The proviso to Section 36A(1) to which the Petitioners have invited attention, deals with the procedure to be followed by the Collector while permitting a transfer by a tribal to non-tribal. The said proviso requires the Collector to find out whether any tribal residing in the village or within 5 kms. thereof is prepared to take such occupancy from owner on lease, mortgage or by sale or otherwise. It is, therefore, apparent that the Legislature has intended that when Tribal is selling or transferring his property to non-tribal, before granting permission to such transfer, attempt should be made to find out whether any other tribal in the village is ready and willing to have it. Again as is apparent, this proviso is not applicable in present matter. Section 36A no doubt begins with non obstante clause but then it excludes Section 36(1). It does not in any way exclude operation of Section 36(2). Section 36(1) declares all occupancies to be heritable and transferable subject to restrictions imposed thereupon and Section 36A is one such restriction imposed upon tribal and non tribal. Section 36(2) speaks of a transfer by Tribal and it does not specify the category or nature of purchaser. Thus, all transfers by a tribal have to be with previous sanction of the Collector. Section 36A(1), therefore, has got no bearing on said provision or its effect. The overriding effect given to Section 36A(1) by the Legislature is only to the extent stipulated above i.e. it provides a category of transfers to which provisions of Section 36(1) and deeming fiction therein will not apply. The said position, therefore, does not help present Petitioners in any way. As special provision has been made in Section 36A to regulate transfer by a tribal to non-tribal, proviso of Section 36(2) exempts such transfers made after 6-7-1974 from Section 36(2). All provisions are consistent with each other and provide a complete code for protecting interests of tribals. None of them can be stretched to exempt any transfer made by a tribal in favour of anybody including other tribal also.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
W.P. No. 905 of 2000
Decided On: 06.10.2010
Tulsiram Adku Marape and Ors. Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
B.P. Dharmadhikari, J.
Citation: MANU/MH/1795/2010,2011(1) MHLJ 182.
1. Heard Shri Bapat, learned Counsel for the Petitioners and Shri Thakare, learned Assistant Government Pleader for Respondents No. 1 to 4.
2. By this petition filed under Articles 226 and 227 of Constitution of India, the Petitioners - purchasers have challenged the order dated 31-8-1999 passed by the Additional Commissioner, Nagpur Division, Nagpur, in an appeal under Section 247 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as the Code). That appeal was against the orders of Sub-Divisional Officer (SDO) dated 31-3-1997 whereby the transfer in favour of the Petitioners was found in contravention of Sub-section (2) of Section 36 of the Code and has been set aside. The said transfer is by deceased father of Respondents No. 5 to 8 in favour of present Petitioners on 6-4-1976.
3. Shri Bapat, learned Counsel has urged that the Petitioners as also Respondents No. 5 to 8 both are tribals and hence the provisions of Section 36(2) of the Code are not attracted. He has invited attention to provisions of Section 36A to urge that said section needs to be read along with Section 36 of the Code. Section 36A begins with non obstante clause and, therefore, it overrides the provisions of Section 36(2). Hence, a transfer between tribal and a tribal cannot be viewed as illegal. Attention is also invited to provisions of Section 36A(1) to urge that there also precedence is given to a tribal residing in the area and hence the impugned orders are without jurisdiction. He has also placed reliance upon the judgment of the Hon'ble Apex Court in the case of A.G. Varadaraju v. State of Tamil Nadu, reported at MANU/SC/0232/1998 : AIR 1998 SC 1388.
4. Shri Thakare, learned Assistant Government Pleader appearing for Respondents No. 1 to 4 has supported the impugned orders. According to him, said provisions cannot be read as supplementary to each other and Section 36(2) needs to be viewed independently.
5. The facts are not in dispute. The judgment delivered by the Additional Commissioner on 31-8-1999 shows that document dated 6-4-1976 executed by original owner Tukaram was not a sale deed but only an agreement for sale. On the basis of that agreement itself, the Petitioners had obtained mutation and legal heirs of Tukaram challenged this transaction on 11-9-1995 and claimed restoration of possession. The said proceedings were registered as Case No. 81/LND/31/9596 of Mouza Mailer (Mal) and vide judgment dated 31-3-1997, SDO, Chamorshi, declared the transfer to be bad and set it aside. It appears that the Petitioners then challenged that order before the Additional Collector and vide orders dated 28-1-1999, the Additional Collector rejected that appeal. The Petitioners then approached Additional Commissioner in Second Appeal and by the impugned order dated 31-8-1999, that appeal has also been dismissed.
6. The judgment of the Hon'ble Apex Court in the case of A.G. Varadaraju v. State of Tamil Nadu(supra) on which Shri Bapat, learned Counsel has placed reliance shows that when a non obstante clause is provided, the Legislature wants to give overriding effect to that provision. The Court, therefore, has to find out the extent to which Legislature had intended to give one provision an overriding effect over another. Such intention is to be gathered from the later part of the section. Applying this principle to the provisions of Section 36 and 36A is, therefore, necessary according to the learned Counsel.
7. Section 36 provides that occupancies are transferable and heritable subject to certain restrictions. Its Sub-section (2) mentions that notwithstanding anything contained in Sub-section (1) of Section 36, occupancies of persons belonging to Scheduled Tribe shall not be transferred except with the previous sanction of the Collector. A proviso to this Sub-section (2) needs to be looked into here. The said proviso stipulates that nothing in Sub-section (2) applies to transfer of occupancies made in favour of a person other than the tribals, on or after commencement of Maharashtra Land Revenue Code and Tenancies Law (Amendment Act) 1974. It is not in dispute that this Amendment Act has come into force on 6-7-1974. Sub-section (1) of Section 36 states that a occupancy is deemed to be heritable and transferable subject to provisions contained in Section 72 and to any conditions lawfully annexed to the tenure. Thus, Sub-section (2) of Section 36 is an exception to Section 36. The proviso to Sub-section (2) again carves out an exception from Sub-section (2).
8. The provisions of Section 36A provides for restrictions on transfers of occupancies by tribals. The said restrictions are notwithstanding anything contained in Sub-section (1) of Section 36. It deals with transfer in favour of any non tribal by a tribal. It is, therefore, obvious that Section 36A does not deal with a transfer by a tribal to another tribal. The proviso to Section 36A(1) to which the Petitioners have invited attention, deals with the procedure to be followed by the Collector while permitting a transfer by a tribal to non-tribal. The said proviso requires the Collector to find out whether any tribal residing in the village or within 5 kms. thereof is prepared to take such occupancy from owner on lease, mortgage or by sale or otherwise. It is, therefore, apparent that the Legislature has intended that when Tribal is selling or transferring his property to non-tribal, before granting permission to such transfer, attempt should be made to find out whether any other tribal in the village is ready and willing to have it. Again as is apparent, this proviso is not applicable in present matter. Section 36A no doubt begins with non obstante clause but then it excludes Section 36(1). It does not in any way exclude operation of Section 36(2). Section 36(1) declares all occupancies to be heritable and transferable subject to restrictions imposed thereupon and Section 36A is one such restriction imposed upon tribal and non tribal. Section 36(2) speaks of a transfer by Tribal and it does not specify the category or nature of purchaser. Thus, all transfers by a tribal have to be with previous sanction of the Collector. Section 36A(1), therefore, has got no bearing on said provision or its effect. The overriding effect given to Section 36A(1) by the Legislature is only to the extent stipulated above i.e. it provides a category of transfers to which provisions of Section 36(1) and deeming fiction therein will not apply. The said position, therefore, does not help present Petitioners in any way. As special provision has been made in Section 36A to regulate transfer by a tribal to non-tribal, proviso of Section 36(2) exempts such transfers made after 6-7-1974 from Section 36(2). All provisions are consistent with each other and provide a complete code for protecting interests of tribals. None of them can be stretched to exempt any transfer made by a tribal in favour of anybody including other tribal also.
9. I, therefore, do not find any substance in the petition. Writ petition is, therefore, rejected. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.
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