Sitaram Kanhoji (L.Rs.)Maruti ... vs Ananda Nagoji Bale & Others
2018 Latest Caselaw 371 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


                    WRIT PETITION NO. 3763 OF 1995
                                  ...

             Sitaram S/o Kanoji (Died) L.Rs.:-

     1.      Maroti S/o Sitaram Gaikwad,
             Age. Major, Occ. Agriculture,
             R/o. Pangra, Tq. Kallamnuri,
             Dist. Parbhani.

     2.      Limbaji S/o Sitaram Gaikwad,
             Age. Major, Occ. Agriculture,
             R/o. as above.

     3.      Uttam S/o Sitaram Gaikwad,
             Age. Major, Occ. Agriculture,
             R/o. as above.

     4.      Shivaji S/o Sitaram Gaikwad,
             Age. Major, Occ. Agriculture,
             R/o. as above.

                               Versus

     1.      Ananda S/o Nagoji Bale,
             Age. Major, Occ. Labour,
             R/o. Village Amdari,
             Taluka Kalamnuri, Dist. Parbhani.

     2.      Sakharam S/o Tukaram Bale,
             Age. Major, Occ. Agriculture,
             R/o. as above.

     3.      Kundlik S/o Budhaji Bale,
             Age. Major, Occ. Agriculture,
             R/o. as above.


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     4.      Babarao S/o Pandoji Bale,
             Age. Major, Occ. Agriculture,
             R/o. as above,

     5.      The Additional Tahsildar, 
             Kallamnuri, Taluka Kallamnuri,
             District Parbhani.

     6.      Maharashtra Revenue Tribunal
             Pune/Aurangabad.

     7.  The State of Maharashtra.
                                ...
          Advocate for Petitioner : Shri N.B.Khandare. 
           AGP for Respondents: Mr A V Deshmukh 
                                ...
                  CORAM : V.K. JADHAV, J.

Dated: January 12, 2018 ...

ORAL JUDGMENT :-

1. By way of this writ petition, the petitioners are

challenging the order passed by the Additional

Tahsildar, Kalamnuri dated 27.3.1992 in case

No.1989/Adivasi/3 and confirmed by the learned

Member of the Maharashtra Revenue Tribunal by order

dated 27.6.1995.

2. Brief facts, giving rise to the present writ petition

are as follows :-

a] Respondent nos. 1 to 4 who are the original

applicants filed an application before the Additional

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Tahsildar Kalamnuri questioning therein validation of

transaction in favour of the present petitioners.

According to the respondents/original applicants, they

are the original owners of land sr. no.153 and 152 to the

extent of 3.28 acre and 2.23 acres situated at village

Amdari Tq. Kalamnuri. The lands came to be

transferred under the registered sale deed dated

20.11.1958 and 11.3.1966 in favour of the petitioners. It

has been specifically contended in the said application

that the said transactions fall within the definition of

transfer under section 2 (1) of the Maharashtra

Restoration of the lands to the Scheduled Tribes Act,

1974. (hereinafter referred to as the Act of 1974).

According to the applicants, respondents/original

applicants though fall in the category of tribal and

though belongs to Schedule Tribe Aandh and as such,

such a transfer from tribal to non- tribal is hit by the

provisions of the Act of 1974 and accordingly they

claimed restoration of the said lands in their favour. The

learned Additional Tahsildar by impugned order dated

27.3.1992 in terms of the provisions of section 3 of the

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Act of 1974 directed that the possession of the land

Sy.No.152 and 153 to the extent of 2 acres 23 gunthas

and 3 acres 28 gunthas respectively of village Amdari

Tq. Kalamnuri to be restored to the tribal transferor no.

1 to 4 by evicting the present petitioners/original

respondents (non-tribal transferee). Being aggrieved by

the same, present petitioners preferred the appeal before

the Maharashtra Revenue Tribunal and by impugned

order dated 27.6.1995 learned Member of the

Maharashtra Revenue Tribunal has dismissed the

appeal. Hence, this writ petition.

3. Learned counsel for the petitioners submits that, it

is an admitted position that, respondents/original

applicants belongs to Aandh tribal community and the

petitioners are the non-tribals. Learned counsel

submits that, at the relevant time, said Aandh

community was not considered as tribes and as such,

the transaction that has been taken place on 20.11.1958

and 11.3.1966 cannot be questioned under the

provisions of Act of 1974. Learned counsel submits

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that, said Aandh tribe community identified as a

Scheduled Tribe for the first time in the Scheduled

Caste and Scheduled Tribes Orders Amendment Act,

1976 (Act of 108 of 1976) and prior to that, said Aandh

community was not recognized as a Scheduled tribe.

Learned counsel submits that, in view of the said

transactions that has taken place during the period

1958 to 1966 was not between tribal and non-tribals

and as such, provisions of section 3 and section 2 does

not apply to the facts of the instant case, however, this

aspect has been totally ignored by both the courts

below.

4. Learned counsel in order to substantiate his

contentions placed his reliance on the following two

cases :-

1. Tukaram Laxman Gandewar Vs. Piraji Dharmaji Sidarwar by L.Rs. Laxmibai and others reported in [1989 MHLJ 815].

2. Chandrabhagabai w/o Dhondiba Gutte (died L.Rs.) Godavaribai w/o Laxman Gutte and others Vs. Ladba s/o Narayan Sidarwad and others reported in 2006 (1) Mh.L.J. 485.

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5. None present for respondents 1 to 4.

6. I have also heard the learned AGP for the

respondent State. Learned AGP submits that, both the

authorities below have rightly passed the order in terms

of the provisions of Act of 1974. Learned AGP submits

that, in terms of the provisions of section 3 of the Act of

1974, learned Tahsildar has directed restoration of the

possession in favour of respondent nos.1 to 4 and the

learned Member of the Maharashtra Administrative

tribunal has confirmed the said order. No interference

is required.

7. In terms of article 342 of the Constitution of India,

the President may with respect to any State or Union

territory, and where it is a State, after consultation with

the Governor thereof, by public notification, specify the

tribes or tribal communities or parts of or groups within

tribes or tribal communities which shall for the

purposes of this Constitution be deemed to be

Scheduled Tribes in relation to that State or Union

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     territory,   as   the   case   may   be.    Needless   to   say   that, 

there is finality of the presidential order and the court

cannot add or subtract any entry.

8. The learned counsel for the petitioner has

produced on record the notification published in the

gazette of India pertaining to Schedule Caste and

Schedule Tribes list (modification) order 1956. On

perusal of the same, so far as the State of Maharashtra

is concerned, it appears that, said Aandha tribal

community came to be recognized as a tribe and added

in the list for the first time by amended Act of 108 of

1976. Admittedly, the sale deed came to be executed in

respect of the suit lands on 20.11.1958 and 11.3.1966

respectively. It is thus clear that at the time of

execution of sale deed in respect of the suit lands, in

absence of the presidential order as referred above in

respect of their tribe, transaction is not governed by the

provisions of Section 3 of the Act of 1974.

9. In a case Tukaram Gandewar Vs. Piraji Sidarwar

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(supra) relied upon by the learned counsel for the

petitioners, the Division Bench of this Court in identical

facts held that, the status of the parties, has to be

considered at the time or prior to completion of the

transfer. The change of status after the transfer, if any,

has no relevance and restrictions provided under

section 36-A were not at all attracted. The Division

Bench further observed that, the sale may be even after

1974 but the sale must be between tribal and non-tribal.

The parties must have that status of being a tribal at

the time of transfer and not subsequently.

10. In a case Chandrabhagabai Gutte Vs. Ladba

Sidarwad (supra) relied upon by the learned counsel for

the petitioner, in identical facts this Court has

considered the issue of restoration of land to a tribal

and observed that relevant date to consider restoration

of land is the date on which the transfer is effected.

Since the Tribe Naikda of respondent no.1 was not

recognized as a scheduled tribe on the date he executed

the sale deed in favour of the petitioners, he is not

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entitled to seek restoration of the possession of the

lands.

11. In the instant case, tribe Aandh was also not

recognized as a Tribe on the date of execution of the sale

deed and in view of the same, said transaction was

purely between the non-tribals at the relevant time.

Consequently, the application of the provisions of

Section 3 of the Maharashtra Restoration of Lands to

Scheduled Tribes Act, 1974 is unwarranted and uncalled

for. Both the authorities below have not considered this

material aspect of the case. Hence, following order.

O r d e r

1. Writ Petition is hereby allowed in terms of prayer clauses 'B' and 'C.' Rule is made absolute in above terms.

2. Writ petition accordingly disposed of. No costs.

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( V.K. JADHAV, J. ) ....

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