Punjaji C. Halde vs State Of Maharashtra And Ors.
2001 Latest Caselaw 806 Bom

JUDGMENT

P.S. Brahme, J.

1. Petitioner approached this Court to challenge the order passed by Additional Commissioner, Amravati in Appeal No. 7/LND-31/1988-89 dated 30th March, 1994.

2. The Additional Commissioner observed that as a special case the sale of the land for repayment of bank loan be deemed to be with permission of the Collector and State Government, and regularised accordingly. He further observed that the case be transferred to the Collector with direction as above.

3. The subject-matter of the dispute is agricultural land bearing Survey No. 268/3 (Gat No. 679) admeasuring 2 hectares and 12 acres, admittedly owned by the petitioner Punjaji Halde who claimed to be belonging to a Tribal. Admittedly he had taken loan of Rs. 1500/- on 26-8-1965 from the Janata Sahakari Bank Limited, Buldhana i.e. Respondent No. 3 and for that the said land was mortgaged with the bank as security for the loan. Since the loan was not repaid, respondent No. 3 Bank initiated action under the Maharashtra Co-operative Societies Act and auction sale of the land was conducted on 9-3-1978. In the public auction the land was sold to respondent No. 4 for a consideration of Rs. 720/-. Thereafter, the possession of the land was given to respondent No. 4. In the year 1985 the petitioner filed application before the Sub-Divisional Officer, Malkapur with a plea that he belongs to Scheduled Tribe and therefore, the land should be restored to him. As per the provisions of Section 36 of the Maharashtra Land Revenue Code. The Sub-Divisional Officer conducted inquiry in Revenue Case No. LND-31/1/1985-86 for recovery of the land from non-tribal purchaser i.e. respondent No. 4 and its restoration to the petitioner. He passed the order on 12-5-1986 and held that the said sale was invalid. That order came to be challenged in appeal before the Resident Deputy Collector, Amravati, who confirmed the order passed by the Sub-Divisional Officer, Malkapur by his order dated 17-2-1988. The said order was challenged by respondent No. 4 by preferring second appeal before the Additional Commissioner, Amravati who by his order dated 5-5-1988 remanded the case to the Collector, Buldhana to examine as to why the post facto permission for auction sale of tribal land cannot be granted. The Resident Deputy Collector, Amravati who heard the matter after remand, held that law does not provide for granting post facto sanction and by his order dated 26-6-1989 confirmed the earlier order dated 12-6-1986 holding that the auction sale was invalid for want of previous sanction as required, under the provisions of Section 36 of the Maharashtra Land Revenue Code. Thereafter, the respondent No. 4 took up the matter again before the Additional Commissioner, Amravati who passed the impugned order. That order is subject-matter of challenge in this petition.

4. Heard Mr. Vaidya, learned counsel for the petitioner. He submitted that the provisions under Sections 36 and 36-A of the Maharashtra Land Revenue Code regarding seeking previous sanction for transferring land of tribal to a non-tribal is for the safeguard of the interest of the tribal. It is mandatory that under the provisions of Section 36 of the Maharashtra Land Revenue Code to seek prior permission or sanction for transferring the land owned by the Tribal. He also pointed out that the transfer of the land by auction sale in pursuance of the execution of the award or decree is also covered in view of the proviso to Section 36-A. It is therefore, submitted that for the transfer by auction sale as in the case before hand, the condition of granting prior sanction as required under Sections 36 and 36-A of the Maharashtra Land Revenue Code was necessary and therefore, the Additional Commissioner was not within his rights to hold that it was a case of deemed sanction to regularise the transaction. He therefore, urged that the order passed by the Additional Commissioner should be set aside and order passed by the Sub-Divisional Officer should be restored directing respondent No. 4 to hand over possession of the land to the petitioner.

5. Mr. Khapre, the learned counsel appearing for respondent No. 4 supported the order passed by the Additional Commissioner. He submitted that the Collector has not complied with the order passed by the Additional Commissioner earlier. The Collector was directed to decide whether the post facto sanction could be accorded to the transaction of sale by auction in favour of respondent No. 4. The Collector, however, instead of deciding that question simply observed that, no post facto sanction could be granted and thus confirmed the order passed by the Sub-Divisional Officer holding that the transaction of sale was invalid. Therefore, the only remedy that was available to respondent No. 4 was to approach the Additional Commissioner again by preferring appeal. The Additional Commissioner, has rightly held that the transaction can be regularised on the footing of deemed sanction. Mr. Khapre, placed reliance on a decision reported in 1961 Nagpur Law Journal Note 91. In that case, it was held that sanction granted subsequent to transfer can be validated. It is observed that in Section 25(2) of the C.P. & Berar Relief of Indebtedness Act, sanction of the Deputy Commissioner, whenever obtained would validate the transfer which without such permission would be valid. When subsequent to the transfer sanction of the Deputy Commissioner was obtained, the transfer is validated. It is submitted that the Additional Commissioner was right in having regard to the peculiar and special facts and circumstances of the case that the transfer was by auction sale, as a result of proceeding of recovery of the debt, there should be a deemed sanction and the transaction should be regularised. He further submitted that respondent No. 4 has been challenging right from the beginning the caste claim of the petitioner. He pointed out that even before the Collector, when respondent No. 4 challenged the order passed by the Sub-Divisional Officer, the plea was raised challenging the caste claim of the petitioner. However, neither the Collector, nor the Additional Commissioner, Amravati considered that plea of respondent No. 4. It is submitted that the petitioner has failed to establish that he belongs to Scheduled Tribe as claimed by him. The learned counsel for respondent No. 4 further submitted that he can agitate the said issue challenging the caste claim of the petitioner even in the petition before the Court, though the order tinder challenge in this petition is in his favour. He placed reliance on the decision of this Court reported in 1980 Mh LJ Page 612 in which it is held that respondent in a writ petition is entitled to support the order passed by the Rent Controller by challenging the findings which are recorded against him. It is submitted that it is not necessary for respondent No. 4 to prefer writ petition independently for challenging the findings, the findings which are against the respondent. He submitted that the Additional Commissioner has passed the order of regularising the transfer on the assumption that the petitioner was tribal and the transfer was invalid for want of previous sanction. The Additional Commissioner did not go into the question of challenge to the caste claim of the petitioner by respondent No. 4. He therefore, submitted that it was for the Collector to decide, basically whether the petitioner is belonging to Schedule Tribe as claimed by him and for that purpose the matter should be remanded back to the Collector for deciding that question. It is submitted that after deciding that issue the Collector should decide whether the transaction should be regularised by according post facto sanction.

6. Mr. Kankale, learned A.G.P. appearing for respondent Nos. 1 and 2 supported the order passed by the Additional Commissioner. He submitted that having regard to the fact that the auction sale which took place in 1984 and it was arising out of the recovery proceedings initiated by the respondent No. 3 bank, the Additional Commissioner was justified in holding that the transaction should be regularised. He also submitted that in case it is found that the Courts below have not decided the issue of caste claim of the petitioner, then the matter should be remitted back to the Collector for deciding that question. He submitted that validity of sale of the land in favour of respondent No. 4 would depend on establishment of caste claim of the petitioner. He submitted that provisions of Sections 36 and 36-A of the Maharashtra Land Revenue Code would be attracted and auction sale would be held to be invalid only on establishing that the petitioner is tribal land owner.

7. In reply, Shri Vaidya learned counsel for the petitioner submitted that respondent No. 4 has no way challenged the caste claim of the petitioner at any stage of the proceeding and therefore, this Court in this petition cannot adjudicate that issue. He also submitted that in case this Court is deciding to remand the matter for adjudication on that issue of caste claim, then the case be remanded to the Collector restricting to the adjudication of the issue of the caste claim of the petitioner.

8. Learned counsel for the parties took me through the judgments and orders passed by the authorities below in Revenue Case No. LND-31/1985-86 of Village Vadner Bholuji. It is not disputed that initially petitioner preferred Revision No. 16/1978 before the Divisional Joint Registrar, Co-operative Societies, Nagpur challenging the confirmation of auction sale dated 9-3-1978 by Assistant Registrar of Co-operative Societies. Sub-Division Buldhana and by the order passed on 29-3-1979 by Additional Joint Registrar, the said revision was allowed. After the decision of the Divisional Joint Registrar, Co-operative Societies, Nagpur possession of the land was handed over to respodnent No. 4 on 18-6-1979. The petitioner claimed to be belonging to the Scheduled Tribe, submitted an application on 25-4-1984 to the Sub-Divisional Officer Tahsildar, Nandura for restoration of the land on the ground that the said transfer was invalid being in contravention of the Section 36-A of the Maharashtra Land Revenue Code. The Naib Tahsildar, Nandura submitted his report on 31-1-1986 in Revenue Case No. LND-31/Wadner Bholuji/1/ 84-85 stating that there was nothing on record to prove that the requisite permission for such transection of the land in dispute as contemplated under Section 36-A of the Maharashtra Land Revenue Code 1966 was obtained from the competent authority. He also submitted in his report that the application was barred by limitation.

9. The Sub-Divisional Officer, Malkapur, conducted an inquiry in Revenue Case No. LND-31/1/1984-85 initiating suo-motu proceedings after receiving the report from the Naib Tahsildar. Nandura in R. C. No. LND-31/1/84-85. As stated earlier, the Sub-Divisional Officer observed in his order dated 12-5-1986 that the applicant petitoner is a Tribal belonging to caste "Pardhi", therefore. "Scheduled Tribe Caste" and therefore the transfer of the land to respodnent No. 4 by auction sale was found to be invalid as no previous sanction was obtained by the petitioner as required under Section 36-A of the Land Revenue Code. This order came to be passed and direction had been issued for restoration of the land to the petitioner on the assumption that the petitioner was belonging to Scheduled Tribe. It is very clear that there was no adjudication on this issue as to the caste claim of the petitioner by the Sub-Divisional Officer at the initial stage when the inquiry was made.

10. It is admitted that respondent No. 4 challenged the order of the Sub-Divisional Officer by preferring appeal before the Resident Deputy Collector bearing Revenue Appeal No. LND-31-Wadner Village/1/85-86. The said appeal came to be decided by Resident Deputy Collector, Buldhana on 17-2-1988. It is significant to note that the appeal came to be dismissed on the assumption that the fact that the petitoner is "Pardhi" and thus he belongs to Scheduled Tribe. The order passed by the Sub-Divisional Officer came to be confirmed holding that the transfer was invalid, the fact remains even in the appeal decided by the Resident Deputy Collector, that there was no adjudication of the issue relating to the caste claim of the petitioner, though the same was challenged by respondent No. 4 right from the inception of the proceedings.

11. It is admitted that respondent No. 4 then preferred an appeal bearing No. LND-31 /3/1987-89 of Wadner Bholuji before the Additional Commissioner, Amravati who decided the same by order dated 5-5-1988 setting aside the order passed by the Sub-Divisional Officer passed by the S.D.O. and Resident Deputy Collector and remanded the matter back with a direction to the Collector that if the auction process can be regularised by seeking post facto sanction. He also observed that it should not be difficult for the Collector to grant permission because of the peculiar circumstances of the case, but then the Additional Commissioner did not deal with the issue relating to the caste claim of the petitioner, though the orders passed by the Sub-Divisional Officer and Resident Deputy Collector did not prefer any petition challenging the finding as to the caste claim of the petitioner. It is obvious that respondent No. 4 could not prefer any petition as ultimately the relief was granted in his favour by the Additional Commissioner by setting aside the orders passed by the authorities below.

12. The next phase in the scenario was the decision of the Resident Deputy Collector, Buldhana after remand. By his order dated 28-6-1989, he confirmed the orders passed earlier by the authorities below. He also found that the post facto sanction cannot be given. However, he did not decide the controversy as to the caste claim of the petitioner, though he observed that respondent No. 4 has challenged the fact that the petitioner belongs to Pardhi Caste and a tribe as such. In his judgment he observed that respondent No. 4 has failed to prove that he is by caste Pardhi and the counsel for the appellant has challenged the factum of caste of the petitioner contending that xerox copy of the cast certificate filed by the petitioner cannot be a piece of evidence to substantiate the caste claim of the petitioner, He however, observed that the xerox copy of the caste certificate has been attested by the Accounts Officer and so there was no hitch in accepting the same.

13. Consequent upon the said finding and observations, the matter was taken to the Additional Commissioner, Amravati as second round of litigation by respondent No. 4. It is already stated that the Additional Commissioner, Amravati by his order dated 30-3-1994 allowed the appeal and observed that the sale of the land to respondent No. 4 deemed to be with permission of the Collector and the State Government, and the same be regularised accordingly. The case was transferred to the Collector with direction. It is very pertinent to note that the Additional Commissioner also did not adjudicate on the issue of caste claim of the petitioner. It is very clear from the tenor of the order passed by the Additional Commissioner thatthe transfer of the land in favour of respondent No. 4 needed previous sanction by the Collector, but it was found that, there shall be a deemed sanction of the Collector and the Government and the transfer be regularised. This therefore, makes very clear that even the Additional Commissioner who decided the matter at the second round of litigation before him, accepted the factual position that the petitioner was tribal be-longing to Pardhi caste, but then the fact remaining that there was no adjudication on this issue as to the caste claim of the petitioner.

14. It is needless to say that the transfer in question in favour of respondent No. 4 can be declared as invalid being in contravention of the provisions of Section 36-A of the Maharashtra Land Revenue Code for want of previous sanction by the Collector, provided that the petitioner is proved to be a tribal belonging to Pardhi caste as claimed by him. Therefore, it is not necessary to go into the question of merits of the order of the Additional Commissioner which is the subject-matter of the challenge in this petition. There is much substance in the submission of Mr. Khapre, learned counsel for respodnent No. 4 that respondent No. 4 agitated this question as to the caste claim of the petitioner before the Court in this petition while supporting the order of the Additional Commissioner. He rightly placed reliance on decision reported in 1980 Mh LJ 612. In that case the question that raised before the High Court in a writ petition --Whether the respondent is entitled to support the order passed by the Rent Controller by challenging the findings which were recorded against him. It is observed that :

"In a petition filed by a party challenging the adverse order passed against him in appeal arising out of the order passed by the Rent Controller, the respondent in such petition can support the order passed by the Rent Controller even on findings which were pronounced against him. When a landlord seeks grant of permission under the C. P. and Berar Letting of Houses and Rent Control Order for determination of the lease on more grounds than one as provided in Clause 13(3) of the Order and if permission is granted to him on some grounds, negativing others, the order is wholly in favour of the landlord so far as the ultimate relief which he prayed for is concerned and he could not have appealed against the adverse findings simply by way of criticism of the Judgment."

It is further observed that a right of appeal is conferred to get an order set aside or out of the way. Even if a person has a grievance against a finding he cannot come by way of appeal unless he challenges the order itself and wants to get it interfered with. Or unless it is held this way, even if the order is entirely in favour of a party, he would be required to file an appeal against a finding if the other side were to appeal against the order as it is. On general probe the High Court observed that party who has an order in its favour is entitled to show that the order is justified on some grounds which was decided it in the Court below. Therefore, it is very clear that respondent can agitate the plea as to the challenge to the caste claim of the petitioner while supporting the order passed by the Additional Commissioner, Amravati.

15. The learned counsel for the respodnent No. 4 submitted that there has been no adjudication as to the caste claim of the petitioner at any stage of the proceeding. This submission of the learned counsel for respondent No. 4 holds good as it is found that there has been specific challenge by the respondent by raising a contention that the petitioner was not a Tribal. In earlier part of the judgment, I have pointed out how the Courts below have dealt with this question. The Sub-Divisional Officer as also the Resident Deputy Collector, Buldhana found the transfer as invalid on the footing that the petitioner was tribal and this fact is being admitted by the respondent as such. It is only the Resident Deputy Collector, when the matter was before him at the second round of litigation, that he found that the petitioner was a Tribal as he was satisfied with the xerox copy of the caste certificate of the petitioner issued as a sufficient piece of evidence to establish that the petitioner was a tribal belonging to Scheduled Tribe. However, it is found that there was no adjudication of the caste claim as such as required by law. It is already pointed out that the Additional Commissioner passed the order on the assumption that the caste claim of the petitioner was admitted by the respondent.

16. In order to establish the caste claim, the learned counsel for respodnent No. 4 rightly placed reliance on the decision reported in 1994 Mh LJ 1710. The matter before the High Court was a writ petition challenging the orders passed in respect of restoration of the land of a tribal wherein the claim was resisted on the ground that the respondent -- occupant was not a Tribal. The learned Assistant Collector before whom the matter was, mainly relied upon the certificate issued by the Executive Magistrate in favour of respondent No. 2 and proceeded to discuss elaborately what meaning would be assigned to a tribal in the context of the facts of the case and concluded that the respodnent No. 2 was a tribal. Before the High Court the challenge was to that conclusion of the Collector as to the caste claim as a tribal. The High Court observed that : The Assistant Collector had decided the matter as far back as on 25-10-1976 and the Tribunal had decided it as far back as on 3rd January 1977. At that time, the Government did not have any machinery for the verification of tribal claims of the persons claiming to be tribals. This Court as well as the Supreme Court, were required to deal with such matters/points in a number of cases, as a result of which, the Scrutiny Committee has been appointed under the Directorate of Tribal Research and Training, Pune-1. That Committee consists of the experts who are well-acquainted with the subject. The aforesaid committee is considered, presently, as the competent authority to verify the tribal claims, even though the Taluqua Executive Magistrate and other authorities have issued certificates earlier in that context. The certificates so issued by the other authorities are since required to be verified by the aforesaid Committee before a conclusion could be arrived at as to whether or not, a person was a tribal. We cannot find fault with the efforts made by the Assistant Collector or the Maharashtra Revenue Tribunal in determining whether or not, the respondent No. 2 belonged to any Scheduled Tribe. In deed, the judgment delivered by the Assistant Collector exhibits the efforts put in by him to arrive at his own conclusion. But, in the circumstances discussed above, we cannot accept the aforesaid finding as conclusive unless and until the same is got verified at the hands of the Scrutiny Committee. On that count, the impugned orders needs to be quashed and set aside and directions are required to be given to the authorities concerned to refer the matter to the Scrutiny Committee for verification of the Tribe Claim."

In the case beforehand having regard to the observations of the High Court, as quoted above, we cannot, accept the finding of the Resident Deputy Collector as conclusive unless and until the certificate is got verified at the hands of the Scrutiny Committee. It is much more so having regard to the fact that the Resident Deputy Collector has placed reliance on the xerox copy of the certificate. That cannot be sufficient proof to establish the caste claim of the petitioner. Therefore, it has to be said that the authorities below, have failed to adjudicate the caste claim of the petitioner. It follows therefore that the petitioner has failed to establish that he belongs to Scheduled Tribe.

17. It is clear that the findings of the authorities below that the transfer in favour of the respondent is invalid for want of sanction cannot sustain, as there is no adjudication of the issue of tribe claim of the petitioner. On that count also the order of the Additional Commissioner under challenge holding that the sanction by the Collector and by the Government was the deemed and regularised, cannot sustain. Therefore, the impugned order passed by the Additional Commissioner dated 30-3-1994 and that of Resident Deputy Collector dated 28-6-1989 are liable to be quashed and set aside. The original proceedings initiated by the Sub-Divisional Officer Buldhana bearing No. Revenue Case No. LND-31/I/1985-86 is remanded to Collector Buldhana with a direction to decide the matter afresh as expeditiously as possible with a direction that he should refer the certificate issued in respect of tribal claim of the petitioner to Scrutiny Committee prior to decide the claim of the petitioner. The Collector shall decide the application of the petitioner for restoration after the decision of the Scrutiny Committee.

17A. In the light of the considerations, the writ petition is allowed. Impugned orders are quashed and set aside. The matter is sent back to the Collector, Buldhana with a direction to refer the caste certificate issued in favour of the petitioner regarding his caste claim, to the caste scrutiny committee duly empowered to decide the claim and then after the caste claim is decided, the Collector shall decide the matter as expeditiously as possible and in any event within six months. The Collector to decide the validity of the transfer and the claim of the petitioner for restoration of the land independently without being influenced by the observtions made by the Additional Commissioner. The parties are directed to appear before the Collector, Buldhana on 29-10-2001. The record and proceedings of the case be remitted to the Collector Buldhana communicating the order passed by this Court. Rule is made absolute accordingly. No orders as to costs.