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IN THE HIGH COURT OF BOMBAY
H. Suresh, J.
Tribhavandas Jeevraj Patel others.... Petitioners.
Versus
Babu Govind Ghatal since (decd.) by his heirs
legal representatives others .... Respondents.
Writ Petition No. 5592 of 1986, decided on 20-11-1989.
Advocates appeared :
R.V. Desai, for petitioners.
K.N. Kore, for respondents Nos. 1 to 7.
See Maharashtra Restoration of Lands to Scheduled Tribes Act, 1975, Section 4.
Section 4-Bombay Tenancy and Agricultural Lands Act, 1948, (as amended in 1965) Sections 32-G, 32-M (2) and 32-K (3)-Tribunal tenant- Nut able to pay purchase price to landlord-But continuing in possession- Under Section 4 of Restoration Act Tahsildar making order that lands belonged to tribal tenant- Held, under Sections 32-K and 32-M of Amending Act tenant continued to be owner of land unless proceedings taken to recover purchase price under amended provisions.
Petition submitted that this amendment has no application inasmuch as this is a case where the tenant had made a statement that he was not in a position to pay the purchase price and not that he made defaults in the payment of instalments in the purchase price. But that should not make any difference. Here is a tenant, also a tribal and in all probability he is an illiterate person. Precisely to meet a situation of this type where the landlords could exploit the helplessness and illiteracy of the tenants and particularly the tribals, and extract statements from such tenants/tribals, the Amending Act had to be passed. Now by virtue of the Amending Act before the purchase could be declared as ineffective, all the procedure contemplated under the Amanding Act has to be completed. The basic idea of the Tenancy Act is that the land must go back to the tiller and for that purpose it is necessary that he is adequately protected. It is not enough that his statement is recorded. In all such cases it must be considered whether the amount can be recovered as an arrear of land revenue. In the present case, the significant fact is that the tenant has continued in possession for over twelve years. The question is can it be said that though the tenant had continued to be in possession for twelve years, he was not in a position to pay the purchase price? Petitioner submits that before the commencement of these proceedings, the Sub-Divisional Officer had himself reviewed the order dated 21st April, 1969 as he wanted to be satisfied that the land had been properly restored back to petitioner No.5, and he found no fault. According to petitioner this was done sometime in the years 1973 and when the order was reviewed by the Sub-Divisional Officer, the tenant himself was present. In Courts view, it does not make any difference, as it is incumbent upon the authorities concerned to comply with the statutory requirements as provided under the Amendment. The presence of the Tribal was of no consequence. In all probability, he would not have made such a statement, if he were made aware of his legal rights. Obviously, the Sub-Divisional Officer had not bothered to see that the statutory requirements under the Amendment were complied with. If that is so, the order of review is of no consequence.
2. It appears that since the suit lands were covered by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act"), as on 1-4-1957, the deceased tenant was entitled to be declared as the owner of the suit lands. Thereafter, the proceedings under the Tenancy Act commenced and by an order dated 22nd May, 1959 the purchase price payable in respect of the suit lands was fixed as per section 32-G of the Tenancy Act. However, the deceased tenant did not pay any of the instalments payable as per the said order. On 2nd November, 1965 the said deceased tenant made a statement before the Tahsildar that he was unable to pay the purchase price. Pursuant to this, an order under section 32-P of the Tenancy Act was passed on 21st April, 1969 and possession of the lands which was all throughout with the tenant was ordered to be given to the petitioner No. 5.
3. As the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as "the Restoration Act") came into force, the Tahsildar suo motu initiated proceedings under section 4 of the Restoration Act. In that the Tahsildar came to the conclusion that the suit lands have to be transferred back to the tribal as the lands belonged to him under the law and an order to that effect was passed. Against the said order, petitioner No. 5 preferred an appeal before the Maharashtra Revenue Tribunal, which came to be dismissed by an order dated 27th January, 1985. It appears that the petitioners again preferred a review application before the Maharashtra Revenue Tribunal, which was also dismissed by the Tribunal. It is against these orders, the present writ petition under Article 227 of the Constitution of India has been filed.
4. Mr. Desai, appearing for the petitioners, submitted that in this case the tenant had made a categorical statement before the Tahsildar that he was not in a position to make any payment towards the purchase price fixed as per section 32-G of the Tenancy Act and that, therefore, after recording his statement to this effect, possession was ordered to be given back to the petitioner No. 5, therefore, as on the date the Restoration Act came into force, it can clearly be said that the lands never belonged to the tribal.
5. Mr. Desai further submitted that the lands which belonged to be tribal could only be ordered to be restored back to the tribal. According to Mr. Desai, in the present case, since the tenant had not paid the price fixed under section 32-G of the Tenancy Act and had voluntarily made a statement that he was not in a position to make any payment towards the purchase prince, and since pursuant to that statement, the lands had been given back to the landlord, which lands admittedly belonged to the owner landlord, the Restoration Act had no application whatsoever. In that connection, Mr. Desai has relied on a judgement given by Mr. Justice Pratap in the case of (Yogendrasingh Harisingh Raghyvanshi v. Smt Kathibai Shankar Bhil)1, in Special Civil Application No. 5524 of 1976, wherein the learned Judge had, in a similar situation, quashed the order passed by the Tribal Authority on the basis that the respondents (tribals) were not the owners of he suit land, as they had not paid the purchase price and the land has been given back to the landlord. Mr. Desai also relied on a judgement of the Division Bench in the case of (State of Maharashtra v. Khatua Makanji Co. Pvt. Ltd.)2 reported in 1987 Maharashtra Law Journal 908, the facts of which case are identical to that of Yogendrasi
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