1 W.P. No.1999 of 1991. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1999 OF 1991. Gondu Ramu Pandit, deceased through L.heir Dr. J.G. Pandit, deceased by his legal heirs: 1-A) Rahul Jawaharlal Pandit, age 35 yrs. Occu. Agril. r/o at & post Kochur (Khurd), Rq. Raver, Dist.Jalgaon. 1-B) Sau. Indira Balkrishna Mohane, age 50 yrs. Occu. Household, r/o c/o Dr. B.R. Mohane, A-87, Highway Apartment, Sion, Mumbai -22. 1-C) Sau Surekha Sahebrao Patil, age 45 years, occu. Household, R/o C/o S.N. Patil, New Super D-17/3, Bhusawal Thermal Power Station, at post Deepnagar, Tq. Bhusawal, Dist. Jalgaon. 1-D) Smt. Mandodari Jawaharlal Pandit, age 65 years, occu. Household, r/o C/o Rahul J. Pandit, at post Kochur (Khurd), Tq. Raver, Dist. Jalgaon. .. PETITIONERS. VERSUS 1) Hasan Nathu Tadvi 2) Zipru Lalkha Tadvi, deceased by his L.Rs. a) Tahara Zipru Tadvi etc. 3) Sardar Ughadu Tadvi, 2 W.P. No.1999 of 1991. deceased by his heirs: a) Bismilla Sardar Tadvi etc. 4) Amir Dagadu Tadvi, deceased by his heirs a) Daut Amir Tadvi etc. 5) Ramjan Mahitap Tadvi, all residing at Kalmode, Taluka Raver,District Jalgaon. 6) The Member of Maharashtra Revenue Tribunal (formal party). 7) The State of Maharashtra. .. RESPONDENTS. ... Shri V.T. Chaudhari, Advocate for Petitioners. Smt. V.A. Shinde, Advocate for R.No.7. Shri A.G. Talhar, Advocate for respondents (absent). ... CORAM : S.S. SHINDE,J. 1st December, 2010. ORAL JUDGMENT: 1. This writ petition is directed against the judgment and order dated 26th October, 1990 passed by the Maharashtra Revenue Tribunal, Jalgaon in REV.TRB.48 OF 1989. 2. The facts of the case which are 3 W.P. No.1999 of 1991. incorporated in the writ petition are as under: The suit land in Survey No.44/1 and 44/2 admeasuring 1 hector and 17 R. assess as Rs.9-31 paise, situated at village Kochur, taluka Raver, District Jalgaon. The suit land was previously held and owned by some of the respondents and that the deceased Gundu Ramu Pandit had purchased the suit land from the respondents in the year, 1963, for a consideration of Rs.7000/- under a registered sale deed and from the said consideration the respondents bought another big piece of land. It is further case of the petitioner that when his father purchased the suit land, it was barren, dry land and that he himself and his father spent more than Rs.20,000/- and 4 W.P. No.1999 of 1991. converted the dry land into a Bagayat land. 3. The Assistant Collector, Jalgaon Division, Jalgaon started a suo motu enquiry under Section 3 of the Maharashtra Restoration of Land to Scheduled Tribes Act, 1974 (hereinafter referred to as the Restoration Act). It is the case of the petitioner that the petitioner challenged the constitutional validity of the Restoration Act by way of filing writ petition before this Court and stay was granted to the further proceedings before the Assistant Collector, Jalgaon Division, Jalgaon. It is further case of the petitioner that the validity of the Restoration Act was upheld by the Surpeme Court in Lingappa’s case and thereafter, stay granted by this Court was effected 5 W.P. No.1999 of 1991. and further proceedings were directed to be started. It is further case of the petitioner that in the mean while there was amendment to the Restoration Act and the definition of Collector was enlarged and Tahsildar was also empowered to conduct the proceedings under the Restoration Act. Thereafter the matter was transferred to the Tahsildar, Raver, which was numbered as 112 of 1975 and after recording the statements of both the parties, the Tahsildar passed order on 30.4.1986 and allowed the claim of the respondents and further directed that the suit land may be restored to the respondents. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Tahsildar, Raver, the petitioner preferred an appeal being Appeal No.REV-TRB-86 OF 1986, before the 6 W.P. No.1999 of 1991. Maharashtra Revenue Tribunal, Bombay. The Maharashtra Revenue Tribunal allowed the said appeal and remanded the matter to the Sub Divisional Officer, Jalgaon for holding fresh enquiry. After remand, the Sub Divisional Officer recorded statement of the respondent Hasan Nathu Tadvi and the statement of the petitioner and thereafter came to the conclusion that though the respondents are following the custom, usages of Muslims and they are known as Tadvi Pathan and Tadvi Musalman, they are in fact tribal and therefore, they are entitled for restoration of the suit land. 4. Aggrieved by the judgment and order passed by the Sub Divisional Officer dated 17th June, 1989 in Adivasi Case No.17 of 1987, the petitioner preferred an appeal under Section 6 of the Restoration Act 7 W.P. No.1999 of 1991. being Appeal No.REV.TRB.48 OF 1989 before the Maharashtra Revenue Tribunal, Bombay. It is the contention of the petitioner that though the Maharashtra Revenue Tribunal has accepted the contention of the petitioner, instead of allowing the appeal, remanded the matter to the Sub Divisional Officer, Jalgaon. Hence, this writ petition. 5. The learned Counsel for the petitioner invited my attention to the finding recorded by the Maharashtra Revenue Tribunal and submitted that the contentions which were raised by the petitioners before the Maharashtra Revenue Tribunal have been accepted. It is further submitted that the respondents/applicants belong to Tadvi Muslim / Tadvi Pathan community and the 8 W.P. No.1999 of 1991. said community is or the caste is not recognized as a tribal community. The learned Counsel for the petitioner also invited my attention to the circular vide No.CBC-1684/309/K-11 dated 24th April, 1985 in which, it is specifically mentioned that Muslim Tadvis are not tribal. It is the case of the petitioner that though the circular was brought to the notice of the Maharashtra Revenue Tribunal, it did not discuss about the said circular. It is further submitted that copy of the caste certificate which was produced by the respondents before the Sub Divisional Officer, the Sub Divisional Officer should not have taken into consideration the said caste certificate since no original certificate was produced before the Sub Divisional Officer. Though the Maharashtra Revenue Tribunal has held in 9 W.P. No.1999 of 1991. favour of the petitioner that respondents have not produced original caste certificate, the Maharashtra Revenue Tribunal has remanded the matter back to the authority. According to the learned Counsel for the petitioner, when the findings are recorded in favour of the petitioner, the appeal should have been allowed by the Maharashtra Revenue Tribunal. He invited my attention to the other grounds taken in the petition and submitted that when the contentions of the petitioner are accepted, there was no option for the Maharashtra Revenue Tribunal than to allow the appeal. However, the Maharashtra Revenue Tribunal remanded the matter back to the Sub Divisional Officer, though it was not warranted. The learned Counsel, therefore, submitted that the writ petition deserves 10 W.P. No.1999 of 1991. to be allowed. 6. On the other hand, the learned A.G.P. appearing for the respondent authority invited my attention to the findings recorded by the Maharashtra Revenue Tribunal to the effect that some of the Legal Representatives of the respondents were not brought on record and also the Sub Divisional Officer while passing order, did not take into consideration the mandate of section 3(3) of the Restoration Act to the effect that no undertaking was taken from the tribal. Therefore, the learned A.G.P. would submit that no interference is warranted in the judgment and order of the Maharashtra Revenue Tribunal. 7. With the assistance of the learned 11 W.P. No.1999 of 1991. Counsel for the petitioner, I have perused the findings recorded by the Maharashtra Revenue Tribunal. In para No.6, the Maharashtra Revenue Tribunal has observed that some of the Legal Representatives of the respondents before the Sub Divisional Officer were not brought on record. It is further observed that there are some other persons who are legal representatives of the deceased respondent. However, the Sub Divisional Officer did not care to issue notice to the legal heirs of the deceased respondents bringing their names on record. There are also observations about the operative part of the order passed by the Sub Divisional Officer in para no.6 of the judgment. The Maharashtra Revenue Tribunal in paragraph 7 has observed that the provisions of section 3(3) of the Restoration Act are mandatory and unless 12 W.P. No.1999 of 1991. the undertaking is taken the order under section 3(1) cannot be passed. In paragraph 8 the Maharashtra Revenue Tribunal has also observed that the authority has failed to consider the judgment of this Court reported in 1984 Mh.L.J. 432 wherein this Court has observed that even assuming that the tribals have converted into another religion, it is to be found out whether after conversion they have been following the tribal way of life. The Sub Divisional Officer did not make any detail enquiry as to whether the respondents were following the tribal way of life. Therefore, in the light of observations in paragraph 6,7 and 8 of the judgment, the Maharashtra Revenue Tribunal felt that the matter is required to be remanded back to the Sub Divisional Officer, Jalgaon for 13 W.P. No.1999 of 1991. fresh consideration. 8. It is true that so far as the findings which are recorded by the Maharashtra Revenue Tribunal about the caste certificate produced by the respondents are concerned, it is observed that the Sub Divisional Officer has accepted the said caste certificate though the original was not produced before the Sub Divisional Officer. Therefore, the Maharashtra Revenue Tribunal reached to the findings that it was not permissible for the Sub Divisional Officer to place reliance on the copies of the caste certificates in absence of original certificate on record. Therefore, to that extent, the findings recorded by the Maharashtra Revenue Tribunal are in favour of the petitioner. However, so far bringing of Legal 14 W.P. No.1999 of 1991. Representatives of the deceased respondents on record, the sub Divisional Officer did not take care and all Legal Representatives of the respondents were not brought on record. The provisions of section 3(3) of the Restoration Act were not followed, which according to the Maharashtra Revenue Tribunal, were mandatory before passing any order under Section 3(1) of the Restoration Act. That apart, the Maharashtra Revenue Tribunal has also reached to the conclusion that the Sub Divisional Officer was supposed to consider the effect of the tribals’ conversion into another religion and after conversion, whether they were following the tribal way of life. Therefore, in my opinion, there was no way out for the Maharashtra Revenue Tribunal but to remand the matter back to the Sub Divisional 15 W.P. No.1999 of 1991. Officer for fresh consideration. Therefore, possible view is taken by the Maharashtra Revenue Tribunal. Hence, no case is made out for interference in the impugned judgment and order of the Maharashtra Revenue Tribunal. 9. In the result, writ petition stands dismissed. Interim relief, if any, stands vacated. Rule stands discharged. [ S.S. SHINDE ] JUDGE. ... PLK/*