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
