The purpose of a Land Revenue Code is to prevent the exploitation of a tribal in the hands of a non-tribal: Bombay High Court

 on 10 05 2021 on 22 03 1 21 WP 98188 2020 Final.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITIONNO. 98188 OF 2020Kisan Songya Bangara )Age : 30 years Occupation : Agriculturist )Residing at Valsind Taluka Bhiwandi )District Thane.)…PetitionerVersus1. The State of Maharashtra )Through Secretary Revenue and ForestDepartment )Mantralaya Mumbai 400 032)2. The Collector Thane)3. The Deputy Collector Collector Ofce Thane)4.The Divisional Commissioner )Konkan Division Konkan Bhavan CBD Belapur )Navi Mumbai 400 614)5. Mumbai Metropolitan Regional Development )Authority having its ofce at Bandra Kurla Complex )BandraMumbai 400 051)6. Shri Vijendra Shamlal Sharma )PA Kanchan P Dhuri on 10 05 2021 on 22 03 2 21 WP 98188 2020 Final.docAge : Adult Occupation : Business )Residing at New Davashish Building Eastern Express)Highway Thane. )…Respondents…......Mr. N.V. Walawalkar Senior Advocate alongwith Mr. Surel Shah and Mr. AmeySawant for the Petitioner.Mr. Suresh Sabrad alongwith Ms. Neha Parte for Respondent No.6.Mr. S.B. Kalel AGP for the State.…......CORAM : S.J. KATHAWALLA ANDPRITHVIRAJ K. CHAVAN JJ. DATED : APRIL 20 2021.JUDGMENT ::1.By the above Writ Petition the Petitioner interalia seeks the followingrelief :“(b)That by an appropriate writ order or direction this Hon’bleCourt be pleased to quash and set aside the letter dated 28.10.2020issued by the Respondent No.2 Collector Thane thereby refusing togrant prior approval u s. 36A of the Maharashtra Land Revenue Code 1966 as well as the letter dated 5.10.2020 issued by the Respondent No.1herein to the Respondent No.2 thereby intimating that prior approvalu s. 36A of the Maharashtra Land Revenue Code 1966 cannot begranted to the Petitioner and further be pleased to direct the RespondentNos.1 and 2 to grant its prior approval u s. 36A of the Maharashtra LandRevenue Code 1966 for disposing of his land bearing Survey No.46 2 admeasuring 12.1 Ares and Survey No.46 3 admeasuring 61.7 Ares both situate at Mouje Valshind Taluka Bhiwandi District Thane.”PA Kanchan P Dhuri on 10 05 2021 on 22 03 3 21 WP 98188 2020 Final.doc2.By consent of the Parties the above Petition is taken up for fnal hearingat the stage of admission.3.The brief facts in the matter are set out hereunder :3.1.According to the Petitioner he and his other family members are tribalsand owners of land bearing Survey No.46 2 admeasuring 12.1 Ares and SurveyNo.46 3 admeasuring 61.7 Ares both situate at Mouje Valshind Taluka Bhiwandi District Thanefrom the Collectorand or the State Government. 3.5.On 14th July 2014 the Petitioner made an Application to the RespondentNo.2 Collector Thane for obtaining the necessary sanction.3.6.After the said Application dated 14th July 2014 was made by thePetitioner the Respondent No.2 Collector forwarded the same to the concernedTahsildar to carry out an enquiry and submit a report. The Tahsildar ThanePA Kanchan P Dhuri on 10 05 2021 on 22 03 4 21 WP 98188 2020 Final.docforwarded his Report to the Respondent No.2 Collector on 29th December 2014.The Deputy Collector Thane also forwarded his Report dated 1st January 2015 to theRespondent No.2 Collector.3.7.According to the Petitioner inspite of receipt of the Reports asaforestated the Respondent No.2 did not proceed further and kept the Application ofthe Petitioner pending. On several occasions the Petitioner and the representative ofRespondent No.6 had visited the Ofce of the Respondent No.2 Collector. However no steps whatsoever were taken by the Respondent No.2 Collector to expedite thedecision on the Application of the Petitioner and instead all along only evasive replieswere given by the Ofce of the Respondent No.2 Collector.3.8.In the above circumstance on 17th January 2019 Respondent No.6 proposed purchaser made an Application to the Respondent No.2 Collector pointing out that the land bearing Survey Nos.46 2 and 46 3 as regards whichpermission for sale was sought by the Petitioner are shown under reservation byRespondent No.5 Mumbai Metropolitan Regional Development Authority(‘MMRDA’). The Respondent No.6 informed the Respondent No.2 Collector thatsince the said Land is under reservation the Respondent No.6 is ready and willing topurchase the same on ‘as is where is’ basis and that in future the Respondent No.6 proposed purchaser would make use of the said Land as may be permitted by theRespondent No.5.PA Kanchan P Dhuri on 10 05 2021 on 22 03 5 21 WP 98188 2020 Final.doc3.9.Respondent No.2 Collector thereafter forwarded his Report toRespondent No.4 Divisional Commissioner Konkan Division Navi Mumbai on 12thFebruary 2019. In the said recommendation Respondent No.2 Collectorspecifcally mentioned that the Respondent No.6 vide his Application dated 17thJanuary 2019 had shown his readiness and willingness to purchase the said Land andput the same to such non agricultural use which would be permitted by RespondentNo.5.3.10.Thereafter Respondent No.4 Divisional Commissioner KonkanDivision issued a letter to the Respondent No.2 Collector stating therein that fromhis recommendation it was not clear for which particular non agricultural purpose thesaid Land would be put to use and whether such user would be permissible.3.11.Pursuant thereto Respondent No.3 Deputy Collector Thane issued aletter to the Petitioner and informed him that it was not clear as to for which non agricultural purpose the said Land would be used and whether such user would bepermissible.3.12.According to the Petitioner pursuant to the receipt of the Letter dated16th May 2019 Respondent No.6 personally met Respondent No.3 Deputy Collector Thane on 3rd June 2019 and informed him that since the said Land is shown underreservation Respondent No.6 is ready and willing to purchase the said Land on ‘as iswhere is’ basis and would also make use of the said Land as may be permitted byPA Kanchan P Dhuri on 10 05 2021 on 22 03 6 21 WP 98188 2020 Final.docRespondent No.5. Respondent No.6 also informed Respondent No.3 that on 17thJanuary 2019 itself the Respondent No.6 had made an Application and placed onrecord his readiness and willingness to purchase the said Land on ‘as is where is’ basisand to make use of the said Land as may be permitted by Respondent No.5.3.13.According to the Petitioner sometime in the frst week of October 2020 the Respondent No.6 was informed from the Ofce of the Respondent No.1 that sincethe said Land was under reservation for playground and that there was no access road hence permission under Section 36A could not be granted.3.14.Thereafter the Petitioner received a Letter dated 28th October 2020from Respondent No.2 Collector which is impugned herein whereunder thePetitioner was informed that the said Land is shown under reservation for playgroundvide Reservation No.PG 7 that there is no mention as to the purpose for which thesaid Land would be used there is no access road available to the said Land and assuch permission under Section 36A of the said Code cannot be granted.3.15.The above Letter dated 28th October 2020 was addressed to thePetitioner by the Respondent No.2 Collector based on the Letter issued byRespondent No.1 State of Maharashtra to Respondent No.2 Collector informingthe Respondent No.2 Collector that prior permission could not be granted for thevery same reasons mentioned in the above Letter dated 28th October 2020.3.16.The Petitioner has therefore fled the above Writ Petition praying for thePA Kanchan P Dhuri on 10 05 2021 on 22 03 7 21 WP 98188 2020 Final.docrelief set out in paragraph 1 above.4.In the Writ Petition the Petitioner has after setting out the above facts submitted as follows :4.1.That the reason behind not granting prior approval under Section 36A isin view of Rule 4 of the Maharashtra Land RevenueRules 1975ofSection 36 no occupancy of a tribal shall after the commencement of theMaharashtra Land Revenue Code and Tenancy LawsAct 1974 be transferred in favour of any non tribal by way of salegift exchange mortgage lease or otherwise except on the application of such non tribal and except with the previoussanctionAct 1974 it isPA Kanchan P Dhuri on 10 05 2021 on 22 03 14 21 WP 98188 2020 Final.docnoticed that any occupancy has been transferred in contravention of sub sectionthe Collector shall notwithstanding anything contained in anylaw for the time being in force either suo motu or on an application madeby any person interested in such occupancy or on a resolution of theGram Sabha in Scheduled Areas 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 ofoccupancy has been made in contravention of sub sectionhe shalldeclare the transfer to be invalid and thereupon the occupancy togetherwith the standing crops thereon if any shall vest in the StateGovernment free of all encumbrances and shall be disposed of in suchmanner as the State Government may from time to time direct.(6)Where an occupancy vested in the State Governmentunder sub sectionis to be disposed of the Collector shall give noticein writing to the tribal transferor requiring him to state within 90 daysfrom the date of receipt of such notice whether or not he is willing topurchase the land. If such tribal transferor agrees to purchase theoccupancy then the occupancy may be granted to him if he pays theprescribed purchase price and undertakes to cultivate the land personally so however that the total land held by such tribal transferor whether asowner or tenant does not as far as possible exceed an economic holding.Explanation For the purpose of this Section the expression“economic holding” means 6.48 hectaresof jirayat land or 3.24hectaresof seasonally irrigated land or paddy or rice land or1.62 hectaresof perennially irrigated land and where the landheld by any person consists of two or more kinds of land the economicholding shall be determined on the basis of one hectare of perenniallyirrigated land being equal to 2 hectares of seasonally irrigated land orpaddy or rice land or 4 hectares of jirayat land.”PA Kanchan P Dhuri on 10 05 2021 on 22 03 15 21 WP 98188 2020 Final.doc11.Rule 4 of the Maharashtra Land RevenueRules 1975. Sub clauseof clauseof Rule 4 reads thus :“4.Sanction of Collector under Section 36A for transfer sections is one of the majoritems of our national goalsin connection withsuch non agricultural purpose implies that the proposed user is genuine and does notplay any fraud in this regard. The non agricultural user proposed could be any so longas it is permissible in law having regard to the prevailing planning laws operating inthe locality and the proposal of the transferee for such user must be real and not asubterfuge which is all that the Collector and the State Government is required toensure. As of now i.e. so long as the reservation stands the said Land can only beused for a playground the purchaser may develop it as a playground or allow the sameto be acquired by the State for such playground. If and when the acquisition isdropped the said Land may be used for any permissible non agricultural purpose. TheRespondent No. 6 Purchaser herein has therefore not only given an undertaking thathe will purchase the said Land on ‘as is where is’ basis but in view of the said Landbeing under reservation as of now has also given an undertaking that he would makeuse of the said Land and carry out such non agricultural use as would be permitted byRespondent No. 5 MMRDA i.e. the Planning Authority. These undertakings givenPA Kanchan P Dhuri on 10 05 2021 on 22 03 20 21 WP 98188 2020 Final.docby the Respondent No. 6 Purchaser ensure that the purpose sought to be achievedby the Legislature through Section 36A read with Rule 4 of the said Rules is notdefeated in any manner whatsoever and the undertakings may infact form part of thepermission sought by the Petitioner. In fact not granting approval sanction to thePetitioner to sell the said Land will not only compel the Petitioner and his familymembers to live in penury for all times to come but will destroy his family since dueto fnancial problems his sisters will remain unmarried his children will not be able toreceive education as desired by them and the senior members of his family will bedeprived of the required medical attention treatment. The impugned Lettersconveying rejection of the Application of the Petitioner to sell the said Land on theaforestated grounds which lacks legal basis renders the Petitioner and his familymembers completely helpless and unable to strive towards their economic welfare andupliftment as also towards a bright and better future.20.One more fact which is pointed out by the Petitioner and which isdisturbing is that in similar cases the State Government has granted permissions tosell tribal lands to non tribals despite such lands being reserved for public purpose.Such orders clearly establish discrimination on the part of the State Government without any rational basis whilst granting rejecting sanction approval underSection 36A of the Code. Some of such Orders are annexed at Pages 103 and 107 ofthe Afdavit in Rejoinder fled by the Petitioner in the above Writ Petition. ThePA Kanchan P Dhuri on 10 05 2021 on 22 03 21 21 WP 98188 2020 Final.docRespondents have neither fled any response to the said Afdavit in Rejoinder norhave they applied for time to fle their response to the same.21.For the aforestated reasons we hold that we see no reason for theCollector or the State Government to have refused permission under Section 36A inthis case either from the point of view of the transferor tribal or from the point of viewof the duties of the transferee non tribal. The above Writ Petition is allowed in termsof prayer clausewill use the said Land only for non agricultural purpose is accepted. The permission to sell the said Land in favour ofRespondent No. 6 shall be granted in view of the said undertakings and the same shallbe included in the permission sanction letter. The Writ Petition is accordinglydisposed of.( PRITHVIRAJ K. CHAVAN J. )( S.J. KATHAWALLA J. ) PA Kanchan P Dhuri 

Summary: Section 36A of the Maharashtra Land Revenue Code aims to protect the interest of tribals from being exploited at the hands of a non-tribal. A Collector authorized to grant permit cannot misuse this provision on grounds that are not substantial. A division bench comprising of Justice SJ Kathawalla and Prithviraj Chavan while adjudicating the matter in Kishan Songya Bangara v. The State of Maharashtra &amp; Ors; [WRIT PETITION (ST) NO. 98188 OF 2020] dealt with the issue of exploitation of tribals during dire crisis of poverty. The petitioner stated that he and his other family members are tribals and owners of a certain piece of land. Since they were in dire need of money, they were looking for a purchaser who interested in purchasing the piece of land they owned.  There is an embargo on the sale of land belonging to tribals, i.e., if a tribal wants to sell his land to a non-tribal, he is required to obtain permission from the Collector and/or State Government. The petitioner made an application to the respondent, who was the concerned collector to obtain the necessary sanction. The respondent kept the application of the petitioner on hold, despite several requests to grant the petitioner sanction. A purchaser was eventually found who was ready to buy the petitioner’s piece of land. However, the required permit was not granted to the petitioner, in response to which the petitioner filed a case. The petitioner claimed that his family is very large and three sisters of the Petitioner are of marriageable age and in view of the weak financial condition of the Petitioner, he is not in a condition to perform their marriage. There are also school going children to whom the Petitioner wants to give better education but due to his weak financial condition, the Petitioner and his family members are not in a position to do so. Similarly, there are senior citizens in his family who require medical attention, but again because of his weak financial condition, the Petitioner and his family members are not in a position to provide the same to them. All these facts were brought to the notice of the Respondents, which the Respondents have not taken into consideration.