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Restoration of Land by Scheduled Tribe – decision by Full Bench of the High Court Bombay – An.......

1. Recently, a Full Bench of Bombay High Court (Nagpur Bench) comprising of Their Lordships Mr. Justice Sunil B. Shukre, Mr. Justice A. S. Chandurkar and Mr. Justice Anil L. Pansare have put to rest a vexed question, which regularly arose in respect of transfer of land from a tribal to a non-tribal under section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.

2. A reference was referred to the Full Bench as the Learned Single Judge, who was hearing Writ Petition No.1701 of 2019 (Baliram s/o Reva Chavhan v/s Gajanan s/o Shekrao Wanjare & Ors.) was faced with a question as to whether or not transfer of land by a tribal to non-tribal would be affected under Section 3 of the Restoration Act if on the date of such transfer, the tribal was not recognized to be of a Scheduled Tribe and his tribe was not specifically included in the List of Schedule Tribes Order, 1950. in order to resolve the conflicting and divergent views prevailing in the State, THE Hon’ble Court framed a question as to whether a subsequent recognition of a tribal after transfer of land would entitle tribal to seek restoration of possession of land?

3. The facts of the matter are that on 26th June, 1994 under a registered Sale Deed, the Petitioner, a non-tribal, had purchased the land from one Asha Rajusingh Rathod, a tribal. Father of Respondent No.1 in above Petition belonged to “Andh”, tribal community, which came to be recognized in the year 1974 and prior to that in 1968 father of Respondent No.1 had transferred land when the tribe was not mentioned in the list of Scheduled Tribes.

4. Prior to the Full Bench Reference, there existed 2 conflicting views with regards to the transfer of tribal land under section 3 as held by separate Division Benches of the Bombay HC reported in (1989 MH.L.J. 815) (Tukaram) and 2) (1993 (3) MH.L.J. 1168) (Kashibai). In Tukaram’s case, the Division Bench took a view that a Transferor of land viz. tribal to non-tribal, a Tribal - Transferor would be entitled for restoration of the transfer of land under Section 36A of the Maharashtra Land Revenue Code. 1966 (Code) only, if he was tribal as defined under the Explanation to Section 36 of the Code on the date of transfer and not otherwise. Kashibai’s case took a view that Section 3 of the Restoration Act would apply to the past transactions and/or with retrospective effect.

5. The Full Bench in the Reference being accosted with the aforesaid question, examined Section 3 of the Restoration Act, which deals with the restoration or transfer of lands to tribal in certain cases and the meaning of ‘non-tribal’, ‘transfer’ and ‘tribal’ under the said Act and Section 36 of the Code. After analyzing the implications of the sections and the code, the Full Bench opined that the Restoration Act was a remedial and beneficial legislation and Section 3 of the Act impacts the transfer of land by a Tribal-Transferor to non-Tribal-Transferee between 1st April, 1967 and 6th July, 1974. That in case of transfer of land as above and if, the land is in possession of non-tribal and has not been put to any non-agricultural use on or before 6th July, 1974, the Tribal would be entitled to seek restoration under Section 3 of the Restoration Act only if, the Tribal-Transferor is a person who belonged to a Schedule Tribe, who comes within the meaning of Explanation to Section 3 of the Code.

6. On further analysis, after noting relevant provisions of the Constitution of India, the FB held that a tribal for the purpose of Section 3 of the Restoration Act must be a person recognized as Scheduled Tribe under Article 342 of the Constitution of India under the List of Specified Tribes. The FB concluded that a person belonging to a particular tribe, would become a scheduled tribe only upon inclusion of his tribe in the Schedule to the Order of 1950.

7. The FB finally concluded and held that the decision of the Division Bench in case of Kashibai was not a good law and hence, overruled it and upheld the view taken in the case of Tukaram as a correct law and all judgements which were followed Tukaram were affirmed by the Full Bench.

The Full Bench were going on to answer the Reference in the following manner: -

  • “Subsequent recognition of a transferor as a Tribal within the meaning of Section 2(1)(j) of the Restoration Act would not entitle him to seek restoration of the land transferred by him to a non-Tribal-transferee and his subsequent recognition as such is of no assistance to him for the purpose of availing of the benefit of Section of the Restoration Act.”

8. It is hoped that this authoritative pronouncement has cleared the way for the various Courts of Law including the Bombay High Court, to deal with the various cases, which are now pending and which did not have a direction and this shall now be resolved quickly keeping in mind the principles explained and clarified by the Full Bench of Bombay High Court.




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