Writ Petition No. 9486 of 2014 · Bombaybench High Court
Case Details
Ethape( 1 ) WP-9486-2014IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 9486 OF 2014Rasabai w/o Motiram Bhil died, through proposed Lrs. Suresh s/o Ganpat Thakre and Ors. ...Petitioners VERSUSThe State of Maharashtra and Ors. ...RespondentsWITHCIVIL APPLICATION NO. 6362 OF 2024INWRIT PETITION NO.9486 OF 2014Rasabai w/o Motiram Bhil and Ors. ...ApplicantsVersusThe State of Maharashtra and Ors. ...Respondents …..Mr.Amit A. Mukhedkar Advocate for the petitioners.Mr. D. r. Korde, AGP for Respondent Nos.1 to 3. Mr. S. B. Yawalkar for Respondent Nos.5B, 5C, 6A to 6C and 7.Mr. R. B. Bhosale for Respondent No.8.…..CORAM:KISHORE C. SANT, J.RESERVED ON:18th NOVEMBER 2024PRONOUNCED ON:10th JANUARY 2025PC :-1.Heard the learned Counsel for the parties.2.The petition is directed against a judgment and order dated 17th Ethape( 2 ) WP-9486-2014May 2014 passed by the Respondent No.1 in Case No.BIW-0613/C.No.177/L-4 C. No.588(09) 2013/ABPU. 3.By the impugned judgment and order, the Respondent No.1 hasallowed the application of Respondent Nos.4, 5 (now represented bylegal heirs), 6 (now represented by legal heirs) and 7. The RespondentNo.1 is the State. Respondent Nos.2 and 3 are the DivisionalCommissioner, Nashik and the District Collector, Jalgaon, respectively.The proceeding is in respect of the revenue record. 4.The present petitioners initiated the proceedings by filing WatanApplication No.02 of 2011 before the Collector under Section 3 of theBombay Inferior Village Watans Abolition Act, 1958. It is the case of thepetitioners that the land was given to their ancestor namely, MotiramKisan Bhil in the year 1941-42 and 1942-43. Later on in the year 1943,the land was wrongly given to the ancestor of Respondent No.5 to 8.The prayer was made to give the land in their possession as Watan land.They prayed for deletion of entries No.1689 and 1800 as those areillegally taken.5.It is the case of the Respondents that though the land was given to Ethape( 3 ) WP-9486-2014the ancestor of the petitioners, he did not cultivate the land after 1943.Thereafter, the land was again taken in possession of the Government.The Government later on re-granted the land to the ancestor of therespondents and since then, they are cultivating the land and it is therespondents, who are having possession over the land. The petitionershave no concern with the land. 6.The learned Collector held that the lands were re-granted to theancestor of the respondents and thereafter, there is no concern of thepetitioners with the said lands. He further held that the name of fatherof the Respondents was taken in 1965 in the possession column of theland. The application before the Collector was moved by the petitionersafter 45 years. On both the counts, he rejected the appeal of thepetitioners.7.The petitioners being aggrieved thereby, preferred a revisionbefore the learned Divisional Commissioner, Nashik. The learnedDivisional Commissioner considered Sections 36 and 36-A of theMaharashtra Land Revenue Code, 1966 (for short “MLRC”), whileconsidering the revision. The learned Divisional Commissioner Nashik
Legal Reasoning
Ethape( 4 ) WP-9486-2014however, held that the Collector has not properly considered that thepetitioners happen to be tribals and their land could not have been givento the respondents. The possession of the land needs to be restored. Theland ought to have been re-granted to the petitioners. In case, it was tobe re-granted to any other persons, notices were required to be given tothe petitioners. The learned Divisional Commissioner set aside the orderpassed by the learned Collector and directed the Tahsildar to take actionunder Sections 36 and 36-A of the MLRC. Against the order of thelearned Commissioner, the Respondents approached the StateGovernment. The State Government by way of impugned order, allowedthe revision of the Respondents. The petitioners are therefore, beforethis Court. 8.Learned Advocate Mr.Mukhedkar, appearing for the petitioners,forcefully argued that the petitioners happen to be persons belonging totribal community. The land was being cultivated by Mr. Motiram Bhil,ancestor of the petitioners till 1942. His land could not have been takenby the Government as the land was granted to him by the Governmentbeing ‘Talpadi Inam Land ’ an inferior Watan. The Government by Ethape( 5 ) WP-9486-2014issuing circular dated 14th July 2009 has relaxed the period of limitationfor taking action under Sections 36 and 36-A of the MLRC, in caseswhere the lands of the tribals are transferred to non-tribals. Thefindings of the Collector on limitation is thus erroneous. The learnedCollector and the State have failed to appreciate this aspect. He reliedupon the judgment of this Court in the case of Rangnath Dashrath Vadarand Ors. Vs. Bhagatsing Vithalsing Kotwal 1. He thus prays to allow thewrit petition. 9.Learned Advocate Mr.Yawalkar appearing for Respondents submitsthat the main proceeding initiated by the petitioners itself was notmaintainable because of delay and laches. Though no limitation isprovided still the petitioners were expected to approach withinreasonable time. In the present case, they approached after more than45 years. Even as per the case of the petitioners, the name of theirancestor was appearing in the revenue record prior to 1943. Sincethereafter no any grievance was raised by father of the petitionersduring his lifetime. The entry in the revenue record dated 9th February12003 (3) Bom.C.R. 18 Ethape( 6 ) WP-9486-20141962 is only under challenge. The petitioners have not challenged theentry No.1805 dated 23rd January 1965. The entry No.1805 is takenafter payment of taxes. In any case, he submits that there is nocertificate produced on record to show that the petitioners belong totribal community. As it is the proceeding is under the provisions of theBombay Inferior Village Watans Abolition Act. There is no applicationunder Sections 36 and 36-A of the MLRC. The Commissioner hasexceeded his jurisdiction by considering the provisions of Sections 36and 36-A of the MLRC. The findings recorded by the Collector wouldclearly show that the proceeding was under Watans Act. He supports theorder passed by the State Government. He submits that the provisionsof Section 36 of the MLRC or the Maharashtra Restoration of Lands toScheduled Tribes Act are not attracted in the present case. By referringto definition of word "occupant" in Section 2(23) of MLRC, he submitsthat the petitioners do not fall under the definition of occupant. Theprovisions of Maharashtra Restoration of Lands to Scheduled Tribes Actare not applicable also for the reason that it is not the case even of thepetitioners that they were the owners of the property. He submits that, Ethape( 7 ) WP-9486-2014no case is made out to exercise jurisdiction under article 227 of theConstitution of India, in this case. 10.In rejoinder, learned Advocate for the petitioners submits that themutation entry No.1800 is under challenge and in view of the same, heneed not challenge further entries. He further submits that thepetitioners have now produced on record a tribe certificate issued infavour of the petitioners. 11.The learned AGP supports the impugned order. He submits thatthe learned Minister has rightly passed an order. He prays for dismissalof the petition. 12.After hearing the parties and after going through petitionpaperbook, this Court need to answer following questions. First, whetherWatans of petitioners is abolished? second, whether the applicationsuffers from delay and laches?; third, whether the provisions of Sections36 and 36-A of MLRC are applicable? and lastly, whether the provisionsof Maharashtra Restoration of Lands to Scheduled Tribes Act areapplicable? Ethape( 8 ) WP-9486-201413.From the record it is clearly seen that in 1941-42 the petitionersancestor was in possession. In 1943, the land was re-granted in favourof ancestor of respondent Nos.5 to 8. There is no dispute about the saidfact. Thereafter, there is no challenge by the petitioners’ father during hislifetime. The petitioners do not have any concern with the suit landthereafter. The land was taken back by the Government. TheGovernment thereafter re-granted the land to ancestor of therespondents. Thus, no case was made out to pass order in favour of thepetitioners under the Bombay Inferior Village Watans Abolition Act. Sofar as limitation is concerned, the petitioners for the first time challengethe entries taken in 1965 by filing proceedings in the year 2011 beforethe Collector. It is held in the judgment of the Hon'ble Apex Court in thecase of Santoshkumar Shivgonda Patil and Ors. Vs. Balasaheb TukaramShevale and Ors.2 that when no limitation is provided, parties are stillsupposed to approach within reasonable time i.e. three years. In thepresent case, this Court holds that the proceedings suffers from delayand laches. The learned Collector and the State have rightly considered2[2010(2) Mh.L.J.150 Ethape( 9 ) WP-9486-2014that the application suffered from delay and laches and has rightlyconcluded that the application was not maintainable on that account.14.So far as the applicability of provisions of Section 36 and 36-A ofthe MLRC and Restoration Act is concerned, there was no case even ofthe petitioners before the Collector that they have filed proceedingsunder the Maharashtra Restoration of Lands to Scheduled Tribes Act.The learned Commissioner has exceeded the jurisdiction by consideringSections 36 and 36-A of the MLRC when that is not the case even of thepetitioners. Thus about non applicability of provisions of MaharashtraRestoration of Lands to Scheduled Tribes Act also, this Court findssubstance in the submission of Mr.Yawalkar. To attract provisions of theRestoration Act what is required is that there is a transfer of a land fromtribal to non-tribal. In this case, there is no transfer of land frompetitioners to respondents. So far as the judgment in the case of SureshBapu Sankanna and Ors. Vs. State of Maharashtra and Ors.3, this Courtfinds that the said is not applicable in the present case. Reliance placedon the said judgment is of no use in the present case. This Court has32018(4) Mh.L.J. 331
Decision
Ethape( 10 ) WP-9486-2014already considered the judgment in the case of SantoshkumarShivgonda Patil (supra) and has come to the conclusion that theproceedings was not entertainable after 45 years. Thus, for all thesereasons, this Court finds that the petitioners have failed to make out acase calling for interference in the impugned judgment. Petitiontherefore deserves to be dismissed. Hence, the following order:- ORDER(i)Writ Petition stands dismissed.(ii)No order as to costs. (iii)In view of dismissal of Writ Petition, Civil Application doesnot survive and disposed off accordingly.[KISHORE C. SANT, J.]