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1991 Supreme(Bom) 358
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonkar, J.
Bapurao s/o Nanu .... Petitioner.
Versus
Bapurao s/o Maruti Andha another.... Respondents.
Writ Petition No. 43 of 1986 with W.P. No. 432 of 1986, decided on 5-8-1991.
Advocates appeared :
R.G. Bhadekar, for the petitioner in W.P.No. 43/86.
B.B. Jadhav, for the respondent No. 1 in W.P.No. 43/86.
S.K. Barlota A.G.P., for respondent No. 2 in W.P.No. 43/86 W.P. No. 432/86.
D.N. Patki, for the petitioner in W.P.No. 432/86.
The main legal point established in the judgment is that agreements of sale of tribal lands, validated under specific acts, may not necessarily amount to 'permanent alienation or transfer' as defined by the Restoration Act, thus influencing the court's decision.
Headnote:
Father of respondent No. 1, a tribal, executed an agreement of sale in favor of the petitioner, validated under section 98-A of The Hyderabad Tenancy and Agricultural Lands Act, 1950. Similarly, another tribal executed an agreement of sale, subject to proceedings under The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. The court deliberated on the validation of these contracts, the definition of 'transfer' under the Restoration Act, and the interpretation of 'disposition' in the context of the legislation. The court held that the agreements of sale did not amount to 'permanent alienation or transfer' and were not covered by the Restoration Act, thus allowing the petitions and quashing the judgments and orders of the Additional Commissioner.
Fact of the Case:
The case involved agreements of sale of tribal lands validated under The Hyderabad Tenancy and Agricultural Lands Act, 1950 and subject to proceedings under The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.
Finding of the Court:
The court found that the agreements of sale did not amount to 'permanent alienation or transfer' and were not covered by the Restoration Act.
Issues: The issues revolved around the validation of contracts, the definition of 'transfer' under the Restoration Act, and the interpretation of 'disposition' in the context of the legislation.
Ratio Decidendi: The court held that the agreements of sale did not amount to 'permanent alienation or transfer' and were not covered by the Restoration Act.
Final Decision: Both the petitions were allowed, and the judgments and orders of the Additional Commissioner were quashed. The petition was allowed with no order as to the costs.
2. The original owner tribal Rama Ratanji (in Writ Petition No. 432 of 1986) executed an agreement of sale on 21-3-1955 agreeing to sell Survey Nos. 79 and 51 to the extent of 4 acres 32 gunthas, 4 acres and 8 gunthas respectively, situated at Bendi in Kinwat taluka to one Bilankhan-present petitioner. Suo Motu proceedings were initiated under the provisions of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, the Restoration Act) but the said proceedings were dropped holding that the agreement was effected on 21-3-1955 and, therefore, the alleged transfer is covered by the period mentioned in the Act for its operation. However, the Additional Commissioner, Aurangabad passed an order on 27-3-1986 in exercise of the powers under section 7 of the Restoration Act holding that is the agreement dated 21-3-1955 was validated under section 98-A of the Tenancy Act by the Tahsildar by issuing the validation certificate on 6-8-1982, the transaction will have to be taken to have been concluded on 6-8-1982 and is, therefore, covered by the operation period mentioned in the Act. He was, therefore, pleased to remand the matter for further inquiry to the Tahsildar, Kinwat. Both these judgments are subject matter of challenge in these writ petitions.
3. Shri D.R. Bhadekar and Shri D.N. Patki, learned Counsel for the petitioners, submitted firstly that if a statute has provision to validate a contract which is otherwise illegal, order or certificate of validation would validate the contract but it cannot be assumed that contract has taken place on the date when it was validated. Section 98-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 provides that a permanent alienation or transfer of any land in contravention of provisions of section 38-D or of Chapter V as it stood before the amendment of 1957 shall not be declared to be invalid merely on the ground of such contravention if the alienee or transferee pays to the State Government, sum specified in the said provision as penalty. Therefore, the permanent alienation or transfer which has taken place on a particular day cannot be said to have come into effect on the day it was validated. Any certificate or order of validation would relate back to the original date of the permanent alienation or transfer and in both these cases since the agreement of sale is admittedly executed before 1-4-1957, the said transactions are outside the purview of transfers affected by the Restoration Act, 1974 as per the definition of the term 'transfer' given in section 2(1)(i) of the said Act. It was further submitted by both the learned Counsel that there was no actual transfer in both these cases. Therefore, the Act does not apply.
4. Shri Bappasaheb Jaghav, learned Counsel appearing on behalf of the respondent No. 2 in Writ Petition No. 43 of 1983, submitted that the purpose of the Restoration Act, 1974 is to restore the lands to the tribal who need special protection, hence even when the possession is permanently transferred by a tribal to a non-tribal, then the possession of the said land will have to be restored to the tribal apart from the consideration whether there was a legal transfer or not. The actual enjoyment of the land will have to be the tribal person if he has par
