( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 519 OF 1993 1. Vitthal s/o Pandurang Lakhule 2. Pandurang s/o Ganapati Lakhule 3. Tukaram Ganapati Lakhule 4. Vishnu Ganapati Lakhule 5. Manik Ganapati Lakhule All r/o Pewa. 6. Dattu Vithoba Wagh 7. Sakharam Vithoba Wagh 8. Manik Daula, R/o Ambora Shelke, Tq. Mantha, District Jalna. PETITIONERS VERSUS 1. Kalabai Shankarappa Kolegaonkar, R/o pewa, Tq. Mantha, District Jalna. 2. State of Maharashtra 3. The Tahsildar, at Mantha, Tq. Mantha, District Jalna. RESPONDENTS …. Mrs. Geeta Deshpande, advocate for the petitioners. Mr. V.D. Salunke, advocate for the respondent No. 1. Mr. N.H. Borade, AGP for the respondents No. 2 and 3. …. [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 11th August, 2010] [DATE OF JUDGEMENT PRONOUNCED : 13th August, 2010] JUDGEMENT : 1. By this petition, the petitioners seek to challenge ( 2 ) judgement and order rendered by the learned Tahsildar, Mantha in proceedings arising out of an application filed by the petitioners u/Ss 3 and 4 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1975 (for short, “the Maharashtra Restoration Act”). Vide the impugned judgement and order, the petitioners' application came to be rejected. Further they were directed to restore the possession of the suit lands to the respondent No. 1. 2. Indisputably, agricultural lands bearing Survey Nos. 15, 16, 16, 17, 18 and 19, situated at village Pewa were previously owned and possessed by Pandurang Lakhule. The petitioner No. 1 is the son of deceased Pandurang Lakhule. He had filed an application dated 10th August, 1988 before the Tahsildar, Partur, alleging that he is member of Scheduled Tribe i.e. `Andh' and the lands Survey Nos. 15, 16, 17, 18 and 19 as described by him were illegally transferred to the respondent No. 1 and other persons. He alleged that the respondent No. 1 – Kalabai was in unlawful possession of land Survey No. 16. He further alleged that his father i.e. Pandurang Lakhule was of unsound mind and there was no lawful transfer of the said lands in favour of the respondent No. 1 and other persons who had been unlawfully inducted and were ( 3 ) continued in possession thereof. The Tahsildar commenced proceedings vide No. 88/Jamabandi/1/KaVi/781 against the respondent No. 1 and other persons under provisions of Sections 3 and 4 of the Maharashtra Restoration Act. The application was resisted only by the respondent No.1. The learned Tahsildar held that the contentions raised by the petitioners were duly proved. The learned Tahsildar further held that the transaction referred to by the respondent No. 1 was unlawful and, therefore, she was found in unauthorised possession of the land Survey No. 16, admeasuring 2 acres 30 gunthas. So also, other persons who were the respondents No. 2 to 6 in the proceedings in that application were found to be in unlawful possession of the other lands viz. Survey Nos. 15, 17, 18 and 19. The learned Tahsildar, therefore, allowed the application vide order dated 18th September, 1990. In pursuance thereof, possession of the said lands was restored in favour of the petitioners vide panchanama dated 2nd April, 1991 (Exh-D to the petitioners). The respondent No. 1 challenged the said order of the learned Tahsildar by filing an appeal No. 26/A/91/J before the Maharashtra Revenue Tribunal, Aurangabad (M.R.T.). The M.R.T. Held that the claim of the petitioners is not duly proved because they relied on a photocopy of the certificate issued by the Executive ( 4 ) Magistragte, Partur on 2nd July, 1987 and the certificate of the village panchayat alongwith an affidavit. The learned Incharge President of the M.R.T. held that unless the claim of the petitioners that they are members of Scheduled Tribe is duly established, the application could not have been allowed by the learned Tahsildar. The petitioners challenged the judgement and order rendered by the M.R.T. by filing writ petition No. 1461/1992. By judgement dated July 14th, 1992, a Single Bench of this Court remanded the matter to the Tahsildar to decide the application afresh. It was directed that the certificate produced by the petitioners shall be sent to the Scrutiny Committee of the Tribal Research Training Institute for due verification of the status claimed by the petitioners. It was further directed that the Tahsildar shall de novo decide the application and also shall consider the question of limitation which was agitated by the respondent No. 1 before this Court. It was thereafter that by the impugned judgement, dated 11th February, 1993, the Tahsildar rejected the application on the ground that it was barred by limitation. 3. Heard learned counsel for the parties. ( 5 ) 4. It is argued by learned counsel Mr. Salunke V.D. that the application was filed in the year 1988 when the limitation period provided under the Maharashtra Restoration Act was only of three (3) years. He points out that the Mahrashtra Restoration Act was amended in the year 1991, vide the Maharashtra Act No. 1 of 1991. According to Mr. Salunke, the juxtaposition as prevailed at the time of application filed by the petitioners, is required to be examined and the subsequent amendment carried out in the year 1991 cannot extend the limitation period for filing of the said application. He seeks to rely on certain observations in “Sindhu Cooperative Housing Society vs. State of Maharashtra and others” (2005 C.T.J. 521). In the given case, it was held that Section 22/2 of the Maharashtra Cooperative Societies Act, 1960 was not amended with retrospective effect and, therefore, the appeal filed after the period of limitation could not be entertained. It was a case in which the amendment was effected so as to give deeming effect to the question of admission of membership. The previous legal position under the Maharashtra Cooperative Societies Act was that there was presumption about rejection of the request for admission as a member after expiry of three (3) months' period if no communication was issued to the applicant. ( 6 ) 5. The only material question involved in the present petition is : “Whether the learned Tahsildar committed patent error while rejecting the application of the petitioners for restoration of the land in question only on the ground that it was filed beyond period of limitation as per the provision of section 3 (11) (b) of the Maharashtra Restoration Act as it existed on the date of the original application filed in the year 1988 ?” The learned Tahsildar did not assign any other reason in support of the impugned order of rejection of the application filed by the petitioners. It is important to notice that the Maharashtra Restoration Act is a social welfare Legislation. The question of applicability of the amended provision in case of a social welfare Legislation or beneficial Legislation is required to be examined having regard to the aims and objects of such enactment. 6. In “Sakharam Bhoju Rathod vs. State of Maharashtra ( 7 ) and others” 2005 (1) Bom.C.R. 386, this court held that the intention of the Legislature was to create a right in favour of tribal transferer to apply for restoration of the land even if he had not applied within the prescribed period of three (3) years as provided under the special enactment as it stood prior to the amendment. The learned Single Judge observed : “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 proceedings or for the tribal transferor to make an application under the provisions of the said Code or Principal Act as amended by this Act for restoration of land to the tribal transferors.” “It is thus clear from section 7 of 1991 Act that ( 8 ) 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.” 7. The view taken by the Apex Court in “Dhannalal v. D.P. Vijayvargiya and others” 1997 (1) Mh.L.J. (S.C.) 487 also was duly considered by the learned Single Judge of this Court. In the context of subsequent amendment to the provisions of the Motor Vehicles Act, 1988, the Apex Court held that power was given to the Accident Claims Tribunal to entertain an application after expiry of the period of six (6) months when the Tribunal was satisfied that the claim could not be put forth well in time due to certain disabilities of the applicant or that the applicant was prevented by sufficient cause from making the application within the time so prescribed. It is amply clear that in case of social welfare ( 9 ) Legislation, the intention of the Legislature cannot be overlooked while interpreting the relevant amended provisions. In “Amrendra Pratap Singh vs. Tej Bahadur Prajapati and others” (2004 AIR SCW 4103), the Apex Court held that the provisions of section 65 of the Limitation Act would not apply in respect of the land held by the tribal and a non-tribal person cannot perfect the title by virtue of adverse possession. 8. In “Ulhas Nimba Choudhari and another vs. Burhan Samsa Tadvi deceased Heirs Abbaskhan s/o Budhan Tadvi and others” 2007 (1) Mh.L.J. 165, this Court held that the special enactment is aimed at achieving social justice. It provides protective discrimination to the tribals. Therefore, it is required to be assumed that the tribals had no knowledge of their legal rights and the transfers by them were outcome of their exploitation or a kind of unconscionable transactions. It is pertinent to notice that except the respondent No.1, no other transferee impugned the order of restoration under the Maharashtra Restoration Act. The amendment was carried out in 1991. It is true, no doubt, that the original application was filed in the year 1988. Still, however, the fact remains that the appeal was carried to the M.R.T. and was pending till ( 10 ) 18-06-1992. The appeal is continuation of the original proceedings and as such, the application could not be regarded as barred by limitation. The learned Tahsildar committed patent error while rejecting the application on taking wrong view that the application was barred by limitation. 9. Taking overall view of the matter, the impugned order rendered by the respondent No. 3 – the Tahsildar is patently erroneous and, therefore, liable to be set aside. Hence, the petition is allowed. The impugned order is set aside. Rule made absolute accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp519-93