( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 788 OF 1991 Shri Udesing Ramsing Pawar, Residing at and post Pal, Taluka Raver, Dist. Jalgaon. PETITIONER VERSUS 1. Shri Mehbub Hasan Tadvi, DH A) Habib Mehbub Tadvi B) Shikandar Mehbub Tadvi C) Sayaba Mehbub Tadvi, All residing at and post Pal, Taluka Raver, Dist. Jalgaon. 2. The Member of the Maharashtra Revenue Tribunal, Bombay. 3. The State of Maharashtra RESPONDENTS ..... Mr. Sanket S. Kulkarni, advocate holding for Mr. V.T.Choudhary, advocate for the petitioner. Mr. N.N. Jadhav, AGP for respondents No. 2 and 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 12th January, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner impugns judgement and order rendered by learned Member of Maharashtra Revenue Tribunal, in revision application No. 7/1989 arising out of Adivasi Case No. 60/1975. 2. The petitioner is purchaser of land Survey No. 229 situated at village Pal, under Raver Tahsil. The ( 2 ) deceased respondent No. 1 had filed an application for restoration of the said land under provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, “the Restoration of Lands Act”). His application was referred to Assistant Collector, Jalgaon for enquiry and decision. Eventually, the Tahsildar, Raver rendered order dated 26-12-1988 in Adivasi Case No. 60/1975 and directed the restoration of the said land (Survey No. 229) in favour of the deceased respondent. The Tahsildar came to the conclusion that the said land was purchased by the petitioner on 14-02-1969 from the deceased respondent No.1, who was the member of tribal community and the transaction between the tribal and the non-tribal was illegal in view of the provisions of the Restoration of Lands Act. The petitioner challenged the order of the Tahsildar by filing revision petition before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal held that the findings of the Tahsildar did not refer to purchase transaction of Survey No. 109/2 which was purportedly sold by the petitioner to the deceased respondent No.1. The Maharashtra Revenue Tribunal held that the internal ( 3 ) sale and purchase transactions were required to be considered and if it was found that there was exchange, the necessary steps could be taken for the purpose of payment of the improvement charges/compensation. The Maharashtra Revenue Tribunal remanded the matter to the Tahsildar for deciding it afresh under section 3 (1) (b) (i) of the Restoration of Lands Act. 3. Mr. Sanket Kulkarni, holding for Mr. V.T. Choudhary, would submit that there was mutual exchange of the lands because of convenience of the parties. He would submit that the deceased respondent No. 1 was unable to pay any compensation and such a statement was made before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal has observed that the respondents were unwilling to pay the amount of compensation because of poverty. He would submit that no practical result will be achieved due to the remand. He would further submit that the deceased respondent No. 1 could not be treated as tribal because he is Mahomedan. It is contended that the impugned direction of the Maharashtra Revenue Tribunal is improper and ( 4 ) should be set at knot. 4. There is no substance in the contention that deceased respondent No. 1 could not acquire status as tribal because he was Mahomedan. It is pertinent to note that even amongst members of Muslim community, there are persons belonging to Scheduled Tribe or Other Backward Classes, etc. For example, “Miniyars” are considered to members of Other Backward Class. The deceased respondent No. 1 was originally tribal though he or his forefather might have embraced Muslim religion in the past. He could not be deprived of the benefits arising out of the status as a tribal. In fact, such issue was not raised before the Maharashtra Revenue Tribunal and now, therefore, such argument is unacceptable. 5. The Apex Court in “Lingappa Pochanna Appealwar v. State of Maharashtra and another and Kalu Gopya Banjari v. State of Maharashtra and another” (AIR 1985 S.C. 389), the Apex Court held : ( 5 ) “Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle : `From each according to his capacity, to each according to his needs’. Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargaining should be restored their property. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there ( 6 ) may be legislative control of unfair agreements.” 6. Another limb of the argument advanced by Mr. Kulkarni is that purchase of land Survey No. 109/2 by the deceased respondent No. 1 was with due permission of the competent authority and, therefore, there was mutual agreement of exchange. He has placed on record copy of the order rendered in Tenancy Application No. 9/1957 by the Mamlatdar of Raver and xerox copies of the sale- deeds. What appears from the said order of the Mamlatdar is that the landlords had applied for sale permission. The land was owned by Tukaram Ganpat Patil and others. They were allowed to alienate the land Survey No. 129 in favour of the petitioner and the deceased respondent No. 1 who were the tenants. It is difficult to give any final opinion as regards internal transactions. It also cannot be positively said that there was exchange of lands because it is a matter of determination after due examination of the relevant transactions by the Tahsildar. So, I refrain myself from expressing any opinion as regards nature of the transaction. The ( 7 ) relevant provision of section 3 (1) (b) (i) of the Restoration of the Lands Act may be considered. The sub- clause (1) of section 3 (1) (b) reads as follows : “(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 difference in value of improvements as determined under clause (a) of sub-section (4), or...” 7. The Maharashtra Revenue Tribunal found that the order rendered by the Tahsildar did not refer to the transaction in respect of Survey No. 109/2 and, therefore, it was thought fit to remand the matter. The Maharashtra Revenue Tribunal, no doubt, observed that the transfers of both the lands appeared to be otherwise than exchange. In fact, the disputed question ought to be left open for decision by the Tahsildar. 8. The petition is very old one and the non-Tribal is in possession of the land of which restoration was sought by the Tribal person. Considering these aspects, ( 8 ) it would be appropriate to direct the Tahsildar to decide the issue regarding nature of the internal transactions between the parties and thereafter to pass suitable orders within the parameters of section 3 of the Restoration of Lands Act. There appears no merit in the petition. 9. In the result, the petition fails and is dismissed. The Tahsildar shall decide the restoration claim, including the nature of internal transactions of the parties, within period of six months after receipt of the writ of this Court. No costs. 10. In view of dismissal of the writ petition, civil application No. 6190/2007 stands disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/wp788-91