Mahendarsingh Digvijaysingh Mukne v. The State of Maharashtra

1. In this writ petition filed under Article 226 of the Constitution of 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 1/37 India, the petitioner has challenged the validity of Rule 4(1)(a) of the Maharashtra Land Revenue (Transfer of Occupancy by Tribals to Non- Tribals) Rules, 1975. Rule. Rule made returnable forthwith. With consent of learned counsel for the parties the writ petition is taken up for final consideration.

2. It is the case of the petitioner that land bearing Gat Nos.6, 9, 10, 14, 15 and 17, situated at Mouje Ashagad (Asave), Tal. Dahanu, Dist. Palghar, are ancestral lands to which the petitioner has succeeded. The petitioner belongs to “Mahadev Koli” tribe, which is recognized as a “Scheduled Tribe” in the State of Maharashtra. The father of the 4th respondent was inducted as a tenant of the aforesaid lands by the predecessor of the petitioner in the year 1940. According to the petitioner, an application under Section 36A(1)(b) of the Maharashtra Land Revenue Code, 1966 (for short, “the Code”) came to be moved. In the said proceedings, the petitioner and the 4th respondent arrived at an amicable settlement. Pursuant thereto, the petitioner sought quashing of the proceedings initiated by him with a further permission to transfer the aforesaid lands in favour of the 4th respondent. An application dated 23rd February 2004 in that regard was moved before the Collector. On 1st September 2006, the petitioner was informed that the 4th respondent was a non-tribal and as the land was being purchased for agricultural use, in view of the 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 2/37 provisions of Rule 4(1)(a)(i) of the Maharashtra Land Revenue (Transfer of Occupancy by Tribals to Non-Tribals) Rules, 1975 (for short, “the Rules of 1975”), permission for transfer could not be granted. Notwithstanding this communication, the petitioner made another application addressed to the Hon’ble Revenue Minister for State reiterating the request made earlier. The petitioner was again informed on 12th July 2010 that in view of the provisions of Rule 4(1)(a)(i) of the Rules of 1975, as the land was being transferred to a non-tribal for agricultural use, such permission could not be granted. The petitioner and the 4th respondent have since continued their efforts to seek permission from the Revenue Authorities. It is in that backdrop that the petitioner has filed this writ petition raising a challenge to the validity of Rule 4(1)(a)(i) of the Rules of 1975 by urging that as it permits transfer by a tribal in favour of a non-tribal only if the land is to be used for non-agricultural purpose.

3. It may be stated that being aggrieved by the order dated 12th July 2010 passed by the Additional Collector, Jawahar, the petitioner had filed a Revision Application before the State Government on 20th June 2014. Since the Revision Application was not being heard, the petitioner and the 4th respondent issued communications dated 3rd May 2016 and 23rd August 2016 to the State Government through its Department of Revenue and Forest seeking consideration of the same. When the present writ petition 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 3/37 was being heard, the petitioner on 1st August 2024 made an application before the Department of Revenue and Forest stating that he desired to withdraw the application dated 16th January 2008 and the Revision Application dated 20th June 2014 with a view to pursue this writ petition. The petitioner also sought leave to withdraw the joint letters dated 3rd May 2016 and 23rd August 2016 as made. It is in this factual backdrop that the learned counsel for the parties have been heard.

4. Dr. Abhinav Chandrachud, learned counsel appearing for the petitioner in support of the challenge raised to the validity of Rule 4(1)(a) of the Rules of 1975 submitted as under:- (a) Rule 4(1)(a) of the Rules of 1975 was violative of the provisions of Article 14 of the Constitution of India:- Basis the statutory scheme of the provisions of Section 36A of the Code along with the Rules of 1975 it was submitted that while sanctioning transfer by a tribal in favour of a non-tribal by the Collector, there was no reason whatsoever to differentiate between a transfer for non-agricultural purpose and one for agricultural purpose. This had no nexus whatsoever with the object that was sought to be achieved while granting sanction for transfer. If the Collector on being satisfied of the need 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 4/37 for granting sanction to a transfer by a tribal in favour of a non-tribal, the fact that after such transfer the nontribal intended to use such land for agricultural purposes was not relevant at all. The insistence that such sale ought to be only for bonafide non-agricultural purpose did not throw any light for restricting the use of the land after it was transferred. What was relevant were the considerations for grant of sanction and not the purpose for which the transferred land was to be used. The restriction imposed on the purpose of use of the land by a non-tribal resulted in placing unnecessary fetters on the right of a tribal to transfer his occupancy. In absence of any nexus whatsoever behind prohibiting sale by a tribal in favour of a non-tribal who intended to use the land for agricultural purpose, Rule 4(1)(a) of the Rules of 1975 was liable to be struck down. To substantiate this contention, the learned counsel placed reliance on the decisions in (i) Ramesh Chandra Sharma and Ors. Vs. State of Uttar Pradesh and Ors. 2023 INSC 144 (ii) Deepak Sibal Vs. Punjab University and Anr., 1989 INSC 58 (iii) Lok Prahari Vs. State of Uttar Pradesh and Ors., 2018 INSC 455 and (iv) Babasaheb Dhondiba Kute Vs. 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 5/37 Radhu Vithoba Barde, 2019 (1) Bom.C.R. 851. (b) Rule 4(1)(a)(i) places a fetter on the discretion to be exercised by the Collector while granting sanction:- In this regard it was urged that under the provisions of Section 36A(2) of the Code, the Collector was required to consider grant of sanction when the occupancy of a tribal was intended to be transferred in favour of a non-tribal. Sanction was required to be granted “in such circumstances and subject to such conditions as may be prescribed”. Under Rule 3 of the Rules of 1975, an application for transfer of occupancy under Section 36A and the procedure for disposal of such application was provided. However, under Rule 4(1)(a)(i) of the Rules of 1975, by restricting the scope for grant of sanction by the Collector under Section 36A only when the transfer of the land was for any bonafide non-agricultural purpose, there was a fetter placed on the Collector. In other words, it was urged that though Section 36A(2) of the Code confers a discretion on the Collector to grant sanction, Rule 4(1)(a)(i) of Rules of 1975 restricted the manner in which such discretion has 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 6/37 to be exercised. Such restriction while exercising discretion in the matter of grant of sanction affected the right of a tribal to transfer his occupancy. While there was no such restriction placed on a transfer by a tribal to a non-tribal for agricultural purposes under the Code, such discretion was imposed by Rule 4(1)(a)(i) of the Rules of 1975. The said Rule therefore travelled beyond the parent provision. Referring to the facts of the present case, it was urged that when the petitioner as a tribal voluntarily intended to sell his land to the 4th respondent who was his tenant and the tenant intended to continue to use the land for agricultural purpose, it was only on account of the provisions of Rule 4(1)(a)(i) of the Rules of 1975 that the Collector could not exercise discretion in favour of the petitioner. Reference was made to the decision in Shri Rama Sugar Industries Ltd. Vs. State of Andhra Pradesh and Ors., 1973 INSC 246 in this regard. It was further urged that any fetters placed on an Authority as to the manner in which discretion conferred is required to be exercised has always been frowned upon by the Courts. Attention in this regard was drawn to the decisions in U.P. State Road Transport Corporation 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 7/37 and Anr. Vs. Mohd. Ismail and Ors., 1991 INSC 99 Anahita Pandole Vs. State of Maharashtra and others, (2004) 6 Bom CR 246, Shiva Petro-Synth Specialities Ltd and another Vs. Goa State Pollution Control Board and others, (2021) 4 Bom CR 591 and Binod Rao Vs. Minocher Rustom Masani, 1976 (78) Bom.L.R. 125. The learned counsel also referred observations of Starling, J. in Gell Vs. Taja Noora, (1903) 27 ILR 307 to buttress his contention.

(c) Rule 4(1)(a) of the Rules of 1975 could be read down in exceptional or deserving cases:- Without prejudice to the challenge to the validity of Rule 4(1)(a) of the Rules of 1975, it was submitted that while saving the Rule from being struck down, the Court may read down the said Rule so as to permit the Collector to grant sanction for the transfer of a land by a tribal in favour of a non-tribal for agricultural purpose in exceptional or deserving cases. According to the learned counsel, the discretion vested in favour of the Collector under Section 36A(1) and (2) of the Code could be 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 8/37 permitted to be exercised in exceptional or deserving cases to enable transfer of a tribal’s land to a non-tribal for agricultural purposes. This would ensure that the Rule could be made workable without being required to be struck down. To buttress this submission, the learned counsel referred to the facts of the present case to indicate that the petitioner’s predecessor had inducted the predecessor of the 4th respondent as tenant and now the petitioner intended to sell the said land to the 4th respondent who desired to continue its use for agricultural purpose. It was thus submitted that Rule 4(1)(a) of the Rules of 1975 ought to be quashed as being violative of the provisions of Article 14 of the Constitution of India and as it restricted the manner in which the Collector ought to exercise discretion while granting sanction under Section 36A(1) and (2) of the Code. In any event, Rule 4(1)(a) of the Rules of 1975 ought to be read down so as to permit the Collector to grant sanction to a tribal to transfer his land to a non-tribal in exceptional, deserving or genuine cases even if the transferee nontribal intended to use the land for agricultural purposes. 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 9/37

5. Dr. Birendra Saraf, learned Advocate General for the State of Maharashtra in support of the validity of Rule 4(1)(a) of the Rules of 1975 submitted as under:- (a) Rule 4(1)(a) of the Rules of 1975 was valid and did not violate Article 14 of the Constitution of India:- In this regard, reference was initially made to the legislative history in the matter of transfer of occupancy by a tribal in favour of a non-tribal. The statutory scheme prior to enactment of Maharashtra Act XXXV of 1974 by which provisions of Section 36 of the Code came to be amended and Section 36A came to be introduced in the Code was referred to. Attention was invited to the Objects and Reasons behind the amendment by Maharashtra Act XXXV of 1974. Referring to the decision in Raoji Baliram Urkude Vs. State of Maharashtra and Anr., 1985 Mah L.J 843, it was submitted that the validity of the provisions of Section 36A of the Code had been unsuccessfully challenged. The Act of 1974 and especially Sections 3 and 4 thereof was the subject matter of challenge in Lingappa Pochanna Appelwar Vs. 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 10/37 State of Maharashtra and Anr., 1984 INSC 226 before the Supreme Court, that was unsuccessful. On this premise it was urged that there was a definite object behind imposing a restriction on the transfer of an occupancy by a tribal in favour of a non-tribal if the land was intended to be used after such transfer by the nontribal for agricultural purpose. The intention was to safeguard the interest of tribals. The said restriction had been imposed on the basis of the report of the Committee constituted by the State Government based on ground realities. Permission to sell agricultural land to a non-tribal for agricultural purposes was likely to result in accumulation of agricultural lands by a non-tribal that could result in exploitation of tribals with a further possibility of the tribals tilling the very lands of which they were owners. It was pointed out that there was no bar for a tribal to sell his occupancy to another tribal who could continue the agricultural purpose of utilizing the land thereafter. Further, the restriction on a tribal transferor in transferring his occupancy to a non-tribal for agricultural purpose was uniformly applicable to all tribals without any distinction. It was permissible for the 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 11/37 petitioner as a tribal to transfer his occupancy in favour of another tribal if he intended to continue its agricultural purpose. There being a clear object behind imposing such restriction and which object was to safeguard the interest of tribals, it could not be said that Rule 4(1)(a) of the Rules of 1975 was violative of Article 14 of the Constitution of India. Reliance was placed on the decisions in (i) Kashibai wd/o. Sanga Pawar and Ors. Vs. State of Maharashtra, 1993 Mh.L.J. 1168; (ii) Murlidhar Dayandeo Kesekar Vs. Vishwanath Pandu Barde and Anr., 1995 INSC 130; (iii) Samatha Vs. State of A.P. and Ors., (1997) 8 SCC 191; and (iv) Atul Projects India Ltd. Vs. Babu Dewoo Farle and Ors., 2011 (6) Mh.L.J. 351 in that regard. It was thus submitted that this challenge as raised by the petitioner was not liable to be accepted. (b) The discretion granted to the Collector while considering the grant of sanction to transfer was in furtherance of Section 36A(1) and (2) of the Code:- It was submitted that since the object behind introducing Section 36A of the Code and conferring jurisdiction on 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 12/37 the Collector to consider grant of sanction in the matter of transfer by a tribal in favour of a non-tribal only for non-agricultural use, it could not be said that the exercise of discretion by the Collector contained any fetters. As long as the transfer in favour of a non-tribal was for non-agricultural purpose, the Collector could always grant such sanction. The challenge as raised by the petitioner was required to be tested in the light of the law laid down by the Supreme Court in (i) Shayara Bano Vs. Union of India and Ors. 2017 INSC 785; (ii) Shikhar and Anr. Vs. National Board of Examination and Ors., 2022 INSC 390; and (ii) Dental Council of India Vs. Biyani Shikshan Samiti and Anr., 2022 INSC 419. Considering the object sought to be achieved behind enactment of Section 36A of the Code, it was clear that the Collector had sufficient discretion to exercise while considering an application for grant of sanction. On the basis of individual hardship that was sought to be putforth by the petitioner, Rule 4(1)(a) of the Rules of 1975 could not be invalidated. In fact, the petitioner had failed to satisfy any of the tests that have been laid down while raising a challenge to a delegated piece of legislation. 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 13/37 The learned Advocate General also placed reliance on the decision in Pathumma and Ors. Vs. State of Kerala and Ors., 1978 INSC 7. It was thus urged that even on this count, the challenge raised by the petitioner was not liable to succeed. The decisions sought to be relied upon by the learned counsel for the petitioner were distinguished and it was submitted that the ratio thereof could not be applied to the case in hand.

(c) As the provisions of Rule 4(1)(a) of the Rules of 1975 were valid, there was no question of the same being read down:- In this regard it was submitted that the Court would read down a provision only to save it from being declared as ultra vires. In the present case, Rule 4(1)(a) of the Rules of 1975 had sufficient nexus with the object that was sought to be achieved behind enacting Section 36A of the Code. Rule 4(1)(a) of the Rules of 1975 merely sought to ensure that the legislative intent behind introducing the said provision was satisfied. While there was no embargo whatsoever on one tribal transferring his occupancy in favour of another tribal, it was only if 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 14/37 the non-tribal transferee intended to use the land for agricultural purpose that such restriction operated. It was thus urged that there was no occasion whatsoever to read down Rule 4(1)(a)(i) of the Rules of 1975, as urged. Thus on the basis of the aforesaid submissions, it was urged that the challenge raised by the petitioner to the validity of Rule 4(1)(a) of the Rules of 1975 had no merit whatsoever and the writ petition was liable to be dismissed.

6. In rejoinder, it was urged that the justification offered by the State to support the validity of Rule 4(1)(a) of the Rules of 1975 was weak in the facts of the present case and the same did not warrant acceptance. Since the agricultural use of the land was sought to be continued by the transferee, there was no reason whatsoever for the Collector to deny permission for alienation of such land. It was thus submitted that the prayers made in the writ petition were liable to be granted and permission to transfer the petitioner’s occupancy in favour of the 4th respondent ought to be granted.

7. We have heard the learned counsel for the parties at length and with 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 15/37 their assistance we have perused the documentary material on record. We have thereafter given thoughtful consideration to the rival contentions of parties. At the outset, it would be necessary to refer to the relevant statutory provisions that have bearing on the challenge to the validity of Rule 4(1) (a)(i) of the Rules of 1975. Under Section 36(1) of the Code, an occupancy subject to the provisions of Section 72 of the Code and to any conditions lawfully annexed to the tenure is deemed heritable and transferable property. The provisions of Section 36A came to be introduced in the Code pursuant to its amendment by Maharashtra Act XXXV of

1974. Section 36A of the Code reads as under:- 36A. Restrictions on transfers of occupancies by Tribals (1) Notwithstanding anything contained in subsection (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, or mortgage for a 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 16/37 period not exceeding 5 years, of the Collector; and 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 kilometres thereof is prepared to take the occupancy from the owner on lease, mortgage or by sale or otherwise. Provided further, that in villages in Scheduled Areas of the State of Maharashtra, no such sanction allowing transfer of occupancy from tribal person to non-tribal person shall be accorded by the Collector unless the previous sanction of the Gram Sabha under the jurisdiction of which the tribal transferor resides has been obtained. Provided also that, in villages in Scheduled Areas of the State of Maharashtra, no sanction for purchase of land by mutual agreement, shall be necessary, if,-

(i) such land is required in respect of implementation of the vital Government projects; and

(ii) the amount of compensation to be paid for

2-Civil Writ Petition No.2727 of 2018-Judgment.doc 17/37 such purchase is arrived at in a fair and transparent manner. Explanation-For the purposes of the second proviso, the expression "vital Government project means project undertaken by the Central or State Government relating to National or State highways, Railways or other multi-modal transport projects, electricity transmission lines, Roads, Gas or Water Supply pipelines canals or of similar nature, in respect of which the State Government has, by Notification in the Official Gazette, declared its intention or the intention of the Central Government, to undertake such project either on its own behalf or through any statutory authority, an agency owned and controlled by the Central Government or State Government, or a Government Company incorporated under the provisions of the Companies Act, 2013 or any other law relating to companies for the time being in force. (2) The previous sanction of the Collector may be given in such circumstances and subject to such conditions as may be prescribed. (3) On the expiry of the period of the lease or, as the case may be, of the mortgage, the Collector may, notwithstanding anything contained in any law for the time being in force, or any decree or order 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 18/37 of any court or award or order of any Tribunal or Authority, either suo-moto or on application made by the Tribal in that behalf, restore possession of the occupancy to the tribal. (4) Where, on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, it is noticed that any occupancy has been transferred in contravention of sub-section (1) [the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo moto or on an application made by any person interested in such occupancy, [within thirty years from the 6th July, 2004]] hold an inquiry in the prescribed manner and decide the matter. (5) Where the Collector decides that any transfer of occupancy has been made in contravention of sub-section (1), he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government free of all encumbrances and shall be disposed of in such manner as the State Government may, from time to time, direct. (6) Where an occupancy vested in the State Government under sub-section (5) is to be disposed of, the Collector shall give notice in writing to the tribal-transferor requiring him to state within 90 days from the date of receipt of such notice whether or not he is willing to 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 19/37 purchase the land. If such tribal-transferor agrees to purchase the occupancy, then the occupancy may be granted to him if he pays the prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such tribal-transferor, whether as owner or tenant, does not as far as possible exceed an economic holding.

8. The constitutionality of Section 36A as being violative of the provisions of Article 14 of the Constitution of India was considered in Raoji Baliram Urkude (supra) by this Court. Repelling that challenge, it was held that the historical truth was that tribals belonged to weaker sections of the society and had been subjected to varied types of exploitations by taking undue advantage of their backwardness, meekness and helplessness. In view of the provisions of Article 46 of the Constitution of India, the Legislature had come forward to protect their interest. The classification of tribals as made had a clear nexus with the object of protecting their rights as sought to be achieved. It was held that the legislation could not be termed to be unreasonable and there was no ground to hold it to be bad.

9. In Lingappa Pochanna Appelwar (supra), the constitutional validity of Sections 3 and 4 of the Act of 1974 was questioned. Turning down that challenge by referring to the State policy enshrined in Article 46 of the 2-Civil Writ Petition No.2727 of 2018-Judgment.doc 20/37 Constitution, it was observed that existence of Scheduled Tribes as a distinct class and the preservation of their culture and way of life based upon agriculture which was inextricably linked with ownership of land required preventing an invasion upon their lands. The impugned provisions were in the nature of remedial measures in keeping with the policy of the State for rendering social and economic justice to the weaker sections of the society. Transactions between parties having unequal bargaining power which resulted in transfer of title due to force of circumstances were sought to be re-opened so as to restitute the parties to their original position.