[Cites 10, Cited by 0]

Bombay High Court

Tukaram Limbaji Shinde vs Gokul Jaysing Shele And Ors on 10 March, 2026

2026:BHC-AUG:10139
                                                                    WP-1809-2020-III
                                              -1-

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD
                            WRIT PETITION NO. 1809 OF 2020
                                         WITH
                          CIVIL APPLICATION NO.8812 OF 2021
                                         WITH
                          CIVIL APPLICATION NO.14664 OF 2023
                                   IN WP/1809/2020
            1.   Gokul S/o. Jaysing Shele,
                 Age : 65 years, Occu. : Agriculture,
                 R/o. Saptshrungi Colony,
                 Amalner, Taluka Amalner,
                 District Jalgaon.

            2.   Devidas S/o. Jaysing Shele,
                 Age : 60 years, Occu. : Agriculture,
                 R/o. Laxmi Nagar,
                 Near Shriram School, Mehrun,
                 Jalgaon, Taluka and
                 District Jalgaon.                           ... Petitioners
                                                        [Orig. Plaintiffs/Decree Holders]

                      Versus
            1.   Yuvraj S/o. Devram Pardhi,
                 Age : 37 years, Occu. : Agriculture,
                 R/o. Pendharpura, Parola,
                 Taluka Parola, District Jalgaon.

            2.   Sau. Nirmalabai Gopal Pardhi,
                 Age : 51 years, Occu. : Household,
                 R/o. Parase Road, Surat,
                 Taluka and District Surat
                 (Gujrat)

            3.   Sau Mangalabai Himmat Pardhi,
                 Age : 48 years, Occu. : Household,
                 R/o. Patil Gadi, Chopada,
                 Taluka Chopada, District Jalgaon.

            4.   Sunandabai Adhar Pardhi,
                 Age : 45 years, Occu. : Household,
                 R/o. Pendharpura, Parola,
                 Taluka Parola, District Jalgaon.
                                                              WP-1809-2020-III
                                  -2-

5.   Sau Chotibai Sanju Pardhi,
     Age : 35 years, Occu. : Household,
     R/o. Morane, Taluka and District Jalgaon
                                                       ... Respondents
                                             [Orig. Defendants/Judgment debtors]


                                  .....
Mr. Karan Sarosiya h/f. Mr. S. S. Bora, Advocate for petitioners.
Mr. Angad L. Kanade, Advocate for Respondent Nos.1 to 5.
Mr. Moinpasha Shaikh Farid, Advocate for Intervenor in CA/14664/2023.
                                  .....
                              CORAM : ABHAY S. WAGHWASE, J.
                        RESERVED ON : 04 MARCH 2026
                      PRONOUNCED ON : 10 MARCH 2026

ORDER :

1. By invoking Article 227 of the Constitution of India,

petitioners are praying to quash and set aside the order dated

08.02.2012 passed by the learned Civil Judge, Senior Division,

Amalner in Special Darkhast No.08 of 2011 and to allow the

application Exh.18.

2. In brief, the case of petitioners is that, they had instituted

Special Civil Suit No.04 of 2009 against the present respondents for

specific performance of contract with regard to the agricultural land

Block No. 254/1, on the premise that, the defendant nos. 1 to 5, who

were owners of the said land, in view of pressing financial needs on

account of marriage of daughter, agreed to sell the said property for

Rs.7,00,000/- and also obtained earnest amount of Rs.50,000/- and

even executed agreement to sale in favour of the petitioners/ WP-1809-2020-III

plaintiffs on 18.11.2005 and remaining amount was to be paid at the

time of sale deed. It is their further contention that, as defendants

failed to comply and execute sale deed, they were constrained to file

suit and also succeeded in securing decree and in execution of said

decree, they had tendered an application i.e. Special Darkhast No. 08

of 2011 for execution of the decree. It is their further case that,

when they had approached the Sub Registrar, said authority had

refused to register the sale deed for want of permission under

sections 36 and 36A of MLR Code. Therefore, they were constrained

to file application below Exh.18 before the Civil Court urging for

directions to Sub Registrar to register the sale deed, but said

application was rejected by order dated 08.02.2012. Hence, the

instant petition.

3. Learned counsel for petitioners would point out that,

there was agreement of sale in their favour and they had parted with

substantiated amount. When there was refusal to execute the sale

deed, Special Civil Suit was filed and they had succeeded in getting

decree in their favour. That order was not challenged, and as such,

decree had attained finality. Thereafter, decree was put for execution

and even Civil Court had directed the authorities to get the sale deed

executed through Registrar office, but still said authority refused to

the Collector. According to learned counsel, the The Sub Registrar

had no authority to refuse registration. That, the Registration

Authorities had failed to consider that there was decree in their

favour. That, even provisions of sections 36 and 36A of MLR Code

cannot be made applicable because both the parties are belonging to

Scheduled Tribe, and therefore, there was no question of obtaining

prior permission of the Collector. Therefore, for above reasons, Writ

Petition is sought to be allowed by setting aside the order of learned

Civil Judge, Senior Division, Amalner passed on Exh.18 dated

08.02.2012 in Special Darkhast No.08 of 2011.

4. Learned counsel for respondents would support the order

of learned Civil Judge, Senior Division, Amalner, precisely on the

ground that, the land in question is a tribal land and therefore, prior

permission of the Collector is necessary. Therefore, on account of non

compliance with the sections 36 and 36A of MLR Code, the sale deed

could not be executed. For above reasons, he urged to dismiss the

Writ Petition for want of merits.

5. After hearing submissions of both side and on going

through the papers, it is emerging that, Special Civil Suit was

instituted by present petitioners bearing No.04 of 2009 for specific

performance of contract. Present respondents were defendants WP-1809-2020-III

therein. The suit seems to have ended up in favour of the petitioners

and decree was passed vide judgment and order dated 21.07.2010.

6. It further emerges that, the petitioners took steps of

getting the decree executed vide Special Darkhast No. 08 of 2011.

During the said proceedings, when Registration Authorities were

approached for execution of sale deed, said authority noticed that

land being tribal, prior permission as required under sections 36 and

36A of MLR Code was necessary, but it was not available, and as

such, permission was refused, thereafter application Exh.18 seems to

have pressed into service before the learned Civil Court urging for

directions. However, after considering the submissions of both sides,

learned Civil Court also noticed that, in view of bar under sections 36

and 36A of MLR Code, sale deed cannot be executed.

7. Now, learned counsel for petitioners has submitted that

both parties are tribal, and therefore, permission as required by the

Collector under the above provisions, is not mandatory.

Consequently, the aforementioned provisions are reproduced as

under :

36. Occupancy to be transferable and heritable subject to certain restrictions.--

(1) An occupancy shall, subject to the provisions WP-1809-2020-III

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 Schedule 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 (Mah. XXXV of 1974).]

(3) Where an occupant belonging to a Schedule Tribe in contravention of sub-section (2) transfers possession of his occupancy, the transferors or any person who if he survives the occupant without nearer heirs would inherit the holdings, may, "[within thirty years from the 6th July 2014], 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 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 procedure which may be prescribed :

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Provided that, where a Tribal in contravention of sub-section (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 (Mah. XXXV of 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, 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 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, WP-1809-2020-III

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 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 WP-1809-2020-III

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 encumbrance 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 land is situated or within five kilometres 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-

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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 (XIX of 1883), the Agriculturists Loans Act, 1884 (XII of 1884), or the Bombay Non-Agriculturists Loans Act, 1928 (Bom. III of 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 (23 of 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 (5 of 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 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, 4"[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, 42[on the application of the co-

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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 re-classify the occupant as Occupant- Class I; and on such re-classification, the occupant shall hold the occupancy of the land without any restriction on transfer under this Code.

Explanation. - For the purpose of this section, "Schedule 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 43 [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 44[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 declare that they do need such protection) shall, for the purposes of those section be treated in the same manner as members of the Scheduled Tribes.]

36A. Restrictions on transfer 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 (Mah. XXXV of 1974), be transferred in favour of any non-Tribal by way of sale (including sales in execution of a WP-1809-2020-III

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:

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 WP-1809-2020-III

(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 intension 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 (18 of 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 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 WP-1809-2020-III

(Amendment) Act, 1974 (Mah. XXXV of 1974), it is noticed that any occupancy has been transferred in contravention of sub-section (1) 48 [the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu or on the application made by any person interested in such occupancy,] 49 [or on a resolution of the Gram Sabha in Scheduled Areas] [within thirty years form 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 encumberances 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 WP-1809-2020-III

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 of seasonally irrigated land or paddy or rice land or 4 hectares of jirayat land."

8. From the above provisions, it is clear that, while dealing

with tribal land, MLR Code mandates prior permission of the

Collector. In the instant case, it is obvious from the record that no

such prior permission was obtained before entering into agreement

to sale and even prior to sale deed.

Learned counsel for respondents placed on record

judgment of this Court (Nagpur Bench) in Writ Petition No.1556 of

2022 in the case of Vijay Anandrao Moghe and Ors. v. The Additional

Collector and Ors.

9. Therefore, taking into account the above statutory

provisions as well as judgment of this Court, which is squarely

applicable, there is no substance in the petition.