Taluka Sangrampur Buddhavihar ... vs State Of Maha. & 6 Others
2017 Latest Caselaw 7728 Bom

                                                                          LPA.40.01
                                            1


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT NAGPUR, NAGPUR.
                                         ...

                         LETTERS PATENT APPEAL NO. 40/ 2001
                                         IN
                             WRIT PETITION NO. 3155/1999


1)      Taluka Sangrampur Buddhavihar Samiti
        Varvat Bakal: Through its Secretary
        Narayan Shivaji Hiwrale
        R/o Varvat Bakal, Tah.Sangrampur
        Dist. Buldana.

2)      Miraj s/o Hiraman Ingle
        R/o Varvat Bakal, Tah. Sangrampur
        Dist. Buldana.

        (Amendment carried out by
        order dated 15.7.2002)                        ..       APPELLANTS

                versus

1)      State of Maharashtra
        Through the Secretary
        Department of Revenue and Forest
        Mantralaya, Mumbai-32.

2)      Smt.Deokabai wd/o Ganpatsingh Solanke
        (Respondent No.2 is Dead and her
        LRs are already on record.)

3)      Smt.Gumphabai Mahadeo Daberao
        R/o Budaji nagar, Indora chowk
        Nagpur.

4)      Smt.Vimal Hukumchand Pawar
        R/o Mana, Tah. Murtizapur
        Dist. Akola.

5)      Smt. Kamlabai Amarsingh Maloy




     ::: Uploaded on - 10/10/2017                   ::: Downloaded on - 11/10/2017 00:52:55 :::
                                                                                                                               LPA.40.01
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6)          Narsing Ganpat Solanke

7)          Gajanan s/o Ganpat Solanke

            Nos. 5 to 7 R/o Raipur Badaipura
            Tah.& Dist. Raipur (M.P.)                                                              ..         RESPONDENTS

...............................................................................................................................................
            Mr. T.G. Bansod, Advocate for the appellants
            Miss N.P Mehta, AGP for respondent no.1-State
................................................................................................................................................

                                                                           CORAM: B.P. DHARAMDHIKARI &
                                                                                  MRS. SWAPNA JOSHI, JJ.

DATED: 5th October, 2017

ORAL JUDGMENT: (PER B.P.DHARMADHUIKARI, J.)

1. The appellants in this Appeal under Clause 15 of the Letters Patent,

were the respondent nos.1 and 3 in Writ Petition No.3155/1999 decided by learned

single Judge of this Court on 15th September, 2000. The petition was allowed and the

present appellants were therefore expected to restore back the possession of land

purchased by them to tribals i.e. Respondent nos.3 to 7 in present matter. The

respondent no.1 before this Court, is the State Government.

2. The learned single Judge has stayed the operation and effect of his

judgment for a period of four weeks and thereafter that interim order has been

continued in present Letters Patent Appeal (LPA) on 10.4.2001. With the result, the

appellants are even today, in possession of subject-land.

3. The subject-land initially belonged to one Ganpatsingh and it was put

to auction by State Government for recovery of land revenue in Revenue Case No.

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256/62-63. The appellant no.2-Miraj purchased that land in public auction and a sale

certificate was accordingly issued in his name on 11.3.1968. Thereafter Miraj sold that

land on 1.7.1974 for a consideration of Rs. 2000/- to one Nagorao Ingle, who happened

to be respondent no.2 in Writ Petition No.3155/1999. Nagorao on 7.12.1996 sold that

land to appellant no.1- Buddhavihar Samiti. The subject-land bears No.76/2 Gut No.206

admeasuring 1H 01R of Mouza of Varvat Bakal.

4. It appears that Smt.Devkabai w/o Ganpatsingh filed an application under

section 6 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974

(hereinafter referred to as "Act of 1974") and sought to recover of this land in Review

Case No. L&D-21/Varvat Bakal/81/88-89. Tahsildar, Sangrampur passed an order

dated 20th March,1989 for restoring the possession back to her. Against that order,

Secretary of Buddhavihar Samiti filed an Appeal before the Maharashtra Revenue

Tribunal vide Appeal No. MAH /1100/Buldana /1998. In this matter, an order came to

be passed on 2.8.1985 and order of Tahsildar dated 20th March 1989 was set aside and

the matter was remanded back to him for fresh enquiry.

5. Ganpatsingh Solanke died on 2.5.1995. It appears that heirs of

Ganpatsingh amended the application on 7.10.1996 and the appellants filed Written

Statement on 18.2.1997. Tahsildar, Sangrampur then passed an order holding that

application was filed after delay of nine years and the first transfer was prior to

15.4.1971. Transactions thereafter are between non-tribal persons and hence Act of

1974 was not applicable.

6. It is not necessary for us to consider various orders passed by Tahsildar

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or Maharashtra Revenue Tribunal (M.R.T.) in the matter for the purposes of this LPA. It

appears that necessary facts are not available on record and counsel representing

the tribals has remained absent continuously. We heard the matter initially on 3rd

October, 2017 and thereafter on 4th October, 2017. On both these dates and today

also, learned counsel for tribals has failed to turn up. Perusal of orders passed on 27th

October, 1998 by MRT, Nagpur shows that a judgment was delivered on 3.3.1994

by this High Court where certain directions were issued.

7. Adv. Bansod appearing for appellants has invited our attention to

impugned judgment dated 15th September, 2000 delivered in Writ Petition (WP) No.

3155/1999. He submits that the petition was heard and in open court, judgment was

dictated and pronounced by learned single Judge on 22.8.2000 and the petition was

dismissed. However later on, i.e. after the counsel for appellants left the Court, the

tribals made a request for rehearing and that request was granted. The matter was

taken up for re-hearing and after re-hearing, the impugned judgment allowing Writ

Petition came to be passed on 15th September, 2000. He states that this course of

action is unsustainable, therefore, the judgment delivered on 15th September, 2000 is

liable to be quashed and set aside. He is relying upon the judgment of the Hon'ble

Apex Court, in the cases of Surendra Singh and others vs. State of Uttar Pradesh,

reported at AIR 1954 SC 194 and State of Uttar Pradesh vs. Shri Brahm Datt Sharma

and another : AIR 1987 SC 943. He adds that learned single Judge has not kept

copy of judgment pronounced earlier dismissing Writ Petition on record and hence

application of mind therein, is not available for appreciation to anybody.

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8. Without prejudice, he submits that Ganpatsingh and his heirs do not

belong to the Scheduled Tribe, as claimed. He invites attention to Civil Application filed

in the present matter seeking permission to invite attention to document showing that

Ganpatsingh belonged to 'Rajput' community. Adv. Bansod submits that documents

filed with this additional affidavit by appellants show 1958 document relating to

Ganpatsingh and his family. These documents contain claim of legal heirs that they

belong to 'Takankar' or 'Takari' community which is Scheduled Tribe. He contends

that as such the provisions of Act of 1974 are not at all attracted in present facts.

9. Lastly, he points out that the Act of 1974 has come into force long after

the initial sale deed in the matter. It has received assent of the president on 27 th April,

1975, while auction held by the State Government in which the appellant no.2 Miraj

purchased land is on 9.3.1968. Miraj sold this land on 1.7.1974 to Nagorao Ingle and

this later sale, is also prior to coming into force of Act of 1974. According to him, in

this situation, when lands are now in possession of appellant no.1 and on it Buddha

vihar Samaj Bhavan is already constructed, the land cannot be restored back to

tribals.

10. He submits that in re-hearing, learned single Judge has looked into an

earlier judgment delivered by learned single Judge of this Court in Writ Petition No.

296/1994. Because of that judgment, the limited scope available for scrutiny thereafter

has been noticed and writ petition has been allowed. He submits that said Writ Petition

was allowed on 3.3.1994 without issuing notice to present appellants, that is, behind

their back and hence that judgment could not have been and cannot be used to their

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prejudice. He also invites our attention to Section 9A of the Act of 1974, to urge that as

Advocates are prohibited from appearing before MRT in proceedings in Act of 1974,

the appellants did not understand technical nature of the matter. He contends that

when petition was dismissed after a detailed hearing and by a reasoned order initially,

the learned single Judge had considered controversy on merit in absence of the

judgment dated 3.3.1994 in Writ Petition No. 296/1994.

11. Learned AGP has invited attention to provisions of Act of 1974. She

submits that the Act vitiates all transfers by a tribal after 1st April,1957 and upto 6th

July, 1974. This Act has been constitutionally held valid and there is no challenge to

any of its provisions in present matter. She invites attention to Section 2 (i) which

defines 'transfer'; Section 2(j) defining "Tribal"; Section 2(k) defining 'Tribal transferor'

and 2 (l) defining 'non-tribal transferee, to submit that auction-sale by State

Government of such land is also prohibited and nullified. The purchase by appellant

no-2-Miraj is therefore void and hence later on sale by him to non-tribal on 1.7.1974

is also vitiated. She also invited our attention to observations contained in paragraph 7

of the judgment delivered by learned single Judge, to submit that law looked into

there, is found to be not correct later on by Division Bench of this Court in the case of

Kashibai Pawar and others, vs.State of Maharashtra, reported at 1993 (Vol.2) MhL.J.

1168. She submits that later the judgment of learned single Judge of his Court, in the

case of Sheikh Mohammed Sk.Gulab vs. Additional Commissioner, Aurangabad,

reported at 1997(2) Mh.L.J. 450, fails to take note of this Division Bench judgment.

According to her, in this situation, no case is made out for interfering with the impugned

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judgment and L.P.A. as filed, is without any substance.

12. Perusal of impugned judgment dated 15th September,2000 itself reveals

that W.P. No. 3155/1999 was heard by learned single Judge on 17.8.2000 and

thereafter the judgment was pronounced in open Court. However on that day before

rising, counsel for petitioners mentioned the matter and requested for not signing the

judgment since vital facts could not be placed before Court. He also submitted that

decision of High Court in the case of Barikrao Narayansing Rajput vs. Bandu Bhil and

others, reported at 1985 Mh.L.J. Page 525 also needed consideration. The learned

single Judge mentions that at that time the counsel for respondents (present

appellants) had left the court and hence counsel for petitioners was asked to inform

the other side and thereafter mention the matter. The matter was then mentioned on

22.8.2000 with a request for rehearing in presence of counsel for respondents. By

consent the matter was taken up for rehearing.

13. The facts therefore show that present appellants cannot urge that

judgment dictated and pronounced on 17.8.2000 should have been transcribed and

preserved on record. They consented to rehearing and hence learned single Judge

has proceeded further. Had they then objected, other appropriate course could have

been then worked out. No objection given by them estops appellants from raising any

such contention in this Appeal. Because of this finding, we do not consider it necessary

to appreciate law laid down by Hon'ble Apex court in Surendra Singh and others vs.

State of Uttar Pradesh (supra) and State of Uttar Pradesh vs. Brahm Datt (supra).

14. Perusal of the impugned judgment shows that there in paragraph 5,

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learned single Judge has taken note of the judgment dated 3.3.1994 in W. P.No.296/

1994. Paragraph 4 of that judgment has been reproduced. Learned single Judge then

observes that the Court in said judgment dated 3.3.1994 conclusively held that if

transfer was prior to 15.4.1971, the question of restoration of said land would not arise

at all. Further observation is, if transfer between parties ( non-tribals) was prior to

15.4.1971, only then said transaction could be saved from clutches of Act of 1974. In

paragraph 6 of the impugned judgment, learned single Judge mentions that remand in

W.P.No.296/1994 was for limited purpose and same was made over to MRT. But the

Tahsildar proceeded with enquiry and passed fresh order on 22.5.1998. There was no

reason for Tahsildar to make such enquiry as remand was ordered by Court only to

MRT and that too for limited purpose. It is further observed by learned single Judge

that after order was passed by Tahsildar on 22.5.1998, MRT has passed further order

on 27.10.1998 and allowed revision and remanded the matter back to Tahsildar for

fresh enquiry and disposal in accordance with law. The learned single Judge observes

that MRT ought to have confined the scope of hearing as per the extent of remand

ordered by this Court and could not have travelled beyond it. It observes that the only

question to be looked into was about date of sale between non-tribals and tribals

and as such MRT could not have dealt with any other matter.

15. In paragraph 7, attempt made by counsel for appellants to demonstrate

that Ganpatsingh or his heirs were not belonging to Scheduled Tribe or then

'Takankar' community has been included in Constitution (Scheduled Tribes) Order

1949 for the first time on 1.5.1976 as Scheduled Tribe has been looked into and then

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there is reference to judgment of Hon'ble Apex Court in case of Tukaram Laxman

Gandewar vs. Piraji Sidarwar, reported at 1989 Mh.L.J. 815 and two judgments of this

Court, reported in Sk. Mohammad vs. Additional Commissioner, Aurangabad ( supra)

and in the case of Lachmanna Alurwar vs. Maharashtra Revenue Tribunal, reported in

1992 Mh.L.J. 1139. We do not wish to comment upon these aspects and these

judgments in present L.P.A.

16. Thus, the learned single Judge found that M.R.T. had traversed

beyond the scope of remand order dated 3.3.1994 in W.P. No.296/1994 and, therefore,

has allowed W.P.No.3155/1999. The learned single Judge therefore did not record any

binding finding on other contentions raised before him by non-tribal-purchasers.

17. Because of submission that judgment dated 3.3.1994 in W.P.No.

296/1994 is void or not binding on present appellants, we called for the available

records of said Writ Petition. The order-sheets and judgment has been made available

for our perusal. The order-sheets show that against the order dated 18 th September,

1993, writ petition was filed on 2nd February,1994 by Deokabai Ganpatsingh Solanke

and the State of Maharashtra was respondent no.1 therein. The present appellant

no.1 was respondent no.2. The present appellant no.2 was respondent no.3 and

Nagorao was respondent no.4. The matter was listed before learned single Judge on

4.2.1994 and was adjourned at the request of counsel for petitioners to 8.2.1984. It

was listed on 8.2.1994 and again on similar request by learned counsel, it was

adjourned to 18.2.94; It was then listed on 18.2.94, on that day leave to amend was

granted. It appears that C.A. No. 689/1994 was then moved by petitioners. The next

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order sheet thereafter is dated 3.3.1994. On that day, rule has been made returnable

forthwith and final judgment came to be dictated and the writ petition was disposed

of with no order as to costs. Copy of this final judgment is produced along with memo

of L.P.A. by appellants.

18. This material therefore lends credence to submission of Advocate

Bansod that W.P. No.296/1994 was decided behind the back of present appellants, as

also non-tribal-purchasers. No notice was issued to anybody and only after hearing

learned counsel for petitioner, the judgment came to be delivered on 3.3.1994. In

paragraph 4 in that judgment reproduced by learned single Judge in impugned

judgment, reads as under :

"Para 4: I, therefore, propose to allow the petition by remanding it to the Maharashtra Revenue Tribunal to decide the controversy. The Maharashtra Revenue Tribunal would examine as to whether there was a subsequent transfer from Miraji in favour of another non-tribal and if there was transfer, as to when that transfer took place. If that transfer is prior to 15.4.1971, then the question of restoration would not arise at all. However, the M.R.T. would go into the exact date of transfer, It is only for this limited purpose that the remand is being directed. In the result, the petition partly succeeds. The matter is remanded to Maharashtra Revenue Tribunal to decide the matter in the light of the observations made by this Court. In the circumstances,there shall be no order as to costs."

19. Thus, because of importance of date "15.4.1971" the learned single

Judge has sent back the matter to MRT Section 9A of Act of 1974 has been added

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to the statute book by Maharashtra Act No.12/1977 and it excluded Pleader/s from

appearance. It is therefore obvious that limited nature of remand or then scope of

jurisdiction available to M.R.T. may not have been noticed by tribals as also non-tribals.

It appears that thereafter the M.R.T. remanded the matter back to Tahsildar and after

that remand by M.R.T. dated 2.8.1995, the Tahsildar passed fresh orders on 22.5.1998

and dismissed application of tribals for restoration. This dismissal was questioned by

tribals before M.R.T. on 27.10.1998 the M.R.T. again remanded the matter back. This

later order for remand of M.R.T. on 27.10.1998 was then questioned in W.P.No.

3155/1999.

20. The sequence of events therefore reveals that limited scope available

after 3.3.1994 because of judgment in W.P. No.296/1994 escaped attention of parties.

Not only this but when W.P. No.3155/1999 was initially argued and dismissed on

17.8.2000, this limited aspect had escaped attention of learned single Judge also. It

was brought to notice of learned single Judge later on when request for rehearing was

made.

21. Perusal of judgment dated 3rd March 1994 in W.P.No.296/1994 shows

that there after hearing learned counsel for petitioner, in paragraph 3 order of MRT on

question of limitation is found incorrect. In Paragraph 2 observations made about

inclusion of 'Takankar' and 'Takari' community as Scheduled Tribe later on find

mention. In paragraph 4 thereafter while proposing to allow petition a remand to MRT

to consider impact of transfer if it prior to 15.4.1971 was felt necessary. This

judgment dated 3rd March 1994 nowhere shows consideration of arguments, if any,

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advanced by respondent nos.3 and 4. As already mentioned supra, the respondent

nos.3 and 4 were then not noticed and therefore were not present and were not

heard at all. The judgment therefore cannot be construed to their prejudice and to

hold that earlier judgment of M.R.T. upset by learned single Judge on 3rd March 1994,

could not have been relied upon.

22. The conduct of parties after this judgment dated 3rd March 1994 shows

that in ignorance of limited scope available for scrutiny, matter has been considered

on merits by M.R.T. and by Tahsildar on at least three occasions. The learned single

Judge also on 17.8.2000 considered the controversy in W.P. No.3155/ 1999 on merits

and had dismissed the petition.

23. As such, without observing anything more, we find it proper to restore

W.P.No.3155/1999 back to file, for consideration by learned single Judge. Though

learned AGP has invited our attention to judgment of Division Bench in the case of

Kashibai vs. State of Maharashtra (supra), in the backdrop of above-referred facts and

in absence of tribals, we do not find it proper to refer to this judgment and to take any

view of the controversy. The learned single Judge had earlier dismissed Writ Petition

No.3155/1999 on merits and, as such, we find it appropriate to direct parties to address

learned single Judge again in this respect. Legality of judgment dated 03.03.1994 in

Writ Petition No.296/1994 can also be examined then.

24. Accordingly, we quash and set aside the judgment dated 15 th

September, 2000 in Writ Petition No.3155/1999 and restore that Writ Petition back to

the file of learned single Judge for its fresh consideration as per law.

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25. The Letters Patent Appeal is,thus, partly allowed. No costs.

                          JUDGE                               JUDGE
sahare