H.H. Kantharia, J.
1. The petitioner purchased agricultural lands admeasuring 17.3 gunthas out of Survey No. 24/2 of village Yevati. Tahsil Wani, district Yavatmal from respondents Nos. 3 and 4. Respondent No. 3 is the adoptive mother of respondent No. 4. The sale deed is of May 11, 1962 for a price of Rs. 3,000.
2. After the Maharashtra Restoration of Lands to Scheduled Tribes Act. 1975 (hereinafter referred to as the 'Restoration Act') came into force, the Deputy Collector and Special Land Acquisition Officer Wani (Respondent No. 2) initiated suo motu proceedings for restoration of the said land to respondents Nos. 3 and 4 under Section 3 of the Restoration Act. The petitioner resisted the suo motu proceedings by filing a written statement. inter alia. contending that the transferors i.e. respondents Nos. 3 and 4 were not Tribals and that they did not belong to Scheduled Tribe within the meaning of Explanation to Section 3 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as the 'Land Revenue Code'.
3. Respondent No. 2 who heard the said suo motu proceedings, dismissed the petitioner's contention that respondents Nos. 3 and 4 were not the Tribals observing that the petitioner did not produce the satisfactory evidence to show as to what other caste they belonged to. The second respondent accepted the claim of respondents Nos. 3 and 4 that they belonged to Scheduled Tribe being Pradhans on the basis of the Caste Certificate issued by the Executive Magistrate. The second respondent further held that the transfer was valid and the intention of the Restoration Act being to restore the lands to the Tribal transferors, the point raised by the petitioner deserved to be rejected. He accordingly by his order dated May 24, 1978 dismissed the petitioner's claim.
4. Being aggrieved, the petitioner filed an appeal under Section 6 of the Restoration Act before the Maharashtra Revenue Tribunal at Nagpur (the first respondent.) In the said appeal the petitioner had substantially raised the same issue that respondents Nos. 3 and 4 were not the Tribals. However, the first respondent dismissed the appeal by an order dated November 19, 1985
5. Therefore, the petitioner invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India by filing the present writ petition.
6. In support of the writ petition, Mr. Parsodkar, learned Counsel appearing on behalf of the petitioner, submitted that the caste of respondents Nos. 3 and 4 was declared to be Scheduled Tribe only in the year 1976 by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 which means that when the transaction of sale took place between the petitioner and respondents Nos. 3 and 4, respondents Nos. 3 and 4 were not the members of Scheduled Tribe and, therefore, it could not be said that there was a transfer of land by a Tribal to a non-tribal. Mr. Khamborkar, the learned Assistant Government Pleader, controverted this submission of Mr. Parsodkar relying upon a decision of a Single Judge of this Court (H.W. Dhabe, J.) in the case of Chhotelal Bansilal Awasthi v. State of Maharashtra and Ors. 1990 M.L.J. 766 and submitted that the crucial point is, whether a person defined as 'Scheduled Tribe' in the Restoration Act had made a transfer in the past during the period specified in the definition of the expression 'transfer' given in Section 2(1)(j) of the Restoration Act and if he had done so whether he would be entitled to restoration of his land under Section 3 of the Restoration Act.
7. I am afraid, I am not able to persuade myself to agree with the submission made by the learned Assistant Government Pleader for the simple reason that on the date when the sale transaction took place respondents Nos. 3 and 4 were not the Tribals and, therefore, this would not be a case of transfer of land by a Tribal to a non-tribal. Thus, 'transfer' in relation to land means the transfer of land belonging to a Tribal made in favour of the non-tribal during the period commencing on the 1st day of April 1957 and ending with 6th day of July 1974 as per Section 2(1)(j) of Restoration Act. Then, 'Tribal' means a person belonging to a Scheduled Tribe within the meaning of the Explanation to Section 36 of the Land Revenue Code, and includes his successor-in-title as per Section 2(1)(j) of the Restoration Act. The explanation to Section 36 of the Land Revenue Code stood amended by Section 2(3) of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974., which came into force from 6th July, 1974 as per Section 1(2) although the assent of Governor to the said Act was received on 31st August, 1974 and it was thereafter first published in the Government Gazette on 7th September, 1974. It is pertinent to note that the Restoration Act had received the assent of the President of India on 28th April, 1975 and was thereafter published in the Government Gazette on 28th May, 1975. It had actually come into force on 1st November, 1975 as per the Notification of the State Government issued under Section 1(3) of the Restoration Act. The Restoration Act is thus subsequent to the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974. It is, therefore, the amended definition of the expression 'Scheduled Tribe' given in the explanation to Section 36 of the Land Revenue Code which would stand incorporated in Section 2(1)(j) of the Restoration Act and would be applicable in determining the question who the 'Tribal' was under the same Act. The explanation to Section 36 of the Land Revenue Code reads as under:
Explanation-For the purposes of this section 'Scheduled Tribes' means such Tribes or Tribal communities or parts of, or groups within such Tribes or Tribal communities as are deemed to be Scheduled Tribes in relation to the State of Maharashtra under Article 342 of the Constitution of India and persons, who belong to the Tribes or Tribal communities or part of, or groups within Tribes or Tribal communities specified in Part VIIA of the Schedule to the order made under the said Article 342, but who are not resident in the localities specified in that order who nevertheless need the protection of this section and Section 36A (and it is hereby declared that they do need such protection) shall, for the purposes of those sections be treated in the same manner as members of the Scheduled Tribes.
In other words, a person could be a member of the Scheduled Tribe as declared by the Presidential Order under Article 342 of the Constitution. The same Presidential Order was declared at the commencement of the Constitution and thereafter amended from time to time and ultimately stood further amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 which as stated above came into force on 1st November, 1975 when the community 'Pradhan' of respondents Nos. 3 and 4 was declared as a Scheduled Tribe. Thus, on the day of the transaction of sale of the land in question on 11th May, 1962, respondents Nos. 3 and 4 were not the members of Scheduled Tribe. They could not be given the status of being members of Scheduled Tribe retrospectively as was held by the Division Bench of this Court (B.N. Deshmukh and P.V. Nirgudkar, JJ.) in the case of Tukaram Laxman Gandewar v. Piraji Dharamji Sidarwar 1989 M.L.J. 815 in Writ Petition No. 627-A of 1982 decided on 6.2.1989 at the Aurangabad Bench. Thus, the point involved in the case is squarely covered by this judgment and, therefore, there is no substance in the argument of the learned Assistant Government Pleader who relied upon the decision of the Single Judge (H.W. Dhabe, J.) in the case of Chhotelal Bansilal Awasthi (supra) in Writ Petition No. 1931/77 decided on 25.9.1987.
8. In this view of the matter, the writ petition succeeds and the same is allowed. Rule is made absolute in terms of prayer Clause (i) but with no order as to costs.