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Baikrao Nayasnsingh Rajput Vs. Bandu Ana Bhill and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 47 of 1985 against Writ Petition Nos. 260 of 1977 and 1756 of 1978
Judge
Reported in1987(2)BomCR261; (1985)87BOMLR342; 1985MhLJ525
ActsMaharashtra Restoration of Lands to Scheduled Tribes Act, 1974 - Sections 2(1), 3, (3)(1) and 4
AppellantBaikrao Nayasnsingh Rajput
RespondentBandu Ana Bhill and ors.
Appellant AdvocateB.R. Naik and ;Y.R. Naik, Advs.
Respondent AdvocateC.R. Dalvi, Adv. for respondent No. 1 and ;D.P. Hegde, Adv. for respondent Nos. 2, 4 and 5
DispositionAppeal dismissed
Excerpt:
.....tribes act, 1974 (mah. xiv of 1975), sections 2(1)(1), 3(1), 4, 2(1)(i) - person in whose favour land transferred by non-tribal-transferee before march 15, 1971 whether excluded from definition of 'non-tribal transferee'.;the definition of 'non-tribal transferee' given in section 2(1)(i) of the maharashtra act 14 of 1975 does not exclude a person in whose favour land was transferred by the non-tribal transferee or his successor, before march 15, 1971.;lingappa poohanna v. state of maharashtra [1985] a.i.r. s.c. 389 : (1984) 87 bom. l.r. 65 (s.c.) followed.;marotrao ganpatrao kamble v. state of maharashtra [1985] mah. l.j. 49, (judgment by dhabe j. dtd. june 14, 1984 of nagpur bench in w.p. no. 313 of 1977) overruled. - indian evidence act, 1872 section 24: [v.s. sirpurkar &..........needs to be considered and formally overruled. the point is whether the definition of 'non-tribal transferee' given in sub-clause (i) of sub-section (1) on section 2 excludes a person in whose favour land was transferred by the non-tribal transferee or his successors, before the 15th march, 1971. in the present case the transfer by the tribal in favour on the appellant was in the year 1962-63 and the mortgage by the appellant in favour of the bank was in the year 1968. the lease by the bank in favour of the appellant was simultaneous with the mortgage. the argument advanced before us is that the mortgage effected in favour of the bank being of 1968 i.e. prior to the 15th march, 1971, the land is excluded from the provision of section 3(1) and 4 of the act, in view of the.....
Judgment:

P.B. Sawant, J.

1. This letter patent appeal is directed against the decision of the learned Single Judge given on January 15, 1985 in two writ petitions being Special Civil Applications Nos. 2607 of 1977 and 1756 of 1973 . The short facts are that the appellant who is non-tribal had in the year 1962-63 purchased three pieces of land from respondents No. 1 who is a tribal. Those lands are comprised in Survey Nos. 9/1, 9/2 and 53. After the purchase, the appellant mortgaged two pieces of land namely Survey Nos. 9/1 and 9/2 with the Maharashtra state Co-operative Land Development Bank on the 30th May, 1968. The mortgage was possessory and the appellant was thereafter placed in possession of the mortgaged lands as a tenant of the Bank. On the May 28, 1975 the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the said Act) came into force and proceedings were initiated against the appellant under the said Act for restoration of the lands to respondent No. 1. In the said proceedings, the Sub-Divisional Officer passed an order on the 20th December, 1976 restoring all the three pieces of land to respondent No. 1. Against the said decision, the appellant carried an appeal to the Revenue Tribunal under section 6 of the said Act. The Tribunal by its decision dated the 12th January, 1977 allowed the appeal in part by directing that the possession of the mortgaged lands should be given to the appellant, and dismissing the appeal so far as Survey No. 53 was concerned. Being aggrieved by the decision, both the appellant and respondent No. 1 preferred writ petitions to this Court. The appellant preferred Special Civil Application No. 2607 of 1977 against the order of the Tribunal directing restoration of Survey No. 53 to respondent No. 1 and respondent No. 1 preferred Special Civil Application No. 1756 of 1978 against the decision of the Tribunal denying restoration of Survey Nos. 9/1 and 9/2 to him. The learned Single Judge who heard both the petitions, by his two separate judgments dated the 15th January, 1985, dismissed the appellant's Special Civil Application No. 2607 of 1977 and allowed respondent No. 1's Special Civil Application No. 1756 of 1978 and directed that Survey Nos. 9/1 and 9/2 should also be restored to respondent No. 1 it is aggrieved by the said decision that the present appeal has been preferred.

2. Although the point raised in the appeal is squarely covered by the decision of the Supreme Court reported in : [1985]2SCR224 Lingappa Pochanna v. State of Maharashtra, it appears that the decision of the learned Single Judge of this Court delivered earlier and reported in 1985 Maharashtra Law Journal at page 49 Marotrao Ganpatrao Kamble v. State of Maharashtra & others, which had taken a contrary view is likely to create some confusion and therefore needs to be considered and formally overruled. The point is whether the definition of 'non-tribal transferee' given in sub-clause (i) of sub-section (1) on section 2 excludes a person in whose favour land was transferred by the non-tribal transferee or his successors, before the 15th March, 1971. In the present case the transfer by the tribal in favour on the appellant was in the year 1962-63 and the mortgage by the appellant in favour of the Bank was in the year 1968. The lease by the bank in favour of the appellant was simultaneous with the mortgage. The argument advanced before us is that the mortgage effected in favour of the bank being of 1968 i.e. prior to the 15th March, 1971, the land is excluded from the provision of section 3(1) and 4 of the Act, in view of the aforesaid definition of the 'non-tribal transferee.' As has been pointed out in paragraph 30 of the Supreme Court judgment, the legislature appointed the 15th March, 1971 with a view to give retrospective effect to the provision of section 3(1) and 4 of the act not to permit an assignee of a non-tribal transferee prior to the said date to escape the consequences of the annulment under the said sections. Such a construction of the definition of the non-tribal transferee given under section 2(1)(i) would run counter to the scheme of the Act. In Clause (i) of sub-section (1) of section 2, the word 'transfer' is defined to mean the transfer of land belonging of a tribal made in favour of a non-tribal during the period commencing on the 1st day of April, 1957 and ending on the 6th day of July, 1974. The Act is placed on the statute book restore lands belonging to the tribals which are transferred on and after 1st April, 1957. Further more, the definition of 'non-tribal transferee' is an exclusive one and hence it cannot exclude a transferee under a transfer covered by section 2(1)(i). In this view of matter the decision of the learned Single Judge reported in 1985 Maharashtra Law Journal is no longer good law and stands overruled. Hence no interference is required in this appeal.

3. There was no other point raised. The appeal is, therefore, dismissed with costs.


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