MULCHAND AND ORS. Vs. RAMBHAU AND ORS.

JUDGEMENT

(1.) The petitioners belong to a tribe "Gond", which is recognized as Scheduled Tribe under Entry No. 18 in the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra, and the respondent Nos. 1 to 5 belong to "Kunbi" caste and they are non-tribals. By an order dated 20-2-1989 passed in Revenue Case No. 282/LND-31/82-83 of Tirora, the Tahsildar, Tirora, directed restoration of lands Khasra No. 77/1, admeasuring 1 acre, and Khasra No. 77/2, admeasuring 1.36 acres to the petitioners, who are tribals, from the respondents/non-tribals. The sale-deeds executed in favour of the respondents on 10-3-1969 and 22-3-1971, were held to be covered by section 3(1)(i)(ii) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. This order has been set aside by the Maharashtra Revenue Tribunal, Nagpur, by its order dated 31-10-1991 passed in Appeal Nos. 69/B-109/91 and 70/B-109/91, which is the subject-matter of challenge in this petition. By an order dated 29-4-2005 passed by the Sub-Divisional Officer, Gondia, in Revenue Appeal No. 16/RTS 64/2002-03 of Mouza Tirora, the mutation Entry No. 3982 dated 28-4-2003 in the names of the petitioners has been cancelled on the basis of the aforesaid order dated 31-10-1991 passed by the Maharashtra Revenue Tribunal, Nagpur. Similarly, the Tahsildar, Tirora, passed the consequential order on 30-7-2005 in Revenue Case No. 7/RTS-64/2004-05 of Mouza Tirora, cancelling the mutation entry in the names of the petitioners and restoring the entry in the names of the respondents. The appeals preferred against these orders have been dismissed by the Additional Collector, Gondia, by his order dated 22-5-2007 passed in Revenue Appeal No. RTS-64/Tiroral/05-06. Hence, all these orders are also the subject-matter of challenge in this petition.

(2.) The facts of the case are that one Hari Doma Mahar, a non-tribal, was the owner of the lands in question, and he sold the said lands to one Hagru by a registered sale-deed dated 19-11-1951. Ganpat Zagduji Surpame, Sampat Zagduji Surpame and Dalpat Zagduji Sarpame, all the three brothers, purchased the lands in question jointly in the year 1955 from the vendor Hagru. Thus, all the three brothers were the joint owners of the lands Khasra No. 77/1, admeasuring 1 acre; and Khasra No. 77/2, admeasuring 1.35 acres. The petitioners are their legal representatives. The land Khasra No. 77/1, admeasuring 1 acre, was sold to Rambhau Gopalrao Ingle, a non-tribal, by a registered sale-deed dated 10-3-1969, whereas the land Khasra No. 77/2, admeasuring 1.36 acre, was sold to one Sindhubai, a non-tribal, by a registered sale-deed dated 22-3-1971. The respondent Nos. 1(1) to 1(7) are the legal representatives of the deceased Rambhau Gopalrao Ingle. It is at the instance of the petitioners, who are tribals, that the order of restoration of lands was passed under section 3(1)(i)(ii) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, by the Tahsildar, Tirora.

(3.) By the impugned order dated 31-10-1991, the Maharashtra Revenue Tribunal has held that the lands in question were sold on 10-3-1969 and 22-3-1971, that is prior to coming into force of the Act No. 108 of 1976 removing area restrictions subsisting under the Constitution (Scheduled Tribes) Order, 1950 then prevailing. The petitioners, though belong to a "Gond" tribe, were not residing in the areas of (1) Melghat tahsil of Amravati district, (2) Gadchiroli and Sironcha tahsils of Chanda district, and (3) Kelapur, Wani and Yeotmal tahsils of Yeotmal district, but they were residing in Bhandara district. Hence, they were not recognized as Scheduled Tribes at the time when the transfers were made. It has been held that the provision of section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act would not, therefore, govern the transfers in question. Before this Court, Shri S.S. Sharma, the learned counsel for the respondents (non-tribals) placed reliance is placed upon the provisions of Act No. 10 of 2003 brought into force with effect from 7-1-2003, which put a comma between the tribes "Gond" and "Rajgond" in Entry No. 18 of the Constitution (Scheduled Tribes) Order, 1950. It is urged that it is for the first time a separate "Gond" tribe is recognized as a Scheduled Tribe with effect from 7-1-2003, and, therefore, the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act would not apply.