DATTATRAYA SAKHARAM KABADI Vs. RAGHU LUMA BHALERAO

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception of the judgment and order passed by the Maharashtra Revenue Tribunal, Pune dated 15th December, 1979 in M. R. T. P. STA. III 1/79 (T. E. N. B. 22/79) and No. M. R. T. P. S. T. A. III 2/79 (Ten. B. 23/79 ). The suit land is situated at Survey No. 33 at village Padali, Taluka Junnar, District Pune. The respondent No. 2 became deemed purchaser of the suit land on the tillers day as he was cultivating the same as tenant. It is not in dispute that the respondent No. 2 is a tribal. Respondent No. 2 subsequently purchased the suit land under section 32-G of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act) and sale certificate under section 32-M was issued in his favour by the tenancy authority, which is the conclusive proof that he has become owner of the suit land. It is the case of the petitioner that respondent Nos. 1 and 2 intended to sell the suit land and had approached the petitioner in that behalf. Pursuant to the which parties made application to the Collector for permission to purchase the suit land. The Collector granted that permission in exercise of powers under section 43 of the Tenancy Act. That order is at Exhibit F of this writ petition which clearly specifies that the permission is granted under section 43 of the Tenancy Act. After the insertion of section 36-A of Maharashtra Land Revenue Code, 1966 (hereinafter referred to as the said Code) the Tahsildar, Junnar passed an order dated 6-3-1979 holding that the respondent Nos. 1 and 2 are tribals and the petitioner has purchased the suit land from them without obtaining prior permission of the Collector as required under section 36-A of the Code and therefore, directed the petitioner to hand over possession of the suit land to the respondent Nos. 1 and 2. That order also provides for instalment to be paid by the respondent Nos. 1 and 2 towards the price of the restoration of that land. This decision was challenged by the petitioner before the tribunal by way of above numbered appeals. The only contention raised before the tribunal was that the petitioner had already obtained permission of the Collector and therefore the transaction between the petitioner and respondent Nos. 1 and 2 cannot be invalidated. However, the appellate authority has rejected that contention holding that the permission granted by the Collector was under section 43 of Tenancy Act and, admittedly, there was no permission or sanction granted within the meaning of section 36-A of the Code. Accordingly both the appeals preferred by the petitioner came to be dismissed. Against that order the present writ petition has been filed under Article 227 of the Constitution of India.

(2.) THE first contention raised on behalf of the petitioner is that in the present case sanction has been granted by the Collector and therefore the Tahsildar had no power to invalidate the transaction. There is no force in this contention. No doubt permission was granted by the Collector on 1-1-1975, but the same was under section 43 of the Tenancy Act. Whereas, the Tahsildar has acted on the basis of mandate of section 36-A of the Code. It is therefore, not possible to accept the above plea because sub-section (3) empowers the Tahsildar to initiate suo motu action for restoration of possession of the occupancy to the tribal if the transfer was found to be without prior permission under that provision. That power is obviously coupled with the duty.

(3.) THE next contention raised is that the Collector had granted sanction, albeit under section 43 of Tenancy Act and that would enure in favour of the petitioner. Inasmuch as, the petitioner had made application to the Collector which clearly mentions that the respondent Nos. 1 and 2 were tribals from whom the petitioner was intending to purchase the land. However, there is no force in this submission, for the Collector has granted permission on 1-1-1975 only in the context of the requirements under section 43 of the Tenancy Act. The petitioner ought to have approached the Collector specifically for permission in the context of section 36-A of the Code. Because the mandate of section 36-A requires that no transaction can be entered except with the prior permission of the Collector in that behalf. Moreover, from the proviso to sub-section (1) thereto it is clear that before according sanction under section 36-A, the Collector is required to be satisfied that no tribal residing in the village in which the occupancy is situated or within 5 kms. thereof is prepared to take the occupancy from the owner on lease or by sale or otherwise. Admittedly, no such enquiry has been undertaken in this case before according permission under section 43 of the Tenancy Act. If that be so, sanction accorded to the petitioner for the purpose of section 43 of the Tenancy Act would be of no avail. Whereas, sanction under section 36-A can be accorded only on compliance of the above said requirement, which has not been done in the present case.