Sukhdev S/o Ramji Natkar vs Shankar S/o Dhondba Borkar & Ors.

. Heard.

In the present Writ Petition, the challenge is to the order dated 16.10.2018 passed by the learned Sub-Divisional Officer, Pusad, whereby he declined to entertain the appeal filed by the present petitioner against the order of the Tahsildar dated 16.10.2018, on the ground of jurisdiction under the provisions of Maharashtra Restoration of Lands to Scheduled Tribe Act, 1974 (in short ‘the Act of 1974’).

The petitioner states that he belongs to the ‘Andh’ Tribe, which is a Scheduled Tribe, and the respondent also belongs to the ‘Andh’ Tribe. As such, both parties fall under the Scheduled Tribe category.

On 03.06.2009, the petitioner and Dhondba Borkar, who is the father of the respondent, entered into an agreement to sell a property admeasuring 1.61 HR, bearing Field Survey No. 5/4 of Mouza Khuradi, Taluka Pusad, District Yavatmal. Dhondba was avoiding execution of the sale deed in terms of the agreement. Therefore, the petitioner filed a civil suit bearing Special Civil Suit No. 16/2010 before the Civil Court at Pusad, which was renumbered as RCS No. 67/2012.

After filing the suit, the matter was amicably settled between the parties and Dhondba Borkar, executed the sale deed in favour of the petitioner. Accordingly, after the registration of the sale deed dated 30.03.2011 in favour of the petitioner, the civil suit was withdrawn as the matter had been amicably settled between the parties.

After that, the present respondent No.1, who claims to be the son of Dhondaba Borkar, filed a fresh suit bearing Civil Suit No.96/2011 for cancellation of the sale deed executed between the petitioner and his father. During the pendency of the said suit, he realised that there were serious complications in the matter and, therefore, he moved an application seeking permission to withdraw the suit from the file of the Civil Judge, Pusad.

The learned Civil Court granted him permission to withdraw the Civil Suit to enable him to file appropriate proceedings under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as ‘the Act of 1974’).

Respondent No.1, after withdrawal of the Civil Suit filed proceedings under Section 3 of the Act of 1974 before the Tehsildar Pusad. It is his contention that the transfer of the property, which was taken place between his father and present petitioner is contrary to the provision of law as no permission was obtained from the competent authority which is mandatory and, therefore, transaction should be held illegal.

In the said proceedings before Tahsildar, present petitioner moved an application on 05.06.2008 stating that the matter between the petitioner and father of respondent No.1 was amicably settled before the Competent Court of law and that too in Lok Adalat and, therefore, such decision cannot be challenged and on that count, the application is not tenable and same should be rejected. Learned Tahsildar rejected the application by order dated 16.10.2018 stating that issue raised in the application was not subject matter before the Lok Nayalaya and, therefore, on this count, the application cannot be rejected.

Against the order of the Tahsildar dated 16.10.2018 of rejecting the application, the appellant has preferred appeal under Section 247 of the Maharashtra Land Revenue Code before the Sub Divisional Officer, Pusad. The Sub Divisional Officer, Pusad by the impugned order dated 13.11.2018, held that the proceedings were filed by the respondent under the provisions of the Act of 1974 and, therefore, he cannot entertain the appeal under the provisions of the Maharashtra Land Revenue Code and thereby rejected the appeal filed by the petitioner.

The present Writ Petition is filed by the petitioner stating that as there is no other efficacious remedy to the petitioner to redress his grievance, therefore, he has invoked the powers by this Court under Articles 226 and 227 of Constitution of India and came with a submission that the proceedings, which filed by respondent No.1 is prima facie illegal and same are not itself tenable before the Tahsildar and, therefore, considering this factual and legal aspects of the matter, this Court should exercise his powers in the matter.

In support of submission, petitioner has referred relevant definition of transfer under Section 2 (i) of the Act of 1974:

A bare perusal of this definition shows that transfer of a land belonging to a tribal in favour of a non-tribal during the period, commencing of 01.04.1957 and ending of 06.07.1974 is the specific period to be considered to invoke the powers of the authority to deal with the cases of transfer. If the transfer is not during the said period then the application itself cannot be entertained by the authority.

It is the submission of the present petitioner that the sale deed in the present matter by way of transfer was executed on 30.03.2011 and the same is a subject matter of challenge at the instance of respondent before the Tahsildar under Section 3 of the Act of 1974 stating that the transfer of the proceedings between petitioner and his father is illegal. This fact itself demonstrate the fact that transfer of the property between petitioner and respondent’s father was in the year 2011 i.e. much prior to the dates as prescribed under the definition of transfer, therefore, prima facie, proceedings filed by respondent was itself not tenable under Section 3 of the Act of 1974.

In the facts and circumstances, the submission of the respondent before this Court is that irrespective of the fact that there was a transfer in the year 2011, but no permission was sought from the Collector and, therefore, prima facie, his transaction is illegal and, his application under Section 3 of the Act of 1974 is maintainable and, therefore, there is no need of interference of this Court in the matter.

In the circumstances, I am of the opinion that the provisions of the Act of 1974 and the definition of the transfer is very much clear. So also it is not disputed that application filed by the respondent No.1 was under Section 3 of the Act of 1974. Section 3 of the Act of 1974, permits the authorities under the act to restore or transfer of the lands to the tribal in certain cases. One of the factor which needs to be considered while invoking the powers under Section 3 that transfer of the land should be between tribal and non-tribal and secondly the transfer of property must be during the period from 01.04.1957 to 06.07.1974.

In the present case, admittedly, both the petitioner and father of respondent were of the Scheduled Tribe category. Therefore, prima facie, the application under Section 3 of the Act is not tenable. Secondly, if respondent No.1 is coming with a case that it is the case of transfer then he has to establish that the transfer was between 01.04.1957 to 06.07.1974. But admittedly, here, the transfer of the property is in the year 2011. Hence, continuing of proceedings before the Tahsildar is not justified in the facts and circumstances of the case.

Hence, considering the factual as well as legal position, I am satisfied that proceedings filed by the respondent No.1 is not tenable before the Tahsildar as same are not covered under Section 3 of the Act of 1974. Hence, for the reasons stated above, I proceed to pass the following order:

No order as to the costs.