wp3132.91 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3132 OF 1991 Hari Vishwanath Mali (Died through L.Rs.) 1A) Ramesh s/o Hari Mali, Age 40 years, Occ. Agri, 1-B Smt. Sundrabai w/o Hari Mali, Age 65 years, Occ. Household, 1C) Bhausaheb s/o Hari Mali, Age 45 years, Occ. Agri 1D) Sau. Seetabai w/o Machindra Barde, Age 42 yeas, Occ. Household, 1E) Raosaheb s/o Haribhau Mali, Age 50 years, Occ. Agri All R/o. Karegaon, Tq. Shrirampur District Ahmednagar ...Petitioners Versus 1 Ashok Sajaba Jadhav, Adult 2 Chaabubai Sajaba Jadhav, Adult 3 Thakubai Namdeo Bhigare Adult, All R/o. Manori, Tq. Rahuri, District Ahmednagar ...Respondents ..... Mr. R.N. Dhorde with Mr. R.L. Kute, advocates for the petitioner Mr. S.P. Sapkal h/f Mr. V.D. Sapkal, AGP for respondent No. 2. ..... wp3132.91 -2- CORAM: S.V. GANGAPURWALA, J. DATED: 5TH AUGUST, 2011 JUDGMENT:- 1 The land bearing Gat No. 404 admeasuring 45 Are situated at village Manori, Tq. Rahuri, District Ahmednagar was originally owned by the tribal i.e. present respondent No.1 Ashok. The said land was sold by tribal to non tribal i.e. Thakubai vide registered sale deed dated 11.5.1984. The present petitioner purchased the said land from Thakubai vide registered sale deed dated 17.10.1985. Thereafter on 2.1.1990, the present respondent Nos. 1 and 2 filed an application before the Tahsildar, Rahuri purportedly invoking Section 36-A of the Maharashtra Land Revenue Code 1966 (hereinafter for the sake of brevity referred to as “the Code”), contending that the initial transaction between the present respondent No.1 and Thakubai itself is illegal, bad in law and barred in view of the provisions of Section 36-A of the Code and the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act 1975. The Tahsildar, vide his judgment dated 31.1.1991 allowed the said application. The present petitioner preferred appeal before the Maharashtra Revenue Tribunal, Pune. The Tribunal also dismissed the said appeal. Aggrieved thereby, the instant writ petition is filed. wp3132.91 -3- 2 Shri Dhorde, learned counsel for the petitioner submits that the application filed by respondent Nos. 1 and 2 on 2.1.1990 was barred by limitation. The limitation prescribed for filing such application is three years. As the application was filed after six years the same was not maintainable, the Tahsildar could not have entertained the said application. Learned counsel further contends that the petitioner is also tribal though initially land was sold to non tribal but thereafter it has again been purchased by the tribal and so the provisions of Section 36-A of the Code would not apply. The learned counsel further contends that even otherwise the object and purpose of the provisions is that the tribal should not be deprived of the land. If the order is to be sustained then it is again the tribal who would be deprived of the land as the petitioner is tribal. It is further contended by the learned counsel that taking into consideration the object and purpose of the statute, the present respondents cannot be said to be entitled to the said land. Even according to the respondents, the respondents had sold this property in the year 1984 to Thakubai to raise the amount to purchase the other land. The respondents as such purchased the other land on the same day from the consideration obtained by selling the present land Gat No.404 and as such it cannot be said that the respondents are landless and therefore, the respondents would not be entitled to any equitable relief. wp3132.91 -4- Learned counsel further contends that the present respondents in equity would not be entitled for any relief as they had suppressed the fact that the present property was sold for purchase of another property and for the said purpose, learned counsel relies on the judgment of the Apex Court in the case of Dr. Vijay Kumar Kathuria Vs. State of Haryana and others, reported in AIR 1983 SC 622. On all these counts, the learned counsel states that the impugned orders are erroneous. 3 Shri Sapkal, learned counsel for respondents contends that during pendency of the application before the Tahsildar, an amendment was effected to Section 36-A of the Code and the limitation period was enhanced to 30 years and as such the respondents would be entitled for the benefit of the same. According to the learned counsel, the Legislation is beneficial Legislation and the amendment extending the period of limitation would be interpreted in a manner to subserve the cause. Learned counsel relies on the judgment of the learned Single Judge of this Court in the case of Sakharam Bhoju Rathod Vs. State of Maharashtra and others, reported in 2005 (1) Bom.C.R. 386 and the judgment of the Apex Court in the case of New India Assurance Company Vs. C. Padma & Anr, reported in 2003 (4) ALL M.R. 1148 (S.C.). The learned wp3132.91 -5- counsel further contends that whether at present the land is in possession of the tribal or not is not the material issue but if the initial transaction itself is illegal, then further transaction is not safeguarded. 4 The fact that the present respondent is tribal and the said land was belonging to the tribal is not disputed. It is also not disputed that the first sale by the present respondent No.1 in favour of Thakubai was sale to non tribal. The application was filed on 2.1.1990 and the same was decided by the Tahsildar on 31.1.1991. Section 36-A of the Code was amended w.e.f. 1.1.1991. As such, when the application under Section 36-A of the Code was pending the legislation amended the provision thereby enhancing the limitation period to file such application from 3 years to 30 years, the moot question would be whether the said amended period of limitation would be applicable to the proceedings, which were initiated prior to the said amendment. It cannot be lost sight of the fact that the Legislation providing restoration of lands to the Tribal is a social welfare legislation. The beneficial legislation is meant to protect the right of the tribal. The learned Single Judge of this Court in the case of Sakharam (referred supra) relying on the judgment of the Apex Court in the case of Madhaorao Rajeshwar Deshpande Vs. Shankar Singh Madhao Singh, reported in 1971 Mh.L.J. 4 has held that the amended provisions extending period of limitation would apply even to those proceedings which are filed prior wp3132.91 -6- to the amendment. In view of the same, it will have to be held that the application filed on 2.1.1990 was within limitation. 5 Even if it is assumed that the petitioner is tribal, still as the initial transaction was between the tribal and non tribal, the petitioner would not get protection under law. The provisions of Section 36-A of the Code bars any transfer in favour of non tribal except with the previous sanction of the authority. Even there is no provision of post facto sanction. In such circumstances, when the initial transaction itself was illegal and bad in law, the subsequent transaction will have no legal sanctity and will not be recognized by law. 6 The contention that the respondents had sold the land to purchase other land and has used the consideration of the said sale transaction for the purpose of purchasing other land, therefore, the respondents would not be entitled for the benefit of the provisions of Restoration Act so also Section 36-A of the Code cannot be countenance as the statute nowhere prescribes for saving the transaction on any count. There is blanket bar to enter into any transaction by the tribal in favour of the non tribal except with the sanction of the authority. It does not protect the transaction even if it is shown that the tribal has benefited from such sale. In absence of such provisions the said argument of the learned counsel for the petitioner wp3132.91 -7- also cannot be considered, as the transaction itself was barred under the statute and as such the question of applying the principles of equity does not arise. 7 In view of the above, the writ petition is dismissed. Rule is discharged. However, with no order as to costs. 8 At this stage, learned counsel for the petitioners requests for continuing the interim relief granted earlier for a period of four weeks from today. Taking into account the fact that the interim relief was in operation during pendency of the writ petition, the interim relief granted on 1.10.1991 is continued for further period of four weeks from today. *****