2013(5) ALL MR 724
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.Y. CHANDRACHUD AND S.C. GUPTE, JJ.

Adivasee Sarvangin Vikas Samitee Vs. The State Of Maharashtra & Ors.

Public Interest Litigation No.120 of 2010

12th July, 2013

Petitioner Counsel: Mr. Anil V. Anturkar,Mr. Sandeep S. Salunkhe
Respondent Counsel: Mr. D.J. Khambata,Mr. A.B. Vagyani,Mr. R.S. Apte,Mr. Mandar Limaye,Mr. Rakesh Misar,S. Mohammedbhai & Co.,Mr. Shivaji P. Yadav,Ms. Shiksha Puri,Vidhi Partners

Maharashtra Land Revenue Code (1966), S.36A - Restriction on transfers of occupancies by tribals - Scope stated.

Section 36A imposes a prohibition on the transfer of the occupancy of a tribal in favour of a non-tribal by way of sale, gift, exchange, mortgage, lease "or otherwise". The expression "or otherwise" is of a comprehensive nature and would include all arrangements by which the occupancy of a tribal is sought to be transferred in favour of a non-tribal. Irrespective of the nature of the device, whether it is in the form of a development agreement coupled with the power of attorney or otherwise. The provisions of Section 36A are broad enough to reach out to the mischief. [Para 8]

JUDGMENT

DR. D.Y. CHANDRACHUD, J. :- In these proceedings the Petitioner before the Court is a registered Adivasi Sarvangin Vikas Samitee which claims to be working for the welfare and upliftment of the tribal population in the State. The grievance of the Petitioner is that despite the provisions of Section 36A of the Maharashtra Land Revenue Code in which there is a specific bar to the transfer of land from a tribal to a nontribal without the permission of the appropriate authorities, builders and developers cheat tribals out of their rights by executing a development agreement together with a power of attorney. Thereupon plans are submitted to the Municipal Corporation or local body for sanction and permission is obtained without any verification of whether the lands have been transferred to the developer in breach of the mandatory provisions of law. Moreover, the Talathis and Revenue Officers record the names of the builder in the 7/12 extract. Flats are sold to third party purchasers in the development and as a result of which the common citizens are induced to invest monies in such schemes. The relief that has been sought in these proceedings is a direction to the State, the Municipal Corporation, the Inspector General of Registration and Collector to initiate proceedings in respect of lands belonging to tribals where development agreements or agreements to sell have been executed together with a power of attorney by tribals in favour of non-tribals in violation of the provisions of Section 36A, in order that lands are restored back to the tribals. Consequential directions have been sought for mutation of the revenue records. Section 36A(1) provides as follows :

"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 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."

Sub sections (4) and (5) of Section 36A provide as follows :

"(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 motu or on an application made by any person interested in such occupancy, within thirty years from the date of the transfer of occupancy 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."

2. Section 36A has been amended by the Maharashtra Land Revenue Code and the Maharashtra Restoration of Lands to Scheduled Tribes (Amendment) Act 2010 to substitute the words "within thirty years from the 6th July 2004" for the words "within thirty years from the date of the transfer of occupancy". Similar amendments have been made to the Maharashtra Restoration of Lands to Scheduled Tribes Act 1974.

3. An affidavit has been filed by the Additional Chief Secretary (Revenue) on 28 March 2013 in these proceedings. The affidavit discloses in a tabular chart information which is collected from the Divisional Commissioners in the Revenue Divisions of the State and from all the District Collectors in response to an order of the Court dated 26 February 2013 disclosing the number of transactions effected and registered with registration authorities in respect of tribal land across the State of Maharashtra. The chart shows that there were 756 transactions which had taken place of the transfer of tribal land to non tribal persons across the six Revenue Divisions. The affidavit further states that a Government Resolution was issued on 17 March 2012 making it mandatory that while recording entries in the 7/12 extracts maintained by the Talathi, there should be an entry or remark indicating that the land belongs to the tribal. A circular has also been issued on 15 September 2010 and on 2 April 2012 to all Collectors directing them to ensure that when permission has to be granted under Section 36A of the Maharashtra Land Revenue Code for the sale of tribal land to a non-tribal, precaution shall be taken to ensure that the tribal is not rendered landless. Instructions have been given by the Inspector General of Registration in a circular dated 25 March 2013 directing all the Registration Officers in the State not to register documents including development agreements and powers of attorney which are prohibited under Section 36A of the Maharashtra Land Revenue Code. A further government circular has been issued on 26 March 2013 to the Collectors, Municipal Councils, Municipal Corporations and other development authorities not to allow non-agricultural permission and development permission where the tribal land is transferred without prior permission under Section 36A.

4. At the hearing of the Petition, the learned Advocate General appearing on behalf of the State has made a statement before the Court that in those cases where transfers had taken place prior to 6 July 1994, of land belonging to tribals to non-tribals, action would be taken under the Maharashtra Restoration of Lands to Scheduled Tribes Act 1974, particularly under Section 3(1) and Section 3(1A). Similarly, where the transfer has taken place after 6 July 1994, it has been stated that necessary action would be taken under Section 36A of the Maharashtra Land Revenue Code.

5. Counsel appearing on behalf of the Petitioner has also made a grievance that though a Government Resolution was issued on 31 May 2012 requiring the Revenue Officers to make entries within a period of two months, in the 7/12 extracts maintained by the Talathi indicating that the land belongs to a tribal, no steps have factually been taken in terms of the Government Resolution.

6. We direct that the Government Resolution dated 31 May 2012 shall be strictly implemented and necessary action will be completed in all cases across the six Revenue Divisions of the State no later than 31 August 2013.

7. Counsel appearing on behalf of the Petitioner has also sought directions of this Court to the State Government to take necessary steps in those cases involving the transfer of tribal land to non-tribals where the construction is yet to commence or in cases where the construction has commenced, but has not been completed. Moreover, it was urged that where construction has been completed, the State Government can take necessary action in exercise of powers conferred by sub-Section (5) of Section 36A for vesting ownership in the co-operative society. We are not inclined to issue any generalized directions since it would be ultimately for the competent authority under sub-section (5) of Section 36A to determine how the occupancy which has been transferred in contravention of sub-section (1) should be disposed of having regard to the true intent and purpose of Section 36A.

8. Before parting with the matter, we may also take note of the legal position at this stage that Section 36A imposes a prohibition on the transfer of the occupancy of a tribal in favour of a non-tribal by way of sale, gift, exchange, mortgage, lease "or otherwise". The expression "or otherwise" is of a comprehensive nature and would include all arrangements by which the occupancy of a tribal is sought to be transferred in favour of a non-tribal. Irrespective of the nature of the device, whether it is in the form of a development agreement coupled with the power of attorney or otherwise. The provisions of Section 36A are broad enough to reach out to the mischief.

The Petition is accordingly disposed of.

There shall be no order as to costs.

Ordered accordingly.