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Saturday, September 19, 2015

Neither the State of Maharashtra nor the Collector (in the instant case, the Assistant Collector, Jalgaon), who passed the order under Section 4 of the Act or the revisional authority (in the instant case, the Additional Commissioner, Nasik Division), was impleaded as parties in the Petition. Only the tribals were made respondents. In litigation on welfare legislations intended to benefit the Scheduled Tribes, Scheduled Castes or other weaker sections, the High Court should see that the State Government and the authorities concerned are impleaded for proper defence and effective assistance. The High Court has rested its finding on vesting of the land in Government under Section 5A of the Act mainly on the ground that the Commissioner could not have entertained the revision beyond three years. However, even according to the High Court, the non-tribal transferee is to be divested of his possession and ownership though the land was not liable to be restored to the original tribal transferor. On a proceeding duly initiated under Section 4 of the Act, even if a tribal transferor is not interested to get back his land by refunding the purchase price or for other reasons indicated under Section 5A of the Act, the Collector cannot drop the proceedings, as has been done in the instant case. The Collector has to proceed further and divest the non-tribal transferee of the tribal land and pass a further order vesting the land in the State Government for being distributed to the other deserving tribals. But in the instant case, once it is held that the revision was within time, the High Court has necessarily to see whether land could have been restored to the tribal transferor as held by the revisional authority. The impugned order is hence set aside, the Writ Petition is remitted to the High Court for fresh consideration in accordance with law. The State of Maharashtra, the revisional authority and the original authority shall be impleaded as parties in addition to the affected party. The appeal is allowed as above. We request the High Court to dispose of the Writ Petition preferably within six months from the date of receipt of copy of this judgment.



                        IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION


                        CIVIL APPEAL NO. 3470 OF 2006


Sandu (D) by Lrs.                                 … Appellant (s)

                                   Versus

Gulab (D) by Lrs. and others                      … Respondent (s)


                               J U D G M E N T


KURIAN, J.:



The  Maharashtra  Restoration  of  Lands  to  Scheduled  Tribes  Act,   1974
(hereinafter referred to as ‘the Act’) was introduced  to  provide  for  the
restoration of certain lands to persons belonging to the  scheduled  tribes.
It has been notified  on  01.11.1975.  Under  Section  4  of  the  Act,  the
restoration is contemplated in respect of transactions on or after  1st  day
of April, 1957. Section 4 reads as follows:

“4. Restoration of lands of persons belonging to  Scheduled  Tribes.   Where
any land of a Tribal is, at any time on or after the 1st day of  April  1957
and before the 6th day of July  1974,  purchased  or  deemed  to  have  been
purchased or acquired under or in accordance  with  the  provisions  of  the
relevant tenancy law by a non-Tribal-transferee  or  where  any  acquisition
has been regularised on payment of penalty under such law and such  land  is
in possession of a 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
shall,  notwithstanding anything contained in any law for the time being  in
force, either suo motu at any time or on  an  application  by  the  Tribunal
made 1[within thirty years from the 6th July 2004]  and  after  making  such
inquiry as he thinks fit,  direct  that  the  land  shall,  subject  to  the
provisions of subsection (4) of section 3, be restored to  the  Tribal  free
form  all  encumbrances  and  that  the  amount  of  purchase  price  or   a
proportionate part thereof, if any, paid by  such  non-Tribal-transferee  in
respect of such lands in accordance with the relevant tenancy law  shall  be
refunded to such non-Tribal-transferee either lump sum  or  in  such  annual
installments not exceeding twelve (with simple interest at 4½ per cent.  per
annum) as the Collector may direct. The provisions of clauses (d), (e),  (f)
and (g) of sub-section (4) of section 3 shall, so far as may  be,  apply  in
relation to the recovery of the amount from the Tribal and  payment  thereof
to the non-Tribal-transferee and the  persons claiming encumbrances, if  any
:
Provided that,  where  land  is  purchased  or  acquired  by  a  non-Tribal-
transferee before the 6th day  of  July  1974,  after  such  transferee  was
rendered landless by  reason  of  acquisition  of  his  land  for  a  public
purpose, then only half the land so purchased or acquired shall be  restored
to the Tribal-transferor.”



Under Section 5A of the Act, lands which belonged to the tribals and  coming
under the purview of the Act  which  cannot  be  restored  to  the  original
tribals, vest in Government and such  lands  are  to  be  granted  to  other
tribals subject to prescribed restrictions.



“5A. (1) Where any land (not being land  acquired  in  exchange),  which  is
liable to be restored  to  a  Tribal-transferor  under  sub-section  (1)  of
section 3 cannot be so restored either on account  of  the  failure  of  the
Tribal-transferor to give an undertaking referred to in sub-section  (3)  of
section 3 or for any reason whatsoever or where  any  land  referred  to  in
section 4 cannot be  restored  to  the  Tribal  by  reason  of  such  Tribal
expressing, during the inquiry held by the Collector, his  unwillingness  to
refund the purchase price or proportionate part thereof to  the  non-Tribal-
transferee, as required by the said section 4,  or  for  any  other  reason,
then, the Collector may, subject to rules, if any, made in that  behalf,  by
order in writing direct that the land shall, with effect from  the  date  of
the order, be deemed to have been acquired and vest in the State  Government
free from all encumbrances.
(2) On  such  vesting  of  the  land,  the  non-Tribal-transferee  shall  be
entitled to receive from the State Government an amount equal  to  48  times
the assessment of the land, plus the value  of  the  improvements,  if  any,
made by the non-Tribal-transferee therein. The  provisions  of  clauses  (b)
and (c) of sub-section (4) of section 3 shall  mutatis  mutandis  apply  for
determining  the  value  of  improvements  and  for  apportionment  of   the
encumbrances, if any, on the land between the non-Tribal-transferee and  the
persons claiming encumbrances on the land.
(3) The land so vested in the State Government under sub-section (1)  shall,
subject to any general or special orders of the  State  Government  in  that
behalf, be granted by the Collector to any  other  Tribal  residing  in  the
village in which the land is situate or within five kilometers  thereof  and
who is willing to accept the land in accordance with the provisions  of  the
Code, and  the  rules  and  orders  made  thereunder  and  to  undertake  to
cultivate the land personally; so however, that  total  land  held  by  such
Tribal whether as owner or  tenant  does  not  exceed  an  economic  holding
within the meaning of sub-section (6) of section 36A of the Code.
(4) The person to whom land is granted under sub-section (3), shall  pay  to
the State Government the amount referred to in sub-section  (2),  either  in
lump sum or in such annual instalments not  exceeding  twelve  (with  simple
interest at 4½ per cent. per annum) as the Collector may  direct  and  shall
hold the land subject to such terms and conditions as may be prescribed.
(5) Without the previous sanction of the Collector, no  land  granted  under
subsection (3) shall be transferred, whether by way of sale (including  sale
in execution of a decree of a Civil Court or of  an  award  or  order  of  a
competent authority) or  by  way  of  gift,  mortgage,  exchange,  lease  or
otherwise.  Such  sanction  shall  not  be  given  otherwise  that  in  such
circumstances and on such conditions including condition  regarding  payment
of premium or nazarana to the State Government, as may be prescribed:
Provided that, no such sanction shall be necessary where the land is  to  be
leased by a serving member of the armed forces or where the land  it  to  be
mortgaged as provided in sub-section (4) of  section  36  of  the  Code  for
raising a loan for effecting any improvement on such land.
(6) If sanction is given by the Collector to any transfer under  sub-section
(5),  subsequent  transfer  of  the  land  shall  also  be  subject  to  the
provisions of subsection (5).
(7) Any transfer of land, and any acquisition thereof, in  contravention  of
subsection (5) or (6), shall be invalid; and  as  a  penalty  therefor,  any
right, title or interest of the transferor and transferee in or in  relation
to such land shall, after giving  him  an  opportunity  to  show  cause,  be
forfeited by the Collector; and the land together with  the  standing  crops
thereon,  if  any,  shall  without  further  assurance  vest  in  the  State
Government and shall be disposed of in such manner as the  State  Government
may, from time to time direct.”


Section 6 of the Act provides for  an  appeal  to  the  Maharashtra  Revenue
Tribunal.


“6. Appeal. (1) An appeal against  any  decision  or  order  passed  by  the
Collector may, notwithstanding anything contained in the Code,  be  made  to
the Maharashtra Revenue Tribunal constituted under the Code.
(2) Every such appeal shall be made within a period of sixty days  from  the
date of receipt of the decision or order of the  Collector.  The  provisions
of sections 4, 5, 12 and 14 of the Limitation Act, 1963, shall apply to  the
filing of such appeal.
(3) In deciding an appeal under sub-section  (1),  the  Maharashtra  Revenue
Tribunal shall exercise all the powers which a  Court  has  subject  to  the
regulations framed by that Tribunal under  the  Code  and  follow  the  same
procedure which a Court follows, in deciding  appeals  from  the  decree  or
order of an original Court under the Code of Civil  Procedure,  1908  (V  of
1908).”


Section 7 of the Act provides for revision.
“7.  Revision. Where no appeal has been filed within the period provided  by
sub-section (2) of section 6, the  Commissioner  may  suo  motu  or  on  the
direction of the State Government at any time—
(a) call for the record of any inquiry or proceeding of  any  Collector  for
the purpose of satisfying himself as to the legality  or  propriety  of  any
order passed by, and as to  the  regularity  of  the  proceedings  of,  such
Collector, as the case may be, and
(b) pass such order thereon as he thinks fit:

Provided that no such record shall be called for after the expiry  of  three
years from the date of such order except  in  cases  where   directions  are
issued by the State Government; and no  order  of  the  Collector  shall  be
modified, annulled or reversed unless opportunity  has  been  given  to  the
interested parties to appear and be heard.”




The Assistant Collector, Jalgaon  in  the  State  of  Maharashtra  initiated
proceedings under Section 4 of the Act as per  notice  dated  03.12.1975  in
respect of land Gat. No. 71 measuring 2 hectares and 7 ares  on  the  ground
that the land originally  belonged  to  the  tribal  and  as  the  same  was
transferred to a non-tribal after 1957. It was found that the land was  sold
by the tribal to the non-tribal  on  12.07.1971.  However,  restoration  was
declined and order dated 31.12.1975 was passed dropping the  proceedings  on
the ground that the tribal was not prepared to purchase the land. The  order
reads as follows:

                                   “ORDER

      This case is started suo motu. The  suit  land  belongs  to  the  Shri
Gulab Dagadu and etc. who is a member of Tribal  Communities.  He  sold  the
suit  land  to  Shri  Sandu  Dayaram  on  27.5.1971  for  Rs.12,000/-.   The
transferee belongs to Non-Tribal community.

      The case was fixed for hearing on 22.12.1975  and  after  hearing  the
case is dropped on the following grounds:-
(1)   The transferor Shri Gulab Dagadu Tadvi and  Supadu  Dagadu  Tadvi  are
not willing to purchase the land.”


      The file was hence closed. Gulab, since deceased  and  represented  by
his legal heirs, is the respondent herein. The non-tribal transferee,  since
deceased and represented by his legal heirs, is the appellant.

Thereafter, it appears, in 1985, the Additional Commissioner,  Nasik  (under
Section 2 of the Act, the  Commissioner  includes  Additional  Commissioner)
initiated suo motu proceedings  under  Section  7  of  the  Act,  after  the
Government granted the sanction under Section 7 of the Act by  letter  dated
10.05.1982. In the order dated 28.03.1989, the revisional authority  entered
a finding that  the  land  was  liable  to  be  restored.  The  order  dated
31.12.1975 passed by the Assistant Collector, Jalgaon was set aside.

The order passed by the revisional authority was challenged before the  High
Court of Judicature at Bombay, Aurangabad Bench in Writ  Petition  No.  1170
of 1989.  The main prayer under the Petition reads as follows:

“9. (A)     Record and proceedings of the impugned order dated  28th  March,
1989, passed in LR. Adivasi Revision Case number 4 of 1985  be  called  for,
and after examining the legality, validity and  propriety  of  the  impugned
order dated 28th March 1989 passed by  the  Additional  Commissioner,  Nasik
Division, Nasik be quashed and  set  aside  and  the  order  passed  by  the
Assistant Collector, Jalgaon on 31st December, 1975 in Adivasi  case  number
29 of 1975 be restored”



Neither the State of Maharashtra nor the Collector  (in  the  instant  case,
the Assistant Collector, Jalgaon), who passed the order under Section  4  of
the Act or the revisional authority (in the  instant  case,  the  Additional
Commissioner, Nasik Division), was impleaded as  parties  in  the  Petition.
Only  the  tribals  were  made  respondents.  In   litigation   on   welfare
legislations intended to benefit the Scheduled Tribes, Scheduled  Castes  or
other weaker sections, the High Court should see that the  State  Government
and  the  authorities  concerned  are  impleaded  for  proper  defence   and
effective assistance.



The High Court in the impugned judgment dated 26/27.07.2005  took  the  view
that the Commissioner could not have exercised its  revisional  jurisdiction
under Section 7 of the Act since the same was exercised beyond a  period  of
three years. As  a  matter  of  fact,  the  Government  of  Maharashtra  had
accorded sanction for the revision by its order  dated  10.05.1982  and  the
revisional proceedings had been initiated  apparently  in  1985.  Under  the
proviso to Section 7 of the Act, the revisional authority  has  to  exercise
the suo motu powers within three years from the date of the order passed  by
the Collector except  in a case where a direction is issued in  that  regard
by the State Government. Where the State  Government  accords  sanction  for
initiation of the revision under Section 7 of the Act, the  proceedings  can
be initiated beyond  the  period  of  three  years.  In  such  a  case,  the
revisional proceedings will not be vitiated on the ground that the  same  is
hit by limitation of the period of three years as prescribed  under  Section
7 of the Act. But the proceedings should be initiated  within  a  reasonable
time from the date of permission  given  by  the  Government.  In  the  case
before us, the direction is issued by the State Government in  1982  and  it
appears the revisional authority has initiated proceedings in 1985.  In  the
give circumstances, we are of the view  that  the  power  exercised  by  the
revisional authority is within a reasonable time.

The High Court has rested its finding on vesting of the land  in  Government
under Section 5A of the Act mainly  on  the  ground  that  the  Commissioner
could not have entertained the revision beyond three  years.  However,  even
according to the High Court, the non-tribal transferee is to be divested  of
his possession and ownership though the land was not liable to  be  restored
to the original tribal transferor.  On a  proceeding  duly  initiated  under
Section 4 of the Act, even if a tribal transferor is not interested  to  get
back his  land  by  refunding  the  purchase  price  or  for  other  reasons
indicated under Section 5A  of  the  Act,  the  Collector  cannot  drop  the
proceedings, as has been done in the instant  case.  The  Collector  has  to
proceed further and divest the non-tribal transferee of the tribal land  and
pass a further order vesting the land in  the  State  Government  for  being
distributed to the other deserving tribals. But in the  instant  case,  once
it  is  held  that  the  revision  was  within  time,  the  High  Court  has
necessarily to see whether land could  have  been  restored  to  the  tribal
transferor as held by the revisional authority.

The impugned order is hence set aside, the Writ Petition is remitted to  the
High Court for fresh consideration in accordance  with  law.  The  State  of
Maharashtra, the revisional authority and the original  authority  shall  be
impleaded as parties in addition  to  the  affected  party.  The  appeal  is
allowed as above. We request the High Court to dispose of the Writ  Petition
preferably within six months from the  date  of  receipt  of  copy  of  this
judgment.

There shall be no order as to costs.



                                                              ..…….…..…………J.
                     (M. Y. EQBAL)





                                                                ..……………………J.
                     (KURIAN JOSEPH)
New Delhi;
September 4, 2015.

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                                                                  REPORTABLE


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