SUBHASH GOVIND BHANUSHALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS writ petition is filed challenging the order dated 17th December, 1983 passed by the Additional Commissioner, Konkan Division, Bombay in Appeal/desk/wtn/4713 communicated on 16-5-1984 evidenced by Exh. A to the writ petition. By the impugned order, the land admeasuring 18 acres and 16 gunthas in Vikramgarh village, Tal. Javhar District Thane, comprising in various survey numbers was ordered to be restored in favour of respondent Nos. 5 and 6 in exercise of the power under section 7 of the Maharashtra Lands Restoration to Scheduled Tribes Act, 1974 (hereinafter referred to as "restoration Act" for short) in Restoration Case No. TNC/act XIV/sr-9 dt. 18th September, 1977. The Divisional Commissioner passed this impugned order setting aside the order passed by the Tahsildar under section 4 of the said Act whereby the application for restoration of land in question at the instance of respondent Nos. 5 and 6 were dropped.

(2.) THE short facts for the purpose of this case can be stated thus : the petitioner is bona fide purchaser of the aforesaid land form erstwhile owner Shri. Shrimant Yeshwantrao Maharaj respondent No. 4 as per sale deed dated 6-5-1972. Earlier the aforesaid land was in possession by the tribal respondent Nos. 5 and 6. By virtue of section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called "tenancy Act") proceedings were initiated in favour of the respondent Nos. 5 and 6 as the respondent Nos. 5 and 6 were holding the land as tenants on the tiller's date namely 1-4-1957. However, the proceedings under section 32-G of the Tenancy Act has become ineffective. Consequently by virtue of section 32-P of the Tenancy Act, land was again divested to the landlord respondent No. 4 from whom, as noted earlier, the present petitioner purchased the land. According to petitioner, the character of the land itself has been changed in respect of the portion of a land and with permission of the Collector, the land got converted into non-agricultural use for the area of 2962 sq. mtrs. When the Restoration Act came into force, respondent Nos. 5 and 6 applied under section 4 of the said Act for restoration of the land. Tahsildar as stated earlier, after hearing the parties dropped the proceedings holding that the said Act does not apply to the land. No appeal has been filed against that order. After five years second respondent, Divisional Commissioner, Konkan Division, Mumbai issued notice invoking section 7 of the Act and ultimately impuged order came to be passed.

(3.) THE learned Counsel for the petitioner submits that the order passed by the Divisional Commissioner is liable to be set aside on the ground of limitation alone. He submits that even though the Act does not prescribe any period of limitation for invocation of section 7 of the Restoration Act, second respondent has erred in passing the impugned order as he has not invoked his power within the reasonable time. The Counsel for the petitioner further submits that the land which was disposed of by the operation of provisions of section 32-P of the Tenancy Act, the Restoration Act has no applications as held in the decision reported in (State of Maharashtra v. Khatua Makauji and Co. Pvt. Ltd. , Bombay)1, 1987 M. L. J. 908 as the disposal of the land invoking section 32-P cannot be treated as transfer of the tribal land to the non-tribal. The learned G. P. has contended that the land has been disposed of in favour of the respondent No. 4 as per section 32-P and contends that order passed by Mamlatdar to transfer the land in favour of the respondent No. 4 invoking section 32-P can very well be considered as transfer going by the definition of "transfer" in relation to land occurring in section 2 (1) (i) of the Restoration Act? In order to appreciate the argument of the learned G. P. we have to examine the definition of transfer in the Restoration Act. Transfer" in relation to land means the transfer of land belonging to a tribal made in favour of a non-tribal during the period commencing on the 1st day of April, 1957 and ending on the 6th day of July, 1974, either - (a) by act of parties, whether by way of sale, gift, exchange, mortgage or lease or any other disposition made inter vivos, or--- (b) under a decree or order of a Court, or (c) for recovering any amount of land revenue due from such Tribal, or for recovering any other amount due from him as an arrear of land revenue, or otherwise under the Maharashtra Co-operative Societies Act, 1960 or any other law for the time being in force but does not include a transfer of land falling under the proviso to sub-section (3) of section 36 of the Code; and the expressions, "tribal-transferor" and "non-Tribal -Transferee" shall be constructed, accordingly;"