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1997 Supreme(Bom) 576
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Rebello F.I., J.
Maitab Bondaji Surkane .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 1515 of 1997, decided on 24-10-1997.
Advocates appeared :
A.M. Ghare, for pe titioner.
D.A. Ambadkar, for respondent No. 3.
Headnote:Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974
Sections 2(a), 3 and 4-Restriction of land to tribal-Whether in case where a non-tribal had purchased land from tribal transferor after 1.4.1957 and thereafter had sold said land to another tribal before 15.3,1971, would such sale fall within ambit of Section 3 of Act and consequently is such sale is null and void - Held, Yes-Thus land to be restored to original owner.-It is thus clear that the Apex Court has clearly held that even the transactions between a non-tribal transferee and a subsequent transferee even before 15.3.1971. Section 3 would be applicable. It was contended that such a transaction between the person who is not a notified member of the Scheduled Tribe and a person who belongs to a notified Scheduled Tribe if it is done after 15.3.1971 is excluded. It is well-settled interpretation that a section has to be read as a whole and no exception can be carved out unless it is so expressly provided. In the instant case what is covered is transfer of land from a tribal to a non-tribal and it also includes a tribal. What is important to note is that the Scheme of the Act is not merely to protect the tribals, but the tribals who are the owners of the land. This is the spirit behind the Act. Not only this, the Act protects the exploitation by tribals themselves. Therefore, the language used is land of tribal transferor who is entitled to resumption of land under these circumstances no different interpretation can be givne.
Sections 2(1)(1) and 3(1)-Applicability of Section 3-Non-tribal purchased land from tribal after 1.4.1957 and thereafter sold said land to another tribal before 15.3.1971 - Whether it falls within ambit of Section 3 and consequently is such sale null and void-Held, Section 3 applicable.-It is thus clear that the Apex Court has clearly held that even to the transactions between a non-tribal transferee and a subsequent transferee 15.3.1971 Section 3 would be applicable. Not only this, the Act protects the exploitation of the tribal by non - tribal, but also exploitation of tribals by tribals themselves. Therefore, the language used is land of tribal transferor, who is entitled to resumption of land. Under these circumstances no different interpretation can be given to Section 2(1)(1) of the Act than what has been given by the Apex Court in the case of Lingappa Pochanna, AIR 1985 SC 389.
2. The petitioner belongs to Bhill Tribe, which is notified as Scheduled Tribe in the State of Maharashtra. The properties is identified as Survey No. 29 of Mouja Jeetapur. The property belonged to one Aakaji Nimbaji Bhilla, who also is a tribal belonging to a notified Scheduled Tribe. He effected partition of the property during his life time by Deed of Partition dated 19-4-1952 between his sons. An application was moved on 14-10-1975 on behalf of Najru A. Bhilla against Kashiram Namdeo Mahale, the respondent No. 4. It was the case of the tribal that he had sold the land to the respondent No. 4 in the year 1966 by registered sale deed. The property was identified as field Survey No. 29 which totally admeasured 11 acres 3 gunthas, out of which the tribal's share was 7 acres. Notice was issued in which the present petitioner seems to have been joined as party. It was the case of the present petitioner that he had purchased the land from the respondent No. 4 before 15-3-1971. The Additional Commissioner, Amravati Division, held that by virtue of the powers given under section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, the land is required to be restored as the land was transferred from tribal to non-tribal, and the Tahsildar was directed to initiate appropriate proceedings for restoration of the land to the original tribal. It is this order dated 31-3-1997 which is challenged in this petition.
3. The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 was assented to by the President on 28th April, 1975. The Act covers all transfers of land from tribal to non-tribal between 1-4-1957 and ending on 6-7-1974. The Objects and Reasons Clause of the Act reads as under:
"It was noticed that in a number of cases lands previously held by persons belonging to scheduled tribes have been transferred to non-tribals as a result of purchases made or deemed to have been made under the Tenancy Laws or as a result of transfers (including exchanges) validly effected after 1st April, 1957 under the provisions of the Maharashtra Land Revenue Code, 1966 or other laws in force in the State. After examining the recommendation of the Committee appointed by Government to examine the difficulties experienced by the tribal landholders in the administration of certain provisions of the Maharashtra Land Revenue Code and other laws in force in the State it is considered necessary to provide for restoration of the lands which have gone into the hands of non-tribals to their original tribal owners. The Bill seeks to achieve this object."
4. In terms of section 3 of the Act whether the land of a tribal-transferor is held by a non-tribal transferee and has not been put to non-agricultural use on or before 6-7-1974, then notwithstanding anything contained in any other law for the time being in force or any judgment, decree or order of any Court, Tribunal or Authority, the Collector suo motu at any time or on the application of a tribal transferor within 30 years from the commencement of the Act could initiate an enquiry and direct the restoration of the land from the non-tribal transferee to the tribal transferor. The tribal has been defined under section 2(j) to mean any person belonging to a Scheduled Tribe within the meaning of the Explanation to section 36 of the Code, and includes his successor-in-interests. Transfer has been defined under section 2(j) to mean in relation to land belonging to a tribal made in favour of a non-tribal during the period commencing on the 1st day of April, 1947 and en
