Somaji Madan Patil, (Died Through ... vs Sumersing Batesing Naik, Decd. By ...
2003 Latest Caselaw 205 Bom

JUDGMENT

Marlapalle, J.

1. This letters patent appeal arises from the decision of this Court [Single Bench] in writ petition No. 1914 of 1989 rendered on 18th of September, 1992. The Appellants were the Petitioners and their challenge to the order dated 30th September, 1988, passed by the Additional Commissioner, Nashik Division, Nashik, in Land Reference (Adivasi) - Revision Case No. 109 of 1986, was turned down.

2. The agricultural land located in Survey No. 117 of village Chikhali Digar, admeasuring 6 Hectares 5 Ares, originally belonged to one Shaikh Batesing Shaikh Lakhasing Naik and it was a Bhil Inam Land. The British Government had granted this land to Shaikh Lokhasing Naik in 1906 and a Sanad to the same effect was issued in his favour. On his demise the land came to be granted to Shaikh Batesing S/o Lokhasingh on 15th October, 1935 and a Sanad was issued. The said land was put under the supervision and care of the Government under the Bombay Court of Wards Act, 1905 (for short, the Wards Act) and in the year 1942 it was leased for cultivation to the original Appellants Somaji Madan Patil and Babu Madan Patil, by way of a specific written agreement and accordingly for the agricultural season 1942-43 the said land was under the cultivation of the Appellants. The Bombay Bhil Naik Inams Abolition Act, 1955 (for short, the Abolition Act) was brought into force with effect from 1st August, 1955 and consequently all the Bhil Naik Inams prevailing in the district of West Khandesh and Nashik, in the erstwhile State of Bombay, came to be resumed by the Government, on abolition of the Bhil Naik Inams. The Appellants claim that under the scheme, framed by the State Government under section 5 of the Abolition Act, the subject land was regranted to them as they were cultivating it and on the basis of the same they continued to cultivate the subject land. On the enactment of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, the Bombay Tenancy Act) they were issued the certificate of ownership under section 32M of the Bombay Tenancy Act on payment of price amount and they thus became the conclusive owners of the land with effect from 1st April, 1957.

3. The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, the Restoration Act) came into force from 1st November, 1975 with an objective to take steps forthwith for restoring certain lands to persons belonging to the Scheduled Tribes. It appears that on the demise of Shaikh Batesing on 21st December, 1954 his four sons along with their mother became his heirs and in some civil proceedings as well as election petitions Batesings sons had claimed the status of being Scheduled Tribes. This plea was turned down by the trial Court and the appeal thereon also failed on the ground that there was no proof placed on record by the plaintiffs to prove that they belonged to the Bhil, Scheduled Tribe (Regular Civil Suit No. 37 of 1970, Appeal No. 230 of 1972).

4. However, sometimes in 1978 the Tahsildar, Shahada instituted inquiries under section 3 of the Restoration Act and these were concluded with a finding that there was no transfer of the land belonging to Batesing within the meaning of section 2 (1) (i) of the Restoration Act and, therefore, there was no occasion to transfer such land to the heirs of Batesing. This order was challenged in Revision Application No. 13 of 1979 under section 7 of the Restoration Act before the Maharashtra Revenue Tribunal and the same was decided on 29th September, 1980 by remanding the original inquiries for fresh considerations. So far as the Appellants are concerned, the inquiry came to be registered as Adivasi Case No. 8 of 1981. Notices were issued to the Appellants as well as the two sons of late Batesing i.e. Sumersing and Chandarsing.

5. After hearing all the parties concerned and considering the arguments advanced by them in their written replies, the Tahsildar, Shahada, by his order dated 26th September, 1985 held that there was no transfer of the subject land within the meaning of section 2 (1) (i) of the Restoration Act and, therefore, there was no occasion for restoration of the land to the Applicants who were the legal heirs of late Batesing. Though this order was appellable under section 6 of the Restoration Act no such appeal was filed.

6. Sometimes in the year 1986 the Divisional Commissioner at Nashik initiated suomotu proceedings by invoking the provisions of section 7 of the Restoration Act and the said proceedings came to be registered as Adivasi Review Case No. 109 of 1986. Notices were issued to all the parties concerned and they had filed their respective replies. By considering the rival contentions the Additional Divisional Commissioner at Nasik, vide his order dated 30th September, 1988 held that the legal representatives of Batesing were Tribals, the suit land was not transferred in the name of the non-tribal completely, absolutely with rights, interest and title prior to 1st April, 1957 and, therefore, the order of the Tahsildar dated 26th September, 1985 was set aside. He further directed the restoration of the land to the Tribal transferer i.e. Chandarsing and Sumersing Naik.

7. The following issues arise for our decision in the instant Letters Patent Appeal:

(i) Whether the provisions of the Bombay Tenancy Act are applicable to the suit land?

(ii) Whether there was a transfer of the suit land within the meaning of section 2 (1) (i) of the Restoration Act?

(iii) Whether the legal representatives of late Batesing are Bhil - Scheduled Tribes?

(iv) Whether the order passed by the Divisional Commissioner on 30th September, 1988 could be sustained in law?

8. As per section 2 (a) of the Wards Act the term "Government Ward" shall mean any person of whose property or of whose person and property, the Court of Wards may, for the time being, have the superintendence under the Wards Act. Under section 3 of the Wards Act the Collector shall be the Court of Wards for the limits of his district provided that the State Government may, if it thinks fit, by notification in the official gazette, appoint a special officer to be the Court of Wards for a division or constitute a Board consisting of two or more officers to be the Court of Wards for a division. The Court of Wards has the powers to assume the superintendence of property of any landlord with the previous sanction of the State Government and such sanction cannot be called in question, in any Court, except in the case of a landlord or pension holder disqualified under section 5 (1) (a) of the Wards Act. As per section 9 of the Wards Act any landholder may apply in writing to the State Government to have his property placed under the superintendence of the Court of Wards. Section 5 lists the landholders disqualified to manage their own property and no appeal shall lie from any such declaration in case of the females and/ or persons by the District Court. Sections 26 to 29 of the Wards Act read thus:

"26. The Court of Wards, or the manager (if any) appointed by it under this Act, shall manage the property of every Government ward under its superintendence or under his management diligently and faithfully for the benefit of the Government ward, and shall in every respect act to the best of its or his judgment for the Government wards interest as if the property were its or his own.

27. The Court of Wards may sell, exchange, mortgage, charge or let the property of a Government ward, and may do all such things as it may judge to be best for the benefit of the property and the advantage of the Government ward:

Provided that -

(a) the previous sanction of the [Commissioner] shall be required to any sale, exchange or mortgage of, or charge on, immovable property and to any lease of such property for a term exceeding ten years, and

(b) where [one-third] of the immovable property of a Government ward has been sold or exchanged no further sale or exchange shall be made.

28. The Court of Wards may summarily evict in the manner specified in section 202 of the Bombay Land Revenue Code, 1879, any person occupying, or in possession of, any immovable property under its superintendence, to the use and occupation of which he has ceased to be entitled under any of the provisions of that Code, or which he uses or occupies in contravention of any of the provisions of this Act.

29. For the purpose of the recovery of rents, profits and other sums due in respect of property under the superintendence of the Court of Wards (whether such arrears become due before or after the assumption of such superintendence) the Court of Wards shall have all the power possessed by a Collector under the law for the time being in force for the recovery of land-revenue due to Government, including the power conferred by section 176 of the Bombay Land Revenue Code, 1879."

9. The Bombay Tenancy Act recognises the rights of a tenant on the agricultural land and it protected the rights of the ordinary tenants as well as the protected tenants as on the tillers day i.e. 1st April, 1957. Section 32 provides for purchase of land by the tenants and states that on the first day of April, 1957 (the tillers day) every tenant shall, subject to the other provisions of the said section and the provisions of the next succeeding sections, be deemed to have purchased from his landholder, free of all encumbrances subsisting thereon on the said date the land by him as a tenant, if

-

(a) such a tenant is a permanent tenant thereof and cultivates the land personally;

(b) such tenant is not a permanent tenant but cultivates the land leased personally, and

(i) the landholder has not given notice of termination of his tenancy under section 31 or

(ii) notice has been given under section 31 but the landholder has not applied to the Mamlatdar on or before the 31st day of May, 1957 under section 29 for obtaining possession of the land, or

(iii) the landlord has not terminated his tenancy on any of the grounds specified in section 14 or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of May, 1957 under section 29 for obtaining possession of the land.

Under section 32M of the Bombay Tenancy Act the Tribunal/ Tahsildar is required to issue notice to all the parties concerned and determine the price of the land to be paid by the tenants. Section 88 of the Bombay Tenancy Act has exempted Government lands and certain other lands from the applicability of the Bombay Tenancy Act. It reads thus:

"Save and otherwise provided in subjection (2) nothing in the foregoing provisions of this Act shall apply (a) to lands belonging to or held on lease from the Government; (b) to any area which the State Government may from time to time by a notification in the official gazette specified as being reserved for nonagricultural or industrial development; (c) to an estate or land taken under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the Guardians and Wards Act, 1890; (d) to an estate or land taken under management by the State Government under Chapter-IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in section 66, 80A, 82, 83, 84, 85, 86 and 87.

10. As per section 2 (1) (ii) of the Abolition Act "Bhil Naik Inam" means the grant of a village or land for service useful to Government on political considerations in accordance with the terms and conditions specified in Government Resolution in the Revenue Department No. 5763 dated the 19th of August, 1902 and entry in the alienation register kept under section 53 of the Code as "Class VI - Village Servants useful to Government" and includes the land granted in Marod village of Navapur Taluka under Government order in the Revenue Department No. 288 dated 11th January, 1919. The term "Code" means the Bombay Land Revenue Code, 1879, which is replaced by the Maharashtra Land Revenue Code, 1966 and the term "Inam Land" means a land held by an Inamdar under as Bhil Naik Inam. Sections 4 and 5 of the said Act read thus:

"4. Notwithstanding any settlement, grant, Sanad or order or any law for the time being in force, with effect from and on the appointed date -

(1) all Bhil Naik Inams shall be deemed to have been abolished, and

(2) any liability to render service and all other incidents appertaining to such Inams are hereby extinguished.

(3) All inam villages and inam lands are hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder and the provisions of the Code and the rules relating to unalienated lands shall apply to such lands.

5.(1) In an inam village and inam land -

(i) in the case of land which is not uncultivated on the appointed date and is in the actual possession of an Inamdar or in the possession of a person holding through or from him other than an inferior holder referred to in clause (b) below, such Inamdar, and

(ii) in the case of land, which is not uncultivated on the appointed date and is in the possession of an inferior holder on payment of annual assessment only to the Inamdar, such inferior holder, shall be primarily liable to the State Government for the payment of land revenue due in respect of such land and shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant under the Code or the rules made thereunder or any other law for the time being in force:

Provided that the Inamdar, in respect of the land which is in the possession of a person holding through or from him and the inferior holder in respect of the land in his possession shall be entitled to the rights of an occupant on payment to the State Government of such occupancy price as may be fixed by the State Government by special or general order but not exceeding an amount equal to six times the amount of the full assessment of such land within the prescribed period.

(2) If the Inamdar or the inferior holder fails to pay the occupancy price within the prescribed period he shall be deemed to be unauthorizedly occupying the land and shall be liable to be summarily ejected in accordance with the provisions of the Code.

(3) The occupancy of the land granted under this section shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may, by general or special order, determine.

Explanation. - For the purposes of this section and section 6, land shall be deemed to be uncultivated if it has not been cultivated for a continuous period of three years immediately before the appointed date."

The Government of Maharashtra had issued resolutions laying down the policy for regrant as contemplated under section 5 of the Abolition Act and the regrant was required to be made in favour of the landholder if he was cultivating the land on the appointed day or to the tenant who was in actual cultivation of the land on the appointed day. The appointed day undisputedly is 1st of August, 1955.

11. Sections 3, 4 and 7 of the Restoration Act, which are relevant for the present considerations are reproduced as under:

"3.(1) Where due to transfer -

(a) the land of a Tribal-transferor is held by a non-Tribal-transferee, or

(b) the land acquired in exchange by a Tribal-Transferor is less in value than the value of the land given in exchange, and the land so transferred is in possession of the non-Tribal-transferee, and has not been put to any non-agricultural use on or before the 6th day of July 1974, then, notwithstanding anything contained in any other law for the time being in force, or any judgment, decree or order of any Court, Tribunal or authority, the Collector either suo motu at any time, or on the application of a Tribal-transferor made, [within thirty years] from the commencement of this Act shall, after making such inquiry as he thinks fit, direct that -

(i) the lands of the Tribal-transferor and non-Tribal-transferee so exchanged shall be restored to each other; and the Tribal-transferor, or as the case may be, the non-Tribal-transferee shall pay the difference in value of improvements as determined under clause (a) of sub-section (4), or

(ii) the land transferred otherwise than by exchange, be taken from the possession of the non-Tribal-transferee, and restored to the Tribal-transferor, free from all encumbrances and the Tribal-transferor shall pay such transferee and other persons claiming encumbrances the amount determined under clause (b) of sub-section (4) :

Provided that, where land is transferred by a Tribal-transferor in favour of non-Tribal-transferee before the 6th day of July 1974, after such transferee was rendered landless by reason of acquisition of his land for a public purpose, then only half the land so transferred shall be restored to the Tribal-transferor.

[Explanation. - Where the lands of a Tribal and non-Tribal are purported to have been transferred to each other, otherwise than by exchange, but the date on which the instruments for such transfers are registered is the same or, where such instruments are registered on different dates, but the interval between the dates of registration is thirty days or less, then, notwithstanding anything contained in such instruments, for the purposes of this section, such transfers shall be deemed to be by way of exchange.]

[(1A) to (2) ... ... ... ... ... ... ]

(3) The Tribal-transferor shall, notwithstanding anything contained in any law for the time being in force in the State, be entitled to restoration of land under this section only if he undertakes to cultivate the land personally and to pay such amount to the non-Tribal-transferee as the Collector may, under the provisions of sub-section (4), determine :

Provided that, in the case of a minor, the undertaking may be given by his guardian, and in the case of any other person under disability by his authorised agent.

(4) (a) Where lands are restored under clause

(i) of sub-section (1), the Collector shall in the prescribed manner determine the value of the improvements, if any, made thereon after such exchange by the Tribal-transferor or the non-Tribal-transferee. If the value of the improvements, if any, made by a Tribal-transferor is found to be more, the difference shall be payable by the non-Tribal-transferee to the Tribal-transferor; and if the value of the improvements, if any, made by the non-Tribal-transferee is found to be more, the difference shall be payable by the Tribal-transferor to the non-Tribal-transferee.

[ (b) to (g) ... ... ... ... ... ]

4. Where any land of a Tribal is, at any time on or after the 1st day of April 1957 and before the 6th day of July 1974, purchased or deemed to have been purchased or acquired under or in accordance with the provisions of the relevant tenancy law by a non-Tribal-transferee or where any acquisition has been regularised on payment of penalty under such law and such land is in possession of a non-Tribal-transferee and has not been put to any non-agricultural use on or before the 6th day of July 1974, then the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu at any time or on an application by the Tribal made [within thirty years] from the commencement of this Act and after making such inquiry as he thinks fit, direct that the land shall, subject to the provisions of sub-section (4) of section 3, be restored to the Tribal free from all encumbrances and that the amount of purchase price or a proportionate part thereof, if any, paid by such non-Tribal-transferee in respect of such lands in accordance with the relevant tenancy law shall be refunded to such non-Tribal-transferee either in lump sum or in such annual installments not exceeding twelve (with simple interest at 4.1/2 per cent. per annum) as the Collector may direct. The provisions of clauses (d), (e), (f) and (g) of sub-section (4) of section 3 shall, so far as may be, apply in relation to the recovery of the amount from the Tribal and payment thereof to the non-Tribal-transferee and the persons claiming encumbrances, if any :

Provided that, where land is purchased or acquired by a non-Tribal-transferee before the 6th day of July 1974, after such transferee was rendered landless by reason of acquisition of his land for a public purpose, then only half the land so purchased or acquired shall be restored to the Tribal-transferor.

7.Where no appeal has been filed within the period provided by sub-section (2) of section 6, the Commissioner may suo motu or on the direction of the State Government at any time -

(a) call for the record of any inquiry or proceeding of any Collector for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of, such Collector, as the case may be, and

(b) Pass such order thereon as he thinks fit : Provided that no such record shall be called for after the expiry of three years from the date of such order except in cases where directions are issued by the State Government; and no order of the Collector shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard."

12. Section 6 of the Restoration Act provides for an appeal and in the instant case there was no appeal made against the order of the Tahsildar who dropped the inquiry initiated under section 3 on the ground that there was no transfer of the subject land within the meaning of section 2 (1) (i) of the said Act. The term "Tribal" means a person belonging to a Scheduled Tribe within the meaning of the explanation to section 36 of the Maharashtra Land Revenue Code and includes his successor in interest. Whereas the term "non-tribal-transferee" includes his successor in interest and if he or his successor has, on or after the 15th day of March, 1971 transferred the land in favour of any person, whether a tribal or non-tribal, includes also such persons. While dealing with the constitutional validity of the Restoration Act the Supreme Court in the case of the "Lingappa Pochanna Appelwar V/s State of Maharashtra and others" held, inter alia, that the Act is nothing but a remedial measure in keeping with the policy of the State for rendering social and remedial justice to the tribals whose lands were taken away by way of transfer under the ordinary laws in various ways by following the process of forms of law. However, the result was devastating and by such unequal transaction which was grossly unconscionable and unjust, tribals lost their lands to non-tribals and were rendered landless.

13. The Tahsildar in his order dated 26th September, 1985, while dropping the inquiry proceedings under section 3 of the Restoration Act recorded a finding that the subject land was granted on lease to the Appellants by the Court of Wards from the year 1942-43 and subsequently on abolition of the Bhil Naik Inam under the Abolition Act, the land was regranted to them. These findings have not been disturbed by the Additional Commissioner in his order dated 30th September 1988. It was noted by the Additional Commissioner that the agreement for lease was only for a period of ten years and on expiry of the said period the Appellants continued to be in illegal possession. The regrant made in favour of the Appellants on abolition of the Bhil Naik Inam with effect from 1st August, 1955 and the mutation entries consequently carried out in the record of rights, have also been noted by him. There is no dispute that the Appellants have been in continuous possession of the subject land right from 1942-43 and the land owner or his legal representatives had never received the possession either on expiry of the initial lease period of ten years or by way of regrant in their favour under section 5 of the Abolition Act at the instance of the State Government. The suit land was handed over to the Appellants by the Court of Wards and there is nothing on record to show that it had ceased to be a property under the supervision of the Court of Wards till it was regranted to them. At no point of time proceedings under sections 27 to 29 of the Wards Act were initiated against the Appellants though they remained in continuous possession even after the expiry of the initial lease period of ten years. Under these circumstances, we are of the considered opinion that, the subject land was held on lease from the Government and/ or it was a land taken under the management of the Court of Wards till it was regranted to the Appellants consequent to the Abolition Act and, therefore, as on 1st of April, 1957 (tillers day) the provisions of the Bombay Tenancy Act could not be attracted to this land in view of the scheme of section 88 of the said Act. The ownership certificate purportedly granted to the Appellants under section 32M of the Bombay Tenancy Act could not have been issued under the Bombay Tenancy Act and issuance of such a certificate by the Tahsildar or any other Revenue Authority in favour of the Appellants any time after 1st August, 1955 or after the subject land was regranted to them under the Abolition Act, is of no consequence in the eyes of law.

14. It has been submitted by the learned counsel for the Appellants that right from 1942-43 till the inquiry was dropped by the Tahsildar vide his order dated 26th September, 1985 the appellants were in continuous possession of the subject land and there was no transfer within the meaning of section 2 (1) (i) of the Restoration Act and, therefore, the Tahsildar rightly dropped the inquiry initiated under section 3 of the said Act. He further submitted that when there was no transfer within the meaning of Restoration Act, the Divisional Commissioner acted without jurisdiction to invoke the provisions of section 7 of the said Act. He also submitted that there was no transfer from 1st April, 1957 to 6th of July, 1974 in favour of the Appellant-tenants as they continued in uninterrupted possession right from 1942 onwards and, therefore, the Restoration Act was not applicable to the subject land.

15. In rebuttal Shri Shah, the learned senior counsel for the legal representatives of Batesing submitted that though the lease granted in favour of the Appellants by the Court of Wards in 1942 enabled them to be in continuous possession for a period even beyond ten years and this lease did not amount to a transfer on or after 1st April, 1957 as defined under section 2 (1) (i) of the Restoration Act, the State Government has inherent powers under section 4 of the Restoration Act to restore the land of the tribals purchased or deemed to have been purchased in accordance with the provisions of the relevant tenancy law i.e. the Bombay Tenancy Act by a non-tribal transferee. Reliance has been placed on the purchase certificate issued in favour of the Appellants under section 32M of the Bombay Tenancy Act on 30th September, 1963 in this regard and it has been contended that the purchase transaction between the tenant and the landlord was completed by issuance of this certificate and therefore the subject land fell within the ambit of section 4 of the Restoration Act. The Divisional Commissioner has rightly exercised his powers under section 7 and restored the land to the land owners and, therefore, no interference is called for in the order dated 30th September, 1988 passed by him, urged the learned senior counsel.

16. The record shows that after the Tahsildar dropped the proceedings under section 3 of the Restoration Act vide his order dated 26th September, 1985 the Divisional Commissioner initiated suo-motu revision proceedings under section 7 of the Restoration Act and by his order dated 30th September, 1988, which was impugned in the writ petition before this Court, he accepted the Tribe claim of Batesing and held that the subject land was not transferred in the name of the non-tribal completely and absolutely with rights, interest and title prior to 1st April, 1957 and therefore the order of the Tahsildar dated 26th September, 1985 was set aside. The Additional Commissioner further directed to restore the land to the tribal-transferor.

While the Additional Commissioner did not nullify the findings of the Tahsildar that there was no transfer within the meaning of section 2 (1) (i) of the Restoration Act, he relied upon the provisions of section 5 of the Transfer of Property Act and held that the subject land was not transferred completely and permanently to the Appellants prior to 1st April, 1957. This approach of the Additional Divisional Commissioner cannot be sustained. When he had initiated suo motu revision proceedings by invoking the powers under section 7 of the Restoration Act, it was incumbent upon him to record his findings in regard to the transfer as defined within the meaning of section 2 (1) (i) of the Restoration Act and he could not have referred to the term "transfer" as defined under section 5 of the Transfer of Property Act. The learned counsel for the Respondents conceded that so far as the transaction of lease was concerned there was no transfer on or after 1st April, 1957 of the subject land in favour of the Appellants within the meaning of section 2 (1) (i) of the Restoration Act. However, after the inquiry under section 3 of the Restoration Act was dropped by the Tahsildar the provisions of section 4 of the Restoration Act can be invoked by the Collector either suo motu at any time or on an application made by the Tribal within 30 years from the commencement of the said Act and after making such inquiry as it thinks fit the Collector has powers to direct that the land shall, subject to the provisions of sub-section (4) of section 3, be restored to the Tribal free from all encumbrances. We shall consider this submission a little later but for the time being we hold that there was no transfer of the suit land within the meaning of section 2 (1) (i) of the Restoration Act and the Tahsildar had rightly dropped the proceedings.

17. Regarding the tribal status of Batesing and his legal representatives it was held, in Civil Appeal No. 230 of 1972 filed by Sarawarsing S/o Batesing, by the learned Assistant Judge, Dhule that Sarawarsing had failed to prove that he was a Bhil by caste and, therefore, was exempted from payment of requisite court fee stamps on the memorandum of appeal registered under Civil Appeal No. 230 of 1972. Similarly, in revision No. 2, 3 and 4 of 1986 decided by a common judgment dated 16th of April, 1984 the learned Member of the Maharashtra Revenue Tribunal at Mumbai had held that Smt. Gangubai w/o Shaikh Batesing represented through her power of attorney holder Shri Vikramsing S/o Batesing could not prove that she was a Bhil by caste and, therefore, a tribal as mentioned at serial No. 8 in Part-IX of the IInd Schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. It appears that when this group of appeals was decided by a common judgment on 16th May, 1984 by the learned Member of the Tribunal, other group of appeals, which was filed by the remaining legal representatives of late Batesing was pending before the Maharashtra Revenue Tribunal and could not be decided on or prior to 16th May, 1984. While this second group was pending for decision by the Tribunal a caste certificate came to be issued by the Executive Magistrate, Shahada on 23rd January, 1985 in favour of Sumersing S/o Batesing Naik and this was placed before the President of the Maharashtra Revenue Tribunal, who heard the other group of appeals pending and on the basis of the said certificate he recorded a finding that Sumersing Batesing was a Bhil and a Scheduled Tribe. The Additional Divisional Commissioner in his impugned order dated 30th September, 1988 also placed reliance on the said certificate. It is well settled that mere issuance of caste certificate is not the conclusive proof regarding the social/ tribal status and such caste certificates are subject to verification by the competent committee. However, when the Additional Divisional Commissioner passed the impugned order there were conflicting judicial findings regarding the tribal status of the legal representatives of Batesing though it was conclusively proved that Batesing and his father professed Islam.

18. Professing Islam by itself cannot lead to the conclusion that such persons are not Scheduled Tribes. The judicial findings recorded by the learned Assistant Judge in Appeal No. 230 of 1972 and by the learned Member of the Maharashtra Revenue Tribunal by his judgment dated 16th May, 1984 were in the absence of any evidence in support of the tribal claim and the subsequent finding recorded by the President of the said Tribunal is based on the caste certificate issued by the Executive Magistrate, Shahada on 23rd January, 1985 which has been relied upon by the Additional Divisional Commissioner as well. We hold that there is no conclusive proof regarding the tribal status of Batesing and his legal representatives and the same can be done by a competent committee constituted by the State Government for this purpose, as and when so required by subjecting the caste certificate dated 23rd January, 1985 for verification.

19. Shri Shah, the learned senior Counsel, by referring to the provisions of section 4 of the Restoration Act submitted that if regards be had to the certificate of purchase under section 32M of the Bombay Tenancy Act issued in favour of Shri Madan Bhuta Patil on 30th September, 1963 by the Agricultural Lands Tribal and Mamlatdar at Shahada the subject land would be deemed to have been purchased or acquired by the appellants in accordance with the provisions of the Bombay Tenancy Act and, therefore, the Additional Divisional Commissioner was right in initiating a suo motu inquiry which culminated in the impugned order dated 30th September, 1988. These submissions do not impress us.

Section 7 of the Restoration Act states that the Commissioner may suo motu or on the directions of the State Government may exercise the powers of revision where no appeal has been filed within the period provided under section 6 (2) of the said Act. Whereas, section 4 of the Restoration Act states that the Collector shall notwithstanding anything contained in any law for the time being in force either suo motu at any time or on application made by the tribal within 30 years from the commencement of the Act restore the land to the tribal after making such inquiry as he thinks fit if the said land belonging to a tribal was purchased or deemed to have been purchased by a non-tribal in accordance with the provisions of the relevant tenancy law. The power to be exercised by the Collector under section 4 of the Restoration Act is different from the revision powers to be exercised by the Commissioner under section 7 of the said Act. The term "Collector" has been defined under section 2 (1)(b) of the Restoration Act and it includes an Additional Collector and an Assistant or Deputy Collector exercising the powers or discharging the duties of Collector under the Code and also any other officer not below the rank of a Tahsildar especially empowered by the State Government to exercise the powers and perform the duties of the Collector under the Act. Whereas, section 2 (1) (c) defines the term "Commissioner" which includes an Additional Commissioner. From the order passed by the Additional Divisional Commissioner on 30th September, 1988 it is clear that he had exercised the revision powers under section 7 and he held that the transfer of the subject land in favour of the appellants prior to 1st April, 1957 was incomplete and the said transfer became absolute or perfect only after the certificate of purchase was issued under section 32M of the Bombay Tenancy Act and mutation entry No. 222 dated 13th November, 1963 was effected. It was for these reasons he held that there was a transfer by way of deemed purchase after 1st April, 1957 and hence the provisions of section 3 of the Restoration Act were applicable. These findings also show that the Divisional Commissioner was mindful of the provisions of section 4 of the said Act which have been relied upon by Shri Shah.

20. While we agree with the legal position that the Collector has suo motu powers under section 4 for restoration of land to a tribal, in the instant case, such a power has not been exercised by him. The Officers "Collector" and "Commissioner" have been defined under the Restoration Act and they can not be read as the same or synonymous. In addition, as we have noted a little while ago, that the certificate of purchase under section 32M of the Bombay Tenancy Act was not required to be issued in the instant case when the subject land was regranted to the Appellants prior to 1st April, 1957 on abolition of the Bhil Inam with effect from 1st of August, 1955. The subject land cannot be said to have been purchased or deemed to have been purchased by the Appellants under the provisions of the Bombay Tenancy Act.

Shri Chaudhary, the learned counsel for the Appellants has invited our attention to the decision of this Court in the case of "Puna Arjun Mali and another V/s Mana Maka Bhil and others" [(1992) 1 Mh.L.J. 46] and submitted that a deemed purchase under a statute in favour of the Appellants cannot be said to be transfer within the meaning of section 2 (1) (i) of the Restoration Act. We need not advert to this submission and more so because the power to be exercised by the Collector under section 4 of the Restoration Act is independent of the powers to be exercised under sections 3 and 7 of the said Act and we have already recorded a finding that in the instant case there was no question of the appellants being declared as deemed purchasers under the Bombay Tenancy Act as the land was already regranted to them pursuant to the provisions of the Abolition Act prior to 1st April, 1957 and they were in continuous possession right from 1942-43.

21. In the premises and for the reasons stated herein above we allow this Letters Patent Appeal and hold that the order passed by the Additional Commissioner on 30th September, 1988 and confirmed in Writ Petition No. 1914 of 1989 is unsustainable and the same is hereby quashed and set aside. We allow the Writ Petition No. 1914 of 1989 and make the Rule absolute accordingly, however, with no order as to costs.