1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1623 OF 1994 Bajirao Jivram Patil, Age Major, Occu. Agriculturist, R/o. Adgaon, Tq. Yawal, Dist. Jalgaon. ....Petitioner. Versus 1. Gulab Supadu Tadavi, deceased heir Maharu Gulab Tadvi, Age Major, Occu. Labourer, R/o. Adgaon, Tq. Yawal, Dist. Jalgaon. 2. Awachit Dalpat Patil, Age Major, Occu. Agriculturist, R/o. Adgaon, Tq. Yawal, Dist. Jalgaon. (Abated as per Court's order dated 31.3.2008). 3. The Commissioner (Upper Ayukta) Nasik Division, Nasik. 4. The State of Maharashtra 5. The Tahsildar, Yawal, Tq. Yawal, Dist. Jalgaon. ....Respondents. Shri. V.T. Chaudhary, Advocate for petitioner. Shri. N.L. Chaudhary, Advocate for respondent Nos. 1. Shri. D.R. Kale, A.G.P. for State. CORAM : R.K. DESHPANDE, J. DATE : 17th June 2010. ORAL JUDGMENT : 1. This writ petition challenges the order dated 11.5.1994 passed by the learned Additional Commissioner, Nasik Division, Nasik under 2 section 7 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as "the said Act"). The learned Additional Commissioner has directed to present petitioner to restore the land to respondent Nos. 1 and 2 in terms of the provisions of section 7 of the said Act. 2. The facts in brief leading to the case are as under :- The dispute pertains to land Survey No. 11/1 admeasuring 2 H. 96 R. assessed at Rs. 2.00 of village Kholpot, Tal. Yawal, Dist. Jalgaon. It is not in dispute that the original owner of the land was one Gulab Sapadu Tadvi. One Rupchand Chindu Patil purchased this land from saidGulab Sapdu Tadvi on 17.2.1964 for consideration of Rs. 1,000/-. The present petitioner Bajirao Jivram Patil purchased the said land from Shri. Rupchand Chindhu Patil by registered sale deed dated 26.3.1970. Upon coming into force of the said Act in the year 1974, the proceedings under section 3 (3) for restoration of the land were initiated by the original land owner Gulab Sapdu Tadvi, claiming himself to be a tribal and for restoration of the land from the petitioner. The learned Assistant Collector, Jalgaon Division, Jalgaon, who dealt with the matter, passed an order dated 28.2.1976, rejecting the claim and dropping the proceedings on the ground stated as under :- "The transaction of sale of suit land to a third person Shri. Pandit Shridhar Lokhande is before 15.3.1971, and, therefore, does not fall within the meaning of 3 transfer to a "Non-Tribal Transferee" as defined in Section 2(1) (L) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974." 3. It seems that the suo-moto proceedings were initiated by the office of the Commissioner, Nasik Division, Nasik which were conducted by the learned Additional Commissioner, registered as Adiwasi Revision No. 45/1990. The order recites that the powers under section 7 are exercised as per the directions issued by the State Government. It further recites that the question, whether the provisions of the said Act are applicable to the sale effected prior to coming into force of the said Act, was decided by the Apex Court and it has been held that it applies to transfers issued prior to coming into force of the said Act. It further recites that in view of the directions issued by the State Government for review of all such cases, the proceedings were initiated. 4. The learned Additional Commissioner, on merits, records the finding that the respondent Nos. 1 and 2 are the legal heirs of the original land owner Gulab Sapdu Tadvi and it is based upon the finding in the order passed by the Collector on 28.2.1976, dropping the proceedings. The order further records a finding that a caste certificate dated 7.8.1993 issued by the Executive Magistrate, showing that the original owner Maharu Gulab Tadvi belonged to scheduled tribe category. On the basis of such findings, an order has been passed under section 3 (3) of the said Act, for restoration of land to respondent Nos. 1 and 2, by the learned 4 Additional Commissioner. 5. Shri. V. T. Choudhary, the learned counsel appearing for the petitioner has urged that while passing an order under section 3 (3) of the said Act, the learned Additional Commissioner has acted in breach of the provisions of section 7 of the said Act, which prescribes the limitation of three years for initiating suo-moto proceedings, after the order is passed by the Collector. According to him, the order was passed in this case by the Collector on 28.2.1976 and the proceedings before the Additional Commissioner were initiated in the year 1990 i.e. after lapse of about 16 years and thus, the order was without jurisdiction. He further submits that although the order recites that the proceedings are initiated with the approval of the Government, there is nothing on record to show that the Government has issued any directions as contemplated by proviso to section 7 of the said Act. In the absence of such directions, the learned Additional Commissioner was not competent to initiate the proceedings. He further submits that the finding recorded by the learned Additional Commissioner that the respondent Nos. 1 and 2 are the legal heirs of the original owner and that they belonged to a scheduled tribe, is perverse as it is not based on the evidence available on record. He further submits that production of simple certificate issued by the Executive Magistrate, showing that the respondent No. 2 belonged to scheduled tribe category, is not enough and the competent authority to grant such declaration is the Scrutiny 5 Committee which issues validity certificate. 6. In support of his contention that in the absence of such validity certificate, the learned Additional Commissioner could not have held that respondent No. 2 belonged to scheduled tribe category. He relied upon the following decisions of this Court in support of his proposition that the caste certificate needs to be verified and scrutinized by the Scrutiny Committee and it is only upon the production of validity certificate it can be held that the respondent Nos. 1 and 2 belong to scheduled tribe category. Those decisions are as follows :- (1) 1994 (2) Mh.L.J. 1719, Daulat Dhana Mali and others Vs. State of Maharashtra and others. (2) AIR 2002 BOMBAY 238, Punjaji C. Halde Vs. State of Maharashtra and others (3) 2010 Bom. C.R. 110, Krushna Wasudeorao Ambekar & ors. Vs. State of Maharashtra. So far as the question of limitation is concerned, the learned counsel relies upon the decision of the learned Single Judge of this Court reported in 2003 (2) Mh.L.J. 41 in the case of Sridhar Damodar Kamalaskar (Wani) and others vs. Sonu Gunaji Dhumase and others, to urge that in the absence of direction from State Government, suo- moto power under Section 7 cannot be invoked after 16 years. 7. As against the aforesaid submissions, Shri. N.L. Choudhary, the 6 learned counsel for the respondent Nos. 1 has urged that there is no reason to disbelieve the finding recorded by the learned Additional Commissioner in his order impugned in the petition that the proceedings under section 7 have been initiated upon the directions issued by the State Government and hence, according to him, the case squarely falls under the proviso to section 7 of the said Act and therefore, the period of limitation i.e. of 3 years, does not apply. Relying upon the decision of the learned Single Judge of this Court reported in 2007 (1) Mh.L.J. 165 in the case of Ulhas Nimba Choudhari and another Vs. Burhan Samsa Tadvi and others, he submits that production of caste validity certificate was not at all necessary. He submits that the learned Additional Commissioner has recorded a findings of fact, that the respondent Nos. 1 and 2 being the legal heirs of original owner of the land and that they belonged to Tadvi scheduled tribe category. According to him, in view of the judgment of the Apex Court, the provisions of the said Act are applicable to the transaction of sale effected prior to coming into force of the said Act. The learned A.G.P. Shri. D.R. Kale adopts the argument of respondent Nos. 1 and supports the findings recorded by the Additional Commissioner in the impugned order. 8. Perusal of Section 7 of the said Act shows that for invoking the suo-moto powers, there has to be a specific direction from the State Government, if such an exercise is beyond the period of 3 years. This is also the law laid down by this Court in Sridhar's case cited supra, relied 7 upon by petitioner. Undisputedly, the initiation of the proceedings by the learned Additional Commissioner in the instant case is beyond the period of 3 years. Although the impugned order recites that the proceedings are initiated by the directions issued by the State Government, there is no specific reference to any such order or direction issued by the State Government. This petition was filed in 1994. The record is not produced from the office the Additional Commissioner, to find out whether there actually existed any such direction. Hence, the matter will have to be remitted back to the Additional Commissioner for making a reference to any such specific direction, if at all issued by the State Government. Since the jurisdiction of the Commissioner under section 7 depends upon the direction issued by the State Government, it was necessary for the learned Additional Commissioner to refer to such directions in his order. The matter is, therefore, required to be remitted back on this count. 9. So far as the claim of the respondent Nos. 1 and 2 that they belong to Tadvi scheduled tribe category is concerned, the judgments relied upon by the learned counsel for the petitioner, require the production of caste validity certificate from the competent authority i.e. Caste Scrutiny Committee. The point is no longer res-integra, in view of judgment of this Court reported in 1994 (2) Mh.L.J. 1710 in the case of Daulat Dhana Mali and others Vs. State of Maharashtra and others. The relevant para No. 8 of the judgment is reproduced below. 8 "8. As regards the determination of the Tribe, if any, to which the respondent No. 2 belonged and determination of the question, whether or not, he was a member of a Scheduled Tribe, the contention of Mr. Choudhari, must hold good. The Assistant Collector had decided the matter as far back as on 25.10.1976 and the Tribunal had decided it as far back as on 3rd January 77. At that time, the Government did not have any machinery for the verification of tribal claims of the persons claiming to be tribals. This Court as well as the Supreme Court, were required to deal with such matters/points in a number of cases, as a result of which, the Scrutiny Committee has been appointed under the Directorate of Tribal Research and Training Institute, Pune -1. That Committee consists of the experts who are well-acquainted with the subject. The aforesaid Committee is considered, presently, as the competent authority to verify the tribal claims, even though the Taluqa Executive Magistrate and other authorities have issued certificates earlier in that context. The certificates so issued by the other authorities are since required to be verified by the aforesaid Committee before a conclusion could be arrived at as to whether or not, a person was a tribal. We cannot find fault with the efforts made by the Assistant Collector or the Maharashtra Revenue Tribunal in determining, whether or not, the respondent No. 2 belonged to any Scheduled Tribe. Indeed, the judgment delivered by the Assistant Collector exhibits the efforts put in by him to arrive at his own conclusion. But, in the circumstances discussed above, we cannot accept the aforesaid finding as conclusive unless and until the same is got verified at the hands of the Scrutiny Committee. On that count, the impugned orders need to be quashed and set aside and directions are required to be given to the authorities concerned to refer the matter to the Scrutiny Committee for verification of the Tribe claim." The aforesaid view has been followed by this Court in two subsequent judgments reported in A.I.R. 2002 Bom. 238 and 2010 (1) Bom. C.R. 110, cited supra by the petitioner. The learned counsel 9 appearing for respondent tribals, has produced a copy of certificate of validity dated 21.7.2003 by the Scrutiny Committee, Nasik Division, which is placed on record and marked as "X" for identification. It shows that said Maharu Gulab Tadvi belongs to Scheduled Tribe Category. Since this matter is being remitted to lower authority the same shall consider this certificate. 10. In the result, the instant writ petition succeeds. The order dated 11th of May 1994 passed by the learned Additional Commissioner, Nasik Division, Nasik in Adiwasi Revision No. 45/1990 is hereby quashed and set aside. The matter is remitted back to the learned Additional Commissioner for decision afresh, after taking into consideration validity certificate dated 21.7.203 in the name of original owner Maharu Gulab Tadvi, if it is found that there exists such directions from the State Government which are referred to in the order impugned in this petition. The learned Additional Commissioner shall grant opportunity of effective hearing to all the parties. Rule is made absolute in aforesaid terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp1623.94