The definition of "non-tribal transferee" in section 2(1)(i) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 excludes a person in whose favor land was transferred by a non-tribal transferee or his successors before March 15, 1971.

Headnote:
LAND TRANSFER - RESTORATION TO TRIBALS - MAHARASHTRA RESTORATION OF LANDS TO SCHEDULED TRIBES ACT, 1974 - SECTION 2(1)(I) - DEFINITION OF NON-TRIBAL TRANSFEREE - EXCLUDES TRANSFEREE UNDER TRANSFER COVERED BY SECTION 2(1)(I).
Fact of the Case:

Appellant, a non-tribal, purchased land from a tribal in 1962-63. In 1968, he mortgaged the land to a bank and became its tenant. In 1975, the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (the Act) came into force, and proceedings were initiated to restore the land to the tribal. The Sub-Divisional Officer ordered the restoration of all three pieces of land to the tribal. The appellant appealed to the Revenue Tribunal, which allowed the appeal in part, directing that the mortgaged lands be given to the appellant and dismissing the appeal for the remaining land. Both parties filed writ petitions in the High Court.
Finding of the Court:

The High Court held that the definition of "non-tribal transferee" in section 2(1)(i) of the Act excludes a person in whose favor land was transferred by a non-tribal transferee or his successors before March 15, 1971. The court found that the mortgage in favor of the bank was prior to March 15, 1971, and therefore the land was excluded from the provisions of sections 3(1) and 4 of the Act.
Issues: Whether the definition of "non-tribal transferee" in section 2(1)(i) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 excludes a person in whose favor land was transferred by a non-tribal transferee or his successors before March 15, 1971.
Ratio Decidendi: The court interpreted section 2(1)(i) of the Act to mean that the transfer of land belonging to a tribal made in favor of a non-tribal during the period commencing on April 1, 1957, and ending on July 6, 1974, is covered by the definition of "transfer." The court held that the definition of "non-tribal transferee" is an exclusive one and hence it cannot exclude a transferee under a transfer covered by section 2(1)(i).
Final Decision: The High Court dismissed the appeal, holding that the land was excluded from the provisions of sections 3(1) and 4 of the Act and that the decision of the learned Single Judge reported in 1985 Maharashtra Law Journal was no longer good law and stood overruled.

JUDGMENT - P.B. SAWANT, J.:---This letter patent appeal is directed against the decision of the learned Single Judge given on January 15, 1985 in two writ petitions being Special Civil Applications Nos. 2607 of 1977 and 1756 of 1973 . The short facts are that the appellant who is non-tribal had in the year 1962-63 purchased three pieces of land from respondents No. 1 who is a tribal. Those lands are comprised in Survey Nos. 9/1, 9/2 and 53. After the purchase, the appellant mortgaged two pieces of land namely Survey Nos. 9/1 and 9/2 with the Maharashtra state Co-operative Land Development Bank on the 30th May, 1968. The mortgage was possessory and the appellant was thereafter placed in possession of the mortgaged lands as a tenant of the Bank. On the May 28, 1975 the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the said Act) came into force and proceedings were initiated against the appellant under the said Act for restoration of the lands to respondent No. 1. In the said proceedings, the Sub-Divisional Officer passed an order on the 20th December, 1976 restoring all the three pieces of land to respondent No. 1. Against the said decision, the appellant carried an appeal to the Revenue Tribunal under section 6 of the said Act. The Tribunal by its decision dated the 12th January, 1977 allowed the appeal in part by directing that the possession of the mortgaged lands should be given to the appellant, and dismissing the appeal so far as Survey No. 53 was concerned. Being aggrieved by the decision, both the appellant and respondent No. 1 preferred writ petitions to this Court. The appellant preferred Special Civil Application No. 2607 of 1977 against the order of the Tribunal directing restoration of Survey No. 53 to respondent No. 1 and respondent No. 1 preferred Special Civil Application No. 1756 of 1978 against the decision of the Tribunal denying restoration of Survey Nos. 9/1 and 9/2 to him. The learned Single Judge who heard both the petitions, by his two separate judgments dated the 15th January, 1985, dismissed the appellant's Special Civil Application No. 2607 of 1977 and allowed respondent No. 1's Special Civil Application No. 1756 of 1978 and directed that Survey Nos. 9/1 and 9/2 should also be restored to respondent No. 1 it is aggrieved by the said decision that the present appeal has been preferred.

2. Although the point raised in the appeal is squarely covered by the decision of the Supreme Court reported in A.I.R. 1985 at page 389 (Lingappa Pochanna v. State of Maharashtra)2, it appears that the decision of the learned Single Judge of this Court delivered earlier and reported in 1985 Maharashtra Law Journal at page 49 (Marotrao Ganpatrao Kamble v. State of Maharashtra others)3, which had taken a contrary view is likely to create some confusion and therefore needs to be considered and formally overruled. The point is whether the definition of "non-tribal transferee" given in sub-clause (i) of sub-section (1) on section 2 excludes a person in whose favour land was transferred by the non-tribal transferee or his successors, before the 15th March, 1971. In the present case the transfer by the tribal in favour on the appellant was in the year 1962-63 and the mortgage by the appellant in favour of the Bank was in the year 1968. The lease by the bank in favour of the appellant was simultaneous with the mortgage. The argument advanced before us is that the mortgage effected in favour of the bank being of 1968 i.e. prior to the 15th March, 1971, the land is excluded from the provision of section 3(1) and 4 of the Act, in view of the aforesaid definition of the "non-tribal transferee." As has been pointed out in paragraph 30 of the Supreme Court judgment, the legislature appointed the 15th March, 1971 with a view to give retrospective effect to the provision of section 3(1) and 4 of the act not to permit an assignee of a non-tribal transferee prior to the said date to

Click Here to Read the rest of this document