Bombay High Court
Mahendrasingh Digvijaysingh Mukne vs The State Of Maharashtra And Ors on 26 May, 2025
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
SNEHA
2025:BHC-AS:22208-DB
ABHAY
DIXIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by CIVIL APPELLATE JURISDICTION
SNEHA ABHAY
DIXIT
Date: 2025.05.26
19:12:31 +0530 WRIT PETITION NO.2727 OF 2018
Mahendarsingh Digvijaysingh Mukne ]
Ruler of ex-State of Jawahar, ]
Jai Vilas Palace, At Post Jawahar, ]
District Palghar (Maharashtra) ] .. Petitioner
Versus
1. The State of Maharashtra, ]
Through the Department of Revenue & Forest, ]
2. The Collector, ]
District Palghar ]
3. The Additional Collector, ]
Jawahar ]
4. Marzban Jehangirji Patel, ]
R/of Patel Pada, Dist. Palghar ] .. Respondents
Dr. Abhinav Chandrachud with Ms. Unnati Ghia and Mr. Subodh Kurudkar,
Advocates, i/by Kurudkar Associates, for the Petitioner.
Dr. Birendra B. Saraf, Advocate General, with Ms. Neha S. Bhide,
Government Pleader, Mr. A.I. Patel, Additional Government Pleader,
Mr. Vaibhav Charalwar, 'B' Panel Counsel and Mrs. M.S. Bane, Assistant
Government Pleader for Respondent Nos.1 to 3.
Mr. Dharmesh Pandya with Ms. Tejal Pandya, Advocates, i/by Ashwin
Pandya & Associates, for Respondent No.4.
CORAM : A.S. CHANDURKAR & RAJESH S. PATIL, JJ
The date on which the arguments were concluded : 25TH APRIL, 2025.
The date on which the Judgment is pronounced : 26th MAY, 2025.
JUDGMENT :
[ Per A.S. Chandurkar, J. ]
1. In this writ petition filed under Article 226 of the Constitution of
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India, the petitioner has challenged the validity of Rule 4(1)(a) of the
Maharashtra Land Revenue (Transfer of Occupancy by Tribals to Non-
Tribals) Rules, 1975.
Rule. Rule made returnable forthwith. With consent of learned
counsel for the parties the writ petition is taken up for final consideration.
2. It is the case of the petitioner that land bearing Gat Nos.6, 9, 10, 14,
15 and 17, situated at Mouje Ashagad (Asave), Tal. Dahanu, Dist. Palghar,
are ancestral lands to which the petitioner has succeeded. The petitioner
belongs to "Mahadev Koli" tribe, which is recognized as a "Scheduled
Tribe" in the State of Maharashtra. The father of the 4 th respondent was
inducted as a tenant of the aforesaid lands by the predecessor of the
petitioner in the year 1940. According to the petitioner, an application
under Section 36A(1)(b) of the Maharashtra Land Revenue Code, 1966
(for short, "the Code") came to be moved. In the said proceedings, the
petitioner and the 4th respondent arrived at an amicable settlement.
Pursuant thereto, the petitioner sought quashing of the proceedings
initiated by him with a further permission to transfer the aforesaid lands
in favour of the 4th respondent. An application dated 23rd February 2004 in
that regard was moved before the Collector. On 1 st September 2006, the
petitioner was informed that the 4 th respondent was a non-tribal and as
the land was being purchased for agricultural use, in view of the
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provisions of Rule 4(1)(a)(i) of the Maharashtra Land Revenue (Transfer
of Occupancy by Tribals to Non-Tribals) Rules, 1975 (for short, "the Rules
of 1975"), permission for transfer could not be granted. Notwithstanding
this communication, the petitioner made another application addressed to
the Hon'ble Revenue Minister for State reiterating the request made
earlier. The petitioner was again informed on 12 th July 2010 that in view
of the provisions of Rule 4(1)(a)(i) of the Rules of 1975, as the land was
being transferred to a non-tribal for agricultural use, such permission
could not be granted. The petitioner and the 4 th respondent have since
continued their efforts to seek permission from the Revenue Authorities. It
is in that backdrop that the petitioner has filed this writ petition raising a
challenge to the validity of Rule 4(1)(a)(i) of the Rules of 1975 by urging
that as it permits transfer by a tribal in favour of a non-tribal only if the
land is to be used for non-agricultural purpose.
3. It may be stated that being aggrieved by the order dated 12 th July
2010 passed by the Additional Collector, Jawahar, the petitioner had filed
a Revision Application before the State Government on 20 th June 2014.
Since the Revision Application was not being heard, the petitioner and the
4th respondent issued communications dated 3 rd May 2016 and 23rd August
2016 to the State Government through its Department of Revenue and
Forest seeking consideration of the same. When the present writ petition
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was being heard, the petitioner on 1 st August 2024 made an application
before the Department of Revenue and Forest stating that he desired to
withdraw the application dated 16th January 2008 and the Revision
Application dated 20th June 2014 with a view to pursue this writ petition.
The petitioner also sought leave to withdraw the joint letters dated 3 rd
May 2016 and 23rd August 2016 as made. It is in this factual backdrop that
the learned counsel for the parties have been heard.
4. Dr. Abhinav Chandrachud, learned counsel appearing for the
petitioner in support of the challenge raised to the validity of Rule 4(1)(a)
of the Rules of 1975 submitted as under :-
(a) Rule 4(1)(a) of the Rules of 1975 was violative of the
provisions of Article 14 of the Constitution of India :-
Basis the statutory scheme of the provisions of
Section 36A of the Code along with the Rules of 1975 it
was submitted that while sanctioning transfer by a tribal
in favour of a non-tribal by the Collector, there was no
reason whatsoever to differentiate between a transfer for
non-agricultural purpose and one for agricultural
purpose. This had no nexus whatsoever with the object
that was sought to be achieved while granting sanction
for transfer. If the Collector on being satisfied of the need
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for granting sanction to a transfer by a tribal in favour of
a non-tribal, the fact that after such transfer the non-
tribal intended to use such land for agricultural purposes
was not relevant at all. The insistence that such sale
ought to be only for bonafide non-agricultural purpose
did not throw any light for restricting the use of the land
after it was transferred. What was relevant were the
considerations for grant of sanction and not the purpose
for which the transferred land was to be used. The
restriction imposed on the purpose of use of the land by
a non-tribal resulted in placing unnecessary fetters on
the right of a tribal to transfer his occupancy. In absence
of any nexus whatsoever behind prohibiting sale by a
tribal in favour of a non-tribal who intended to use the
land for agricultural purpose, Rule 4(1)(a) of the Rules
of 1975 was liable to be struck down. To substantiate
this contention, the learned counsel placed reliance on
the decisions in (i) Ramesh Chandra Sharma and Ors.
Vs. State of Uttar Pradesh and Ors. 2023 INSC 144 (ii)
Deepak Sibal Vs. Punjab University and Anr., 1989 INSC
58 (iii) Lok Prahari Vs. State of Uttar Pradesh and Ors.,
2018 INSC 455 and (iv) Babasaheb Dhondiba Kute Vs.
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Radhu Vithoba Barde, 2019 (1) Bom.C.R. 851.
(b) Rule 4(1)(a)(i) places a fetter on the discretion to be
exercised by the Collector while granting sanction :-
In this regard it was urged that under the
provisions of Section 36A(2) of the Code, the Collector
was required to consider grant of sanction when the
occupancy of a tribal was intended to be transferred in
favour of a non-tribal. Sanction was required to be
granted "in such circumstances and subject to such
conditions as may be prescribed". Under Rule 3 of the
Rules of 1975, an application for transfer of occupancy
under Section 36A and the procedure for disposal of
such application was provided. However, under Rule
4(1)(a)(i) of the Rules of 1975, by restricting the scope
for grant of sanction by the Collector under Section 36A
only when the transfer of the land was for any bonafide
non-agricultural purpose, there was a fetter placed on
the Collector. In other words, it was urged that though
Section 36A(2) of the Code confers a discretion on the
Collector to grant sanction, Rule 4(1)(a)(i) of Rules of
1975 restricted the manner in which such discretion has
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to be exercised. Such restriction while exercising
discretion in the matter of grant of sanction affected the
right of a tribal to transfer his occupancy. While there
was no such restriction placed on a transfer by a tribal to
a non-tribal for agricultural purposes under the Code,
such discretion was imposed by Rule 4(1)(a)(i) of the
Rules of 1975. The said Rule therefore travelled beyond
the parent provision. Referring to the facts of the present
case, it was urged that when the petitioner as a tribal
voluntarily intended to sell his land to the 4 th respondent
who was his tenant and the tenant intended to continue
to use the land for agricultural purpose, it was only on
account of the provisions of Rule 4(1)(a)(i) of the Rules
of 1975 that the Collector could not exercise discretion
in favour of the petitioner. Reference was made to the
decision in Shri Rama Sugar Industries Ltd. Vs. State of
Andhra Pradesh and Ors., 1973 INSC 246 in this regard.
It was further urged that any fetters placed on an
Authority as to the manner in which discretion conferred
is required to be exercised has always been frowned
upon by the Courts. Attention in this regard was drawn
to the decisions in U.P. State Road Transport Corporation
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and Anr. Vs. Mohd. Ismail and Ors., 1991 INSC 99
Anahita Pandole Vs. State of Maharashtra and others,
(2004) 6 Bom CR 246, Shiva Petro-Synth Specialities Ltd
and another Vs. Goa State Pollution Control Board and
others, (2021) 4 Bom CR 591 and Binod Rao Vs.
Minocher Rustom Masani, 1976 (78) Bom.L.R. 125. The
learned counsel also referred observations of Starling, J.
in Gell Vs. Taja Noora, (1903) 27 ILR 307 to buttress his
contention.
(c) Rule 4(1)(a) of the Rules of 1975 could be read down in
exceptional or deserving cases :-
Without prejudice to the challenge to the validity
of Rule 4(1)(a) of the Rules of 1975, it was submitted
that while saving the Rule from being struck down, the
Court may read down the said Rule so as to permit the
Collector to grant sanction for the transfer of a land by a
tribal in favour of a non-tribal for agricultural purpose in
exceptional or deserving cases. According to the learned
counsel, the discretion vested in favour of the Collector
under Section 36A(1) and (2) of the Code could be
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permitted to be exercised in exceptional or deserving
cases to enable transfer of a tribal's land to a non-tribal
for agricultural purposes. This would ensure that the
Rule could be made workable without being required to
be struck down. To buttress this submission, the learned
counsel referred to the facts of the present case to
indicate that the petitioner's predecessor had inducted
the predecessor of the 4th respondent as tenant and now
the petitioner intended to sell the said land to the 4 th
respondent who desired to continue its use for
agricultural purpose.
It was thus submitted that Rule 4(1)(a) of the
Rules of 1975 ought to be quashed as being violative of
the provisions of Article 14 of the Constitution of India
and as it restricted the manner in which the Collector
ought to exercise discretion while granting sanction
under Section 36A(1) and (2) of the Code. In any event,
Rule 4(1)(a) of the Rules of 1975 ought to be read down
so as to permit the Collector to grant sanction to a tribal
to transfer his land to a non-tribal in exceptional,
deserving or genuine cases even if the transferee non-
tribal intended to use the land for agricultural purposes.
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5. Dr. Birendra Saraf, learned Advocate General for the State of
Maharashtra in support of the validity of Rule 4(1)(a) of the Rules of 1975
submitted as under :-
(a) Rule 4(1)(a) of the Rules of 1975 was valid and did not
violate Article 14 of the Constitution of India :-
In this regard, reference was initially made to the
legislative history in the matter of transfer of occupancy
by a tribal in favour of a non-tribal. The statutory scheme
prior to enactment of Maharashtra Act XXXV of 1974 by
which provisions of Section 36 of the Code came to be
amended and Section 36A came to be introduced in the
Code was referred to. Attention was invited to the
Objects and Reasons behind the amendment by
Maharashtra Act XXXV of 1974. Referring to the decision
in Raoji Baliram Urkude Vs. State of Maharashtra and
Anr., 1985 Mah L.J 843, it was submitted that the
validity of the provisions of Section 36A of the Code had
been unsuccessfully challenged. The Act of 1974 and
especially Sections 3 and 4 thereof was the subject
matter of challenge in Lingappa Pochanna Appelwar Vs.
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State of Maharashtra and Anr., 1984 INSC 226 before
the Supreme Court, that was unsuccessful. On this
premise it was urged that there was a definite object
behind imposing a restriction on the transfer of an
occupancy by a tribal in favour of a non-tribal if the land
was intended to be used after such transfer by the non-
tribal for agricultural purpose. The intention was to
safeguard the interest of tribals. The said restriction had
been imposed on the basis of the report of the
Committee constituted by the State Government based
on ground realities. Permission to sell agricultural land to
a non-tribal for agricultural purposes was likely to result
in accumulation of agricultural lands by a non-tribal that
could result in exploitation of tribals with a further
possibility of the tribals tilling the very lands of which
they were owners. It was pointed out that there was no
bar for a tribal to sell his occupancy to another tribal
who could continue the agricultural purpose of utilizing
the land thereafter. Further, the restriction on a tribal
transferor in transferring his occupancy to a non-tribal
for agricultural purpose was uniformly applicable to all
tribals without any distinction. It was permissible for the
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petitioner as a tribal to transfer his occupancy in favour
of another tribal if he intended to continue its
agricultural purpose. There being a clear object behind
imposing such restriction and which object was to
safeguard the interest of tribals, it could not be said that
Rule 4(1)(a) of the Rules of 1975 was violative of Article
14 of the Constitution of India. Reliance was placed on
the decisions in (i) Kashibai wd/o. Sanga Pawar and Ors.
Vs. State of Maharashtra, 1993 Mh.L.J. 1168; (ii)
Murlidhar Dayandeo Kesekar Vs. Vishwanath Pandu
Barde and Anr., 1995 INSC 130; (iii) Samatha Vs. State
of A.P. and Ors., (1997) 8 SCC 191; and (iv) Atul
Projects India Ltd. Vs. Babu Dewoo Farle and Ors., 2011
(6) Mh.L.J. 351 in that regard. It was thus submitted
that this challenge as raised by the petitioner was not
liable to be accepted.
(b) The discretion granted to the Collector while considering
the grant of sanction to transfer was in furtherance of
Section 36A(1) and (2) of the Code :-
It was submitted that since the object behind introducing
Section 36A of the Code and conferring jurisdiction on
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the Collector to consider grant of sanction in the matter
of transfer by a tribal in favour of a non-tribal only for
non-agricultural use, it could not be said that the
exercise of discretion by the Collector contained any
fetters. As long as the transfer in favour of a non-tribal
was for non-agricultural purpose, the Collector could
always grant such sanction. The challenge as raised by
the petitioner was required to be tested in the light of the
law laid down by the Supreme Court in (i) Shayara Bano
Vs. Union of India and Ors. 2017 INSC 785; (ii) Shikhar
and Anr. Vs. National Board of Examination and Ors.,
2022 INSC 390; and (ii) Dental Council of India Vs.
Biyani Shikshan Samiti and Anr., 2022 INSC 419.
Considering the object sought to be achieved behind
enactment of Section 36A of the Code, it was clear that
the Collector had sufficient discretion to exercise while
considering an application for grant of sanction. On the
basis of individual hardship that was sought to be put-
forth by the petitioner, Rule 4(1)(a) of the Rules of 1975
could not be invalidated. In fact, the petitioner had failed
to satisfy any of the tests that have been laid down while
raising a challenge to a delegated piece of legislation.
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The learned Advocate General also placed reliance on
the decision in Pathumma and Ors. Vs. State of Kerala
and Ors., 1978 INSC 7. It was thus urged that even on
this count, the challenge raised by the petitioner was not
liable to succeed. The decisions sought to be relied upon
by the learned counsel for the petitioner were
distinguished and it was submitted that the ratio thereof
could not be applied to the case in hand.
(c) As the provisions of Rule 4(1)(a) of the Rules of 1975
were valid, there was no question of the same being read
down :-
In this regard it was submitted that the Court
would read down a provision only to save it from being
declared as ultra vires. In the present case, Rule 4(1)(a)
of the Rules of 1975 had sufficient nexus with the object
that was sought to be achieved behind enacting Section
36A of the Code. Rule 4(1)(a) of the Rules of 1975
merely sought to ensure that the legislative intent behind
introducing the said provision was satisfied. While there
was no embargo whatsoever on one tribal transferring
his occupancy in favour of another tribal, it was only if
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the non-tribal transferee intended to use the land for
agricultural purpose that such restriction operated. It
was thus urged that there was no occasion whatsoever to
read down Rule 4(1)(a)(i) of the Rules of 1975, as
urged.
Thus on the basis of the aforesaid submissions, it
was urged that the challenge raised by the petitioner to
the validity of Rule 4(1)(a) of the Rules of 1975 had no
merit whatsoever and the writ petition was liable to be
dismissed.
6. In rejoinder, it was urged that the justification offered by the State
to support the validity of Rule 4(1)(a) of the Rules of 1975 was weak in
the facts of the present case and the same did not warrant acceptance.
Since the agricultural use of the land was sought to be continued by the
transferee, there was no reason whatsoever for the Collector to deny
permission for alienation of such land. It was thus submitted that the
prayers made in the writ petition were liable to be granted and permission
to transfer the petitioner's occupancy in favour of the 4 th respondent ought
to be granted.
7. We have heard the learned counsel for the parties at length and with
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their assistance we have perused the documentary material on record. We
have thereafter given thoughtful consideration to the rival contentions of
parties.
At the outset, it would be necessary to refer to the relevant statutory
provisions that have bearing on the challenge to the validity of Rule 4(1)
(a)(i) of the Rules of 1975. Under Section 36(1) of the Code, an
occupancy subject to the provisions of Section 72 of the Code and to any
conditions lawfully annexed to the tenure is deemed heritable and
transferable property. The provisions of Section 36A came to be introduced
in the Code pursuant to its amendment by Maharashtra Act XXXV of
1974. Section 36A of the Code reads as under :-
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
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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:
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 kilometres
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
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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
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of any court or award or order of any Tribunal or
Authority, either suo-moto 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 moto or on an application
made by any person interested in such occupancy, [within
thirty years from the 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
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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.
8. The constitutionality of Section 36A as being violative of the
provisions of Article 14 of the Constitution of India was considered in
Raoji Baliram Urkude (supra) by this Court. Repelling that challenge, it
was held that the historical truth was that tribals belonged to weaker
sections of the society and had been subjected to varied types of
exploitations by taking undue advantage of their backwardness, meekness
and helplessness. In view of the provisions of Article 46 of the Constitution
of India, the Legislature had come forward to protect their interest. The
classification of tribals as made had a clear nexus with the object of
protecting their rights as sought to be achieved. It was held that the
legislation could not be termed to be unreasonable and there was no
ground to hold it to be bad.
9. In Lingappa Pochanna Appelwar (supra), the constitutional validity
of Sections 3 and 4 of the Act of 1974 was questioned. Turning down that
challenge by referring to the State policy enshrined in Article 46 of the
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Constitution, it was observed that existence of Scheduled Tribes as a
distinct class and the preservation of their culture and way of life based
upon agriculture which was inextricably linked with ownership of land
required preventing an invasion upon their lands. The impugned
provisions were in the nature of remedial measures in keeping with the
policy of the State for rendering social and economic justice to the weaker
sections of the society. Transactions between parties having unequal
bargaining power which resulted in transfer of title due to force of
circumstances were sought to be re-opened so as to restitute the parties to
their original position.
10. In Murlidhar Dayandeo Kesekar (supra), refusal of permission by
the Collector under Section 36A of the Code was under challenge.
Referring to the historical background behind enactment of Section 36A of
the Code, it was held that obtaining prior permission for alienation of land
was a condition precedent and before such permission was granted, the
Competent Authority was enjoined by the operation of Article 46 of the
Constitution to enquire whether such alienation was void under law or
violated the provisions of the Constitution and whether permission could
be legitimately granted. The Competent Authority was required to look
into the nature of the property, subject matter of proposed conveyance and
pre-existing rights flowing thereunder as well as consider whether such
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alienation or encumbrance would violate provisions of the Constitution or
the law.
11. In Atul Projects India Ltd. (supra) , a Division Bench of this Court
considered the provisions of Section 36A of the Code and observed that
the said piece of legislation had been enacted with a view to protect tribals
against exploitation and that legislative interpretation must facilitate the
fulfillment of the objects contained in the Directive Principles of State
Policy. An interpretation that would dilute or water down the ambit of
Section 36A therefore ought not to be countenanced. Section 36A was
intended to safeguard the interest of tribals and that even if two
interpretations were possible, the Court would adopt that interpretation
which protected the interest of tribals which the legislation intended to
subserve.
12. From the aforesaid decisions, it becomes clear that the
constitutional validity of Section 36A of the Code has been upheld by the
Supreme Court of India. In view of the provisions of Article 46 of the
Constitution of India, it has been held that the said provision intends to
safeguard and protect the interest of tribals with a view to prevent their
exploitation. The validity of Section 36A of the Code is not under
challenge in the present proceedings. Hence the challenge to Rule 4(1)(a)
(i) of the Rules of 1975 would have to be considered on the premise that
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the parent enactment under which the Rules of 1975 have been framed
have been held to be constitutionally valid.
13. To enable the exercise of powers conferred under Section 36A(2) of
the Code, the Rules of 1975 have been framed pursuant to the power
conferred by Section 328 of the Code. Section 328 to the extent it is
relevant for the present purpose is reproduced as under :-
"328. Rules
1. The State Government may make rules not
inconsistent with the provisions of this Code for
the purpose of carrying into effect the provisions
of this Code.
2. In particular and without prejudice to the
generality of the foregoing provisions, such rules
may provide for all or any of the following
matters:-
(xiii) under sub-section (3) of Section 36, the
rules in accordance with which the
Collector may determine liabilities for
arrears of land revenue or any other dues
and the procedure in accordance with
which he may dispose of applications for
being placed in possession of occupancy
and under sub-section (4) of that Section,
the payment of premium;
(xxvii) under Section 75, the form of register of
alienated lands to be kept the rules subject
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to which a certified extract from that
register may be granted and the fees to be
paid therefor.
................................."
14. The Rules of 1975 came to be published in the Official Gazette on
2nd October 1975. Under Rule 3 thereof, an application for transfer of
occupancy as made under Section 36A is required to be considered by the
Collector. The Collector has to issue a public notice in Form "A" to the
Rules of 1975. The Rule requires publicity being given to the request for
transfer of occupancy by a tribal to enable other tribals who are willing to
have the occupancy transferred to them on the payment of similar
consideration as offered by the non-tribal. This has to be done within a
period of one month from the publication of such notice. The Collector has
to consider applications, if any, received from tribals who are residing in
any village within the radius of five kilometers from the occupancy that is
intended to be transferred. Rule 4 of the Rules of 1975 being the subject
matter of challenge, the same is reproduced as under :-
"4. Sanction of Collector under Section 36A for transfer -
(1) Under Section 36A, the Collector may subject to
the provision of Rule 3, give sanction for -
(a) the sale of the land where it is being sold -
(i) for any bonafide non-
agricultural purpose, or
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(ii) in execution of a decree of a
civil court or for the recovery of
arrears of land revenue under
the provisions of the Code:
Provided that, no sanction for sale shall be
given under sub-clause (ii) of clause (a) of
this sub-rule if the Tribal is likely to be
rendered landless as a result of the sale;
(b) the lease of the land, where the land is
being leased by a lessor who is a minor or
widow or a person under any physical or
mental disability;
(c) the mortgage of the land, where the land
is being mortgaged for purposes of raising
a loan for the development of the land;
(d) the exchange of the land where the land is
being exchanged -
(i) for land of equal or nearly equal
value owned and cultivated
personally by a member of the
Tribal's family, or
(ii) for land of equal or nearly equal
value in the same village owned and
cultivated personally by another
landowner with a view to forming
compact block of his holding or
better management thereof :
Provided that, the total land held
and cultivated personally by any one
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whether as owner or tenant or partly
as owner and partly as tenant does
not exceed an economic holding as a
result of the exchange;
(e) the transfer of the land by way of sale or
lease -
(i) if the land is required by an
industrial undertaking in
connection with any bona fide
industrial operations carried on
or to be carried on by such
undertaking;
(ii) If the land is required for the
benefit of any educational or
charitable institution;
(iii) If the land is required for the
benefit of a co-operative society,
or is likely to be rendered
landless on account of
compulsory acquisition of his
land for any public purpose :
Provided that, no sanction for
the sale shall be given under
clause (f), if the Tribal is likely
to be rendered landless as a
result of the sale.
Explanation - For the purposes
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of the proviso to clause (f), a
person shall be deemed to be
landless if he is a landless
person within the meaning of
that expression as defined in
clause (17) of Section 2 of the
Maharashtra Agricultural Lands
(Ceiling on Holdings) Act,
1961.
(2) Where sanction is given for lease or
mortgage, as the case may be in the
circumstances specified in clause (b) or
(c) of sub-rule (1), it shall be subject to
the condition that the land shall not be
put to any non-agricultural use."
15. From the aforesaid statutory provisions, it becomes clear that
notwithstanding the fact that an occupancy is deemed to be transferable
property under Section 36(1) of the Code, if a tribal intends to transfer
such occupancy in favour of a non-tribal through the modes described in
sub-clause (1) of Section 36A, the previous sanction of the Collector is
mandatory. Under sub-section (2) of Section 36A, the Collector may grant
such sanction "in such circumstances and subject to such conditions as
may be prescribed". The manner in which sanction has to be granted is
indicated in Rules 3 and 4 of the Rules of 1975. Under Rule 4(1)(a)(i), the
Collector can grant sanction to the proposed transfer when a tribal intends
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to sell his occupancy to a non-tribal "for any bonafide non-agricultural
purpose". Thus, in effect, if a tribal occupancy is intended to be
transferred to a non-tribal for agricultural purpose, such sanction cannot
be granted. It is for this reason that the petitioner herein has questioned
this restriction on the transfer of his occupancy in favour of the non-tribal
who intends to continue use of the said occupancy for agricultural
purposes.
16. Before considering the petitioner's challenge to the validity of Rule 4
(1)(a)(i) of the Rules of 1975, it would be necessary to bear in mind the
principles laid down by the Supreme Court in the matter of challenge to a
piece of subordinate legislation. In Shayara Bano (supra) the Supreme
Court has reiterated the principle of law that a subordinate legislation can
be challenged on any of the grounds that are available for challenging a
plenary legislation. There is no rational distinction between a plenary
legislation and subordinate legislation when a ground of challenge under
Article 14 of the Constitution of India is raised. If it is shown that a piece
of legislation is manifestly arbitrary it can be successfully challenged on
that count. At the same time, the presumption of constitutionality also
extends to subordinate legislation as held in P. Krishnamurty (supra).
While considering a challenge to subordinate legislation the Court ought
to inter alia consider the nature, object and scheme of the parent Act for
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which the subordinate legislation has been brought into force. In B.K.
Pavitra (supra), it has been held that the Executive is aware of the
prevailing conditions in society and the Legislature represents the
collective will of the people through their legal representations. The
Legislature as well as the Executive are the best judges of local conditions,
circumstances and special needs of various classes of people. The
presumption of constitutionality thus flows in view of the aforesaid.
17. According to the petitioner, permitting transfer of a tribal occupancy
to a non-tribal only when the land is intended to be used for non-
agricultural purpose and not for agricultural purpose results in an illegal
classification. It is urged that there is no rationale behind the prohibition
for transfer of occupancy by a tribal in favour of non-tribal when the land
is intended to be used for agricultural purpose. There is no nexus
whatsoever with the purpose of protecting the interests of tribals that is
sought to be achieved.
The historical background that has led to the enactment of the Act
of 1974 as well as the introduction of Section 36A of the Code along with
the Rules of 1975 has to be borne in mind. The Revenue and Forest
Department of the State Government on 15 th March 1971 constituted a
Committee to undertake a study in the matter of steps to be taken to
protect the rights of tribals. It is after considering the report of the said
Committee that the Act of 1974 was enacted followed by introducing
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Section 36A in the Code. The basic need for enactment of these statutory
provisions was the exploitation of tribals resulting in their lands being
taken away by non-tribals. It is for this reason that while permitting a
tribal to transfer his occupancy in favour of a non-tribal, the previous
sanction of the Collector has been mandated. Such sanction is required to
be given by the Collector in the given circumstances and subject to
conditions as prescribed.
At the outset, it may be noted that there is no prohibition on the
transfer of a tribal occupancy. A tribal is free to transfer his occupancy in
favour of another tribal. It is only when a tribal intends to transfer his
occupancy to a non-tribal that the previous sanction of the Collector is
necessary. This therefore indicates that while a tribal can transfer his
occupancy in favour of another tribal at will, the only restriction placed is
when a tribal intends to transfer his occupancy by way of sale in favour of
a non-tribal. This provision has been found to be constitutionally valid.
The restriction placed on grant of sanction to the transfer of occupancy by
way of sale in favour of non-tribal only when the transferee intends to use
it for non-agricultural purpose is legally justifiable. The object behind the
same appears to be to prevent non-tribals from accumulating agricultural
lands of tribals which could result in future exploitation of tribals and
requiring them to undertake agricultural operations on the very lands of
which they were owners. Another aspect as highlighted by the learned
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Advocate General was that with financial resources being available to non-
tribals, modern agricultural activities could be undertaken by non-tribals
after purchasing such lands from tribals which would then affect the
agricultural income of tribals in the vicinity. In our view, the restriction
placed on the Collector while granting sanction to the transfer of
occupancy by sale by a tribal in favour of a non-tribal who intends to use it
for agricultural purpose is reasonable in nature and does not fall foul of
the provisions of Article 14 of the Constitution of India. The object is clear
that the agricultural lands of tribals are intended to be protected.
18. In Dharam Dutt and Ors. Vs. Union of India and Ors., (2004) 1 SCC
712, it was held by the Supreme Court in paragraph 56 as under :-
"56. Article 14 of the Constitution prohibits class legislation and
not reasonable classification for the purpose of legislation.
The requirements of the validity of legislation by reference
to Article 14 of the Constitution are: that the subject-matter
of legislation should be a well-defined class founded on an
intelligible differential which distinguishes that subject-
matter from the others left out, and such differential must
have a rational relation with the object sought to be
achieved by the legislation. The laying down of intelligible
differntial does not, however, mean that the legislative
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classification should be scientifically perfect or logically
complete."
It is material to note that Rule 4(1)(b) and (c) of the Rules of 1975
do not prohibit a tribal from granting lease or mortgage of land for
agricultural purpose. Rule 4(2) specifically provides that if sanction is
granted by the Collector to a tribal for leasing or mortgaging his land, the
same would be subject to the condition that the land shall not be put to
any non-agricultural use.
These provisions therefore make it clear that transfer of occupancy
by way of lease or mortgage for agricultural purpose is permissible. In
other words, there is no blanket restriction on the transfer of occupancy
even when the land is intended to be used for agricultural purpose. A
tribal is free to lease out or mortgage his occupancy for agricultural
purpose and the only restriction is that when an occupancy is intended to
be sold, the transferee has to put the land to bonafide non-agricultural
purpose. This would indicate that the restriction on the transfer of
occupancy placed by Rule 4(1)(a)(i) is not absolute and that it is subject
to reasonable exceptions in the form of lease or mortgage by a tribal to a
non-tribal for agricultural use.
19. The principles laid down by the Supreme Court in its decisions in
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Ramesh Chandra Sharma, Deepak Sibal and Lok Prahari (supra) cannot be
made applicable to the facts of the present case as Rule 4(1)(a)(i) applies
equally to all tribals and there is no sub-classification amongst them
whatsoever. The only restriction that has been placed is to the transfer of
an occupancy by a tribal in favour of a non-tribal when the land is
intended to be used for agricultural purpose. This restriction as placed is
reasonable in nature considering the historical background behind the
enactment of these statutory provisions with the avowed object of
safeguarding the interest of tribals and their lands.
20. It was then urged on behalf of the petitioners that the discretion
conferred on the Collector in the matter of grant of sanction for transfer
under Section 36A of the Code stands restricted in view of the provisions
of Rule 4(1)(a)(i) of the Rules of 1975. In other words, while considering
the grant of sanction for transfer, the Collector is prohibited from
exercising discretion for permitting transfer of land even if it is to be used
by the transferee for bonafide agricultural purpose or of like nature.
Notwithstanding the Collector being satisfied that a tribal transferor
deserves to be granted permission to transfer his occupancy, discretion
cannot be exercised in that regard only for the reason that the non-tribal
transferee intends to continue to use the land for agricultural purpose.
21. It is to be borne in mind that Rule 4(1) refers to various
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contingencies on the basis of which the Collector can grant sanction for
transfer under Section 36A of the Code. Such transfer can be effected in
various forms including sale, lease, mortgage, exchange etc. The manner
in which such transfer can be effected have been enumerated. This would
indicate that transfer of occupancy by a tribal through various modes is
permitted. The only restriction or fetter on the exercise of such discretion
by the Collector is to ensure that the contingencies stipulated under Rule
4(1) are satisfied. Within the aforesaid statutory provisions, the Collector
has full discretion on the basis of which he may or may not grant sanction
under Section 36A. It therefore cannot be said that the discretion
conferred on the Collector while considering the grant of sanction under
Section 36A is restricted in any manner whatsoever. The Collector can
exercise his discretion in accordance with law within the statutory
framework and there is no restriction placed in that regard. In these facts,
the ratio of the decisions in Shri Rama Sugar Industries Ltd, Mohd Ismail
and others, Anahita Pandole and Shiva Petro-Synth Specialities Ltd (supra)
cannot be applied to the present case.
22. Under Rule 4(1)(a)(i) of the Rules of 1975, it is permissible for a
tribal to transfer his occupancy if the non-tribal transferor intends to use
the said land for bonafide non-agricultural purpose. If transfer of an
occupancy to a non-tribal who intends to use it for agricultural purpose is
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not permissible, there would be no occasion whatsoever for the Collector
to entertain such application since it would be beyond the purview of Rule
4(1)(a)(i) of the Rules of 1975. The question of exercising discretion
would therefore be only within the permissible limits of Rule 4(1)(a)(i)
and not de hors the same. Once it is found that the restriction placed on a
tribal on the transfer of his occupancy to a non-tribal for agricultural
purpose is reasonable in nature, it cannot be said that the discretion to be
exercised by the Collector in this regard is restricted. Within the
contingencies indicated in Rule 4(1), the Collector has the entire
discretion and he can consider the request for grant of sanction for
transfer under Section 36A of the Code. We therefore do not find that the
ground raised by the petitioner that the discretion conferred on the
Collector in the matter of grant of sanction under Section 36A of the Code
being restrictive in nature is bad in law deserves acceptance. The
observations of Starling J in Gell (supra) do not further the case of the
petitioner.
23. Before parting, we may deal with the submission of the learned
Advocate General that Rule 4(1) (a) (i) of the Rules of 1975 having
operated since 1975 without any grievance being raised for all these years,
the Court may not exercise jurisdiction at the behest of the petitioner after
about five decades. Rule 4(1)(a)(i) having successfully operated for all
these years, it cannot be invalidated on the grounds urged by the
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petitioner.
In this regard, we may only refer to the observations of the Supreme
Court in Motor General Traders Vs. State of A. P., 1983 INSC 163 which
read as under:-
"It is argued that since the impugned provision has been in
existence for over twenty three years and its validity has once been
upheld by the High Court, this Court should not pronounce upon
its validity at this late stage. There are two answers to this
proposition..........
The second answer to the above contention is that mere lapse of
time does not lend constitutionality to a provision which is
otherwise bad. "Time does not run in favour of legislation. If it is
ultra vires, it cannot gain legal strength from long failure on the
part of lawyers to perceive and set up its invalidity. Albeit, lateness
in an attack upon the constitutionality of a statute is but a reason
for exercising special caution in examining the arguments by which
the attack is supported"
We have accordingly dealt with the challenge raised to the validity
of Rule 4(1)(a)(i) on its merits and we do not find any reason to uphold
the same. Individual hardship by itself cannot be a ground to hold a
provision to be invalid or unworkable especially in the light of the fact that
such provision has been enacted keeping in mind the Directive Principles
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under Article 46 of the Constitution of India for the larger good and
welfare of tribals. In absence of any restriction on a tribal such as the
petitioner to transfer his occupancy in favour of any other tribal who can
use it for agricultural purpose or in favour of any other non-tribal if the
land is to be used for bonafide non-agricultural purpose, the insistence for
transferring the occupancy in favour of a non-tribal transferor to enable its
use for agricultural purposes cannot be countenanced. The challenge as
raised to the validity of Rule 4(1)(a)(i) of the Rules of 1975 therefore fails.
24. In absence of any bar for a tribal to transfer his occupancy in favour
of another tribal who can continue to use such land for agricultural
purpose, such restriction on the transfer in favour of a non-tribal by way of
sale if the land is to be used for agricultural purpose does not suffer from
the vice of classification. The challenge to Rule 4(1)(a)(i) of the Rules of
1975 on that count cannot be accepted.
25. For all these reasons, we do not find any merit whatsoever in the
challenge raised to the validity of Rule 4(1)(a)(i) of the Rules of 1975.
The writ petition is therefore dismissed. Rule stands discharged with no
orders as to costs.
[ RAJESH PATIL, J. ] [ A.S. CHANDURKAR, J. ]
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