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IN THE HIGH COURT OF MADHYA PRADESH
Vishal Dhagat, J.
Mohbe Infrastructure (M/s.) A Partnership Firm v.
State of M.P. & Others
Writ Petition No. 3730 of 2021 (Jabalpur);
Decided on 3.3.2021.
¼1½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼6½ ¼,d½ && dysDVj dh vfèkdkfjrk && vfèklwfpr vuqlwfpr {ks= esa tutkrh; dh Òwfe && xSj&tutkrh d¨ varfjr ugÈ g¨xh && dysDVj d¨ vfèklwfpr vuqlwfpr {ks= esa vuqKk çnku djus dh vfèkdkfjrk ugÈA
vfÒfuèkkZfjr % e-ç- Òw&jktLo lafgrk dh èkkjk 165 ¼6½ ¼,d½ d¢ voy¨du ls Li"V gS fd jkT; ljdkj }kjk vfèklwfpr {ks= esa] ftlesa çeq[kr% vkfne tutkfr;k¡ fuokl djrh gSa] vuqlwfpr tutkfr d¢ ÒwfeLokeh dh Òwfe dk foØ; }kjk ;k vU;Fkk ;k _.k laO;ogkj d¢ ifj.kkeLo:i xSj&tutkfr d¨ varfjr ugÈ fd;k tk ldrkA ,sls vfèklwfpr vuqlwfpr {ks= esa ftlesa çeq[kr% vkfne tutkfr;k¡ fuokl djrh gSa] fLFkr Òwfe d¢ lacaèk esa vuqlwfpr tutkfr d¨ viuh Òwfe xSj&tutkfr d¨ varfjr djus dh vuqKk çnku djus dh dysDVj d¨ d¨Ã 'kfä ugÈ nh xà gSA çdh.kZ ;kfpdk Ø- 535 lu~ 1971 fu.kÊr fnukad 2-11-1972 rFkk fjV ;kfpdk Ø- 2608 lu~ 2012 fu.kÊr fnukad 2-1-2013 çÒsfnrA ¼iSjk 8
¼2½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼6½ ¼,d½ && vfèklwfpr vuqlwfpr {ks= d¢ ckgj fLFkr Òwfe && dysDVj dh vuqKk ls varj.kh; gS && tutkfr d¨ viuh Òwfe xSj tutkfr d¨ varj.k djus dh dysDVj vuqKk çnku dj ldrk gSA ¼iSjk 8
¼3½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼6½] Li"Vhdj.k && vfÒO;fä ^^vU;Fkk^^ && ls vfÒçsr && iÍk lfEefyr ugÈ g¨xk && blfy, vfèklwfpr vuqlwfpr {ks= esa iÍk vuqKs; gSA [iSjk 10 ,oa 11
¼4½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼6½ && ykxw g¨uk && O;iofrZr Òwfe dysDVj dh vuqKk d¢ fcuk varfjr ugÈ dh tk ldrh && èkkjk 165 ¼6½ d¢ micaèk ,slh Òwfe d¨ Òh ykxw g¨axsA
vfÒfuèkkZfjr% ;kph d¢ bl rdZ esa d¨Ã cy ugÈ gS fd O;ifrZr Òwfe d¨ lafgrk dh èkkjk 165 ¼6½ ykxw ugÈ t¨ O;ifoZr Òwfe Ñf"k&fÒUu ç;¨tu¨a d¢ fy, vFkkZr~ vkoklh; edku] 'kS{kf.kd ç;¨tu] O;kolkf;d ç;¨tu] v©|¨fxd ç;¨tu d¢ fy, O;iofrZr dh xà gS] og Òh Òw&jktLo fuèkkZfjr fd, tkus ;¨X; gS] v©j ;g ugÈ dgk tk ldrk fd ,slh Òwfe ij e-ç- Òw&jktLo lafgrk] 1959 dh èkkjk 165 ¼6½ ykxw ugÈ g¨rh gSA ¼iSjk 10 ,oa 11
¼5½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼6&d½ && xSj&tutkfr d¢ O;fä dh Ñf"k fÒUu ¼O;iofrZr½ Òwfe&vfèklwfpr vuqlwfpr tutkfr {ks= esa fLFkr && dysDVj dh vuqKk d¢ fcuk ,slh Òwfe xSj&tutkfr d¨ varfjr ;k varj.kh; ugÈ g¨xhA
vfÒfuèkkZfjr % e-ç- Òw&jktLo lafgrk dh èkkjk 165 ¼6&d½ d¢ vuqlkj vfèklwfpr vuqlwfpr {ks= esa Ñf"k fÒUu ¼O;iofrZr½ Òwfe èkkj.k djus okys xSj&tutkfr d¢ ÒwfeLokeh d¢ vfèkdkj dysDVj dh vuqKk d¢ fcuk xSj&tutkrh O;fä d¨ foØ; ;k vU;Fkk ;k _.k laO;kogkj d¢ ifj.kkeLo:i varfjr ;k varj.kh; ugÈ g¨axsA ¼iSjk 10 ,oa 11
¼6½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 165 ¼6½ rFkk 165 ¼6&d½ vis{kk,¡ && tutkfr dk O;fä tutkfr ls rFkk xSj&tutkfr ls Òh Òwfe Ø; dj ldrk gS && ,sls varj.k d¢ fy, dysDVj dh vuqKk visf{kr ugÈA ¼iSjk 11 ,oa 12
(1) Land Revenue Code, 1959 (M.P.) -- S.165 (6) (i) -- Jurisdiction of Collector -- land of tribal in notified seheduled area -- shall not be transferred non-tribal -- Collector has no jurisdiction to grant permission in notified scheduled area -- shall not be transferred to non-tribal -- Collector has no jurisdiction to grant permission in notified scheduled area.
Held : It is clear from perusal of section 165(6) (i) of M.P. Land Revenue Code that transaction of land by Bhumiswami belonging to a Scheduled Tribe which is located in the area notified by the State Government to be a scheduled area inhabited by predominantly aboriginal tribe cannot be transferred to a non-scheduled tribe by way of sale or otherwise or in consequence of loan transaction. No power is given to Collector to grant permission to a Scheduled Tribe to transfer his land to non-tribal person in respect of land located in a notified scheduled area predominantly inhabited by aboriginal tribe. Miscellaneous Petition No. 535 of 1971 decided on 2.11.1972 and Writ Petition No. 26.8.2012 decided on 2.1.2013 dissuguished. [Para 8
(2) Land Revenue Code, 1959 (M.P.) -- S. 165 (6) (i) -- land located out of notified seheduled area -- is transferable with permission of Collector -- Collector can grant permission to tribal to transfer his land to non-trible. [Para 8
(3) Land Revenue Code, 1959 (M.P.) -- S. 165 (6), Explanation -- expression ''otherwise'' -- meaning -- shall not include lease -- therefore lease is permissible in notified scheduled area. [Paras 10 & 11
(4) Land Revenue Code, 1959 (M.P.) -- S. 165 (6) -- applicability diverted land -- cannot be transferred without permission of Collector -- provisions of section 165 (6) would be also applicable to such land.
Held : There is no force in argument of petitioner that section 165 (6) of the Code is not applicable on diverted lands. Even in diverted lands which are diverted for other than agricultural purposes i.e. for dwelling houses, educational purpose, commercial purpose, industrial purpose are assessed to land revenue and it cannot be said that section 165 (6) of M.P. Land Revenue Code, 1959 is not applicable on such lands. [Para 10
(5) Land Revenue Code, 1959 (M.P.) -- S. 165 (6) -- non-agricultural (diverted) land of non-tribal -- located in notified scheduled area -- such land shall not be transferred or transferable to non-tribal without permission of Collector.
Held : As per section 165 (6-a) of MP Land Revenue Code rights of Bhumiswami who is non-tribal having non-agricultural land (diverted land) in notified Scheduled area shall not be transferred or transferable by sale or otherwise or as a consequence of loan transaction to a non-tribal person without permission of Collector. [Paras 10 & 11
(6) Land Revenue Code, 1959 (M.P.) -- Ss. 165 (6) and 165 (6-a) -- requirements -- tribal can purchase land from tribal and also non-tribal -- permission of Collector for such transfer is not required.
[Paras 11 & 12
ORDER
1. Petitioner has filed the present writ petition challenging order dated 25.11.2020 contained in Annexure-P/15.
2. It is submitted by counsel appearing for petitioner that petitioner is a partnership firm which had purchased land bearing Khasra No.102/1 and Khasra No.102/2, admeasuring total 1.475 hectares. Petitioner firm developed Real Estate Project 'Betul Pride' on a part of said land. All requisite permissions were obtained. It is submitted that subsequent purchasers were Scheduled Castes and were granted approval in legal search report of Canara Bank. Respondent No.3 i.e. State Bank of India expressed inability to sanction loan on the project as land which is sought to be mortgaged belongs to purchaser who is from Scheduled Tribe category. Bank expressed that permission of Collector was required under relevant provisions of M.P. Land Revenue Code. When subsequent purchaser approached Collector for getting permission under section 165(6) of M.P. Land Revenue Code, the same was rejected on the ground that there is ban on transfer including creation of mortgage. It is submitted that Collector ignored the recommendation of S.D.O. as well as Patwari to grant permission.
3. Perused the order dated 25.11.2020 contained in Annexure-P/15.
4. An application was filed before Collector seeking direction that provision of section 165 (6) of M.P. Land Revenue Code is not attracted in case of project under RERA and diverted land accordingly bank may not ask for Collector’s permission under section 165 (6) of M.P. Land Revenue Code for mortgaging the land. Counsel for petitioner relied on the judgment dated 2.11.1972 passed by this Court in M.P. No.535/1971 (Ail Das v. Board of Revenue, Madhya Pradesh and others) and order dated 2.1.2013 passed in W.P. No.2608/2012 (Kamal Singh Narre v. State of M.P. and others). Collector has wrongly dismissed the application on the ground that land in question is located in notified scheduled area i.e. Batama, Betul. Notification is issued by State Government on 21.02.1977 by which, Betul Tehsil area was notified to be Scheduled Tribe predominant area. Collector wrongly held that there is complete ban on transfer of land from Scheduled Tribe to a Non- scheduled Tribe person and, therefore, Collector does not have jurisdiction to grant permission and no direction can be given to bank because it is province of bank to decide what documents are required for loan.
5. Counsel appearing for respondent/State opposed the prayer of petitioner. It is submitted by him that provisions of section 165(6) of M.P. Land Revenue Code is attracted in the case. As per said provisions, no land situated in notified scheduled area predominantly inhabited by aboriginal tribes be transferred either by way of sale or otherwise in consequence of transaction of loan to a person not belonging to such tribe. It is submitted by him that there is no error in order passed by Collector. He relied on judgment passed in W.A. No.431/2005 dated 19.1.2016.
6. Heard the counsel for petitioner as well as respondents/State.
7. Case of Ail Das and Kamal Singh Narre (supra), relied by petitioner are distinguishable. In Ail Das (supra), land was located in urban area and in case of Kamal Singh Narre (supra), condition imposed to develop colony was under challenge. Collector rightly held said cases are not applicable in present case.
8. It is clear from perusal of section 165(6) (i) of M.P. Land Revenue Code that transaction of land by Bhumiswami belonging to a Scheduled Tribe which is located in the area notified by the State Government to be a scheduled area inhabited by predominantly aboriginal tribe cannot be transferred to a non-scheduled tribe by way of sale or otherwise or in consequence of loan transaction. No power is given to Collector to grant permission to a Scheduled Tribe to transfer his land to non-tribal person in respect of land located in a notified scheduled area predominantly inhabited by aboriginal tribe. However, in land
A land transfer without Collector permission is invalid under statutory provisions, affirming the need for compliance with regulatory frameworks.
A decision by an authority exercising discretionary power under a statute must be arrived at by taking into account the relevant considerations and eschewing the irrelevant considerations, in the abs....
The main legal point established is that the previous sanction of the Collector is necessary for the transfer of agricultural land between tribals to protect them from exploitation, as mandated by Se....
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