L. P. A. No. 1 of 1990

18th November, 1992.

Petitioner Counsel: Mrs. N. P. Hardas
Respondent Counsel: B. P. Jaiswal

JUDGMENT

H. W. DHABE, J. :- The appellants who are non-tribal transferees have preferred the instant Letters Patent Appeal challenging the Judgment of the learned single Judge maintaining the orders of the authorities under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short the Restoration Act') directing restoration of the Suit land to the original respondent No. 2 tribal transferor.

2. The facts are that suo motu proceedings were initiated by the Additional Tahsildar, Pusad under section 3 of the Restoration Act for restoration of Field Survey No. 23/1, area 10 acres 4 gunthas, Tahsil Pusad, District Yavatmal to the tribal transferor i.e. the original respondent No. 2 who has died during the pendency of the instant L.P.A. and therefore, whose name has been deleted by the appellants in this appeal. There was no dispute between the parties that the original respondent No. 2 was Andh by caste and that the appellants were non-tribals. The Additional Tahsildar, Pusad, by his order dated 20th February, 1981, held that the sale transaction between the parties in this case being on 12-1-1972 was within the period referred to in the definition of the expression "Transfer" given in section 2(i) of the Restoration Act. He, therefore, directed restoration of the Suit land to the original tribal transferor as provided under section 3 of the the said Act. An appeal was preferred by the appellants before the Maharashtra Revenue Tribunal (for short the "M.R.T."). However, the same came to be dismissed by the judgment of the M.R.T. dated 21-4-1987. The appellants thereafter preferred a writ petition in this Court registered as Writ Petition No. 1344 of 1987 which came to be dismissed by this Hon'ble Court by the judgment rendered on 11-1-1990. Feeling aggrieved, the appellants have preferred the instant L.P.A. against the judgment of the learned Single Judge, maintaining the orders of the learned Authorities, under the Restoration Act directing restoration of the suit land to the original respondent No. 2.

3. The only question which is raised in this appeal by the learned counsel for the appellants is that the original respondent No. 2 was resident of Wanoli in Tahsil Pusad, District Yeotmal and his caste Andh was not recognised as a Scheduled Tribe in the Schedule to the Scheduled Tribes Order, 1950. The submission thus is that on the date of the sale deed executed on 12-1-1972, the original respondent No. 2 was not a tribal within the meaning of the said expression, because the Caste Andh was for the first time included in Schedule II relating to the Scheduled Tribes in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (for short, the Amendment Act, 1976) which came into force with effect from 27th July, 1977. In support of her submission, the learned counsel for the appellants has relied upon the recent judgment of the learned Single Judge of this Court in the case of Lachmana Malanna Alurwar vs. M. R. T. and others, 1992 Mh.L.J. 1139. She has also brought to our notice the unreported judgment of another learned Single Judge of this Court in Writ Petition No. 1625 of 1986 decided on 26th October 1990, Bandu Kaniram Rathod vs. State of Maharashtra and another taking a similar view. Perusal of the above judgments show that in support of their view, both the learned Single Judges have relied upon the judgment of the Division Bench of this Court in the case of Tukaram vs. Piraji, 1989 Mh.L.J. 815 and the same is therefore relied upon on behalf of the appellants also in the instant L.P.A. The learned counsel for the State has controverted the above submissions made on behalf of the appellants and has relied upon the judgment of the Single Judge of this Court in the case of Chhotelal vs. State, 1990 Mh.L.J. 766.

4. To appreciate the rival submissions, it is necessary to refer briefly to the scheme of the Restoration Act. The said Act is enacted to give protection to persons belonging to Scheduled Tribes for which a Committee was constituted by the Government in its Revenue Forest Department by the G. R. No. REV 1070/62448-C, dated 15th March, 1971. After considering the report of the said Committee, steps were taken to suitably amend the provisions of the Maharashtra Land Revenue Code, 1966 (for short 'the Code') to regulate transfers of the lands belonging to the tribals to the non-tribals and also to enact a separate law viz. the Restoration Act for restoring to persons belonging to Scheduled Tribes the lands which were duly transferred to other persons. The Restoration Act received the assent of the President on 28th April, 1975 and was first published in the Government Gazette on 28th May, 1975. By the notification issued under its section 1(3), the said Act was brought into force with effect from 1st November, 1975.

5. Sections 3 and 4 of the Restoration Act are the principal provisions which provide for restoration of the lands to the tribal transferors. Section 4 of the said Act deals with the tenanted lands with which we are not concerned in the instant writ petition. However, section 3(1) of the said Act, with which we are concerned in the instant writ petition, provides that where, by reason of transfer made during the period from 1st day of April, 1957 to 6th day of July, 1974, the land belonging to the tribal-transferor is held by the non-tribal transferee and has not been put to any non-agricultural use on or before the 6th day of July, 1974, then the Collector should direct that the possession should be taken of the said land from the non-tribal transferee and to restore it to the tribal transferor free from all encumbrances. The tribal transferor is thus entitled to restoration of his land but only upon his undertaking that he will pay to the non-tribal transferee the purchase price as may be determined under sub-section (4) of section 3 of the said Act and that he will use the land for personal cultivation.

6. The question which arises in the instant L.P.A. is of interpretation of the said section 3 of the Restoration Act. In interpreting the said section, the material expressions used therein which need to be construed for the purposes of this L.P.A. are 'Transfer', 'Tribal Transferor' and 'Non-tribal transferee'. The said expressions are defined in section 2 of the Restoration Act. It may be seen that the definition of the expression 'Tribal-Transferor' given in section 2(k) of the Restoration Act is merely inclusive in nature in the sense that it does not define the said expression as such but only includes successor in interest of the tribal-transferor. It is therefore necessary to determine the meaning of the said expression 'Tribal-transferor' in which the crucial word used is 'tribal' to understand which we have to refer to its definition given in section 2(j) of the Restoration Act. Similarly, the expression "Non-Tribal Transferee" defined under section 2(1) of the said act also gives an inclusive definition and therefore, it has to be understood in the sense in which the expression 'Non-Tribal' is defined in section 2(e) of the said Act. However, perusal of the definition of the expression "Non-tribal" shows that it is a negative definition in the sense that it covers persons who are not tribals. As such for understanding the meaning of the said expression "Non-tribal", we have to consider again the meaning of the expression "tribal" defined in section 2(j) of the Restoration Act.

7. For the sake of convenience, we reproduce below the relevant definitions :

Section 2(e) : "Non-tribal" means a person who is not a tribal and includes his successor-in-interest.

Section 2(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 expression, "Tribal-transfer" and "non-tribal transferee" shall be constructed, accordingly.

Section 2(j) : "Tribal" means a person belonging to a Scheduled Tribe within the meaning of Explanation to section 36 of the Code, and .includes his successor-in-interest.

Section 2(k) : "Tribal-transferor" includes his successor-in-interest;

Section 2(l) : "Non-tribal-transferee" includes his successor-in-interest : and if he or his successor has, on or after the 15th day of March, 1971, transferred land in favour of any person, whether a tribal or non-tribal, includes also such person.

8. The definition of the expression "transfer" given in section 2(i) of the Restoration Act shows that it means transfer of land belonging to a Tribal made in favour of the non-tribal during the period from 1-4-1957 to 6-7-1974. In determining which transfers are covered by the above definition of the expression "transfer" and hence under section 3 of the Restoration Act, it is necessary to understand the meaning of the words "tribal" used in the definition of the said expression "transfer" given in section 2(i) of the said Act. As already pointed out, the definition of the expression of "non-tribal" given under section 2(e) of the said Act is negative in the sense that it includes a person who is not a tribal and therefore the most important definition for our purpose is the definition of the expression "tribal" given in section 2(j) of the said Act. It is trite to say that in the definition of the expression "transfer" which refers to the transfers between the "tribal" and the "non-tribal" the said expressions should mean the "tribal" and the "non-tribal" as defined in the Restoration Act.

9. Turning to the definition of the expression "tribal" given in section 2(j) of the Restoration Act, it is clear that it incorporates the definition of the expression "Scheduled Tribe" given in the Explanation in section 36 of the Code. It would, therefore, be useful to reproduce the said Explanation in section 36 of the Code :

Explanation : For the purposes of this section. "Scheduled Tribes" means such tribes or tribal communities or part of, 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 (and persons, who belong to the tribes or tribal communities, or part of, or groups within tribes or tribal communities specified in Part VII-A of the Schedule to the order (made under) the Article 342, but who are not resident in the localities specified in that Order who nevertheless need the protection of this section and section 36-A (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). (Emphasis supplied)

10. On reading the above Explanation below sub-section 4 of section 36 of the Code, it is clear that it defines the expression "Scheduled Tribes" with reference to the Scheduled Tribes Order, 1950 issued under Article 342 of the Constitution of India. However, it is pertinent to see that although originally the said Explanation was strictly restricted to "Scheduled Tribes" as defined in Part VII-A of the Schedule to the Scheduled Tribes Order issued under Article 342, there was amendment made in the said Explanation by section 2(3) of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 (for short the 'Mah. Act No. 35 of 1974') by which the words emphasised by us in the "Explanation" reproduced above were added except for a further minor amendment therein by Act No. 11 of 1976 by which the bracketed portion "made under" was substituted for the words "made and" presumably to correct a typing error. It is material for our purpose to notice that by virtue of section 1(2) of the Act No. 35 of 1974, the said Act is deemed to have come into force with effect from 6-7-1974 on which date the Ordinance was issued, although after receiving the assent of the Governor, on 31-8-1974 it is first published in the Gazette on 7-9-1974.

11. What needs to be prominently noticed is that by the amendment introduced in the above Explanation below sub-section (4) of section 36 of the Code by Act No. 35 of 1974, which we have emphasised by underlining the same, the definition of the "Scheduled Tribes" for the purposes of section 36 and section 36-A of the Code is enlarged and is wider in scope as compared to Part VII-A of the Schedule to the Scheduled Tribes Order, 1950, because in the amended Explanation the area restrictions in respect of the persons belonging to the Scheduled Tribes contained in the aforesaid Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 are removed with a view to give them protection of sections 36 and 36-A of the Code with the result that although they may not be residents of the localities specified in the aforesaid Part VII-A of the Schedule to the Scheduled Tribes Order, 1950, they are entitled to the benefit of the aforesaid sections 36 and 36-A of the Code.

12. It is the above definition of the expression "Scheduled Tribes" given in the Explanation in section 36 of the Code as amended by the Act No. 35 of 1974 which is incorporated in the definition of the expression "tribal" given in section 2(j) of the Restoration Act. It is material to see that as shown hereinbefore the Act No. 35 of 1974 came into force with effect from 6-7-1974 i.e., prior to the enactment of the Restoration Act which came into fore subsequently w.e.f. 1-11-1975 as per the notification issued by the State Government as per section 1(3) of the said Act which was first published in the Extraordinary Gazette on 28-5-1975 after the receipt of the assent of the Governor on 28-4-1975. What we empahsise is that it is the amended definition of the expression "Scheduled Tribes" given in the Explanation in section 36 of the Code which is incorporated in the definition of the expression "tribal" in the Restoration Act. It is, therefore, clear that the expression "tribal" wherever it is used in the Restoration Act or in other words upon whom the benefit is sought to be conferred under the said Act would mean a person belonging to a Scheduled Tribe mentioned in Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 but without any area restrictions as contained therein.

13. The intention of the Legislature to confer benefits under sections 36 and 36-A of the Code and the Restoration Act upon all the tribals under Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 irrespective of their residence is clear from the Report of the Committee pursuant to whose recommendations Act No. 35 of 1974 (see Assembly Debates, 1974, Vol. 41, p. 827) and the Restoration Act (see its preamble) were enacted. As hereinbefore referred to, the State Government had constituted a Committee as per its Resolution dated 15-3-1971 to examine the provisions of the Code and the Tenancy Laws and to suggest suitable amendments therein in order to give better and effective protection to the tribals who had because of their ignorance lost their holdings to the non-tribals. Perusal of para 24 of the report of the Committee would show that in regard to holdings of the tribals which were already validly transferred to the non-tribals, the Committee had suggested restoration of their lands from the non-tribals for which purpose the Restoration Act was enacted as is clear from its preamble. As regards the restoration of lands of the tribals which were transferred in contravention of section 36(2) of the Code, recommendations were made by the Committee in para 2.6 of its report, pursuant to which the Act No. 35 of 1974 was enacted.

14. However, what is material for our purpose is its recommendation in para 2.7 in which it has recommended that the benefit of restoration of their lands should be conferred upon the tribals wherever they may reside in the State and for that purpose it suggested that the definition of the expression "Scheduled Tribes" given in the Explanation to section 36 of the Code should be suitably amended. The relevant extract of the said para 2.7 is as follows :

"According to the existing provision of sub-section (2) of section 36 of the M.L.R. Code, 1966 the advantage of restriction on transfer can be had only by those Scheduled Tribes which have been notified by Government in the Official Gazette and only in those parts of the State which have also been notified by Government. To our mind in fairness to the Scheduled Tribes Community as a whole, the applicability of new sub-sections (2) to 2(E) should be throughout the State and to all Scheduled Tribes persons wherever they reside or hold land. For this purpose the definition of the expression "Scheduled Tribes" given in the explanation under section 36 may be suitably amended."

15. It is then material to see that although the Committee had recommended suitable amendment to the definition of the expression "Scheduled Tribes" in the Explanation to section 36 of the Code to include the Scheduled Tribes wherever they may reside in the State, in the original Bill as introduced in the Legislative Assembly, there was no such amendment proposed to the Explanation to section 36 of the Code which amendment was proposed by Shri R. P. Walvi, the member of the Assembly and was officially accepted by the Government which moved the Bill (see Assembly Debates, 1974, Vol. 41, p. 946). It is thus clear that after its amendment the definition of the expression "Scheduled Tribes" given in the Explanation in section 36 of the Code is intended to cover Scheduled Tribes enumerated in Part VII-A of the Schedule to the Scheduled Tribes Order residing in any part of the State irrespective of the area restrictions contained therein in order to afford all of them protection of sections 36 and 36-A of the Code. By adopting the said definition of the expression "Scheduled Tribes" given in the explanation in section 36 of the Code for the purposes of the Restoration Act by its incorporation in the definition of the expression "Tribal" given in section 2(j) of the said Act, the benefits under the said Act are also sought to be conferred upon all the Scheduled Tribes covered under Part VII-A of the Schedule to the Scheduled Tribes Order, irrespective of the question whether they reside in the areas specified therein, or not.

16. In the context of the question of removal of area restrictions in the Scheduled Tribes Order, 1950, it would be interesting to notice the objects and reasons of the Amending Act, 1976 which was enacted to amend the said order as well the Scheduled Castes Order, 1950. The objects and reasons are as follows :

"Under the Scheduled Castes and Scheduled Tribes Orders some communities have been specified as Scheduled Castes or as Scheduled Tribes only in certain areas of the State concerned and not in respect of the whole State. This has been causing difficulties to members of these communities in the areas where they have not been so specified. The present Bill generally seeks to remove these area restrictions. However, in cases where continuance of such restrictions was specifically recommended by the Joint Committee on the Scheduled Castes and Scheduled Tribes Order (Amendment) Bill, 1967 no change is being effected. The Committee has also recommended exclusion of certain communities from the list of Scheduled Castes and Scheduled Tribes. These exclusions are not being made at present and such communities are being retained in the lists with the present area restrictions. Such of the communities in respect of which the Joint Committee had recommended exclusion on the ground that they were not found in a State are, however being excluded if there were no returns in respect of these communities in the censuses of 1961 and 1971.

2. The proposed amendments in the list of Scheduled Castes and Scheduled Tribes may lead to an increase in the population of these Castes and Tribes and consequently, in the number of reserved seats in the Lok Sabha and certain State Legislative Assemblies. Provisions have therefore been made in the Bill to empower the census authority to re-estimate the population of the Scheduled Castes and the Scheduled Tribes and the Election Commission to reallocate the reserved constituencies."

Perusal of the speech of the Hon'ble Minister for Home Affairs, who introduced the said Bill in the Parliament, would show that the said Act was however only passer for removal of the area restrictions in the Scheduled Castes Order, 1950, and the Scheduled Castes Order, 1950, as amended in 1956. (See Rajya Sabha Debates, Vol. XCVII, Book No. 2, dt. 3-9-1976, 18 Cols. 7-9). The said Act received the assent of the President on 18-9-1976 but in fact came into force with effect from 17-7-1977 when the Central Government issued the notification as required by sub-section (2) of section 1 of the said Act for bringing it into force.

17. It appears from the above objects and reasons of the Bill of the Amending Act, 1976 that the question of removing the area restrictions in the Scheduled Tribes Order, 1950 was engaging the attention of the Parliament at least since 1967 when it had constituted a Joint Committee to consider the Scheduled Castes and Scheduled Tribes (Amendment) Bill, 1967 introduced in the Parliament at that time. It appears that the said Bill had perhaps lapsed and a new Bill for the said purpose was introduced in Parliament in 1976. The reasons for removing the area restrictions appears to be that although, originally, the population of particular Scheduled Tribes had concentrated in particular areas of the State, in course of time it was found that they had migrated and settled in other areas of the State with the result that area restrictions had become unreal. Even otherwise, the distinction on the basis of the localities or areas might have been felt to be arbitrary. Notice of these factors was taken by all concerned including the State authorities for which reason suitable steps were taken by them to amend the law. However, as is clear from the dates hereinabove given, the amendment removing area restri-ctions in the Scheduled Tribes Order, 1950 for the purposes of sections 36 and 36-A of the Code by amending the definition of the expression "Scheduled Tribes" in the Explanation in section 36 of the Code and therefore, for the purposes of the Restoration Act by its incorporation in the definition of the expression "Tribal" given in section 2(j) of the said Act was made earlier to the Amending Act, 1976 and therefore, for the purposes of the said enactments, the area restrictions in Part VII-A of the Scheduled Tribes Order, 1950 stood removed even prior to enactment of the Amending Act, 1976.

18. It is thus clear that the definition of the expression "Tribal" under section 2(j) of the Restoration Act incorporates the definition of the expression "Scheduled Tribes" given in the Explanation in section 36 of the Code as amended by Maharashtra Act No. 35 of 1974. The expression "tribal" used in the Restoration Act would therefore mean a Scheduled Tribe listed in Part VII-A of the Scheduled Tribes Order, 1950 but without any area restriction. The expressions "Non-tribal", "Tribal-transferor" and "Non-tribal transferee" used in the said Act will have to be therefore construed accordingly.

19. Keeping in mind the above meanings of the definitions of the expression "tribal" and "non-tribal" if we see the definition of the expression "transfer" given in section 2(i) of the Restoration Act, it would mean transfer of his land by a person belonging to a Scheduled Tribe as defined in the Explanation in section 36 of the Code which mean a person belonging to a Scheduled Tribe listed in Part VII-A of the Schedule to the Scheduled Tribes Order, 1950, but residing in any part of the State irrespective of the area restrictions in the said Order to a non-tribal which would mean a person not belonging to the Scheduled Tribe as defined in the aforesaid Explanation in section 36 of the Code. The other material ingredient of the definition of the expression "Transfer" is that the transfer contemplated by the Restoration Act is a transfer made during the period from 1-4-1957 to 6-7-1974.

20. We may now read the provisions of section 3(1) of the Restoration Act in the light of the above meanings of the above expression used therein. The relevant extract of section 3(1) is reproduced below for ready reference :

"3(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 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 commencement of this Act 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)."

21. Perusal of section 3(1) of the Restoration Act shows that it contemplates that the non-Tribal-transferee is in possession of the land which is transferred to him during the period from 1-4-1957 to 6-7-1974 by a tribal-transferor i.e. a person belonging to a Scheduled Tribe as defined in the Explanation in section 36 of the Code, which means a Scheduled Tribe, without any area restriction, as listed in Part VII-A of the Schedule to the Scheduled Tribes Order, 1950. It is the above land of the tribal-transferor transferred by him to the non-Tribal-transferee during the above period which is sought to be restored to him under section 3(1) of the Restoration Act. It is clear that section 3(1) of the Restoration Act operates upon the past transactions between the parties in the sense that it is the land which is transferred by the tribal as defined in the said Act to the non-tribal also defined in the said Act in the past viz. during the period from 1-4-1957 to 6-7-1974 (see definition of the expression 'transfer') which is sought to be restored to him in presenti i.e. on enforcement and as provided in the section 3(1) of the said Act.

22. Turning now to the judgments which are relied upon on behalf of the appellants, we will first refer to the judgment of the learned Single Judge of this Court in the case of Lachmanna Malanna Alurwar vs. M. R. T. and others, 1992 Mh.L.J. 1139 (cited supra). Para 7 of the said judgment is relevant. Although it is rightly held in the said judgment that the expression "Tribal" used in the Restoration Act has to be understood in the sense in which the expression "Scheduled Tribes" is defined in the Explanation in section 36 of the Code, the said judgment missed the material part of the said Explanation by which the area restrictions which are contained in Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 issued under article 342 of the Constitution were removed therein for the purpose of the said Explanation defining of the expression "Scheduled Tribes" so that the benefits under sections 36 and 36-A of the Code, could be conferred upon them irrespective of the localities or areas in which they resided in the State. Since the above judgment missed the above material part of the Explanation to section 36 of the Code, it thought that for the first time, the community "Pradhan" in question therein was included as a Scheduled Tribes in Schedule II of the Amending Act, 1976 enacted by Parliament.

23. It is next held in the above judgment that the tribal therein was not a tribal on the date of the transaction of sale on 11th May, 1962 and therefore he was not entitled to the benefit conferred upon him under section 3(1) of the Restoration Act. As regards the above question whether it is necessary for the tribal to have that character on the date of the transaction of sale in accordance with the law as it then stood, the learned Judge has in his above judgment relied upon the decision of the Division Bench of this Court in Tukaram's case cited supra for the proposition that the tribals cannot be conferred the Status of a Scheduled Tribe respectively. According to the learned Single Judge, the point involved in the case before him was squarely covered by the above judgment of the Division Bench in Tukaram's case cited supra.

24. Perusal of the judgment of the other learned Single Judge of this Court in Writ Petition No. 1625 of 1986, Bandu vs. State shows that according to him for the first time the Caste "Andh" was included as Scheduled Tribe in Schedule II of the Amending Act, 1976 when it came into force from 27th July, 1977. Therefore, according to him a subsequent inclusion of a tribe in the Scheduled Tribes Order would not affect the validity of the transfer effected earlier when both the parties to the transfer were non-tribals. In support of his view, he has also relied upon the judgment of the Division Bench of this Court in Tukaram's case cited supra.

25. Since both the learned Single Judges of this Court have heavily relied upon the judgment of the Division Bench of the Court in Tukaram's case cited supra for their view, we shall first deal with the said judgment to determine its ratio and to see how far it is applicable in interpretation of the provisions of the Restoration Act. It must be observed that the judgment of this Court in Tukaram's case is in regard to the interpretation of section 36-A of the Code, which is also introduced by Act No. 35 of 1974. It is clear from para 3 of the said judgment that the proceedings therein were initiated under section 36-A of the Code by the deceased Piraji in that case on the ground that he was a tribal and that he was entitled to restoration of his land from the non-tribal since the sale by him, to the non-tribal was in contravention of the provisions of sub-section 1 of the said section 36-A of the Code.

26. It is not necessary to reproduce the whole of section 36-A of the Code. However, sub-sections 1, 4, 5 and 6 thereof which are relevant, are reproduced below to understand the complete scheme of the said section regarding restoration of land to tribals.

"36-A(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, lease mortgage for a period not exceeding 5 years of the Collectors; and

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

"36-A(4) : Where on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, it is noticed that any occupancy has been transferred in contravention of sub-section (1), the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu or on an application made by any person interested in such occupancy, within thirty years from the date of the transfer of occupancy hold an inquiry in the prescribed manner and decide the matter."

"36-A(5) : Where the Collector decides that any transfer of occupancy has been made in contravention of sub-section (1) he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government, free from all encumbrances and shall be disposed of in such manner as the State Government may, from time to time direct."

"36-A(6) : Where an occupancy vested in the State Government under sub-section (5) is to be disposed of, the Collector shall give notice in writing to the tribal-transferor requiring him to state within 90 days from the date of receipt of such notice whether or not he is willing to purchase the land. If such tribal-transferor agrees to purchase the occupancy, then the occupancy may be granted to him, if he pays the prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such tribal-transferor, whether as owner or tenant, does not as far as possible exceed as economic holding."

27. Perusal of sub-section (1) of section 36-A would show that it places certain restrictions upon the non-tribals in respect of transfers in their favour of the occupancies belonging to the tribals made after the commencement of Act No. 35 of 1974. The said sub-section requires an application to be made by the non-tribal to the Collector if the land of a tribal is to be transferred to him. It further requires as provided therein prior sanction before the actual transfer takes place. If there is contravention of sub-section (1) of section 36-A of the Code, the consequence is provided for in sub-section (4) thereof. The Collector is empowered thereunder to initiate proceedings either suo motu or on the application made by the person interested in the suit land within three years (30 years after amendment by Act No. 1 of 1991) to decide the matter after holding an enquiry in the same. Sub-section (5) of section 36-A confers power upon the Collector to declare as invalid the transfer of occupancy of any tribal made in contravention of sub-section (1) of section 36-A. It then provides that on such declaration being made such occupancy shall vest in the State Government free from all encumbrances and that the State Government can dispose of the same in such manner as it may direct from time to time. In disposing of the said occupancy, sub-section (6) of section 36-A requires that it should first be offered to the tribal-transferor by giving him notice of 90 days to State whether he is willing to purchase the said land. If he shows his willingness to purchase the occupancy it can be granted to him on payment of the prescribed purchase price and further on his undertaking that he would cultivate the land personally.

28. It is clear from the provisions of section 36-A of the Code that as rightly held by the Division Bench of this Court in its judgment in Tukaram's case cited supra, the said provisions are prospective and not retrospective in operation, because sub-section (1) thereof which requires the sanction of the Collector for a transfer between the tribal and the non-tribal, clearly operates as provided therein prospectively from the date of commencement of the Act No. 35 of 1974 by which it was introduced in the Code. It is the contravention of the said sub-section (1) viz. the procedure for transfer laid down therein which results in invalidating the transfer and consequent vesting of the occupancy in question in the State Government. Since the transfer contemplated by section 36-A(1) of the Act is after its enactment and since its invalidation is because of non-compliance with the said section 36-A(1),the Division Bench in Tukaram's case has further rightly held that the tribal whose occupancy is being transferred to the non-tribal must hold the status of a tribal on the date when such transfer is sought to be made.

29. However, while considering the question whether the person claiming the status of a tribal in the said case was a tribal on the date of the transfer, the above judgment has lost sight of the above referred amendment made by Act No. 35 of 1974 in the definition of the expression "Scheduled Tribes" given in the Explanation in section 36 of the Code according to which the status of a person as tribal for the purposes of section 36 and the said section 36-A has to be determined, because it appears that the above referred amendment in the Explanation in section 36 of the Code by Act No. 35 of 1974 was not brought to the notice of the Division Bench in that case, although as hereinbefore referred to after receipt of the assent of the Governor on 31-8-1974 the Act No. 35 of 1974 was first published on 7-9-1974 but as provided in its section 1(2), it was brought into force earlier w.e.f. 6-7-1974 on which date the Ordinance which was replaced by it had come into force.

30. On the other hand what was brought to the notice of the Division Bench in Tukaram's case was Schedule II in the Amending Act, 1976 relating to Scheduled Tribes by reference to which it was urged in that case that for the first time the caste or the tribe of the tribal in question in that case was included as a Scheduled Tribe in the above Schedule of the Amendment Act, 1976 which came into force with effect from 27th July, 1977.

31. It is material to see at this stage that in para 1 of Part VII-A of the Schedule to Scheduled Tribes Order, 1950 relating to the State of Maharashtra the caste "Naikada" of the person claiming to be a tribal in Tukaram's case was included as a Scheduled Tribe throughout the State of Maharashtra except the Districts of Buldhana, Akola, Amravati, Yavatmal, Wardha, Nagpur, Bhandara, Chanda, Aurangabad, Parbhani, Bhir, Usmanabad, Rajura and Nanded (in which the Taluka Kinwat in which the village of the person claiming to be a tribal in Tukaram's case is situated). The above area restrictions were removed in Schedule B of the Amending Act, 1976 in which the caste "Naikada" was recognised as Scheduled Tribe, throughout the State of Maharashtra. It was, therefore, urged in Tukaram's case that since the caste Naikada in question in that case was included as Scheduled Tribe only from 27-7-1977, when the Amending Act, 1976 came into force, the person claiming to be a tribal in that case was not a tribal on the date he executed the sale-deed on 9-9-1974 in favour of the non-tribal without the sanction of the Collector as required under sub-section (1) of section 36-A of the Code. As such, according to the learned counsel for the non-tribal in that case, the transaction being between the non-tribals there was no question of any contravention of section 36-A of the Code with the result that there was no question of restoration of the suit land therein to the person who was not a tribal on the date of the transaction.

32. The above contention was upheld by the Division Bench in that case since the crucial amendment made to the Explanation in section 36 of the Code was not brought to its notice. Had the above amendment removing area restrictions made in the Explanation in section 36 of the Code by Act No. 35 of 1974 been brought to the notice of the Division Bench in Tukaram's case it would have examined the facts in the case before it in the examined the facts in the case before it in the light of the amended definition of the expression "Scheduled Tribes" given therein. It would have then held that since the said Act No. 35 of 1974 which amended the Explanation in section 36 of the Code came into force w.e.f. 6-7-1974, the person claiming to be a tribal in the case before it was a "tribal" on the date of the Sale transaction i.e. 9-9-1974 since the amended definition of the expression "Scheduled Tribes" in the Explanation to section 36 of the Code included for the purpose of sections 36 and 36-A of the Code a person whose caste or tribe was included in Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 although it might not be residing in the local areas specified in the said Part VII-A of the Schedule.

33. It is made clear here that the word "tribal" used in section 36 and section 36-A of the Code means a person belonging to a Scheduled Tribe and the word "non-tribal" means a person not belonging to a "Scheduled Tribe" (see for this purpose section 36(2) of the Code). It is also made clear that although the opening words of the Explanation in section 36 of the Code give an impression that it is applicable to section 36 only, it is clear from the later part of the said Explanation that it is applicable to section 36 as well as section 36-A of the Code.

34. Thus, as discussed above, the view taken by the Division Bench in Tukaram's case on principle that section 36A of the Code is prospective and therefore, the person claiming to be tribal must hold the character of a tribal on the date of the transaction with which we also agree lays down a binding law on the subject i.e. interpretation of section 36A of the Code. However, its view on facts in that case is per incuriam as it has lost sight of the crucial amendment made by Act No. 35 of 1974 to the definition of the expression "Scheduled Tribes" given in the Explanation in section 36 of the Code because of which as hereinbefore shown a person whose caste, community or tribe is included in Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 relating to the State of Maharashtra gets the protection of section 36 and section 36A of the Code even though he may not be residing in the areas or localities specified in the said Part-VII of the Schedule to the above Order relating to the State of Maharashtra. Needless to state that a decision rendered in ignorance of a statute or a binding authority is described as per incuriam and does not lay down a binding precedent for which the question of law involved must be perceived and must be present in the mind of the Court. A decision rendered sub silentio cannot operate as a binding precedent. See paras 40 and 41 of the recent judgment of R. M. Sahai, J. (concurring) in State of M. P. vs. M/s Synthetic and Chemicals Ltd., J. T. 1991 (3) SC 268.

35. Even otherwise, the judgment of the Division Bench in Tukaram's case cannot act as binding precedent in the instant case because the provisions of section 36-A of the Code are not pari materia with the provisions of section 3 of the Restoration Act. Although the general object of the provisions of sections 36(2), 36-A of the Code and section 3 of the Restoration Act is the same viz. to confer benefit upon the tribals of restoration of their lands transferred to non-tribals as recommended by the Committee, hereinbefore referred to constituted by the Government for suggesting ways and means to give better protection in to tribal land holders, the said provisions operate in different fields. Sub-sections (2) and (3) of section 36 of the Code provide for restoration of his land to the tribal, if it is transferred to the non-tribal without the sanction of the Collector prior to enactment of the Act No. 35 of 1974. Section 36A of the Code is applicable for restoration of the land to the tribal if his land is transferred to the non-tribal in contravention of sub-section (1) thereof after the enactment of the Act No. 35 of 1974.

35-A. As rightly held in Tukaram's case, section 36-A is prospective which means that a person claiming to be a tribal must bear the character of a tribal of on the date of the transaction. However, as regards section 3 of the Restoration Act, it confers benefit upon the tribal as defined therein restoration of his land transferred in the past to the non-tribal during the period from 1-4-1957 to 6-7-1974. Section 3 of the restoration Act thus operates upon the past transactions which although may be valid at the time they were entered into are allowed to be reopened as provided in the said section 3 of the Restoration Act.

36. The learned counsel for the appellants had, however, strenuously urged before us relying upon the judgment of the Division Bench in Tukaram's case as well as the judgments of the learned Single Judge cited supra following the same that the person claiming to be tribal must bear on the date of transfer the character of a tribal i.e. of the scheduled tribe recognised under the Scheduled Tribes Order issued under Article 342 of the Constitution of India, which is applicable on the date of transfer. It is no doubt true that for the purposes of section 36-A of the Code, the tribal must have that character on the date of transfer because obviously such transfer sought to be effected by him requires the permission of the Collector under sub-section (1) thereof. However, there cannot be any parity of reasoning to apply the same ratio in interpreting section 3(1) of the Restoration Act. As referred to by us hereinabove reading of section 3 of the Restoration Act shows that it confers protection upon the tribals as defined in the said Act. It is their land which is sought to be restored to them, if it was transferred by them during the period from 1-4-1957 to 6-7-1974. The right is thus conferred upon the tribals as defined under the said Act. It has nothing to do with what status he held when actually the transaction was entered into by him.

37. In fact if it was the intention under the Restoration Act that the person claiming to be a tribal should hold the status of a tribal on the date of the transaction according to the law applicable at that time, there was no need to define the expression "tribal" artificially with reference in the definition given in the Explanation in section 36 of the Code, for the purposes of the Restoration Act, because the whole scheme of the Restoration Act shows that it operates upon the past transactions during the period from 1-4-1957 to 6-7-1974 and not upon any future transactions and therefore defining tribal in the manner in which it has done would be an exercise in futility. We cannot attribute such intention to the Legislature. As already pointed out, the area restrictions in the Scheduled Tribes Order, 1950 had become obsolete because the tribals who might be initially concentrated in areas or localities specified in Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 had migrated and started residing in other areas of the State or even otherwise because it might have been found that there were persons of the categories i.e. castes or tribes included in the above referred Part VII-A residing in other parts of the State also. There was thus no reason to restrict the protection or to confer benefit upon persons belonging to the Scheduled Tribes residing in specified areas only. Due notice of the above factors appeared to have been taken first in amending the explanation in section 36 of the Code and thereafter in the Amending Act, 1976.

38. The scheme of the Restoration Act clearly shows that no rights or obligations in regard to future transactions as such are conferred under the said Act which rights and/or obligations are conferred under section 36-A of the Code. The right which is conferred in presenti under the Restoration Act is the right to get restoration of the land which is transferred during the period from 1-4-1957 to 6-7-1974. Needless to state that subject to its validity, the State Legislature had legislative power to choose the persons upon whom the rights under an enactment be should conferred. It is for the purpose of conferring such a right of restoration of land transferred during the period from 1-4-1957 to 6-7-1974 that the definition is given of the expression "Tribal" in the Restoration Act.

39. Although not pari materia, the scheme of section 36-A of the Code and the Scheme of the Restoration Act show that they are complimental and supplemental to each other because section 36-A gives protection to the transfers made by the tribals in future whereas section 3 of the Restoration Act gives them protection by reopening their past transactions during the aforesaid period, which were found as per the report of the Committee as amounting to a malpractice or fraud being played upon them by the non-tribals in order to deprive them of their holdings, may be without violating any law. The ratio of the decision of the Division Bench in Tukaram's case cannot therefore be applied to the provisions of the section 3(1) of the Restoration Act. With respect, in following the judgment of the Division Bench of this Court in Takaram's case in their judgment cited supra, the learned Single Judges of this Court have not considered at all the above different scheme of section 3(1) of the Restoration Act and also the effect and impact of the amendment made by Act No. 35 of 1974 in the definition of the expression "Scheduled Tribes" given in the section 36 of the Code by which irrespective of his residence a person whose caste or tribe is included in Part VII-A of the Schedule relating to the State of Maharashtra in the Scheduled Tribes Order, 1950 is given the protection of section 36 and 36-A of the Code which definition is incorporated in the definition of the expression "tribal" given in the Restoration Act. It is not therefore, possible for us to accept the ratio of the above judgments.

40. In view of the Explanation in section 36 of the Code, according to which the expression "tnbal" is defined in the Restoration Act, it cannot be disputed that if area restriction in the Scheduled Tribes Order, 1950 stands removed for the purposes of sections 36 and 36-A of the Code as well as sections 3 and 4 of the Restoration Act, the original respondent No. 2 who is "Andh" by caste is a "tribal" within the meaning of the said expression under the Restoration Act, because perusal of the Part VII-A of the Schedule to the Scheduled Tribes Order, 1950 relating to the State of Maharashtra shows that in para 5 "Andh" is included as the Scheduled Tribe in Mehkar Tahsil, District Amravati, Gadchiroli and Chandrapur Districts, Kelapur and Wani Tahsils in District Yavatmal. It is only because the original respondent belongs to Pusad Tahsil of District Yavatmal and not to the above Tahsil of the same District, that it is alleged that he is not a person belonging to the Scheduled Tribe recognized under the Scheduled Tribes Order, 1950. However, once the area restrictions stand removed as provided in the Explanation in section 36 of the Code, there cannot be any doubt that the original respondent No. 2 is a tribal upon whom the benefit of restoration of his land and the non-tribal is rightly conferred, since he had transferred the said land to him during the period from 1-4-1957 to 6-7-1974.

41. The contention raised on behalf of the appellants in the instant Letters Patent Appeal thus deserves to be rejected.

42. In the result, the instant L.P.A. fails and is dismissed. However, under the circumstances there will be no order as to costs.

Appeal dismissed.