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JUDGMENT REPORTED
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 365 of 2009
1. Shri Ashok Laxman Attarde,
Age : 57 years,
Occupation : Agriculture & Service,
R/o. Plot No. 141/3/13,
Ayodya Nagar, Jalgaon.
2. Shri Dilip Laxman Attarde,
Age : 55 years,
Occupation : Agriculture & Service,
R/o. E-5, Warli Dairy Staff Quarters,
A.G. Khan Road, Worli,
Mumbai - 400 018.
3. Shri Vijay Laxman Attarde,
Age : 52 years,
Occupation : Service,
R/o. Sahaniwas Co-op. Housing
Society, Building No.11,
Siddharth Nagar,
4, Goregaon (W),
Mumbai 400 062.
4. Smt. Leelabai Laxman Attarde,
Age : 77 years,
Occupation : Household,
At & Post Nanded,
Taluka : Dharangaon,
Dist. Jalgaon.
5. Smt. Shailaja Shashikant Phalak,
Age : 46 years,
Occupation : Household,
R/o. Flat No. 102, Rohit Heights, .. Petitioners
Disuza Colony, Gangapur Road, (Original
At and Dist. Nashik - 422 005. opponents)
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versus
1. Atmaram Bhanu Saindane,
Age : Major, R/o. Padase,
Taluka : Amalner,
Through power of attorney,
Shri Sahebrao Kautik Saindane,
Age : Major,
R/o. Old Cheri Naka,
Near Annabhau Sathe Statue,
Jalgaon, Dist. Jalgaon.
2. The Tahsildar,
Dharangaon, .. Respondents
Taluka : Dharangaon, (Original
Dist. Jalgaon. applicant)
..................
Mr. S.D. Kulkarni, Advocate, for the petitioners.
Mr. S.R. Barlinge, Advocate, with
Mr. Vijay B. Patil, Advocate, for respondent no.1.
Mr. P.M. Shinde, Assistant Government Pleader,
for respondent no.2.
..................
WITH
Writ Petition No. 366 of 2009
1. Shri Ashok Laxman Attarde,
Age : 57 years,
Occupation : Agriculture & Service,
R/o. Plot No. 141/3/13,
Ayodya Nagar, Jalgaon.
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2. Shri Dilip Laxman Attarde,
Age : 55 years,
Occupation : Agriculture & Service,
R/o. E-5, Warli Dairy Staff Quarters,
A.G. Khan Road, Worli,
Mumbai - 400 018.
3. Shri Vijay Laxman Attarde,
Age : 52 years,
Occupation : Service,
R/o. Sahaniwas Co-op. Housing
Society, Building No.11,
Siddharth Nagar,
4, Goregaon (W),
Mumbai - 400 062.
4. Smt. Leelabai Laxman Attarde,
Age : 77 years,
Occupation : Household,
At & Post Nanded,
Taluka : Dharangaon,
District : Jalgaon.
5. Smt. Shailaja Shashikant Phalak,
Age : 46 years,
Occupation : Household,
R/o. Flat No. 102,
Rohit Heights, Disuza Colony, .. Petitioners
Gangapur Road, (Original
At and Dist. Nashik 422 005. opponents)
versus
1. Smt. Dayabai Kautik Saindane,
Age : Major,
2. Taghunath Kautik Saindane,
Age : Major,
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3. Abhiman Kautik Saindane,
Age : Major,
4. Kailash Kautik Saindane,
Age : Major,
5. Smt. Rambhabai Ramdas Koli,
Age : Major,
6. Smt. Anjanabai Rayaram Koli,
Age : Major,
7. Smt. Kokilabai Pitambar Koli,
Age : Major,
Respondent nos.1 to 7,
residing at Nanded,
Taluka : Dharangaon,
District : Jalgaon.
8. Smt. Vaijayantabai Waman Saindane,
Age : Major,
9. Smt. Malubai Ramesh Koli,
Age : Major,
10. Smt. Thagubai Gokul Koli,
Age : Major,
11. Damu Narayan Koli,
Age : Major,
12. Bhaidas Narayan Koli,
Age : Major,
Respondent nos.8 to 12,
R/o. Dahivad,
Taluka : Amalner,
District : Jalgaon.
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13. Sahebrao Kautik Saindane,
R/o. at Old Cheri Naka,
Near Annabhau Sathe Statue,
Jalgaon, Dist. Jalgaon.
.. Respondents
14. The Tahsildar, Dharangaon, (Original
Dist. Jalgaon. applicants)
..........................
Mr. S.D. Kulkarni, Advocate, for the petitioners.
Mr. S.R. Barlinge, Advocate, with
Mr. Vijay B. Patil, Advocate, for respondent nos.1 to 13.
Mr. P.M. Shinde, Assistant Government Pleader,
for respondent no.14.
.............................
CORAM : B.R. GAVAI, J.
DATE : 25TH JUNE 2009.
ORAL JUDGMENT :
1. By way of Writ Petition No. 365/2009, the petitioners have
challenged the order dated 3rd December 2008 passed by the learned
Member of the Maharashtra Revenue Tribunal, Mumbai, in Appeal TRB
No. 197/B/2008, thereby dismissing the appeal filed by the present
petitioners and confirming the order dated 30th May 2008, passed by the
Tahsildar, Dharangaon, in Aadivasi Case No. 1/2004.
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2. By way of Writ Petition No. 366/2009, the petitioners have
challenged the order dated 3rd December 2008, passed by the learned
Member of the Maharashtra Revenue Tribunal, Mumbai, in Appeal TRB
No. 198/B/2008, thereby dismissing the appeal filed by the present
petitioners and confirming the order dated 30th May 2008, passed by the
Tahsildar, Dharangaon, in Aadivasi Case No. 1/2002.
3. The facts, in nutshell, giving rise to the present petitions are
as under :
(i) S/Shri Kautik Narayan, Waman Narayan, Damu Narayan and
Bhaidas Narayan Koli, who are predecessors in title of the present
respondents nos.1 to 13, have transferred land Gut No. 103 (old Survey
No. 35/1/A), admeasuring 90 R to deceased Laxman Gotu Attarde,
father of the present petitioners, for a consideration of Rs. 11,500/-. The
petitioners’ predecessor in title and the petitioner are in possession of the
said lands since then.
(ii) The respondent nos.1 to 13, through respondent no.13, filed
Aadivasi Case No. 1/2002 before the Tahsildar, Dharangaon, for
possession of the disputed lands as per the provisions of the Maharashtra
Restoration of Lands to Scheduled Tribes Act, 1974 (For short,
hereinafter referred to as “the said Act”). In the other proceedings, the
caste claim of the respondent no.13 herein was being verified by the
competent authority i.e. Caste Certificate Scrutiny Committee. The
Caste Certificate Scrutiny Committee, vide order dated 13th March
2006, has rejected the claim of respondent no.13 as belonging to “Tokre
Koli”, Scheduled Tribe. The respondent no.13, being aggrieved thereby,
had approached this court by way of Writ Petition No. 3081/2006. It is
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to be noted that the present petitioner no.1 was impleaded as respondent
no.3 in the said petition. The Division Bench of this court, vide
judgment and order dated 28th July 2006, upheld the claim of the
respondent no.13 herein as belonging to “Tokre Koli”, Scheduled Tribe,
and directed the Scrutiny Committee to issue validity certificate in
favour of respondent no.13.
(iii) It appears that the said order was challenged by the State
Government as well as the present petitioner no.1 before the Apex
Court. Since there was a delay in filing the Special Leave Petition, an
application for condonation of delay was also filed. The Apex Court
vide orders dated 27th May 2007 and 6th August 2007, found that there
was no sufficient explanation for the delay and, therefore, dismissed the
Special Leave Petitions filed by the State and the petitioner Ashok,
respectively. It appears that having not succeeded before the Apex
Court, the present petitioner filed a Review Petition before this court,
being Review Petition Stamp no. 18006/2007. Since the said
application was also delayed, a Civil Application, being Civil
Application No. 8717/2007 was also filed. This court vide order dated
24th January 2008, had rejected the said application finding that the
petitioner has failed to make out a case.
(iv) It appears from the record, that though the proceedings were
pending before the respondent no.14, on the application filed by the
respondent no.13, as a power of attorney holder of rest of the
respondents, the present petitioner sought various adjournments.
Presumably, the said adjournments were sought since the issue of tribal
claim of respondent no.13 was pending before the competent authorities.
The Tahsildar finally allowed the application and directed the petitioners
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to hand over possession of the disputed lands to the respondent nos.1 to
13 vide order dated 30th May 2008. Being aggrieved thereby, the
petitioners approached the Maharashtra Revenue Tribunal. The learned
Member of the Maharashtra Revenue Tribunal vide order dated 3rd
December 2008 also dismissed the appeal. Hence, the present petitions.
4. Mr. S.D. Kulkarni, learned Counsel appearing for the
petitioners, challenges the impugned orders basically on two grounds :
(1) that, the respondent no.14 has not followed the principles of natural
justice and the procedure prescribed for deciding the application and as
such, the impugned orders are violative of principles of natural justice.
In this respect, he has placed reliance on the judgment of the Apex
Court, in the case of Smt. Maneka Gandhi Vs. Union of India and
another (AIR 1978 SC 597), and (2) that, it is to be established that the
vendor was belonging to Scheduled Tribe on the date of the transfer and
that subsequent validity of the caste claim of one of the legal
representatives of one of the original vendors, cannot bestow the original
vendors with the status of Scheduled Tribe and as such, the transaction
would not be hit by the provisions of the said Act. To substantiate this
submission, the learned Counsel appearing for the petitioners has placed
reliance on the judgment of the learned Single Judge of this court in the
case of Chandrabhagabai Dhondiba Gutte & others Vs. Ladba
Narayan Sidarwad (2006(Supp.) Bom.C.R. 330).
5. The learned Counsel appearing for the petitioners further
submits that the caste claim of each of the claimants has to be
determined on the basis of the independent evidence led by such
claimant and merely because one of the relatives is held to be Scheduled
Tribe, the other relatives cannot be ipso facto said to be belonging to
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Scheduled Tribe. He has placed reliance on the judgment of Division
Bench of this court, in the case of Vandana d/o. Narayan Sonkusare
Vs. State of Maharashtra & others (1998(4) Bom.C.R. 432). He has
also placed reliance on the judgment of the learned Single Judge of this
court, in the case of Kishore s/o. Rambhau Sonkusre Vs. The
Scheduled Tribe Caste Certificate Scrutiny Committee & another
(2000(Supp.) Bom.C.R. 407).
6. Mr. P.M. Shinde, learned Assistant Government Pleader,
appearing for the respondent State, and Mr. S.R. Barlinge and Mr. V.B.
Patil, learned Counsel appearing for the respective respondents, have
submitted that the Tahsildar has passed the order after giving ample
opportunity of hearing to the petitioners. They have submitted that
inspite of grant of ample opportunity, the petitioners have failed to prove
their case before the authority and as such, no interference is warranted.
7. No doubt, that by now it is settled law, that every action of
the State which results into adverse civil consequences, has to be
preceded by the principles of natural justice. Even if a statute does not
provide for observance of principles of natural justice, the requirement of
observance of principles of natural justice is required to be read in the
said statute, unless expressly or by necessary implication, the said
requirement is excluded.
8. In the present case, the rules framed under the said Act,
which are notified as “The Maharashtra Resettlement of Lands to
Scheduled Tribes Rules, 1975”, provide the procedure prescribed for
conducting the enquiry for restoration of land, under Rule 3 of the said
Rules. From the perusal of the record and from the affidavit in reply, it
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can clearly be seen that the respondent no.14 has followed the
requirements of the Rules. From the record, it is clear that though the
application was filed in the year 2002, the matter was adjourned on
various dates. The present petitioner had sought as many as 48 dates and
accordingly last chance was given to the petitioner to make his
submissions on 16th April 2008. The present petitioner remained absent
on 16th April 2008. From the affidavit of the Tahsildar, it is clear that
the Peon had called out the name of the present petitioner on various
occasions. The present petitioner did not attend the proceedings and as
such, the matter was posted for orders. The Tahsildar after taking into
consideration the relevant material and finding that the Division Bench
of this court has upheld the claim of respondent no.13 as belonging to
“Tokre Koli”, Scheduled Tribe, came to the conclusion that the
predecessors in title who had transferred the land to the father of the
present petitioner, were tribal and as such, the respondent nos.1 to 13
were entitled for restoration of land. The said finding of fact has been
affirmed by the Tribunal in its appellate jurisdiction.
9. No doubt, that the principles of natural justice are to be
followed. However, the same cannot be stretched to such an extent that a
party should be permitted to prolong the proceedings and even if he is
absent, the proceedings should still continue further at the convenience
of the party seeking to delay the proceedings. The respondent no.14, so
also, the appellate authority have found that since the land belonged to
the tribal and it was transferred to non-tribal, the respondent nos.1 to 13
were entitled for restoration of the land, in view of provisions of Section
3 of the said Act.
10. In so far as the contention of the petitioner, regarding the
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authorities not taking into consideration the costs incurred by him for
improvement of the land, is concerned, as already held by the appellate
court, the petitioner has failed to lead evidence in that respect. In any
event, the determination of amount payable to the petitioner, under
clause “b” of Sub-Section 4 of Section 3 would arise, after the land is
restored to the tribal by the petitioner. It is undisputed that the land is
still in possession of the petitioner and the possession is not yet handed
over to the non-tribal.
11. Now, let us examine the second contention of the petitioner,
that merely because the caste claim of respondent no.13 is validated, ipso
facto it cannot be held that the original vendors are also belonging to
Scheduled Tribe and, therefore, provisions of the said Act cannot be
invoked. Admittedly, the respondent no.13 is son of one of the original
vendors, Kautik, who is real brother of rest of the original vendors. All
the four original vendors are sons of deceased Narayan. It is not in
dispute that at the relevant time i.e. in the year 1969, there was no
requirement of caste claim or tribal claim to be validated by the
Caste/Tribe Certificate Scrutiny Committee. The requirement, for the
first time, to get the tribal claim or caste claim to be validated from the
Scrutiny Committee was made applicable by a Government Resolution
issued in the year 1985.
12. In that view of the matter, I do not find any force in the
submission of the learned Counsel appearing for the petitioners, that
since the caste claims of the original vendors are not validated, merely
because the caste claim of the son of one of the vendors is validated, the
provisions of the said Act would not be applicable. The tribal claim of
the respondent no.13, who is grandson of deceased Narayan and son of
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Kautik, has been held to be valid by this court by taking into
consideration all relevant aspects. It would be an absurdity to hold that
though the respondent no.13 has been held to be belonging to Scheduled
Tribe, his father and his father’s brothers are not belonging to Scheduled
Tribe. In that view of the matter, I do not find any substance in the
contention raised in this respect.
13. In so far as the reliance placed by the learned Counsel
appearing for the petitioners, on the judgment of Division Bench of this
court, in the case of Vandana d/o. Narayan Sonkusare Vs. State
(supra), is concerned, this court has considered that the claim of the
daughter could not be held to be valid merely because the father of the
said petitioner was recognized as Scheduled Tribe. It can be seen that in
the said case, claim of the father was not validated on merits and as such,
it was held that the petitioner was required to establish her claim by
adducing the document in support of the claim. In the case of Kishore
s/o. Rambhau Sonkusre (supra) also, the reliance on the earlier
certificates was found to be not relevant since the earlier claims were not
decided on merits. In that view of the matter, I do not find that the
reliance placed by the learned Counsel appearing for the petitioners, on
these judgments, would be of any assistance to the case of the
petitioners.
14. For the foregoing reasons, I do not find that any case is
made out by the petitioners for interference in exercise of extraordinary
jurisdiction of this court under Article 227 of the Constitution of India.
The petitions are devoid of any substance.
15. In the result, the petitions are dismissed.
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16. At this stage, Mr. S.D. Kulkarni, learned Counsel appearing
for the petitioners, prays for continuation of the status quo, which was
granted earlier by this court, for a period of four weeks. The prayer is
opposed by the learned Counsel appearing for the respondents.
17. However, taking into consideration the view that I have
taken, I do not find that a case is made out for extension of status quo
which was granted earlier. Hence, the said prayer is rejected.
( B.R. GAVAI )
JUDGE
………………….
bgp/wp365etc
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