2024:BHC-AUG:13967 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1403 OF 2020 Daulatrao S/o Kondiba Shelke (Died)

through Lrs

1. Limbajirao S/o. Daulatrao Shelke, Age: 60 years, Occ: Agril, R/o. Mankeshwar, Tq. Jintoor, Dist. Parbhani.

2. Sambhaji S/o. Daulatrao Shelke, Age: 57 years, Occ: Agril, Through GPA of Petition No.1. ..Petitioners Versus Pandit s/o Bhikaji Dakhure, Age: 61 years, Occ: Agri, R/o. Mankeshwar, Tq. Jintoor, Dist. Parbhani. ..Respondent ....

Mr. V. D. Patnurkar, Advocate for Petitioner.

Mr. M. P. Kale, Advocate for Respondent No.1.

…

CORAM : S. G. CHAPALGAONKAR, J.

DATED : 12th JULY 2024.

JUDGMENT:-

1. Rule. Rule made returnable forthwith. By the consent of the parties, matter is taken up for final hearing at the stage of admission.

2. The petitioners impugn the order dated 12.07.2019 passed by the learned Member, Maharashtra Revenue Tribunal, Aurangabad (for short ‘M.R.T., Aurangabad’) in Review Petition No.8-C/14/Parbhani.

3. Mr. Patnurkar, learned Advocate appearing for the petitioners submits that the petitioners’ father had purchased lands bearing Survey No.22-B and Gut No.84/2 under registered sale deed, from father of respondent. The sale deed was executed on 30.01.1968. The petitioners’ father was put into the possession and mutation was certified in his favour. On 07.07.2000, the respondent filed proceeding invoking provisions of Maharashtra Restoration of Land to Schedule Tribe Act, 1974 (for short ‘Act of 1974’) r/w Section 36(2) of the Maharashtra Land Revenue Code, 1966 (for short ‘MLR Code’) alleging that sale transaction is not sustainable in law. He is tribal person and land is transferred in favour of non-tribal person without prior permission of the Collector. The learned Tahsildar acted upon such representation and dispossessed petitioners and handed over possession to the respondent.

4. The petitioners filed Appeal before the M.R.T., Aurangabad. The said Appeal was allowed vide order dated 22.10.2013 holding transaction to be valid since both the parties to the transaction were tribal belonging to ‘Andh’ tribe. It is further observed that challenge to the transaction after 32 years was barred by limitation. The respondent filed Review Petition alongwith Application for condonation of delay, so also obtained ex-parte stay. The petitioners then approached this Court challenging the order on stay application. The said Writ Petition came to be disposed of giving direction to M.R.T., Aurangabad to decide the Review Petition within a period of six weeks. On 12.07.2019, the learned Member of M.R.T., Aurangabad allowed the Review Petition and remanded matter for re-enquiry to Collector, Parbhani

5. Mr. Patnurkar, submits that it is not disputed that the respondent belongs to ‘Andh’ tribe. Even petitioner belong to same tribe. However, the M.R.T., Aurangabad erroneously observed that no admissible evidence regarding tribe of the petitioners is placed on record. He would further submit that subject sale transaction is dated 30.01.1968. The respondent raised objection after 32 years.

The tribe ‘Andh’ is designated as Tribe by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 i.e. after 8 years of execution of sale deed. As such, as on the date of execution of sale deed, the vendor cannot be said to be tribe. He would further submit that the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1975 (for short ‘Act of 1975’) was also not promulgated at the time of execution of sale deed/transfer of land in favour of the petitioners’ father. In that view of the matter, proceeding initiated by the respondent was not maintainable and that could not have been entertained, particularly after 32 years.

6. Per contra, Mr. Kale, learned Advocate appearing for the respondent submits that the matter is remanded back to the Authority, who is empowered to decide the validity of transaction in light of Section 36 of the MLR Code or Act of 1974. All the issues raised b