Writ Petition No.2499 of 1990

2nd December, 2008

Petitioner Counsel: Mr. S. A. KULKARNI
Respondent Counsel: Mr. R. P. PHATKE

Cases Cited:
Daulat Dhana Mali since deceased by his L.Rs. Ramkrishan Daulat Mali Vs. State of Maharashtra, 1994 Mh.L.J. 1710 [Para 7,14,15]
Lingappa Pochanna Appealwar Vs. State of Maharashtra and Kalu Gopya Banjari Vs. State of Maharashtra, AIR 1985 Supreme Court 389 [Para 11]
Amrendra Pratap Singh Vs. Tej Bahadur Prajapati, 2004(3) Mh.L.J. 4103 [Para 11]
Raju s/o. Pundlikrao Burde Vs. Establishment Officer (III-B), MSEB, 2003(4) Mh.L.J. 780 [Para 14]
Ulhas Nimba Choudhari Vs. Burhan Samsa Tadvi deceased Heirs Abbaskhan s/o. Budhan Tadvi, 2007(2) ALL MR 781=2007(1) Mh.L.J. 165 [Para 15]

JUDGMENT

JUDGMENT :- By this petition, the petitioners impugn judgments rendered by Maharashtra Revenue Tribunal (MRT) in Review Petition No.Rev.Trb.C-4/1989, dated 13.7.1990, judgment and order rendered in Appeal No.Rev.Trb.13/87, dated 26.8.1988 and judgment and order rendered by Tahsildar, Erandol in Aadivasi Case No.278/1976 dated 15.9.1987.

2. Originally the petition was filed by deceased Pandharinath and others who are legal representatives of deceased Madhav Gansa Wani. Said Madhav demised during pendency of the petition. The present petitioners are his legal representatives. Respondents are original applicants, who initiated proceedings for restoration of two agricultural lands under Section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (For short, MRLST Act).

3. Admittedly, the Respondents owned agricultural lands bearing Gat No.40, admeasuring 17 acres and Gat No.64 admeasuring 26 gunthas situated at village Sakre under Erandol Tahsil (Dist.-Jalgaon). It is undisputed that they executed a registered sale deed dated 3.4.1964 in favour of deceased petitioner Madhav Gansa Wani in respect of both these lands. They alienated said lands for consideration of Rs.31,500/- (Rupees thirty one thousand five hundred). Allegedly, they were paid Rs.17,000/- (Rupees seventeen thousand) by way of earnest amount prior to the execution of the sale deed and at the time of registration of the sale deed, purchaser - Madhav Gansa Wani, paid remaining consideration of Rs.14,500/- (Rupees fourteen thousand five hundred).

4. The Respondents filed an application for restoration of the above referred lands to them U/s.3 of the MRLST Act, alleging that they are tribals and the transfer of the said lands to non-tribals was illegal. The application was registered as Aadivasi Case No.278/76. It appears that initially the proceedings had commenced before the Deputy Collector (SDO), Amalner. The Deputy Collector, issued notice dated 27.1.1976 calling upon deceased Madhav Gansa Wani, to show cause and to attend the inquiry. The deceased petitioner - Madhav challenged the issuance of notice by filing Special Civil Application No.1133/76. This Court stayed the inquiry. However, subsequently, the Spl.C.A. came to be dismissed and the stay was vacated. Aggrieved thereby, deceased petitioner Madhav preferred SLP No.8205/1976 in the Supreme Court. The Apex Court granted stay to the inquiry by order dated 11.10.1976. On 19.12.1984, the SLP was dismissed. The inquiry which was pending was thereafter expedited. By that time, the Tahsildar was delegated with powers of such inquiry and hence, the inquiry proceedings were remitted to his office.

5. The Tahsildar, Erandol proceeded with the inquiry. During the inquiry, deceased petitioner No.1 Pandharinath appeared for himself and as a Special Power of Attorney of other legal representatives of deceased Madhav. He resisted the application. He asserted that the lands in question were purchased after obtaining due permission from the Deputy Collector, Amalner and also after taking permission of the District Court in respect of minor vendor. It was asserted that the lands were developed after the purchase. It was contended that the vendors had purchased other agricultural lands at Village Gandhali, Tq.-Amalner, by utilising the consideration paid to them. Alternatively, the petitioners expressed willingness to restore the lands in question to the Respondents on receiving compensation of the lands as per juxta position of market value and the development charges incurred by them.

6. The learned Tahsildar, came to the conclusion that the sale transaction was hit by Section 3 of the MRLST Act and was, therefore, illegal. The learned Tahsildar held that the lands in question were owned by Adivasis (tribals) and transfer thereof to non-tribal was illegal. Consequently, he allowed the application of the Respondents and directed restoration of the said lands to them. The order of the Tahsildar was challenged before the MRT by filing appeal (Rev. Trb-13/87) by the petitioners. The learned Member of the MRT dismissed the appeal. The petitioners thereafter filed Review Petition which also came to be dismissed. Consequently, the petitioners have filed this petition.

7. Mr. S. A. Kulkarni, learned advocate would submit that the Respondents did not produce caste certificates in order to show that they were tribals and as such restoration of the lands in question to them is wrongly ordered. He would further submit that unless there is caste verification and the status of the Respondents as tribals is duly established, beneficial legislation cannot be made available to them. He would submit that the Respondents belong to "Rana Rajput caste" which is outside the pale of definition of the expression "tribal". He contended that it is necessary to refer the caste certificates of the Respondents for verification of their status and to examine such status on the basis of opinion of the Scrutiny Committee. He placed strong reliance on "Daulat Dhana Mali since deceased by his L.Rs. Ramkrishan Daulat Mali and others Vs. State of Maharashtra and others" 1994 Mh.L.J. 1710. His next submission is that the Respondents were not entitled to claim benefit of Section 3(1) of the MRLST Act, inasmuch as they purchased other agricultural lands at village Gandhali and the sale transaction was for their benefit. He would submit that it is a case of "deemed exchange" and hence, the restoration of the lands in question to the Respondents is bad in law. Per contra, Mr. R. P. Phatke, learned advocate, supports the impugned judgments. He has placed on record judgment and order of Additional Commissioner, Nasik, rendered in an appeal No.8/1988 dated 29.2.1990, whereby challenge to caste certificate of the Respondent No.5 - Zagadu @ Dagdu, as made by deceased petitioner Pandharinath was found to be unsustainable. The appeal was dismissed by the Additional Commissioner, Nasik Division, holding that caste certificate of Respondent No.5 - Zagadu @ Dagdu is legally valid and he is Aadivasi (tribal). He would also point out that the caste certificate of the Respondent No.5 Zagadu @ Dagdu was filed before the learned Member of the MRT and has been considered as sufficient one. Hence, he urged for dismissal of the petition.

8. So far as the exchange of the lands is concerned, there is hardly any material on record to infer that the lands owned by the Respondents were exchanged in lieu of any land owned by deceased Madhav. What was stated by deceased petitioner No.1 Pandharinath, before the learned Tahsildar was that the Respondents made purchases of some other lands situated at village Gandhali. There is no iota of evidence on record to show that deceased Madhav owned any land at village Gandhali. Recitals of the agreement of sale, of which copy is placed on record, would show that the Respondents entered into an agreement of sale in respect of the said two lands with deceased Madhav. It is not an agreement for exchange of lands. The recitals of the agreement of sale would show that the Respondents indicated willingness to migrate to village Tadepur, and, therefore, had agreed to purchase land bearing S. No.60 owned by one Sukhdeo Dagdu Marathe, resident of Amalner. Obviously, the said land which was supposed to be purchased by the Respondents was not owned by deceased Madhav or any of his family members.

9. There is no iota of evidence on record to show that the Respondents, in fact, purchased any agricultural land by utilising sale proceeds derived from the sale transaction in respect of the above referred two lands. The plea of exchange can be raised only if it is covered by the same transaction and the properties are owned by the same parties. The petitioners have not proved before the concerned authorities that, in fact, the Respondents completed the sale transaction of land which they intended to purchase at village Gandhali. Mere reference of such an agreement with a third party, in the recitals of the agreement of sale in respect of the two lands of the Respondents, by itself would not suffice the purpose.

10. Section 3(1) of the MRLST Act, reads as follows :

"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) :"

11. There cannot be duality of opinion that the MRLST Act, is a social welfare legislation. The object of the enactment is to help gullible tribals, who were likely to be deprived of their properties. The Law took into account exploitation of the tribals at hands of the non-tribals. The Apex Court in "Lingappa Pochanna Appealwar Vs. State of Maharashtra and another and Kalu Gopya Banjari Vs. State of Maharashtra and another" AIR 1985 Supreme Court 389, held that the provisions of the said enactment are legal and valid. The Apex Court in "Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and others" 2004(3) Mh.L.J. 4103, held that the provisions of Section 65 of the Limitation Act would not apply in respect of the land held by the tribal and non-tribal person cannot perfect title by virtue of adverse possession. The Apex Court, considered social welfare dimension of the provisions under the relevant enactment which deals with the rights of the tribals.

12. As stated before, the chief bone of contention raised by Mr. Kulkarni, is that the caste certificates of the Respondents were not produced and verified through the Scrutiny Committee and as such their status as tribals could not be readily accepted. The fact situation in the present case would depict absence of any such plea raised by the petitioners at the first available opportunity. The impugned judgment rendered by the Tahsildar, reveals that initially the proceedings were pending before the Deputy Collector (SDO). The petitioners have not filed copy of their written statement or the oral statement of deceased petitioner No.1 Pandharinath, in order to show that such a question was raised at the initial stage itself. He represented all other petitioners as their special Power of Attorney. His statement was recorded in the proceedings. There is no evidence to show that he disputed status of the Respondents as tribals. It appears that the petitioners had challenged the show cause notice dated 27.1.1976 issued by the Deputy Collector, Amalner, at the commencement of the inquiry. The Special Civil Application No.1133/1976 filed by them was dismissed by this Court and the said dismissal came to be confirmed by the Apex Court in SLP No.8205/1976. The petitioners have conveniently failed to file the relevant copies of the judgments rendered by this Court in Special Civil Application and the Apex Court in SLP referred to above. Needless to say, I am at a loss to know whether the notice was challenged on the ground that the Respondents were not members of the class of tribals (VJNT).

13. The impugned judgment rendered by learned Member of the MRT reveals that caste certificate issued by the competent authority to the Respondent No.5 Zagadu @ Dagdu, was placed on record. The said caste certificate dated 7.4.1988 revealed his religion as "Hindu" and caste as "Pardhi". He also produced xerox copy of the School Leaving Certificate which supported such a caste claim. The MRT exercised appellate jurisdiction while admitting the caste certificate on record. The appeal is continuation of the original proceedings and as such the said additional evidence could be permitted. The copy of order rendered by Additional Commissioner, Nasik Division, reveals that the caste certificate of Respondent No.5 Zagadu @ Dagdu was upheld and the appeal preferred by deceased petitioner No.1 Pandharinath was dismissed. It is important to note that this petition was filed on 19.8.1990, whereas the appeal No.8/1988 came to be dismissed by order of the Additional Commissioner, Nasik Division on 29.2.1990. This is a material fact. The petitioners suppressed this material fact while filing the petition. Obviously, it will have to be said that the petitioners purposefully omitted to mention such a subsequent development and the fact that the caste certificate of the Respondent No.5 Zagadu @ Dagdu, was held as valid one. They cannot escape blame of suppression in respect of the said material fact.

14. In "Daulat Dhana Mali since deceased by his L.Rs. Ramkrishan Daulat Mali and others Vs. State of Maharashtra and others" (supra), Single Bench of this Court directed that the caste certificates issued by the Taluka Executive Magistrate in respect of the tribal claim of the Respondent No.1 therein shall be referred to the Scrutiny Committee, Directorate of Tribal Research and Training Institute, for verification. The caste certificate issued in favour of Respondent No.5 Zagadu @ Dagdu is dated 3l.1.1984. At the relevant time, Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes And Special Backward Category (Regulation of Issuance and Verification of Caste) Certificate Act, 2000, was not in vogue. The said enactment came into force in the year 2000. A Division Bench of this Court in "Raju s/o. Pundlikrao Burde Vs. Establishment Officer (III-B), MSEB and another" 2003(4) Mh.L.J. 780 had an occasion to consider the relevant issue. The Division Bench of this Court observed:

"A fair and just conjoint reading of section 4, sub-section (2) and the definition of caste certificate and Competent Authority contained in section 2(a) and (b) of the Maharashtra Scheduled Castes, 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 provides for saving of the caste certificates issued prior to the coming in force of the Act by officers or authorities, then competent to so issue the same and similar would be the case in regard to caste validity certificates issued by the officer, authorities or the committees, then validly constituted."

15. Considering the above ratio, this Court in "Ulhas Nimba Choudhari and another Vs. Burhan Samsa Tadvi deceased Heirs Abbaskhan s/o. Budhan Tadvi and others" 2007(1) Mh.L.J. 165 : [2007(2) ALL MR 781], held that it was not needed to ask for verification of caste certificates before the restoration of possession could be directed, in the cases where certificates are issued by the competent authorities prior to the enactment of the year 2000. It need not be emphasised that the Aadivasi Case No.278/1976 was initiated long before commencement of the said Act. There was no need, therefore, to ask the Respondents to obtain verification of the caste certificates before the restoration of possession. One cannot be oblivious of the intention of the Legislature and the fact that the inquiry contemplated U/s.3 of the MRLST Act, is of summary nature. Having regard to ratio of the Division Bench judgment in above referred case, I find it difficult to adopt the course as was done in "Daulat Dhana Mali since deceased by his L.Rs. Ramkrishan Daulat Mali and others Vs. State of Maharashtra and others" (supra). The belated and after thought challenge to the tribal status of the Respondents is, therefore, unacceptable. The petitioners have not produced any tangible material on record to infer that the Respondents are members of "Rana Rajput caste". They appear to be members of Hindu Pardhi caste which is recognised as tribal as has been duly considered by the learned Member of the MRT. The petition also suffers from suppression of the material facts. Under these circumstances, I have no hesitation in holding that the impugned judgments are legal and proper.

16. In the result, the Petition is dismissed with costs which are quantified at Rs.5,000/- (Rupees five thousand).

Petition dismissed.