1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 118 OF 1983 Tula Sujendra Tula Kanak Sundaram .. .. Appellant (Orig. Defendant) Versus 1. Roasadeb Suryabhan Solunke deceased through L. R.s 1/A Sandesh s/o Raosaheb Solanke, Age : 48 Years, Occu. : Agriculture, R/o Nanded Co-op. Housing Society, Nanded, Tq. & Dist. Nanded. 1/B Rajkumar s/o Raosaheb Solanke, Age : 46 Years, Occu. : Agri., R/o as above. 2. Suresh Suryabhan Solunke. .. .. Respondents (Orig. Plaintiffs) Shri S. P. Deshmukh, Advocate for the Appellant. Shri Pravin Mandalik, Senior Advocate for the Respondent No. 2. 2 CORAM : K. U. CHANDIWAL, J. DATE : 22ND JUNE, 2009. ORAL JUDGMENT : 1. The concurrent finding recorded against the defendant is subject of challenge in the second appeal. 2. On 10.08.1983 the appeal was admitted on ground No. 5, 7, 9 and 10 mentioned below : (5) The lower Court ought to have held that the State of Maharashtra is necessary party to the suit and as such the suit is bad for non joinder of necessary parties. (7) The lower Court ought to have held that the Civil Court has no jurisdiction to entertain and decide this suit. (9) The lower Courts have committed an error of law in arrogating themselves the powers of Appellate Court over the judgment of Revenue Court. (10) The Courts below appear to be oblivious that the purpose of the suit is to challenge the decisions given by the Revenue Authorities under section 36-A of the Maharashtra Land Revenue Code. 3. It is not in dispute that appellant in the capacity as owner sold 3 certain agricultural properties to the respondent (Original plaintiff) by receiving consideration. It is subsequent to such sale, the seller appellant herein on 12th October 1979 obtained a caste certificate (Exhbit 16) from the Tahsildar/Taluka Executive Magistrate Nanded declaring appellant to be of Munerwalu caste which is recognized as Schedule Tribe. There was prohibition on alienation of land by a tribal person to non tribal person under the Maharashtra Land Revenue Code (for short "M. L. R. Code"). The certification dated 12.10.1979 by virtue of notification had the retrospective effect from 1974 which prohibited alienation of property of Triabls. It was in this scenario on 18th January, 1980 the appellant moved to Tahsildar under Section 36 (3) of M. L. R. Code for declaration that the sale deed executed by him form a contravention of statutory provision and he should be restored in possession of the land. The learned Tahsildar Nanded has observed that, survey No. 3 should be restored to the appellant, while survey No. 28 was allowed to be retained by the respondent (Purchaser of plaintiff) by order dated 06th October 1980. 4. The plaintiff having realized the difficulties due to caste certificate dated 12th October 1979 (Exh. 16) filed a suit for declaration that the caste certificate issued in favour of appellant/original defendant is null and void and it confers no right on the appellant. The Courts on assessment of the evidence concurred with the plaintiff declaring the certificate to be null and void and the appellant was restrained from 4 obtaining possession of the suit land, in pursuant of judgment and order passed by Tahsildar Nanded in file No. 1980/ADW/NDD/CR-127 dated 11th January, 1982 or in pursuant of any judgment or order passed by the appellate authority from the said judgment. As stated earlier appeal is dismissed by order dated 21st June, 1983. 5. Section 36(A), (B) and (C) of M. L. R. Code needs consideration as quoted hereinbelow : 36. ....... 36A. Restrictions on transfer of occupancies by Tribals :- (1) Notwithstanding anything contained in sub- section (1) of Section 36, no occupancy of a tribal shall, after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, be transferred in favour of any non-tribal by way of sale (including sale in execution of a decree of a Civil Court or an award or order of any Tribunal or Authority), gift, exchange, mortgage, lease or otherwise except on the application of such non-tribal and except with the previous sanction - (a) in the case of a lease, or mortgage for a period not exceeding 5 years, of the Collector ; and (b) in all other cases, of the Collector with the previous approval of the State Government : Provided that, no such sanction shall be accorded by the Collector unless he is satisfied that no tribal residing in the village in which the occupancy is situate or within five 5 kilometres thereof is prepared to take the occupancy from the owner on lease, mortgage or by sale or otherwise. (2) The previous sanction of the Collector may be given in such circumstances and subject to such conditions as may be prescribed. (3) On the expiry of the period of the lease or, as the case may be, of the mortgage, the Collector may, notwithstanding anything contained in any law for the time being in force, or any decree or order of any court or award or order of any Tribunal or Authority, either suo motu or on application made by the tribal in that behalf restore possession of the occupancy to the tribal. (4) Where, on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, it is noticed that any occupancy has been transferred in contravention of sub-section (1), [the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu or on an application made by any person interested in such occupancy, within thirty years] from the date of the transfer of occupancy hold an inquiry in the prescribed manner and decide the matter. (5) Where the Collector decides that any transfer of occupancy has been made in contravention of sub-section (1), he shall declare the transfer to be in valid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government free of all encumbrances and shall be disposed of in such manner as the State Government may, from time to time direct. (6) Where an occupancy vested in the State Government under sub-section (5) is to be disposed of, the Collector shall give notice in writing to the tribal-transferor requiring him to state within 90 days from the date of receipt of such notice whether or not he is willing to purchase the land. If such tribal-transferor agrees to purchase the 6 occupancy, then the occupancy may be granted to him if he pays the prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such tribal-transferor, whether as owner or tenant, does not as far as possible exceed an economic holding. [36-B.Damages for use and occupation of occupancies in certain cases :- A non-tribal who after the occupancy is ordered to be restored [under either of the provisos] [to sub-section (3) of Section 36 or after the occupancy is vested in the State Government under sub- section (3A) of Section 36 or under sub-section (5) of Section 36A continues to be in possession of the occupancy, then the non tribal shall pay to the tribal in the former case, an to the State Government in the latter case, for the period from the year (following the year in which the occupancy is or is ordered to be restored to the tribal or is vested in the State Government as aforesaid) till possession of the occupancy is given to the Tribal or the State Government, such amount for the use and occupancy of the occupancy as the Collector may fix in the prescribed manner.] [36-C. Bar of jurisdiction of Civil Court or authority :- (1) No Civil Court shall have jurisdiction to settle, decide or deal, with any question which is by or under Section 36, 36A, or 36B required to be settled, decide or dealt with by the Collector. (2) No Civil Court or authority shall entertain an appeal or application against an order of the Collector under Section 36, 36A or 36B unless the appellant or applicant deposit such security as in the opinion of the Court or authority is adequate.] 7 6. The plaintiff may be correct in contemplating that obtaining the certificate by appellant herein is contrary to the settled position of law and such certificate is not issued properly by following the procedure required under the Law. The mist in the matter does not stop here the order of learned Tahsildar/Executive Maginstrate, issuing certificate was with a message to provide an appeal for aggrieved party i. e. plaintiff. It is a matter of record, the plaintiff had preferred such an appeal, but he lost in the appeal. The plaintiff has further remedies before the Revenue Court which he did not accede and prefer. He straightway rushed to the Civil Court. 7. There was a Government circular dated 20th May, 1963 clarifying that any person aggrieved by issuance of caste certificate, shall challenge the same before District Magistrate. It may be that the plaintiff was challenging validity of the certificate itself, however, even if validity of certificate was at stake, the in built procedure under Section 36 (A), (B) and (C) when contemplate efficacious remedies to plaintiff to seek redressal before the Revenue Court, it was open for the plaintiff to exhaust it. 8. The position of law is more clearly highlighted in the matter of S. Swvigaradoss v Zonal Manager, F.C.I. (1996) 3 SCC 100 and also in the judgment of State of Tamil Nadu v. A Turusamy (1997 S.C. 8 1199). The Hon'ble Lordships have observed, caste certificate or cancellation thereof or issuance thereof being under the provisions of Article 341 and 342 of the Constitution, is conclusive subject to an amendment by Parliament under Article 341(2) and 342(2). It is observed, " by necessary implication, jurisdiction of civil Court to take cognizance of and give a declaration of caste of party stands prohibited". 10. In an identical matter of issuance of caste certificate, this court in Pralhad Banduji Lodhi Vs. Collector and District Magistrate {2001(3) Mh. L. J. 812}, has held that in view of judgment of Hon'ble Apex Court in the matter of Madhuri Patil Vs. Additional Commissioner, Tribal Development (AIR 1995 SC 94), the decision of the committee has been made final and conclusive subject to the provisions of Article 226 of the Constitution, the Civil Court has no jurisdiction to entertain and try the suit in question. This Court has taken recourse to the judgment in the matter of Dr. Baliram Waman Hiray v. Mr. Justice B. Lentin (AIR 1988 S.C. 2267), Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva (AIR 1959 S.C. 577), Assistant Collector of Central Excise Vs. Dunlop India Ltd. (AIR 1985 S. C. 330). The Court also cannot be too oblivious to the judgment in the matter of Anil Kumar Neotia v. Union of India (AIR 1988 S.C. 1353). Even if there is illegality, in issuance of caste 9 certificate, the remedies are in built as stated above which the plaintiff ought to have exhausted and having exhausted at one stage, there was no justification warranted to rush to the Civil Court. There were no grounds available to by-pass the existing exhaustive remedy available under M. L. R. Code. 10. The grounds formulated referred hereinabove, will have to be answered that State of Maharashtra was necessary party to the suit. Civil Court has no jurisdiction to entertain and decide the suit. Both Courts have apparently committed an error in derogating themselves the powers of appellate Court over the judgment of Revenue Court while passing order and particularly even setting aside order of the learned Tahsildar dated 11.01.1982 or even judgment passed by the appellate authority. The Courts apparently failed to consider that the revenue authorities having jurisdiction to decide the validity and effect of transaction with an non tribal could necessarily be clothed with the authority and power to decide all questions arising therein including the question of issuance of caste certificate of the appellant. The competency of the jurisdiction of the revenue authorities, has been wrongly dealt with. In the above situation appeal succeeds. 10 O R D E R The judgment and order dated 31st March 1983 in R.C.S. No. 243 of 1982 and the judgment and order dated 21st June, 1983 in Regular Civil Appeal No. 103 of 1983 is set aside. No costs. Heard both the counsels. The appellant is at liberty to exhaust his available remedies for which the order under challenge shall not be given effect up to 13th January, 2010. [ K. U. CHANDIWAL, ] JUDGE bsb/June09/SA 118.83