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IN THE HIGH COURT OF BOMBAY
(Aurangabad Bench)
B.N. Deshmukh P.V. Nirgudkar, JJ.
Tukaram s/o Laxman Gandewar .... Petitioner.
Versus
Piraji s/o Dharmaji Sidarwar Died through L.R’s..... Respondents.
Writ Petition No. 627-A of 1982, decided on 6-2-1989.
Advocates appeared :
D.N. Patki, for petitioner.
K.H. Dhuldhwaj, for respondents Nos. 4 5.
Section 36-A-Land transaction by non-tribals person-Subsequently declared as tribal -Held, subsequent declaration of person as tribal will not effect the transaction already gone through between non-tribal, persons-Section 36-A is not applicable in such case.
The provisions of Section 36-A, therefore, provide that no such occupancy of a tribal shall be transferred in favour of any non-tribal by way of sale etc. except on the application of such non-tribal and except with the previous sanction of the Collector. This section, therefore, provide that no occupancy of the tribal can be transferred by way of sale without permission of the Collector in favour of a non-tribal. The restriction is provided for transfer. The status of the parties, therefore, has to be considered at the time or prior to completion of the transfer. The change in status after the transfer, if any, has no relevance and restrictions provided under Section 36-A are not at all attracted. The sale may be even after 1974 but the sale must be between tribal and non-tribal. The parties must have that status of being tribal at the time of the transfer and not subsequently. That does not seem to be the intention of the Legislature. The Legislature wanted to extend protection to the persons who are tribal at the time of transfer. The protection, therefore, cannot be extended to the persons who were not tribals at the time of transfer but the status of belonging to Scheduled Tribe is conferred thereafter. The provisions of Section 36-A are not at all attracted in the present case in view of the admitted fact that the status of Respondent No. 1 as Scheduled Tribe is conferred on him by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, which came into force on 27th day of July, 1977. The respondent deceased Piraji could claim status of belonging to Scheduled Tribe on or after 27th day of July, 1977 and not before that. The transfer under a sale deed dated 9-9-1974 was therefore, not between tribal and non-tribals but between non-tribals to which provisions of Section 36-A cannot apply.
Section 36-A- Transfer of occupancy by tribal persons-Restrictions-Protection-Protection to tribal available only to transferors who are tribal at time of transfer and not to those who are included in list of tribes after date of transfer.
The provisions Section 36-A, therefore provide that no such occupancy of a tribal shall be transferred in favour of any non-tribal by way of sale, etc. except au the application of such non tribal and except with the previous sanction of the Collector. This section therefore, provides that no occupancy of the tribal can be transferred by way of sale without permission of the Collector in favour of a non-tribal. The restriction is provided for transfer. The status of the parties, therefore, has to be considered at the time or prior to completion of the transfer. The change in status after the transfer, if any, has no relevance and restriction provided under Section 36-A are not at all attracted.
2. The land originally belonged to one Sakharam Bhumayya Gandewar, a non tribal from whom deceased Piraji purchased under a sale deed dated 24-4-1974. Later on deceased Piraji sold this land to petitioner under a sale deed dated 9-9-1974.
3. The proceedings under section 36-A were initiated for restoration of possession of this land to deceased respondent Piraji on the ground that the sale is in contravention of provisions of section 36-A of Maharashtra Land Revenue Code.
4. The authorities granted restoration in favour of deceased Piraji on the ground that Piraji is a tribal and occupancy of the tribal is transferred in favour of the petitioner who is non-tribal after provisions of section 36-A of the Maharashtra Land Revenue Code, 1966 brought into force.
5. Shri Patki, learned Counsel appearing for the petitioner challenges the orders of restoration in favour of deceased respondent Piraji on the ground that though the provisions of section 36-A have been brought into force on 6th of July, 1974, the respondent Piraji was not tribal at the time of execution of sale deed dated 9-9-1974. The Status of being Scheduled Tribe is conferred on the respondent in the year 1977. Therefore, transfer by way of the sale deed dated 9-9-1974 cannot be said to be between tribal and non tribal as on that date respondent Piraji was also a non tribal.
6. Shri Dhuldhwaj, learned Counsel for the respondents, on the contrary contended that while considering provisions of section 36-A the entire scheme has to be considered. He has further argued that having regard to the aims and objects of the statute the interests of tribal are required to be protected and any interpretation given to the section must be construed in that light and not otherwise. According to him, even though the status of Scheduled Tribe is conferred on respondent Piraji in 1977 any sale made, after 6th July, 1974 if found to be between tribal and non tribal is in contravention of provisions of section 36-A and, therefore, the restoration is rightly granted in favour of deceased Piraji.
Section 36-A provides as follows :
"36-A(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, lease mortgage for a period not exceeding 5 years, of the Collector
(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 kilometers thereof is prepared to take occupancy from the owner on lease, mortgage or by sale or otherwise.....".
7. The facts which are not in dispute in the present case are that the petitioner is a non-tribal. The respondent deceased Piraji claims that he belongs to Naikada caste which is included as Scheduled Tribe by virtue of amendment to the Scheduled Caste and Scheduled Tribes Order (Amendment) Act, 1976 (i.e. Act No. 108 of 1976). This amendment is brought into force on 27th July, 1977 in so far as it applies to the State of Maharashtra. Section 36-A is introduced in the Maharashtra Land Revenue Code, 1966, on 6-7-1974. The sale deed executed by the deceased Piraji in favour of the petit
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