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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 1809 OF 2020

WITH

CIVIL APPLICATION NO.8812 OF 2021

WITH

CIVIL APPLICATION NO.14664 OF 2023

IN WP/1809/2020

1.Gokul S/o. Jaysing Shele,

Age : 65 years, Occu. : Agriculture,

R/o. Saptshrungi Colony,

Amalner, Taluka Amalner,

District Jalgaon.

2.Devidas S/o. Jaysing Shele,

Age : 60 years, Occu. : Agriculture,

R/o. Laxmi Nagar,

Near Shriram School, Mehrun,

Jalgaon, Taluka and

District Jalgaon. … Petitioners

[Orig. Plaintiffs/Decree Holders]

Versus

1.Yuvraj S/o. Devram Pardhi,

Age : 37 years, Occu. : Agriculture,

R/o. Pendharpura, Parola,

Taluka Parola, District Jalgaon.

2.Sau. Nirmalabai Gopal Pardhi,

Age : 51 years, Occu. : Household,

R/o. Parase Road, Surat,

Taluka and District Surat

(Gujrat)

3.Sau Mangalabai Himmat Pardhi,

Age : 48 years, Occu. : Household,

R/o. Patil Gadi, Chopada,

Taluka Chopada, District Jalgaon.

4.Sunandabai Adhar Pardhi,

Age : 45 years, Occu. : Household,

R/o. Pendharpura, Parola,

Taluka Parola, District Jalgaon. 2026:BHC-AUG:10137

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5.Sau Chotibai Sanju Pardhi,

Age : 35 years, Occu. : Household,

R/o. Morane, Taluka and District Jalgaon

… Respondents

[Orig. Defendants/Judgment debtors]

…..

Mr. Karan Sarosiya h/f. Mr. S. S. Bora, Advocate for petitioners.

Mr. Angad L. Kanade, Advocate for Respondent Nos.1 to 5.

Mr. Moinpasha Shaikh Farid, Advocate for Intervenor in CA/14664/2023.

…..

CORAM :ABHAY S. WAGHWASE, J.

RESERVED ON :04 MARCH 2026

PRONOUNCED ON : 10 MARCH 2026

JUDGMENT :

1. By invoking Article 227 of the Constitution of India,

petitioners are praying to quash and set aside the order dated

08.02.2012 passed by the learned Civil Judge, Senior Division,

Amalner in Special Darkhast No.08 of 2011 and to allow the

application Exh.18.

2. In brief, the case of petitioners is that, they had instituted

Special Civil Suit No.04 of 2009 against the present respondents for

specific performance of contract with regard to the agricultural land

Block No. 254/1, on the premise that, the defendant nos. 1 to 5, who

were owners of the said land, in view of pressing financial needs on

account of marriage of daughter, agreed to sell the said property for

Rs.7,00,000/- and also obtained earnest amount of Rs.50,000/- and

even executed agreement to sale in favour of the petitioners/

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plaintiffs on 18.11.2005 and remaining amount was to be paid at the

time of sale deed. It is their further contention that, as defendants

failed to comply and execute sale deed, they were constrained to file

suit and also succeeded in securing decree and in execution of said

decree, they had tendered an application i.e. Special Darkhast No. 08

of 2011 for execution of the decree. It is their further case that,

when they had approached the Sub Registrar, said authority had

refused to register the sale deed for want of permission under

sections 36 and 36A of MLR Code. Therefore, they were constrained

to file application below Exh.18 before the Civil Court urging for

directions to Sub Registrar to register the sale deed, but said

application was rejected by order dated 08.02.2012. Hence, the

instant petition.

3. Learned counsel for petitioners would point out that,

there was agreement of sale in their favour and they had parted with

substantiated amount. When there was refusal to execute the sale

deed, Special Civil Suit was filed and they had succeeded in getting

decree in their favour. That order was not challenged, and as such,

decree had attained finality. Thereafter, decree was put for execution

and even Civil Court had directed the authorities to get the sale deed

executed through Registrar office, but still said authority refused to

register the sale deed on the ground that there was no permission of

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the Collector. According to learned counsel, the The Sub Registrar

had no authority to refuse registration. That, the Registration

Authorities had failed to consider that there was decree in their

favour. That, even provisions of sections 36 and 36A of MLR Code

cannot be made applicable because both the parties are belonging to

Scheduled Tribe, and therefore, there was no question of obtaining

prior permission of the Collector. Therefore, for above reasons, Writ

Petition is sought to be allowed by setting aside the order of learned

Civil Judge, Senior Division, Amalner passed on Exh.18 dated

08.02.2012 in Special Darkhast No.08 of 2011.

4. Learned counsel for respondents would support the order

of learned Civil Judge, Senior Division, Amalner, precisely on the

ground that, the land in question is a tribal land and therefore, prior

permission of the Collector is necessary. Therefore, on account of non

compliance with the sections 36 and 36A of MLR Code, the sale deed

could not be executed. For above reasons, he urged to dismiss the

Writ Petition for want of merits.

5. After hearing submissions of both side and on going

through the papers, it is emerging that, Special Civil Suit was

instituted by present petitioners bearing No.04 of 2009 for specific

performance of contract. Present respondents were defendants

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therein. The suit seems to have ended up in favour of the petitioners

and decree was passed vide judgment and order dated 21.07.2010.

6. It further emerges that, the petitioners took steps of

getting the decree executed vide Special Darkhast No. 08 of 2011.

During the said proceedings, when Registration Authorities were

approached for execution of sale deed, said authority noticed that

land being tribal, prior permission as required under sections 36 and

36A of MLR Code was necessary, but it was not available, and as

such, permission was refused, thereafter application Exh.18 seems to

have pressed into service before the learned Civil Court urging for

directions. However, after considering the submissions of both sides,

learned Civil Court also noticed that, in view of bar under sections 36

and 36A of MLR Code, sale deed cannot be executed.

7. Now, learned counsel for petitioners has submitted that

both parties are tribal, and therefore, permission as required by the

Collector under the above provisions, is not mandatory.

Consequently, the aforementioned provisions are reproduced as

under :

36.Occupancy to be transferable and heritable subject

to certain restrictions.—

(1) An occupancy shall, subject to the provisions

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contained in section 72 and to any conditions lawfully

annexed to the tenure, and save as otherwise provided by

law, be deemed an heritable and transferable property.

(2) Notwithstanding anything contained in the

foregoing sub-section occupancies of persons belonging to

the Schedule Tribes (hereinafter referred to as the

'Tribals') (being occupancies wherever situated in the

State), shall not be transferred except with the previous

sanction of the Collector:

Provided that, nothing in this sub-section shall

apply to transfer of occupancies made in favour of persons

other than the Tribals (hereinafter referred to as the 'non-

Tribals') on or after the commencement of the

Maharashtra Land Revenue Code and Tenancy Laws

(Amendment) Act, 1974 (Mah. XXXV of 1974).]

(3) Where an occupant belonging to a Schedule

Tribe in contravention of sub-section (2) transfers

possession of his occupancy, the transferors or any person

who if he survives the occupant without nearer heirs

would inherit the holdings, may, "[within thirty years

from the 6th July 2014], apply to the Collector to be

placed in possession subject so far as the Collector may, in

accordance with the rules made by the State Government

in this behalf, determine to his acceptance of the liabilities

for arrears of land revenue or any other dues which form

a charge on the holding, "[and, notwithstanding anything

contained in any law for the time being in force, the

Collector shall] dispose of such application in accordance

with procedure which may be prescribed :

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Provided that, where a Tribal in contravention of

sub-section (2) or any law for the time being in force has,

at any time before the commencement of the Maharashtra

Land Revenue Code and Tenancy Laws (Amendment) Act,

1974 (Mah. XXXV of 1974) transferred possession of his

occupancy to a non-Tribal and such occupancy is in the

possession of such non-Tribal or his successor-in-interest,

and has not been put to any non-agricultural use before

such commencement, then, the Collector shall,

notwithstanding anything contained in any law for the

time being in force, either suo motu at any time or on

application by the Tribal (or his successor-in-interest)

made at any time [within thirty years from the 6th July

2004], after making such inquiry as he thinks fit, declare

the transfer of the occupancy to be invalid, and direct that

the occupancy shall be taken from the possession of such

non-Tribal or his successor-in-interest and restored to the

Tribal or his successor-in-interest.

( * * * * )

[Provided further] that where transfer of

occupancy of a Tribal has taken place before the

commencement of the said Act in favour of a non-Tribal,

who was rendered landless by reason of acquisition of his

land for a public purpose, only half the land involved in

the transfer shall be restored to the Tribal.]

(3A) Where any Tribal (or his successor-in-interest)

to whom the possession of the occupancy is directed to be

restored under the first proviso to sub-section (3)

expresses his unwillingness to accept the same, the

Collector shall, after holding such inquiry as he thinks fit,

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by order in writing, declare that the occupancy together

with the standing crops therein, if any, shall with effect

from the date of the order, without further assurance, be

deemed to have been acquired and vest in the State

Government.

(3B) On the vesting of the occupancy under sub-

section (3A), the non-Tribal shall, subject to the

provisions of sub-section (3C), be entitled to receive from

the State Government an amount equal to 48 times the

assessment of the land plus the value of improvements, if

any, made by the non-Tribal therein to be determined by

the Collector in the prescribed manner.

Explanation. - In determining the value of any

improvements under this sub-section, the Collector shall

have regard to-

(i) the labour and capital provided or spent on

improvements;

(ii) the present condition of the improvements;

(iii) the extent to which the improvements are

likely to benefit the land during the period of ten years

next following the year in which such determination is

made;

(iv) such other factors as may be prescribed.

(3C) Where there are persons claiming

encumbrances on the land, the Collector shall apportion

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the amount determined under sub-section (3B) amongst

the non-Tribal and the person claiming such

encumbrances, in the following manner, that is to say-

(i) if the total value of encumbrances on the land is

less than the amount determined under sub-section (3B),

the value of encumbrances shall be paid to the holder

thereof in full;

(ii) if the total value of encumbrances on the land

exceeds the amount determined under sub-section (3B),

the amount shall be distributed amongst the holders of

encumbrances in the order of priority:

Provided that, nothing in this sub-section shall

affect the right of holder of any encumbrance to proceed

to enforce against the non-Tribal his right in any other

manner or under any other law for the time being in force.

(3D) The land vested in the State Government

under sub-section (3A) shall, subject to any general or

special orders of the State Government in that behalf, be

granted by the Collector to any other Tribal residing in the

village in which the land is situated or within five

kilometres thereof and who is willing to accept the

occupancy in accordance with the provisions of this Code

and the rules and orders made thereunder and to

undertake to cultivate the land personally, so, however,

that the total land held by such Tribal, whether as owner

or tenant, does not exceed an economic holding within the

meaning of sub-section (6) of section 36A.

(4) Notwithstanding anything contained in sub-

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section (1) or in any other provisions of this Code, or in

any law for the time being in force it shall be lawful for an

Occupant Class II to mortgage his property in favour of

the State Government in consideration of a loan advanced

to him by the State Government under the Land

Improvement Loan Act, 1883 (XIX of 1883), the

Agriculturists Loans Act, 1884 (XII of 1884), or the

Bombay Non-Agriculturists Loans Act, 1928 (Bom. III of

1928), or in favour of a co-operative society [or the State

Bank of India constituted under section 3 of the State

Bank of India Act, 1955 (23 of 1955), or a corresponding

new bank within the meaning of clause (d) of section 2 of

the Banking Companies (Acquisition and Transfer of

Undertakings) Act, 1970 (5 of 1970), or the Maharashtra

State Financial Corporation established under the

relevant law] in consideration of a loan advanced to him

by such co-operative [society, State Bank of India,

corresponding new bank, or as the case may be,

Maharashtra State Financial Corporation], and without

prejudice to any other remedy open to the State

Government, [the co-operative society, the State Bank of

India, the corresponding new bank, or as the case may be,

the Maharashtra State Financial Corporation] in the

event of such occupant making default in payment of such

loan in accordance with terms on which such loan is

granted, it shall be lawful for the State Government,

4"[the co-operative society, the State Bank of India, the

corresponding new bank, or as the case may be, the

Maharashtra State Financial Corporation] to cause the

occupancy to be attached and sold and the proceeds to be

applied towards the payment of such loan.

The Collector may, 42[on the application of the co-

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operative society, the State Bank of India, the

corresponding new Bank or the Maharashtra State

Financial Corporation], and payment of the premium

prescribed by the State Government in this behalf, by

order in writing re-classify the occupant as Occupant-

Class I; and on such re-classification, the occupant shall

hold the occupancy of the land without any restriction on

transfer under this Code.

Explanation. - For the purpose of this section,

"Schedule Tribes" means such tribes or tribal communities

or parts of, or groups within, such tribes or tribal

communities as are deemed to be Scheduled Tribes in

relation to the state of Maharashtra under Article 342 of

the Constitution of India 43 [and persons, who belong to

the tribes or Tribal communities, or parts of, or groups

within tribes or tribal communities, specified in part VIIA

of the Schedule to the Order 44[made under] the said

article 342, but who are not resident in the localities

specified in that Order who nevertheless need the

protection of this section and section 36A (and it is hereby

declare that they do need such protection) shall, for the

purposes of those section be treated in the same manner

as members of the Scheduled Tribes.]

36A. Restrictions on transfer of occupancies by Tribals. -

(1) Notwithstanding anything contained in sub-

section (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

(Mah. XXXV of 1974), be transferred in favour of any

non-Tribal by way of sale (including sales in execution of a

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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 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

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(ii) the amount of compensation to be paid for 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 intension 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 (18 of 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 of any court or

award or order of any tribunal, or authority, either suo

motu 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

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(Amendment) Act, 1974 (Mah. XXXV of 1974), it is

noticed that any occupancy has been transferred in

contravention of sub-section (1) 48 [the Collector shall,

notwithstanding anything contained in any law for the

time being in force, either suo motu or on the application

made by any person interested in such occupancy,] 49 [or

on a resolution of the Gram Sabha in Scheduled Areas]

[within thirty years form 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 encumberances 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 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.

Explanation. - For the purpose of this section, the

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expression "economic holding" means 6.48 hectares (16

acres) of jirayat land, or 3.24 hectares (8 acres) of

seasonally irrigated land, or paddy or rice land, or 1.62

hectares (4 acres) of perennially irrigated land, and

where the land held by any person consists of two or more

kinds of land, the economic holding shall be determined on

the basis of one hectare of perennially irrigated land being

equal to 2 hectares of seasonally irrigated land or paddy

or rice land or 4 hectares of jirayat land.”

8. From the above provisions, it is clear that, while dealing

with tribal land, MLR Code mandates prior permission of the

Collector. In the instant case, it is obvious from the record that no

such prior permission was obtained before entering into agreement

to sale and even prior to sale deed.

Learned counsel for respondents placed on record

judgment of this Court (Nagpur Bench) in Writ Petition No.1556 of

2022 in the case of Vijay Anandrao Moghe and Ors. v. The Additional

Collector and Ors.

9. Therefore, taking into account the above statutory

provisions as well as judgment of this Court, which is squarely

applicable, there is no substance in the petition.

10. For above reasons, no case being made out to interfere by

way of writ, petition fails and is dismissed in limine.

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11. In view of dismissal of Writ Petition, Civil Application

Nos. 8812 of 2021 and 14664 of 2023 do not survive and are

accordingly disposed of.

(ABHAY S. WAGHWASE, J.)

Tandale