1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

3. The Tribals belonging to the 'Gond' caste are challenging the order passed by respondent no. 1, allowing the appeal of respondents nos. 4 and 5 by setting aside the mutation entry in the name of tribals. The facts giving rise to the present petition are as under:-

"i) The petitioners belong to the Tribal community (Gond). Respondent nos. 4 and 5 on 17.06.1997 purchased property in dispute from the predecessor in title of the petitioners. Respondents nos. 4 and 5 applied for mutation of their names in the revenue record as owners of the said land. By order dated 09.03.1998, the Talathi, after conducting an enquiry under Section 149 of the Maharashtra Land Revenue Code, 1966 (for short, "the Code"), mutated Respondents 4 and 5's names in the revenue record. The Sub-Divisional Officer, by letter dated 16.06.1998, informed Talathi that the transaction of the said land was between tribal and non-tribal, which is prohibited as per the provision of the Code. The Tahsildar, therefore, by order dated 03.08.1998, cancelled the mutation entry in favour of respondents nos. 4 and 5. Respondents nos. 4 and 5, therefore, filed an appeal before Sub-Divisional Officer, who by order dated 15.01.2001 dismissed the appeal. Respondents nos. 4 and 5 challenged the said order before the Collector. The Collector also dismissed the appeal filed by respondents nos. 4 and 5 by order dated 12.01.1999. Respondents nos. 4 and 5 challenged the order of the Sub-Divisional Officer before the Additional Collector, who by order dated 31.07.2001 dismissed the appeal. Aggrieved thereby, respondents nos. 4 and 5 preferred Revision before respondent no. 1, who dismissed the appeal on 16.09.2003. Therefore, respondents nos. 4 and 5 challenged the order of respondent no. 1 dated 16.09.2003 before this Court in Writ Petition No. 127/2004. This Court, by order dated 13.04.2004, directed the petitioners to get the caste certificate verified by Caste Scrutiny Committee.

ii) The petitioners got a caste validity certificate from Caste Scrutiny Committee. Respondent no. 5 again filed an application before Tahsildar for mutation of their names, which was rejected by order dated 29.04.2010. Respondents nos. 4 and 5 filed appeal before Sub-Divisional Officer, who allowed the appeal by order dated 12.09.2014. The petitioners, therefore, filed revision before respondent no. 2, which was allowed by order dated 28.10.2016. Respondents nos. 4 and 5, therefore, file revision before respondent no. 1. By the impugned order, respondent no. 1 allowed the appeal of respondents nos. 4 and 5. Aggrieved thereby, the petitioners have filed the present petition."

4. I have heard Mrs. (Dr.) R. S. Sirpurkar learned Advocate for the petitioners. She submitted that undisputedly the petitioners belong to the tribal community. The Scrutiny Committee had already granted a caste validity certificate in favour of the petitioners. She placed reliance upon the observations of this Court in para no. 4 of the judgment dated 13.04.2004 in Writ Petition No. 127/2004 to urge that once the Caste Scrutiny Committee holds that vendor of respondent nos. 4 and 5 belonging to Scheduled Tribe, all action on the basis that vendor is a tribal person would not be sustainable in law. Therefore, according to her, the Revenue Authority is not justified in entering the names of respondents nos. 4 and 5.

5. Per contra, Shri A. S. Mehadia, learned Advocate for respondent nos. 4 and 5, raised preliminary objection regarding the petition's maintainability in view of the alternative statutory remedy under Section 257 of the Code. He submitted that unless proceedings under the Code or Maharashtra Restoration of Land of Schedule Tribe Act, 1974 are adopted, the petitioners are not entitled to enter their names in the revenue record. He submitted that respondents nos. 4 and 5 had purchased property undisputedly for valuable consideration; therefore, it does not lie in the mouth of the petitioners to challenge the said transaction after receiving the entire amount of consideration.

6. I have carefully considered the submission on behalf of the parties. Insofar as the objection of maintainability of the petition on the ground of alternative and efficacious remedy in the form of Section 257 of the Code is concerned, the learned Single Judge of this Court in Sudhabai Manohar Meshram Vs. Wasudeo Chattumal Jhamnani [2012 (4) Mh.L.J. 173] in para no. 9 has observed as under:-

“9. . . . . . . .

Perusal of the said section shows that the words "suo motu" or "on an application of the party" are not used. A comparative study of Section 154 of the Maharashtra Cooperative Societies Act considered by the Apex Court and the provision of Section 257 of MLR Code reproduced above shows similarity in the language employed in both the provisions. It is in respect of - (i) calling for examining record of inquiry, (ii) satisfying about legality/propriety and regularity of proceedings and there is power to modify, annul or reverse the decision after giving affected party an opportunity of being heard. It is the discretion of the authority under Section 257 to call for and examine the record. If it decides not to call and examine the record, then there would not be any occasion for the applicant to ask for the decision as a matter of right. There is no right to relief as is available in appeal to the party aggrieved. In view of this, it cannot be said that Section 257 of the MLR Code provides statutory remedy of revision as an alternate and efficacious remedy to challenge the order passed in appeal under section 247 of the MLR Code. The two decisions cited by Shri Gordey lay down general propositions of law which are not disputed.”

7. The Apex Court in the case of Commissioner of Income Tax Vs. Chhabil Dass Agrawal [(2014) 1 SCC 603] [LQ/SC/2013/871] in para no. 15 has observed that recognised exceptions to the rule of alternative remedy are:-

"i) where the statutory authority has not acted in accordance with the provision of the enactment in question;

ii) in defiance of fundamental principles of judicial procedure;

iii) has resorted to invoke the provisions which are repealed or when the order has been in violation of the principle of natural justice."

8. In my view, once the learned Single Judge of this Court has held that the right of revision under the provisions of the Code under Section 257 is not available as of right, the remedy of revision under Section 257 cannot be considered as an alternative and efficacious remedy and therefore, the petition needs to be entertained.

9. Insofar as merits of the case are concerned, in Writ Petition No. 127/2004 between petitioners and respondents Nos 4 and 5, learned Single Judge of this Court in para no. 4 has observed as under:-

“4. . . . . .

I am, therefore, of the considered view that unless the Caste Certificate Scrutiny Committee finds that the vendor of the petitioners belongs to Scheduled Tribe, all action on the basis that the vendor is a tribal person would not be sustainable in law.”

10. Undisputedly, the petitioners have received a caste certificate declaring them to belong to Scheduled Tribe. Considering the scheme of Section 149 of the Code, it discloses that powers under the Section are to be exercised by Revenue Officer in relation to mutation of entries in revenue record about immovable property in the village. The revenue record is maintained to update rights acquired by the parties as stated in Section 149 of the Code. Such right can be acquired by registered document or based on the pronouncement of the decision by a Court or Authority competent to deal with the matters about right or interest of the parties in respect of the immovable property. Section 149 of the Code does not enable Revenue Authority to adjudicate upon substantive rights of the parties or their title to the immovable property. The said provision permits updating revenue records for revenue assessment and collection thereof. Such powers are restricted to ascertain the veracity of the property entry. The Revenue Authority is not expected to adjudicate upon rights of the parties to such property regarding which mutation entry is requested. Under Section 149 of the Code, the enquiry is limited to ascertaining whether the party applying has acquired any right in immovable property. The scope of enquiry is not to ascertain whether the applicant is entitled to make such a claim.

11. In view of the observations made by this Court in Writ Petition No. 127/2004 as quoted above, it is clear that, at least in relation to entry into the names of respondents no. 4 and 5, the Authority was not justified in entering their names, once the petitioners are successful in establishing the fact that they belong to Scheduled Tribe. Respondent no. 1, therefore, was not justified in allowing the appeal of respondents nos. 4 and 5 on the basis of the sale deed dated 17.06.1997. It must be noted that this Court's observations in para no. 4 of the Writ Petition No. 127/2004 binds the petitioners and respondent nos. 4 and 5 to be parties to the said petition. The impugned order, therefore, cannot be sustained.

12. I, therefore, pass the following order:-

i) The Writ Petition is allowed.

ii) The impugned order dated 20.05.2017 passed by the Divisional Commissioner, Amravati Division, Amravati, is quashed and set aside.

iii) At the request of the learned Advocate for respondents nos. 4 and 5, the effect of the order is stayed for four weeks from today.

iv) It is made clear that observations in relation to the rights of the petitioners and respondents nos. 4 and 5 are restricted to adjudication of the rights of the parties in proceedings under Section 149 of the Code, and the parties are at liberty to agitate their rights before the appropriate forum if they so desire.

v) Pending application, if any, stands disposed of accordingly.