Pandharinath Savliram Bhagat vs Laxman Govind Bhagat And Ors
2016 Latest Caselaw 2121 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                                
                            WRIT PETITION NO. 602      OF 2002




                                                        
            Shri Pandharinath Sawaliram Bhagat           ..      Petitioner
                  vs.
            Shri Laxman Govind Bhagat




                                                       
            deceased through his LRs
            Shri Rambhau Govind Bhagat & Ors.           ..       Respondents


            Mr. P. N. Joshi for Petitioner.




                                             
            None for Respondents.
                                    ig   CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 22 April 2016 Date of Pronouncing the Judgment : 02 May 2016

JUDGMENT :-

1] The challenge in this petition is to the judgments and orders

dated 24 May 2000 and 7 September 2001 made by the Tahsildar

and the Maharashtra Revenue Tribunal (MRT) holding that the

transfer of the suit property in favour of the petitioner is illegal and

directing the petitioner to restore the suit property to the

respondents.

2] The petitioner claims to belong to a Hindu Thakur community

which is recognised as a scheduled tribe, in so far as the State of

Maharashtra is concerned. It is the case of the petitioner that in

terms of the agreement for sale dated 23 April 1990 the

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predecessor-in-title of the respondents i.e. Laxman Govind Bhagat,

agreed to sell the suit property to the petitioner and further, placed

the petitioner in possession of the suit property as well. On 18 May

1992, the petitioner's name was entered as a Kabjedar in the

revenue records vide mutation entry no. 184.

3] In the year 1999, the respondents who are the legal

representatives of late Laxman Govind Bhagat questioned the

mutation entry by instituting an appeal before the Sub Divisional

Officer (SDO). The SDO held that since the parties are Adivasis, the

transfer is contrary to the provisions contained in the Maharashtra

Land Revenue Code 1966 (LRC) and directed the Tahsildar to hold

enquiry into the matter. The appeal instituted by the respondents

was kept pending in the meantime.

4] The Tahsildar registered Adivasi Case No. 1 of 2000, issued

notices to the parties and by order dated 24 May 2000, held that the

transfer of the suit property in favour of the petitioner was illegal and

directed the petitioner to restore the suit property to the

respondents.

5] The petitioner appealed against the Tahsildar's order dated 24

May 2000 to the MRT. The MRT by impugned judgment and order

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dated 7 September 2001 has dismissed the appeal holding that the

transfer of the suit property in favour of the petitioner was indeed in

breach of the provisions contained in section 36(3) of the LRC.

Hence, the present petition.

6] Rule was issued in the present petition on 13 March 2002.

Interim relief was granted in terms of prayer clause (c). However, it

was made clear that the interim relief has been granted only on the

basis that the petitioner claims to be in possession of the suit

property. The grant of interim relief was not to stand in the way of

any other enquiry under the LRC for mutation or changes in survey

record.

7] Mr. Joshi, learned counsel for the petitioner has submitted

that the provisions contained in section 36 of the LRC do not apply

in the present matter, since, both the predecessor-in-title of the

respondents as well as the petitioner are members of the scheduled

tribe. Mr. Joshi submitted that the provisions contained in section

36(3) of the LRC are attracted only where the transfer of property is

from a member of the scheduled tribe to a non tribal.

8] Mr. Joshi further submitted that in the present case there was

no transfer of the suit property at all. The predecessor in title of the

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respondents had merely agreed to sell the suit property to the

petitioner. In the absence of any transfer, Mr. Joshi submitted that

the provisions contained in section 36 of the LRC were not at all

applicable.

9] Finally, Mr. Joshi submitted that the parties i.e. the petitioner

and the predecessor in title of the respondents had already filed an

application dated 3 April 1990 before the Collector, Nashik

requesting for permission to sell the suit property. The said

application, till date has not been disposed of. Mr. Joshi submitted

that in case permission is granted by the Collector, then, the

transaction will be completely valid and the petitioner will be entitled

to have the suit property transferred in his favour. Mr. Joshi

submitted that since these aspects are not being considered, the

impugned orders warrant interference.

10] The respondents, though served, have not appeared

themselves or through any Advocate at the stage of final hearing.

Considering that this petition relates to the year 2002, it would not

be appropriate to adjourn the same any further.

11] In order to appreciate the contentions raised by Mr. Joshi, at

the outset, reference is necessary to the provisions contained in

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section 36 of the LRC, which 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 holding, may,

(within thirty years from the 6th July 2004), apply to the Collector to be placed in possession subject so far as to 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 dues 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

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procedure which may be prescribed.

(Provided that, where a Tribal in contravention of sub-

section (2) or any law for the time being in force has, it 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 non- agricultural use before such commencement, then, the

Collector shall, not withstanding 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 6 th July 2004), after

making such inquiry 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 thereon, if any shall effect from the date of the order, without

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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

sub-section (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 improvements;

(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

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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 36 A).

(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

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advanced to him by such co-operative society, [State Bank of India, corresponding new Bank, or as the case may 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 co-operative

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 reclassification, the occupant shall hold the occupancy of the land without any 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 Scheduled 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

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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 36(2) as aforesaid is quite clear, in as much as it

provides that the occupancies of persons belonging to the

scheduled tribes shall not be transferred except with the previous

sanction of the Collector. The proviso to sub section (2) however

provides that nothing in this sub section shall apply to transfer of

occupancies made in favour of persons other than tribals on or after

the commencement of the Maharashtra Land Revenue Code and

Tenancy laws (Amendment) Act 1974.

13] Sub section (3) of section 36 of the LRC provides that where

an occupant belonging to a scheduled tribe in contravention of sub-

section (2) transfers possession of his occupancy, the transferor or

any other person who if survived the occupant without nearer

heirs would inherit the holding, may, within thirty years from 6 July

2004 apply to the Collector to be placed in possession subject so

far as to the Collector may, in accordance with the rules made by

the State in this behalf, determine to his acceptance of the liabilities

for arrears of land revenue or any other dues which form a charge

on the holding and notwithstanding contained in any law for the time

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being in force, the Collector shall dispose of such application in

accordance with the procedure which may be prescribed.

14] The proviso to sub section (3) of section 36 of the LRC

provides that where a tribal in contravention of sub section (2) or

any law for the time being in force, as, at any time before the

commencement of the 1974 amendment transfer the possession of

his occupancy to a non tribal and such occupancy is in possession

of such non tribal, or his successor-in-interest, and has not been

put in to any non agricultural use before such commencement,

then, the Collector shall notwithstanding anything contained in any

other law for the time being in force, either suo motu at any time or

on application by the tribal (or his successor-in-interest) may any

time within thirty years from 6 July 2004, after making such enquiry

as he thinks fit declare the transfer of 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 restore to the tribal

or his successor-in-interest.

15] Thus, sub section (2) of section 36 at least prima facie, bars

the transfer of occupancies belonging to the scheduled tribes

except with the previous sanction of the Collector. The proviso only

renders inapplicable the provisions contained in sub section (2) to

transfer of occupancies made in favour of non tribals on or after the

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commencement of the Maharashtra Land Revenue Code and

Tenancy Laws (Amendment) Act 1974. In the present case, the

petitioner has claimed to be a tribal. Therefore, at least prima

facie, the proviso to sub section (2) of section 36 will not apply to

the case of the petitioner. Since proviso will not apply, in terms of

sub section (2) of section 36 of the LRC, transfer of occupancy by

Laxman Govind Bhagat, the predecessor-in-title of the respondents,

ought to have been preceded with the sanction of the Collector. In

the present case, admittedly, there is no sanction of the Collector.

16] Notwithstanding the aforesaid position however, this is a fit

case to remand the matter to the MRT for fresh decision in the light

of the aforesaid observations, primarily because the petitioner

contends that there has been no transfer of occupancy in his favour

by virtue of the agreement for sale dated 23 April 1990 and that

such transfer of occupancy was to take place only if the Collector

were to accord sanction as per application dated 3 April 1990

addressed by Laxman Govind Bhagat, seeking permission for sale /

transfer. There does not appear to be any consideration on this

aspect by the MRT in the impugned judgment and order dated 7

September 2001. Further, it will be appropriate to direct the

Collector to verify if the application dated 3 April 1990 purportedly

made by Laxman Govind Bhagat is pending consideration and if so,

to dispose of the same in accordance with law and with utmost

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despatch. Until the consideration of such application, the MRT may

not proceed with the appeal No. LRC.TRB.194-A-2001, which is

now restored before the MRT. Depending upon the decision of the

Collector, the MRT may then proceed to dispose of the appeal.

Needless to add that the Collector of Nashik will afford opportunity

of hearing to the petitioner as well as the respondents herein,

before, any decision is taken on Laxman Govind Bhagat's

application dated 3 April 1990.

17]

Accordingly, for the aforesaid reasons, the impugned

judgment and order dated 7 September 2001 made by the MRT is

set aside. Appeal no. LRC.TRB.194-A-2001 is restored to the file of

the MRT. The Collector of Nashik is directed to verify whether the

application dated 3 April 1990 was indeed made by Laxman Govind

Bhagat requesting for permission to sell the suit property and

further, whether the same is still pending. If the application is

pending, the Collector Nashik is directed to dispose of the same in

accordance with law within a period of four months from the date of

production of authenticated copy of this order. In case no such

application was ever made or that the same is disposed of, the

Collector Nashik to make his report to the MRT in appeal no.

LRC.TRB.194-A-2001, again within a period of four months from the

date of production of authenticated copy of this order. The Collector

Nashik to afford opportunity of hearing to all parties before any

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decision / report is made in the matter. The Collector Nashik to

decide the application dated 3 April 1990, if indeed made or pending

in accordance with law and on its own merits and thereafter forward

the decision / report to the MRT in appeal no.LRC.TRB.194-A-2001.

The MRT to thereafter dispose of the appeal in accordance with

law and on its own merits by taking into consideration the decision /

report of the Collector of Nashik as also the observations made in

this judgment and order.

18]

The petitioner claims to be in possession of the suit property.

The petitioner shall accordingly maintain status quo in relation to the

suit property until the final disposal of appeal no. LRC.TRB.194-A-

2001 by the MRT. The alleged possession of the petitioner, shall

therefore, abide by the final orders that may be made by the MRT in

the said appeal. The petitioner is specifically restrained from parting

with alleged possession or creating any third party rights in or upon

the suit property during the pendency of the appeal before the

MRT.

19] Rule is accordingly made absolute to the aforesaid extent

only. There shall however be no order as to costs.

20] The parties are directed to appear before the MRT on 14

June 2016 at 11 a.m. and produce authenticated copy of this order.

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In case, the respondents herein who are also the respondents in

the appeal before the MRT do not appear on the said date, the MRT

is requested to issue appropriate notices to them, so that they have

an opportunity to appear in the appeal proceedings.

21] All concerned to act on basis of authenticated copy of this

order.

                                    ig                   (M. S. SONAK, J.)
            Chandka