WRIT PETITION No. 6973/2018

5th September 2019

Petitioner Counsel: Shri A. P. Chaware
Respondent Counsel: Shri A. V. Palshikar Shri Onkar R. Deshpande Shri A. Parchure
Act Name: Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 Maharashtra Land Revenue Code, 1966

Section :
Section 36A(1) Maharashtra Land Revenue Code, 1966 Section 36A(4) Maharashtra Land Revenue Code, 1966 Section 247 Maharashtra Land Revenue Code, 1966

Cases Cited :

JUDGEMENT

RULE. Heard finally with consent of counsel for the parties.

2. The petitioners claim to belong to 'Pardhan' Scheduled Tribe. Land bearing Survey No.161 admeasuring about 34 R is the subject matter of dispute in the present proceedings. It is the case of the petitioners that the said land was owned by their ancestors. On 12.06.2001, a gift-deed was got executed from the respondent no.6 alongwith one Rushi Jumnake in favour of the respondent no.5-Trust. According to the petitioners who are the legal heirs of one of the donors, the said gift-deed is illegal and in contravention with the rights conferred upon them as belonging to the Scheduled Tribe community. It is their case that no permission of the Competent Authority was obtained before executing the said gift-deed. On 08.03.2016, an application before the Tahsildar was moved seeking restoration of the aforesaid land from the Trust. The prayer as made was opposed by the Trust. The Tahsildar by an order dated 19.07.2016 passed an order directing that the names of the respondent no.6 alongwith Rushi Jumnake and petitioner no.2-Bhagirathibai be entered into the revenue records. Being aggrieved by that order, the Trust filed an appeal under Section 247 of the Maharashtra Land Revenue Code, 1966 (for short, 'the Code') alongwith an application for condonation of delay. After condoning the delay, by the impugned order the Maharashtra Revenue Tribunal was pleased to allow the revision application as filed and set aside the order dated 19.07.2016 that was passed by the Tahsildar. Being aggrieved by this order, the original applicants have filed the present writ petition.

3. Shri A.P. Chaware, learned counsel for the petitioners submitted that the initial application as filed by the petitioners was with a request to restore possession of land bearing Gat No.161 admeasuring 34 R. The said application was dated 08.03.2016. The Tahsildar rightly noted that without obtaining prior permission of the Competent Authority, the gift-deed was shown to have been executed on a stamp paper of Rs.100. The Tahsildar therefore proceeded to exercise jurisdiction under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, ‘the Act of 1974’) and directed restoration of the land in the names of the petitioners. He submitted that against that order, no revision application was maintainable under Section 247 of the Code before the Maharashtra Revenue Tribunal. Despite that the Maharashtra Revenue Tribunal has proceeded to exercise jurisdiction and has set aside the order passed by the Tahsildar. He further submitted that since the gift-deed in question is dated 12.06.2001, the application for restoration was required to be considered in the light of the provisions of Section 36A(4) of the Code. Since the transfer was after the year 1974, aforesaid provisions would be applicable. He therefore submitted that the order passed by the Maharashtra Revenue Tribunal was liable to be set aside and the order passed by the Tahsildar was liable to be restored.

4. On the other hand, Shri Onkar R. Deshpande, learned counsel for the respondent no.5 supported the impugned order. He submitted that it was rightly found by the Maharashtra Revenue Tribunal that since the transfer in question was made much after 06.07.1974, the same was not hit by the prohibition as prescribed under the Act of 1974. He also referred to the reasons assigned by the Maharashtra Revenue Tribunal in paragraph 5 of the impugned judgment and submitted that it was rightly found that the Act of 1974 was not applicable to the case in hand. The gift-deed was validly executed by the donors and the same was duly accepted by the Trust. If at all the petitioners were aggrieved by the execution of the gift-deed the same should have been challenged before the appropriate forum. Hence, no interference was called for in the impugned order.

Shri A.V. Palshikar, Assistant Government Pleader appeared for the respondent nos.1 to 4.

5. I have heard the learned counsel for the parties and I have perused the relevant documents on record. According to the petitioners, they claim to belong to 'Pardhan' Scheduled Tribe. They are aggrieved by the execution of the gift-deed on 12.06.2001 in respect of the land from Survey No.161 in favour of the respondent no.5-Trust. In the application dated 08.03.2016 it has been stated that they are entitled to be restored the aforesaid land since the gift-deed was got executed in an improper manner. The cognizance of that application was taken by the Tahsildar. He has however proceeded to apply the provisions of the Act of 1974 and in that process has directed deletion of the name of the trustee of the respondent no.5-Trust by entering the names of the original applicants. Treating this order to have been passed in exercise of revenue jurisdiction, an appeal under Section 247 of the Code was filed by the Trust. The Maharashtra Revenue Tribunal has recorded a finding that since the gift-deed was dated 12.06.2001 and it was beyond the period between 01.04.1957 to 06.07.1974, it was not hit by any prohibition in that regard. It is on that count that the revision application has been allowed and the order passed by the Tahsildar has been set aside. In the same order, the Tribunal has referred to the provisions of Section 36 of the Code.

6. Under the provisions of Section 36A(4) of the Code if any transfer has been made of land belonging to a tribal in contravention of Section 36A(1) of the Code, then it is for the Collector to either suo motu or on an application made by the person interested within a period of thirty years from 06.07.1974 to hold an enquiry in the prescribed manner. In the light of the fact that the gift-deed is dated 16.06.2001, it is clear that the application in question will have to be treated as one under the provisions of Section 36A(4) of the Code and not as having been made under the provisions of the Act of 1974. Though this fact was noticed by the Maharashtra Revenue Tribunal, it did not take further steps in the matter so as to enable adjudication of the prayers made in the application dated 08.03.2016. The proceedings have been treated as revenue proceedings with regard to mutation entries. Considering the fact that in the application dated 08.03.2016, the petitioners had sought the restoration of the possession as being members of the Scheduled Tribes community, an adjudication in that regard is necessary. As that adjudication has not been done, it is necessary to direct reconsideration of the prayers made in the application dated 08.03.2016.

7. Accordingly, the following order is passed:-

I. The order passed by the Maharashtra Revenue Tribunal on 13.12.2017 in the appeal filed by the respondent no.5 is set aside.
II. The petitioners are at liberty to move a fresh application under Section 36A(4) of the Maharashtra Land Revenue Code, 1966 before the Collector. If further proceedings are initiated by the Collector, due opportunity be granted to the respondent no.5-Trust while adjudicating such proceedings.
III. All the grounds raised on merits by either parties are kept open.

8. The Writ Petition is partly allowed. Rule is made absolute in aforesaid terms. No costs.