1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 9733 OF 2009 Smt. Shakuntala Daulat Ahire ...Petitioner Vs. Pundlik Dhondu Salunkhe & Ors. ...Respondents Mr.R.M. Haridas a/w. Mr. Kishor Patil i/b. Mr. P.N.Joshi, Advocate for Petitioner Mr.Ramesh Dube Patil i/b. M/s. Jay & Co., for Respondent No.1 Ms. P. S. Cardozo, A.G.P for Respondent No.2 CORAM : SMT.ROSHAN DALVI, J. DATED : 2ND MARCH, 2010 P.C. : 1. The Petitioner is the transferee of an agricultural land belonging to the tribal, Respondent No.1. The Petitioner claims that the Respondent No.1 sold and conveyed 2 immovable properties under two registered sale deeds dated 10 th June 1991 and 22 nd January 1997 to the Petitioner. The transfers had not been challenged by the tribal. The Tahasildar initiated an inquiry suo-motu in respect of the land of the Respondent No.1. The finding that the land belongs to the tribal the Tahasildar directed it to be 2 returned to the tribal. The Petitioner contends that the order is passed under Section 36 of the Maharashtra Land Revenue Code which does not apply to the sale of the disputed land. However Section 36A of the Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 applies. Under Section 36A no occupancy of a land of the tribal can be transferred to the non-tribal in any of the modes of transfer of immovable properties except on the application of the non-tribal and with previous sanction of Collector and previous approval of the State Government. 2. Under Section 3 of the Maharashtra Restoration of Lands to Scheduled Tribes Act 1974 ( the Restoration Act) the Tahasildar is entitled to initiate suo-motu inquiry upon transfer of any land of a tribal to a non tribal and under Section 3(1)(a)(ii) he is enjoined to restore the land to the tribal free from all encumbrances upon the tribal transferor making payment specified under Section 4(b) of the Restoration Act. 3. The Petitioner’s Advocate contends that if the order is taken to have been passed under Section 36A of the Maharashtra Land Revenue Code, the land is required to vest in the State Government and not be restored to the tribal. However the Restoration Act is meant for the protection of tribals. Inquiry instituted under the Restoration Act and orders passed thereunder do not require the lands which have been transferred from a tribal to a non tribal to be restored to the State Government under the Act. 4. Consequently, the order does not suffer from any infirmity and is passed as an protection order of the tribal. The order in appeal of the Petitioner 3 herein being the Appeal No.464/2008 under Section 6 of the Restoration Act also similarly considers the land of the Respondent No.1, the tribal. There is no reason to interfere with the findings of the fact. 5. The Respondent No.1 is stated to have executed Power of Attorney in favour of another person. The Petitioner contends, and rightly, that the restoration would be only for the protection and benefit of the tribal and upon restoration of the land the land must remain of same nature as it was prior to the transfers to the Petitioner in 1991 and 1997. At the relevant time it was an agricultural land. It is held to be belonging to the Respondent No.1, the tribal. The restoration must, therefore, be only to the Respondent No.1 and not his constituted attorney. The Advocate for the Respondent No.1 states that the land can be restored and can be kept in the same position as it was prior to the transfer only for the benefit of and in possession of the Respondent No.1. 6. Consequently the Writ Petition is dismissed except only for the above clarifications. 7. The stay order which was initially granted in this Petition shall continue for 4 weeks. (SMT.ROSHAN DALVI, J.)