Daulat Dhana Mail (deceased) by legal heirs vs State of Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(Bom) 303

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
M.S. Vaidya, J.
Daulat Dhana Mail (deceased) by legal heirs ..... Petitioners.
Versus
The State of Maharashtra and others.... Respondents.
Writ Petition No. 1379 of 1991 622 of 1977, decided on 7-7-1994.
Advocate appeared :
V.T. Choudhari, for the petitioner No. 1.
H.A. Patil, A.G.P., for respondent No. 1.
S.V. Warad, for respondent No. 2.

Headnote:Section 32-Mabarashtra Restoration of Lands, Scheduled Tribes Act, 1974, Sections 2 (1) and 4-Land-Purchase of under Tenancy Act-Transfer of land-Section 4, Restoration Act has applied on to.
       The Bombay Tenancy and Agricultural lands Act provided several ways for termination of tenancies that were made prior to 1.4.1957. One of the modes of such termination was statutory declaration contained in Section 32 of the Act, that on 1.4.1957 subject to the other provisions referred to the, in, the tenant was to be deemed to have purchased the land. That meant that the lease which had come into existence prior to 1.4.1957 became in law non-existent under Section 32 of the BT & AL Act, subject to the exceptions made by the afore said proviso. Thus, on 1.4.1957 there was no lease between Daulat and respondent No. 2 that was in existence in the eyes of law because, the case did not fall within any of the exceptions stipulated by Section 32 of the BT & AL Act. What remained on 1.4.1957 in the hands of Daulat was a land which was deemed to have been purchased by him on account of operation of law with effect from that date. There is no reason to suppose that such a deemed purchase was not intended to be covered by Section 4 of the Maharashtra Restoration of lands to Scheduled Tribes Act, 1974. The rejection of the contention advanced on behalf of the petitioners before the Assistant Collector of the Maharashtra Revenue Tribunal cannot, therefore, be said to be unjustified.
       Section 22-Mabarashtra Restoration of Lands to Scheduled Tribes Act, 1974, Section 4-Certificate-Genuiness of-In absence of verification of Scrutiny Committee it cannot be accepted.
       The certificates so issued by the other authorities are since required to be verified by the afore said committee before a conclusion could be arrived at as to whether or not, a person was a tribal, we cannot find fault with the efforts made by the Assistant Collector or the Maharashtra Revenue Tribunal in determining, whether or not, the respondent No. 2 belonged to any Scheduled Tribe. Indeed, the judgment delivered by the Assistant Collector exhibits the efforts put in by him to arrive at his own conclusion. But, in the circumstances discussed above, we cannot accept the aforesaid finding as conclusive unless and until the same is got verified at the hands of the Scrutiny Committee. On that count, the impugned orders need to be quashed and set a side the directions are required to be given to the authorities concerned to refer the matter to the Scrutiny Committee for verification of the Tribe claim.
       MAHARASHTRA RESTORATION OF INDIAS, SCHEDULED TRIBES ACT, 1974
       Sections 2(1)(i) and 4.
       See Bombay Tenancy & Agricultural Lands Act, 1948, Section 32.
       Section 4.
       See Bombay Tenancy & Agricultural Lands Act, 1948, Section 32.

JUDGMENT -M.S. VAIDYA, J.:---Having felt aggrieved by the order dated 25-10-1976 passed by the Assistant Collector, Amalner Division, and the order dated 3rd January, 1977 in Appeal by the Maharashtra Revenue Tribunal, the petitioners have approached this Court praying that the aforesaid orders be quashed and set aside.

2. The facts necessary for the decision of this case, may be stated as follows :

The land at Survey No. 158 of village Dhanora, Tq. Chopda, Dist. Jalgaon, admeasuring 2 acres and 5 gunthas belonged originally to respondent No. 2- Nawabkhan Jamsherkhan. Under a lease executed, probably, in 1945 (in any event, before 1-4-1957), Daulat Dhana Mali came in possession of that land as a tenant and since then, he cultivated the land till his death. On the operation of the Bombay Tenancy and Agricultural Lands Act, 1948, Daulat Dhana Mali became a deemed purchaser of the tenanted land with effect from 1-4-1957 under section 32 of the Bombay Tenancy and Agricultural Lands Act. In course of time, a certificate under section 32-M about the deemed purchase was also issued to him. Daulat Dhana Mali died thereafter, leaving behind him the present petitioners, who were his legal representatives. They cultivated the land till 1976.

3. Some time in 1976, the Assistant Collector, Amalner initiated, in exercise of his powers under section 4 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, a suo-motu proceedings against the legal representatives of Daulat i.e. the present petitioners for restoration of the said land. In the inquiry before him, the petitioners had raised three contentions : First, that respondent No. 2 was not a tribal, in as much as, he was a Muslim Pathan; second, that the lease in question was made prior to 1-4-1957 and, therefore, the same was not recovered by the expression "Transfer" as defined in section 2(1)(i) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974; and third, that the respondent No. 2 held land which was in excess of ceiling limits. The learned Assistant Collector, Amalner relied mainly upon the certificate issued by the Executive Magistrate in favour of the respondent No. 2 and proceeded to discuss elaborately what meaning could be assigned to a tribal in the context of the facts of the present case. He concluded that the respondent No. 2 was a tribal. As regards the second contention, he held that the matter was governed by section 4 of the Act and that, therefore, the suo motu inquiry could be initiated and sustained. As regards the third point, he held that the question regarding the excess of ceiling limits need not deter from deciding a case under section 4 because, in the event of respondent No. 2s land being found in excess of ceiling limits, appropriate action could be taken under the Maharashtra Agricultural Lands (Ceiling on Holding) Act, 1961.

4. When the matter was carried in appeal before the Maharashtra Revenue Tribunal, the M.R.T. endorsed the aforesaid views and dismissed the Appeal.

5. Having felt aggrieved by the aforesaid decisions, the petitioners have perferred this writ petition contending that section 4 of the Maharashtra Restoration of Land to Scheduled Tribes Act, 1974, had no application to the facts of the case, in as much as the land was in possession of Daulat, the predecessor-in-title of the petitioners, since 1945 and the same did not amount to "transfer" within the meaning of the terms as defined in section 2(1)(i) of the Act, so as to attract the provisions contained in section 3 or 4. It was submitted by Mr. Choudhari, that section 4 was meant to regulate only the cases, such as the cases of deemed purchases under section 32-O of the Bombay Tenancy and Agricultural Lands Act, 1948, or the cases of postponed date of deemed purchases where the landlords were persons under disability, such as, widows, minors etc. As regards the question regarding determination of the "Tribe" to which the respondent No. 2 said to be belonging,

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