Bombay High Court
Both vs 7 Maharashtra Revenue Tribunal on 15 December, 2010
Bench: S. S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 789 OF 1990
1 Shri Ulhas Nimba Choudhari,
Age 48 years, Occ. Agri
2 Chandrakumar Nimba Chaudhari,
Age 40 years, Occ. Agri
Both R/o Sangvi (Bk), Tq. Yaval,
District Jalgaon ...Petitioners
Versus
Sardar Khandu Tadvi B/H
1 Guljar Sardar Tadvi
(Died through L.Rs.)
a Hamid Guljar Tadvi,
Age 40 years, Occ. Agri.,
R/o. CBD Sector 1, B-8,
Room No.7, Navi Mumbai
b Rashid Guljar Tadvi,
Age 28 years, Occ. Agri.,
R/o. CBD Sector 1, B-8,
Room No.7, Navi Mumbai
c Kulsambai w/o Ismail Tadvi,
Age 42 yeas, Occ. Household,
R/o. At and post. Chunchale,
Tq. Yawal, District Jalgaon
d Salmabai Ramesh Tadvi,
Age 35 yeas, Occ. Household,
R/o. CBD Sector 1, B-8,
Room No.7, Navi Mumbai
e Sayabai w/o Guljar Tadvi,
Age 60 years, Occ. Household,
R/o. At and post Sangvi (Bk),
Tq. Yawal, District Jalgaon
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2 Mohmad Sardar Tadvi,
3 Baldar Sardar Tadvi,
(died through L.rs.)
a Anyar Baldar Tadvi,
Age 38 years, Occ. Agri.
R/o. At and post. Sangvi (Bk),
Tq. Yawal, Dist. Jalgaon
b Rasool Baldar Tadvi,
Age 32 years, Occ. Agri.
R/o. At and post. Sangvi (Bk),
Tq. Yawal, Dist. Jalgaon
c Khalil Bladar Tadvi,
Age 24 years, Occ.Agri.
R/o. At and post. Sangvi (Bk),
Tq. Yawal, Dist. Jalgaon
d Reshambai Babu Tadvi,
Age 42 years, Occ. Household,
R/o. At and Post Kalmode,
Tq. Yawal, District Jalgaon
(deleted)
e Masoom Rashid Tadvi,
Age 38 years, Occ. Household,
R/o. At and Post. Mothe Waghode,
Tq. Raver, district Jalgaon
f Sharifa Latif Tadvi,
Age 35 years, Occ. Household,
R/o. At and Post. Kingaon,
Tq. Yawal, District jalgaon
g Halifa Hamid Tadvi,
Age 28 years, Occ. Household,
R/o. At and Post. Bidgaon Moharad,
Tq. Yawal, District Jalgaon
e Mayaram Baldar Tadvi,
Age 56 years, Occ. Household,
R/o. At and Post. Sangvi (Bk),
Tq. Yawal, District Jalgaon
4 Mahab Sardar Tadvi,
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5 Smt. Sayadabai Gulab Tadvi,
At and Post. Waghoa (Bk),
Tq. Raver, District Jalgaon
6 Smt. Jayantunbai w/o Barhan Tadvi,
R/o. Kingaon, Tq. Yawal,
District Jalgaon
7 Maharashtra Revenue Tribunal,
Bombay
(Copy to be served on the Registrar ...Respondents
of M.R.T. Bombay)
.....
Mr. V.T. Choudhari, advocate for the petitioner
Mr. S.G. Shinde, advocate for the respective respondents
Mr. D.R. Korde, A.G.P. for respondent No. 7
.....
CORAM: S. S. SHINDE, J.
DATED: 15TH DECEMBER, 2010
JUDGMENT:-
1 Heard learned counsel for respective parties.
2 The brief facts of the case, as disclosed in the petition, are as
under;-
The suit land situated in survey No. 56/1-C admeasuring 1
Hector and 20 R assessed at Rs.5/- and 93 paise, situated at village
Sangvi (Bk), Tq. Yawal, district Jalgaon. The said land previously was
held by the respondents as an owners and they have sold their land to
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the petitioners herein in the year 1968 for consideration of Rs.9000/-
under a registered sale deed and from the said consideration they
have purchased another big peace of land. The petitioners thereafter
improved the suit land by spending more than Rs.50,000/- and
converted the dry land into Bagayat land. Thereafter, a consolidation
scheme was made applicable in the said village and the suit land
alongwith other lands are consolidated into Gat No.160 and at present
the suit land is no more in existence. The petitioners are in exclusive
possession and control, enjoyment of suit land till today.
It is further case of the petitioners that the Assistant Collector,
suo moto started a proceeding under Section 3 of the Maharashtra
Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter for
the sake of brevity referred to as the "Restoration Act") as the enquiry
was pending, the petitioners obtained stay order from the Hon'ble
Supreme court but subsequently in Lingappa's case, the Hon'ble
Supreme court has upheld the Constitutional validity of the Restoration
Act, which is reported in AIR 1985 Supreme court page 389.
Thereafter the Tahsildar of Yawal issued a fresh notice U/sec. 3 of the
Restoration act and started an enquiry U/sec. 3 of the said Act. The
petitioners have raised various law points. It was specifically
submitted by the petitioners that the respondents are not tribal as they
are "Muslim Tadvi or Muslim Pathan" and hence they are not tribal. It
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was further submitted that the respondents are following Muslim
religion and their conversion in Muslim Religion is complete, and after
conversion to Islam Religion the respondents have not maintained a
tribal way of life on all matters. It was further submitted that the caste
certificate issued to the respondents are illegal and bad in law as they
are issued without proper enquiry and issued only on the basis of
affidavits filed by the respondents. It was further submitted that as per
the Resolution No. CBC/1680/43669/D-V, Mantralaya, dated 29th
October, 1980, issued by the Government of Maharashtra Social
Welfare, Cultural Welfare, sports and Tourism Department, a detailed
enquiry is contemplated before a Caste Certificate is issued and for
that purpose a person claiming benefit under the Restoration Act is
required to file an application in the prescribed manner and thereafter
detailed enquiry is contemplated in view of the said resolution and
thereafter, a caste certificate can be issued in the prescribed form. It is
pertinent to note that the said procedure is not followed by the
Tahsildar hence, the caste certificate is issued to the respondent that
they are Tribal is illegal, bad in law and hence it should be ignored.
The petitioners further stated that the Government issued another
Circular vide No.Vati/DA/482/KA-4 dated 8.9.1982, in which it has
been specifically mentioned that the instructions issued in Resolution
dated 29.10.1980 should be followed strictly. It has been further
mentioned that if there is any ambiguity about the status of any
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person, then the case may be referred to Social Welfare, Cultural
Affairs, Sports and Tourism Department. The further clarification is
made by the Government by issuing guidance vide order No.
CBB/1684/309/11, dated 24th April, 1985 in which it has been
specifically mentioned at serial No. 5(13) that Tadvi who has converted
himself into Muslim Religion are not Adiwashis. It is further case of the
petitioners that inspite of all the contentions raised before the
Tahsildar, the Tahsildar by order and judgment dated 31.10.1985 held
that the respondents are tribal and ordered to restore the suit land to
the respondents.
Being aggrieved and dissatisfied with the said order, the
petitioners preferred an appeal under Section 6 of the Restoration Act
being appeal No. REV.TRV.88 of 1985 before the Maharashtra
Revenue Tribunal. The learned Member of the Maharashtra Revenue
Tribunal by order dated 27.7.1987 set aside the order passed by the
Tahsildar and remanded the matter back to the Tahsildar for fresh
enquiry namely for considering the status of the respondents whether
they are tribal or not.
The Tahsildar, after remand without considering the voluminous
evidence and documents produced by the petitioners to show that the
respondents are not tribal passed an order in cyclostyle forms and
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held that the respondents are 'Adivashi' and hence the suit land should
be restored to the respondents.
The petitioners for the second time, against the order of the
Tahsildar, preferred an appeal under Section 6 of the Restoration Act
before the Maharashtra Revenue Tribunal, Bombay being Appeal No.
REV/TREV/19 of 1989 raising various points. However, inspite of
having raised various legal points, the learned member of the M.R.T.
Dismissed the appeal by his judgment and order dated 19.10.1989.
Hence this petition.
3 Learned counsel for the petitioners invited my attention to the
Exh.A page 15 i.e. judgment and order passed by the Tahsildar, Yawal
dated 29.3.1989 and submitted that if title cause of the said case is
perused, it is mentioned Gulzar Sardar Tadvi etc. however, in the
operative part of the order, it is observed that the applicants in this
case are "Adivasi" and hence the property situated at the village
Sangvi Bk. T. Yawal bearing S. No. 56/1-c H.R. 1.20 be restored to
him/them forthwith.
According to the counsel for the petitioners order dated
29.3.1989 passed in Adivashi Case No. 173 by Tahsildar, Yawal is not
executable and cannot be implemented since no name of legal heirs
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and other two persons are mentioned in the title cause of the said
case. He further submitted that the caste claim of the respondents was
not referred to the caste scrutiny committee. According to the counsel
for the petitioners, this Court in the cases of Raju s/o Pundlikrao
Burde Vs. Establishment officer (III-B) MSEB and another,
reported in 2003(4) Mh.L.J. 780, Ulhas Bimba Choudhari and Anr.
Vs. Burhan Samsa Tadvi (deceased heirs) Abbaskhan Burhan
Tadvi and others, reported in 2007 (1) Mh.L.J. 165 and writ
petition No. 1636 of 1994 on 17th June, 2010 (Aurangabad Bench)
has taken a view that in such case the authority i.e. Tahsildar should
refer the caste claim of the claimants/Adivashi to the caste scrutiny
committee for verification/scrutiny. Therefore, learned counsel for the
petitioners would submit that the Tahsildar should have referred the
caste claim of the respondents for verification to the caste scrutiny
committee. Counsel for the petitioners further submits that since the
land in question is no more in existence and since the said has been
consolidated and Gat number has been given to the said land.
Therefore, the land is not in existence and consolidated and there is
no question to further adjudicate the rights of the parties.
4 Counsel for the respondents submits that the legal heirs of
original applicant are already on record and those are also party
respondents to this petition. Therefore, the contention of counsel for
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the petitioner that legal heirs of original applicant are not on record is
devoid of any merits. Counsel further submits that the authority has
properly considered the rival submissions and has arrived at the
correct conclusion and it may not be desirable to refer the caste claim
of the respondents to the caste scrutiny committee. Replying to the
another contention of the petitioner that the land is no more in
existence as recorded by the M.R.T. It is submitted that the land is
very much in existence and the Gat numbers are given in the
consolidation. Therefore, the counsel for the respondents submits that
the writ petition deserves to be dismissed.
5 Upon perusal of the judgment and order of Maharashtra
Revenue Tribunal and in view of the authoritative pronouncements of
this Court in the cases cited supra, I find considerable substance in the
argument advanced by counsel for the petitioners that Tahsildar
should have referred the caste claim of the applicant and his legal
heirs, who are respondents herein to the caste scrutiny committee for
verification. This court, while considering the various judgments on the
subject, has taken a view in writ petition No. 1636 of 1994 that the
findings recorded by the Authority i.e. the Additional Commissioner,
that the respondents therein are belonging to Tadvi S.T. category
cannot be accepted since the said finding was without jurisdiction.
Therefore, this Court in that matter has taken view to refer matter to
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the scrutiny committee for verification and scrutiny of tribe claim of the
respondent therein. Therefore, the contention of the counsel for the
petitioner to the above extent can be accepted.
6 However, the contention of the counsel for the petitioner that the
legal heirs of original applicant were not on record in the application
and therefore, only the caste claim of the original applicant viz. Guljar
to be referred to the committee is concerned, the same cannot be
accepted. For all respondents, except respondent No. 7 and 8, it is
necessary to refer their caste claim including legal heirs of Shri Guljar
Sardar Tadvi for verification/scrutiny.
7 So far as the third contention of the counsel for the petitioner
that since the land is consolidated and now converted into Gat number
is concerned, the said contention has been negatived by the authority
and the court has held that the land is very much in existence and
therefore, such contention cannot be accepted. Therefore, the petition
is partly allowed. The petition is, therefore, allowed in terms of prayer
clause "B". Rule made absolute to the above extent.
8 The Tahsildar is directed to refer the caste claim of respondent
Nos. 1 to 6 herein to the scrutiny committee within one month from the
date of receipt of copy of this order. Thereafter the committee to take
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final decision within six months from the date of receipt of caste claim.
If the decision of the scrutiny committee becomes final in favour of the
contesting respondents, the concerned authorities shall ensure that
the possession of the land does not continue with the non tribal
petitioners and the same shall not be delivered even to respondents
unless and until the matter is dealt with appropriately under the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.
With the above observations, writ petition stands disposed of.
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