Madhya Pradesh High Court
M/S Mohbe Infrastructure A ... vs The State Of Madhya Pradesh on 3 March, 2021
Author: Vishal Dhagat
AFR
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. W.P. No.3730/2021
Parties Name M/S Mohbe Infrastructure A Partnership
Firm
vs.
State of M.P and others.
Date of Order 03/03/2021
Judgment delivered by Justice Vishal Dhagat
Whether approved for reporting yes
Name of counsels for parties Petitioners: Shri Sankalp Kochar, Adv.
Respondents:Shri Anuj Shrivastava, Panel
Advocate.
Law laid down (i) Land of tribal in notified scheduled
area shall not be transferred or transferable
by way of sale or otherwise or as
consequence of loan transaction to a non-
tribal. Collector has no jurisdiction to grant
permission in aforesaid case of transfer's
referred above.
(ii) In non notified areas i.e. rural areas
and villages, tribal can transfer his land to a
non-tribal after seeking written permission
of Collector.
(iii) Explanation of Section 165 (6) M.P.
Land Revenue Code carves out an exception
that word "otherwise" mentioned in said sub
Section shall not include lease. This means
that in notified scheduled areas or in non-
notified rural areas, there is no bar for
entering into lease between tribals and non-
tribals and permission of Collector for lease
is not required.
(iv) In scheduled notified areas, non-
tribal cannot transfer his non-agricultural
land i.e. land for purpose of dwelling house,
educational purpose, commercial purpose,
industrial purpose (diverted land) by sale or
otherwise or as a consequence of loan
transaction to non-tribal without written
permission of Collector. In simple words,
diverted land of non-tribals cannot be
transferred to non-tribals without
permission of Collector if located in notified
scheduled areas.
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W.P No.3730/2021
(v) Section 165 (6-a) M.P. Land
Revenue Code does not carves out an
exception for word 'otherwise' for leases
which means any land located in notified
scheduled areas non-tribal cannot execute
a lease in favour of other non-tribal
without written permission of Collector.
(vi) As per Section 165 (6) and 165 (6-a)
of M.P. Land Revenue Code, there is no bar
to purchase a land by tribal. A tribal can
purchase a land from another tribal and
also from a non-tribal and permission of
Collector for such transactions are not
required.
-
Significant paragraph numbers 8, 10, 11 and 12
(ORDER)
(03.03.2021)
Petitioner has filed the present writ petition challenging order dated
25.11.2020 contained in Annexure-P/15.
2. It is submitted by counsel appearing for petitioner that petitioner is a
partnership firm which had purchased land bearing Khasra No.102/1 and
Khasra No.102/2, admeasuring total 1.475 hectares. Petitioner firm developed
Real Estate Project 'Betul Pride' on a part of said land. All requisite
permissions were obtained. It is submitted that subsequent purchasers were
Scheduled Castes and were granted approval in legal search report of Canara
Bank. Respondent No.3 i.e. State Bank of India expressed inability to sanction
loan on the project as land which is sought to be mortgaged belongs to
purchaser who is from Scheduled Tribe category. Bank expressed that
permission of Collector was required under relevant provisions of M.P. Land
Revenue Code. When subsequent purchaser approached Collector for getting
permission under Section 165(6) of M.P. Land Revenue Code, the same was
rejected on the ground that there is ban on transfer including creation of
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W.P No.3730/2021
mortgage. It is submitted that Collector ignored the recommendation of
S.D.O. as well as Patwari to grant permission.
3. Perused the order dated 25.11.2020 contained in Annexure-P/15.
4. An application was filed before Collector seeking direction that
provision of Section 165 (6) of M.P. Land Revenue Code is not attracted in
case of project under RERA and diverted land accordingly bank may not ask
for Collector's permission under Section 165 (6) of M.P. Land Revenue Code
for mortgaging the land. Counsel for petitioner relied on the judgment dated
02.11.1972 passed by this Court in M.P. No.535/1971 (Ail Das Vs. Board of
Revenue, Madhya Pradesh and others) and order dated 02.01.2013 passed in
W.P. No.2608/2012 (Kamal Singh Narre Vs. State of M.P. and others).
Collector has wrongly dismissed the application on the ground that land in
question is located in notified scheduled area i.e. Batama, Betul. Notification
is issued by State Government on 21.02.1977 by which, Betul Tehsil area was
notified to be Scheduled Tribe predominant area. Collector wrongly held that
there is complete ban on transfer of land from Scheduled Tribe to a Non-
scheduled Tribe person and, therefore, Collector does not have jurisdiction to
grant permission and no direction can be given to bank because it is province
of bank to decide what documents are required for loan.
5. Counsel appearing for respondent/State opposed the prayer of
petitioner. It is submitted by him that provisions of Section 165(6) of M.P.
Land Revenue Code is attracted in the case. As per said provisions, no land
situated in notified scheduled area predominantly inhabited by aboriginal
tribes be transferred either by way of sale or otherwise in consequence of
transaction of loan to a person not belonging to such tribe. It is submitted by
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W.P No.3730/2021
him that there is no error in order passed by Collector. He relied on judgment
passed in W.A. No.431/2005 dated 19.01.2016.
6. Heard the counsel for petitioner as well as respondents/State.
7. Case of Ail Das and Kamal Singh Narre (supra) relied by petitioner
are distinguishable. In Ail Das (supra) land was located in urban area and in
case of Kamal Singh Narre (supra) condition imposed to develop colony
was under challenge. Collector rightly held said cases are not applicable in
present case.
8. It is clear from perusal of Section 165(6) (i) of M.P. Land Revenue
Code that transaction of land by Bhumiswami belonging to a Scheduled Tribe
which is located in the area notified by the State Government to be a
scheduled area inhabited by predominantly aboriginal tribe cannot be
transferred to a non-scheduled tribe by way of sale or otherwise or in
consequence of loan transaction. No power is given to Collector to grant
permission to a Scheduled Tribe to transfer his land to non-tribal person in
respect of land located in a notified scheduled area predominantly inhabited
by aboriginal tribe. However, in land which are located outside the notified
scheduled area, Collector can grant permission to a tribal to transfer his land
to a non-tribal.
9. Collector has held that land in question is situated in notified scheduled
area, therefore, he has no jurisdiction to grant permission for transfer of land
and it was further held that he cannot give any direction to Bank to ask for
particular documents for grant of loan, it is within the province of Bank to
decide that which document is required by it for granting of loan.
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W.P No.3730/2021
10. Counsel for petitioner submitted that his land is a diverted land,
therefore, provision of Section 165 (6) of M.P. Land Revenue Code, 1959 will
not be applicable. Section 165 (6) and Section 165 (6-a) of the Code is quoted
as under:-
"165. Rights of transfer. - (1) Subject to the other provisions
of this section and the provision of Section 168 a bhumiswami
may transfer [***] any interest in his land.
(6) Notwithstanding anything contained in sub-section (1) the
right of bhumiswami belonging to a tribe which has been
declared to be an aboriginal tribe by the State Government by a
notification in that behalf, for the whole or part of the area to
which this Code applies shall-
(i) in such areas as are predominately inhabited by
aboriginal tribes and from such date as the State
Government may, by notification, specify, not be
transferred nor it shall be transferable either by way of
sale or otherwise or as a consequence of transaction of
loan to a person not belonging to such tribe in the area
specified in the notification;
(ii) in areas other than those specified in the notification
under clause (i), not to be transferred or be transferable
either by way of sale or otherwise or as a consequence of
transaction of loan to a person not belonging to such tribe
without the permission of a Revenue Officer not below
the rank of Collector, given for reasons to be recorded in
writing.
(6-a) Notwithstanding anything contained in sub-section (1),
[the right of a bhumiswami other than a bhumiswami belonging
to a tribe which has been declared to be an aboriginal tribe
under sub-section (6), in the land excluding the agricultural
land] shall not be transferred or be transferable either by way of
sale or otherwise or as a consequence of transaction of loan to a
person not belonging to aboriginal tribe without the permission
of the Collector given for reasons to be recorded in writing:
Provided that every such transfer effected [after the 9th day
of June, 1980 but before the 20th April, 1981] which is not in
accordance with the provisions herein contained shall, unless
such transfer if ratified by the Collector in accordance with the
provisions hereinafter contained, be void and shall be of no
effect whatsoever, notwithstanding anything contained in this
Code or any other law for the time being in force."
There is no force in argument of petitioner that Section 165 (6) of the
Code is not applicable on diverted lands. Even in diverted lands which are
diverted for other than agricultural purposes i.e. for dwelling houses,
educational purpose, commercial purpose, industrial purpose are assessed to
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W.P No.3730/2021
land revenue and it cannot be said that Section 165 (6) of M.P. Land Revenue
Code, 1959 is not applicable on such lands. If land in question is located in an
urban area, and falls within Municipal limits, then provision of Section 165(6)
of Land Revenue Code will not be applicable. Petitioner does not have a case
that land of petitioner falls in an urban area which falls within municipal limits
but is relying on the fact that diversion has been done, therefore, provision of
Section 165 (6) of M.P. Land Revenue Code will not be attracted in his case,
is misconceived. Any land whether diverted or non-diverted agricultural land,
which is situated in notified area, the transfer of any interest shall be regulated
as per provision of Section 165 (6) of M.P. Land Revenue Code. Even on
diverted land, provisions of Section 165 (6) of M.P. Land Revenue Code shall
be applicable. However, lease which is executed by Tribal in favour of Non-
Tribal in notified Scheduled area is not barred. Explanation to Section 165 (6)
lays down that expression 'otherwise' shall not include lease. Explanation
signifies transfer of land by sale or consequence of loan transaction or
otherwise in notified Scheduled area is completely barred but expression
'otherwise' shall not include lease, therefore, lease is permissible in notified
Scheduled area. Further as per Section 165 (6-a) of MP Land Revenue Code
rights of Bhumiswami who is non-tribal having non-agricultural land (diverted
land) in notified Scheduled area shall not be transferred or transferable by sale
or otherwise or as a consequence of loan transaction to a non-tribal person
without permission of Collector. Thus, interest in diverted land of non-tribal
shall not be transferred to non-tribal by way of sale or otherwise or as a
consequence of loan transaction without permission of Collector. Proviso to
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Section 165 (6-a) of MP Land Revenue Code is not considered as same is not
in issue in present case.
11. In view of aforesaid, Section 165(6) and 165 (6-a) of M.P. Land
Revenue Code are summed up as under:-
(i) Land of tribal in notified scheduled area shall not be
transferred or transferable by way of sale or otherwise or as
consequence of loan transaction to a non-tribal. Collector has no
jurisdiction to grant permission in aforesaid case of transfer's
referred above.
(ii) In non notified areas i.e. rural areas and villages, tribal can
transfer his land to a non-tribal after seeking written permission of
Collector.
(iii) Explanation of Section 165 (6) M.P. Land Revenue Code
carves out an exception that word "otherwise" mentioned in said sub
Section shall not include lease. This means that in notified scheduled
areas or in non-notified rural areas, there is no bar for entering into
lease between tribals and non-tribals and permission of Collector for
lease is not required.
(iv) In scheduled notified areas, non-tribal cannot transfer his
non-agricultural land i.e. land for purpose of dwelling house,
educational purpose, commercial purpose, industrial purpose
(diverted land) by sale or otherwise or as a consequence of loan
transaction to non-tribal without written permission of Collector. In
simple words, diverted land of non-tribals cannot be transferred to
non-tribals without permission of Collector if located in notified
scheduled areas.
(v) Section 165 (6-a) M.P. Land Revenue Code does not carves
out an exception for word 'otherwise' for leases which means any land
located in notified scheduled areas non-tribal cannot execute a lease in
favour of other non-tribal without written permission of Collector.
(vi) As per Section 165 (6) and 165 (6-a) of M.P. Land Revenue
Code, there is no bar to purchase a land by tribal. A tribal can
purchase a land from another tribal and also from a non-tribal and
permission of Collector for such transactions are not required.
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W.P No.3730/2021
12. In view of aforesaid, diverted land if situated in notified scheduled
areas belonging to a non-tribal, then there is requirement of permission of
Collector to transfer the land in favour of a non-tribal. However, a land
belonging to non-tribal in notified scheduled area can be transferred in favour
of a tribal and permission of Collector is not required.
13. In view of same, respondents are directed to act in accordance with
aforesaid directions.
14. With aforesaid direction, writ petition filed by the petitioner is disposed
off.
15. A copy of order be sent to Principal Secretary, Department of Revenue
and the Collectors posted in notified scheduled areas.
(VISHAL DHAGAT)
JUDGE
sp/--shabana
Digitally signed by SHABANA ANSARI
Date: 2021.03.10 10:19:33 +05'30'
