ORAL JUDGMENT :

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 31.08.1999 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 subsection (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 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 vs. State of Tamil Nadu, reported at 1998 AIR (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 31.08.1999 shows that document dated 06.04.1976 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 11.09.1995 and claimed restoration of possession. The said proceedings were registered as Case No. 81/LND/31/9596 of Mouza Maller (Mal) and vide judgment dated 31.03.1997, 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 28.01.1999, the Additional Collector rejected that appeal. The petitioners then approached Additional Commissioner in Second Appeal and by the impugned order dated 31.08.1999, that appeal has also been dismissed.

6. The judgment of the Hon'ble Apex Court in the case of A.G. Varadaraju vs. 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 subsection (2) mentions that notwithstanding anything contained in subsection (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 subsection (2) needs to be looked into here. The said proviso stipulates that nothing in subsection (2) applies to transfer of occupancies made in favour of a person other