refused to take the Land for the reasons stated in their statement and therefore, he stated that the land may not be restored. On the basis of these statements of the parties the Assistant Collector Jalgaon, dropped the proceeding as the tribals are not ready to take the land and accordingly by the order dated 31. 12. 1975 the Assistant Collector, Jalgaon, dropped the proceeding.

(2.) AFTER 31. 12. 1975 nothing has happened and the non-tribal transferee continued and "enjoyed the possession of the land as before. One Abbas gulab Tadvi claiming to be the heir of Gulab Tadvi filed an application before the Assistant Collector, Jalgaon claiming that the possession be handed over, as the transferee belong to scheduled tribe. It appears that on the basis of this application of which the copy was forwarded to the hon'ble Minister, the authorities took cognizance and initiated the proceeding. On the basis of the application filed by Abbas Tadvi, Collector jalgaon on 5. 2. 1982 requested the Commissioner to initiate suo-motu enquiry U/s 7. In that communication, the Collector stated that the order of dropping the proceeding was passed by the Asstt. Collector on 31/12/1975 and the application was filed by Shri Abbas on 10/11/1981 before the hon'ble Minister. As the order was passed on 31/3/1975, and to pass order u/s 5a as amended in 1977 was required to be taken to initiate the proceeding and he requested the Commissioner to seek appropriate permission from the State Government U/s 7 proviso of the Act. On receipt of the communication from Collector, Jalgaon, the Commissioner moved the matter to the Government seeking necessary permission U/s 7 proviso. The Commissioner has apprised the Secretary, Revenue and Forest department, Mantralaya, Mumbai, that the Collector, Jalgaon, has requested him to revise the order dated 31/12/1975 but as three years period is over, suomotu proceeding to revise the order cannot be taken unless the State Government grants the permission, therefore, he requested the secretary to give special permission. On receipt of this communication from the Commissioner, the State Government by its communication dated 10. 5. 1982 accorded sanction to revise the order dated 31. 12. 1975. On receipt of the sanction from the Government vide letter dated 10. 5. 1982, a notice came to be issued by the Commissioner on 4. 11. 1988 calling upon the parties to appear before him on 12. 12. 1988. In the notice the cause for invoking suo motu powers U/s 7 is given as the Assistant Collector, Jalgaon has passed an order dropping the proceeding on the ground that the tribals are not ready to take back the lands which is not in consonance with the provisions of Section 5a of the Act. Thus the reason for dropping proceedings are not just and proper, and as per provisions of the Act, the land should have been taken by the Government which was not done now the tribal is seeking possession of the land, the order dated 31. 12. 1975 is to be revised.

(3.) PURSUANT to the notice from the Commissioner the parties appeared before him. The non-tribal filed an application on 22. 12. 1988 and sought time to file reply. Accordingly, the Commissioner adjourned the matter and kept further hearing on 16. 1. 1989. On 16. 1. 1989 son of non-tribal filed an application seeking time to file reply. On 31. 1. 1989 the statement of the tribal (i. e. applicant Abbas) was recorded wherein he has expressed his desire to purchase the land. He also produced documentary evidence to show that they belong to Tadvi Bhil a Scheduled Tribe. The documents which were produced on record are the extract of birth and death register issued by the Tahsildar Jalgaon, wherein an entry is made on 4. 12. 1916 in relation to a birth of a child in the family of Dagdu Supadu, wherein the caste is mentioned as "tadvi". Another document shows that in the year 1938 there was a birth in the family and the entry in extract of register indicates that caste "tadvi" is mentioned. The non-tribal filed an application on 31. 1. 1989 informing Commissioner that original non-tribal sandu has expired in the meantime and an application for substitution and bringing heirs of deceased non-tribal is required to be filed and for that purpose time was sought. Accordingly, the time was granted. Shri gulab heir of deceased Supadu filed written arguments, wherein it is contended that once the proceedings are dropped, there is no provision to restore the proceeding as tribals have recorded the statement and they stated that they did not want to purchase the land and they have failed to give undertaking under subsection 3 of the Act. It was contended that they are not tribals but they are Muslims. It was contended that as once the tribals have refused to take the land, there is no provision to file fresh application for claiming the same land back. The heir also challenged the locus-standi of Shri Abbas who filed the said application. It was contended that Section 5a was inserted in 1977 while the case was decided in 1975 and no action U/s 5a can be taken as Section 5a was not on the statute book. It is contended that the Commissioner has no jurisdiction to initiate the proceeding after lapse of 13 years, thus, it was prayed for dropping of the proceeding. One aspect has to be recorded before going to the order that in the life time of Sandu Dayaram by making an application to revenue authorities requesting them to mutate the land in favour of his grand son Subhash as he has transferred the land in favour of his grand son Subhash. On the basis of that application, mutation entry came to be sanctioned showing that now the land is in possession of gulab Patil.