Recognition Of Person As 'Tribal' After Transfer Of Land To Non-Tribal Won't Entitle Him To Seek Restoration: Bombay High Court Full Bench

A full bench comprising of Justice Sunil B Shukre, Justice AS Chandurkar, and Justice Anil L Pansare sitting at Nagpur held –

“Subsequent recognition of a transferor as a Tribal within the meaning of Section 2(1)(j) of the Restoration Act would not entitle him to seek restoration of the land transferred by him to a non-Tribal-transferee and his subsequent recognition as such is of no assistance to him for the purpose of availing of the benefit of Section 3 of the Restoration Act.”

The court held that a tribal-transferor who is the beneficiary of the Restoration Act must be a person belonging to a Scheduled Tribe at the time when the he transfers his land to a non-tribal transferee.

“…the social status of a person as a Scheduled Tribe on the date of the transaction and not his natural identity as a member of a tribe is what matters and if he does not possess that status on the date of transaction, he would not be entitled to restoration of his land from the non-tribal”, the court added.

Facts

One Shekrao Wanjare sold his land to one Dhansingh Rathod in 1968. Dhansingh’s son Ravi Chandra Rathod sold his share to Asha Rajusingh Rathod who in 1994 sold it to one Baliram Reva Chavhan.

Shekrao belonged to “Andh” tribal community which was included in the list of Scheduled Tribe’s in the Scheduled Tribes Order, 1950 in 1974 in the place of residence of Shekrao’s son, Gajanan. When Shekrao first sold the land in 1968, the Andh community was not recognised as a Scheduled Tribe in certain parts of Maharashtra.

Gajanan in 2016 sought the restoration of the land to him under the Restoration Act, 1975. The tehsildar allowed his application and directed Chavhan to handover the land’s possession to Gajanan. The Maharashtra Revenue Tribunal dismissed Chavhan’s appeal. Thus, he approached the High Court.

Issue

The single judge noted that there are conflicting views by two different division benches of the High Court regarding the issue, and referred the following question to the full bench –

Whether the subsequent recognition of the transferor as a tribal after transfer of the land would entitle the transferor to seek restoration of possession of land under Section 3(1) of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 as held in Kashibai v. State of Maharashtra, 1993 (2) Mh.L.J. 1168 or whether such subsequent recognition would be of no assistance to the tribal transferor as held in Tukaram Gandewar v. Piraji Dharmaji Sidarwar, 1989 Mh.L.J. 815?

As per Section 3 (restoration of transfer of lands to Tribals in certain cases) of the Restoration Act, a tribal transferer is entitled to seek restoration of land transferred to a non-tribal between April 1, 1957, and July 6, 1974, if it has not been put into any non-agricultural use before or on July 6, 1974. The tribal must be a person belonging to Schedule Tribe within the meaning of Section 36 of the Maharashtra Land Revenue Code. According to Section 36 of the Code, the expression “Scheduled Tribes” means such tribes that are deemed to be Scheduled Tribes in relation to Maharashtra under Article 342 of the Constitution.

Arguments

The petitioner argued that unless the person held the status of a Scheduled Tribe on the date of the transfer, such person would not be a tribal within Section 2(1)(j) of the Restoration Act and transfer of land made by him to a non-tribal would not be covered by the Restoration act.

The state argued that the term “Scheduled Tribe” has to be given a retrospective effect otherwise the legislature’s intent in giving protection to tribals who were exploited by non-tribals would be frustrated.

Tribal v. Member of Scheduled Tribe

There is a difference between tribe and the expression Scheduled Tribe, the court said. A tribe is a separate group of people having distinctive identity, culture, traditions, and practices than the main stream society. However, such separate identity would not by itself make it a Scheduled Tribe unless it is specified under Article 336 of the Constitution.

The court said that a tribal assumes the character of the “Scheduled Tribe” only upon his recognition under Article 342 by the President. Till the time the president does not include his tribe in the Constitution (Scheduled Tribes) Order, 1950, a tribal would remain a tribal only and would not be of the Scheduled Tribe as per Article 336 of the Constitution, the court said.

Operation of Identity

The court said that a person would require the identity of a tribe by the accident of his birth in that tribe, but the identity as a member of a Scheduled Tribe is acquired by the person only by operation of law. When identity is acquired naturally by birth, it exists since birth, but when it is conferred by the act of men like the Order, 1950 under Article 342 of the Constitution it operates from the date of its conferment, the court stated.

Till acquisition of such a status, the identity of a member of any tribe is only that of a tribal and not of a person having a social status as belonging to the Scheduled Tribe, the court held.

Constitution (Scheduled Tribes) Order, 1950 prospective in nature

The court said that the Order of 1950 specifying the Scheduled Tribes is prospective by its very nature. It does not recognise any birth right attached to every tribal but a decision to grant some protection and benefit to some of the tribes selectively by categorising them as Scheduled Tribe.

The court said that if, at the time of land transfer, the transferor was not recognized as a tribal under the Restoration Act, then the transfer was simply by a non-tribal to another non-tribal, and the Restoration Act would not apply.

“If on the date of the transaction, he (transferor) is not a member of a Scheduled Tribe by virtue of his inclusion in the Schedule to the Order, 1950, he would be simply a non-tribal as defined in Section 2(1)(e) of the Restoration Act and then the transfer of land made by him to a non-tribal would be only be a transaction between a non-tribal and a non-tribal, not hit by the mischief of Section 3 of the Restoration Act”

The court noted that the Restoration Act is a beneficial legislation and it would generally have retrospective operation as long as it is not to the detriment of another person. In this case, the benefit it causes to a tribal transferor is to the detriment of the non-tribal transferee and hence, the Act would have prospective effect, the court stated.

The court overruled Kashibai v. State of Maharashtra to the extent that it held that subsequent recognition of the transferor as a tribal after transfer of the land would entitle the transferor to seek restoration. The court also overruled all Single Judge decisions relying on or consistent with Kashibai.

Case no. – Writ Petition No. 1701 of 2019

Case Title – Baliram S/o Reva Chavhan v. Gajanan S/o Shekrao Wanjare