SANDU (D) BY LRS.versusGU LAB (D) BY LRS. AND OTHERS

                         [2015] 10 S.C.R. 334


A                        SANDU (D) BY LRS.
                                   v.
                 GU LAB (D) BY LRS. AND OTHERS
                   (Civil Appeal No. 3470 of2006)
B                       SEPTEMBER 4, 2015.
            [M. Y. EtiBAL AND KURIAN JOSEPH, JJ.]
          Maharashtra Restoration of Lands to Scheduled Tribes
    Act, 1974 - ss. 4, SA and 7 - Proceedings u/s. 4 dropped by
C   orderdated-31.12.1975, on the ground that the tribal was not
    prepared to purchase the land - In 1985 initiation of
    proceedings u/s. 7 by revisional authority after the
     Government accorded sanction - Revisional authority held
     that the tribal land was liable to be restored- Writ petition by
0
     transferee challenging order of revisional authority - High
     Court allowed the petition on the ground that the revisional
    jurisdiction u/s. 7, having been exercised beyond a period
     of 3 years, was barred by limitation- On appeal, held: When
E    the proceedings uls. 7 are initiated on getting sanction from
     the State Government, the same can be initiated beyond the
    period of 3 years- In the circumstances of the case, the power
     exercised by the revisional authority is within reasonable
    period and hence not barred by limitation- The proceedings
F    uls. 4 cannot be dropped even if the tribal-transferor is not
     interested in getting back his land- The Collector is required
     to procee.d further to divest the non-tribal transferee and pass
     order for vesting the land in the State Government - Matter
     remitted to High Court to decide the matter on merit -
G    Limitation.

      Practice and Procedure - Writ petition challenging the
  order passed under Maharashtra Restoration of Lands to
  scheduled Tribes Act - Non-impleadment of State or its
H                           334
  SAN DU (D) BY LR~. v. 1uiJLAB (D) BY LRS. AND OTHERS      335


authorities - Held: In litigation on welfare legislations, the A
court should see that the Government and the authorities
concerned are impleaded for proper defence and effective
assistance - Maharashtra Restoration of Lands to Scheduled
Tribes Act, 1975.
                                                               B
    Allowing the appeal, the Court

     HELD: 1. Under the proviso to Section 7 of
Maharashtra Restoration of Lands to Scheduled Tribes
Act, 1974, the revisional authority has to exercise the suo c
motu powers within three years from the date of the order
passed by the Collector. Where the State Government
accords sanction for initiation of the revision uls. 7, the
proceedings can be initiated beyond the period of three
years, within a reasonable time from the date of o
permission given by the Government. In the present
case, the direction is issued by the State Government in
1982 and the revisional authority has initiated
proceedings in 198S. In the given circumstances, the
power exercised by the revisional authority is within a E
reasonable time. [Para 9) [343-G-H; 344-A-B]

      2. In a proceeding duly initiated uls. 4 of the Act, even
if a tribal transferor is not interested to get back his land
by refunding the purchase price or for other reasons F
indicated under Section SA of the Act, the Collector
cannot drop the proceedings, as has been done in the
instant case. The Collector has to proceed further and
divest the non-tribal transferee of the tribal land and pass
a further order vesting the land in the State Government G
for being distributed to the other deserving tribals. [Para
10) [344-E-F]

     3. The High Court has rested its finding on vesting
of the land in Government uls. SA of the Act mainly on        H
336         SUPREME COURT REPORTS               [2015) 10 S.C.R.


A the ground that the C~mmissioner could not have
  entertained the revision beyond three years. However,
  even according to the High Court, the non-tribal
  transferee is to be divested of his possession and
  ownership, though the land was not liable to be restored
B to the original tribal transferor. Once it is held that the
  revision was within time, the High Court has necessarily
  to see whether land could have been restored to the
  tribal transferor as held by the revisional authority. The
  Writ Petition is remitted to the High Court for fresh
C consideration in accordance with law. [Paras 10 and 11]
  [344-D; F]

      4. In litigation on welfare legislations intended to
  benefit the Scheduled Tribes, Scheduled Castes or other
D weaker sections, the High Court should see that the
  State Government and the authorities concerned are
  impleaded for proper defence and effective assistance.
  The State of Maharashtra, the revisional authority who
  are not impleaded as parties in the petition, shall be
E impleaded as parties in addition to the affected party.
  (Paras 8 and 11] [343-D-E; 344-H]
          CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      3470 of2006
F          From the Judgment and Order dated 26/27.07.2005 of
      the High Court of Judicature of Bombay, Bench atAurangabad
      in Writ Petition No. 1170of1989.
          Shivaji M. Jadhav,Anish R. Shah for the Appellants.
G         The Judgment of the Court was delivered by
       KURIAN, J. 1. The Maharashtra Restoration of Lands to
  Scheduled Tribes Act, 1974 (hereinafter referred to as 'the
  Act') was introduced to provide for the restoration of certain
H lands to persons belonging to the scheduled tribes. It has been
  SAN DU (D) BY LRS. v. GU LAB (0) BY LRS. AND OTHERS       337
                        [KURIAN, J.]

notified on 01.11.1975. Under Section 4 of the Act, the A
restoration is contemplated in respect of transactions on or
after 1st day of April, 1957. Section 4 reads as follows:

     "4. Restoration of lands of persons belonging to
     Scheduled Tribes. Where any land of a Tribal is, at any . B
     time on or after the 1st day of April 1957 and before the
     6th day of July 1974, purchased or deemed to have been
     purchased or acquired under or in accordance with the
     provisions of the relevant tenancy law by a non-Tribal-
     transferee or where any acquisition has been regularised C
     on payment of penalty under such law and such land is in
     possession of a non-Tribal transferee and has not been
     put to any non-agricultural use on or before the 6th day of
     July 1974, then the Collector shall, notwithstanding
     anything contained in any law for the time being in force, D
     either suo motu at any time or on an application by the
     Tribunal made 1[within thirty years from the 6th July 2004]
     and after making such inquiry as he thinks fit, direct that
     the land shall, subject to the provisions of subsection (4)
     of section 3, be restored to the Tribal free form all E
     encumbrances and that the amount of purchase price or
     a proportionate part thereof, if any, paid by such non-
     Tribal-transferee in respect of such lands in accordance
     with the relevant tenancy law shall be refunded to such F
     non-Tribal-transferee either lump sum or in such annual
     installments not exceeding twelve (with simple interest
     at 4Yi per cent. per annum) as the Collector may direct.
     The provisions of clauses (d), (e), (f) and (g) of sub-
     section (4) of section 3 shall, so far as may be, apply in G
     relation to the recovery of the amount from the Tribal and
     payment thereof to the non-Tribal-transferee and the
     persons claiming encumbrances, if any :

     Provided that, where land is purchased or acquired by a H
338         SUPREME COURT REPORTS                   [2015) 10 S.C.R.


A          non-Tribal-transferee before the 6th day of July 1974, after
           such transferee was rendered landless by reason of
           acquisition of his land fora public purpose, then only half
           the land so purchased or acquired shall be restored to
           the Tribal-transferor."
B
            2. Under Section SA of the Act, lands which belonged to
      the tribals and coming under the purview of the Act which cannot
      be restored to the original tribals, vest in Government and such
      lands are to be granted to other tribals subject to prescribed
C     restrictions.

           "SA. (1) Where any land (not being land acquired in
           exchange), which is liable to be restored to a Tribal-
           transferor under sub-section ( 1) of section 3 cannot be
o          so restored either on account of the failure of the Tribal-
           transferorto give an undertaking referred to in sub-section
           (3) of section 3 or for any reason whatsoever or where
           ariy land referred to in section 4 cannot be restored to
           the Tribal by reason of such Tribal expressing, during the
E          inquiry held by the Collector, his unwillingness to refund
           the purchase price or proportionate part thereof to the
           non-Tribal-transferee, as required by the said section 4,
           or for any other reason, then, the Collector may, subject
           to rules, if any, made in that behalf, by order in writing
F          direct that the land shall, with effect from the date of the
           order, be deemed to have been acquired and vest in the
                           /
           State Government free from all encumbrances.

           (2) On such vesting of the land, the non-Tribal-transferee
G          shall be entitled to receive from the State Government
           an amount equal to 48 times the assessment of the land,
           plus the value of the improvements, if any, made by the
           non-Tribal-transferee therein. The provisions of clauses
           (b) aod (c) of sub-section (4) of section 3 shall mutatis
H          mutandis apply for determining the value of
SANDU (D) BY LRS. v. GU LAB (D) BY LRS. AND OTHERS           339
                     [KURIAN, J.]

  improvements and for apportionment of the A
  encumbrances, if any, on the land between the non-Tribal-
  transferee and the persons claiming encumbrances on
  the land.

  (3) The land so vested in the State Government under B
  sub-section ( 1) shall, subject to any general or special
  orders of the State Government in that behalf, be granted
  by the Collector to any other Tribal residing in the village
  in which the land is situate or within five kilometers thereof
  and who is willing to accept the land in accordance with C
  the provisions of the Code, and the rules and orders
  made thereunder and to undertake to cultivate the land
  personally; so however, that total land held by such Tribal
  whether as owner or tenant does not exceed an
  economic holding within the meaning of sub-section (6) D
  of section 36A of the Code.

  (4) The person to whom land is granted under sub-section
  (3), shall pay to the State Government the amount
  referred to in sub-section (2), either in lump sum or in    E
  such annual instalments not exceeding twelve (with
  simple interest at 4Y2 per cent. per annum) as the
  Collector may direct and shall hold the land subject to
  such terms and conditions as may be prescribed.
                                                              F
  (5) Wit_hout the previous sanction of the Collector, no land
  granted under subsection (3) shall be transferred,
  whether by way of sale (including sale in execution of a
  decree of a Civil Court or of an award or order of a
  competent authority) or by way of gift, mortgage, G
  exchange, lease or otherwise. Such sanction shall not
  be given otherwise that in such circumstances and on
  such conditions including condition regarding payment
  of premium or nazarana to the State Government, as may
  be prescribed:                                               H
340        SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A         Provided that, no such sanction shall be necessary where
          the land is to be leased by a serving member of the
          armed forces or where the land it to be mortgaged as
          provided in sub-section (4) of section 36 of the Code for
          raising a loan for effecting any improvement on such land.
B
           (6) 'ff sanction is given by the Collector to any transfer
           under sub-section (5), subsequent transfer of the land
           shall also be subject to the provisions of subsection (5).

c         (7)Any transfer of land, and any acquisition thereof, in .
          contravention of subsection (5) or (6), shall be invalid;
          and as a penalty therefor, any right, title or interest of the
          transferor and transferee in or in relation to such land
          shall, after giving him an opportunity to show cause, be
 o        forfeited by ihe Collector; and the land together with the
          standing crops thereon, if any, shall without further
          assurance vest in the State Government and shall be
          disposed of in such manner as the State Government
          may, from time to time direct."
 E
         3. Section 6 of the Act provides for an appeal to the
      Maharashtra Revenue Tribunal.

           "6. Appeal. ( 1) An appeal against any decision or order
           passed by the Collector may, notwithstanding anything
 F
           contained in the Code, be made to the Maharashtra
           Revenue Tribunal constituted under the Code.

           (2) Every such appeal shall be made within a period of
           sixty days from the date of receipt of the decision or order
 G         of the Collector. The provisions of sections 4, 5, 12 and
           14 of the Limitation Act, 1963, shall apply to the filing of
           such appeal.

           (3) In deciding an appeal under sub-section (1), the
 H         Maharashtra Revenue Tribunal shall exercise all the
  SAN DU (D) BY LRS. v. GU LAB (D) BY LRS. AND OTHERS          341
                        [KURIAN, J.]

     powers which a Court has subject to the regulations A
     framed by that Tribunal under the Code and follow the
     same procedure which a Court follows, in decidin!!J
     appeals from the decree or order of an original Court
     under the Code of Civil Procedure, 1908 (V of 1908)."
                                                           B
    4. Section 7 of the Act provides for revision.

     "7. Revision. Where no appeal has been filed within the
     period provided by sub-section (2) of section 6, the
     Commissioner may suo motu or on the direction of the         c
     State Government at any time-

       (a) call for the record of any inquiry or proceeding of
       any Collector for the purpose of satisfying himself as
       to the legality or propriety of any order passed by, and
                                                                0
       as to the r!=?gularity of the proceedings of, such
       Collector, as the case may be, and

       (b) pass such order thereon as he thinks fit:

     Provided that no such record shall be called for after the   E
     expiry of three years from the date of such order except
     in cases where directions are issued by the State
     Government; and no order of the Collector shall be
     modified, annulled or reversed unless opportunity has
     been given to the interested parties to appear and be        F
     heard."

     5. The Assistant Collector, Jalgaon in the State of
Maharashtra initiated proceedings under Section 4 of the Act
as per notice dated 03.12.1975 in respect of land Gat. No. 71 G
measuring 2 hectares and 7 ares on the ground that the land
originally belonged to the tribal and as the same was
transferred to a non-tribal after 1957. It was found that the land
was sold by the tribal to the non-tribal on 12.07 .1971. However,
restoration was declined and order dated 31.12. 1975 was H
342         SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A     passed dropping the proceedings on the ground that the tribal
      was not prepared to purchase the land. The order reads as
      follows:

                                "ORDER
B
             This case is started suo motu. The suit land belongs to
           the Shri Guiab Dagadu and etc. who is a member of Tribal
           Communities. He sold the suit land to Shri Sandu
           Dayaram on 27.5.1971 for Rs.12,000/-. The transferee
c          belongs to Non-Tribal community.

            The case was fixed for hearing on 22.12.1975 and after
           hearing the case is dropped on the following grounds:-

           (1) The transferor Shri Guiab Dagadu Tadvi and Supadu
D          Dagadu Tadvi are not willing to purchase the land."

          The file was hence closed. Guiab, since deceased and
      represented by his legal heirs, is the respondent herein. The
      non-tribal transferee, since deceased and represented by his
E     legal heirs, is the appellant.

        6. Thereafter, it appears, in 1985, the Additional
   Commissioner, Nasik (under Section 2 of the Act, the
  ·Commissioner includes Additional Commissioner) initiated
F suo motu proceedings under Section 7 of the Act, after the
   Government granted the sanction under Section 7 of the Act
   by letter dated 10.05.1982. In the order dated 28.03.1989, the
   revisional authority entered a finding that the land was liable to
   be restored. The order dated 31.12.1975 passed by the
G Assistant Collector, Jalgaon was set aside.

      7. The order passed by the revisional authority was
  challenged before the High Court of Judicature at Bombay,
  Aurangabad Bench in Writ Petition No. 1170 of 1989. The
H main prayer under the Petition reads as follows:
  SAN DU (D) BY LRS. v. GU LAB (D) BY LRS. AND OTHERS         343
                        [KURIAN, J.]

          "9. (A)    Record and proceedings of the A
     impugned order dated 28th March, 1989, passed in LR.
     Adivasi Revision Case number 4 of 1985 be called for,
     and after examining the legality, validity a!"d propriety of
     the impugned order dated 28th March 1989 passed by
     the Additional Commissioner, Nasik Division, Nasik be B
     quashed and set aside and the order passed by the
     Assistant Collector, Jalgaon on 31•t December, 1975 in
     Adivasi case number 29of1975 be restored"

     8. Neither the State of Maharashtra nor the Collector (in C
the instant case, the Assistant Collector, Jalgaon), who passed
the order under Section 4 of the Act or the revisional authority
(in the instant case, the Additional Commissioner, Nasik
Division), was imp leaded as parties in the Petition. Only the
tribals were made respondents. In litigation on welfare D
legislations intended to benefit the Scheduled Tribes,
Scheduled Castes or other weaker sections, the High Court
should see that the State Government and the authorities
concerned are impleaded for proper defence and effective
assistance.                                                      E

     9. The High Court in the impugned judgment dated 26/
27.07.2005 took the view that the Commissioner could not
have exercised its revisional jurisdiction under Section 7 of
the Act since the same was exercised beyond a period of three F
years. As a matter of fact, the Government of Maharashtra had
accorded sanction for the revision by its order dated
10.05.1982 and the revisional proceedings had been initiated
apparently in 1985. Under the proviso to Section 7 of the Act,
the revisional authority has to exercise the suo motu powers G
within three years from the date of the order passed by the
Collector except in a case where a direction is issued in that
regard by the State Government. Where the State Government
accords sanction for initiation of the revision under Section 7 H
of the Act, the proceedings can be initiated beyond the period
344       SUPREME COURT REPORTS                 [201 S] 10 S.C.R.


A of three years. In such a case, the revisional proceedings will
  not be vitiated on the ground that the same is hit by limitation
  of the period of three years as prescribed under Section 7 of
  the Act. But the proceedings should be initiated within a ·
  reasonable time from the date of permission given by the
B Government. In the case before us, the direction is issued by
  the State Government in 1982 and it appears the revisional
  authority has initiated proceedings in 1985. In the give
  circumstances, we are of the view that the power exercised by
  the revisional authority is within a reasonable time.
c
       10. The High Court has rested its finding on vesting of the
  land in Government under Section SA of the Act mainly on the
  ground that the Commissioner could not have entertained the
  revision beyond three years. However, even according to the
D High Court, tt:ie non-tribal transferee is to be divested of his
  possession and ownership though the land was not liable to
  be restored to the original tribal transferor. On a proceeding
  duly initiated under Section 4 of the Act, even if a tribal
  transferor is not interested to get back his land by refunding
E the purchase price or for other reasons indicated under Section
  SA of the Act, the Collector cannot drop the proceedings, as
  has been done in the instant case. The Collector has to proceed
  further and divest the non-tribal transferee of the tribal land
F and pass a further order vesting the land in the State
  Government for being distributed to the other deserving tribals.
  But in the instant case, once it is held that the revision was
  within time, the High Court has necessarily to see whether land
  could have been restored to the tribal transferor as held by the
G revisional authority.

       11. The impugned order is hence set aside, the Writ
  Petition is remitted to the High Court for fresh consideration in
  accordance with law. The State of Maharashtra, the revisional
H authority and the original authority shall be impleaded as
  parties in addition to the affected party. The appeal is allowed
  SAN DU (D) BY LRS. v. GU LAB (D) BY LRS. AND OTHERS            345
                        [KURIAN, J.]

as above. We request the High Court to dispose of the Writ A
Petition preferably within six months from the date of receipt
of copy of this judgment.

12.     There shall be no order as to costs.

Kalpana K. Tripathy                            Appeal allowed.