Bombay High Court
Baliram S/O Reva Chavhan Thr. ... vs Gajanan S/O Shekarao Wanjare And ... on 21 April, 2023
Bench: Sunil B. Shukre, A.S. Chandurkar, Anil Laxman Pansare
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1701 OF 2019
Baliram S/o Reva Chavhan ]
Aged about 54 years, Occ. Agriculturist, ]
Through his Power of Attorney Holder :- ]
Shrikant S/o Baliram Chauhan, ]
Aged about 30 years, Occ. Self Employed, ]
R/o. Near Gajanan Maharaj Mandir, ]
Pusad, District - Yavatmal. ] .... PETITIONER
VERSUS
1) Gajanan S/o Shekrao Wanjare, ]
Aged about 35 years, Occ. Agriculturist, ]
R/o. Adegaon, Post Adegaon, ]
Tehsil Pusad, District Yavatmal. ]
2) Ravichand Dhansingh Rathod, ]
Aged about 62 years, Occ. Agriculturist, ]
R/o. Gandhinagar, Pusad, ]
District Yavatmal. ]
3) Rajusingh Dhansingh Rathod, ]
Aged about 61 years, Occ. Agriculturist, ]
R/o. Adegaon, Post Adegaon, ]
Tehsil Pusad, District Yavatmal. ]
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4) Asha Rajusingh Rathod, ]
Aged about 55 years, Occ. Agriculturist, ]
R/o. Adegaon, Post Adegaon, ]
Tehsil Pusad, District Yavatmal. ]
5) The Tahsildar, Pusad, ]
Tehsil Office Pusad, District Yavatmal. ] .... RESPONDENTS
Mr. S.P. Dharmadhikari, Senior Advocate with Mr. A.M. Sudame, Advocate
for the Petitioner in W.P. No.1701/2019 & W.P. No.6059/2016.
Mr. Bhojraj Dhandale, Advocate in C.P. No.23/2017.
Mr. M.P. Khajanchi, Advocate for the Appellant in LPA No.60/2011.
Mr. Panchakukar Karekar, Advocate, with Mr. Rishi Narkhede, Advocate for
Respondent No.1 in W.P. No.1701/2019.
Mr. Dhandale, Advocate for Respondent Nos.l5(a) & 5(b) in W.P.
No.6059/2016.
Mr. Hemraj Sakhare, Advocate for the Respondent in C.P. No.23/2017.
Mr. S.M. Ukey, Additional Government Pleader for Respondent No.5 in W.P.
No.1701/2019, Respondent Nos.1 and 2 in W.P. No.6059/2016 and Sole
Respondent in LPA No.60/2011.
Mr. S.P. Bhandarkar, Advocate, with Ms. Sejal Lakhani, Advocate for the
Intervenor.
CORAM : SUNIL B. SHUKRE, A.S. CHANDURKAR AND ANIL L. PANSARE, JJ
Date of Reserving the Judgment : 20 TH DECEMBER 2022.
Date of Pronouncing the Judgment : 21 ST APRIL 2023.
[ In Chamber - Through Video Conference ]
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JUDGMENT : ( Per SUNIL B. SHUKRE, J. )
1. Heard.
2. By this reference, we have been called upon to answer a question
which arises quite often while applying the provisions of Section 3 of the
Maharashtra Restoration of Lands to Scheduled Tribes, 1974 (for short
"Restoration Act") and which has intrigued legal minds in the State of
Maharashtra for quite sometime. For answering the question, a brief
reference to the facts of the case would be useful.
3. The petitioner, a non-tribal, is an owner of the agricultural field
involved in the petition, which is hereinafter called as 'the land in question'.
It was purchased by the petitioner from respondent no.4 vide registered sale
deed dated 26.06.1994. The land in question was a part of larger piece of
land belonging to father of respondent no.1 late Mr. Shekorao who sold it to
one Dhansingh Rathod by executing the sale deed in the year 1968.
Dhansing, thereafter, partitioned the land and the land in question came to
the share of respondent no.2. Respondent no.2 sold the land in question to
the respondent no.4 and thereafter the respondent no.4, on 22.06.1994, sold
the land in question to the petitioner and since then the petitioner is in
continuous cultivating possession of the land in question.
4. Father of respondent no.1 and for that matter the respondent no.1
belonged to "Andh" tribal community, however, this community came to be
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included in the list of Scheduled Tribe's contained in the Scheduled Tribes
Order, 1950 only in the year 1974, insofar as place of residence of
Respondent No.1 was concerned. The land in question had been transferred
for the first time by father of respondent no.1 in the year 1968 and at that
time "Andh" community was not recognized to be a Scheduled Tribe in
relation to the certain parts of Maharashtra. The Restoration Act, which
provided for protection to a tribal by directing restoration of land from a
non-tribal transferee to a tribal transferor, came into force in the State of
Maharashtra with effect from 01.11.1975. Realizing that the protection had
been conferred upon tribals and having become sure of his status as a person
belonging to Scheduled Tribe, respondent no.1, in the year 2016, filed an
application before the Respondent no.5, the Tahsildar Pusad seeking
restoration of the land in question in terms of Section (3) of the Restoration
Act.
5. Respondent No.1 contended that transfer of the land in question by his
father, who was recognized to be a tribal subsequently in the year 1974,
stood in violation of the provisions of the Restoration Act. The petitioner
contested the application, but in vain. The Respondent No.5 allowed the
application of respondent no.1 and directed that the land in question be
restored to the respondent no.1, and the revenue record be mutated
accordingly. He also directed the petitioner to hand over the possession of
land in question to the respondent no.1 within 30 days of the date of the
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order. The appeal preferred by the petitioner against this order of respondent
no.5 did not prove to be a fruitful exercise for the petitioner as it came to be
dismissed on 06.02.2019 by Maharashtra Revenue Tribunal.
6. Being aggrieved, the petitioner is now before the High Court. When
the petition was heard by the learned Single Judge, who is part of this larger
bench, a question arose, as to whether or not the transfer of land by a tribal
to a non-tribal would be affected by section 3 of the Restoration Act, if on the
date of such transfer, the tribal was not recognized to be of a Scheduled Tribe
and his tribe was subsequently included in the Scheduled Tribe's Order,
1950. The question arose primarily on account of conflict of views in two
judgments rendered by two different division benches, one in the case of
Tukaram Laxman Gandewar Vs. Piraji Dharmaji Sidhalwar by LR's Laxmibai
and Ors. 1989 MH.L.J. 815 and second in Kashibai widow of Sanga Pawar
and ors. vs. State of Maharashtra, 1993 (3) MH.L.J. 1168 . In Tukaram
Laxman Gandewar, a judgment prior in point of time than the judgment in
Kashibai, it was held that a transferor would be entitled for restoration of the
transferred land under section 36A of the Maharashtra Land Revenue Code,
1966 (for short "Code") only if he was a tribal within the meaning of
Explanation to Section 36 of the Code on the date of the transaction and this
judgment was followed by various learned single Judges in several cases, a
reference to which can be found in the referral order. But, in Kashibai the
other Division Bench held that irrespective of date on which a tribe is
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recognized as such and included in the Scheduled Tribe's Order, 1950, such
tribal-transferor would be entitled to be restored the lands transferred by
him under the provisions of the Restoration Act. It was also held that Section
36A of the Code was prospective. The judgment, however, held that
provisions of Section 3(1) of the Restoration Act would apply to past
transactions. It was further held that the view taken in Tukaram Laxman
Gandewar was per incuriam.
7. Noticing the conflict of views in Tukaram Laxman Gandewar and
Kashibai, the learned single Judge found that the position as it emerged there
from was irreconcilable, as on the one hand, the division bench in Tukaram
held that the date of recognition of a transferor as a tribal by Scheduled
Tribe's Order is relevant and if such recognition is granted after the date of
transfer, the transferor would not be entitled to seek restoration of the land
in question in terms of Section 36A of the Code and on the other hand,
Kashibai putforth a view that the judgment of the division bench in Tukaram
Laxman Gandewar was rendered per incuriam and further held that Section
3 (1) of the Restoration Act would operate on past transactions between the
parties and thus even if a transferor was not a tribal within the meaning of
the Restoration Act on the date of the transfer and was subsequently included
in the Scheduled Tribe's Order, 1950 by virtue of an amendment, such
transferor would be entitled to seek restoration of the transferred land by
virtue of the provisions made in section 3 (1) of the Restoration Act.
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8. Learned single Judge, therefore, found it fit to seek resolution of the
divergence of views by making a reference to a Bench of two or more learned
Judges, if considered appropriate by the Hon'ble the Chief Justice. In doing so
the learned single Judge also referred to the view taken by Single Bench at
Aurangabad in the case of Chandrabhagabai Dhondiba Gutte v/s Ladba son
of Narayan Sidarwad and Ors. reported in 2006 (1) MLJ 485 . The view so
taken was after referring to the judgment of the Constitution bench of the
Supreme Court in the case of State of Maharashtra vs. Milind 2001 (1)
MH.L.J. (1). It was to the effect that a transferor would not be entitled to
restoration of the transferred land if on the date of the transfer he was not
recognized as a Scheduled Tribe by virtue of his exclusion from the
Scheduled Tribe's Order, 1950. Learned Single Judge found that even
though a person is born in a tribal community, such person would not get
the status of a tribal for the purposes of the Restoration Act till his
community is recognized as a Scheduled Tribe. Hence, was framed the
question by the learned Single Judge, which we are called upon to answer
here. It reads thus :
"Whether the subsequent recognition of the transferor as a
tribal after transfer of the land would entitle the transferor
to seek restoration of possession of land under Section 3(1)
of the Maharashtra Restoration of Lands to Scheduled Tribes
Act, 1974 as held in Kashibai wd/o Sanga Pawar and ors. Vs.
State of Maharashtra, 1993 (2) Mh.L.J. 1168 or whether
such subsequent recognition would be of no assistance to
the tribal transferor as held in Tukaram Laxman Gandewar
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Vs. Piraji Dharmaji Sidarwar by LRs Laxmibai and others,
1989 Mh.L.J. 815"
9. The question referred to us arises from the provisions made in the
Restoration Act, in particular Section 3 thereof. But, as we would see in later
part of this judgment, it also has its relation to the explanation to Section 36
of the Code, as amended by Mah. Act 35 of 1974 and Mah. Act 11 of 1976.
10. The legislative history of the Restoration Act, amendments introduced
to Section 36 of the Code and insertion of Section 36A in the Code by way of
amendment has been discussed in details by the Division Bench of this Court
in the case of Kashibai. A brief reference to it would provide to us insight
about the issue involved in this reference.
11. The legislative history shows that the Government of Maharashtra had
appointed a Committee by its Resolution dated 15.03.1971 to enquire into
and report to it, inter alia, on how far the provisions of the Code and the
relevant Tenancy Acts have been effective in giving protection to persons
belonging to Scheduled Tribes and to suggest amongst other things suitable
amendments therein, if any of the existing provisions are found to be
inadequate. It further shows that Committee submitted its report and
recommended that provisions should be made for restoration to persons
belonging to Scheduled Tribes the lands which had been duly transferred to
other persons. It is further seen that these recommendations were duly
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considered by the Government of Maharashtra and there occurred
enactment of the Restoration Act which came into force w.e.f. 01.11.1975
and also introduction of amendment to the Code and further amendment to
it by MAH.35 of 1974. By these amendments, Explanation to Section 36 of
the Code which defines the concept "Scheduled Tribes" came to be widened
in its scope and Section 36A providing for restrictions on transfer of
occupancies of tribal came to be inserted in the Code. It is further seen that
the intention of the legislation was to confer benefits upon the tribals by
restoring their lands, which were transferred to non-tribals during the
period mentioned in the Restoration act and imposing restrictions on transfer
of occupancies by tribals to non-tribals on or after 06.07.1974, without
previous sanction of the Collector or previous approval of the State
Government as the case may be.
12. While implementing these provisions of law, difficulties arose such as
what would happen if a transferor, not a tribal, who had sold his land to a
non-tribal, is subsequently included in the Schedule to the Constitution
(Scheduled Tribes) Order, 1950 (for short the "Order 1950") as a Scheduled
Tribe and whether Section 36A of the Code was retrospective or prospective
in operation. When these issues reached the High Court through different
petitions, conflicting views were expressed. These conflicting views could be
broadly divided into two views. One view which emanated from the case of
Tukaram Laxman Gandewar (supra), decided at Aurangabad, is that unless a
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transferror is a tribal as defined in Explanation to Section 36 of the Code on
the date of the transaction, he would not be entitled to the benefit of
restriction provided under Section 36A of the Code even if, he has been
subsequently included as a Scheduled Tribe in the Order 1950. This view
has been followed by different Benches of learned Single Judges in cases of
(1) Lachmanna Maalanna Alurwar Vs. Maharashtra Revenue Tribunal and
others, 1992 (2) Mh.L.J. 1139, Gopal S/o Jianna Madrewar Vs. Poshatti S/o
Bhojanna Khurd and Others, 1997 (1) ALL.MR 341, (3) Sheikh Mohammed
Sheikh Gulab Vs. The Additional Commissioner, Aurangabad 1997 (1) ALL
MR 680, (4) Bhujaji Mahadu Ingole Vs. The Additional Commissioner,
Auraugabad 1997 (2) Mh.L.J. 261, (5) Chandrabhagabai Dhondiba Gutte Vs.
Labda Narayan Sidarwad, 2006 (1) Mh.L.J. 485 and (6) Ravindra Natthuji
Dhobe Vs. Member, Maharashtra Revenue Tribunal, Nagpur, 2019 (1)
Mh.L.J. 677. Second view arose from the judgment of a Division Bench at
Nagpur in Kashibai. It is that since right to restoration of the land is
conferred upon a tribal as defined in the Restoration Act, it is of no
consequence as to what status he held when the transaction was actually
entered into by him, meaning thereby that even if the transferor on the date
of the transaction was not a tribal and subsequently became a tribal, the
transaction would be covered by the mischief of Section 3 of the Restoration
Act thereby entitling the tribal to get the land restored to him. Same view
had been earlier expressed by the learned Single Judge who was part of the
bench in Kashibai, in the earlier case of Chhotelal Bansilal Awasthi Vs. State
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of Maharashtra, 1990 (2) Mh.L.J. 766 . The view taken in Kashibai was
followed by learned Single Judges in some other cases, such as, (i) Vimlabai
and Another Vs. State of Maharashtra and Another, 2002 SCC Online Bom
790, (ii) Mulchand S/o Ganpat Surpame and Others Vs. Rambhau Gopalrao
Ingale (Dead) through Lrs. and Others , (iii) Writ Petition No. 428/2008 ,
decided on 30.03.2015 and (iv) Bapurao S/o Narayan Telrandhe Vs. Shalik
Rambhau Sarate and Others, 2004(3) Mh.L.J. 1095 .
13. There was one more case brought to our notice by learned counsel for
the petitioner in Writ Petition No. 1701/2019, decided by learned Single
Bench after Tukaram and Chotelal but before Kashibai. This was the case of
Babulal Ramnath Dekate and Others Vs. Shantabai Wd/o Hari Dekate, 1990
(2) Mh.L.J. 679. The learned Single Judge held that if on the date of Order,
1950, a 'Halba Koshti' of Wardha District was not notified as a Scheduled
Tribe under the Order, 1950, he would not be deemed to be a Scheduled
Tribe only because the Parliament subsequently amended the Order, 1950 by
the Scheduled Castes and Scheduled Tribes Order (Amendment) Act of 1976,
thereby conferring the status of Scheduled Tribe on Halba Koshtis of Wardha
District. The learned Single Judge reasoned that since the Parliament had
explicitly made the operation of 1976 Act prospective, no benefit attached to
a Scheduled Tribe can be extended to a person who was subsequently
included in the Order, 1950 as a Scheduled Tribe. Similar view was taken by
a learned Single Judge of Madhya Pradesh High Court in the case of
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Mangilal and Others Vs. Registered Firm Mittilal-Radheylal Rastogi and
Others, AIR 1978 MP 160.
14. It can be thus seen that divergence of views in respect of conferment
of benefits of the Restoration Act upon a transferor who was not a tribal as
such in law on the date of the transaction is clear and sharp. For resolution
of the conflict, it would be necessary for us to consider the relevant
provisions contained in the Restoration Act and the Code. The principal
Section that is required to be considered is Section 3 of the Restoration Act.
Together with it, it would also be necessary for us to examine the definition
of the keywords such as "non-Tribal", "Transfer" and "Tribal" provided in
Section 2 of the Restoration Act. Such examination would also require
making of reference to Explanation provided to Section 36A of the Code.
These relevant provisions are therefore extracted to the extent of their
relevant parts as below :-
"The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.
Section 3. Restoration or transfer of lands to Tribals in certain
cases.
(1) Where due to transfer -
(a) the land of a Tribal-transferor is held by a non-
Tribal-transferee, or
(b) the land acquired in exchange by a Tribal-
transferor is less in value than the value of the land
given in exchange, and the land so transferred is in
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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
claiming encumbrances the amount
determined under clause (b) of sub-section
(4):
Provided that, where land is transferred by a
Tribal-transferor in favbour of non-Tribal-
transferee before the 6th day of July, 1974, after
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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.
Section 2. Definitions.
(1) In this Act, unless the context requires otherwise -
(a) ..............................................
(e) "Non-Tribal" means a person who is not a
Tribal and includes his successor-in-interest;
.......................................
(i) "Transfer" in relation to land means the
transfer of land belonging to a tribal
made in favour of a non-tribal during the
period commencing on the 1st day of April
1957 and ending on the 6th day of July 1974,
either-
(a) by act of parties, whether by way of sale,
gift, exchange, mortgage or lease or any
other disposition made inter-vivos; or
(b) under a decree or order of a court, or
(c) for recovering any amount of land
revenue due from such Tribal, or for
recovering any other amount due from
him as an arrears of land revenue, or
otherwise under the Maharashtra Co-
operative Societies Act, 1960 or any other
law for the time being in force but does
not include a transfer of land falling
under the proviso to sub-section (3) of
section 36 of the Code; and the
expressions "Tribal-transferor" and non-
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Tribal transferee" shall be constructed,
accordingly;
(j) "Tribal" means a person belonging to a
Scheduled Tribe within the meanings of
the Explanation to section 36 of the Code,
and includes his successor -in-interests;
The Maharashtra Land Revenue Code, 1966
Section 36. Occupancy to be transferable and heritable
subject to certain restrictions -
................................................
................................................
Explanation - For the purposes of this Section,
"Scheduled Tribes" means such tribes or tribal
communities or parts of, or groups within, such
tribes of tribal communities as are deemed to be
Scheduled Tribes in relation to the State of
Maharashtra under Article 342 of the Constitute of
India [and persons, who belong to the tribes or tribal
communities, or parts of, or groups within tribes or
tribal communities specified in Part VIIA of the
Schedule to the order [made under] the said Article
342, but who are not residents in the localities
specified in that Order who nevertheless need the
protection of this Section and Section 36A (and it is
hereby declared that they do need such protection)
shall, for the purposes of those Sections be treated in
the same manner as members of the scheduled
Tribes.]
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15. It would be clear that Section 3 of the Restoration Act, a remedial and
beneficial legislation, impacts the transfer of land by a Tribal-transferor to
non-Tribal-transferee between 1st April, 1957 and 6th July, 1974. It lays
down that where due to such transfer of land of a tribal to a non-tribal, the
land is in possession of the non-tribal and has not been put to any non-
agricultural use on or before 6 th July 1974, the tribal would be entitled to
seek its restoration by following the procedure prescribed in Section 3 of the
Restoration Act. Such restoration can be there even at instance of the
Collector taking suo motu cognizance of such transfer of land. It would be
further clear that in order to qualify for benefit of Section 3 of the
Restoration Act, the tribal must be a person belonging to a Scheduled Tribe
within the meaning of the Explanation to Section 36 of the Code and
includes his successor-in-interest and the non-tribal must be a person who
is not a tribal and would include his successor-in-interest.
16. Explanation to Section 36 of the Code indicates that the expression
"Scheduled Tribes" means such tribes or tribal communities or parts of, or
groups within, such tribes or tribal communities as are deemed to be
Scheduled Tribes in relation to the State of Maharashtra under Article 342 of
the Constitution of India, irrespective of the area or the place of which they
are residents. That only means that when a person who is a resident of a
locality not specified in the Order, 1950, in relation to the State of
Maharashtra, would also be entitled to be called a person belonging to a
Kirtak / Dixit 16/44 Writ Petition No.1701 of 2019
Scheduled Tribe and thus entitled to the protection granted under Section 3
of the Restoration Act.
17. Section 36 and 36A of the Code also grant protection to the persons
belonging to the Scheduled Tribes. Section 36(2) and 36A inserted in the
Code by way of amendment by Mah. Act No.35 of 1974, which came into
force w.e.f. 06th July, 1974, impose restrictions on transfer of occupancies of
the Scheduled Tribes to non-tribals except with the previous sanction of the
Collector or previous approval of the State Government as the case may, in
the cases specified therein. Although, we are not called upon to interpret
effect of these provisions of the Code, we have made a reference to them just
to have an idea about the background of definition of the term "Tribal"
appearing in Section 2 of the Restoration Act. This term has been defined
with the aid of Explanation to Section 36 of the Code and so, a curious mind
may ask, why is it so? This inquisitiveness would be satisfied, hopefully, by
seeing that Explanation to S.36, which finds it's place by incorporation in
Section 2 of the Restoration Act, a subsequent Act, is not a provision picked
up randomly to define "Tribal" in the Restoration Act, but is a tool used for
uniformly clarifying a concept, an identity of being a tribal, around which a
protective seine has been woven in two legislations which are separate in
time context but substantially similar in benefit quotient. That apart in
Kashibai, the Division Bench held that Explanation to Section 36 of the Code
has been incorporated in Section 2(1)(j) of the Restoration Act, and rightly so,
Kirtak / Dixit 17/44 Writ Petition No.1701 of 2019
as Mah.Act No.35 of 1974, which came into force w.e.f. 6 th July, 1974 is a
previous Act and the Restoration Act, which came into force w.e.f. 1 st
November 1975, is a subsequent Act. So, any reference to Explanation 36,
would necessarily involve examination of it's contextual setting and that is
why we have had a cursory glance at Section 36(2) and Section 36A of the
Code.
18. This would take us to the rival arguments which are so well informed
and so enlightening as to have given us an enriching experience and
effective assistance in deciding the controversy involved here. We place on
record our appreciation for learned Senior Advocate and learned Advocates
who have rendered their assistance to us.
19. The rival arguments that have been made before us are broadly
divided into three groups. One group led by Mr. S.P. Dharmadhikari, learned
Senior Advocate has submitted that in order to be entitled to protection of
Section 3 of the Restoration Act, a tribal, as defined in Section 2(1)(j) of the
Restoration Act, must be a Scheduled Tribe as indicated in Explanation to
Section 36 of the Code and that would mean that unless and until such
person held the status of a Scheduled Tribe on the date of the transaction,
such person would not qualify himself to be called a "Tribal" within the
meaning of Section 2(1)(j) of the Restoration Act and thus the transfer of land
made by him to a non-tribal anytime between 1 st April, 1957 and 6th July,
1974 would not be covered by the remedy provided under Section 3 of the
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Restoration Act. This group also submits that since there may have been some
transfers of land by the tribals to non-tribals during the period from 6 th July,
1974, the date on which Section 36A of the Code was inserted and 1 st
November, 1975, the date from which Restoration Act came into force and to
cover those transactions, Section 36A may have been enacted by an
amendment to the Code. We may make it clear here itself that as we are not
interpreting Section 36A of the Code in any manner, it is not necessary for us
to look into the purpose of Section 36A of the Code, except the aspect of it
being a beneficial provision as well. The further argument of this group is
that Kashibai, though rightly held Section 36A of the Code to be prospective
in operation, it went wrong when it held that just because Section 3 of the
Restoration Act would act upon past transactions, it would confer a right
upon a person whose community was not a Scheduled Tribe at that time but
was made a Scheduled Tribe subsequently, to seek restoration of his land
under Section 3 of the Restoration Act.
20. Mr. Dharmadhikari, learned Senior Advocate further submits that
Kashibai did not consider the fact that a Scheduled Tribe is a status deemed to
be conferred upon a person by his or her inclusion in the Schedule to the
Constitution (Scheduled Tribes) Order, 1950 published on 6 th September,
1950, which came to be amended from time to time later on. He submits
that this would be clear from the definition of the expression 'Scheduled
Tribes' given in Article 366, entry No.25, and the provisions contained in
Kirtak / Dixit 19/44 Writ Petition No.1701 of 2019
Article 342 of the Constitution of India. He further submits that this aspect
of the matter, a crucial one, was lost sight of in Kashibai and, therefore, it
wrongly held that the case of Tukaram decided previously by another Co-
ordinate Bench at Aurangabad, as per incuriam and sub silentio to the extent
of it's view that the status of the parties has to be considered at the time of
completion of the transfer and that change in status after the transfer, if any,
has no relevance and restrictions provided under Section 36A of the Code are
not at all attracted in such a case. He further submits that giving
retrospective effect to Explanation to Section 36, would be like amending
Article 342 and Article 366, entry No.25. This group is joined by learned
Advocate Mr. Khajanchi (L.P.A. No.60/2011) and Mr. Giripunje (W.P.No.
6059/2016). For the sake of convenience, submissions put-forth by this
group are categorized as opinion "A".
21. Second category of argument led by Mr. S.M. Ukey, learned Additional
Government Pleader, is all in support of Kashibai when it is submitted that
Kashibai is rightly decided and it rightly held that Tukaram was per
incuriam and sub silentio to the extent indicated above. Mr. Ukey submits
that as Section 3 operates upon past actions in the sense that it affects the
transfer of lands by a tribal to a non-tribal between the period from 1 st April,
1954 and 6th July, 1974 and so not giving of any retrospective effect to the
definition of the expression "Scheduled Tribes" appearing in Explanation to
Section 36 of the Code would amount to frustrating the object of the
Kirtak / Dixit 20/44 Writ Petition No.1701 of 2019
Restoration Act and intention of the legislature in giving protection to the
tribals, who were otherwise a lot exploited by non-tribals, due to their
ignorance and backwardness. He also submits that there is no substance in
the opinion 'A', which maintains that giving of any retrospective effect to
Explanation of Section 36 of the Code, would amount to providing for
something not there in Article 342 and Article 366, entry No. 25 of the
Constitution and thus in a way amending the Constitution. He submits that
as a matter of fact, such an argument cannot be heard by this Court as the
point so raised is not within the scope of this reference. We would describe
this second category of argument, also joined by learned Advocate
Mr.Karekar for respondent No.1 in (W.P. No.1701/2019), for the sake of
convenience, as opinion 'B'.
22. The third group of argument comprises Mr. Bhandarkar learned
counsel, who made his submission for our assistance. In his opinion, there is
not really any conflict between Tukaram and Kashibai as subject matter of
interpretation in Tukaram was different than that of Kashibai. He submits
that Tukaram considered the effect of Section 36A of the Code while Kashibai
interpreted the effect of Section 3 of the Restoration Act. He further submits
that Section 36A deals with the occupancies held by tribals and puts
restrictions on transfer of occupanices on or after 6 th July, 1974 and whereas
Section 3 confers a benefit upon the tribals by entitling them to seek
restoration of the lands transferred by them to non-tribals during the period
Kirtak / Dixit 21/44 Writ Petition No.1701 of 2019
from 1st April, 1957 and 6th July, 1974. In other words, he submits that
Section 3 of the Restoration Act relates to past actions by creating a present
right in favour of the tribals and Section 36A of the Code relates to future
actions of the tribals w.e.f. 6th July, 1974 and onward by putting the
restrictions on the transfer of lands. Therefore, he submits that there could
not be seen any inconsistency between the views taken in these two
judgments inasmuch as, Section 36A of the Code and Section 3 of the
Restoration Act are not in pari materia with each other nor are they
supplementary and complementary to each other, and to this extent, Kashibai
has gone wrong. He submits that although Kashibai rightly held that Section
36A of the Code has a prospective operation, it was wrong in holding that
definition of the expression "Scheduled Tribes" given in Section 36 of the
Code can be so stretched as to hold a person to be a tribal on the date of the
transaction when he was not actually deemed to be a Scheduled Tribe on
account of his exclusion as such from the Schedule to the Order, 1950 on the
date of the transaction and was declared to be a person belonging to a
Scheduled Tribe by his subsequent inclusion in the Schedule to the Order,
1950. He also submits that if it is found that there is any inconsistency
between the views in Tukaram and Kashibai, same would have to be resolved
by considering the object and purpose of Restoration Act and amended
Explanation to Section 36 of the Code and also by dwelling upon the
question as to whether or not the amending Act, MAH.35 of 1974 is
declaratory or beneficial in nature having or not having retrospective
Kirtak / Dixit 22/44 Writ Petition No.1701 of 2019
operation. For the sake of convenience, we place this line of argument in the
category of opinion "C".
23. In order to find out which of the different opinions is in accordance
with the legislative intent, thereby helping fulfill the object and purpose of
the Restoration Act and hence more appropriate, we would have to examine
the scheme of Section 3 of the Restoration Act in the light of the legislative
intent disclosed by it, and the applicable principles of law.
24. A careful examination of Section 3 of the Restoration Act would show
that entitlement of a Tribal-transferor to seek restoration of the land
transferred by him to a non-Tribal-transferee would arise only when the
transfer of land has taken place between two living persons, one of whom is
a tribal and the other is a non-tribal within the meaning of Section 3 of the
Restoration Act. The terms "Transfer", "Non-Tribal" and "Tribal" are assigned
specific meanings and their definitions are to be found in Clauses (i), (e)(j) of
Section 2(1) of the Restoration Act respectively. "Transfer" has been defined
to be a transfer of land belonging to a tribal made in favour of a non-tribal
between 1st April, 1957 and 6th July, 1974. The term "Non-Tribal" has been
defined as a person who is not a tribal and includes his successor-in-interest.
The word "Tribal" has been defined to be a person belonging to a Scheduled
Tribe within the meaning of the Explanation to Section 36 of the Code and
includes his successor-in-interest.
Kirtak / Dixit 23/44 Writ Petition No.1701 of 2019
25. As stated by us earlier, the Explanation to Section 36 of the Code has
been incorporated in Section 2(1)(j) of the Restoration Act and, therefore, the
term "Tribal" would have to be understood only by referring to the
expression "Scheduled Tribes" used in the Explanation to section 36 of the
Code. The expression "Scheduled Tribes" has been defined in the Explanation
to Section 36, as amended up-to-date, as meaning such tribes or tribal
communities or their parts or sub-groups within them as are deemed to be
Scheduled Tribes in relation to the State of Maharashtra, irrespective of area
restrictions. The expression "Scheduled Tribes" is defined in Article 366,
entry No.25 to be such tribes or tribal communities etc. as are deemed under
Article 342 of the Constitution to be "Scheduled Tribes" for the purposes of
the Constitution. The tribes and tribal communities or their parts or sub-
groups within them can be deemed to be the Scheduled Tribes only when the
President, after due consultation, specifies them to be so by a public
notification. This shows that a tribal assumes the character of the Scheduled
Tribe only upon his recognition to be so by exercise of powers under Article
342 by the President or to put it differently by operation of law. Till the time
President does not act and include his tribe in the specified list of Scheduled
Tribes, which is under Order 1950, a tribal would remain a tribal only, and
would not be of the "Scheduled Tribe" within the meaning of Article 366,
entry No.25 r/w. Article 342 of the Constitution. Thus, a tribal, for the
purpose of Section 3 of the Restoration Act must be a person recognized as of
the Scheduled Tribe under Article 342 of the Constitution.
Kirtak / Dixit 24/44 Writ Petition No.1701 of 2019
26. The expression "Scheduled Tribe" has been coined in Constitution of
India with a view to extend various benefits and provide for protection to
certain specified tribes and not to all tribes in general. These specified tribes
have been referred to as the "Scheduled Tribes" in various provisions made in
Constitution of India. As stated earlier, definition of the words "Scheduled
Tribes" is given in Article 366, entry No.25. It means to be such tribes or
tribal communities or parts of, or groups within such tribes or tribal
communities as are deemed under Article 342 to be Scheduled Tribes for the
purposes of the Constitution. Article 342(1) empowers the President to
specify the tribes or tribal communities or parts thereof or groups within
them to be the "Scheduled Tribes" for the purposes of the Constitution. The
power of the President under clause (1) of Article 342 to issue on order for
specifying the tribes or tribal communities as the Scheduled Tribes is original
in nature. It was exercised for the first time when the President made the
Constitution (Scheduled Tribes) Order 1950, which was notified on 6 th
September, 1950. It contains a Schedule giving the list of tribes which are
deemed to be the Scheduled Tribes in relation to a particular State or any
part thereof specified therein for the purposes of the Constitution. This
provision made in the Constitution would make it amply clear that unless a
tribe or tribal community or any part thereof or groups within it or them is
or are included in the Schedule to the Order issued under Clause-1 of Article
342, the same cannot be called to be a Scheduled Tribe. List of such specified
Kirtak / Dixit 25/44 Writ Petition No.1701 of 2019
tribes notified under Clause (1) of Article 342 came to be amended by
Parliament by law so as to add or delete entries thereto or therefrom in
exercise of it's power under Clause (2) of Article 342. This would show that
concept of "Scheduled Tribes" employed in the Constitution is dynamic and is
by way of own devise of the Constitution; is a construct of men of wisdom
built to achieve the purposes of the Constitution and is subject to change as
time changes. One such change was witnessed when the Order 1950 was
amended by the Scheduled Castes and Scheduled Tribes Order (Amendment)
Act, 1976 which came into force w.e.f. 18 th September, 1976, whereby so far
as the State of Maharashtra was concerned, area restrictions in relation to
some specified tribes came to be removed. There is one more feature of the
Order, 1950 which strikes most ones mind, and it is that although there
existed many tribes or tribal communities in different States in the year
1950, not all of them found any place in the Schedule to the Order, 1950
and that only some of them were included as the Scheduled Tribes, and in
many cases it was so with area restrictions as well.
27. The above referred discussion would enable us to emphatically say
that there is a distinction between what we generally understand as a "tribe"
and what we would comprehend by the expression "Scheduled Tribe". The
word "tribe" is an adjective defined in Cambridge Dictionary as "a group of
people, often of related families, who live together in the same area and share
the same language, culture and history, especially those who do not live in
Kirtak / Dixit 26/44 Writ Petition No.1701 of 2019
town or cities". In Merriam Webster Dictionary the word "tribe" is defined as
"a social group composed chiefly of numerous families, clans or generations
having a shared ancestry and language". Thus, the tribe or tribal community
is considered to be a separate group of people having distinctive identity,
culture, traditions and practices than the groups of people within the main-
stream society. But such separate identity as a tribe or a tribal community
would not by itself make it to be the Scheduled Tribe, which is an identity
given to a tribe or tribal community by Constitutional Provisions. There is of
course some controversy amongst Sociologists about the extent to which
tribes in India have succeeded in closing their doors to cultural onslaught of
Hinduism, a dominant religion, upon them. The truth, however, is that
notwithstanding the powerful impact of major cultures of the society, the
tribes in general have retained to a great extent their original culture and
traditions, so as to maintain their separate identity. There is also a stream of
thought amongst Sociologists who say that the distinction between a tribe
and main-stream society though exists, may in fact be artificial, made mostly
in Indian Censuses carried out by the British in early part of 20 th century. We
would briefly refer to this thought which came from Professor Dr. G.S.
Ghurey.
28. Dr. Govind Sadashiv Ghurye was an Indian academic and a professor
of Sociology in Mumbai University. He has done pioneering research work in
the field of tribes in India. In his famous work, "The Scheduled Tribes of
India" published in 1959, which was second and revised edition of his book,
Kirtak / Dixit 27/44 Writ Petition No.1701 of 2019
"The Aborigines - "So-called" - And Their Future", published in 1943, has
found that long ago in India, there were certain groups of people, who were
distinct in identity having separate culture than the culture of dominant
groups following Hinduism. These groups were referred to as tribes and
Professor Dr. Ghurye, in Chapter-I of his book, "The Scheduled Tribes of
India" found that the Indian Censuses earlier dealt with them under the
religious heading of "Animism", which was changed into the heading of
"Tribal Religions" in Census of 1921. Professor Dr. Ghurye has taken stock of
various Indian Censuses and has considered opinion of different Census
Commissioners in the said book. He has noted that even though attempts
were made in various Indian Censuses to make a distinction between groups
of people called "Tribes" following "Tribal Religions", there was no
justification for they are being separately treated from Hinduism in view of
the chorus of opinion pointing to the close similarity between them and those
following Hinduism from dominant section of the Hindu society. In his
opinion, many of these Tribes, by assimilating cultural traits of Hinduism had
become almost homogeneous with Hindu society. Professor Dr. Ghurye,
however, also notes in Chapter-I that in modern Hinduism, the special
features are undoubtedly Rigvedic, but that is not to be seen in the creeds of
the tribes and these peculiar elements of Hinduism have not been
incorporated in them. He further writes that the common substratum does
subsist in both modern Hinduism and Tribal Religions. Finally, he concludes
that the groups of so called Animism and Hinduism, for so much material
Kirtak / Dixit 28/44 Writ Petition No.1701 of 2019
which is either similar or common to both, that demarcation between the
two has assumed importance, though it may be thoroughly artificial.
29. Artificial as it may have been in the opinion of Professor Dr. Ghurye,
the fact which cannot be denied and which he too admits is that in Indian
Society, tribes have always been considered to be groups of people which are
not similar in terms of culture, traditions, mores, practices, religion and
habitat to those belonging to the main-stream society. Even Prof. Dr. Ghurye
admits of their separate and distinct identity and what he disputes is the need
for putting them in a religion based category in Indian Censuses, a step taken
by the British, owing to their having acquired much of the culture of
Hinduism barring Rigvedic substratum. These tribes as separate groups of
people, which have preserved their separate identity, exist even today and
they go by different names such as, Gond, Madiya, Bhil, Santhal, Korku,
Halba, Thakar, Thakur, Kurmi and so on. As many of these tribes were
considered to be very backward and in some cases leading primitive life,
makers of Indian Constitution thought it fit to incorporate in the Constitution
special provisions for conferring benefits and granting protection to them, so
that they do not have to suffer for their inability to equally compete with
majority section of Indian society which was advanced in development. For
this purpose, identification of tribes or tribal communities or their parts or
groups within them and notifying them to be entitled for enjoying the
benefits given under the Constitution became necessary and that is how the
Kirtak / Dixit 29/44 Writ Petition No.1701 of 2019
concept of "Scheduled Tribes" in Article 366, entry No.25 and inclusion of
certain tribes or tribal communities or parts thereof or groups within them
in the Schedule to the Order, 1950, issued by the President of India in
exercise of the power conferred upon him under Article 342 of the
Constitution of India came into being.
30. We have already stated that a perusal of the list of tribes specified in
Schedule to the Order, 1950 shows that it is selective in nature and does not
include all tribes or groups of people earlier known as "Animistic" or of
"Tribal Religions" in the Indian Censuses, in the Schedule to the Order, 1950.
It is here that distinction between what is generally known as "Tribe" and
what is referred to as "Scheduled Tribe" becomes more clear and it is
sufficient to bring home the conviction that a person belonging to a
particular tribe would become a Scheduled Tribe only upon inclusion of his
tribe in the Schedule to the Order, 1950 and till such inclusion he would
only continue to be a member of a tribe but, not the member of a Scheduled
Tribe. It would then logically follow that the identity of a tribe would be
acquired by a person by an accident of his birth in that tribe, which is
considered to be a group of people having culture which is distinct and
separate from that of dominant Indian society, while identity as a member of
a Scheduled Tribe would be acquired by such person only by operation of
law. In other words, membership of a tribe or identity of being a tribal is by
natural event while identity of being a member of a Scheduled Tribe is by a
Kirtak / Dixit 30/44 Writ Petition No.1701 of 2019
man-made event. When identity is acquired by natural event like birth
which is simply an accident, it is known in a society like India as 'Caste' or
'Tribe' and it exists there since his birth but when it is conferred by the act of
men like the Order, 1950 issued under Article 342 or the Constitution
(Scheduled Castes) Order, 1930, issued under Article 341 of the Constitution,
it is known as "Scheduled Tribe" or "Scheduled Caste", as the case may be, and
it operates from the date of it's conferment, and as such, it is a social status
acquired by operation of law, and not an identity one gets on birth.
Therefore, the identity of being a member of the Scheduled Tribe comes only
as a social status conferred upon members of certain tribes or tribal
communities or parts thereof or groups within them in the Order, 1950
issued under Article 342 of the Constitution. Till acquisition of such a status,
identity of a member of any tribe is only that of a tribal and not of a person
having a social status as of the Scheduled Tribe. The Order, 1950 specifying
the tribe and tribal communities or parts thereof or groups within them to be
the Scheduled Tribes for the purposes of the Constitution is by it's very
nature prospective, it being not in the nature of recognising any birth right
attached to every tribal as such but about a decision to grant some protection
and benefit to some of the tribes selectively by categorising them as
"Scheduled Tribes", and so till a notification to that effect is issued, that tribe
or tribal community or its parts or sub-group will not qualify to be called the
Scheduled Tribe there being, no Schedule whatsoever in existence till then.
Kirtak / Dixit 31/44 Writ Petition No.1701 of 2019
31. Once it is found that identity in the nature of a Scheduled Tribe is a
matter of social status conferred upon a person by operation of law and not
by any natural event like taking birth in a tribal community, it has to be
necessarily found that a tribal-transferor who is the beneficiary of Section 3
of the Restoration Act must be a person belonging to a Scheduled Tribe at a
time when the transfer of the land held by him is effected in favour of a non-
tribal-transferee. In other words, the social status of a person as a Scheduled
Tribe on the date of the transaction and not his natural identity as a member
of a tribe is what matters and if he does not possess that status on the date of
transaction, he would not be entitled to restoration of his land from the non-
tribal. A plain reading of Section 3 of the Restoration Act clearly shows that
it was the intention of the legislature that the benefit of restoration be
extended only to a person who was a tribal as defined in Section 2(1)(j) of the
Restoration Act and that means a tribal who was a person belonging to a
Scheduled Tribe as defined in Explanation to Section 36 of the Code. This
Explanation clarifies that only such tribes or tribal communities or their
parts or sub-groups within them would the "Scheduled Tribes" if they are
notified to be the Scheduled Tribes in relation to the State of Maharashtra
under Article 342 of the Constitution and which is regardless of the locations
of which they are residents in the State of Maharashtra by virtue of
Explanation to Section 36 of the Code.
Kirtak / Dixit 32/44 Writ Petition No.1701 of 2019
32. The above referred discussion would show that not only by virtue of
the provisions of Article 366(25) and 342 but, also by virtue of Explanation
to Section 36 of the Code, a tribal would become eligible to be termed as a
person belonging to the "Scheduled Tribe" only when his tribe is included in
the Schedule to the Order, 1950 made by the President of India under Article
342 of the Constitution and if his tribe is not included therein, he will only
be a tribal simplicitor but not a person belonging to a Scheduled Tribe. The
word "Tribal" used in Section 3 of the Restoration Act has been assigned
meaning of a person belonging to a Scheduled Tribe as described in
Explanation in Section 36 of the Code. Therefore, unless a tribe of a person is
included in the Schedule to the Order, 1950, he cannot be called to be a
person belonging the Scheduled Tribe and at the most he would be a person
of non-Scheduled Tribe. A non-scheduled tribal is not a person who is in
contemplation of Section 3 of the Restoration Act for the purpose of getting
its benefit and that only means that it is the social status of the tribal as a
Scheduled Tribe on the date of the transaction which would determine
applicability of the provisions made in Section 3 of the Restoration Act to the
transfer of lands envisaged thereunder. If on the date of the transaction, he is
not a member of a Scheduled Tribe by virtue of his inclusion in the Schedule
to the Order, 1950, he would be simply a non-tribal as defined in Section
2(1)(e) of the Restoration Act and then the transfer of land made by him to a
non-tribal would be only be a transaction between a non-tribal and a non-
tribal, not hit by the mischief of Section 3 of the Restoration Act. The
Kirtak / Dixit 33/44 Writ Petition No.1701 of 2019
intention of the legislature which can be clearly gauged from plain reading
of Section 3 of the Restoration Act is to confer protection and benefits to only
those tribals who are Scheduled Tribes within the scheme of Articles 366(25)
and 342 of the Constitution and that was the reason why the definition of the
term "Tribal" has been linked to the concept of the "Scheduled Tribes" with
the aid of Explanation to Section 36 of the Code. There is also a rationale
behind it. It is to maintain consistency between constitutional provisions,
which grant protection and benefits to only those tribals, who are "Scheduled
Tribes" within the meaning of Article 366(25), and the provisions of the
Restoration Act. This intention of the legislature fulfils the object of the
Restoration Act effectively.
33. The interpretation so given by us to the expression "Scheduled Tribes"
receives support from what is held by the Supreme Court in the case of State
of Maharashtra Vs. Milind and Others, 2001(1) SCC 4 . In paragraph No.11,
it has been held that the word "Castes" or "Tribes" in the expression
"Scheduled Castes", "Scheduled Tribes" are not used in the ordinary sense, but
are used in the sense of the definition contained in Article 366(24) and
366(25). It has been further held that the caste is a Scheduled Castes or a
tribe is a Scheduled Tribe only if it is included in the President's Order issued
under Article 341 and 342 respectively for the purpose of the Constitution.
For the sake of convenience, these observations are reproduced thus :-
"11. By virtue of powers vested under Articles 341 and 342
of the Constitution of India, the President is
Kirtak / Dixit 34/44 Writ Petition No.1701 of 2019
empowered to issue public notification for the first
time specifying the castes, races or tribes or part of or
groups within castes, races, or tribes which shall, for
the purposes of the Constitution be deemed to be
Scheduled Castes or Scheduled Tribes in relation to a
State or Union Territory, as the case may be. The
language and terms of Articles 341 and 342 are
identical. What is said in relation to Article
341mutatis mutandis applies to Article 342. The
laudable object of the said Articles is to provide
additional protection to the members of the Scheduled
Castes and Scheduled Tribes having regard to social
and educational backwardness from which they have
been suffering since a considerable length of time.
The words `castes' or `tribes' in the expression
`Scheduled Castes' and `Scheduled Tribes' are not used
in the ordinary sense of the terms but are used in the
sense of the definitions contained in Article 366(24)
and 366(25). In this view, a caste is a Scheduled
Caste or a tribe is a Scheduled Tribe only if they are
included in the President's Orders issued under
Articles 341 and 342 for the purpose of the
Constitution. Exercising the powers vested in him, the
President has issued the Constitution (Scheduled
Castes) Order, 1950 and the Constitution (Scheduled
Tribes) Order, 1950. Subsequently, some Orders were
issued under the said Articles in relation to Union
Territories and other States and there have been
certain amendments in relation to Orders issued, by
Amendment Acts passed by the Parliament."
Kirtak / Dixit 35/44 Writ Petition No.1701 of 2019
34. So, it is clear that for the purpose of extending various benefits and
protection to the tribals, certain tribes have been identified and notified to be
Scheduled Tribes in the Order, 1950 in exercise of power of the President
under Article 342(1) of the Constitution. This only strengthens our
conclusion that the Scheduled Tribe is a character; a status acquired by a
tribal by only operation of law.
35. Section 3 of the Restoration Act is in the nature of a beneficial
legislation and, therefore, generally it would have retrospective operation,
provided it is not to the detriment of another. But, here we can see that the
benefit it causes to a Tribal-transferor is to the detriment of the non-tribal
transferee, who is divested of his right in the land and, therefore, such a
legislation would have to be construed as having prospective effect, as held
in the case of Commission of Income Tax (Central)-I New Delhi Vs. Vatika
Township Private Limited, (2015) 1 SCC 1 . It then follows that to say that
Explanation to Section 36 of the Code operates retrospectively, would
amount to retrospectively invalidating the transfer of land made by a tribal
in favour of a non-tribal at a time when the tribal was not a person
belonging to the Scheduled Tribe as described in Explanation to Section 36 of
the Code. Doing so, would be going against the intention of the legislature
and causing injustice to the non-tribal transferee for no fault on his part and
would also amount to providing for something not intended to be provided
in the Order 1950, as rightly submitted by learned Senior Advocate, though
Kirtak / Dixit 36/44 Writ Petition No.1701 of 2019
it may not amount to amending Article 366(25) or Article 342 of the
Constitution. At the cost of repetition, we may mention here that we have
already found that Article 342 and consequently the Order 1950 made
thereunder are, by their very nature, prospective in effect.
36. It is for the reasons above referred to that we find that the view taken
in Tukaram that for the purposes of Section 36A of the Code, the status of the
parties has to be considered at the time of completion of the transfer and
change in status after the transfer, if any, has no relevance and that
restrictions provided under Section 36A of the Code would not at all be
attracted in that case is correct. Although, this view was in the context of the
interpretation of the restrictions under Section 36A of the Code, it has
relevance in deciding the question under reference as the term "Tribal"
appearing in Section 2(l)(i) of the Restoration Act has to be understood by the
definition of the expression "Scheduled Tribes" given in Explanation to
Section 36 of the Code. In fact, disagreeing with the contention of Mr.
Bhandarkar, learned Advocate, we find that the provisions made in Section 3
of the Restoration Act and Section 36 and Section 36A of the Code are
complimentary to each other, granting more or less similar protection and
benefits, though Section 3 of the Restoration Act operates in a different field
in the context of time than the rest. It would then mean that to find that what
is held in Tukaram is not relevant to interprete Section 3 of the Restoration
Act and that there is no conflict of views in Tukaram and Kashibai as Mr.
Kirtak / Dixit 37/44 Writ Petition No.1701 of 2019
Bhandarkar, learned Advocate would have us believe, is to go against the
Scheme of Section 3 of the Restoration Act and amended Section 36 and
Section 36A of the Code, which have a common legislative history and also
common legislative intent of granting protection and benefits to exploited lot
of tribals, and which scheme came into effect in 1974 and 1975, covering
different time periods. It would be, therefore, a fallacy to say that the view in
Tukaram that a tribal must hold the status of the Scheduled Tribe on the date
of transaction in order to get benefit of Section 36A of the Code is per
incuriam and sub silentio. Of course, Kashibai also holds that Tukaram is
correct when it says that Section 36A of the Code is prospective and rightly
so. But, Kashibai is wrong when it says that because Section 3 of the
Restoration Act operates on past transactions and as it confers a right upon a
tribal to seek restoration of his land, it is not necessary that he must have the
status of a tribal, as defined in Section 2(l)(j) of the Restoration Act, on the
date of the transaction and even if he is subsequently included in the notified
list of the Scheduled Tribes, he would succeed in his claim made under
Section 3 of the Restoration Act. In a way, Kashibai has given retrospective
operation to definition of the expression "Scheduled Tribes" appearing in
Explanation to Section 36, meaning thereby that the moment a tribal is
recognised to be of a "Scheduled Tribe" under Article 342 of the Constitution,
his such recognition would relate back to his birth and thus would entitle
him to benefits to which he could not lay his claim previously. But, we have
seen that making of a tribal into that of a Scheduled Tribe under Article 342
Kirtak / Dixit 38/44 Writ Petition No.1701 of 2019
is by operation of law and is, by it's very nature, prospective in operation,
which is also the view taken by learned Single Judge in Babulal Ramnath
Dekate (supra), which we approve. This is the reason why we hold that
Kashibai is wrong to this extent.
37. Kashibai further holds that the provisions contained in Section 36 of
the Code and those in Section 3 of the Restoration Act operate in different
fields and, therefore, interpretation of Section 36A of the Code made by the
Division Bench in Tukaram could not be used with any benefit while
interpreting the provisions made in Section 3 of the Restoration Act. In doing
so, the Division Bench, it appears has lost sight of the distinction between a
person who is generally called a tribal and who is not included in the list of
tribes specified in the Schedule to the Order, 1950 and a person who is a
tribal and who is of the Scheduled Tribe by virtue of inclusion of his tribe in
the Schedule to the Order, 1950. It also did not consider the fact that though
the rights conferred under Section 36 of the Code and Section 3 of the
Restoration Act operate in different fields, in the context of different time-
frames, their operation as such is determined by one common factor, viz.
definition of the expression "Scheduled Tribes" and the consequences that
ensue after a tribal gets status of a "Scheduled Tribe" by deeming fiction
under Article 342 of the Constitution. No doubt, Section 3 of the Restoration
Act operates on past transactions, and to this extent Kashibai is right, but it's
such operation on past transactions is possible only when the transferor was
Kirtak / Dixit 39/44 Writ Petition No.1701 of 2019
a tribal as defined in Section 2(l)(j) at the time of the transaction that it seeks
to target. In other words, retrospective operation of Section 3 of the
Restoration Act is subject to the condition that on the date of the transaction,
the transferor must be a person who is tribal within the meaning of Section
2(l)(j) of the Restoration Act, and if this condition is not fulfilled, it would not
operate upon past transactions during the period from 1 st April 1957 to 6th
July 1974. This aspect of retrospectivity of Section 3 of the Restoration Act is
subtle but important, and has not been considered in Kashibai, and hence to
this extent, Kashibai is incorrect.
38. For the reasons stated above, we are of the opinion that Kashibai
(supra) is not a good law when it holds that a tribal-transferor need not be a
person belonging to the Scheduled Tribe on the date of the transfer of land by
him to a non-Tribal-transferee and would be entitled to seek restoration of
his land from the possession of a non-tribal under Section 3 of the
Restoration Act, if he is subsequently included in the list of Scheduled Tribes
specified in the Schedule to the Order, 1950 in relation to the State of
Maharashtra. This view is, therefore, overruled and consequently the view
taken by learned Single Judges relying upon Kashibai or consistent therewith
also stands overruled. Conversely, all the judgments referred to us by in the
earlier which take similar view as in Tukaram are affirmed by us.
39. Mr. Ukey, learned Additional Government Pleader has invited our
attention to Full Bench judgment of Karnataka High Court in the case of Shri
Kirtak / Dixit 40/44 Writ Petition No.1701 of 2019
Jayanna Vs. The Deputy Commissioner, AIR 2012 Karnataka 173 , wherein
the opinion is expressed by majority that every inclusion of a tribe as a
Scheduled Tribe in the Order made by President of India in the year 1950 or
and every inclusion of a tribe as a Scheduled Tribe by virtue of amendment to
the Order made under Article 342(2) of the Constitution, would have
retrospective effect thereby entitling such tribals to the benefits of the
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of
Certain Lands) Act, 1978. The minority opinion, however, is of dissent and it
holds that every such inclusion would be prospective in nature. According to
Mr. Ukey, the majority opinion of Full Bench of Karnataka High Court in
Jayanna (supra) is correct. With due respect, we disagree for the reasons
which are to be found in earlier paragraphs.
40. Mr. Ukey, has also relied upon the cases of State of Bihar and Others
Vs. Ramesh Prasad Verma (Dead) through Lrs. (2017) 5 SCC 665 , State of
Punjab Vs. Salil Sabhlok and Others, (2013) 5 SCC 1 , Union of India Vs. R.
Bhusal, (20066 SCC 36 and Dr. Shah Faesal and others Vs. Union of India
and Another, (2020) 4 SCC 1. On going through them, we do not think that
they would be of any assistance to us in determining the question involved
herein as they are not only on different facts but are also on different aspects
of law, not intrinsically involved here.
41. Mr. S.P. Bhandarkar, learned Advocate who has independently assisted
us in the present case, has opined basically that there is no conflict between
Kirtak / Dixit 41/44 Writ Petition No.1701 of 2019
Tukaram (supra) and Kashibai (supra) and if there is such conflict, it can be
resolved by applying the principle of purposive construction of a beneficial
legislation. With due respect, we do not agree with the proposition that there
is no inconsistency between Tukaram and Kashibai as regards the question
involved here. We have already found that while Tukaram considers status of
a person to be a member of the Scheduled Tribe on the date of the
transaction as determinative factor for invaliding the transfer, Kashibai holds
that even a subsequent inclusion in the Order, 1950 so as to be called a
Scheduled Tribe by deeming fiction would operate retrospectively and entitle
a tribal to restoration of his land from a non-tribal, even though the
transaction when made was valid and between persons, both of whom were
not tribals within the meaning of Section 2(l)(j) of the Restoration Act. The
conflict between these two views is obvious and now by this judgment, we
have made our effort to resolve it. About the contention that controversy
involved here can be resolved by applying the principle of purposive
interpretation of a beneficial legislation, we must say that we have already
taken into consideration the objects and purposes of the Restoration Act,
while making our interpretation here and, therefore, beyond that we have
nothing to add. Mr. Bhandarkar, learned Advocate has also submitted that
rules of interpretation applicable to declaratory statutes can be drafted in to
resolve the controversy. With respect, we disagree as the legislations we have
interpreted here are in the nature of remedial and beneficial instruments of
law providing relief and protection to the tribals.
Kirtak / Dixit 42/44 Writ Petition No.1701 of 2019
42. In the result, we find that opinion "A" is correct while opinion "B" is
not and we further find that opinion "C" is partly not correct and partly
useful for resolving the divergence of views expressed in Tukaram (supra)
and Kashibai (supra). This would enable to us to answer the question
referred to us and we do so in the following terms :-
Question :
"Whether the subsequent recognition of the transferor
as a tribal after transfer of the land would entitle the
transferor to seek restoration of possession of land
under Section 3(1) of the Maharashtra Restoration of
Lands to Scheduled Tribes Act, 1974 as held in Kashibai
wd/o Sanga Pawar and ors. Vs. State of Maharashtra,
1993 (2) Mh.L.J. 1168 or whether such subsequent
recognition would be of no assistance to the tribal
transferor as held in Tukaram Laxman Gandewar Vs.
Piraji Dharmaji Sidarwar by LRs Laxmibai and others,
1989 Mh.L.J. 815 ?"
Answer :
Subsequent recognition of a transferor as a Tribal
within the meaning of Section 2(1)(j) of the Restoration
Act would not entitle him to seek restoration of the land
transferred by him to a non-Tribal-transferee and his
Kirtak / Dixit 43/44 Writ Petition No.1701 of 2019
subsequent recognition as such is of no assistance to
him for the purpose of availing of the benefit of Section
3 of the Restoration Act.
43. Matter be placed before appropriate Bench.
(ANIL L. PANSARE, J.) (A.S. CHANDURKAR, J.) (SUNIL B. SHUKRE J.)
Kirtak / Dixit 44/44 Writ Petition No.1701 of 2019
