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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE  JURISDICTION

CIVIL APPEAL NO. 3470 OF 2006

Sandu (D) by Lrs.  … Appellant (s)

Versus

Gulab (D) by Lrs. and others … Respondent (s)

J U D G M E N T  

KURIAN, J.:   

1. The Maharashtra Restoration of  Lands to Scheduled Tribes

Act,  1974 (hereinafter  referred to as ‘the Act’)  was introduced to

provide for the restoration of certain lands to persons belonging to

the  scheduled  tribes.  It  has  been  notified  on  01.11.1975.  Under

Section 4 of the Act, the restoration is contemplated in respect of

transactions on or after 1st day of April,  1957. Section 4 reads as

follows:

“4. Restoration  of  lands  of  persons  belonging  to Scheduled Tribes.  Where any land of a Tribal is, at any time on or after the 1st day of April 1957 and before the 6th day of July 1974, purchased or deemed to have been  purchased  or  acquired  under  or  in  accordance

REPORTABLE

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with the provisions of  the relevant tenancy law by a non-Tribal-transferee or where any acquisition has been regularised on payment of penalty under such law and such land is in possession of a non-Tribal transferee and has  not  been  put  to  any  non-agricultural  use  on  or before the 6th day of July 1974, then the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu at any time or on an  application  by  the  Tribunal  made  1[within  thirty years from the 6th July 2004] and after making such inquiry  as  he  thinks  fit,  direct  that  the  land  shall, subject to the provisions of subsection (4) of section 3, be restored to the Tribal  free form all  encumbrances and  that  the  amount  of  purchase  price  or  a proportionate  part  thereof,  if  any,  paid  by  such non-Tribal-transferee  in  respect  of  such  lands  in accordance  with  the  relevant  tenancy  law  shall  be refunded to such non-Tribal-transferee either lump sum or  in  such  annual  installments  not  exceeding  twelve (with simple interest at 4½ per cent. per annum) as the Collector may direct. The provisions of clauses (d), (e), (f) and (g) of sub-section (4) of section 3 shall, so far as may be, apply in relation to the recovery of the amount from  the  Tribal  and  payment  thereof  to  the non-Tribal-transferee  and  the   persons  claiming encumbrances, if any :  

Provided that, where land is purchased or acquired by  a  non-Tribal-transferee  before  the  6th  day  of  July 1974, after such transferee was rendered landless by reason of acquisition of his land for a public purpose, then only half the land so purchased or acquired shall be restored to the Tribal-transferor.”

2. Under Section 5A of the Act,  lands which belonged to the

tribals and coming under the purview of the Act which cannot be

restored to the original tribals, vest in Government and such lands

are to be granted to other tribals subject to prescribed restrictions.

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“5A. (1)  Where any land (not  being land acquired in exchange),  which  is  liable  to  be  restored  to  a Tribal-transferor  under  sub-section  (1)  of  section  3 cannot be so restored either on account of the failure of the Tribal-transferor to give an undertaking referred to in  sub-section  (3)  of  section  3  or  for  any  reason whatsoever or where any land referred to in section 4 cannot be restored to the Tribal by reason of such Tribal expressing, during the inquiry held by the Collector, his unwillingness  to  refund  the  purchase  price  or proportionate part thereof to the non-Tribal-transferee, as  required  by  the  said  section  4,  or  for  any  other reason, then, the Collector may, subject to rules, if any, made in that behalf, by order in writing direct that the land shall,  with effect from the date of the order,  be deemed to have been acquired and vest in the State Government free from all encumbrances.

(2)  On  such  vesting  of  the  land,  the non-Tribal-transferee shall  be entitled to  receive  from the State Government an amount equal to 48 times the assessment  of  the  land,  plus  the  value  of  the improvements,  if  any,  made  by  the non-Tribal-transferee therein. The provisions of clauses (b) and (c) of sub-section (4) of section 3 shall mutatis mutandis  apply  for  determining  the  value  of improvements  and  for  apportionment  of  the encumbrances,  if  any,  on  the  land  between  the non-Tribal-transferee  and  the  persons  claiming encumbrances on the land.

(3) The land so vested in the State Government under sub-section (1) shall,  subject to any general or special orders of the State Government in that behalf, be granted by the Collector to any other Tribal residing in the village in which the land is situate or within five kilometers thereof and who is willing to accept the land in accordance with the provisions of the Code, and the rules and orders made thereunder and to undertake to cultivate  the  land  personally;  so  however,  that  total land held by such Tribal  whether as owner or tenant does  not  exceed  an  economic  holding  within  the meaning of sub-section (6) of section 36A of the Code.

(4)  The  person  to  whom  land  is  granted  under sub-section (3), shall pay to the State Government the amount referred to in  sub-section (2),  either  in  lump

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sum  or  in  such  annual  instalments  not  exceeding twelve (with simple interest at 4½ per cent. per annum) as  the  Collector  may  direct  and  shall  hold  the  land subject  to  such  terms  and  conditions  as  may  be prescribed.

(5) Without the previous sanction of the Collector, no  land  granted  under  subsection  (3)  shall  be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order  of  a  competent  authority)  or  by  way  of  gift, mortgage, exchange, lease or otherwise. Such sanction shall not be given otherwise that in such circumstances and on  such  conditions  including  condition  regarding payment  of  premium  or  nazarana  to  the  State Government, as may be prescribed:

Provided that, no such sanction shall be necessary where the land is to be leased by a serving member of the armed forces or where the land it to be mortgaged as provided in sub-section (4) of section 36 of the Code for  raising  a  loan  for  effecting  any  improvement  on such land.

(6)  If  sanction  is  given  by  the  Collector  to  any transfer under sub-section (5), subsequent transfer of the  land  shall  also  be  subject  to  the  provisions  of subsection (5).

(7)  Any  transfer  of  land,  and  any  acquisition thereof, in contravention of subsection (5) or (6), shall be invalid; and as a penalty therefor, any right, title or interest of the transferor and transferee in or in relation to such land shall,  after giving him an opportunity to show cause, be forfeited by the Collector; and the land together with the standing crops thereon, if any, shall without further assurance vest in the State Government and shall be disposed of in such manner as the State Government may, from time to time direct.”

3. Section  6  of  the  Act  provides  for  an  appeal  to  the

Maharashtra Revenue Tribunal.

“6. Appeal. (1) An appeal against any decision or order passed by the Collector may, notwithstanding anything

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contained in  the  Code,  be  made to  the  Maharashtra Revenue Tribunal constituted under the Code.

(2)  Every  such  appeal  shall  be  made  within  a period  of  sixty  days  from the  date  of  receipt  of  the decision  or  order  of  the  Collector.  The  provisions  of sections 4, 5,  12 and 14 of the Limitation Act,  1963, shall apply to the filing of such appeal.

(3)  In  deciding an appeal  under sub-section (1), the Maharashtra Revenue Tribunal shall exercise all the powers  which  a  Court  has  subject  to  the  regulations framed by that Tribunal under the Code and follow the same  procedure  which  a  Court  follows,  in  deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908 (V of 1908).”

4. Section 7 of the Act provides for revision.

“7.  Revision.  Where no appeal has been filed within the period provided by sub-section (2) of section 6, the Commissioner may suo motu or on the direction of the State Government at any time—

(a) call for the record of any inquiry or proceeding of  any  Collector  for  the  purpose  of  satisfying himself as to the legality or propriety of any order passed  by,  and  as  to  the  regularity  of  the proceedings of,  such Collector,  as the case may be, and (b) pass such order thereon as he thinks fit:

Provided that  no such record shall  be called for after the expiry of three years from the date of such order except in cases where  directions are issued by the State Government;  and no order  of  the Collector shall  be  modified,  annulled  or  reversed  unless opportunity has been given to the interested parties to appear and be heard.”

5. The Assistant Collector, Jalgaon in the State of Maharashtra

initiated proceedings under Section 4 of the Act as per notice dated

03.12.1975 in respect of land Gat. No. 71 measuring 2 hectares and

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7 ares on the ground that the land originally belonged to the tribal

and as the same was transferred to a non-tribal after 1957. It was

found  that  the  land  was  sold  by  the  tribal  to  the  non-tribal  on

12.07.1971.  However,  restoration  was  declined  and  order  dated

31.12.1975  was  passed  dropping  the  proceedings  on  the  ground

that the tribal  was not  prepared to purchase the land.  The order

reads as follows:

“ORDER This  case  is  started  suo  motu.  The  suit  land

belongs to the Shri  Gulab Dagadu and etc.  who is  a member of Tribal Communities. He sold the suit land to Shri Sandu Dayaram on 27.5.1971 for Rs.12,000/-. The transferee belongs to Non-Tribal community.  

The case was fixed for hearing on 22.12.1975 and after  hearing  the  case  is  dropped  on  the  following grounds:- (1) The  transferor  Shri  Gulab  Dagadu  Tadvi  and Supadu Dagadu Tadvi are not willing to purchase the land.”

The  file  was  hence  closed.  Gulab,  since  deceased  and

represented  by  his  legal  heirs,  is  the  respondent  herein.  The

non-tribal transferee, since deceased and represented by his legal

heirs, is the appellant.

6. Thereafter, it appears, in 1985, the Additional Commissioner,

Nasik  (under  Section  2  of  the  Act,  the  Commissioner  includes

Additional  Commissioner)  initiated  suo  motu proceedings  under

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Section 7 of  the Act,  after  the Government  granted the sanction

under Section 7 of the Act by letter dated 10.05.1982. In the order

dated 28.03.1989, the revisional authority entered a finding that the

land was liable to be restored. The order dated 31.12.1975 passed

by the Assistant Collector, Jalgaon was set aside.  

7. The order passed by the revisional authority was challenged

before the High Court of Judicature at Bombay, Aurangabad Bench in

Writ Petition No. 1170 of 1989.  The main prayer under the Petition

reads as follows:  

“9. (A) Record  and  proceedings  of  the  impugned order  dated  28th March,  1989,  passed  in  LR.  Adivasi Revision Case number 4 of 1985 be called for, and after examining  the  legality,  validity  and  propriety  of  the impugned order dated 28th March 1989 passed by the Additional  Commissioner,  Nasik  Division,  Nasik  be quashed and set  aside and the  order  passed by  the Assistant Collector, Jalgaon on 31st December, 1975 in Adivasi case number 29 of 1975 be restored”

8. Neither the State of Maharashtra nor the Collector (in the

instant case, the Assistant Collector, Jalgaon), who passed the order

under Section 4 of the Act or the revisional authority (in the instant

case, the Additional Commissioner, Nasik Division), was impleaded

as parties in the Petition. Only the tribals were made respondents. In

litigation on welfare legislations intended to benefit the Scheduled

Tribes, Scheduled Castes or other weaker sections, the High Court

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should see that the State Government and the authorities concerned

are impleaded for proper defence and effective assistance.   

9. The  High  Court  in  the  impugned  judgment  dated

26/27.07.2005 took the view that the Commissioner could not have

exercised its revisional jurisdiction under Section 7 of the Act since

the same was exercised beyond a period of three years. As a matter

of fact, the Government of Maharashtra had accorded sanction for

the  revision  by  its  order  dated  10.05.1982  and  the  revisional

proceedings  had  been  initiated  apparently  in  1985.  Under  the

proviso to  Section  7  of  the  Act,  the  revisional  authority  has  to

exercise the  suo motu powers within three years from the date of

the order passed by the Collector except  in a case where a direction

is issued in that regard by the State Government. Where the State

Government  accords  sanction  for  initiation  of  the  revision  under

Section 7 of the Act, the proceedings can be initiated beyond the

period of three years. In such a case, the revisional proceedings will

not be vitiated on the ground that the same is hit by limitation of the

period of three years as prescribed under Section 7 of the Act. But

the proceedings should be initiated within a reasonable time from

the date of permission given by the Government. In the case before

us, the direction is issued by the State Government in 1982 and it

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appears the revisional authority has initiated proceedings in 1985. In

the give circumstances, we are of the view that the power exercised

by the revisional authority is within a reasonable time.

10. The High Court has rested its finding on vesting of the land

in Government under Section 5A of the Act mainly on the ground

that  the  Commissioner  could  not  have  entertained  the  revision

beyond three years. However, even according to the High Court, the

non-tribal  transferee  is  to  be  divested  of  his  possession  and

ownership  though  the  land  was  not  liable  to  be  restored  to  the

original  tribal  transferor.   On  a  proceeding  duly  initiated  under

Section 4 of the Act, even if a tribal transferor is not interested to

get  back  his  land  by  refunding  the  purchase  price  or  for  other

reasons indicated under Section 5A of the Act, the Collector cannot

drop the proceedings,  as has been done in the instant case. The

Collector has to proceed further and divest the non-tribal transferee

of the tribal land and pass a further order vesting the land in the

State  Government  for  being  distributed  to  the  other  deserving

tribals. But in the instant case, once it is held that the revision was

within  time,  the  High  Court  has  necessarily  to  see  whether  land

could  have been restored  to  the  tribal  transferor  as  held  by  the

revisional authority.

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11. The impugned order is hence set aside, the Writ Petition is

remitted to the High Court for fresh consideration in accordance with

law.  The  State  of  Maharashtra,  the  revisional  authority  and  the

original authority shall  be impleaded as parties in addition to the

affected party. The appeal is allowed as above. We request the High

Court to dispose of the Writ  Petition preferably within six months

from the date of receipt of copy of this judgment.

12. There shall be no order as to costs.

..…….…..…………J.                     (M. Y. EQBAL)

..……………………J.                     (KURIAN JOSEPH)

New Delhi; September 4, 2015.