JUDGMENT :

(Sunil B. Shukre, J.)

1. Heard.

2. By this reference, we have been called upon to answer a question which arises quite often while applying the provisions of Section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes, 1974 (for short “Restoration Act”) and which has intrigued legal minds in the State of Maharashtra for quite sometime. For answering the question, a brief reference to the facts of the case would be useful.

3. The petitioner, a non-tribal, is an owner of the agricultural field involved in the petition, which is hereinafter called as ‘the land in question’. It was purchased by the petitioner from respondent no.4 vide registered sale deed dated 26.06.1994. The land in question was a part of larger piece of land belonging to father of respondent no.1 late Mr. Shekorao who sold it to one Dhansingh Rathod by executing the sale deed in the year 1968. Dhansing, thereafter, partitioned the land and the land in question came to the share of respondent no.2. Respondent no.2 sold the land in question to the respondent no.4 and thereafter the respondent no.4, on 22.06.1994, sold the land in question to the petitioner and since then the petitioner is in continuous cultivating possession of the land in question.

4. Father of respondent no.1 and for that matter the respondent no.1 belonged to “Andh” tribal community, however, this community came to be included in the list of Scheduled Tribe’s contained in the Scheduled Tribes Order, 1950 only in the year 1974, insofar as place of residence of Respondent No.1 was concerned. The land in question had been transferred for the first time by father of respondent no.1 in the year 1968 and at that time “Andh” community was not recognized to be a Scheduled Tribe in relation to the certain parts of Maharashtra. The Restoration Act, which provided for protection to a tribal by directing restoration of land from a non-tribal transferee to a tribal transferor, came into force in the State of Maharashtra with effect from 01.11.1975. Realizing that the protection had been conferred upon tribals and having become sure of his status as a person belonging to Scheduled Tribe, respondent no.1, in the year 2016, filed an application before the Respondent no.5, the Tahsildar Pusad seeking restoration of the land in question in terms of Section (3) of the Restoration Act.

5. Respondent No.1 contended that transfer of the land in question by his father, who was recognized to be a tribal subsequently in the year 1974, stood in violation of the provisions of the Restoration Act. The petitioner contested the application, but in vain. The Respondent No.5 allowed the application of respondent no.1 and directed that the land in question be restored to the respondent no.1, and the revenue record be mutated accordingly. He also directed the petitioner to hand over the possession of land in question to the respondent no.1 within 30 days of the date of the order. The appeal preferred by the petitioner against this order of respondent no.5 did not prove to be a fruitful exercise for the petitioner as it came to be dismissed on 06.02.2019 by Maharashtra Revenue Tribunal.

6. Being aggrieved, the petitioner is now before the High Court. When the petition was heard by the learned Single Judge, who is part of this larger bench, a question arose, as to whether or not the transfer of land by a tribal to a non-tribal would be affected by Section 3 of the Restoration Act, if on the date of such transfer, the tribal was not recognized to be of a Scheduled Tribe and his tribe was subsequently included