1 WP-1012/92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1012 OF 1992 Shri. Madhukar V. Govari and ors. ..Petitioners. Vs. Shri. Mahadeo Babu Patil and ors. ..Respondents. Mr. A.J. Almedia, Advocate for the Petitioners. Mr. D.S. Sawant, Advocate for the Respondent Nos. 4 to 6. CORAM : A.S.OKA, J. DATE : 1st October, 2010. JUDGMENT :- 1 Heard the learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent Nos. 4 to 6. This writ petition arises out of orders passed by the Authorities in proceedings under Maharashtra Restoration of Lands to Scheduled Tribes Act,1974 (hereinafter referred to as the “said Act”). 2 The present petitioners are the applicants who filed an application before the Tahsildar under the provisions of the said Act for restoration of the suit land. The case made out by the petitioners in the application dated 20th June, 1980 is that there was a transfer effected in respect of the suit land in violation of the provisions of the said Act. It is the case of the petitioner that the suit land was purchased under the 2 WP-1012/92 provisions of Section 32-G of the Bombay Tenancy & Agricultural Lands Act, 1948. The petitioners sold the said land to the first respondent by sale deed dated 20th May, 1972. The Tahsildar initiated suo moto inquiry. The Tahsildar held that the petitioners were not entitled to relief of restoration. The second and third Petitioners made an appeal before the Maharashtra Revenue Tribunal against the order of Tahsildar. In the said appeal, an order of remand was passed. The proceedings were dropped by the Tahsildar after the order of remand. Against the said order, an appeal was preferred by the petitioners to the Maharashtra Revenue Tribunal. Again, there was an order of remand passed by the Maharashtra Revenue Tribunal. While passing the order of remand, the Tribunal directed the Tahsildar to hold an inquiry on the question whether the suit land was actually put to non- agricultural use on or before 6th July, 1974. On order remand, the Tahsildar by order dated 29th May,1990 directed restoration of possession of the suit lands. The first respondent challenged the said order by preferring an appeal before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal has interfered with the order of the Tahsildar and has set aside the same. 3 The first ground on which the order of theTahsildar 3 WP-1012/92 has been set aside is that while granting permission for sale of the suit land under Section 43 of the Bombay Tenancy & Agricultural Lands Act, 1948, the Sub Divisional Officer has specifically granted permission for sale of the suit land to the first respondent for dairy farming. The second ground on which the order was set aside is that the application filed by the petitioners was not within the stipulated period of limitation of 3-years. The third finding recorded by the Tribunal is that the suit land was actually put for dairy farming and for teathering the cattle prior to 6th July,1972. 4 The learned counsel appearing for the petitioners has taken the Court through the impugned Judgment and Order passed by the Tribunal. He submitted that the order of the Appellate Authority/Tribunal is based on surmises and conjectures. He submitted that even assuming that there was a permission granted by the Village Panchayat for construction of the cattle shed, one cannot come to the conclusion that merely by construction of cattle shed the suit land was put to non-agriculture use. He submitted that even assuming that the house tax was paid from 1970 onwards, that by itself could not be said to be a change of user. He pointed out that the area of the suit land is more than 2-Hectares and 44-Ares and even assuming that the finding recorded that a small part of land 4 WP-1012/92 was put to use as cattle shed is correct, it will not amount to change of user of the entire land. He invited my attention to the amended provisions of the said Act and in particular, amendment carried out by Maharashtra Act No. XIV of 1975. He pointed out that the period of limitation of 3-years provided in the original Act was extended to 30 years by the said Amendment. He submitted that in view of the said amendment, the application made by the petitioners on 20th June, 1980 cannot be held as barred by limitation. 5 The learned counsel appearing for the third to sixth respondents who are the purchasers through the first respondent have invited attention on the Maharashtra Act I of 1991. He submitted that the amendment made by the said Act is prospective and as there is no indication in the said Act I of 1991 that the amendment is retrospective which will apply to pending proceedings. even pending petitions. He placed reliance on the decision of the Apex Court in the case of T. Kaliamurthi and another Vs. Five Gori Thaikkal Wakf and ors. in [(2008) 9 S.C.C. 306]. He submitted that when the said Amendment Act I of 1991 came into force the period of limitation three years provided under the unamended Act had already expired in the facts of the present case. Relying upon what is held by the Apex Court in Paragraph-5, he submitted 5 WP-1012/92 that the application which was already barred by limitation before the said Act I of 1991 came into force cannot be held to be within limitation on the basis of provisions of the said Amendment Act. Inviting attention of the Court to several documents placed on record, he submitted that there is a finding of fact recorded by the Appellate Authority based on documentary evidence and no interference can be made with the said finding of fact in writ jurisdiction under Article 226 of the Constitution of India. On interpretation of the said Act I of 1991, he placed reliance on the case of Shyam Sunder and others Vs. Ram Kumar and another [ (2001) 8 S.C.C. 24]. He submitted that unless there is a contrary intention in the statute, the same will apply prospectively. He submitted that, in view of what is provided in Section- 7 of the Act No. I of 1991, the amendment cannot apply retrospectively and especially in this case where the period of limitation provided under the unamended Act had expired on the date of which the Maharashtra Act I of 1991 came into force. 6 I have carefully considered the submissions. The first controversy which is required to be decided is as regards the limitation provided under Section 3(1) of the said Act. Sub Section 1 of Section 3 of the said Act reads thus: 6 WP-1012/92 “3 (1) Where due to transfer- (a) the land of a Tribal-transferor is held by a non Tribal- transferee, or (b) the land acquired in exchange by a Tribal- transferor is less in value than the value of the land given in exchange, and the land so transferred is in possession of the non Tribal- transferee, and has not been put to any non-agricultural use on or before the 6th day of July 1974, then, notwithstanding anything contained in any other law for the time being in force, or any judgment, decree, order of any Court, Tribunal or authority, the Collector either suo motu at any time, or on the application of a Tribal-transferor made, [within thirty years] from the commencement of this Act shall, after making such inquiry as he thinks fit, direct that - (i) the lands of the Tribal-transferor and non Tribal-transferee so exchanged shall be restored to each other; and the Tribal transferor, or as the case may be, the non Tribal transferee shall pay, the 7 WP-1012/92 difference in value of improvements as determined under clause (a) of sub-section )4), or (ii) the land transferred otherwise than by exchange be taken from the possession of the non Tribal- transferee, and restored to the Tribal-transferor, free from all encumbrances and the Tribal-transferor shall be such transferee and other persons claiming encumbrances the amount determined under clause (b) of sub section (4): Provided that, where land is transferred by a Tribal transferor in favour of non Tribal transferee before the 6th day of July, 1974 after such transferee was rendered landless by reason of acquisition of his land for a public purpose, then only half the land so transferred shall be restored to the Tribal transferor.” Initially a period of 3- years was provided in the proviso which was substituted by a period of 30 years by the Maharashtra Act No. I of 1991. 7 In the present case, it is not in dispute that the application for restoration was made by the petitioners on 20th 8 WP-1012/92 June, 1980.As pointed out earlier, considering the date on which the suit land was sold, the application was admittedly filed after expiry of period of 3- years. 8 The effect of the amendment carried out by Maharashtra Act No. I of 1991 was considered by this Court in the case of Sakharam Bhoju Rathod Vs. State of Maharashtra and ors. [ 2004(3) Mh.L.J. 1018]. This Court has considered the effect of extension of period of limitation of 3-years to 30- years. After considering the objects and reasons of Amendment Act No. I of 1991, in Paragraph Nos. 20 to 22 of this decision, this Court held thus: “20 The Legislature after taking into consideration the difficulty faced by illiterate tribals, that for various reasons they could not have made application within the prescribed period of 3 years and that the relief which was sought to be provided by the said beneficial legislation was not available to them and with a view to making of such relief available, considered it necessary to provide for period of limitation of 30 years instead of 3 years, during which period such an 9 WP-1012/92 application for restoration of land to him could be made by the tribal transferor .From the aims and objects of the 1991 Act, it is clear that the Legislature had also intended to make such a right available to the tribals to make such an application even if the limitation had expired earlier. Section 5 and 6 of the 1991 Act substitute the period of limitation of 3 years by 30 years. 21 Section 7 of the 1991 Act provides that notwithstanding anything contained in any law for the time being in force or any judgment or decree or order of any Court or Tribunal or authority, where the Collector had not initiated suo motu proceedings or tribal transferor had not made any application during the period specified in the principal Act, as they stood prior to amendment made by this Act, for restoration of land under the provisions aforesaid, it shall be competent to the Collector to suo motu initiate any proceeding or for the tribal transferor to make an application under the provisions of 10 WP-1012/92 the said Code or principal Act as amended by this Act for restoration of land to the tribal transferors. 22 It is thus clear from Section 7 of 1991 Act that the Legislature intended to protect the rights of the tribals and also enabled them to make an application if they had not made any application within the prescribed period of three years provided by the said Act as it stood originally. The intention of the Legislature is thus very clear. It creates a right in a tribal transferor to apply for restoration of land even if he has not applied under the prescribed period of three years under the said Act as it stood then.” (underlines supplied). Thereafter in Paragraph 27 of the said decision, this Court held thus :- “27 As already discussed hereinabove, the intention of the Legislature is clear. The scheme of Sections 3 and 4 of the said Act after amendment 11 WP-1012/92 by 1991 Act provides for a tribal transferor to apply for restoration of land within the period 30 years from the commencement of the Act, i. e. 1-11-1975. It is thus, clear that even as on today,the application of the respondent No.2 would have been within limitation. In my view, the law laid down by the Apex Court in Dhannalal’ case and New India Assurance Co. Ltd. (cited supra), applied with full force to the facts of the present case. If it is held that the application of the respondent No.2 is liable to be thrown away since it was not within limitation, it will defeat the intention of the Legislature. As already pointed out hereinabove, the said Act has been amended by Act of 1991 so as to enable all such tribals to make such an application even if the limitation had expired earlier” (underlines supplied). 9 The learned counsel appearing for the 3rd to 6th respondents submitted that the learned Single Judge in the said decision in the case of Sakharam has relied upon the case of New India Assurance Co. Ltd. Vs. C. Padma and another [(2003) 7 SCC 713] which will not apply to the present case. He submitted that under the provisions of the 12 WP-1012/92 Motor Vehicles Act, 1988 initially the period of limitation was provided and the provision relating to the period of limitation was deleted by subsequent Act of Parliament of the year 1994. He submitted that the amending Act specifically provided for retrospective operation of the amendment and in the context of the provisions of the Amending Act, the Apex Court has taken a particular view. He submitted that the decision of the Apex Court in the case of T. Kaliamurthi and anr. (supra) was not brought to the notice of the learned Single Judge in the case of Sakaram (supra). 10 For dealing with this submission, it is necessary to deal with what is held by the Apex Court in the case of T. Kaliamurthi and another. In the case before the Apex Court, the suit was for possession of the immovable property. The suit was contested on the ground that the same was barred by limitation under Article-134-B of the Limitation Act,1908. Though the Trial Court recorded a finding on the said issue and held that the suit was barred by limitation, the Appellate Court interfered the finding and held that the suit was filed within the stipulated period of limitation. A second appeal were preferred by the petitioner before the High Court. The contention raised in the second appeal was that the suit was barred by limitation provided under the Limitation Act, 1908 13 WP-1012/92 and the lapse of period of limitation cannot be revived under the provisions of the Limitation Act, 1963. Before the High Court, the plaintiffs made a submission relying upon the Section 107 of the Wakf Act, 1995 (hereinafter referred to as the “said Act” of 1995) which came into force from 1st January, 1996 i. e. during the pendency of the second appeal. Section 107 of the said Act of 1995 provided that the provisions of the Limitation Act were not applicable to any suit for possession of the immovable property of the Wakf. The Apex Court also considered the Section 112 of the said Act of 1995 which incorporated a saving clause. After considering the provisions of the said Act of 1995, the Apex Court considered the question whether Section 107 of the said Act of 1995 had retrospective effect. In Paragraph 40, the Apex Court held thus :- “40. In this background, let us now see whether this section has any retrospective effect. It is well settled that no statue shall be construed to have a retrospective operation until its language is such that would require such conclusion. The exception to this rule is enactments dealing with procedure. This would mean that the law of limitation, being a procedural law, is retrospective in operation in the sense that it will also apply to proceedings pending 14 WP-1012/92 at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right.” 11 In fact, what is held by the Apex Court is that no statute shall be construed to have a retrospective operation until its language is such that would require such conclusion. The exception to this rule is the enactments dealing with procedure. The Apex Court, thereafter, held that this would mean that the law of limitation, being a procedural law, is retrospective in operation in the sense that it will also apply to proceedings pending at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. Thus after holding the statute regarding limitation will apply to pending proceedings, an exception 15 WP-1012/92 was carved out by the Apex Court by observing that, where the right of suit is barred by law of limitation in force before the new provision comes into operation and a vested right has accrued to another, the new provision cannot revive the barred right. 12 In this context, a reference will have to be made of Section 7 of Maharashtra Act I of 1991. Section 7 reads thus:- : “7 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 application during the period specified in section 36 and 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 16 WP-1012/92 restoration of land to the tribal transferors.” 13 The purport of Section-7 is that where Tribal has not made any application during the period specified in Sections 3 and 4 of the of the said Act as stood prior to Amendment made by the Act No. I of 1991, it shall be competent that Collector to initiate suo motu proceeding or for Tribunal transferor to make an application the provisions of the said Code or the principal Act, as amended by the said Act of I of 1991, for restoration of the land. Even going by the submission of the contesting respondents that the application made by the petitioner was barred by limitation as the the transfer had been effected on 20th May, 1972 when the Tahsildar decided the proceeding after remand and the Appellate Authority decided the appeal, the period of 30 years had not expired. Thus, in view of Section 7 of the Maharashtra Act I of 1991 and the law laid in the case of Sakharam (supra) it cannot be held that the application made by the petitioners was barred by limitation. 14 Now the second point which survives for consideration is whether the first respondent had actually put the suit land for non-agricultural use on or before 6th July, 1974. 17 WP-1012/92 15 At this stage, it must be borne in mind that the area of the suit land is 2-Hectares and 44-Ares. There is no dispute between the parties that an order of conversion of user under Section 44 of the Maharashtra Land Revenue Code, 1966 was not obtained prior to 6th July,1974. In the light of this factual position, the finding of fact recorded by the Appellate Authority will have to be analyzed. The first finding recorded by the Appellate Authority is that before the execution of the sale deed, a permission for sale was granted under Section 43 of the said Act of 1948 for the purpose of dairy farming. This fact itself is not sufficient to prove that on or before 6th July, 1974, the entire suit land or a substantial portion thereof was put to non agricultural use. The second finding is that the first respondent made an application on 2nd January 1973 to the Village Panchayat for grant of permission and a permission was granted by the Village Panchayat on 28th January, 1973 for construction of a house and a cattle shed on the basis of an application dated 2nd January, 1973. The Appellate Authority has made a reference to a certificate dated 15th April, 1974. Perusal of the said certificate shows that the application was made on 11th December, 1973. After considering the documents, the Appellate Authority observed that a cattle shed was constructed during the year 1973-74 and house tax 18 WP-1012/92 was levied in respect of the same for the year 1973-74 onwards. The last finding recorded on this aspect is that a witness deposed that there was a cattle shed constructed by the first respondent on the said land in which buffalos were kept. Going by the finding of facts recorded by the Appellate Court, what is brought on record is that a construction of small house and a cattle shed was made on a large area of 2- Hectares and 44-Ares. By construction of two structures, at the most it can be said that a small portion of the land was put to non agricultural use but not the major part of the land. There is no finding that dominant user of the land was changed to non agriculture. 16 Considering the intention of the legislature, the exception carved out will apply only when the entire land was shown to be put to non agricultural use on or before 6th July, 1974 or atleast it must be shown that the dominant user was changed before the said date. Taking the findings of the Appellate Authorities as it is, it is impossible to conclude that the dominant use of the Agricultural Land admeasuring 2- Hectares and 44-Ares was changed to non agricultural on or before 6th July, 1974. The finding of the Tahsildar that till 6th July, 1974 permission for non agriculture use was not obtained has not been disturbed by the Appellate Authority. Moreover, 19 WP-1012/92 another finding of the Tahsildar is that the 7/12 extracts of the land show in the cultivation column the entries of paddy, grass and mango trees. Thus, taking the findings of fact of the Appellate Authority as it is, the order of the Appellate authority cannot be sustained and the same deserves to be quashed and set aside. Hence, writ petition must succeed. Hence, I pass the following order. ORDER a) The order of the Appellate Authority dated 16th September, 1991 is quashed and set aside and the order dated 29th May,1990 passed by the Tahsildar is restored. b) Rule is made absolute in the above terms with no order as to costs. JUDGE