1 WRIT PETITION NO.: 2174 OF 1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.: 2174 OF 1991 Shri Fakira Shankar Patil, Age: 53 years, Occu.: Agriculture, R/o Wavadade, Taluka and District Jalgaon. ... PETITIONER. VERSUS 1. Shri Roopchand Pandit Bhill, Age: 50 years, Occu.: Agri. 2. Shri Narsing Tanku Bhill, Age 45 years, Occu.: Agri. Both resident of Lohare, Taluka Pachora, District: Jalgaon. ... RESPONDENTS. *** Mr. S. A. Kulkarni, Advocate for the Petitioner. Mr. Joshi, Advocate holding for Mr. Pradeep G. Deshmukh, Advocate for Respondent Nos.1 and 2. *** CORAM: B.P.DHARMADHIKARI, J. DATED: 7th JANUARY, 2011. ORAL JUDGMENT: 1. By this petition filed under Article 227 of Constitution of India, Petitioner non- tribal purchaser is taking exception to the judgment delivered by Maharashtra Revenue Tribunal on 28th September, 1990 in Appeal under section 6 of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1976 upholding 2 WRIT PETITION NO.: 2174 OF 1991 the order dated 17th June, 1989 passed by Sub Divisional Officer, Jalgaon in Adivasi Case No.15 of 1987. The previous history of the matter is not relevant for present adjudication. 2. Facts show that the land was initially Watan Inam Land and it was granted to predecessors of Respondent Nos.1 and 2. From them, the land seems to be purchased by present Petitioner in 1963 for consideration of Rs.2,000/- after obtaining permission from competent authority as per provisions of section 36 of Maharashtra Land Revenue Code. The tribals who transferred the land in 1963 are interested in claiming restoration of possession and the possession has been accordingly awarded to them. 3. Contention of Advocate Mr. Kulkarni, on behalf of non-tribal petitioner is, the lands were even before grant in favour of the predecessors of Respondents in possession of his father and thereafter in possession of petitioner as tenant. He further states that on record there is admission by Respondents that they do not belong to any Scheduled 3 WRIT PETITION NO.: 2174 OF 1991 Tribe. There is no certificate issued by any authority in their favour proving that they belong to Scheduled Tribe Bhill. In view of this position, the authorities below ought to have held that the transferors in 1963 were not tribals and hence the provisions of Restoration Act were not applicable. He has invited attention to consideration of this aspect by the Tahsildar initially and thereafter by Sub Divisional Officer and by Maharashtra Revenue Tribunal. He has stated that the undue importance has been attached to permission secured under section 36 in 1963. The admissions given are conclusive and ought to have been accepted and acted upon. In the alternative and without prejudice to these pleadings, learned counsel also urged that in the light of subsequent changes in the matter of verification of caste claim, the caste claim of Respondent Nos.1 and 2 ought to have been forwarded to competent caste scrutiny committee. Support is being taken from various judgments of this Court particularly in the case of "Daulat Dhana Mali and others V/s State of 4 WRIT PETITION NO.: 2174 OF 1991 Maharashtra and others, reported in 1994 (2) Mh.L.J. 1719; "Punjaji C. Halde V/s State of Maharashtra and others" reported in AIR 2002 Bombay 238, "Krushna Wasudeorao Ambekar and others V/s State of Maharashtra" reported in 2010 Bom.C.R.110 and recent judgment delivered at Aurangabad on 17th June, 2010 in Writ Petition No.1636 of 1992 - Pandit Shridhar Lokhande V/s Jamsher". 4. Advocate Mr. Joshi holding for Shri Deshmukh has invited attention to brief history as contained in the order of Maharashtra Revenue Tribunal. He states that admittedly petitioners obtained previous permission under section 36 of Maharashtra Land Revenue Code before purchasing lands from Respondents in 1963 and hence they are estopped from contending that Respondents are not tribals. He further contends that there are no admissions on record to show that these Respondents are not tribals. He has also urged that provisions of Welfare Legislation like Restoration Act cannot be defeated by taking too technical approach only because there are no caste certificates 5 WRIT PETITION NO.: 2174 OF 1991 issued to these Respondents. He has invited attention to observations that such certificates are issued by competent authorities to their children. He, therefore, supports the impugned orders. According to him, for this material on record, there is no question of sending the caste certificate for verification to the caste scrutiny committee and various judgments on which petitioner has placed reliance are not relevant. 5. I find that Sub Divisional Officer as also the Maharashtra Revenue Tribunal have looked into all relevant facts. The statement of Respondent No.1 Roopchand on which petitioner is placing reliance, reveals that he has stated that in his Bhill tribe there are various sub-tribes. He has also given those sub-tribes as Tadvi Bhill and Katoni Bhill. He has deposed that Tadvi Bhill are Mohammadans and he was Katoni Bhill. His statement that "we are Katoni Bhills" is being capitalised by petitioner to urge that Respondent Nos.1 and 2 do not belong to Bhill Scheduled Tribe. However, 6 WRIT PETITION NO.: 2174 OF 1991 petitioners are ignoring later part of cross examination in which the said witness has stated that they are tribals (Adivasis). He has further stated that no certificates are produced to show that they are Adivasis. Suggestion that they do not belong to Adivasi tribe has been denied by him. 6. Consideration of this controversy by Sub Divisional Officer and Maharashtra Revenue Tribunal reveals that the children of Respondents have been issued certificates that they belong to scheduled tribe. Not only this, but petitioners derived their title to lands in question because of permission granted by Collector under section 36 of Maharashtra Land Revenue Code. That permission is required to be applied for when a non-tribal is purchasing the agricultural lands from a tribal. The petitioners admittedly applied for and obtained that permission and, thereafter, has purchased the lands. In view of this history, the burden was upon petitioners to show that Respondent Nos.1 and 2 do not belong to Bhill Scheduled Tribe. They have not produced any material 7 WRIT PETITION NO.: 2174 OF 1991 on record and they are only trying to take advantage of the alleged admissions given by Respondent No.1 Roopchand in his evidence. 7. The judgments on which learned counsel for Petitioner has placed reliance are delivered in altogether different facts. There the status of transferor as belonging to scheduled tribe was denied by the purchaser and, therefore, the question arose whether transferor belonged to scheduled tribe or not. Here, in 1963 that status of transferor has been accepted by petitioners. 8. The authorities have concurrently considered this material and I do not see any jurisdictional error or perversity. No case is made out warranting interference. Writ petition is dismissed. Rule discharged. No costs. [B.P.DHARMADHIKARI, J.] Dated:07/01/2011. ans/2174 8 WRIT PETITION NO.: 2174 OF 1991 WRIT PETITION NO.: 2174 OF 2010 Date of decision: 7th JANUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE