Bombay High Court
Smt. Zunkabai vs Smt. Kantaben on 14 December, 2009
Bench: A. H. Joshi, A. R. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.18 of 2000
1. Smt. Zunkabai w/o late Shri
Mangu Kumre,
aged about 60 years,
Botheda,
Post Ambeshivani,
Tq. & Distt. Gadchiroli.
2. Tulsiram s/o late Shri
Mangu Kumre,
aged about 27 years,
resident of Botheda,
Post Ambeshivani,
Tq. & Distt. Gadchiroli.
3. Shri Motiram s/o late
Mangu Kumre,
aged about 35 years,
Botheda,
Post Ambeshivani,
Tq. & Distt. Gadchiroli.
4. Smt. Shantabai w/o
Shri Sakharam Tumareti,
aged about 40 years,
resident of Chandala,
Post Bodali,
Tah. & Distt.
Gadchiroli.
5. Smt. Sakhubai w/o Shri
Sakharam Pada,
aged about 35 years,
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resident of Kanhalgaon,
Post Mohali,
Tq. Dhanora,
Distt. Gadchiroli.
6. Smt. Phulvanti w/o
Baburao Pada,
aged about 30 years,
resident of Sutgaon,
Post Mendatola,
Tq. Dhanora,
Distt. Gadchiroli.
7. Shri Shriranga s/o
late Shri Mangu Kumre,
aged about 25 years,
resident of Mohali,
Tq. Dhanora,
Distt. Gadchiroli.
8. Smt. Leela w/o Shri Kisan
Pada,
aged about 28 years,
resident of Murumbodi,
Post Ambeshivani,
Tq. & Distt. Gadchiroli. .... Petitioners.
Versus
1. Smt. Kantaben w/o late
Shri Shantilal Patel,
aged about 59 years,
2. Shri Dilip son of
late Shri Shantilal Patel,
aged about 30 years,
3. Shri Nilesh s/o late
Shri Shantilal Patel,
aged about 27 years,
all residents of Fule
Ward, Gadchiroli,
Tah. & Distt.
Gadchiroli. .... Respondents.
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*****
Mr. Manoj Pillai, Adv., for the petitioners [absent].
Mr. V.N. Morande, Adv., for respondent nos. 1 to 3
[absent].
*****
CORAM : A.H. JOSHI, J.
Date : 14th December,2009.
ORAL JUDGMENT :
1. This is a petition by original land owner
tribals.
2. The land of tribals transferred to non-tribals
was restored by Tahsildar by Order dated 24th October,
1975.
3. The order was not executed for a long time.
4. The non-tribal transferors filed an appeal
before the Maharashtra Revenue Tribunal challenging the
order of restoration. It appears that what was
challenged was a notice of delivery of possession, and,
in fact, the order brought into scrutiny is order dated
24th October, 1975, by which restoration was ordered,
which had attained finality by failure to file appeal
against the said order.
5. The Maharashtra Revenue Tribunal was kind and
courteous enough for condoning the delay in order to do
substantive justice, and ultimately allowed the appeal,
and has set aside the order of restoration of land to
the tribal transferors.
6. The Maharashtra Revenue Tribunal based its
order on grounds, namely:-
[a] The land was fallow five years prior
to transfer.
[b] The tribal transferors stated on oath
that they cannot cultivate land and
that the agreement of transfer was
made on free will and without any
coercion etc.
[c] Tribal transferors could not come
forward to take possession of the
property.
7. Aggrieved by the order setting aside the order
of restoration, present Writ Petition is filed by
tribal transferors.
8. The contents of the petition do clarify and
reiterate with no ambiguity that the tribal transferors
and their family members are not just willing, but are
keen to have the land restored.
9.
The order passed by the Maharashtra Revenue
Tribunal seems to have been based on compassion to a
non-tribal than compassion to a party whose sufferance,
and compassion towards whom had fructified into a
statutory enactment.
10. It was not open and available for any
statutory authority exercise powers and jurisdiction
under the Maharashtra Restoration of Lands to Scheduled
Tribes Act, 1947, to undo the aims and objects and the
very purpose of enacting of the said Act and
constituting the authorities thereunder. An authority
constituted under the said Act was not competent to
defeat the purpose thereof.
11. The Writ Petition, therefore, deserves to be
allowed. Rule is made absolute in terms of Prayer
Clauses (i) and (ii) with a direction to Tahsildar to
restore the land to the tribals within six months from
the date of receipt of Writ of this Court.
JUDGE
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