Shobhechi Daru Utpadan Kharedi Vikri Sangh vs State of Maharashtra and another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 320

IN THE HIGH COURT OF BOMBAY
V.R. Datar, J.
Shobhechi Daru Utpadan Kharedi Vikri Sangh ..... Petitioners.
Versus
The State of Maharashtra another......Respondents.
Writ Petition No. 3225 of 1983, decided on 7-7-1997.
Advocates appeared :
M.V. Sali, for the petitioners.
R.V. Pai, Asstt.-Govt. Pleader, for respondent No. 1- State.
R.R. Salvi with D.S. Savant, for respondent No. 2.

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948
       Sections 2 (8), 84 (c) and 64A-Permission for sale-Co-operating purchasing-Agricultural land-Section 64-A allows them purchase without prior permission-Government forfeiting land due to no prior permission-Held-Transactions of land with strangers not exempted-Only those who have mortgaged land or taken loan are exempted.-It appears to be intention of the legislature that such sales, which are held in the routine course in respect of the cooperative societies, should not require permission under the provisions of Section 63 of the tenancy Act and, therefore, exemption has been provided under Section 64-A. As such, comparing Section 64-A of the tenancy Act and the unreported decision in Civil Revision Application, it would be clear that sale or transfers under the Bombay Co-operative societies Act, 1925 and under the Maharashtra Co-operative societies Act, 1960, would not require such permission. Even the case of private transaction entered into by society with a stranger, appears to have been not excluded from the operation of this Section. Court is therefore, unable to accept the contention that Section 64-A the tenancy Act, would exempt application of Sections 63 and 64 of the tenancy Act to the transactions of presenting nature impugned in this writ petition.
       Sections 63 and 64-A-Bombay Tenancy and Agricultural Lands Rules, 1956, Rule 36-Prior permission of sale-Granted after transaction was over-If, permissible-The land get forfeited-Ground-Prior permission of Collector not taken-Held-Section 63 nowhere makes it compulsory to take permission prior to transfer.-Even the case can be looked at from another angle also, viz., the sale deed which is already executed by respondent No. 2 in favour of the petitioner it taken to be invalid, because of want of permission, after permission was granted by the Collector another sale-deed could be executed by and between the parties and that would be perfectly valid. Thus, after construing Section 63 of the Tenancy Act and the Rules framed there-under, Rule 36 and proviso thereto, would make it clear that prior permission is not at all necessary and, therefore, the authorities below were clearly in error in holding at sale to be in contravention of Section 84-C(2) of the Act and the land is land liable to be forfeited.
       Bombay Tenancy and Agricultural Lands Rules, 1956
       Rule 36-See Bombay Tenancy and Agricultural Lands Act, 1948.

JUDGMENT - V.R. DATAR, J.:---The petitioner is a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960. The land Survey No. 109, admeasuring 12 Acres and 21 gunthas assessed at Rs. 3.12, belonged to respondent No. 2 Nana Maruti Kashid of Katraj. Taluka Haveli, District Pune. Though some portion of the land viz. 6 acres was previously under cultivation and crops like Shalu etc. were grown, from the year 1964-65, the entire land appears to have been left fallow. Respondent No. 2 agreed to sell 8 acres of land from Survey No. 109 in favour of the petitioner and, therefore, made an application to the Collector of Pune, for grant of permission for non-agricultural use of the said land. This application was made on 21-9-1966. It however, appears, though facts are not on record, that the petitioner -Society made an application on 26-9-1966 for grant of permission to purchase the land as required under section 63 of the Bombay Tenancy Agricultural Lands Act, 1948. That application was pending. An agreement of sale was executed on 3rd September 1966, and before that such application was made by the petitioner-Society. On 25th October 1966, the Mamlatdar of Katraj, Taluka Haveli, submitted a report recommending grant of permission in favour of the petitioner-Society to purchase the land from respondent No. 2. Ultimately, the Collector of Pune, granted such permission on 14-2-1967. However, before that, sale deed came to be executed between the respondent No. 2 and the petitioner-Society on 24th November 1966, i.e. before grant of permission by the Collector, Pune. It, therefore, appears that suo-moto enquiry was started in connection with the sale transaction by the Tenancy Aval Karkun, Haveli, which was numbered as Tenancy Case No. 84-C-13/Katraj. During such enquiry, the Tenancy Aval Karkun framed issues as below.

1) Whether the suit land comes under the definition of "land" as defined in the Act?

2) Whether the permission under section 63 of the Act is necessary in present case?

3) Whether the transferee obtained such permission prior to the date of the transfer?

4) If so, for what order?

He recorded a finding that the land was an agricultural land as defined in section 2(8) of the Tenancy Act and, therefore, permission under section 63 of the said Act was necessary; but transfer is effected without such permission. As such, he passed an order holding transfer to be invalid under section 84-C(2) of the Act and forfeited the land to the Government free from all encumbrances subsisting thereon on the date of the order and further to be disposed of the same according to law.

2.This order of the Tenancy Aval Karkun was challenged before the Deputy Collector of Pune in Tenancy Appeal No. 13/76 and the Deputy Collector of Pune, by his judgment and order dated 29-11-1977 confirmed the decision of the Tenancy Aval Karkun and dismissed the appeal. The petitioner, thereafter, filed Revision Application No. MRT/P/V/1/78 (Ten.B-132/78) before the Maharashtra Revenue Tribunal, Pune and the learned Member of the Maharashtra Revenue Tribunal, Pune by his judgment and order dated 28-2-1983, dismissed the revision application and that is how the present petition is filed under Article 227 of the Constitution of India.

3.I have heard Shri Sali for the petitioner-Society, Shri Pai, A.G.P. for respondent No. 1-State and Shri Salvi with Shri D.S. Sawant for respondent No. 2. Shri Sali for the petitioner stated that in fact no permission under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 was necessary, having regard to various circumstances. Furthermore, construing provisions of section 63 of the Tenancy Act, prior permission was not at all necessary. In this case, admittedly such permission for sale was obtained and the same was perfectly valid and could not be declared as invalid nor land could be forfeited to Government. In the course of his submission, Shri Sali relied upon number of provisions o

Click Here to Read the rest of this document