Pandurang Shriram Gadekar vs State Of Maharashtra And Ors.
2003 Latest Caselaw 1092 Bom

JUDGMENT

S.A. Bobde, J.

1. This petition is filed by a non-tribal transferor against the order dated 31-12-1990 of the Maharashtra Revenue Tribunal, upholding the order dated 27-8-1989 passed by the Tahsildar, Gondia. By the said order dated 27-8-1989, the Tahsildar, Gondia, on observing that there are no heirs of the tribal transferor, has directed that the property should vest in the State Government under Section 5A of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the "Act").

2. The land in question is about 2.60 acres at village Kudwa, taluka Gondia, District Bhandara. It was indisputably owned and possessed by Kashiram s/o Laxman Parade, who was the tribal transferor. This was land was purchased by one Shriram s/o. Damodar Gadekar and his brother Shankar Gadekar under a registered sale deed dated 17-6-1966 from the said Kashiram s/o. Laxman Parade and they were placed in possession thereof immediately after its purchase. The said Kashiram s/o Laxman Parade died in the year 1969. By now there is no dispute that Kashiram died sometime in the year 1969-70 without any legal heirs. It must be noted that at one stage one Jiwan s/o Yadav Parade claimed to be an heir of the deceased Kashiram. However, the Maharashtra Revenue Tribunal by its order held that he is not a legal heir.

3. After coming into force of the Act, the Tahsildar, Gondia, initiated suo motu proceedings for restoration of the land to the tribal transferor. Notices of the proceedings were served on the petitioner, who has a half share in the land purchased from Kashiram Parade. The proceedings we're pending till the year 1982-83. In the meantime, Shriram died on 4-2-1978 leaving behind the petitioner, his brother, sister and mother as heirs. The other half share which had been purchased by Shriram, the brother of Shankar, was also purchased by the petitioner. On 26-4-1983 the Tahsildar, Gondia, passed an order directing restoration of the land to one Jiwan alleged to be the heir of Kashiram. This order was challenged by the petitioner in appeal before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal held that Jiwan was not the heir of Kashiram Parade. Thereupon the Maharashtra Revenue Tribunal remanded the matter back to the Tahsildar with certain directions. After the remand, the said revenue case was renumbered as R. C. No. 415-IND-31/82-83 and decided by the Tahsildar, Gondia, by order dated 27-8-1989.

4. Mr. Borkar, learned counsel for the petitioner, submitted that the initiation of the proceedings under the Act in the year 1976 was void since the tribal transferor was not alive. The main purpose of the Act is to restore the land to the tribal transferors. Since there was no tribal transferor in existence on the date of the initiation of the proceedings nor any heir, it is submitted that the proceedings have not been validly initiated at all.

5. Act No. XIV of 1975 i.e. the Restoration Act was enacted "for the restoration of certain lands to persons belonging to the Scheduled Tribes". It is clearly not an Act intended for acquiring lands transferred by tribal transferors to non-tribals.

6. Section 3 of the Act provides that where the land is transferred to a non-tribal transferee and has not been put to any non-agricultural use on or before 6-7-1974, the Collector may, after due inquiry, direct that the lands should be restored to a tribal transferor, subject to the other provisions of the section. Sub-section (3) provides that the tribal transferor shall be entitled to restoration of the land 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 determine. Thus, from the preamble to the Act as well as its provisions, it is clear that the main object of the Act is to restore the land to tribal transferors. It must, therefore, follow that as it turns out in the present case that if on the date of commencement of the proceedings, the tribal transferor is not in existence and there is no legal heir to whom the land can be restored, the initiation of the proceedings itself must be taken to be in contravention of the Act.

7. I find from the facts of the present case that when the proceedings were initiated in the year 1976, Kashiram, the alleged transferor, was no more. He died sometime in the year 1969-70. Though one Jiwan claims to be his heir, it has been found that he is not a legal heir. It is, therefore, clear that the proceedings could not have been initiated by the Tahsildar for restoration of the land to a tribal transferor since there was no tribal transferor in existence. I am of view that the existence of a tribal transferor is a sine qua non to the initiation of proceedings for restoration of the land since the whole object is to restore the land to the tribal transferor.

8. Mr. Deopujari, learned Asstt. Govt. Pleader for the respondent, relied on Section 5A of the Act which reads as follows :--

"5A. Lands which cannot be restored to vest in Government and to be granted to other Tribal subject to certain restrictions.-- (1) Where any land (not being land acquired in exchange), which is liable to be restored to a Tribal transferor under Sub-section (1) of Section 3 cannot be so restored either on account of the failure of the Tribal transferor to give an undertaking referred to in Sub-section (3) of Section 3 or for any reason whatsoever or where any land referred to in Section 4 cannot be restored to the Tribal by reason of such a Tribal expressing, during inquiry held by the Collector, his unwillingness to refund the purchase price or proportionate part thereof to the non-Tribal transferee, as required by the said Section 4 or for any other reason then, the Collector may, subject to rules, if any, made in that behalf, by order in writing direct that the land shall, with effect from the date of the order, be deemed to have been acquired and vest in the State Government free from all encumbrances.

(2).................................................

(3).................................................

(4).................................................

(5).................................................

(6) .................................................

(7).................................................

According to the learned counsel, under the aforesaid section, if for "any reason whatsoever" or where any land cannot be restored to the tribal by reason of such tribal expressing his unwillingness, the Collector may order that the land shall be deemed to have been acquired and vest in the State Government free from all encumbrances. This section which provides for a consequence of the proceedings for restoration becoming infructuous by reason of the tribal to give an undertaking referred to in Sub-section (3) of Section 3 or the tribal refusing to refund the price that the land can be ordered to be vested in the State Government. The section also provides for an order for such vesting for any reason whatsoever. However, it is clear that the precondition for making an order is where the land is liable to be restored to a tribal transferor, but cannot be so restored on account of the tribal transferor's failure or refusal for any reason whatsoever. In my view, where a tribal transferor is not in existence and has no legal heir on the date of the commencement of the proceedings for restoration, it cannot be said that the land is liable to be restored to a tribal transferor. Therefore, Section 5A has no application whatsoever to such a case. In the circumstances, it is clear that the order of the Maharashtra Revenue Tribunal upholding the order of the Tahsildar directing the vesting of the land in the State Government under Section 5 A of the Act suffers from an error of law apparent on the face of the record and is liable to be set aside. The Tahsildar had no jurisdiction or authority to initiate proceedings in view of the fact that on the commencement of the proceedings, the tribal transferor was not alive and had no legal heir.

9. In this view of the matter, the petition is allowed. The rule is made absolute.