The proviso to Section 36A(1) to which the Petitioners have invited attention, deals with the procedure to be followed by the Collector while permitting a transfer by a tribal to non-tribal. The said proviso requires the Collector to find out whether any tribal residing in the village or within 5 kms. thereof is prepared to take such occupancy from owner on lease, mortgage or by sale or otherwise. It is, therefore, apparent that the Legislature has intended that when Tribal is selling or transferring his property to non-tribal, before granting permission to such transfer, attempt should be made to find out whether any other tribal in the village is ready and willing to have it. Again as is apparent, this proviso is not applicable in present matter. Section 36A no doubt begins with non obstante clause but then it excludes Section 36(1). It does not in any way exclude operation of Section 36(2). Section 36(1) declares all occupancies to be heritable and transferable subject to restrictions imposed thereupon and Section 36A is one such restriction imposed upon tribal and non tribal. Section 36(2) speaks of a transfer by Tribal and it does not specify the category or nature of purchaser. Thus, all transfers by a tribal have to be with previous sanction of the Collector. Section 36A(1), therefore, has got no bearing on said provision or its effect. The overriding effect given to Section 36A(1) by the Legislature is only to the extent stipulated above i.e. it provides a category of transfers to which provisions of Section 36(1) and deeming fiction therein will not apply. The said position, therefore, does not help present Petitioners in any way. As special provision has been made in Section 36A to regulate transfer by a tribal to non-tribal, proviso of Section 36(2) exempts such transfers made after 6-7-1974 from Section 36(2). All provisions are consistent with each other and provide a complete code for protecting interests of tribals. None of them can be stretched to exempt any transfer made by a tribal in favour of anybody including other tribal also.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
W.P. No. 905 of 2000
Decided On: 06.10.2010
Tulsiram Adku Marape and Ors. Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
B.P. Dharmadhikari, J.
Citation: MANU/MH/1795/2010,2011(1) MHLJ 182.
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