TULSIRAM ADKU MARAPE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Shri. Bapat, learned counsel for the petitioners and Shri. Thakare. learned Assistant Government Pleader for respondents No. I to 4.

(2.) By this petition filed under Articles 226 and 227 of Constitution of India, the petitioners - purchasers have challenged the order dated 31.08.1999 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 31.03.1997 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 06.04.1976.

(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 36-A to urge that said section needs to be read along with Section 36 of the Code. Section 36-A 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 36-A(l) 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 Vs. State of Tamil Nadu, 1998 AIR(SC) 1388