While the previous approval of the State Government is not
contemplated if the transfer is between tribal and tribal or if the
transfer is between tribal and non-tribal and is by lease, or mortgage for period not exceeding five years, the previous sanction of the Collector is a must.
In the teeth of the provisions of Section 36(2) of the Code, which
do not make any distinction based on the status of the purchaser or transferee, it is not possible to accept the submission that if the transfer is between tribal and tribal, the previous sanction of the Collector shall not be necessary. Such submission militates against the plain language of the statutory provisions and if accepted will be destructive of the legislative intent which is to protect the tribals from exploitation.
The fact that the transferee is also a tribal does not necessarily
eliminate the possibility that the transferer tribal may be exploited or may be at the receiving end of the bargain. The Legislature has in its wisdom not exempted tribal to tribal transfer from the requirement of previous sanction from the Collector. Presumably, the Legislature was conscious of the fact that a tribal is vulnerable and could possibly be exploited or induced to part with the agricultural land even by a fellow tribal who is in a more dominating position in life. It is precisely to prevent such exploitation that the previous sanction of the Collector is statutorily mandated. {para 14}
15. I see no error in the view taken concurrently by the Tahsildar and the Additional Collector. The view is consistent with the legislative mandate.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1556 OF 2022
Vijay Anandrao Moghe Vs The Additional Collector/Sub-Divisional Officer,
CORAM : ROHIT B. DEO, J.
DATED : 11 th APRIL, 20 22
Heard. Rule. Rule made returnable forthwith. With consent, the
petition is heard finally.
2. The petitioners are assailing the consistent and concurrent views
of the Tahsildar, Digras and the Additional Collector/Sub-Divisional
Officer, Pusad which have held that the sale-deed executed by Mr.
Kanha Namaji Nisande in favour of petitioner 1-Mr. Vijay Anandrao
Moghe in relation to the agricultural field assigned Gat 76/2,
admeasuring 1.61 H.R. situated at Mouza-Vasantpur Kharda is illegal as
being contrary to the provisions of Section 36 of the Maharashtra Land
Revenue Code (Code). The premise on which the sale-deed is held
illegal and the possession of agricultural field is directed to be restored
to respondents 4 to 6 who claim to be the legal heirs of Mr. Kanha
Namaji Nisande, is that the prior sanction of the Collector to the
transfer is not obtained.
3. The genesis of the orders impugned is an application preferred by
respondents 4 to 6 to the Tahsildar, Digras dated 17-6-2019 contending
that the said respondents are members of the Andh Scheduled Tribe
and that the agricultural field in question was owned by and in
possession of the grandfather of respondents Shankar and Kailash
Nisande. The said respondents contended that while they are in
cultivating possession of the agricultural field, the petitioners herein
have made attempt to forcibly dispossess them claiming to have
purchased the field from deceased Kanha Namaji Nisande.
Respondents 4 to 6 submitted that since the prior sanction of the
Collector was not obtained, the sale-deed allegedly executed by
deceased Kanha Namaji Nisande is clearly illegal.
4. The petitioners responded with the preliminary objection that the
power to declare the sale-deed illegal is vested only with the civil Court.
Perusal of the written statement dated 19-11-2019 reveals that the
petitioners did not dispute that respondents 5 and 6 are tribals
belonging to the Andh Scheduled Tribe. Rather, the petitioners
contended that since the petitioners also belong to the Andh Scheduled
Tribe, permission or sanction of the Collector was not necessary.
5. The Tahsildar, Digras declared the sale-deed illegal since the
same was executed by Mr. Kanha Namaji Nisande without obtaining the
prior sanction of the Collector. The petitioners approached the
Additional Collector in Appeal 01/L.N.D.-31/2021-22 which is
dismissed vide order dated 10-3-2022. The appellate authority agreed
with the Tahsildar, Digras that in the absence of prior sanction of the
Collector, the transfer was illegal.
6. The petitioners approached the Maharashtra Revenue Tribunal,
Nagpur (MRT), which declined to entertain the revision on the ground
that the same was not tenable.
7. In the present petition, the grounds which are raised, are
primarily twin. It is submitted that previous sanction of the Collector is
not required since the transfer is by a tribal in favour of a tribal and the
other ground which is raised, is that in the absence of validation by the
Tribe Scrutiny Committee, the Tribe Certificate of respondents 4 to 6
could not have been relied.
8. The latter submission merits outright rejection since there was
and is no dispute that respondents 4 to 6 are tribals. Rather, from the
very inception of the proceedings, the petitioners themselves have been
at pains to emphasize that both, the petitioners and the private
respondents, are Andh Tribals and, therefore, the previous sanction of
the Collector was not necessary. In the absence of any dispute as to the
status of the contesting private respondents, the question of the
authorities insisting on validation of the Tribe Certificate does not arise.
9. The first submission does not give rise to any question which is
res integra. Identical submission is considered and rejected by this
Court in Tulsiram Adku Marapa & another v. State of Maharashtra &
others, 2011(1) ALL MR 22. It is unambiguously articulated that in
view of the provisions of Section 36(2) of the Code, a transfer between
tribal and tribal would be illegal in the absence of previous sanction of
the Collector’.
10. I respectfully agree with the articulation in Tulsiram Adku
Marapa & another v. State of Maharashtra & others.
11. Section 36 of the Code reads thus :
“36. Occupancy to be transferable and heritable subject to
certain restrictions.
(1) An occupancy shall, subject to the provisions
contained in section 72 and to any conditions lawfully
annexed to the tenure, and save as otherwise provided by law,
be deemed an heritable and transferable property.
(2) Notwithstanding anything contained in the
foregoing sub-section occupancies of persons belonging to the
Scheduled Tribes (hereinafter referred to as the ‘Tribals’)
(being occupancies wherever situated in the State), shall not
be transferred except with the previous sanction of the
Collector :
Provided that, nothing in this sub-section shall apply to
transfer of occupancies made in favour of persons other than
the Tribals (hereinafter referred to as the ‘ non-Tribals’) on or
after the commencement of the Maharashtra Land Revenue
Code and Tenancy Laws (Amendment)Act, 1974].
(3) Where an occupant belonging to a Scheduled Tribe
in contravention of sub-section ( 2) transfers possession of his
occupancy, the transferor or any person who if he survives the
occupant without nearer heirs would inherit the holdings,
may, [within thirty years from the 6th July, 2004), apply to the
Collector to be placed in possession subject so far as the
Collector may, in accordance with the rules made by the State
Government in this behalf, determine to his acceptance of the
liabilities for arrears of land revenue or any other due which
form a charge on the holding,[and, notwithstanding anything
contained in any law for the time being in force, the Collector
shall] dispose of such application in accordance with the
procedure which may be prescribed:
Provided that, where a Tribal in contravention of subsection
(2) or any law for the time being in force has, at any
time before the commencement of the Maharashtra land
Revenue Code and Tenancy Laws (Amendment) Act, 1974
transferred possession of his occupancy to a non-Tribal and
such occupancy is in the possession of such non-Tribal or his
successor-in-interest, and has not been put to any nonagricultural
use before such commencement, then, the
Collector shall, notwithstanding anything contained in any
law for the time being in force, either suo motu at any time or
on application by the Tribal (or his successor-in-interest)
made at any time [within thirty years from the 6th July, 2004),
after making such inquriy as he thinks fit, declare the transfer
of the occupancy to be invalid, and direct that the occupancy
shall be taken from the possession of such non-Tribal or his
successor-in-interest and restored to the Tribal or his
successor-in-interest.
( * * * * * * )
Provided further that where transfer of occupancy of a
Tribal has taken place before the commencement of the said
Act, in favour of a non-Tribal, who was rendered landless by
reason of acquisition of his land for a public purpose, only half
the land involved in the transfer shall be restored to the
Tribal.
(3A) Where any Tribal (or his successor-in-interest) to
whom the possession of the occupancy is directed to be
restored under the first proviso to sub-section (3) expresses
his unwillingness to accept the same, the Collector shall, after
holding such inquiry as he thinks fit, by order in writing,
declare that the occupancy together with the standing crops
therein, if any, shall with effect from the date of the order,
without further assurance, be deemed to have been acquired
and vest in the State Government.
(3B) On the vesting of the occupancy under sub-section
(3A), the non-Tribal shall, subject to the provisions of subsection
(3C), be entitled to receive from the State Government
an amount equal to 48 times the assessment of the land plus
the value of improvements, if any, made by the non-Tribal
therein to be determined by the Collector in the prescribed
manner.
Explanation.- In determining the value of any
improvements under this sub-section, the Collector shall have
regard to
(i) the labour and capital provided or spent on
improvements;
(ii) the present condition of the improvement;
(iii) the extent to which the improvements are likely to
benefit the land during the period of ten years next following
the year in which such determination is made;
(iv) such other factors as may be prescribed.
(3C) Where there are persons claiming encumbrances
on the land, the Collector shall apportion the amount
determined under sub-section (3B) amongst the non-Tribal
and the person claiming such encumbrances, in the following
manner, that is to say-
(i) if the total value of encumbrances on the land is less
than the amount determined under sub-section (3B), the
value of encumbrances shall be paid to the holder thereof in
full;
(ii) if the total value of encumbrances on the land
exceeds the amount determined under sub-section (3B), the
amount shall be distributed amongst the holders of
encumbrances in the order of priority:
Provided that, nothing in this sub-section shall affect
the right of holder of any encumbrances to proceed to enforce
against the non-Tribal his right in any other manner or under
any other law for the time being in force.
(3D) The land vested in the State Government under
sub-section (3A) 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 lands is situate or within five kilometers thereof and who
is willing to accept the occupancy in accordance with the
provisions of this Code and the rules and orders made
thereunder and to undertake to cultivate the land personally,
so, however, that the total land held by such Tribal, whether
as owner or tenant, does not exceed an economic holding
within the meaning of sub-section (6) of section 36A.]
(4) Notwithstanding anything contained in sub-section
(1) or in any other provisions of this Code, or in any law for
the time being in force it shall be lawful for an Occupant
Class-II to mortgage his property in favour of the State
Government in consideration of a loan advanced to him by
the State Government under the Land Improvement Loan Act,
1883, the Agriculturists Loans Act, 1884, or the Bombay Non-
Agriculturists Loans Act, 1928, or in favour of a co-operative
society [or the State Bank of India constituted under section 3
of the State Bank of India Act, 1955, or a corresponding new
bank within the meaning of clause (d) of section 2 of the
Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970, or the Maharashtra State Financial
Corporation established under the relevant law] in
consideration of a loan advanced to him by such co-operative
society, (State Bank of India, corresponding new bank, or as
the case be, Maharashtra State Financial Corporation], and
without prejudice to any other remedy open to the State
Government, [the co-operative society, the State Bank of
India, the corresponding new bank, or as the case may be, the
Maharashtra State Financial Corporation] in the event of such
occupant making default in payment of such loan in
accordance with terms on which such loan is granted, it shall
be lawful for the State Government, [the co-operative society,
the State Bank of India, the corresponding new bank, or as
the case may be, the Maharashtra State Financial
Corporation] to cause the occupancy to be attached and sold
and the proceeds to be applied towards the payment of such
loan.
The Collector may, [on the application of the cooperative
society , the State Bank of India, the corresponding
new Bank or the Maharashtra State Financial Corporation],
and payment of the premium prescribed by the State
Government in this behalf, by order in writing reclassify the
occupant as Occupant—Class I; and on such re-classification,
the occupant shall hold the occupancy of the land without any
10 wp1556.22
restriction on transfer under this Code.
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 Schedule 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 parts 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]”
12. Section 36A of the Code, which is inserted by Maharashtra Act 35
of 1974 is a special provision which restricts the transfer of the
occupancy of a tribal in favour of non-tribal and reads thus :
“36A. Restrictions on transfers of occupancies by Tribals
(1) Notwithstanding anything contained in sub-section
(1) of Section 36, no occupancy of a tribal shall, after the
commencement of the Maharashtra Land Revenue Code and
Tenancy Laws (Amendment) Act, 1974, be transferred in
favour of any non-tribal by way of sale (including sales in
execution of a decree of a Civil Court or an award or order of
any Tribunal or Authority), gift, exchange, mortgage, lease or
otherwise, except on the application of such non-tribal and
except with the previous sanction -
(a) in the case of a lease, or mortgage for a period not
exceeding 5 years, of the Collector; and
(b) in all other cases, of the Collector with the previous
approval of the State Government:
11 wp1556.22
Provided that, no such sanction shall be accorded by the
Collector unless he is satisfied that no tribal residing in the
village in which the occupancy is situate or within five
kilometers thereof is prepared to take the occupancy from the
owner on lease, mortgage or by sale or otherwise.
Provided further, that in villages in Scheduled Areas of
the State of Maharashtra, no such sanction allowing transfer
of occupancy from tribal person to non-tribal person shall be
accorded by the Collector unless the previous sanction of the
Gram Sabha under the jurisdiction of which the tribal
transferor resides has been obtained.]
Provided also that, in villages in Scheduled Areas of the
State of Maharashtra, no sanction for purchase of land by
mutual agreement, shall be necessary, if, -
(i) such land is required in respect of
implementation of the vital Government Projects; and
(ii) the amount of compensation to be paid for such
purchase is arrived at in a fair and transparent manner.
Explanation – For the purposes of the second proviso,
the expression “vital Government project” means project
undertaken by the Central or State Government relating to
National or State highways, Railways or other multi-modal
transport projects, electricity transmission lines, Roads, Gas or
Water Supply pipelines canals or of similar nature, in respect
of which the State Government has, by Notification in the
Official Gazette, declared its intention or the intention of the
Central Government, to undertake such project either on its
own behalf or through any statutory authority, an agency
owned and controlled by the Central Government or State
Government, or a Government Company incorporated under
the provisions of the Companies Act 2013 or any other law
relating to companies for the time being in force.]
(2) The previous sanction of the Collector may be given
in such circumstances and subject to such conditions as may
be prescribed.
(3) On the expiry of the period of the lease or, as the
case may be, of the mortgage, the Collector may,
notwithstanding anything contained in any law for the time
being in force, or any decree or order of any court or award or
12 wp1556.22
order of any Tribunal or Authority, either suo motu or on
application made by the tribal in that behalf, restore
possession of the occupancy to the tribal.
(4) Where, on or after the commencement of the
Maharashtra Land Revenue Code and Tenancy Laws
(Amendment) Act, 1974, it is noticed that any occupancy has
been transferred in contravention of sub-section (1), [the
Collector shall, notwithstanding anything contained in any
law for the time being in force, either suo motu or on an
application made by any person interested in such occupancy,
[or on a resolution of the Gram Sabha in Scheduled Areas]
within thirty years from 6th July, 2004] hold an inquiry in the
prescribed manner and decide the matter.
(5) Where the Collector decides that any transfer of
occupancy has been made in contravention of sub-section (1),
he shall declare the transfer to be invalid, and thereupon, the
occupancy together with the standing crops thereon, if any,
shall vest in the State Government free of all encumbrances
and shall be disposed of in such, manner as the State
Government may, from time to time direct.
(6) Where an occupancy vested in the State
Government under sub-section (5) is to be disposed of, the
Collector shall give notice in writing to the tribal-transferor
requiring him to state within 90 days from the date of receipt
of such notice whether or not he is willing to purchase the
land. If such tribal-transferor agrees to purchase the
occupancy, then the occupancy may be granted to him if he
pays the prescribed purchase price and undertakes to cultivate
the land personally; so however that the total land held by
such tribal-transferor, whether as owner or tenant, does not as
far as possible exceed an economic holding.
Explanation- For the purpose of this section, the
expression "economic holding" means 6.48 hectares (16 acres)
of jirayat land or 3.24 hectares (8 acres) of seasonally
irrigated land, or paddy or rice land, or 1.62 hectares (4
acres) of perennially irrigated land, and where the land held
by any person consists of two or more kinds of land, the
economic holding shall be determined on the basis of one
hectare of perennially irrigated land being equal to 2 hectares
13 wp1556.22
of seasonally irrigated land or paddy or rice land or 4 hectares
of jirayat land.”
13. The provisions of Sections 36 and 36-A of the Code serve the
salutary purpose of protecting the interest of tribals, who are
legislatively perceived to be potentially vulnerable. While Section
36(2) of the Code prohibits transfer of occupancies of persons
belonging to the Scheduled Tribe except with the previous sanction of
the Collector, and the prohibition would come into play even if the
transfer is in favour of a tribal, Section 36A of the Code specifically
governs the transfers of occupancies by tribals in favour of non-tribal.
Section 36A of the Code mandates that such transfer will require the
previous sanction of the Collector if the transfer is by way of lease, or
mortgage for a period not exceeding five years and in all other cases,
the previous sanction of the Collector with the previous approval of the
State Government. The proviso obligates the Collector not to accord
sanction unless he is satisfied that no tribal residing in the village in
which the occupancy is situate or within 5 kilometers thereof is
prepared to take the occupancy from the owner on lease, mortgage or
by sale or otherwise.
14. While the previous approval of the State Government is not
contemplated if the transfer is between tribal and tribal or if the
transfer is between tribal and non-tribal and is by lease, or mortgage for period not exceeding five years, the previous sanction of the Collector is a must.
In the teeth of the provisions of Section 36(2) of the Code, which
do not make any distinction based on the status of the purchaser or
transferee, it is not possible to accept the submission that if the transfer
is between tribal and tribal, the previous sanction of the Collector shall
not be necessary. Such submission militates against the plain language
of the statutory provisions and if accepted will be destructive of the
legislative intent which is to protect the tribals from exploitation.
The fact that the transferee is also a tribal does not necessarily
eliminate the possibility that the transferer tribal may be exploited or
may be at the receiving end of the bargain. The Legislature has in its
wisdom not exempted tribal to tribal transfer from the requirement of
previous sanction from the Collector. Presumably, the Legislature was
conscious of the fact that a tribal is vulnerable and could possibly be
exploited or induced to part with the agricultural land even by a fellow
tribal who is in a more dominating position in life. It is precisely to
prevent such exploitation that the previous sanction of the Collector is
statutorily mandated.
15. I see no error in the view taken concurrently by the Tahsildar and
the Additional Collector. The view is consistent with the legislative
mandate.
16. No case is made out for this Court to interfere in writ jurisdiction.
17. The petition is dismissed.
JUDGE
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