Bombay High Court
Smt.Deokabai Ganpatsingh ... vs Miraj Hiraman Ingle & 3 Others on 11 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3155/1999
1] Smt. Deokabai Wd/o Ganpatsingh
Solanke, R/o Varvat Bakal, Tq.
Sangrampur, Dist. Buldana
2] Smt. Gumphabai Mahadeo Daberao,
R/o Budaji Nagar, Indora Chowk,
Nagpur
3] Sou. Vimal Hukumchand Pawar,
R/o Mana, Tq. Murtizapur,
Dist. Akola
4] Smt. Kamlabai Amarsingh Maloy,
5] Narsingh Ganpat Solanke
6] Gajanan S/o Ganpat Solanke,
Nos. 4 to 6 R/o Raipur Badaipara,
Tq. & Dist. Raipur (M.P.) ... PETITIONERS
...V E R S U S...
1] Miraj Hiraman Ingle,
R/o Varvat Bakal,
Tq. Sangrampur, Dist. Buldana
2] Nagorao Raghoji Ingle,
R/o Varvat Bakal,
Tq. Sangrampur, Dist. Buldana
(Deleted as per Courts
order dated 11/08/2000)
3] Taluka Sangrampur Buddhavihar
Samiti, Varvat Bakal, through its
Secretary, Shivram Lahanu Ingle,
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R/o Varvat Bakal, Tq. Sangrampur,
Dist. Buldana
4] The State of Maharashtra,
through the Secretary, Department
of Revenue and Forest, Mantralaya,
Mumbai-32 ... RESPONDENTS
===================================
Shri T.G. Bansod, Advocate for the respondent nos. 1 and 3
Shri A.M. Kadukar, AGP for the respondent no. 4
===================================
CORAM:- Z.A. HAQ,J.
th
DATED :- 11 JANUARY, 2018
ORAL JUDGMENT :-
On 08/01/2018, it was submitted on behalf of
Shri M.G. Bhangde, Advocate and Shri V.V. Bhangde, Advocate
that they are not having instructions from the petitioners, they had
filed no instructions pursis in Letters Patent Appeal and they are
not able to represent the petitioners in this writ petition also. The
submission made on behalf of the advocate representing the
petitioners was recorded and the matter was adjourned for
10/01/2018. On 10/01/2018, none appeared for the petitioners
and therefore the matter was adjourned for 11/01/2018 (i.e.
today). Today again, none appears for the petitioners.
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The writ petition is pending since 1999 and the
proceedings are of 1987.
Heard Shri T.G. Bansod, Advocate for the respondent
nos. 1 and 3 and Shri A.M. Kadukar, AGP for the respondent no. 4.
2] The petitioners claiming to be tribals approached the
Tahsildar under Section 6 of the Maharashtra Restoration of Lands
to Scheduled Tribes Act, 1974 (hereinafter referred as "the Act of
1974"), praying that the land in question which is now in
possession of the respondent no. 3 is transferred in violation of the
provisions of the Act of 1974 and therefore the transfer is illegal
and the possession of the land in question is required to be
restored to the petitioners. The concerned authorities dealt with
the matter, there had been several remands including remand by
this Court by the judgment passed in Writ Petition No. 296/1994.
In my view, the details of the earlier orders are not required to be
mentioned here as they are not relevant.
3] The Tahsildar, by the order dated 22/05/1998 held
that the predecessor of the present petitioners-Shri Ganpatsingh
Solanke was the owner of the land in question, the land was
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auctioned on 11/03/1968 for recovery of arrears of the land
revenue, the respondent no. 1-Shri Miraji Hiraman Ingle had
purchased the land in auction and as the transfer was much prior
to 15/04/1971, Shri Ganpatsingh Solanke-predecessor of the
present petitioner and then the present petitioners are not entitled
for the restoration of the land in question. The Tahsildar rejected
the application filed by the petitioners.
This order was challenged by the petitioners before the
Maharashtra Revenue Tribunal in appeal which is allowed by the
impugned order, the order passed by the Tahsildar is set aside and
the matter is remanded to the Tahsildar for fresh inquiry. The
order passed by the Maharashtra Revenue Tribunal is challenged
in this writ petition.
4] After hearing the learned advocates for the respective
parties, this Court had disposed the writ petition pronouncing the
judgment on 17/08/2000. The farad sheet dated 22/08/2000
shows that the writ petition was again listed for hearing, it was
again heard and decided by the judgment dated 15/09/2000 and
the writ petition came to be allowed. This judgment dated
15/09/2000 was challenged in L.P.A No. 40/2001. This Letters
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Patent Appeal is decided on 05/10/2017, the judgment passed on
15/09/2000 is set aside and the matter is remanded to the Single
Judge for deciding the writ petition afresh. This is how the writ
petition is placed before me.
5] The facts recorded in the judgment given in the Letters
Patent Appeal show that the parties were ad idem before the
Division Bench that this writ petition was dismissed on
17/08/2000. It appears that though the judgment was pronounced
on 17/08/2000 in the open Court, before the judgment could be
prepared, the matter was mentioned by the advocate appearing for
the petitioners, the learned Single Judge accepted the request
made on behalf of the petitioners for re-hearing of the writ
petition and then again heard it and decided by the judgment
dated 15/09/2000. In the judgment given in the Letters Patent
Appeal, it is recorded that the copy of the judgment pronounced
on 17/08/2000 is not on record. It appears that request was made
by the advocate appearing for the petitioners for re-hearing and as
it was accepted, the judgment might not have been prepared.
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6] Be that as it may, in view of the directions given by the
Division Bench in the judgment delivered in the Letters Patent
Appeal on 05/10/2017, the writ petition has to be decided on
merits.
7] In the order dated 22/05/1998, the Tahsildar has
recorded a finding of fact that the land in question was auctioned
on 11/03/1968 for recovery of the arrears of land revenue and it
was purchased by the respondent no. 1- Shri Miraji Hiraman Ingle.
This finding of fact is confirmed by the Tribunal also. In para 5 of
the impugned order, the Tribunal has recorded that admittedly the
land in question was auctioned on 11/03/1968 by the Tahsildar,
Sangrampur for recovery of "Tagai- Loan". The petitioners have
not placed any material on record on the basis of which it can be
said that this finding of fact recorded by the Tahsildar and the
Tribunal is unsustainable.
However, the Tribunal has recorded that the auction
purchaser i.e. the respondent no. 1, being non-tribal and the
auction being a "Transfer" as contemplated under the provisions of
the Act of 1974, it would be hit by the provisions of the Act of
1974. The Tribunal has recorded that while deciding the Tribal
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Appeal No. B-109/94/89 earlier, the Tribunal had held that the
transfer, by the auction dated 11/03/1968 was hit by the Act of
1974 as the transfer took place between 01/04/1957 and
06/07/1974. In view of these findings, the Tribunal found that the
order passed by the Tahsildar is not sustainable. I find that the
Tribunal has committed an error of jurisdiction, at this stage.
The order passed by the Tribunal earlier, in Tribal
Appeal No. B-109/94/89 was challenged before this Court in Writ
Petition No. 296/1994. This writ petition was allowed by this
Court by the judgment dated 03/03/1994. The order passed by
the Tribunal in Tribal Appeal No. B-109/94/89 on 18/09/1993
was set aside and the matter was remanded to the Tribunal for
fresh decision. While remanding the matter, by the judgment
dated 03/03/1994, in para 4 of the judgment, this Court recorded
that if the transfer in favour of Miraji Hiraman Ingle was prior to
15/04/1971, then the question of restoration of the land in
question to the petitioner would not arise. While passing the
impugned order, the Tribunal has overlooked the conclusions of
this Court and has relied on its earlier conclusions recorded in the
order dated 18/09/1993 which is set aside by this Court in Writ
Petition No. 296/1994.
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8] After examining the record, I find that the first transfer
of the land in question from tribal to non-tribal is by the auction
held on 11/03/1968. This Court has already recorded in the
judgment given in Writ Petition No. 296/1994 that if the transfer
is prior to 15/04/1971, then the question of restoration of the land
in question to the petitioners would not arise.
In view of the above, I hold that the impugned order
passed by the Tribunal remanding the matter to the Tahsildar is
unsustainable and has to be set aside.
9] The petitioners who claim to be the tribals have
challenged the order passed by the Tribunal remanding the
matter. The respondent no. 3 who is now in possession of the land
in question has not challenged the order passed by the Tribunal. In
these facts, in normal course, it would not be appropriate to
restore the order passed by the Tahsildar in petition filed by the
persons against whom that order would operate. However, as I
find that all the relevant facts are on record and already there is
an adjudication by this Court in Writ Petition No. 296/1994, as
recorded earlier and as the litigation is going on since more than
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three decades, it would be an unwanted and futile exercise to
again remand the matter to the Tribunal for deciding the appeal
afresh.
Therefore, I deem it just and proper to restore the order
of the Tahsildar.
Hence, the following order is passed:-
O R D E R
1] The impugned order is set aside.
2] The order passed by the Tahsildar on
22/05/1998 is restored.
3] The application filed by the petitioners
under the provisions of the Maharashtra
Restoration of Lands to Scheduled Tribes Act, 1974
is dismissed.
The writ petition is disposed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
