1
W.P. No.1999 of 1991.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.1999 OF 1991.
Gondu Ramu Pandit,
deceased through L.heir
Dr. J.G. Pandit, deceased by his
legal heirs:
1-A) Rahul Jawaharlal Pandit,
age 35 yrs. Occu. Agril.
r/o at & post Kochur (Khurd),
Rq. Raver, Dist.Jalgaon.
1-B) Sau. Indira Balkrishna Mohane,
age 50 yrs. Occu. Household,
r/o c/o Dr. B.R. Mohane, A-87,
Highway Apartment, Sion,
Mumbai -22.
1-C) Sau Surekha Sahebrao Patil,
age 45 years, occu. Household,
R/o C/o S.N. Patil, New Super
D-17/3, Bhusawal Thermal Power
Station, at post Deepnagar,
Tq. Bhusawal, Dist. Jalgaon.
1-D) Smt. Mandodari Jawaharlal Pandit,
age 65 years, occu. Household,
r/o C/o Rahul J. Pandit,
at post Kochur (Khurd),
Tq. Raver, Dist. Jalgaon. .. PETITIONERS.
VERSUS
1) Hasan Nathu Tadvi
2) Zipru Lalkha Tadvi,
deceased by his L.Rs.
a) Tahara Zipru Tadvi etc.
3) Sardar Ughadu Tadvi,
::: Downloaded on - 09/06/2013 16:39:57 :::
2
W.P. No.1999 of 1991.
deceased by his heirs:
a) Bismilla Sardar Tadvi etc.
4) Amir Dagadu Tadvi,
deceased by his heirs
a) Daut Amir Tadvi etc.
5) Ramjan Mahitap Tadvi,
all residing at Kalmode,
Taluka Raver,District Jalgaon.
6) The Member of
Maharashtra Revenue Tribunal
(formal party).
7) The State of Maharashtra. .. RESPONDENTS.
...
Shri V.T. Chaudhari, Advocate for Petitioners.
Smt. V.A. Shinde, Advocate for R.No.7.
Shri A.G. Talhar, Advocate for respondents
(absent).
...
CORAM : S.S. SHINDE,J.
1st December, 2010.
ORAL JUDGMENT:
1. This writ petition is directed against
the judgment and order dated 26th October,
1990 passed by the Maharashtra Revenue
Tribunal, Jalgaon in REV.TRB.48 OF 1989.
2. The facts of the case which are
::: Downloaded on – 09/06/2013 16:39:57 :::
3
W.P. No.1999 of 1991.
incorporated in the writ petition are as
under:
The suit land in Survey No.44/1 and
44/2 admeasuring 1 hector and 17 R. assess
as Rs.9-31 paise, situated at village
Kochur, ig taluka Raver, District Jalgaon.
The suit land was previously held and
owned by some of the respondents and that
the deceased Gundu Ramu Pandit had
purchased the suit land from the
respondents in the year, 1963, for a
consideration of Rs.7000/- under a
registered sale deed and from the said
consideration the respondents bought
another big piece of land. It is further
case of the petitioner that when his
father purchased the suit land, it was
barren, dry land and that he himself and
his father spent more than Rs.20,000/- and
::: Downloaded on – 09/06/2013 16:39:57 :::
4
W.P. No.1999 of 1991.
converted the dry land into a Bagayat
land.
3. The Assistant Collector, Jalgaon
Division, Jalgaon started a suo motu
enquiry under Section 3 of the Maharashtra
Restoration ig of Land to Scheduled Tribes
Act, 1974 (hereinafter referred to as the
Restoration Act). It is the case of the
petitioner that the petitioner challenged
the constitutional validity of the
Restoration Act by way of filing writ
petition before this Court and stay was
granted to the further proceedings before
the Assistant Collector, Jalgaon Division,
Jalgaon. It is further case of the
petitioner that the validity of the
Restoration Act was upheld by the Surpeme
Court in Lingappa’s case and thereafter,
stay granted by this Court was effected
::: Downloaded on – 09/06/2013 16:39:57 :::
5
W.P. No.1999 of 1991.
and further proceedings were directed to
be started. It is further case of the
petitioner that in the mean while there
was amendment to the Restoration Act and
the definition of Collector was enlarged
and Tahsildar was also empowered to
conduct ig the proceedings under the
Restoration Act. Thereafter the matter
was transferred to the Tahsildar, Raver,
which was numbered as 112 of 1975 and
after recording the statements of both the
parties, the Tahsildar passed order on
30.4.1986 and allowed the claim of the
respondents and further directed that the
suit land may be restored to the
respondents. Being aggrieved and
dissatisfied with the aforesaid judgment
and order passed by the Tahsildar, Raver,
the petitioner preferred an appeal being
Appeal No.REV-TRB-86 OF 1986, before the
::: Downloaded on – 09/06/2013 16:39:57 :::
6
W.P. No.1999 of 1991.
Maharashtra Revenue Tribunal, Bombay. The
Maharashtra Revenue Tribunal allowed the
said appeal and remanded the matter to the
Sub Divisional Officer, Jalgaon for
holding fresh enquiry. After remand, the
Sub Divisional Officer recorded statement
of the respondent Hasan Nathu Tadvi and
the statement of the petitioner and
thereafter came to the conclusion that
though the respondents are following the
custom, usages of Muslims and they are
known as Tadvi Pathan and Tadvi Musalman,
they are in fact tribal and therefore,
they are entitled for restoration of the
suit land.
4. Aggrieved by the judgment and order
passed by the Sub Divisional Officer dated
17th June, 1989 in Adivasi Case No.17 of
1987, the petitioner preferred an appeal
under Section 6 of the Restoration Act
::: Downloaded on – 09/06/2013 16:39:57 :::
7
W.P. No.1999 of 1991.
being Appeal No.REV.TRB.48 OF 1989 before
the Maharashtra Revenue Tribunal, Bombay.
It is the contention of the petitioner
that though the Maharashtra Revenue
Tribunal has accepted the contention of
the petitioner, instead of allowing the
appeal, remanded
ig the matter to the Sub
Divisional Officer, Jalgaon. Hence, this
writ petition.
5. The learned Counsel for the petitioner
invited my attention to the finding
recorded by the Maharashtra Revenue
Tribunal and submitted that the
contentions which were raised by the
petitioners before the Maharashtra Revenue
Tribunal have been accepted. It is
further submitted that the
respondents/applicants belong to Tadvi
Muslim / Tadvi Pathan community and the
::: Downloaded on – 09/06/2013 16:39:57 :::
8
W.P. No.1999 of 1991.
said community is or the caste is not
recognized as a tribal community. The
learned Counsel for the petitioner also
invited my attention to the circular vide
No.CBC-1684/309/K-11 dated 24th April, 1985
in which, it is specifically mentioned
that Muslim Tadvis are not tribal.
ig It is
the case of the petitioner that though the
circular was brought to the notice of the
Maharashtra Revenue Tribunal, it did not
discuss about the said circular. It is
further submitted that copy of the caste
certificate which was produced by the
respondents before the Sub Divisional
Officer, the Sub Divisional Officer should
not have taken into consideration the said
caste certificate since no original
certificate was produced before the Sub
Divisional Officer. Though the
Maharashtra Revenue Tribunal has held in
::: Downloaded on – 09/06/2013 16:39:57 :::
9
W.P. No.1999 of 1991.
favour of the petitioner that respondents
have not produced original caste
certificate, the Maharashtra Revenue
Tribunal has remanded the matter back to
the authority. According to the learned
Counsel for the petitioner, when the
findings are
ig recorded in favour of the
petitioner, the appeal should have been
allowed by the Maharashtra Revenue
Tribunal. He invited my attention to the
other grounds taken in the petition and
submitted that when the contentions of the
petitioner are accepted, there was no
option for the Maharashtra Revenue
Tribunal than to allow the appeal.
However, the Maharashtra Revenue Tribunal
remanded the matter back to the Sub
Divisional Officer, though it was not
warranted. The learned Counsel, therefore,
submitted that the writ petition deserves
::: Downloaded on – 09/06/2013 16:39:57 :::
10
W.P. No.1999 of 1991.
to be allowed.
6. On the other hand, the learned A.G.P.
appearing for the respondent authority
invited my attention to the findings
recorded by the Maharashtra Revenue
Tribunal to the effect that some of the
Legal Representatives of the respondents
were not brought on record and also the
Sub Divisional Officer while passing
order, did not take into consideration the
mandate of section 3(3) of the Restoration
Act to the effect that no undertaking was
taken from the tribal. Therefore, the
learned A.G.P. would submit that no
interference is warranted in the judgment
and order of the Maharashtra Revenue
Tribunal.
7. With the assistance of the learned
::: Downloaded on – 09/06/2013 16:39:57 :::
11
W.P. No.1999 of 1991.
Counsel for the petitioner, I have perused
the findings recorded by the Maharashtra
Revenue Tribunal. In para No.6, the
Maharashtra Revenue Tribunal has observed
that some of the Legal Representatives of
the respondents before the Sub Divisional
Officer were not brought on record.
ig It is
further observed that there are some other
persons who are legal representatives of
the deceased respondent. However, the Sub
Divisional Officer did not care to issue
notice to the legal heirs of the deceased
respondents bringing their names on
record. There are also observations about
the operative part of the order passed by
the Sub Divisional Officer in para no.6 of
the judgment. The Maharashtra Revenue
Tribunal in paragraph 7 has observed that
the provisions of section 3(3) of the
Restoration Act are mandatory and unless
::: Downloaded on – 09/06/2013 16:39:57 :::
12
W.P. No.1999 of 1991.
the undertaking is taken the order under
section 3(1) cannot be passed. In
paragraph 8 the Maharashtra Revenue
Tribunal has also observed that the
authority has failed to consider the
judgment of this Court reported in 1984
Mh.L.J. 432
ig wherein this Court has
observed that even assuming that the
tribals have converted into another
religion, it is to be found out whether
after conversion they have been following
the tribal way of life. The Sub
Divisional Officer did not make any detail
enquiry as to whether the respondents were
following the tribal way of life.
Therefore, in the light of observations in
paragraph 6,7 and 8 of the judgment, the
Maharashtra Revenue Tribunal felt that the
matter is required to be remanded back to
the Sub Divisional Officer, Jalgaon for
::: Downloaded on – 09/06/2013 16:39:57 :::
13
W.P. No.1999 of 1991.
fresh consideration.
8. It is true that so far as the findings
which are recorded by the Maharashtra
Revenue Tribunal about the caste
certificate produced by the respondents
are concerned, it is observed that the Sub
Divisional Officer has accepted the said
caste certificate though the original was
not produced before the Sub Divisional
Officer. Therefore, the Maharashtra
Revenue Tribunal reached to the findings
that it was not permissible for the Sub
Divisional Officer to place reliance on
the copies of the caste certificates in
absence of original certificate on record.
Therefore, to that extent, the findings
recorded by the Maharashtra Revenue
Tribunal are in favour of the petitioner.
However, so far bringing of Legal
::: Downloaded on – 09/06/2013 16:39:57 :::
14
W.P. No.1999 of 1991.
Representatives of the deceased
respondents on record, the sub Divisional
Officer did not take care and all Legal
Representatives of the respondents were
not brought on record. The provisions of
section 3(3) of the Restoration Act were
not followed,
ig which according to the
Maharashtra Revenue Tribunal, were
mandatory before passing any order under
Section 3(1) of the Restoration Act. That
apart, the Maharashtra Revenue Tribunal
has also reached to the conclusion that
the Sub Divisional Officer was supposed to
consider the effect of the tribals’
conversion into another religion and after
conversion, whether they were following
the tribal way of life. Therefore, in my
opinion, there was no way out for the
Maharashtra Revenue Tribunal but to remand
the matter back to the Sub Divisional
::: Downloaded on – 09/06/2013 16:39:57 :::
15
W.P. No.1999 of 1991.
Officer for fresh consideration.
Therefore, possible view is taken by the
Maharashtra Revenue Tribunal.
Hence, no case is made out for
interference in the impugned judgment and
order of the Maharashtra Revenue Tribunal.
9. In the result, writ petition stands
dismissed. Interim relief, if any, stands
vacated. Rule stands discharged.
[ S.S. SHINDE ]
JUDGE.
…
PLK/*
::: Downloaded on – 09/06/2013 16:39:57 :::