2011 Supreme(Bom) 379

2011 (5) ALL MR 625
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DR. D.Y. CHANDRACHUD, J.
Atul Projects India Ltd.
Vs.
Babu Dewoo Farle & Ors.
Suit (L) No. 581 of 2011
Decided on: 25 March 2011

Headnote:Maharashtra Land Revenue Code, 1966 - Sections 2(12), 2(22)(23)(24) and 36-A-Transfer of "occupancy"- Prohibition on-Means prohibition on transfer of "possession"-Such interpretation purposive and socially beneficial-Facilitate fulfilment of directive principles- Possibility of two interpretations-One which protects interest of tribals to be adopted.-Section 2(22) defines an ’occupancy’ to mean a portion of land held by an occupant Section 2(23) defines an ’occupant’ to mean a holder in actual possession of unalienated land, other than a tenant or Government lessee provided that where a holder in actual possession is a tenant, the land holder or the superior landlord as the case may be shall be deemed to be an occupant. Section 2(12) defines the expression ’to hold land’ to mean to be lawfully in possession of land, whether such possession is actual or not. Possession of land is the essence of occupancy. Section 2(24) defines ’occupation’ to mean possession. A prohibition on the transfer of occupancy must therefore mean what it says namely that it is a prohibition on the transfer of possession. No possession consequently can be transferred from a tribal to a non-tribal without the prior sanction of the Collector or as the case may be the prior sanction of the Collector with the previous approval of the State Government. This interpretation which follows from the plain language of the provisions of the MLRC is also a purposive or socially beneficial interpretation which must be adopted by the Court. The legislation has been enacted with a view to protect tribals against exploitation. Legislative interpretation must facilitate the fulfilment of the objects contained in the directive principles of state policy. Any interpretation which would dilute or water down the ambit of Section 36-A should therefore not be countenanced. Tribunal populations would otherwise be displaced from their traditional habitats by unchecked urbanisation. They are susceptible, to exploitation. The avarice of these who exploit them has to be regulated within the parameters of law. The law has a purposive theme of protecting tribals. They are illiterate, poor and vulnerable. Section 36-A is intended to safeguard their interests. Even if two interpretations were to be possible, the Court should adopt that interpretation which protects the interest of the tribals which the legislation is intended to subserve.

       Maharashtra Land Revenue Code, 1966 - Section 36-A-Transfer of occupancy-To a non-tribal-Restriction-Requirement of prior permission of State Government attracted-A transfer in violation of provisions of Section 36-A(1) of Act, invalid and of no consequence.

       Maharashtra Land Revenue Code, 1966 - Section 36-A-Bombay Tenancy and Agricultural Lands Act, 1948, Section 43-Transfer-Restriction-Provisions of Section 36-A of Act, 1966 more stringent than provisions of Section 43 of Act, 1948-Section 36-A imposes a prohibition on transfer of occupancy rights from a tribal to a non-tribal with prior permission -Section 43 of Tenancy Act and Section 36-A of Code compared.-Section 36-A provides that no occupancy of a tribal shall be transferred in favour of a non-tribal. Under Section 36-A it is not necessary that the land itself should be envisaged to be transferred. Transfer of occupancy is sufficient to meet the prohibition in Section 36-A. In contrast, it would be necessary to advert to the provisions of Section 43 of the Tenancy Act under which no land purchased by a tenant under Sections 32, 32-F, 32-I, 32-O, 33-C or 43-ID or sold to any person under Section 32-P or 64 "shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector". A comparison of Section 43 of the Tenancy Act with Section 36-A of the MLRC would reveal the clear distinction in language made by the Legislature. Section 43 of the Tenancy Act applies to a transfer of land purchased by a tenant or sold to any person Section 36-A which is a provision on the other hand which has been specially engrafted to deal with tribal holdings does not refer to the transfer of land but to the transfer of the occupancy of a tribal. While Section 43 of the Tenancy Act confines itself to the five recognised modes of the transfer of property, Section 36-A of the MLRC contemplates those modes "or otherwise". While considering the provisions of Section 43, it has been held in judgments of Single Judges of the Court that a mere agreement to sell which does not create interest in property would not attract Section 43 and it is only at the stage of the execution of the sale deed when the property is actually transferred that the provision would be attracted.

       [Balu Baburao Zarole and others v. Shaikh Akbar Shaikh Bhikan and others, 2001 (3) Bom CR 255 : 2001 (3) All MR 95].

       In taking this view Court had followed an earlier judgment of D.K. Deshmukh, J. in a judgment dated 1 October, 1997 in appeal from order No. 713 of 1977. In another case that has been decided by the Supreme Court the provisions of the J & K Prohibition on Conservation of Land and Alienation of Orchards Act, 1975 came up for consideration in Manzoor Ahmed Magray v. Gulam Hassan Aram and others, AIR 2000 SC 191. Section 3 of the J & K Act imposes a bar on the alienation of a Orchard except with the previous permission of the Revenue Minister. The Supreme Court emphasized that the prohibition on the transfer of orchards was not absolute and the question of obtaining previous permission under Section 3(1)(a) would arise at the time of execution of the sale deed on the basis of a decree for a specific performance. The provisions of Section 36-A of the MLRC are even more stringent when they are compared with the provisions of Section 43 of the Tenancy Act to which a reference has been made earlier or to those of the J & K Act which fell for determination before the Supreme Court. Section 36-A imposes a prohibition on the transfer of occupancy rights from a tribal to a non-tribal, without prior permission.