In this case, Section 43(2) of the said Act provides that a transfer in contravention of sub-section (1) shall be invalid. When consequences of nullification on failure to comply with a prescribed requirement is provided by the statute itself, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory. Besides the provisions of Section 43(1) of the said Act provide that no land purchased by a tenant under specified sections of the said Act shall be transferred without previous sanction of the Collector. Thus the legislature has made use of negative words. One of the well known modes of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. CRAWFORD, on statutory construction has observed that prohibitive or negative words can rarely, if ever, be directory and this is so even though the statute provides no penalty for disobedience.
15. The provisions specifically makes reference to 'previous sanction'. If the objective of said enactment is taken into consideration alongwith phraseology employed by the legislature, then the mandatory nature of the requirement contained in Section 43(1) cannot be diluted by permitting some post-facto sanction for a transfer in breach of Section 43(1) of the said Act. This would render the provisions of Section 43(2) as otiose. Accordingly, there is no merit in the contention that the provisions of Section 43 of the said Act are are only directory and that post-facto sanction constitutes substantial compliance.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1484 OF 1992
Smt. Saraswati Shamrao Dhere
vs.
Khutub Babu Malani & Ors.
CORAM : M. S. SONAK, J.
Date of Pronouncing the Judgment : 05 February 2015
Citation; 2015(2) ALLMR533,2015(2)MhLj566
This petition is directed against the judgment and order dated
9 August 1990 made by the Maharashtra Revenue Tribunal (MRT)
setting aside the orders made by the Tahsildar declaring as invalid
the sale of the suit property by respondent Nos. 2 and 3 in favour of
respondent No.1.
2]
This petition concerns the following property situate at Shiroli,
Kolhapur :
Gat No.
131
43/1
43/2
3]
H.A.
117
152
002
Assessment
1500
1806
0019
The petitioner was the tenant in respect of the half portion of
the aforesaid property and respondent Nos. 2 and 3 were the tenants
in respect of the other half. By resort to the provisions contained in
Section 32G of the Bombay Tenancy and Agricultural Lands Act,
1948 (said Act), the petitioner and respondent Nos. 1 and 2
purchased respective one half portion of the aforesaid property. This
petition concerns the one half portion purchased by respondent nos.
By an instrument of transfer dated 13 December 1983,
4]
2 and 3 and therefore it shall be referred to as 'the said property'.
respondent Nos.2 and 3 transfered the said property to Khutub
Malani (original respondent No.1). Upon demise of said Khutub
Malani, his legal heirs are now brought on record. There is no
serious dispute that at the time of execution of instrument dated 13
December 1983, no previous sanction as contemplated by Section 43
of the said Act had been obtained from the Collector. Accordingly,
the petitioner instituted Tenancy Case No.10 of 1984 before the
Tahsildar, inter alia, seeking declaration that the transfer or
alienation of the said property was invalid and the said property
ought to be disposed of in terms of Section 84C of the said Act.
5]
The Tahsildar, by order dated 2 September 1985, declared the
transfer as invalid and directed action under Section 84C of the said
Act. The appeal against such order was dismissed by the Assistant
Collector on 8 August 1988. Mr. Khutub Malani, then preferred
revision petitions to the Maharashtra Revenue Tribunal (MRT),
which has since been allowed by the impugned judgment and order
dated 9 August 1990. The MRT, in its impugned order, has mainly
relied upon sanction accorded by the SubDivisional Officer on 17
July 1984 as constituting 'regularisation' of the transfer effected by
Mr. M. J. Patil, the learned counsel for the petitioner submitted
6]
the instrument dated 13 December 1983.
that Section 43 of the said Act contemplates 'previous sanction' in the
matter of transfer of property purchased by a tenant under the said
Act. In this case, admittedly there was no such previous sanction
and the transfer was in breach of of Section 43 of the said Act. There
is no provision for regularization of such invalid transfer and the
only option open was to proceed under Section 84C of the said Act.
In this regard, reliance was placed by Mr. Patil upon the following
decisions:
(i)
(ii)
(ii)
Ashok Baburao Ingavale & Ors. vs. Pralhad Hari Bhate
& Ors.1;
Dadu Rau Yelavade (dead) by his heirs and Lrs vs.
Himmat Rasul Patel2; and
Chandrabhan Chunnilal Gour vs. Shravan Kumar
Khunnolal Gour & Anr.3
1 2005(1) Mh.L.J. 446
2 AIR 1992 SCC 1093
3 1980 Mh.L.J. 690
Ms Mudbidri, learned counsel appeared for legal heirs of
7]
respondent No.1, only to state that they have taken away the papers
from her. In such circumstances, learned counsel expressed inability
to make any submissions in the matter, although due opportunity
was duly afforded to her.
Mr. Surel Shah, the learned counsel appearing for respondent
8]
following submissions:
That under Section 84C of the said Act, Tahsildar can
(A)
Nos. 3(a) to 3(d), defended the impugned order by making the
exercise jurisdiction either suo motu or on application of any
person interested in the land which is alleged to have been
transferred in breach of any of the provisions of the said Act.
The present case, is not a case of exercise of suo motu
jurisdiction. The petitioner cannot be regarded as 'person
interested'. Therefore, the very invocation of jurisdiction under
Section 84C was infirm ;
(B)
The obtaining of 'previous sanction' under Section 43 of
the said Act is not a mandatory requirement. The obtaining of
postfacto sanction constitutes substantial compliance. In this
regard, reliance was placed upon the decision in case of
(C)
Bardez vs. Shri Dinkar Vassant Budkule & Anr4;
Shri Deu Rudreshwar Temple Arvalem, Sanquelim, Bicholim,
The said Act has been amended by Maharashtra Act No.
I of 2014, which introduced an additional proviso after the
existing proviso to Section 43(1). This amendment provides
that no previous sanction shall be necessary for transfer of
land, in respect of which ten years have elapsed from the date
of purchase or sale of land under the said Act, subject to
certain conditions. Such amendment, will clearly apply to the
transaction in question and this is an additional reason not to
interfere with the impugned order made by the MRT. In this
regard, reliance was placed upon the decisions in cases of K.
C. Mukerjee, Official Receiver vs. Mr. Ramratan Kuer & Ors.5,
Dahiben (widow of Ranchhodji Jivani) vs. Vasanji Kevalbhai
(dead) & Ors.6, and Ishverlal Thakorelal Almaula (Deceased)
after him his heirs and legal representatives vs. Motibhai
Nagjibhai7.
9]
4
5
6
7
The rival contentions, now fall for my determination.
1999(4) ALL MR 35
AIR 1936 Privy Council 49
1995 Supp (2) SCC 295
AIR 1966 SC 459
Section 43 of the said Act, reads thus:
10]
“43. Restriction on transfers of land purchased or sold
under this Act. (1) No land purchased by a tenant under
sections 32, 32F [32I, 32O, [33C or 43ID]] or sold to any
person under section 32P or 64 shall be transferred by
sale, gift, exchange, mortgage, lease or assignment
without the previous sanction of the Collector, such
sanction shall be given by the Collector in such
circumstances, and subject to such conditions, as may be
prescribed by the State Government:
Provided that, no such sanction shall be
necessary where the land is to be mortgaged in favour of
Government or a society registered or deemed to be
registered under the Bombay Cooperative Societies Act,
1925, for raising a loan for effecting of any improvement
of such land.
(2) Any transfer of land in contravention of sub
section(1) shall be invalid.”
(emphasis supplied)
Rule 25A of the Bombay Tenancy and Agricultural Lands
11]
Rules, 1956 (said Rules), deal with the circumstances in which and
conditions subject to which sanction shall be given by the Collector
under Section 43 for transfer. The same reads thus:
“25A. Circumstances in which and conditions subject to
which sanction shall be given by the Collector under
Section 43 for transfer (1) Under section 43, the
Collector may give sanction for transfer of land in any of
the following circumstances, namely:
(a) that the land is required for an agricultural
purpose by industrial or commercial undertaking in
connection with any industrial or commercial
operations carried on by suchundertaking;
(b) that the transfer is for the benefit of any
educational or charitable institution;
(c) that the land is required by a cooperative
farming society;
(d) that the land is being sold in execution of a
decree of a civil court or for the recovery of arrears of
land revenue under the provisions of the Code;
(e) that the land is being sold bona fide for any
nonagricultural purpose;
(g)
(f)
that the land is being sold by a landowner on
the ground that –
(i)
he is permanently giving up the
profession of agriculturalist, or
(ii) he is permanently rendered incapable of
cultivating the land personally;
(h)
that the land is being gifted in favour of
(i)
the bodies or institutions mentioned in
section 88 A and clauses (a) and (b) of section
88 B, or
(ii) a member of the landowner's family;
that the land is being exchanged
(i)
with land of equal or nearly equal value
owned and cultivated personally by a member
of the same family, or
(ii) with land of equal or nearly equal value
situate in the same village owned and
cultivated personally by another landowner
with a view to forming a compact block of his
holding or with a view to having better
management of the land;
Provided that the total land held and
cultivated personally by any of the parties to the
exchange whether as owner or tenant or partly as
owner and partly as tenant does not exceed the
ceiling area as a result of the exchange;
(i) that the land is being leased by a landowner
who is a minor, or a widow, or a person subject to
any physical or mental disability or a member of the
armed forces or among the landowners holding the
land jointly;
(j)
that the land is being partitioned among the
heirs or survivors of the deceased landowner.
[(k) that the land is being mortgaged in favour of a
society registered or deemed to be registered under
the Maharashtra Cooperative Societies Act, 1960, for
raising a loan for paying the purchase price of such
land;
(l)
that the land is being transferred to a person
who by reason acquisition of his land for any
development project, has been displaced and requires
to be resettled.]
(2) (a) Where the sanction for sale of land is
given in the circumstances specified in clause (a), (b),
(c), (e) of subrule (1), it shall be subject to the
condition of the landowner paying to the State
Government a Nazrana equal to 40 times the
assessment of the land;
(b) In the case of partition sanctioned under clause
(j) of subrule (1), it shall be subject to the condition
that the area allotted to each sharer shall not be less
than the unit specified by the State Government
under clause (c) of subsection (1) of section 27.
12]
The conjoint reading of provisions under Section 43 of the
said Act and Rule 25A of the said Rules, makes it clear that the
sanction contemplated by the provisions, is indeed 'previous sanction'
of the Collector or the competent authority as may be prescribed.
Further, it is also clear that the provisions contained in Section 43
(1) of the said Act are mandatory and any noncompliance would
render the transfer of land invalid.
The said Act is a welfare legislation, enacted inter alia to
13]
prevent the exploitation of agricultural tenants as a class. The
restriction in form of Section 43(1) of the said Act is necessary; as
otherwise, it is possible that the tenants are exploited into effecting
transfers, not merely to the detriment of their own interest, but also
in the interest of agragrain reform. Further, under the provisions of
the said Act, the tenants in cultivation on tiller's day, i.e., 1 April
1957 were vested with rights as deemed purchasers. The purchase
price is to be determined by the prescribed authority under Section
32G of the said Act by applying the provisions under Section 32H of
the said Act. There is no doubt that the purchase price so determined
is a concessional one and may have no corelation with the market
price. Such beneficial provisions came to be enacted in furtherance
of the vision of agragrain reform and not to enable the tenants to
make commercial profits, by way of rampant sale of the property
purchased under the provisions of said Act. If lands purchased by the
tenants under the provisions of the said Act at concessional rates are
permitted to be indiscriminately sold by such tenants for commercial
gains, then the same would not be in furtherance of agragrain
reforms. If therefore, the real intention of the Legislature as well as
the whole scope of statute is to be kept in mind, then it is clear that
the provisions of Section 43 are mandatory in nature. For the
determination as to whether some provision is mandatory or
directory, the language employed in the provisions is no doubt
important. Further, it is necessary to consider the nature and design
of the statute, the consequences which would follow from construing
it one way or other; the impact of other provisions whereby the
necessity of complying with the provisions inquestion is avoided;
the circumstances, namely, that the statute provides for a
contingency of the noncompliance with the provisions; and above
all, whether the object of the legislation will be defeated or
furthered. Applying such tests, it has to be held that the provisions of
Section 43 of the said Act bear a mandatory character.
14]
In this case, Section 43 (2) of the said Act provides that a
transfer in contravention of subsection (1) shall be invalid. When
consequences of nullification on failure to comply with a prescribed
requirement is provided by the statute itself, there can be no manner
of doubt that such statutory requirement must be interpreted as
mandatory. Besides the provisions of Section 43(1) of the said Act
provide that no land purchased by a tenant under specified sections
of the said Act shall be transferred without previous sanction of the
Collector. Thus the legislature has made use of negative words. One
of the well known modes of showing a clear intention that the
provision enacted is mandatory, is by clothing the command in a
negative form. CRAWFORD, on statutory construction has observed
that prohibitive or negative words can rarely, if ever, be directory
and this is so even though the statute provides no penalty for
disobedience.
The provisions specifically makes reference to 'previous
15]
sanction'. If the objective of said enactment is taken into
consideration alongwith phraseology employed by the legislature,
then the mandatory nature of the requirement contained in Section
43(1) cannot be diluted by permitting some postfacto sanction for a
transfer in breach of Section 43(1) of the said Act. This would
render the provisions of Section 43(2) as otiose. Accordingly, there
is no merit in the contention that the provisions of Section 43 of the
said Act are are only directory and that postfacto sanction
constitutes substantial compliance.
16]
In the case of Ashok Baburao (supra), this Court has held that
even if portion of the land purchased by the tenant under the
statutory provisions were to be transferred without obtaining
previous sanction of the Collector under Section 43 of the said Act,
that would tender such transaction invalid and the entire land will
have to be resumed by the State Government in terms of Section 84
C(4) of the said Act, because Section 43 of the Act opens with the
expression 'no land' which would mean that even if portion of the
land is transferred without previous sanction of the Collector, the
entire land will have to be resumed and would vest in the State
In case of Dadu Rau Yelavade decd. by his heirs & Lrs.(supra),
17]
Section 84C of the Act.
Government free from all encumbrances for disposal in terms of
the Supreme Court has held that where the sale by the landlord of
his land was void in view of the provisions of Section 64(8),
declaring that any transfer by a landlord after tiller's day would be
void, the tenant would not acquire rights or title under the sale
deed, even though subsequently, the proceedings under Section 32G
were decided in favour of the tenant, the sale certificate issued in
favour of tenant was regularised by ratifying the earlier transaction
of sale. This is because, the sale of land by one of the tenant again
would be invalid when it was effected prior to the date of the order
of Revenue authorities under Section 32G, as on that date, the
tenants would have no title of land in view of Section 64(8) of the
said Act, which they could validly convey in favour of the
purchasers. Further even if the subsequent conferment title on them
by the order under Section 32G be treated to date back to the date
of sale deed, still vendor being a tenant, who acquired title under
the said Act, is sale his sale to purchaser will fail in view of the
provisions of Section 43(2) of the said Act, providing restrictions on
transfer of the land purchased under the said Act.
In case of Chandrabhan Chunnilal Gour (supra) in the context
18]
of Section 36(1) of the Bombay Public Trusts Act, 1950, this Court
has held that the previous sanction is necessary to validate the
transaction of transfer of trust property. Expost facto sanction cannot
validate such a transaction. Section 36(1) of the Bombay Public
Trust Act 1950, inter alia provided that no sale, exchange or gift or
any immovable property and no lease for a period exceeding ten
years in case of agricultural land and for a period exceeding three
years in case of non agricultural land or building belonging to a
public trust, shall be valid without the previous sanction of the
Charity Commissioner. Sanction may be accorded subject to
condition as the Charity Commissioner may think fit to impose,
regard being had to the interest, benefit or protection of the trust. In
this context, this Court has held that the use of the word 'previous'
before the word 'sanction' in Section 36(1) means that sanction
contemplated by subsection (1) has to be obtained before the
transaction is completed and not thereafter. Expost facto sanction
cannot validate the transaction. Further, Section 36(1) is not merely
procedural or technical and the provisions contained in Section 41E
do not empower the Charity Commissioner to grant an expost facto
sanction.
In case of Shri Deu Rudreshwar Temple Arvalem, Sanquelim,
19]
Bicholim, Bardez (supra), this Court was concerned with provisions
under the Devasthan Regulations, which provided that a Devasthan
cannot institute a suit without previous sanction of the Tribunal. In
the context of the provisions of Devasthan Regulations and upon
considering the scheme thereof, this Court held that the sanction
contemplated was not necessarily previous sanction. The decision,
cannot afford any assistance to the facts and circumstances of the
present case.
20]
The Section 84C of the said Act empowers a Mamlatdar to
either suo motu or an application by a person interested to decide
whether transfer or acquisition, made in contravention of any of the
provisions of the said Act is or or is not invalid. In the present case,
the Mamlatdar may not have exercised suo moto jurisdiction. The
jurisdiction may have been exercised on basis of complaint by the
petitioner. But, it may not be correct to accept that the petitioner is
not at all the person interested in the property. Admittedly, the
petitioner and respondent Nos. 1 and 2 purchased the said property
under the provisions of the said Act. Section 83C(4) provides that
once a transaction in respect of the land purchased and sold by a
tenant is found to be invalid, such land shall vest in the State
Government free from encumbrances. Thereafter it is for the
Mamlatdar to determine the reasonable price and grant such land
on new and impartible tenure in the prescribed manner and upon
following order of priority. The priority list in this regard is
contained in Section 32P(2)(c), which inter alia includes an
agriculturist who holds either as owner or tenant or partly as owner
and partly as tenant landless in area than an economic holding and
who are artisans.
21]
Taking into consideration such provisions, it cannot be said
that the petitioner was not a person interested. Besides the phrase
'person interested', in the context in which it finds place under
Section 84C of the said Act has to be construed liberally. It is open
to person to point out to the Mamlatdar that there has been a
transfer of land in breach of the provisions of the said Act. Upon
verifying the credibility of such information, if the Mamlatdar had
reason to believe that the same is true, then it is for the Mamlatdar
to initiate suo motu proceedings under Section 84C. In such
circumstances, there is no merit in the contention of Mr. shah that
the proceedings under Section 84C were without jurisdiction.
22]
A similar objection was rejected by this Court in case of Ashok
Baburao (supra), by holding that even though the persons referred
to under Section 32P of the said Act may be the only 'interested
persons', the fact remains that suo motu proceedings can always be
initiated by the authorities. Thus, even if, the complainant had no
locus standi, this Court in exercise of writ jurisdiction will be justified
in maintaining the order passed, if it was more than convinced that
the reasons recorded were sound and tenable. Moreover, this Court
would be loathe to exercise writ jurisdiction if erroneous order were
to be restored. Accordingly, no merit was found in the objection
based on doctrine of locus standi.
23]
There is no necessity to go into the issue as to whether the
amendment effected to Section 43 by the Maharashtra Act I of 2014
is retrospective in operation or not. This is because in the present
case the transaction in question was effected on 13 December 1983
and the same was questioned by the petitioner soon thereafter, i.e.,
in the year 1984. At the date when the transfer was questioned, ten
years had not lapsed from the date of purchase or sale of land under
the sections mentioned in the sub section. This is also not a case
where conditions specified in the amendment are alleged to have
been complied with. Accordingly, amendment of 2014, even if the
same is applied to the transaction inquestion, the same does not
24]
save the transaction from being declared as invalid.
The rest of the decisions relied upon by Mr. Surel Shah were
basically in the context of requirement taking cognizance of change
in legal position. These decisions were referred in the context of the
amendment effected to Section 43 by Maharashtra ActI of 2014. As
noted earlier, there is no necessity to go into this issue, because in
the present case, the transaction inquestion was effected on 13
December 1983 and the same was questioned soon thereafter, that is
in the year 1984. In fact, the Tahasildar by order dated 2 September
1985 had declared the transaction as invalid. Accordingly,
amendment of 2014, does not further the case of the respondents.
25]
The Tahsildar and the Assistant Collector had rightly declared
the transaction as invalid. The MRT was not right in observing that
in the present case the requirement of previous sanction was not
mandatory in character and that even a post facto sanction would
suffice. Such view is contrary to the expressed provisions contained
in Section 43 of the Act as also the decisions of this Court as well as
the Supreme Court in the context of similar legislations.
26]
For the aforesaid reasons, the impugned order is set aside and
(M. S. SONAK, J.)
no order as to costs.
Rule is made absolute in terms of prayer clause (b). There shall be
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