Jagan S/O Zipru Dhole vs State Of Maharashtra And Ors.
2004 Latest Caselaw 299 Bom

JUDGMENT

A.B. Naik, J.

1. It is not disputed that the petitioner has purchased land from respondent No. 3 who is tribal. The transaction in question is in between tribal and non-tribal. On the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment Act), 1974 amending Section 36 of the Maharashtra Land Revenue Code, suo motu proceedings were initiated by the Tahsildar to restore the possession to the tribal. There was one round of litigation which has reached this Court in Special Civil Application No. 135/1978. The said Writ Petition was disposed of by this Court (S. C. Pratap, J, as then he was) on 5th October 1984 who remanded the matter. As stated above, the suo motu proceedings were initiated by the Additional Tahsildar, Sakri under the provisions of Section 36(2) proviso and issued notice to the tribal and non-tribal. The parties appeared before the Tahsildar, Sakri. The Tahsildar, recorded statement of tribal transferor and non-tribal transferee. The Tahsildar considered the statements of the tribal transferor and non-tribal-transferee and the revenue record. He found that the name of the petitioner was included in the land vide Mutation Entry No. 7 on 1st June 1968. On the basis of the evidence produced before him, the Tahsildar recorded a finding that the transferor is a tribal and land in question is transferred before the commencement of the Maharashtra Land Revenue Code and Tenancy Lands (Amendment) Act, 1974 and, as such, the transaction was vitiated by the said provision and, therefore, he ordered that the land Gut No. 52 situated at Jirapur should be taken from the possession of the non-tribal and be restored to the tribal, free from all encumbrances as per the provisions of Section 36 of the Code.

2. The non-tribal/transferee fifed appeal before the Maharashtra Revenue Tribunal ("Tribunal" in short), being Appeal No. 9/1985. The Tribunal heard the parties and confirmed the finding recorded by the Tahsildar, Sakri. The Tribunal recorded the finding that the Tahsildar has properly followed the legal procedure as provided under the Maharashtra Restoration of lands to Scheduled Tribes Act, 1974 and having heard the parties in person and affording sufficient opportunity to them, the finding that was recorded came to be complied. The Tribunal held that the land was transferred in contravention of the provisions of Section 36 of the Code. Hence the Tribunal confirmed the order passed by the Tahsildar and dismissed the appeal by the judgment and order dated 16th December 1986.

3. Feeling aggrieved by the judgment and order passed by the Tribunal (Camp : Dhule) the present petition is filed under Article 227 of the Constitution of India.

4. Shri Ajay Magre, learned Adv. i/by Shri R. B. Raghuwanshi, for the petitioner, contended that the land was purchased in the year 1968 when there was no restriction for purchase of the land. He contended that the tribal was not in position physically and financially to cultivate the land and by paying the market price of the land to the Tribal is purchased by the petitioner. After purchase the non-tribal/transferee has invested his life earning in improving the land and its fertility: Therefore, he submitted that the transaction which is now being invalidated was effected much prior to the Amendment Act No. XXXV of 1974. He, therefore, submitted that the Tahsildar, Sakri has no jurisdiction to re-open the transaction after a considerable long time. He submitted that even though it is permissible for the authorities to take action, the action should have been taken with all promptitude and expediency. He, therefore, submitted that belated action on behalf of the Tahsildar, Sakri in exercising his suo motu powers conferred on him by Section 36(2) proviso, thus, unwanted and totally uncalled for. He submitted that the tribal- transferor has not filed any application within the time specified but ignoring this aspect, the Tahsildar, proceeded to restore the land to the tribal transferor. The learned Advocate submitted that if the land is taken from the possession of the petitioner, the petitioner will become landless and he will be deprived of his livelihood. Therefore, he submitted that the action of the respondents on the facts of this case was not properly exercised : the authorities have blindly followed the mandate of law without considering the difficulties that may be faced by the petitioner in future in the event of dispossession passed the order mechanically. He further submitted that the provisions of Section 36(2) violates the provisions of the Constitution of India, in particular, the guarantee given to a citizen by Article 14 of the Constitution of India. He, therefore, submitted that when the properly was purchased there were no restriction and by amending the Act, the transactions which were otherwise valid were declared invalid. Therefore, he submitted that the Tahsildar and the Tribunal should not have entertained the proceedings. The learned Advocate submitted that the Tahsildar has no jurisdiction to entertain the proceedings. He further submitted that the land is sold by the tribal with their free will and consent and for a valuable consideration and, therefore, for no fault of the non-tribal-transferor the land is being taken from his possession. He, therefore, submitted that orders, passed by both the authorities below be set aside and petition be allowed.

5. Having given my anxious consideration to the above-said contentions raised by the learned Advocate and considering the finding recorded by the Tahsildar and the Tribunal, it is very difficult for me to accept the same. The Act of 13/1974 came into force on 6th July 1974 whereby the transaction in favour of the tribals were declared invalid. Even prior to the enforcement of Act No. 35/74 there was a restriction on transfer as per the provisions of Maharashtra Land Revenue Code where a tribal can transfer the land to any one only on the sanction being given by the Collector and if the transaction was effected without permission of the Collector, the transaction was voidable at the instance of the tribal. But on enforcement of the Act, the entire scenario has changed and a statutory duty is imposed and an obligation is cast on the authorities to restore the land to the tribal whose lands are purchased by the non-tribals.

6. It is to be noted that all questions which are raised by the learned Advocate are virtually decided by several judicial pronouncements of this Court and the Apex Court to which I will refer in course of the judgment.

7. Section 36 (1) of the Code as stood before passing of Act No. 35/1974 the occupancy to be transferable and heritable subject to certain restrictions; Sub-section (2) as stood prior to the amendment, the property can be transferred with the previous sanction of the Collector and if the transfer is effected without obtaining permission from the Collector, the said transaction can be nullified by the Collector, on an application filed by the tribal within two years from the date of transfer; but the situation did not remain the same after Section 36 of the Code came to be amended by Maharashtra Act No. 35/74. By Act No. 35/74 the principal Section 36 of the Code came to be exhaustively amended and by the said amendment Act Sections 36A, 36B and 36BB and Section 36C and 36CC came to be inserted in the Code. Prior to amendment, the sale was voidable at the instance of the tribal and after amendment the position is changed; the tribal may make an application for restoration of the land and even if the tribal fails to make any application, the Collector suo motu can step in and restore the possession of the land. The validity of Section 36 as amended came for consideration before this Court in the case of Raoji and etc. v. State of Maharashtra and Ors, , and this Court held that the provision are valid and intra vires of the Constitution. The case arose before the Division Bench on the following facts.

8. The petitioners are all non-tribals who have purchased the occupancies from the tribals within the meaning of explanation to Sub-section (4) of Section 36 of the Code as amended by Act No. 35/74. All transactions were undisputedly in violation of Section 36A. The transactions are declared invalid on merits after the enquiry. The challenges to the provisions of Section 36 were levied before the Court. The Division Bench found the orders passed by the authorities were proper and no interference under Article 226 was really necessary. Then the Court considered the attack on Section 36A under Articles 14, 15(4) old Article 19(l)(f) and Article 31 and new Article 300A of the Constitution of India. The Division Bench then noticed the object in amending Section 36. The Division Bench quoted the objects and reasons in para No. 3 of the judgment, which reads thus :

"It was noticed that in number of cases, particularly from Dhulia, Thana and certain other districts, lands previously held by persons belonging to Scheduled Tribes had gone into the hands of non-Tribals. In many of these cases, the transfers were found to have been made in contravention of the provisions of the Maharashtra Land Revenue Code, 1966 or of the Tenancy Laws in force in the State. It had, therefore, become necessary to provide for restoration of these lands to the original Tribal land-holders."

9. Thereafter the Division Bench on considering the provisions of Article 31(2), 19(l)(f)(old) held that fundamental right to the property was not and is not absolute and subject to reasonable restriction in the larger interest of the society under Article 19(5) of the Constitution. Hence the Division Bench said that the restrictions put by the statute is not arbitrary or excessive and in the interest of public. With these observations, the Division Bench upheld the constitutional validity of Section 36.

10. In Lingappa Pochanna v. State of Maharashtra the constitutional validity of the Maharashtra Restoration of Lands to Scheduled Tribes Act (No. 14/75) which was enacted to supplement the provisions of Maharashtra Act No. 35/74 to restore the lands to the Scheduled Tribes, was fell for consideration and the Apex Court found that the Act was constitutionally valid. The Act No. 14/75 was an extension of the amendment made in Section 36 by Act No. 35/74. As the Division Bench of this Court in Raoji's case has noted the objects and reasons the object that was to be achieved by the Act 14/75 to put back the lands to the tribals who were not occupying the lands and their lands were purchased and had gone into hands of non-tribals and in order to prevent such transfer and to restore the lands to tribals, the Legislature intervened and by intervention of legislature the lands were restored to the Scheduled Tribes who were even not knowing about their rights and even though they aware about their rights they were not able to achieve those rights, With this object, this amendment was introduced. Therefore, in my judgment, the contention that is raised by the learned Advocate on the backdrop of the statute and the law decided by the Apex Court cannot be accepted. It is to be noted the . principle behind the introduction of amendment of the Act and the Code is based on distributive justice and economic empowerment to the tribals. In number of cases this Court has come across that in spite of the orders passed by this Court, the tribals were not put in possession they were not even aware of their rights and they were not even represented by the lawyers in the Court because of their illiteracy, poverty and shyness to mix up with the other people. Therefore, when the Act is passed with the object to improve the condition of tribals, this Court under Article 227 of the Constitution even though there may be some irregularity committed by the authorities in passing order, will not deprive the tribal to get the fruit of the legislation.

11. An useful reference can be made to the judgment of the Apex Court in the case of Murlidhar Kesekar v. Vishwanath Barde, (1995) II Supp SCC 549, to judge the contention of the learned Advocate for the petitioner. The Apex Court was dealing with a case where the land of the Government was allotted to tribal in the year 1960 and the non-tribal entered into an agreement with the tribal on 27th June 1968 to purchase 5A of land out of 11A 4G and later on he entered into another agreement to purchase the entire land. After entering with the agreement they moved the Collector and the Commissioner for permission under Section 36 of the MLR Code (unamended) which was refused by them. The non-tribal approached this Court seeking writ of mandamus. This Court rejected the writ petition summarily and the matter was carried in the Apex Court. The contention that was raised by the non-tribal before the Apex Court, that the tribal was unable to cultivate the land and so lawfully entered into an agreement to sell the land for valuable consideration, subject to permission from the Collector. It was contended that Collector refused the permission wrongfully in ignoring the provision of the Land Revenue Code which authorizes the Collector to grant such permission. It was also contended that non-tribal was introduced in possession of the land pursuant to the agreement and he remains in possession and entitled to retain the same under Section 53A of the Transfer of Properly Act.

12. On this contention, the Apex Court considered the issue and considered the restrictions imposed to transfer the land by tribal, with the intention to provide adequate means of livelihood for all the citizens and distribution of material resources of the community for the common welfare of poor, dalits and the tribals to fulfil the basic need to bring about the fundamental change in the structure of the Indian society to achieve the goal and to protect the weaker section i.e. Scheduled Tribes such enactments are brought on the statute. It will be appropriate to refer to paras 7 and 8 of the Apex Court judgment:

"7. The Universal Declaration of Human Rights, 1948 assures in Article 1 that: "All human beings are born free and equal in dignity and rights". Article 3 assures that: "Everyone has the right to life, liberty and security of person." Article 17 declares that: "Everyone has the right to own property alone as well as in association with others." Article 22 envisages that: "Everyone, as a member of society has the right to social security and is entitle to realization through national effort....... and resources of each State...... of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." Article 25 assures that : "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family including food, clothing , housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability , widowhood, old age or other lack of livelihood in circumstances beyond his control." Similarly, are the social, civil, economic and cultural rights given in European Convention.

8. The Declaration on the Right to Development to which India a signatory recognising that development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom. Article 1 assures that "The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy, economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. "Article 2 assures right to active participation and benefit of his right to development. Article 3 enjoins the State as its duty to formulate proper national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom. Article 3(1) states that it is a primary responsibility of the State to create conditions favourable to the realization of the right to development. In particular Article 4(1) directs the State as its duty to take steps individually and collectively for providing facilities for full realization of right to development. Article 8(1) enjoins that the State should undertake necessary measures, for the realisation of the right to development. Article 10 says that the steps should be taken to ensure the full exercise and progressive enhancement of the right to legislative and other measures for legislative and executive measure."

13. Considering the law laid down by the Apex Court in Murlidhar's case and considering the fact that it is not disputed that the petitioner is non-tribal and the respondents are the tribal and statutory benefit is being restored on them by the authorities, the authorities have followed, the procedure prescribed, the petitioner as well as respondents 3 to 5 were given reasonable opportunity and they were heard and after being satisfied that the land is sold in contravention of provisions of Section 36(2) as amended, the order came to be passed. Therefore, in my judgment, there is no error of any kind, much the less, error apparent on the face of the record pointed out. There is, no substance in the petition. Petition dismissed. Rule discharged with cost. Interim relief stands vacated.

14. For the reasons recorded hereinabove, the facts and the points raised in Writ Petition No. 1838/1996 are the same. Hence Writ Petition No. 1838/1996 (Aurangabad) (W.P. No, 5263/1987) is also dismissed. Rule discharged with cost. Interim relief stands vacated.