Bombay High Court
Ramkrushna S/O Mangru Nannaware vs Varsha Ramesh Fating And Others on 4 October, 2023
Bench: Avinash G. Gharote
2023:BHC-NAG:14593
wp 2462.23. 1/6 4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.2462/2023
Ramkrushna V Varsha and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Mr. Prasad Deshpande, Adv for petitioner.
Mr. U.A. Gosavi, Adv for resp. no.1.
Mr. Damle, AGP for resp. nos. 2 to 6.
CORAM : AVINASH G GHAROTE J.
DATE : 04-10-2023
Heard Mr. Deshpande, learned Counsel for the
petitioner, Mr. Gosavi, learned Counsel for respondent no.1
and Mr. Damle, learned AGP for respondent nos.2 to 6.
2. The petitioner had executed a sale deed of
Survey No.1, admeasuring 1.51 HR at mouza Kothara (Rith),
Tah. Chimur, District Chandrapur on 13-08-1997 for a
consideration of Rs 80,000/- in favour of the respondent no.1
which position is not disputed. A challenge to the sale deed
was raised by the sons, daughter and wife of the petitioner in
RCS No.25/2021 (old S.C.S. No. 164/98), on the ground
that they were the co-owners along with the present
petitioner, which suit came to be dismissed by the judgment
and decree dated 29-11-2005 (pg 66). This it is stated has
attained finality. The petitioner thereafter approached the
learned Sub Divisional Officer, Chimur (S.D.O.), by way of
an application u/s 36A of the Maharashtra Land Revenue
wp 2462.23. 2/6 4
Code (MLR Code), for restoration of the aforesaid land on the
ground that the petitioner belongs to 'Mana' tribe, which was
a scheduled tribe and therefore the petitioner was entitled to
restoration. The S.D.O. by his order dated 10-06-2014
(pg 19) accepted the plea of the petitioner and allowed
restoration. An appeal to the Collector by the respondent
no.1 came to be dismissed by the order dated 30-09-2015
(pg 26). A further appeal against that to the Commissioner
also came to be dismissed on 04-04-2016 (pg 28). In a writ
petition filed i.e. WP No.3932/2016 by the judgment dated
01-08-2019 (pg 42) the order of the Commissioner was set
aside and the matter was remitted back as the petitioner
herein did not have a validity certificate of belonging to the
'Mana' Scheduled Tribe at that point of time. Thereafter, the
Caste Scrutiny Committee has granted a certificate of validity
to the petitioner belonging to the 'Mana' Scheduled Tribe on
23-12-2021 which was submitted before the learned
Commissioner, who by the impugned order dated
25-01-2023 (pg 53) has allowed the appeal on the ground
that the certificate of validity was granted on 23-12-2021 and
therefore would not affect the transaction which was effected
on 13-08-1997 (pg 53).
3. Being aggrieved by the same, the present
petition has been filed.
4. The learned Counsel for the petitioner submits
that the grant of validity certificate by the Caste Scrutiny
Committee on 23-12-2021 would not have the effect of
wp 2462.23. 3/6 4
declaring the social status of the petitioner as belonging to
the 'Mana' Scheduled Tribe, but it is only recognizing it to be
so. He therefore submits that the grant of validity on
23-12-2021 cannot come in the way of the petitioner from
seeking restoration of the land as indicated above and the
impugned order cannot be sustained.
5. Mr. Gosavi, learned Counsel for respondent
no.1, while supporting the impugned order places reliance
upon the judgment of the learned Full Bench of this Court in
Baliram s/o Reva Chavan V Gajanan s/o Shekrao Wanjare
and others Writ Petition No.1701/2019 decided on
21-4-2023 and specifically para 31, to contend that the social
status of the petitioner for availing the benefit thereof would
be available to the petitioner only from the date of grant of
validity and therefore would not affect the said transaction
executed by the petitioner in favour of respondent no. 1
which was on 13-08-1997. It is also contended that on
27-09-2013 when the proceeding under Section 36 of the
MLR Code was initiated by the petitioner, absence of validity
would make the proceedings not maintainable.
6. Mr Damle, learned AGP, supports the impugned
order.
7. It cannot be disputed, that the tribe 'Mana' was
included in entry 12 of the Presidential (Scheduled Tribe)
Order, 1950 by the amendment of the year 1956, which
pertained to the scheduled tribe 'Gond' and therefore to claim
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Scheduled Tribe status it was required to establish affinity
with the entry 'Gond'. However, by the amendment of the
year 1976 to the Presidential (Scheduled Tribe) Order, 1950
entry 12 stood substituted by entry 18 and, the word
"including" as occurring in entry 12 after the word 'Gond' was
deleted and so also comma was added after each entry which
made every tribe included in that entry 18 independently
entitled to the benefit of the social status of a Scheduled Tribe
and consequent reservations. This position has been held in
Mana Adim Jamat Mandal Vs State of Maharashtra and
others (2003 (3) Mh.L.J. 513), which has been upheld by the
Hon'ble Apex Court in State of Maharashtra and others V
Mana Adim Jamat Mandal (2006 (3) Mh.L.J. 407). It is thus
apparent that the entry of 'Mana' as scheduled tribe in the
presidential order as an independent tribe was made way back
in the year 1976 on account of the amendment to the
Presidential (Scheduled Tribe) Order, 1950.
8. The contention that it is only after the validity
granted by the Caste Scrutiny Committee that the benefits of
reservation would be available is clearly misconceived as the
benefit of the social status of a Scheduled Tribe is not
conferred on account of grant of validity which only
recognizes a claim by a person of belonging to a scheduled
tribe, but by the independent entry, in the Presidential
(Scheduled Tribe) Order, 1950, which was in the year 1976.
It would also be material to note that earlier in point of time
there was no process or requirement of obtaining any validity,
and the same came into effect only consequent to the
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Maharashtra Scheduled Caste, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act, 2000 (Act
of 2001). Grant of a validity by the Caste Scrutiny
Committee therefore, is merely recognition of claim of a
person belonging to a particular scheduled tribe, and is not
the genesis for availing the benefits of reservation, which flow
from the presidential order, which relates to Article 342 of
the Constitution. Judgment in case of Baliram Chavan (supra)
does not take, in my considered opinion, any view contrary to
what has been stated above. It merely holds that subsequent
recognition of a transferor as a Tribal within the meaning of
Section 2 (i)(j) of the Maharahstra Restoration of Lands to
Scheduled Tribes Act, 1974 (for short, "Restoration Act"),
would not entitle him to seek restoration of the land
transferred by him to a non-Tribal transferee and his
subsequent recognition as such is of no assistance to him for
the benefit of Section 3 of the Restoration Act. In the instant
case, the tribe 'Mana', to which the petitioner/transferor
belongs already stood recognized as a Scheduled Tribe in the
year 1976, whereas the transaction is subsequent in point of
time on 13-08-1997. Thus on the date of the transaction the
tribe to which the petitioner belongs, already stood declared
as a Scheduled Tribe and therefore contrary contention does
not carry any merit.
9. In that view of the matter, the impugned order
of the Commissioner which sets aside the orders of the S.D.O.
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and the Collector on the ground that validity has been
granted in 2021, clearly cannot be sustained.
10. This would also apply to the plea by learned
Counsel for respondent no.1 that the petitioner did not
possess the validity on 27-09-2013 when the proceedings for
restoration were initiated, for the reasons as already indicated
above that the validity merely recognizes the fact that a
person belongs to a particular tribe, and the genesis of the
social status/reservation has to be related back to the entry in
the presidential order.
11. In that view of the matter, in my considered
opinion, the impugned order passed by the Divisional
Commissioner dated 25-01-2023 (pg 51), is clearly not
sustainable in law and is hereby quashed and set aside and the
orders passed by the S.D.O. Chimur dated 10-06-2014 and
that by the Collector dated 30-09-2015 are restored.
12. At this stage, Mr Gosavi for the respondent no.1,
who is already in a possession seeks protection of his
possession for a period of 8 weeks as his client intends to
approach the Hon'ble Apex Court. Though the request is
opposed by learned Counsel for the petitioner, however
considering that admittedly since the respondent no.1 is in
possession of the land in question, the possession is protected
for a period of 8 weeks from today.
Signed by: Mr. Deshmukh
S.Deshmukh JUDGE
Designation: PS To Honourable Judge
Date: 06/10/2023 18:25:01
