1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1636 OF 1994 Pandit Shridhar Lokhande, Age Major, Occu. Agriculturist, R/o. Atrawal, Tq. Yawal, Dist. Jalgaon. ....Petitioner. Versus Jamsher Sitru Tadvi, deceased heirs 1. Mainabai Jamsher Tadvi, Age Major, Occu. Agriculture, 2. Bhikari Jamsher Tadvi, Age Major, Occu. Agriculture, Both R/o. Sangavi, Tq. Yawal, Dist. Jalgaon. 3. The Commissioner (Upper Ayukta) Nasik Division, Nasik. 4. The State of Maharashtra 5. The Tahsildar, Yawal, Tq. Yawal, Dist. Jalgaon. ....Respondents. Shri. V.T. Chaudhary, Advocate for petitioner. Shri. N.L. Chaudhary, Advocate for respondent Nos. 1 and 2. Shri. D.R. Kale, A.G.P. for State. CORAM : R.K. DESHPANDE, J. DATE : 17th June 2010. 2 ORAL JUDGMENT : 1. This writ petition challenges the order dated 11.5.1994 passed by the learned Additional Commissioner, Nasik Division, Nasik under section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as "the said Act"). The learned Additional Commissioner has directed to present petitioner to restore the land to respondent Nos. 1 and 2 in terms of the provisions of section 7 of the said Act. 2. The facts in brief leading to the case are as under :- The dispute pertains to land Survey No. 56/2/2 admeasuring 98 R. assessed at Rs. 7.72 ps. of village Atrawal, Tal. Yawal, Dist. Jalgaon. It is not in dispute that the original owner of the land was one Jamsher Sitru Tadvi. One Bhagwat Lalji Patil purchased this land from said Jamsher Sitru Tadvi on 18.2.1965 for consideration of Rs. 12,000/-. The present petitioner Pandit Shridhar Lokhande purchased the said land from Shri. Bhagwat Lalji Patil by registered sale deed dated 22.8.1966. Upon coming into force of the said Act in the year 1974, the proceedings under section 3 (3) for restoration of the land were initiated by the original land owner Jamsher Sitru Tadvi, claiming himself to be a tribal and for restoration of the land from the petitioner. The learned Assistant Collector, Jalgaon Division, Jalgaon, who dealt with the matter, passed an order dated 29.4.1976, rejecting the claim and dropping the proceedings on the 3 ground stated as under :- "The transaction of sale of suit land to a third person Shri. Pandit Shridhar Lokhande is before 15.3.1971, and, therefore, does not fall within the meaning of transfer to a "Non-Tribal Transferee" as defined in Section 2(1) (L) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974." 3. It seems that the suo-moto proceedings were initiated by the office of the Commissioner, Nasik Division, Nasik which were conducted by the learned Additional Commissioner, registered as Adiwasi Revision No. 49/1990. The order recites that the powers under section 7 are exercised as per the directions issued by the State Government. It further recites that the question, whether the provisions of the said Act are applicable to the sale effected prior to coming into force of the said Act, was decided by the Apex Court and it has been held that it applies to transfers issued prior to coming into force of the said Act. It further recites that in view of the directions issued by the State Government for review of all such cases, the proceedings were initiated. 4. The learned Additional Commissioner, on merits, records the finding that the respondent Nos. 1 and 2 are the legal heirs of the original land owner Jamsher Shitru Tadvi and it is based upon the finding in the order passed by the Collector on 29.4.1976, dropping the proceedings. The order further records a finding that a caste certificate produced by the respondent No. 2, has been issued by the Executive Magistrate on 4 30.8.1993, showing that the respondent No. 2 belonged to scheduled tribe category. On the basis of such findings, an order has been passed under section 3 (3) of the said Act, for restoration of land to respondent Nos. 1 and 2, by the learned Additional Commissioner. 5. Shri. V. T. Choudhary, the learned counsel appearing for the petitioner has urged that while passing an order under section 3 (3) of the said Act, the learned Additional Commissioner has acted in breach of the provisions of section 7 of the said Act, which prescribes the limitation of three years for initiating suo-moto proceedings, after the order is passed by the Collector. According to him, the order was passed in this case by the Collector on 29.4.1976 and the proceedings before the Additional Commissioner were initiated in the year 1990 i.e. after lapse of about 16 years and thus, the order was without jurisdiction. He further submits that although the order recites that the proceedings are initiated with the approval of the Government, there is nothing on record to show that the Government has issued any directions as contemplated by proviso to section 7 of the said Act. In the absence of such directions, the learned Additional Commissioner was not competent to initiate the proceedings. He further submits that the finding recorded by the learned Additional Commissioner that the respondent Nos. 1 and 2 are the legal heirs of the original owner and that they belonged to a scheduled tribe, is perverse as it is not based on the evidence available on record. He further submits that production of 5 simple certificate issued by the Executive Magistrate, showing that the respondent No. 2 belonged to scheduled tribe category, is not enough and the competent authority to grant such declaration is the Scrutiny Committee which issues validity certificate. 6. In support of his contention that in the absence of such validity certificate, the learned Additional Commissioner could not have held that respondent No. 2 belonged to scheduled tribe category. He relied upon the following decisions of this Court in support of his proposition that the caste certificate needs to be verified and scrutinized by the Scrutiny Committee and it is only upon the production of validity certificate it can be held that the respondent Nos. 1 and 2 belong to scheduled tribe category. Those decisions are as follows :- (1) 1994 (2) Mh.L.J. 1719, Daulat Dhana Mali and others Vs. State of Maharashtra and others. (2) AIR 2002 BOMBAY 238, Punjaji C. Halde Vs. State of Maharashtra and others (3) 2010 Bom. C.R. 110, Krushna Wasudeorao Ambekar & ors. Vs. State of Maharashtra. So far as the question of limitation is concerned, the learned counsel relies upon the decision of the learned Single Judge of this Court reported in 2003 (2) Mh.L.J. 41 in the case of Sridhar Damodar Kamalaskar (Wani) and others vs. Sonu Gunaji Dhumase and others, to urge that in the absence of direction from State Government, suo- 6 moto power under Section 7 cannot be invoked after 16 years. 7. As against the aforesaid submissions, Shri. N.L. Choudhary, the learned counsel for the respondent Nos. 1 and 2 has urged that there is no reason to disbelieve the finding recorded by the learned Additional Commissioner in his order impugned in the petition that the proceedings under section 7 have been initiated upon the directions issued by the State Government and hence, according to him, the case squarely falls under the proviso to section 7 of the said Act and therefore, the period of limitation i.e. of 3 years, does not apply. Relying upon the decision of the learned Single Judge of this Court reported in 2007 (1) Mh.L.J. 165 in the case of Ulhas Nimba Choudhari and another Vs. Burhan Samsa Tadvi and others, he submits that production of caste validity certificate was not at all necessary. He submits that the learned Additional Commissioner has recorded a findings of fact, that the respondent Nos. 1 and 2 being the legal heirs of original owner of the land and that they belonged to Tadvi scheduled tribe category. According to him, in view of the judgment of the Apex Court, the provisions of the said Act are applicable to the transaction of sale effected prior to coming into force of the said Act. The learned A.G.P. Shri. D.R. Kale adopts the argument of respondent Nos. 1 and 2 and supports the findings recorded by the Additional Commissioner in the impugned order. 8. Perusal of Section 7 of the said Act shows that for invoking the 7 suo-moto powers, there has to be a specific direction from the State Government, if such an exercise is beyond the period of 3 years. This is also the law laid down by this Court in Sridhar's case cited supra, relied upon by petitioner. Undisputedly, the initiation of the proceedings by the learned Additional Commissioner in the instant case is beyond the period of 3 years. Although the impugned order recites that the proceedings are initiated by the directions issued by the State Government, there is no specific reference to any such order or direction issued by the State Government. This petition was filed in 1994. The record is not produced from the office the Additional Commissioner, to find out whether there actually existed any such direction. Hence, the matter will have to be remitted back to the Additional Commissioner for making a reference to any such specific direction, if at all issued by the State Government. Since the jurisdiction of the Commissioner under section 7 depends upon the direction issued by the State Government, it was necessary for the learned Additional Commissioner to refer to such directions in his order. The matter is, therefore, required to be remitted back on this count. 9. So far as the claim of the respondent Nos. 1 and 2 that they belong to Tadvi scheduled tribe category is concerned, the judgments relied upon by the learned counsel for the petitioners, require the production of caste validity certificate from the competent authority i.e. Caste Scrutiny Committee. The point is no longer res-integra, in view of 8 judgment of this Court reported in 1994 (2) Mh.L.J. 1710 in the case of Daulat Dhana Mali and others Vs. State of Maharashtra and others. The relevant para No. 8 of the judgment is reproduced below. "8. As regards the determination of the Tribe, if any, to which the respondent No. 2 belonged and determination of the question, whether or not, he was a member of a Scheduled Tribe, the contention of Mr. Choudhari, must hold good. The Assistant Collector had decided the matter as far back as on 25.10.1976 and the Tribunal had decided it as far back as on 3rd January 77. At that time, the Government did not have any machinery for the verification of tribal claims of the persons claiming to be tribals. This Court as well as the Supreme Court, were required to deal with such matters/points in a number of cases, as a result of which, the Scrutiny Committee has been appointed under the Directorate of Tribal Research and Training Institute, Pune -1. That Committee consists of the experts who are well-acquainted with the subject. The aforesaid Committee is considered, presently, as the competent authority to verify the tribal claims, even though the Taluqa Executive Magistrate and other authorities have issued certificates earlier in that context. The certificates so issued by the other authorities are since required to be verified by the aforesaid Committee before a conclusion could be arrived at as to whether or not, a person was a tribal. We cannot find fault with the efforts made by the Assistant Collector or the Maharashtra Revenue Tribunal in determining, whether or not, the respondent No. 2 belonged to any Scheduled Tribe. Indeed, the judgment delivered by the Assistant Collector exhibits the efforts put in by him to arrive at his own conclusion. But, in the circumstances discussed above, we cannot accept the aforesaid finding as conclusive unless and until the same is got verified at the hands of the Scrutiny Committee. On that count, the impugned orders need to be quashed and set aside and directions are required to be given to the authorities concerned to refer the matter to the Scrutiny Committee for verification of the Tribe claim." 9 In addition to aforesaid view, the reason is that the order passed under section 3 (3) of the said Act deprives non tribal of his property purchased for valuable consideration and therefore, it is necessary that the claimant must establish his tribe in accordance with law. The aforesaid view has been followed by this Court in two subsequent judgments reported in A.I.R. 2002 Bom. 238 and 2010 (1) Bom. C.R. 110, cited supra by the petitioner. I have no reason to take different view. 10. Shri. N.L. Choudhary, the learned counsel for respondent Nos. 1 and 2 has, however, relied upon the judgment of the learned Single Judge of this Court in the case of Ulhas Nimba Choudhari Vs. Burahan Samsa Tadvi and others reported in 2007 (1) Mh.L.J. 165. In para 9 of the said judgment, it has been held that the Act requiring verification and scrutiny of the caste certificate came into force in the year 2000 and the certificate was issued much prior to coming into force of the said Act. In the instant case, the photocopy of the certificate produced on record was issued in the year 1993, may be by an authority which was competent to issue the said certificate i.e. the Executive Magistrate. However, the requirement of getting such certificate scrutinized and verified through Caste Scrutiny Committee was subsisting under several Government resolutions. Such a Committee was constituted for the first time in the year 1985 by the Government Resolution. This crucial fact does not seem to have been brought to the notice of this Court when this judgment was 10 delivered. Hence, it proceeds on the assumption that when the Sub- Divisional Officer initiated the proceedings and concluded it, the requirement of getting the caste certificate verified and scrutinized by the Scrutiny Committee was not subsisting. Apart from this, earlier binding precedent laid down in Daulat's case was also not noticed. Hence, it is neither necessary to follow this judgment nor to refer the matter to a larger bench. The judgment in Daulat's case has been followed by this Court in 2010 (1) Bom. C.R. 110. Hence, the argument based upon Ulhas's case cannot be accepted. 11. In view of above, the contention raised by the learned counsel for the respondent Nos. 1 and 2 that the finding of fact is recorded by the learned Additional Commissioner that the respondent Nos. 1 and 2 belonged to Tadvi scheduled tribe category, cannot be accepted. The same is without jurisdiction and the learned Additional Commissioner ought to have referred the matter to the Scrutiny Committee for verification and scrutiny of tribe claim of respondent No. 2. 12. In the result, the instant writ petition succeeds. The order dated 11th of May 1994 passed by the learned Additional Commissioner, Nasik Division, Nasik dated 11th of May 1994 passed in Adiwasi Revision No. 49/1990 is hereby quashed and set aside. The matter is remitted back to the learned Additional Commissioner for decision afresh, after getting the order from the competent Scrutiny Committee upon the question of 11 validity of caste certificate produced by the respondent No. 2, if it is found that there exists such directions from the State Government which are referred to in the order impugned in this petition. The learned Additional Commissioner shall grant opportunity of effective hearing to all the parties. Rule is made absolute in aforesaid terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp1636.94