1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.2308 of 2009 Shri Vasant Mahadev Tikekar & ors. .. Petitioners v/s. State of Maharashtra & ors. .. Respondents Mr.Milind Sathe, Sr.Advocate with Mr.Birendra Saraf, Ms.Shamima Taly and Mr.Rakesh Misar i/by M/s.S. Mohomedbhai & Co. for Petitioners. Mr.S.N. Bhosale, AGP for Res.No.1. Mr.D.D. Madon, Sr. Advocate with Mr.Sanjiv Sawant for Res.Nos.3 & 4. ----- CORAM : SMT.ROSHAN DALVI, J Date of reserving the order : 3rd February, 2010 Date of pronouncing the order : 22nd February, 2010 ORDER : 1.Rule. Rule is made returnable forthwith. 2.The Petitioners have purchased the lands, inter alia, under Survey No.239, bearing old Survey No.144 (Part) admeasuring 5 Acres and 30 Gunthas at village Malad, Taluka Borivali, Mumbai, from one Anandibai, the widow of one Budhiya Bhikhu Gadak. Budhiya was declared as 2 tenant / purchaser of the said lands under Section 32G of the Bombay Tenancy and Agricultural Lands Act (Tenancy Act). Budhiya died on 14.3.1968. A certificate under Section 32N of the Tenancy Act was issued in the name of Budhiya on 23.8.1969. Mutation Entry No.1269 came to be made in that respect in the name of Anandibai, his widow on 10.1.1971. Permission for sale under Section 43 of the Tenancy Act was granted to the widow on 25.7.1971. She entered into a conveyance with the Petitioners predecessor-in-title for a part of the land of her husband Budhiya, admeasuring 2 Acres 26 Gunthas on 25.5.1971. Mutation Entry No.1282 in that behalf came to be made on 8.6.1971. Thereafter Anandibai conveyed the balance part of the land admeasuring 3 Acres, 3 Gunthas to the Petitioners predecessor-in-title on 5.10.1973. Further Mutation Entry No.1375 was made on 8.11.1973 upon such conveyance. 3.Budhiya had purchased this land under Section 32G. He was, therefore, the agricultural tenant in respect of the land prior to the purchase. The purchase constituted his self acquired property. It was not a HUF property. His brother Dharma Bhikhu Gadak made a declaration in that behalf. Upon the death of Budhiya, his self acquired property, acquired under the provisions of the Tenancy Act devolved upon his widow 3 by succession under Section 8 of the Hindu Succession Act, 1956. Anandibai claimed to have title upon such succession in respect of the entire of the land as Class-I heir, Budhiya having left no issues. 4.In 1976, the relevant Collector made a suo motu inquiry under Section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (the Act). In that inquiry, he relied upon a certificate issued by the Additional Chief Metropolitan Magistrate certifying that Anandibai belonged to OBC community. This certificate came to be issued upon her Application, her statement and Affidavit, a certificate of the Special Executive Magistrate, Mumbai, and a certificate from one M.L.A. The Collector is stated to have also considered the declaration made by Dharma with regard to the self acquisition of the property by Budhdiya. The statement of Anandibai was that she was not a tribal but belonged to Bari community which was Other Backward Class (OBC) and not a Scheduled Tribe. In that statement she affirmed the sale of the land by her. The Collector passed his order on 5.3.1978 dropping the proceedings upon concluding that Anandibai did not belong to Adivasi community. The property was, therefore, not taken to have been transferred by a tribal to non-tribal to attract the provisions of the Act. It may be mentioned that at the relevant time the 4 Caste Scrutiny Committee was not in existence for verification of caste certificates, it having been formed much later under the order of the Supreme Court. 5.This decision was essentially based upon the caste certificate. It will have to be seen whether the proceedings contemplated under Sections 3 and 4 of the Act could have been ultimately concluded in 1978 based upon such caste certificate. 6.It is contended by Mr.Madon on behalf of Respondent Nos.3 and 4 that this inquiry was suo motu initiated only after the two Deeds of Conveyance were executed and the property was shown to be transferred to the Petitioners. Upon such transfer, it had to be seen whether the lands were transferred by a tribal. The statement of Anandibai has been given after the conveyance on 4.8.1976. It shows the community to which she belonged, the work which she did and the fact that she was not a tribal. The caste certificate issued by the Additional Chief Metropolitan Magistrate, Bandra, Mumbai relies, inter alia, upon that statement and her Application and the Affidavit which would be similar. It also relies upon the certificate of the Special Executive Magistrate. In those years, this certificate was imperative. The issue of the certificate by the Special Executive Magistrate would necessitate a 5 presumption as to the correctness of the facts mentioned therein under Section 114(e) and (f) of the Indian Evidence Act. It could be relied upon by the Additional Chief Metropolitan Magistrate to issue the certificate of her caste. In the absence of any other procedure contemplated by law or required by law, such a certificate would be taken as evidence to prove the claim mentioned therein unless it is rebutted. The parties seeking to rebut it would have the onus to disprove what is mentioned in the certificate. None came forward at the relevant time to rebut the certificate. The Collector, who initiated the inquiry relied upon that certificate. Anandibai was, of course, absent when the order was passed. She has thereafter not filed any Appeal or Revision from that order which she was entitled to file under Sections 6 and 7 of the Act, respectively. The proceedings initiated under Section 3 of the Act were ultimately concluded by the order of the Collector dated 5.3.1978. The order became final. It would have to be seen whether this finality is upon the beneficiary of the legislation being given the opportunity to avail the legal rights thereunder. In short, it would have to be seen whether this procedure was enough to settle her rights or whether any further inquiry made under the Act can be made later and if made. What procedure would be required to be followed given that it was once 6 completed. 7.On 21.10.1984, Anandibai died after having sold and conveyed the lands under the aforesaid conveyances. On 31.3.1989, Dharma died leaving behind, inter alia, Respondent Nos.3 and 4 as well as one Shivram Gadak, Chandrakant Gadak and Kamala Gadak. 8.On 1.1.1991, the Act came to be amended by the Amendment Act, 1990. Whereas in the Act the period for making the Application for restoration of the lands of any tribal by such tribal or any suo motu inquiry by the Collector was 3 years, the Amendment Act granted period of 30 years subject to Section 7 of the Amendment Act of 1990 relating to initiation of proceedings for restoration of lands to the tribal transferor. Section 7 of the Amendment Act, 1990 runs thus:- 7.Initiation of proceedings for restoration of lands to tribal transferor. For the removal of doubt it is hereby declared that, notwithstanding anything contained in any law for the time being in force, or any judgment or decree or order of any Court, Tribunal or authority, where the Collector had not initiated suo motu proceedings or a tribal transferor had not made any 7 application during the period specified in section 36 or 36A of the said Code, or section 3 or 4 of the principal Act, as they stood prior to amendments made by this Act, for restoration of land under the provisions aforesaid, it shall be competent for the Collector to suo motu initiate any proceedings, or for the tribal transferor to make an application, under the provisions of the said Code or the principal Act, as amended by this Act, for restoration of land to the tribal transferors. 9.Consequently, for those lands where no suo motu inquiry was made or where no tribal had made an application under Section 3 or 4 of the Act, such inquiry or application could be made even though the 3-year-period from the commencement of the Act had expired but within 30-year-period from the commencement of the Act. The Amendment Act, therefore, essentially increased the period of limitation. It, however, put a rider for initiation of proceedings. The rider stands to reason. If an inquiry was already made within limitation period as prescribed earlier, there would be no need, requirement or necessity to make inquiry again. Such inquiry would even otherwise be barred by the doctrine of res judicata in general law. 8 10.Mr.Madon argued that since this was a welfare legislation, Section 7 was an enabling section and puts no bar upon the Collector to initiate suo motu inquiry or even upon the tribal to make an application though an earlier inquiry was made. Such construction is required to be tested upon reading the amended legislation as a whole. There is no provision in the Amendment Act enabling either of them to make a further application despite enhancement of the period of limitation. The rider in the form of Section 7 of the Amendment Act is essentially for removal of doubt. It clarifies that when no suo motu proceedings or applications were made earlier under Section 3 or 4 of the Act, as they stood prior to the amendment, it would be competent to make them. The purpose of the application is for restoration of lands to the tribals. The inquiry would be as to whether or not a person is a tribal. Once the person is seen not to be a tribal, there is no question of restoration of land to such person. If the person was seen not to have been a tribal prior to the Amendment Act, the Amendment Act allowed that person to be shown as a tribal even if the land was transferred and no inquiry or application was made within 3 years thereof or within 3 years of the commencement of the principal Act. In the absence of any provision for second inquiry or a further inquiry or a de novo inquiry, such inquiry cannot be read into 9 the provisions of the Act. This stands to reason and has been laid down by precedents of this Court. In the case of Bovabhai Budha Girase vs. Jirya Dajya Bhil (deceased) by legal heir Smt.Kausabai & ors., 1987 Maharashtra Law Journal 892, it was held that when an application is ultimately dismissed by the Revenue Tribunal under Section 3 of the Act, the Collector cannot thereafter exercise the power suo motu under Section 3. It was further held that the Collector could exercise suo motu power under Section 3 of the Act at any time if the tribal transferor had not made an application for restoration of the land under the Act. In that case the tribal had made an application for restoration of the land sold by him under Section 3 of the Act. The application was allowed. In Appeal the order was set aside as being barred by limitation since it was made beyond the period of 3 years. The direction for restoration of the land was set aside. The Collector thereafter acting suo motu instituted an inquiry. It was held that once the order was passed under Section 3 and in Appeal therefrom under Section 7, the power of the Collector to act suo motu did not survive. It was observed that the power of the Collector could be tested under Section 7 in Revision or under Section 9 in Appeal to the Maharashtra Revenue Tribunal. It was observed that otherwise there would be no end to uncertainty that the transferor or 10 transferee would face because of the hanging sword in the shape of the Collector s suo motu power under Section 3. Hence the Collector could exercise that power only if there was no application by the tribal in that behalf. 11.It, therefore, follows as a corollary that if an application is not made by the tribal and the Collector has exercised that power suo motu before the Amendment Act, well within the period of limitation, that inquiry is ultimately over when an order in that regard is passed and has become final. This, however, contemplates an inquiry on merits where the tribal who is the beneficiary of the legislation has had an opportunity to exercise her / his legal rights under the welfare legislation. 12.This judgment has been relied upon in the case of Manohar s/o. Daryaji Bhise & ors. vs. State of Maharashtra & ors., 2004(2) ALL MR 809 in which case half the lands transferred were resumed and restored to the tribal and the other half could not be restored because of certain Government Resolutions which were passed. Those resolutions were subsequently withdrawn by the Government. Even under those circumstances, suo motu power exercised again by the Collector was held to be without jurisdiction. In paragraph 10 of the 11 judgment, it is observed that because the power could be exercised at any time, it does not mean that it can be exercised repeatedly. Otherwise, it would be without any limits and such interpretation would result in conferral of arbitrary power. It is also observed that the Act does not empower the Collector to reopen any proceeding or to review his order as there is no provision in the Act for review. It is also observed that the first order passed attains finality, if not challenged and hence the subsequent order is without jurisdiction. 13.After the Amendment Act came into force in 1991, the Petitioners predecessor-in-title granted development rights and put the developer in possession under registered agreements. Plots have been amalgamated and sub-divided. Several buildings have been constructed on these lands. Sanctions have been obtained. Flats have been sold to flat purchasers. A Co-operative Society has been formed. The construction was almost completed by about the year 2000. 14. In this case, a fresh inquiry was directed by the Sub Divisional Officer (SDO) in a proceeding under Section 2(1) of the Act as the lands were conveyed to a non- tribal person. An order came to be passed on 26.11.2001 for making certain inquiries. The order shows names of 12 several tribals including Budhiya and Anandibai as applicants. The order shows that the notice was issued upon the interested persons to show cause as to why the land should not be restored to the tribals. The order made an observation that the legal heirs of the deceased persons (being Budhiya and Anandibai)had not produced a single document showing that they were heirs and also not produced the caste certificate showing that they were tribals. Consequently, on 26.11.2001, an order came to be passed by the SDO, Mumbai District, directing the Tahsildar, Borivali, to make heirship inquiry as also an inquiry relating to the fact of whether or not they were tribals. It was directed that if the Applicants are legal heirs of the original holders / occupants of the suit land and belonged to scheduled tribes, the possession of the suit land should be handed over to the Applicants. The Applicants were directed to submit documents showing their heirship and produce their caste certificates. 15.It may be mentioned that by the time this order was passed in 2001, the verification of the caste claims had to be done under due procedure set out by the Supreme Court. The order of the Supreme Court as the law in that behalf required the caste certificate, if any, to be verified by the Caste Scrutiny Committee under specified procedure. It was, therefore, for 13 those Applicants to produce their certificates duly verified by the Caste Scrutiny Committee as per the law then prevailing. 16.It may also be mentioned that the Applicants, who claimed to be heirs, were the children of Dharma. Dharma was the brother of Budhiya who died without leaving issues and leaving behind only his widow Anandibai. The Applicants in that application, who are Respondent Nos.3 and 4 herein and some others not parties to this Petition, claimed heirship as the heirs of Anandibai. She is not stated to have left behind any other heirs. Her estate which devolved by succession would be governed under Section 15 of the Hindu Succession Act as she died intestate. Consequently, the Applicants in that application claimed to be the heirs under Section 15(b) of the Hindu Succession Act. It is for them to prove the heirship by the relevant municipal certificates showing births and deaths to show their lineage. 17.Anandibai was shown to be belonging to be Bari community which was an OBC community. It is settled law that a person derives his status by virtue of her birth and not upon marriage. Mr.Madon rightly conceded that the caste of Budhiya may be different from that of Anandibai, but her caste would not be altered pursuant 14 to the marriage. The caste of the Applicants in that application, who are the children of Dharma, would be the same as that of their father and paternal uncle i.e. Dharma and Budhiya. It may be or may not be the same as that of Anandibai. Respondent Nos.3 and 4 herein claim to be tribals. By they showing that they were tribals, they would not be able to show ipso facto that Anandibai was a tribal. The order dated 26.11.2001 directs the Tahsildar to inquire into the tribe claim of the Applicants taken to be the heirs of Anandibai and not of Anandibai, the transferor. The order further directs that if the Applicants were the legal heirs of Budhiya, the original holder / occupant (and pursuant to intestate succession of Anandibai after Budhiya s death as holder and occupant) and if they are belonging to scheduled tribes the possession of land transferred to the Petitioners predecessor-in- title should be handed over to them. That inquiry, even if correctly instituted, is seen to have been erroneously deviated from the required procedure for such inquiry under the Act or the amended Act by the Collector / SDO. All that is to be inquired into or applied for is status of the transferor as the tribal and nothing more. If the transferor is not a tribal, her / his heirs, who claim through the transferor s husband, even if they are tribals, cannot make a legitimate claim for restoration of the lands 15 transferred by their non-tribal predecessor-in-title. Hence the order directing the Applicants to produce their documents showing their heirship may be legitimate, but the production of the certificate of the scheduled tribe of the Applicants which they are directed to produce is an erroneous order. The only certificate that can be produced, duly verified by the Caste Scrutiny Committee is the certificate of scheduled tribe of none other than Anandibai. 18.The Petitioners Constituted Attorney, who was developing the land, requested for a review of that order and to drop / close the proceedings by the SDO on 22.2.2002. He did not apply for correction of the aforesaid error. The SDO passed an order on 1.3.2002, without notice to Anandibai or her heirs dropping the proceedings on the ground that the earlier order dated 5.3.1978 barred those proceedings and the proceedings initiated in 1976 by way of a suo motu inquiry by the then Collector, could not be reopened. He observed that through oversight this issue was decided on 26.11.2001 and he took the application as having been treated to be withdrawn. 19.Respondent Nos.3 and 4 never challenged this order. Mr.Madon contended that they were not present when the order was passed by the SDO on 1.3.2002 as per the 16 directions passed on 26.11.2001. The order dated 26.11.2001 refers to the Applicants who had filed the application. The order shows the names of Budhiya and Anandibai in the title of the proceedings though the order is stated to be passed under a suo motu inquiry done under the amended Act. Consequently, Respondent Nos.3 and 4 had no knowledge of the order dated 26.11.2001. It is seen to be passed without notice to those Applicants who claimed to be the heirs of Anandibai. Mr.Madon contended that it is not even served upon those Applicants but is shown to have been sent to Anandibai, who was then deceased. The application makes no mention of Respondent Nos.3 and 4 herein. The title of the application shows the name of Budhiya and Anandibai. The address is that of one of the survey numbers conveyed to the predecessor-in-title of the Petitioners. It is not known how the order could have been served upon the parties not on record. It is directed to be served upon Budhiya and Anandibai, who are shown as the Applicants in the year 2000 when they had expired much earlier. 20.Respondent Nos.3 and 4 filed their own application for restoration of the lands under Sections 3 and 4 of the Act on 29.10.2003. That application also came to be dropped on 9.11.2004 by the order of the SDO, Mumbai Suburban District, on the ground that it was barred by 17 the principles of Res Judicata, the applications for the same inquiry having been decided on 5.3.1978 and 1.3.2002 being the initial orders of the Collector under the Act and the order of the SDO upon suo motu inquiry after the Amendment Act, respectively. Respondent Nos.3 and 4 filed an Appeal under Section 6 of the Act before the Maharashtra Revenue Tribunal against the order dated 9.11.2004 dropping the proceedings. 21.By a judgment dated 5.8.2008, the Maharashtra Revenue Tribunal has observed that though there were two earlier inquiries made suo motu and two inquiries were instituted at the instance of some interested persons and the Appellants (being Respondent Nos.3 and 4 herein) who produced the Scheduled Tribe certificates of the Scrutiny Committee showing that they were belonging to Warli community, which is the Scheduled Tribe, though Anandibai was shown as belonging to the Bari community, which is the OBC community, he has observed that no inquiry was made. He has further observed that though in the initial inquiry culminating in the order dated 5.3.1978, the Land Acquisition Officer, who held the inquiry, had jurisdiction, he had only relied upon the bare statement of Anandibai and had not verified her caste or tribe. He had not recorded the statement of Sarpanch and Police Patil and 18 not collected documentary evidence relating to the tribe of Anandibai. He has also observed about the marriage of Anandibai to person from the Warli community and the requirement of an inquiry as to whether Anandiabi belonged to a scheduled tribe since her tribe could not be changed because of her marriage. He relied upon a judgment in the case of Manohar s/o. Daryaji Bhise (supra) holding that if the first order was not challenged and had received finality, further suo motu power could not be exercised. But he observed that in this case since no efforts were made for obtaining independent evidence the observations in that case would not apply. He, therefore, concluded that detailed inquiry relating to caste or tribe of Anandibai was essential and has remanded the matter back to the SDO for inquiry and fresh order based on such inquiry. That order has been impugned in this Writ Petition. 22.He has also directed to ascertain the land covered under Mutation Entry No.1700 under which the disputed lands are stated to have been transferred to the Petitioners predecessor-in-title under the aforesaid two conveyances. The Petitioners claim that Mutation Entry No.1700 is irrelevant. The Petitioners transfers are mentioned under Mutation Entry Nos.1282 and 1365 as aforesaid. However, all that the order directs is 19 ascertainment whether the lands claimed by the Petitioners are covered by that entry for which the Petitioners would be heard. 23.The orders passed on 5.3.1978, 1.3.2002 and 9.11.2004 are all passed without the requisite inquiry. The first order relied upon the statement and the certificate produced by Anandibai at the relevant time. That was