1997(4) ALL MR 321
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.R. DATAR, J.
Shobhechi Daru Utpadan Kharedi Vikri Sangh. Vs. The State Of Maharashtra & Anr.
Writ Petition No. 3225 of 1983
7th July, 1997
Petitioner Counsel: Shri. M.V.SALI
Respondent Counsel: Shri. R.V.PAIShri. R.R.SALVI with Shri D.S.SAVANT
(A) Bombay Tenancy and Agricultural Lands Act (1948), Ss.63, 64A - Maharashtra Cooperative Societies Act (1961), S.133 - Permission under S.63 - Not required to be obtained where sale or transfer is in favour of a co-operative society. (Para 5)
(B) Bombay Tenancy and Agricultural Lands Act (1948), S.63 - Sale to Co-operative Society - Section does not mandate prior sanction. - Where prior permission is necessary legislature has clearly so provided. (Para 6)
JUDGMENT :- The petitioner is a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960. The land survey No.109, admeasuring 12 Acres and 21 gunthas assessed at Rs.3.12, belonged to respondent No.2 Nana Maruti Kashid of Katraj, Taluka Haveli, District - Pune. Though some portion of the land viz. 6 acres was previously under cultivation and crops like Shalu etc. were grown, from the year 1964-65, the entire land appears to have been left fallow. Respondent No.2 agreed to sell 8 acres of land from survey No.109 in favour of the petitioner and, therefore, made an application to the Collector of Pune, for grant of permission for non-agricultural use of the said land. This application was made on 21-9-1966. It however, appears, though facts are not on record, that the petitioner - Society made an application on 26-9-1966 for grant of permission to purchase the land as required under section 63 of the Bombay Tenancy & Agricultural Lands Act, 1948. That application was pending. an agreement of sale was executed on 3rd September 1966, and before that such application was made by the petitioner-Society. On 25th October 1966, the Mamlatdar of Katraj, Taluka Haveli, submitted a report recommending grant of permission in favour of the petitioner-Society to purchase the land from Respondent No.2. Ultimately, the Collector of Pune, granted such permission on 14-2-1967. However, before that, sale deed came to be executed between the respondent No.2 and the petitioner-Society on 24th November 1966, i.e. before grant of permission by the Collector, Pune. If, therefore, appears that suo moto enquiry was started in connection with the sale transaction by the Tenancy Aval Karkun, Haveli, which was numbered as Tenancy Case No.84C-13/Katraj. During such enquiry, the Tenancy Aval Karkun framed issues as below :
1) Whether the suit land comes under the definition of "land" as defined in the Act ?
2) Whether the permission under s.63 of the Act is necessary in present case ?
3) Whether the transferee obtained such permission prior to the date of the transfer ?
4) If so, for what order ?
He recorded a finding that the land was an agricultural land as defined in Section 2(8) of the Tenancy Act and, therefore, permission under section 63 of the said Act was necessary; but transfer is effected without such permission. As such, he passed an order holding transfer to be invalid under section 84C(2) of the Act and forfeited the land to the Government free from all encumbrances subsisting thereon on the date of the order and further to be disposed of the same according to law.
2. This order of the Tenancy Awal Karkun was challenged before the Deputy Collector of Pune in Tenancy Appeal No.13/76 and the Deputy Collector of Pune, by his judgment and order dated 29-11-1977 confirmed the decision of the Tenancy Aval Karkun and dismissed the appeal. The petitioner, thereafter, filed Revision Application No. MRT/P/V/1/78 (Ten. B-132/78) before the Maharashtra Revenue Tribunal, Pune and the learned Member of the Maharashtra Revenue Tribunal, Pune by his judgment and order dated 28-2-1983, dismissed the revision application and that is how the present petition is filed under Article 227 of the Constitution of India.
3. I have heard Shri Sali for the petitioner-Society, Shri Pai. A.G.P, for respondent No.1 - State and Shri Salvi with Shri D.S.Sawant for Respondent No.2. Shri Sali for the petitioner stated that in fact no permission under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 was necessary, having regard to various circumstances. Furthermore, construing provisions of section 63 of the Tenancy Act, prior permission was not at all necessary. In this case, admittedly such permission for sale was obtained and the same was perfectly valid and could not be declared as invalid nor land could be forfeited to Government. In the course of his submission, Shri Sali relied upon number of provisions of the Bombay Co-operative Societies Act, 1925, Maharashtra Co-operative Societies Act, 1960, Bombay Tenancy & Agricultural Lands Act, 1948 and Bombay Tenancy & Agricultural Lands Rules, 1956, Further, he has supported his submissions by unreported decision of this Court in Civil Revision Application No. 77 of 1983 (Dipa Kalu Vanzari Vs. Co-operative Industrial Vasahat Ltd.), dated 1st July 1983. It would, therefore, be necessary to just advert to the legal position since facts are no more in dispute. However, it is necessary to note one thing that the vendor-respondent No.2 herein had made an application to the Collector for grant of permission for non-agricultural use of the land as the land is stated to be fallow and is not useful for the purpose of agriculture. The petitioner is admittedly, a co-operative Society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960.
4. Relying upon the unreported decision of this Court (supra), Shri Sali submitted that this sale being in favour of a co-operative society, no permission under section 63 of the Tenancy Act was necessary and it is true, on going through the judgment in Civil Revision Application No.77 of 1983, that same question arose in that case, but it appears that section 63 of the Tenancy Act, 1948 was not properly construed in that decision. It is therefore, necessary to first advert to section 63 which reads as under :
"63. (a) Save as provided in this Act - (a) no sale (including sale in execution of decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) gift, exchange, or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein in which the possession of the mortgaged property is delivered to the mortgagee,
shall be valid in favour of a person who is not an agriculturist (or who being an agriculturist (will after such sale, gift exchange, lease or mortgage) hold land exceeding two-thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 or who is not an agricultural labourer);
Provided that the Collector or an officer authorised by the (State) Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage on such conditions as may be prescribed.
(Explanation - For the purpose of this sub-section the expression "agriculturist" includes any person who is as result of the acquisition of his land for any public purpose has been rendered landless, for a period not exceeding ten years from the date possession of his land is taken for such acquisition.
(1A) Where any condition subject to which permission to transfer was granted is contravened then the land in respect of which such permission was granted shall be liable to be forfeited in accordance with the provisions of section 84CC.
(1B) Where permission is granted to any transfer of land under sub-section (1) any subsequent transfer of such land shall also be subject to the provisions of sub-section (1).
(2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease of a dwelling house or the site thereof of any land appurtenant to it in favour of an agricultural labourer or an artisan (or a person carrying on any allied pursuit).
(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society (or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors' Relief Act, 1947."
The question of application of section 64 does not arise in the present case which relates to sale of the land by landlord to a particular person and in that connection, he has to make an application for determining a reasonable price and land has to be disposed of in favour of certain persons as enumerated in that section. It is, therefore, unnecessary for me to advert to that section and straightway, section 63 may be considered.
5. Shri Sali first tried to show that sale in favour of a co-operative society does not require permission as held in the unreported decision of this Court and for that purpose reliance upon section 64-A of the Tenancy Act has been placed. Section 64-A of the Tenancy Act reads as under :
"64-A - Nothing in section 63 and 64 shall apply to sales effected by or in favour of a co-operative society under the Bombay Co-operative Societies Act, 1925."
The decision in the Civil Revision Application referred to above, has construed this section 64-A, as the sale by or in favour of the society registered under the Bombay Co-operative Societies Act, 1925 and the word 'registered' has been read in between the words "in favour of a co-operative society" and under the Bombay Co-operative Societies Act. However, from the reading of section 64, the same would go to show that what was intended to be covered by this provision was sales by or in favour of the co-operative societies under the Bombay Co-operative Societies Act, 1925 and exactly, the learned Member of the Maharashtra Revenue Tribunal has held that exemption of provisions of section 63 and 64 would be applicable in case of sales held under the Bombay Co-operative Societies Act, 1925. It is clear, on going through the provisions of Bombay Co-operative Societies Act, 1925 and corresponding enactment - Maharashtra Co-operative Societies Act, 1960, that various landed properties are mortgaged in favour of co-operative Society and on failure to pay the dues or for recovery thereof, those properties are sold. It appears to be intention of the legislature that such sales, which are held in the routine course in respect of the co-operative societies, should not require permission under the provisions of section 63 of the Tenancy Act and, therefore, exemption has been provided under section 64-A. As such, comparing section 64-A of the Tenancy Act and the unreported decision in Civil Revision Application (supra), it would be clear that sale or transfers under the Bombay Co-operative Societies Act, 1925 and under the Maharashtra Co-operative Societies Act, 1960 would not require such permission. Even the case of private transaction entered into by society with a stranger, appears to have been not excluded from the operation of this section. I am, therefore, unable to accept the contention of Shri Sali that section 64.A of the Tenancy Act, would exempt application of sections 63 and 64 of the Tenancy Act to the transactions of present nature impugned in this writ petition.
6. However, subsequent contention of Shri Sali appears to be well founded and must be accepted. The circumstances in which land came to be purchased by the petitioner-Society are well enumerated by Shri Sali, inasmuch as agreement in respect of said transaction took place on 3rd September 1966. Even before that, when talks appeared to be concluded, the petitioner, applied for grant of permission under section 63 of the Tenancy Act on 26-9-1965. That was followed by the Mamlatdar's report recommending transfer in favour of the petitioner on 23th October 1966. Thus, it took one year to make enquiry and make report recommending permission and permission was actually granted on 14th February 1967. As such, it may be seen that from the date of the sale-deed viz. 24th February 1966, permission is granted within three months. It is not understood why the Collector took such a long time to decide the application for grant of permission. By this circumstnace, grant of permission would not be deemed to be granted. The circumstances are enumerated and it would be shown just hereinafter that provisions of section 63 of the Tenancy Act do not provide that prior permission is necessary for effecting transfer. Section 63 has been reproduced above and what it contains is that permission for sale or purchase of land is necessary, but nowhere it is provided that such permission should be a prior permission. It would be useful to note section 43 of the Tenancy Act which deals with the restriction on transfer of land or purchase or sale under this Act. This provision reads that no land purchased by a tenant under various provisions of the Act or sold to any person under section 32P or 64 shall be transferred by sale, gift, exchange, mortgage etc. without the previous sanction of the Collector, such sanction will be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government. I have gone through proviso to section 43 which says that no such sanction shall be necessary where the land is to be mortgaged in favour of Government or a society registered or deemed to have been registered, under the Bombay Co-operative Societies Act, 1925, for raising a loan for effecting any improvement of such land. Thus, where prior sanction is necessary, the Legislature has clearly provided so, while absence of such words in section 63 would go to show that prior permission was not intended under this section. Even the case can be looked at from another angle also, viz. the sale-deed which is already executed by respondent No.2 in favour of the petitioner if taken to be invalid, because of want of permission, after permission was granted by the Collector on 14th February 1967, another sale-deed could be executed by and between the parties and that would be perfectly valid. Thus after construing section 63 of the Tenancy Act and the Rules framed thereunder, rule 36 and proviso thereto, would make it clear that prior permission is not at all necessary and, therefore, the authorities below were clearly in error in holding the sale to be in contravention of section 84C(2) of the Act and that the land is liable to be forfeited.
7. Shri Sali also submitted that even if prior permission was necessary, yet, one granted by the Collector on 14th February 1967 relates back to the date of application and in support of this submission, he relied upon a decision of this Court in Prabhakar G. Bhapare vs. Hari Narayan - 1968 Ten.L.R.90. However, in view of the construction of Section 63, which I have put up, it is not necessary to consider this aspect of the matter.
8. Accordingly, this petition will have to be allowed and rule will have to be made absolute by quashing the orders passed by the Tenancy Aval Karkun, Additional Collector and the Maharashtra Revenue Tribunal, Pune. As such, order passed by the Tenancy Aval Karkun, dated 12th September 1973, in Ten.Case No.84C-13-Katraj; the order dated 14-2-1967 passed by the Additional Collector, Pune in, TNC/63/SR/3/87 and the order dated 28th February 1983, passed by the Maharashtra Revenue Tribunal, Pune, in MRT/P/V/1-78(TNC)-3/132/78 are hereby quashed and set aside and rule is made absolute.