Laxman Haribhau Vyawahare And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 7370 Bom

                                                    Writ Petition No.7044/2018
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                      WRIT PETITION NO.7044 OF 2018



 Laxman s/o Haribhau Vyawahare & ors.                 ... PETITIONERS

          VERSUS

 The State of Maharashtra & ors.                     ... RESPONDENTS

                               .......
 Shri V.S. Bedre, Advocate for petitioners
 Shri A.B. Chate, A.G.P. for respondents No.1 and 2
 Shri A.G. Ambetkar, Advocate for respondent No.3
                               .......

                                  CORAM :       R. G. AVACHAT, J.

                  Date of reserving order : 2nd March, 2021
                  Date of pronouncing order : 7th May, 2021


 ORDER:

The challenge in this Writ petition is to the order

dated 9/9/2016, passed by the Tahsildar, Parner in Adivasi

Restoration Case No.125/2016 and confirmed by Deputy

Commissioner (Rehabilitation), Nasik Division, Nasik in R.T.S.

Revision No.719/2016.

2. The respondent No.3 preferred the application to

the Tahsildar for restoration of the lands, Gut Nos.96 and 97,

situated at Gajadipur Wadgaon Savtal, Taluka Parner, District

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Ahmednagar on the ground of having been transferred/ sold

in contravention of the provisions of Section 36-A of the

Maharashtra Land Revenue Code, 1966 (MLRC). The

Tahsildar, on enquiry, held the transfers/ sale of those lands to

have been in contravention of Section 36A of the MLRC and,

therefore, to be invalid, and directed those lands to vest in

the State Government. The petitioners unsuccessfully

challenged the said order in revision before the Deputy

Commissioner. The petitioners are, therefore, before this

Court.

FACTS :-

3. The lands Gut Nos.96 and 97 originally belonged

to one Rambha Bala Pawar, grandfather of the respondent

No.3. Rambha and his son Uttam sold these lands to Rahibai

Haribhau Vyawahare on 3/3/1986. Rahibai, in turn, sold

these lands to Ramdas Pokale, Shankar Pokale and Laxman

Vyavahare on 15/2/2011. Ramdas and Shankar, in turn, sold

the lands to Bhau Chormale, Sona Dehekale and Bhima

Shingate (petitioners No.2 to 4 herein).

4. The respondent No.3 moved the application dated

24/1/2014 to the Collector, alleging the lands to have

belonged to his grandfather, a person belonging to Scheduled

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Tribe and the sale of the lands, therefore, were in breach of

Section 36-A of the MLRC. He also claimed for restoration of

those lands back to him and other heirs of late Rambha Bala

Pawar.

As stated above, both the authorities have

concurrently held that the lands belonged to a tribal and have

been transferred to a non-tribal without previous sanction of

the Collector with the approval of the State Government.

5. Heard. Mr. V.S. Bedre, learned counsel for the

petitioners would submit that, both the authorities below have

not taken into consideration the fact that the lands have

changed many a hands during the period of 35 years. The

respondent No.3 did not take exception to the earlier sale

transactions. Late Rambha Pawar has other heirs/

representatives besides the respondent No.3. They have not

taken exception to the transfer of the lands under various sale

deeds. The learned counsel has relied on the judgment of this

Court in case of Vasant Mahadeo Tikekar and others Vs. State

of Maharashtra and others [ 2010(4) Mh.L.J. 773 ], and

ultimately urged for remand of the matter for de novo hearing

since the Tahsildar did not take into consideration all the

aforesaid aspects.

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6. Shri A.G. Ambetkar, learned counsel for

respondent No.3 would, on the other hand, submit that the

lands belonging to tribal came to be transferred to a non-

tribal. The sale instances are, therefore, invalid. The

authorities below have rightly allowed the application moved

by the respondent No.3. No interference is therefore called

for with the impugned order.

The learned A.G.P. supported the impugned order.

7. Section 36-A of the MLRC speaks of restrictions on

transfers on transfers, occupancies by transfer. Section

36A(1) reads :-

"36. (1) Notwithstanding anything contained in sub- section (1) of Section 36, no occupancy of a Tribal shall, after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, be transferred in favour of any non-tribal by way of sale (including sales in execution of a decree of a Civil Court or an award or order of any Tribunal or authority), gift, exchange, mortgage, lease or otherwise, except on the application of such non-Tribal and except with the previous sanction -

(a) in the case of a lease or mortgage for a period not exceeding 5 years, of the Collector; and

(b) in all other cases, of the Collector with the previous approval of the State Government :

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Provided that, no such sanction shall be accorded by the Collector unless he is satisfied that no Tribal residing in the village in which the occupancy is situate or within five kilometers thereof is prepared to take the occupancy from the owner on lease, mortgage or by sale or otherwise.

Provided further that, in villages in Scheduled Areas of the State of Maharashtra, no such sanction allowing transfer of occupancy from tribal person to non-tribal person shall be accorded by the Collector unless the previous sanction of the Gram Sabha under the jurisdiction of which the tribal transfer resides has been obtained.

Provided also that, in villages in Scheduled Areas of the State of Maharashtra, no sanction for purchase of land by mutual agreement, shall be necessary, if, -

(i) such land is required in respect of implementation of the vital Government projects; and

(ii) the amount of compensation to be paid for such purchase is arrived at in a fair and transparent manner."

8. Moreover, Section 3 of the Maharashtra

Restoration of Lands to Scheduled Tribes Act, 1974

(Maharashtra Act No.XIV of 1975) (Act of 1975 for short)

reads :-

"3. (1) Where due to transfer -

(a) the land of a Tribal-transferor is held by a non-

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Tribal-transferree, or

(b) the land acquired in exchange by a Tribal- transferor is less in value than the value of the land given in exhcnage,

and the land so transferred is in possession of the non-Tribal-transferee, and has not been put to any non-agricultural use on or before the 6th day of July, 1974, then, notwithstanding anything contained in any other law for the time being in force, or any judgment, decree or order of any Court, Tribunal or authority, the Collector either suo motu at any time, or on the application of a Tribal-transferor, made, within thirty years from the 6th July 2004 shall, after making such inquiry as he thinks fit, direct that -

(i) the lands of the Tribal-transferor and non- Tribal-transferee so exchanged shall be restored to each other; and the Tribal-transferor, or as the case may be, the non-Tribal-transferee shall pay the difference in value of improvements as determined under clause (a) of sub-section (4), or

(ii) the land transferred otherwise than by exchange be taken from the possession of the non- Tribal-transferee, and restored to the Tribal- transferor, free from all encumbrances and the Tribal- transferor shall pay such transferee and other persons the amount determined under clause (b) of sub- section (4).

Provided that, where land is transferred by a Tribal- transferor, in favour of non-Tribal-transferee before the 6th day of July, 1974, after such transferee was rendered landless by reason of acquisition of his land for a public purpose, then only half the land so transferred shall be restored to the Tribal-transferor.

Explanation : Where the land of a tribal and non- Tribal are purported to have been transferred to each other, otherwise than by exchange, . . . . . . ."

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9. Section 2(j) of the Act of 1975 defines the term

"Tribal" to mean a person belonging to a Scheduled Tribe

within the meaning of explanation to Section 36 of the MLRC

and includes his successor-in-interest. Section 2(k) of the Act

of 1975 states tribal-transferor includes his successor-in-

interest. It is not in dispute that Rambha Bala Pawar

belonged to Bhil community. The Bhil community has been

recognized as Scheduled Tribe. There is on record a copy of

Tribe Certificate issued by competent authority recognizing

Ashok Pawar to have belonged to Scheduled Tribe - Bhil

Undisputedly, the petitioner and other transferees are non-

Tribals. The lands Gut Nos.96 and 97 changed many a hands

from March 1986 to July 2012. Since the lands have been

sold by a tribal without previous sanction of the Collector with

the approval of the State Government. to the non-Tribal, first

in March 1986 and their subsequent sale on 15/2/2011 and

10/7/2012, are hit by Section 36-A of the MLRC. The sale

transactions are invalid.

10. It is true, late Rambha Pawar, original owner of

the Tribal lands has other heirs/ legal representatives

including the respondent No.3. It is only the respondent No.3

who has challenged the transfer of the lands. It needs no

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mention that, tribal-transferor includes his successor-in-

interest. The successor-in-interest may be one or more. The

application dated 24/1/2014 moved by the respondent No.3

suggests that it was moved for restoration of the land to all

the heirs of original tribal-transferor- Rambha. It needs no

mention that, one of the successor-in-interest may file such

an application for the benefit of one and all. It is also true

that the respondent No.3 could have moved such application

long before the lands came to be purchased by the petitioner.

This, however, cannot be an excuse. The Collector has also

been authorized to suo motu make enquiry as to whether

transfer of lands/ occupancy is in contravention of Section 36A

of MLRC. As such, there is no merit in the submission of the

learned counsel for the petitioner in asking for remand of the

matter.

11. I have perused the judgment in case of Vasant

(supra) to find that the land therein had been purchased by

one Budhiya. It was his self acquired property. Upon his

death, the land was acquired by his widow - Anandibai.

Although Budhiya was a Tribal, Anandibai was not. The land

after having become the absolute property of Anandibai, a

non-tribal, came to be sold. The proceedings under Section 3

of the Act of 1975, therefore, came to be dropped. The facts

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of Vasant's case are quite different. The petitioner cannot be

benefited by placing reliance on the said judgment. The

respondent No.3 here claims through his grandfather -

Rambha, a tribal. The respondent No.3 being successor-in-

interest of the original transferor, is considered to be a tribal-

transferor within the meaning of Section 2(k) of the Act of

1975.

12. When the first transfer of the tribal land was hit by

Section 36-A of MLRC, the subsequent transfer thereof could

not be saved. The petitioners to blame themselves for

purchasing the lands which originally belonged to a tribal.

Both the authorities below have rightly concluded the sale of

the tribal land to have been hit by Section 36A of the MLRC.

In my view, therefore, no interference is called for with the

impugned orders.

The Writ Petition therefore fails and is thus

dismissed. Interim relief stands vacated.

( R. G. AVACHAT ) JUDGE

fmp/-