ORDER
D.G. Deshpande, J.
1. The petitioner is a non-tribal has filed this petition challenging the order of the Additional Commissioner, Konkan Division dated 29th October, 1984 passed in suo motu revision under section 7 of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the “Act of 1974”). The said revision had arisen out of the order of the Additional Tahsildar and Agricultural Land Tribunal, Ulhasnagar, in Restoration Case No. TNC.RSI. SR. 269 dated 30th June, 1979.
2. It is clear from the record of this petition, (in which, in all three orders have been annexed) that the non tribal was all through out absent. The first order was an order passed by A.L.T. No. 2 and Additional Mamlatdar, Kalyan, in proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the “Act of the 1948”). At that time also the non tribal-respondent No. 1 before this Court was absent. Then there is another order of Additional Tahsildar and ALT Ulhasnagar dated 30th June 1979 in proceedings under section 3 of the Act of 1974, where also the tribal was absent and thirdly in the order of the Additional Commissioner, Konkan Division in suo motu revision the non tribal was absent.
3. From the order under section 3 of the Act of 1974 dated 30th June, 1979 it appears that proceedings under section 3 of the Act of 1974 were initiated suo motu by the Additional Tahsildar on the basis of extract of V.F. VI of Mutation Entry No. 159 of village Sagaon. This was on the assumption that possession of the suit land was transferred to non tribal-transferee. However, since tribal remained, absent, the said authority recorded the statements of the non tribal from which it was revealed that the land was not belonging to the tribal during the period 1st April, 1957 to 6th July, 1974. The Additional Tahsildar therefore held that the tribal-transferror was entitled for restoration of the suit land and consequently he dropped proceedings under section 3 of the Act of 1974.
4. The Additional Commissioner acting under revisional jurisdiction conferred upon him by section 7 of the Act of 1974 started suo motu proceedings and passed the impugned order dated 29th October, 1984. Prom this order it appears that the Additional Commissioner perused and relied upon the en-
tries in revenue record pertaining to the transferred land or land under dispute. His observation which are germane to the issue are quoted as under:
“I have gone through the record of the Lower Court, village record, and considered the say of the non tribal. The tribal was ex parte. Non tribal says that the non tribals know how the entries of the tribal tenants
have been recorded. He, therefore, requests that the lands may be retained with the non tribal. I have seen the basic village record which
shows that Ragho Navasu was cultivating the suit land from 1946-47
and his name is continued upto 1949-50, 1951-52 entries are
‘Gudastapramane’. The name for 51-52 is not readable. For 55-56, Ragho
Navasu is entered. The entries for 56-57 are overwritten and this is very
doubtful. 1958-59 entries are Khud. But entries for 56-57 are overwritten
and are suspicious. I feel since the entries for 1956-57 are doubtful and the
earlier entries are in favour of Ragho Navasu, the benefit of doubt for 56-57
entries should be given to the tribal” (stress added)
5. It appears, that the Additional Commissioner was influenced by the so-called overwriting in the entries for the year 1956-57 and he therefore decided to give benefit of doubt to the non tribal and passed the impugned order on the assumption that in the entries for the year 1956-57 the non tribal was shown as the owner of the land or as tenant.
6. It was contended by the Counsel for the petitioner that in order to invoke the powers under the Act of 1974, it was necessary for the authorities to come to a positive finding that the tribal was the owner of the land and or that he had transferred his land to a non tribal between 1st April, 1957 to 6th July, 1974 and if there is nothing on record to hold that the land was owned by the tribal and that he had transferred it to non tribal during the aforesaid period then the provisions of Act of 1974 could not be invoked. The Counsel for the petitioner further contended that so far as the first order of the Additional Tahsildar under section 3 of the Act of 1974 is concerned, the same has resulted in a finding against the tribal to the effect that he was not entitled for restoration of the land. Secondly, the proceedings under section 3 of the Act of 1974 came to be dropped. Counsel for the petitioner contended that his order dated 30th June, 1979 coupled with the order dated 25th February, 1966 passed by the Additional Tahsildar under section 32-G of the Act of 1948 should have been taken into consideration by the Additional Commissioner in their proper perspective. The Additional Commissioner should have refrained from exercising suo motu power of revision. The Counsel for the petitioner relied upon the two judgments of this Court, reported in 1987 Mah.L.J. 908 State of Maharashtra & another v. Khatua Makani And Company Pvt. Ltd., and judgment of Justice Agarwal reported in 1990 T.L.D. (Mah) 272 Shri Bandu Pandu Patole v. Shri Deu Ganu Wagh, (since deceased by his heirs) & others, in which and in similar circumstances this Court gave a clear finding that the tribal was not entitled for restoration of the land.
7. The A.G.P. appearing for respondent Nos. 2 and 3, when questioned, was fair enough to concede that the record and proceedings namely, the two orders of the Additional Tahsildar dated 30th June 1979 and 25th February, 1966 did not at all prima facie show that the tribal was the owner of the land and that he had transferred the land to the non tribal between 1st April, 1957 to 6th July, 1974. However, the learned A.G.P. tried to contend that since the Commissioner or the Additional Tahsildar has not given any serious consideration to this particular aspect, then matter should be remanded
back for fresh enquiry, which move was strongly opposed by the Counsel for the petitioner.
8. I do not find that it is a case for remand. Firstly, because the tribal was absent in all the three proceedings and secondly because the order of dropping proceedings under section 32-G of the Act of 1948 became a final order, which the tribal never challenged. Thirdly, none of the two orders dated 25th February, 1966 and 30th June, 1979, or even the revenue record, that was produced before those authorities or which was perused by those authorities that the tribal was at any time shown as the owner of the land and fourthly from these two orders it cannot be gathered that any material was available before those authorities to come to the conclusion that tribal had transferred his land to a non tribal and that as a consequence thereof the tribal was put out of possession of the land.
9. In fact from the judgment of the Division Bench reported in 1987 Mah.L.J. 908, it is clear that there was something positive on record to hold that the tribal was a tenant of the land, though however he did not show any willingness to purchase the tenanted land but even then after coming into force of the Act of 1974, suo motu proceedings were initiated but considering the fact that the land did not belonging to the tribal and that there was no transfer of land, this Court refused to uphold the decision given in the suo motu revision petition. In the similar matter Justice Agarwal in Bandu Pandu Patole’s case (as referred to above) set aside and quashed the order passed in suo-motu revision holding that the Commissioner had erred in ordering restoration of possession merely on the strength of entries in the record of right.
10. In the instant case the Commissioner’s order which shows that the entries in the revenue record i.e. in record of rights and entries of 1956-57 did not at all show tribal as a tenant. But the Commissioner has observed that the entries for 1956-57 are “over written” and they are doubtful or suspicious. It appears, however, that the Commissioner has given benefit of doubt to the tribal and has passed the impugned order. I am in full agreement with the contentions raised by the Counsel for the petitioner that this order of the Commissioner is patently illegal. If the Commissioner observed and noted in his order that in the entries for 1956-57 initially the name of the tribal was written and later on it appears to have been scratched or over written by somebody else’s name or by the name of the non tribal, the Commissioner was justified in giving the benefit in favour of the tribal. However, the impugned order of the Commissioner does not show any such thing. It was therefore risky on the part of the Commissioner to give a positive finding in favour of the tribal in coming to the conclusion that the land belonged to the tribal and was supported by the revenue record that it was transferred between the aforesaid period 1st April, 1957 to 6th July, 1974 and that consequently the tribal was dispossessed. In the absence of any such clear cut findings, the Commissioner was not at all justified in allowing the revision petition which was started earlier.
11. If the Preamble of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 is seen, it will be clear that the Act was brought into force for giving protection to persons belonging to scheduled tribes and to suggest among other things suitable amendments therein and because the committee appointed in that regard recommended for restoring to persons belonging to scheduled tribes, the lands which have been duly transferred to other persons.
12. If the Preamble of the Act is taken into consideration along with the definition of the word “transfer” in section 2(i) of the said Act, it will be clear that before invoking the provisions of this Act or before granting relief in favour of tribal, there must be clear cut finding on the basis of record that certain land belonging to the tribal, that it was transferred for a non tribal during the period commencing from 1st April, 1957 to 6th July, 1974.
13. For all these reasons therefore the petition is required to be allowed and I therefore pass the following order:
ORDER
Petition allowed. Rule made absolute.
Impugned order of he Additional Commissioner, Konkan Division dated 29th October, 1984 in Appeal Desk W.T.N. 4391 is quashed and set aside and the order dated 30th June, 1979 of the Additional Tahsildar and A.L.T., Ulhasnagar in No. T.N.C. R.S.T. S.R. 269 is upheld.
14. Petition allowed.