As per case facts, petitioners challenged a Minister's order regarding Mahar Watan land transfers. The land was re-granted in 1968. Conflicting sale deeds arose: one in favor of respondents (2012) ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10990 OF 2019
Suryakant Ravji Shah & Another … Petitioners
Vs.
Gautam Ramchandra Desai, since
deceased through legal heirs & Others … Respondents
Mr. Girish Godbole, Senior Advocate with Mr. Drupad
Patil, Mr. Satyen Vora, Mr. Ankur Kalal, Ms. Namrata
Vashisht, & Ms. Khushboo Chughani i/by Markand
Gandhi & Co., for the petitioners.
Mr. Abhay Anturkar with Mr. Harshvardhan
Suryavanshi, Mr. Nakul Patwardhan, and Mr. Atharva
Date for respondent Nos. 1, 22, 23, 24, 25, & 26.
Mr. S.V. Sadavarte for respondent Nos.3, 4, 13A, 13C, &
13D.
Ms. Kavita N. Solunke, Additional G.P. with Mr. S.L.
Babar, AGP for respondent No.21-State.
CORAM :AMIT BORKAR, J.
RESERVED ON :AUGUST 3, 2026.
PRONOUNCED ON:AUGUST 6, 2026
JUDGMENT:
1.Since all these writ petitions involve almost same facts and
same legal issues, they are being decided by this common
judgment. For easy reference, the facts of Writ Petition No. 10990
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.08.06
11:14:46 +0530
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of 2019 are taken as the main case and referred to in this
judgment.
2.According to the petitioners, the facts leading to these writ
petitions are as follows. The suit land was earlier in possession of
Dhondu Kesu Mahar, Chorvu Bapu Saravate and Pandu Kondunak
Sapkal as Mahar Watan land. On 23 July 1968, an order of re
grant of the suit land was passed in favour of these occupants.
Later, on 31 October 2006, respondent Nos. 6, 9 and 10 executed
one power of attorney, and respondent Nos. 18 and 19 executed
another power of attorney, both in favour of respondent No. 5,
authorising him to obtain the necessary permissions for transfer of
the suit land. Thereafter, on 8 November 2006, respondent Nos. 7,
11 to 14, 16 and 17 also executed a power of attorney in favour of
respondent No. 5 for the same purpose. Subsequently, on 15 April
2011, respondent Nos. 6, 9, 10, 18 and 19 issued a public notice
cancelling and terminating the powers of attorney dated 31
October 2006 and 8 November 2006.
3.On 9 May 2011, respondent Nos. 6, 9 and 10 executed and
registered a Declaration Deed for cancelling the power of attorney.
Thereafter, on 27 June 2012, respondent Nos. 6, 9, 10, 18, 19, 20
to 24 entered into a registered Agreement for Sale with the
petitioners. Later, on 30 November 2012, respondent No. 5
executed and registered a sale deed in favour of respondent Nos. 1
to 5 by using the earlier powers of attorney. On the basis of that
sale deed, Mutation Entry No. 755 was recorded by the Talathi.
However, that mutation entry was not certified because the sale
deed had been executed without obtaining the required prior
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permission.
4.On 28 May 2013, the Collector granted permission to
transfer a part of the suit land measuring 3 H 89 R in favour of the
petitioners. Thereafter, on 31 May 2013, the original owners
executed and registered a sale deed in favour of the petitioners for
the said land. On the basis of this sale deed, Mutation Entry No.
757 was recorded. The petitioners filed objections before the
Tahsildar against Mutation Entry No. 755. By order dated 28
October 2013, the Tahsildar cancelled Mutation Entry No. 755 by
holding that the sale deed dated 30 November 2012 was illegal as
it had been executed without obtaining the necessary permission.
5.On the same day, namely 28 October 2013, the Tahsildar also
passed an order cancelling Mutation Entry No. 757 on the ground
that the original owners had violated the conditions of re grant.
Thereafter, on 20 August 2016, the Sub Divisional Officer
dismissed RTS Appeal No. 838 of 2014 filed by respondent Nos. 1
to 5 and confirmed cancellation of Mutation Entry No. 755. By the
same order, RTS Appeal No. 920 of 2014 filed by the petitioners
was allowed, and Mutation Entry No. 757 was directed to be
certified.
6.Thereafter, on 29 April 2017, the Collector dismissed RTS
Second Appeal No. 868 of 2016 and RTS Second Appeal No. 853
of 2016 filed by respondent Nos. 1 to 5 against the order dated 20
August 2016. Further, on 9 March 2018, the Divisional
Commissioner also dismissed Revision Application No. 159 of 2017
arising from Second Appeal No. 868 of 2016 and Revision
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Application No. 160 of 2017 arising from Second Appeal No. 853
of 2016 filed by respondent Nos. 1 to 5.
7.On 1 March 2018, the Commissioner dismissed Appeal No.
204 of 2017 filed by respondent Nos. 1 to 5 challenging the
permission granted by the Collector on 28 May 2013. Thereafter,
on 3 August 2018, the heirs of Nagabai and Vithabai executed a
registered Confirmation Deed confirming the Agreement for Sale
dated 27 June 2012.
8.On 4 September 2019, the Minister passed three orders
allowing Revision Application No. 3418/6148/File No. 120/J/5,
Revision Application No. 3418/6138/File No. 119/J/5 and
Revision Application No. 3418/6137/File No. 121/J/5. By these
orders, the permission granted by the Collector for transfer of the
suit land was cancelled and Mutation Entry No. 757 standing in
the name of the petitioners was also set aside.
9.Thereafter, on 11 September 2019, corrigenda were issued to
correct certain typographical mistakes in the orders dated 4
September 2019. Being aggrieved by those orders, the petitioners
have filed the present writ petitions before this Court.
10.Learned counsel Mr. Drupad Patil appearing for the
petitioners submitted that before Section 5(3) of the Bombay
Inferior Village Watans Abolition Act, 1958 ("the 1958 Act") was
amended by Maharashtra Act No. 21 of 2002 with effect from 6
May 2002, it provided as follows:
Section 5 sub section (3):
"The occupancy of the land regranted under sub-section (1)
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shall not be transferable or partible by metes and bounds
without the previous sanction of the Collector and except on
payment of such amount as the State Government may by
general or special order determine."
11.Learned counsel submitted that this provision was
interpreted by the Division Bench of this Court in the case of
Vitthal Kondhalkar v. State of Maharashtra, reported in 1979 STPL
2388 Bombay. In that case, the original Watandars had paid 13
times the land revenue assessment for some of the lands, as
recorded in paragraph 4 of the judgment. After considering
different Watan Abolition Acts and the Government Circulars, the
Division Bench held in paragraphs 5 and 6 that the Collector only
has to see whether the additional amount equal to 10 times the
assessment has been paid. Once that amount is paid, the Collector
has to remove the restrictions on transfer as a matter of right.
According to the petitioners, the order granting permission is only
a formal or ministerial act.
12.Learned counsel submitted that the Division Bench in Shaikh
Lal v. Malhari,
Writ Petition No. 3047 of 1978 decided on 16
December 1983, wrongly understood the earlier judgment in
Vitthal Kondhalkar. It is pointed out that paragraph 2 of
Shaikh Lal
records that before the transfer neither permission of the Collector
had been obtained nor the amount equal to 10 times the land
revenue assessment had been paid. According to the petitioners,
therefore, the decision in
Shaikh Lal is contrary to the principle
laid down in
Vitthal Kondhalkar.
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13.It is submitted that the learned Single Judge in Bhagwantrao
v. State of Maharashtra
merely followed the judgment in Shaikh
Lal
. Apart from that, the facts of Bhagwantrao show that the Inam
land had been re granted in favour of the Inamdar after payment
of occupancy price. However, the judgment does not clearly state
whether the additional amount equal to 10 times the land revenue
assessment was paid. It is also pointed out that the judgment
mainly proceeds on the basis that proceedings under Section 59 of
the Maharashtra Land Revenue Code, 1966 could not have been
started.
14.Learned counsel also referred to the Division Bench
judgment in
Mohan Sonaji Shilwant (deceased) v. State of
Maharashtra & Ors.,
Writ Petition No. 3186 of 2020 decided on 13
April 2022. It is submitted that paragraph 3 of that judgment
records that the land was re granted on 18 April 1970. Before
execution of the sale deed, an application seeking permission had
been made on 12 August 1994. As no decision was taken for about
two years and five months, the sale deed came to be executed on
14 January 1997, an application for regularisation was filed and,
after Section 5 of the 1958 Act was amended with effect from 6
May 2002, Nazrana of Rs.30,000/- was paid. Even then, on 7
December 2018, the Deputy Collector rejected the application on
the ground that the land was Mahar Watan land. According to the
petitioners, this judgment also does not clearly state whether the
original Watandar had paid three times or thirteen times the land
revenue assessment. It is submitted that while the judgment
follows
Vitthal Kondhalkar by observing that only a ministerial act
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remained, paragraph 11 also follows
Shaikh Lal, which, according
to the petitioners, has incorrectly understood the ratio laid down
in
Vitthal Kondhalkar.
15.Learned counsel submitted that the judgment in Ramnath
Kondaji Darade v. Hirabai & Ors.,
Writ Petition No. 2922 of 1996,
only follows the judgment in
Bhagwantrao v. State of Maharashtra.
Since
Bhagwantrao followed the decision in Shaikh Lal, which
according to the petitioners had wrongly applied the law laid
down in
Vitthal Kondhalkar, it is submitted that the same
reasoning has been repeated in
Ramnath Kondaji Darade.
16.Learned counsel submitted that before Section 5(3) of the
1958 Act was substituted with effect from 6 May 2002, there was
no classification among different types of inferior village Watans
where the original Watandar had paid 13 times the land revenue
assessment before the sale. It is pointed out that Section 2(7)
defines "inferior village Watan" as an inferior village hereditary
office together with the Watan property attached to it. Section 2(6)
defines "inferior village hereditary office" to include hereditary
village offices below the rank of Revenue Patil, Police Patil or
Village Accountant. According to the petitioners, this included not
only Mahar Watans but also Watans held by communities such as
Ramoshi and Mang. All these Watans were treated alike before 6
May 2002. However, after the amendment of 2002, and as
reflected in the Statement of Objects and Reasons of Legislative
Assembly Bill No. 8 of 2000, the Legislature intentionally imposed
a complete restriction only upon Mahar Watan lands by
introducing Section 5(4). Therefore, from 6 May 2002 onwards,
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Mahar Watan lands were placed in a category. Once this distinction
was made by the Legislature, it is submitted that the earlier
principle regarding payment of 10 times the land revenue
assessment can no longer remove the restriction on transfer of
Mahar Watan lands.
17.Learned counsel submitted that the legislative scheme
became even more clear after Legislative Council Bill No. 4 of
2008, which was later enacted as Maharashtra Act No. 19 of 2008.
By this amendment, the earlier Section 5(3) was renumbered as
Section 5(3)(a), Section 5(3)(b) was added, and three provisos
were also inserted. However, Section 5(4), which prohibits transfer
of Mahar Watan land, remained unchanged. According to the
petitioners, while the Legislature regularised transfers of other
inferior village Watans made before 6 May 2002, it intentionally
continued the prohibition in respect of Mahar Watan lands.
18.Learned counsel submitted that both the judgments in
Bhagwantrao and Ramnath v. Hirabai referred to the amended
provisions of Section 5 even though the transfers involved in those
cases had taken place before 6 May 2002. According to the
petitioners, since those judgments overlooked the statutory
provisions applicable on the actual dates of transfer and also
ignored Section 5(4) after the amendment of 2002, both decisions
should be treated as per incuriam.
19.It is therefore submitted that after 6 May 2002, the principle
laid down in
Vitthal Kondhalkar cannot be applied to transfers
made on or after that date. According to the petitioners, Section
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5(4) creates a complete prohibition against transfer of Mahar
Watan land without previous permission of the Collector, and the
intention of the Legislature in creating a class for Mahar Watan
lands must be given full effect.
20.The petitioners relied upon several judgments to support
their contention that wherever a statute requires "previous"
sanction or permission, such requirement is mandatory. According
to them, any transaction completed without such previous
permission is invalid and cannot be validated later by granting
permission after the event. For this purpose, the petitioners relied
upon the following authorities.
21.Learned counsel submitted that in Life Insurance
Corporation of India v. Escorts Ltd.,
(1986) 1 SCC 264, the
Constitution Bench of the Supreme Court held that whenever the
Legislature intends that permission should be obtained before an
act is done, it uses the expression "previous permission". The Court
held that where the Legislature has used the words "previous
permission" in some provisions but omitted them in others, such
distinction cannot be ignored while interpreting the statute.
Reliance was placed upon paragraph 63 of the judgment. On the
basis of this judgment, the petitioners submitted that the same
principle applies to Section 5 of the 1958 Act. Wherever the
Legislature intended that transfer should take place only after
obtaining sanction, it deliberately used the expression "previous
sanction". According to the petitioners, since there is no provision
permitting regularisation of transfer of Mahar Watan land after 6
May 2002, the Court must give effect to that legislative intention.
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22.Learned counsel also relied upon the decision in Asha John
Divianathan v. Vikram Malhotra,
(2021) 19 SCC 629, wherein the
Supreme Court held that the requirement of obtaining "previous"
permission under Section 31 of the Foreign Exchange Regulation
Act, 1973 is mandatory. The Court held that any transaction
completed without such permission is prohibited by law, opposed
to public policy and unenforceable, and that permission cannot be
granted afterwards. Reliance was placed upon paragraphs 26, 32,
34, 36 and 49 of the judgment.
23.Learned counsel relied upon the judgment of this Court in
Central Hindu Military Social Education Society v. Joint Charity
Commissioner,
Writ Petition No. 6743 of 2007 with Writ Petition
No. 5861 of 2008 decided by this Court on 22 October 2008,
wherein it was held that the sanction required under Section 36(1)
of the Bombay Public Trusts Act, 1950 must be obtained before the
transaction and that the Charity Commissioner has no power to
grant sanction afterwards. Reliance was placed upon paragraphs
29 and 30 of that judgment.
24.Reliance was also placed upon the judgment in Saraswati
Shamrao Dhere v. Khutub Babu Malani & Ors.,.
Writ Petition No.
1484 of 1992 decided by this Court on 5 February 2015, wherein
this Court held that the requirement of obtaining previous sanction
under Section 43 of the Bombay Tenancy and Agricultural Lands
Act, 1948 is mandatory. It was held that such requirement cannot
be diluted by granting permission after the transfer, and that a
transfer made in breach of the provision is invalid and liable for
action under Section 84C. Reliance was placed upon paragraphs
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12 to 15 and 25 of the judgment.
25.Learned counsel also relied upon the judgment of the
Supreme Court in
Vinodchanda Sakarlal Kapadia v. State of
Gujarat
, (2020) 18 SCC 144, wherein it was held that Section 43
of the Bombay Tenancy and Agricultural Lands Act is intended to
protect the rights of weaker and disadvantaged sections by
ensuring that the land continues with such persons. According to
the Supreme Court, the restriction against transfer without
previous sanction must be understood in the light of that
legislative object.
26.On the basis of these judgments, learned counsel submitted
that wherever the statute requires "previous" sanction or
permission, such requirement is mandatory and cannot be treated
as optional. The deliberate use of the word "previous" by the
Legislature cannot be ignored. Therefore, any transaction made
without such previous permission is invalid and unenforceable. It
is also submitted that after insertion of Section 5(4) with effect
from 6 May 2002, the law imposes a complete prohibition on
transfer of Mahar Watan land without obtaining previous sanction
of the Collector.
27.Learned counsel submitted that in Vitthal Kondhalkar, the
Division Bench interpreted the unamended Section 5(3) of the
1958 Act and held that once the amount determined by the State
Government under that provision had been paid, the Collector was
bound to grant permission for transfer.
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28.It is submitted that by the amendment made in 2002, the
earlier Section 5(3) was replaced by the present Section 5(3)(a),
thereby removing the restrictions on transfer of Watan lands
covered by the Act. The amendment also introduced the second
proviso for regularising earlier transfers made for non-agricultural
purposes. Learned counsel submitted that by the amendment made
in 2008, Section 5(3)(b) was inserted for regularising earlier
transfers made for agricultural purposes. According to the
petitioners, these amendments show that Section 5(3) was
changed with the object of regularising past transfers and
removing the requirement of previous permission for future
transfers relating to other Watan lands.
29.However, learned counsel pointed out that while making
these amendments, the Legislature separately protected Mahar
Watan occupancy by introducing Section 5(4) through the
amendment of 2002. Therefore, according to the petitioners, the
principle laid down in
Vitthal Kondhalkar cannot be applied to
Mahar Watan lands. Learned counsel finally submitted that after 6
May 2002, the ratio of
Vitthal Kondhalkar cannot govern transfers
made on or after that date. According to the petitioners, Section
5(4) imposes a complete prohibition upon transfer of Mahar
Watan land without previous sanction of the Collector, and the
Court must give full effect to the Legislature's intention of treating
Mahar Watan lands as a category.
30.Learned counsel Mr. Abhay Anturkar appearing for
respondent Nos. 1, 22, 23, 24, 25 and 26 invited attention to the
relevant provisions of the Maharashtra Inferior Village Watans
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Abolition Act, 1959 and made the following submissions. Learned
counsel submitted that the Maharashtra Inferior Village Watans
Abolition Act, 1959 was enacted to abolish inferior village Watans
in certain parts of the State of Bombay. Section 5 of the Act deals
with re grant of Watan lands to the Watandars. Under Section
5(1), land resumed by the Government under Section 4 is required
to be re granted to the Watandar after payment of an occupancy
price equal to three times the full land assessment. After such
payment, the Watandar is treated as an occupant under the
Maharashtra Land Revenue Code, 1966. It is submitted that before
its amendment by Maharashtra Act No. 21 of 2002, Section 5(3)
provided that such re granted land could not be transferred or
partitioned without previous sanction of the Collector and
payment of the amount determined by the State Government.
31.Learned counsel pointed out that by Maharashtra Act No. 21
of 2002, Section 5(4) was introduced. This provision states that
Mahar Watan land re granted under Section 5(1) cannot be
transferred or partitioned without previous sanction of the
Collector and payment of the amount fixed by the State
Government. It is submitted that the language of the old Section
5(3) and the present Section 5(4) is practically the same.
According to the respondents, both provisions require previous
permission of the Collector before transfer. The only difference is
that after the amendment, this restriction applies only to Mahar
Watan lands. Therefore, the amendment has only reduced the
category of lands covered by the provision, but it has not changed
the basic requirement of obtaining previous sanction. On this basis,
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learned counsel submitted that the interpretation given by this
Court while construing the old Section 5(3) applies to Section
5(4), because both provisions contain the same legal requirement.
The only change is the class of lands to which the provision
applies.
32.Learned counsel submitted that transfer of Mahar Watan
land between persons belonging to the Mahar community does not
require previous sanction of the Collector. In this regard, reliance
was placed upon the Government Circular dated 3 March 1976.
According to the respondents, the object of the Circular was to
restore ex inferior village service Watan lands which had wrongly
gone into the hands of persons belonging to non-backward classes.
It is submitted that the scheme was introduced as a measure of
social justice to bring such lands back to members of backward
communities.
33.Learned counsel also relied upon the Government
Memorandum dated 7 September 1977. It is submitted that this
Memorandum clarified that the restoration scheme was mainly
intended for cases where Watan lands had been transferred to
persons belonging to non-backward classes. The Government also
clarified that where transfers had taken place between ex inferior
village Watandars themselves, there was no question of initiating
suo motu restoration proceedings. According to the respondents,
this clearly shows that the object of the scheme was to prevent
transfer of such lands outside the backward community and not to
disturb genuine transfers among members of the same community.
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34.Learned counsel submitted that the same intention was
repeated in the Government Circulars dated 8 September 1977
and 8 July 1978. These Circulars emphasised that the object of the
scheme was to secure social justice by restoring lands which had
gone into the hands of non-backward class persons. According to
the respondents, the purpose was to protect members of Scheduled
Castes and other backward communities, and not to invalidate
transfers made between persons belonging to those very
communities. It is therefore submitted that transfers among
members of the protected class do not defeat the object of the
scheme.
35.Referring to the facts of the present case, learned counsel
submitted that both the transferor and the transferee belong to the
Mahar community, which is a Scheduled Caste. Therefore, at no
point of time did the land go into the hands of a person belonging
to a non-backward class. According to the respondents, the very
basis for initiating restoration proceedings is therefore absent. It is
submitted that the requirement of previous permission cannot be
interpreted in a manner which defeats the object of the legislation.
According to them, if transfers between members of the Scheduled
Caste are treated as invalid only because previous permission was
not obtained, the beneficial object of the legislation would be
frustrated.
36.Learned counsel submitted that this legal position has also
been accepted by the learned Minister in the impugned order.
According to the respondents, the present proceedings are contrary
not only to the language and object of the Government Circulars
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and Memorandum but also to the view earlier taken by the
competent authority.
37.Learned counsel also pointed out that the original Watandar
has never sought restoration of the land. On the contrary, he
expressly gave consent to the sale deed executed in favour of the
respondents through consent deeds dated 12 February 2013 and 1
September 2017. It is, therefore, submitted that when the original
Watandar has no grievance and the transfer is between members
of the Mahar community, restoration proceedings are unnecessary
and without jurisdiction. According to the respondents, the
impugned proceedings are contrary to the object of the legislation
and also affect the rights of persons belonging to the very
community which the law intends to protect.
38.Learned counsel submitted that the petitioners' contention
that the transfer is invalid for want of previous permission cannot
be accepted. It is pointed out that the Additional Collector, Pune,
by order dated 2 February 2023, granted permission for transfer of
the land after considering Section 5(4) of the Maharashtra Inferior
Village Watans Abolition Act, the relevant Government Resolutions
and Government Circulars. It is submitted that while granting such
permission, the Additional Collector considered the history of the
land. The authority noted that the property was an ex Inam Class 6
B Mahar Watan land, that the original Watandar had paid the
occupancy price, that the land had been re granted on new tenure
conditions and that the names of respondent Nos. 23 to 26 had
been entered in the revenue records. Thereafter, the authority
permitted transfer of the land on payment of the prescribed
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Nazarana and subject to the conditions mentioned in the order.
39.Learned counsel, therefore, submitted that once the
competent authority accepted the legal position and granted
permission after considering all the relevant statutory provisions,
Government Resolutions and Government Circulars, the petitioners
cannot now contend that the transaction is invalid merely because
previous permission had not been obtained.
40.It is submitted that the law does not compel a person to
perform an impossible act. Once the competent authority has
accepted the validity of the transaction and has granted permission
after considering all the relevant provisions, any earlier objection
regarding absence of previous permission does not survive.
41.Learned counsel then relied upon various judicial decisions.
It is submitted that in
Vithal Kondhalkar, the Division Bench of this
Court examined the true meaning and scope of Section 5(3) of the
Bombay Inferior Village Watans Abolition Act, 1958. Learned
counsel submitted that the Division Bench observed that the 1958
Act was one of several enactments passed for abolition of different
Watans and Inams. Under all such Acts, the Watan or Inam stood
abolished on the appointed day, the land vested in the Government
and was re granted to the original Watandar or Inamdar upon
payment of the prescribed occupancy price. The Division Bench
also noted that under these enactments, transfer, or partition of
such lands was not permitted without previous permission of the
Collector and payment of the amount prescribed by the
Government. After considering the statutory provisions and the
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Government instructions, the Division Bench held that the
Collector is required to verify only whether the additional amount
prescribed under the Act has been paid. Once such payment is
made, the Collector is bound to relax the restrictions on transfer
and grant permission. According to the respondents, the Division
Bench treated the grant of permission as a formal act which
necessarily follows after payment of the prescribed amount.
Learned counsel submitted that the Division Bench also approved
the practical approach adopted by the Government while dealing
with breaches of Section 5(3). It noticed that many transfers had
taken place because purchasers had bought lands at market prices,
sometimes without knowledge of the legal restrictions. Therefore,
instead of directing automatic forfeiture of such lands, the
Government instructed the Collectors to regularise unauthorised
transfers of agricultural lands by recovering a specified percentage
of the unearned income after giving notice to the parties
concerned and after considering the facts of each case.
42.Learned counsel also relied upon the decision in Sheikh Lal.
It is submitted that in that case the Division Bench considered the
effect of transfer of land without previous permission of the
Collector or payment of ten times the land revenue assessment.
Referring to the earlier judgment in
Vithal Kondhalkar, the
Division Bench held that the sanction contemplated under Section
5(3) could also be granted subsequently. On the basis of these
judgments, learned counsel submitted that it is now well settled
that the previous sanction contemplated under the old Section
5(3) as well as the present Section 5(4) can also be granted after
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the transfer. It is submitted that the decisions in
Vithal Kondhalkar
and Sheikh Lal have consistently been followed by this Court in
Bhagwantrao, Kacharu s/o Bhagaji Gaikwad & Ors. v. Smt. Sheela
w/o Ramesh Mittal & Ors
., Ramnath Kondaji Darade v. Hirabai
w/o Maruti Jadhav
and Mohan Sonaji Shilwant (Deceased)
through Legal Representatives and Others v. State of Maharashtra
& Ors.
, including matters relating to Mahar Watan lands.
43.Learned counsel lastly submitted that the Division Bench
judgment in
Mohan Sonaji Shilwant was delivered after
considering Section 5(4) of the Act as amended by Maharashtra
Act No. 21 of 2002. According to the respondents, this decision
supports their contention that the legal principles laid down in the
earlier judgments continue to apply even after the amendment.
44.Learned counsel for the respondents submitted that Section
5(4) of the Act nowhere states that a sale made without previous
permission of the Collector becomes void or invalid. According to
the respondents, the sale deed dated 30 November 2012 is
therefore not void but, at the highest, only irregular. It is submitted
that such an irregularity can be cured by obtaining permission
subsequently after payment of ten times the occupancy charges.
Reliance is placed upon the decisions in
Vithal Kondhalkar and
Sheikh Lal to contend that such transactions are capable of being
regularised.
45.Learned counsel submitted that this position becomes clear
when Section 5(4) of the Act is compared with Section 36 of the
Maharashtra Public Trusts Act, 1950. It is pointed out that Section
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36 provides that no sale, exchange, gift, or long term lease of
immovable property belonging to a public trust shall be valid
without previous sanction of the Charity Commissioner. Thus,
according to the respondents, the statute declares such
transactions to be invalid if prior sanction is not obtained. It is
therefore submitted that a plain reading of Section 36(1) clearly
shows that the Legislature has expressly made transactions without
previous sanction invalid.
46.Learned counsel also referred to Section 43 of the
Maharashtra Tenancy and Agricultural Lands Act, 1948. It is
submitted that this provision prohibits transfer of certain lands
without previous sanction of the Collector. More importantly,
Section 43(2) expressly provides that any transfer made in breach
of Section 43(1) shall be invalid.
47.According to the respondents, these provisions show a
consistent legislative pattern. Whenever the Legislature intends
that previous permission must be compulsory, it provides that any
transaction made in breach of such requirement shall be void or
invalid. Learned counsel therefore submitted that previous
sanction becomes mandatory only where the statute prescribes the
consequence of invalidity for non-compliance. Since Section 5(4)
does not provide that a transaction without previous sanction
becomes void, the requirement regarding the timing of such
sanction should be treated as directory and not mandatory. It is
submitted that where a statute declares that failure to comply with
a requirement will make a transaction void, there can be no doubt
that such requirement is mandatory. However, where the statute
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does not provide such consequence and instead prescribes some
other penalty or consequence, the Court has to examine whether
the Legislature intended an absolute prohibition or merely
intended some other consequence for breach of the provision.
48.Learned counsel also pointed out another distinction
between Section 36 of the Public Trusts Act and Section 43 of the
Tenancy Act on one hand and Section 5(4) of the present Act on
the other. According to the respondents, under the Public Trusts
Act and the Tenancy Act the authority has discretion to impose
conditions while granting permission. In contrast, under Section
5(4) of the present Act, the Collector has no such discretionary
power.
49.It is submitted that, as observed by the Division Bench in
Vithal Kondhalkar, the object of Section 5(4) is mainly to enable
the State to recover the prescribed Nazarana. According to the
respondents, once ten times the assessment amount is paid, the
Collector has no discretion left and is bound to grant permission.
50.Learned counsel submitted that Section 5(4) states that
Mahar Watan land shall not be transferred without previous
sanction of the Collector. However, according to the respondents,
while the provision certainly requires sanction of the Collector, the
use of the words "previous sanction" does not necessarily mean
that such sanction cannot be granted after the transaction.
51.It is submitted that whether a statutory provision is
mandatory or directory depends upon the intention of the
Legislature and not merely upon the language used. According to
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the respondents, the true intention has to be gathered from the
object of the Act, the purpose of the provision and the
consequences which would follow if one interpretation is preferred
over the other. In support of this submission, learned counsel
relied upon the decision of the Supreme Court in
Khub Chand v.
State of Rajasthan
, AIR 1967 SC 1074, wherein it was held that
although the word "shall" is ordinarily mandatory, its meaning
depends upon the object of the statute, the context in which it is
used and the consequences that would follow from non-
compliance.
52.Learned counsel referred to the consequences of not
obtaining previous sanction under Section 5(4). It is pointed out
that Section 2(x) defines an "unauthorised holder" as a person in
possession of Watan land without any legal right or under a
transfer which is null and void under the existing Watan law.
Reference was also made to the definition of "existing Watan law"
contained in Section 2(v). Learned counsel submitted that Section
3 of the Act empowers the Collector to decide whether a person is
an unauthorised holder. Such decision can be taken only after
giving the affected party an opportunity of being heard and after
holding an inquiry. It is also submitted that Section 9 of the Act
provides for eviction of an unauthorised holder and re grant of
Watan land in certain circumstances. According to this provision,
where resumed Watan land is found in possession of an
unauthorised holder, the Collector may evict such person.
However, if the State Government finds that eviction would cause
undue hardship because of investment made in the land or for any
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other reason, it may direct the Collector to re grant the land to
such person on payment of the prescribed amount and subject to
such terms and conditions as may be determined. On this basis,
learned counsel submitted that even if action is taken against a
subsequent purchaser, the consequence is only eviction of the
unauthorised holder. The land does not automatically return to the
original Watandar but continues to remain under the statutory
control of the State Government. Learned counsel also relied upon
the observations of the Division Bench in
Vithal Kondhalkar,
wherein it was observed that breach of Section 5(3) may result in
forfeiture of occupancy and, if such right of forfeiture is exercised,
the land becomes unalienated Government land. According to the
respondents, therefore, even if the sale deed is held to be contrary
to Section 5(4), the legal consequence would be resumption of the
land by the Government and not restoration of the land in favour
of the petitioners.
53.Learned counsel finally submitted that the petitioners have
proceeded on an incorrect understanding of both law and facts.
According to the respondents, the scheme of the Maharashtra
Inferior Village Watans Abolition Act, the Government Circulars
and Memoradums and the binding decisions of this Court in
Vithal
Kondhalkar, Sheikh Lal
and the subsequent judgments clearly
establish that: (i) transfers between members of the Mahar
community do not attract restoration proceedings meant for cases
where Watan lands have gone into the hands of non-backward
class persons; (ii) the requirement of previous sanction under
Section 5(4) is only directory regarding the time of obtaining such
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sanction and permission can validly be granted later; and (iii) in
the absence of any statutory provision declaring such transfers
void, a sale made without previous sanction is, at the highest, only
irregular and can be regularised after payment of the prescribed
occupancy charges. On the basis of these submissions, learned
counsel contended that the respondents' sale deed cannot be
treated as void and does not create any right in favour of the
petitioners to seek restoration of the land. According to the
respondents, even if there is any breach of Section 5(4), the only
consequence under the Act is resumption of the land by the
Government and not restoration in favour of the petitioners. It is
therefore submitted that there is no conflict of judicial opinion
requiring reference to a Larger Bench and that the order passed by
the learned Minister is consistent with the settled legal position
and the object of the Act. Consequently, the writ petitions deserve
to be dismissed with costs.
54.Learned counsel Mr. Sadavarte appearing for respondent
Nos. 3, 4, 13A, 13B and 13C submitted that the respondents had
cancelled the power of attorney executed in favour of respondent
No. 1. He submitted that the dispute regarding cancellation of the
said power of attorney is pending before the competent Civil
Court. He therefore submitted that respondent Nos. 3, 4, 13A, 13B
and 13C support the case of the petitioners.
55.In view of these rival submissions, following important
questions arise for consideration:
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(i) Whether insertion of Section 5(4) by the
Amendment Act of 2002 has changed the legal position
governing transfer of Mahar Watan lands;
(ii) Whether the expression "previous sanction"
occurring in Section 5(4) makes such sanction an
essential condition before transfer so that every
transfer made without obtaining such sanction
becomes void;
(iii) Whether the principles laid down in
Vithal
Kondhalkar, Sheikh Lal, Bhagwantrao, Narsingh
Laxman Bahirwade, and Mohan Sonaji Shilwant
continue to govern transfers of Mahar Watan lands
even after insertion of Section 5(4);
(iv) Whether the principles laid down in
LIC v.
Escorts, Asha John Divianathan, Saraswati Shamrao
Dhere, and Vinodchandra Kapadia
, while interpreting
statutes requiring previous permission, govern
interpretation of Section 5(4);
(v) Depending upon answers to these questions,
whether the impugned orders passed by the Learned
Minister call for interference while exercising writ
jurisdiction.
56.These questions are now required to be examined by
considering the legislative history, statutory scheme, judgments
relied upon by both sides and the object which the Bombay
Inferior Village Watans Abolition Act, 1958, together with its later
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amendments, intended to achieve.
REASONS AND ANALYSIS:
Statutory Scheme of Section 5 and Rival Submissions on the Effect
of the 2002 Amendment:
57.Since both sides have made submissions on interpretation of
Section 5 of the Act, it becomes necessary to see the statutory
scheme before considering the rival submissions.
58.The Bombay Inferior Village Watans Abolition Act, 1958 was
enacted for abolishing inferior village watans and for regranting
resumed watan lands to original watandars after payment of
occupancy price. Section 5(1) provides for such regrant. After
payment of occupancy price equal to three times the full
assessment, the watandar becomes an occupant under the
Maharashtra Land Revenue Code. Before amendment which came
into force on 6 May 2002, Section 5(3) provided that:
"The occupancy in the land regranted under sub-section (1)
shall not be transferable or partible by metes and bounds
without the previous sanction of the Collector and except on
payment of such amount as the State Government may by
general or special order determine."
59.Thus, under the old provision, transfer of such land could
not be made unless previous sanction of the Collector was
obtained and payment of the amount determined by the State
Government was made. By Maharashtra Act No. XXI of 2002, the
Legislature made important changes in the scheme of the Act.
Original sub-section (3) came to be substituted. After this
amendment, agricultural transfers of regranted watan lands were
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allowed without previous sanction of the Collector. Provision was
made for regularisation of earlier transfers and for conversion of
tenure after payment of the prescribed amount. Afterwards,
Maharashtra Act No. XIX of 2008 introduced provisions for
regularisation of earlier agricultural transfers. However, while
giving this relaxation in respect of other inferior village watan
lands, at the same time the Legislature inserted sub-section (4),
which provides:
"Notwithstanding anything contained in sub-section (3), the
occupancy of the Mahar watan land re-granted under sub-
section (1), shall not be transferrable or partiable by metes
and bounds without the previous sanction of the Collector
and except on payment of such amount as the State
Government may, by general or special order determine."
60.This is the main provision which now requires interpretation
in these writ petitions. Statement of Objects and Reasons of the
Amendment Act records that obtaining previous sanction had
become a "time consuming process and cumbersome." It records
that because of this requirement many illegal transfers were taking
place and Government was suffering loss of revenue. Therefore,
the Legislature simplified the procedure by removing the
requirement of previous sanction for agricultural transfers and
made provision for regularisation of earlier transfers. But at the
same time, it recorded:
"However, so far as the occupants of the Mahar watan lands
are concerned, in order to safeguard the interests of such
occupants, Government considers it expedient to continue
the existing Government control and supervision over
transfer or conversion of occupancy rights of such
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occupants."
61.Therefore, while one part of the amendment relaxed the law,
another part continued Government control in respect of Mahar
Watan lands. By relying upon this legislative history, learned
counsel for the petitioners argued that insertion of sub-section (4)
shows one change made by the Legislature. According to the
petitioners, once the Legislature retained the words "previous
sanction" only for Mahar Watan lands, the Court cannot reduce
that requirement by accepting post facto permission. It is argued
that after 6 May 2002, Mahar Watan lands stand on a footing and
earlier judgments interpreting old Section 5(3) cannot apply to the
amended provision. On the other side, learned counsel appearing
for the contesting respondents submitted that although sub-section
(4) retained the same words regarding previous sanction, the
Legislature nowhere provided that a transfer made without such
sanction would become void. According to them, the amendment
only continued Government supervision and did not bring any
provision making such transfers invalid. Therefore, according to
them, legal consequences are required to be understood in light of
the earlier law declared by this Court while interpreting Section 5.
62.Submission made by the petitioners is that after Maharashtra
Act No. XXI of 2002 came into force from 6 May 2002, law relating
to Mahar Watan lands has changed. According to them, judgments
interpreting old Section 5(3) cannot be applied after insertion of
Section 5(4). Their case is that Legislature made Mahar Watan
lands one class and continued Government control only over those
lands. Respondents submit that language used in old Section 5(3)
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and present Section 5(4) is same in substance. Therefore principles
laid down by the Division Bench in
Vithal Kondhalkar continue to
govern the issue. Hence, both these rival submissions require
careful examination.
Effect of the 2002 Amendment and Continued Applicability of
Earlier Precedents Interpreting Section 5:
63.Before examining judgments, it becomes necessary to see
legislative history. Statement of Objects and Reasons
accompanying Maharashtra Act No. XXI of 2002 are important
because it explains why amendment was introduced. Legislature
noticed that under earlier law obtaining previous sanction of the
Collector and payment of prescribed amount had become "time
consuming process and cumbersome." Legislature recorded that
because of such procedure many agriculturists were making illegal
transfers and Government was suffering loss of revenue.
Therefore, Legislature decided to simplify the procedure by
removing requirement of previous sanction for agricultural
transfers, by making provision for conversion of tenure and for
regularisation of earlier transfers. But while doing so, Legislature
at the same time stated:
"However, so far as the occupants of the Mahar watan lands
are concerned, in order to safeguard the interests of such
occupants, Government considers it expedient to continue
the existing Government control and supervision over
transfer or conversion of occupancy rights of such
occupants."
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64.In my opinion, this part of the Statement of Objects and
Reasons indicates that Legislature decided to continue Government
supervision in respect of Mahar Watan lands though similar
restrictions were removed in case of other inferior village watan
lands. Therefore, petitioners are justified to the extent that they
submit insertion of Section 5(4) was not without object. It was a
legislative decision. Therefore, after 6 May 2002, Mahar Watan
lands cannot be placed on same footing as every other inferior
village watan land. At the same time, Statement of Objects and
Reasons throws light upon another aspect. Amendment was
brought because earlier procedure had resulted in large number of
unauthorised transfers and consequent loss of Government
revenue. Legislature therefore simplified the procedure and at the
same time provided machinery for regularisation of earlier
transfers. Thus, legislative object was not only to prohibit
transfers. It was to regulate such transfers and to secure
Government revenue by recovering prescribed amount. This aspect
cannot be ignored while interpreting Section 5(4).
65.Petitioners relied upon language used in Section 5(4).
According to them, once Legislature retained expression "previous
sanction", Court cannot substitute those words by reading them as
"subsequent sanction". According to them, word "previous" should
receive its ordinary meaning. At the same time, respondents
submit that although Legislature retained expression "previous
sanction", it did not introduce any provision declaring that transfer
made in breach thereof would become void or incapable of
regularisation. According to them, if Legislature intended such
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consequence, it could have stated so. Therefore, it becomes
necessary to examine how this Court interpreted the unamended
provision before amendment of the year 2002.
66.Leading judgment on this issue is Division Bench decision in
Vithal Kondhalkar. Division Bench examined the whole scheme of
different Watan Abolition Acts and noticed that all those
enactments followed similar pattern. Court observed that after
abolition of Watans, lands vested in Government, and they were
regranted to ex Watandars on payment of occupancy price. Such
regrant initially continued subject to restrictions regarding transfer
and partition. Division Bench observed in paragraph 4 that:
"The moment payment of ten times the assessment is made
and the Collector passes an order in that behalf, these
conditions cease to exist."
67.Thereafter, Division Bench examined various Government
Memorandums and executive instructions issued for
implementation of different Watan Abolition Acts. After
considering Government Memorandum dated 12 November 1955
and other executive instructions, Division Bench recorded
conclusion in paragraph 6 of
Vithal Kondhalkar. Court observed:
"We are thus satisfied that in administering all the abolition
laws, the Collectors have to see whether the additional
payment as contemplated by the particular Act has been
made by the ex-Watandars or ex-Inamdars and the moment
that was done, as a matter of formality the order of
conversion must be passed."
Court observed:
"the order of relaxation of the two burdensome conditions
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must follow as of right the moment additional payment was
made."
68.Respondents place reliance upon these observations.
According to them, these findings show that after prescribed
payment is made, Collector is left with no discretion and grant of
permission becomes ministerial in nature. Therefore, according to
them, same principle continues even after insertion of Section
5(4). Petitioners submit that these observations were made while
interpreting old Section 5(3), when no distinction existed between
Mahar Watan lands and other inferior village watan lands.
According to them, after insertion of Section 5(4), Legislature
altered the statutory scheme by continuing Government
supervision only in respect of Mahar Watan lands. Therefore,
according to them,
Vithal Kondhalkar cannot govern transfers
made after the year 2002.
69.In my opinion, this submission has some force to the extent
that
Vithal Kondhalkar interpreted statutory provision as it existed
prior to 6 May 2002. Division Bench had no occasion to consider
newly inserted Section 5(4) or legislative intention behind that
amendment. Therefore, observations made therein cannot be
extended without examining whether amendment has altered
legislative intention. Though Section 5(4) was inserted by
amendment, Legislature retained same language regarding
"previous sanction" and payment of prescribed amount. Operative
words were not altered. Only field of operation came to be
confined to Mahar Watan lands. Thus, though area of application
became narrower, statutory language remained unchanged.
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70.Respondents relied upon Division Bench judgment in Sheikh
Lal
. In that case Court noticed that neither previous sanction nor
payment equal to ten times assessment had been made before
transfer. Even then, after referring to
Vithal Kondhalkar, Division
Bench held that sanction contemplated by Section 5(3) could be
granted subsequently. Court therefore granted opportunity for
payment and directed the Collector to grant permission after such
payment. According to respondents,
Sheikh Lal recognises concept
of post facto sanction and answers controversy raised in present
petitions. According to Petitioners, Division Bench in
Sheikh Lal
misunderstood earlier judgment in Vithal Kondhalkar. Their
submission is that
Vithal Kondhalkar nowhere held that previous
sanction could be granted after execution of sale deed. According
to them, it only recognised statutory duty of the Collector to grant
permission where legal requirements stood satisfied. Therefore,
according to petitioners,
Sheikh Lal travelled beyond ratio of Vithal
Kondhalkar
.
71.In my opinion, Sheikh Lal continues to be binding Division
Bench precedent. It has been followed in several later judgments.
Unless it is shown that it has been overruled or declared
per
incuriam
by a superior Court, this Court cannot ignore such
binding precedent.
72.Learned counsel for the petitioners argued that later Single
Judge decisions such as
Bhagwantrao and Ramnath Kondaji
Darade
merely followed Sheikh Lal without examining effect of
insertion of Section 5(4). According to them, those judgments
therefore cannot conclude controversy arising after 6 May 2002.
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Respondents submit that
Bhagwantrao held in paragraphs 9 and
10 that sanction contemplated under Section 5(3) could be
granted subsequently and that a person awaiting such
determination cannot be regarded as an unauthorised occupant. In
paragraph 9, learned Single Judge reproduced observations from
Sheikh Lal and noticed that: "the sanction contemplated under
section 5(3) of the Act can be granted even subsequently."
Thereafter, in paragraph 10, Court held: "the petitioners could not
be regarded as persons in unauthorised possession" and observed:
"the sanction contemplated under section 5(3) of the Bombay
Watans Abolition Act could be granted subsequently."
73.In Mohan Sonaji Shilwant. land had been regranted.
Application for permission remained pending for considerable
period. Sale deed came to be executed and later Najrana was paid
pursuant to directions issued by the Tahsildar. Authorities refused
regularisation on the ground that land was Mahar Watan land and
permission had not been obtained before transfer. Division Bench
examined amended statutory provisions including Section 5(4).
After referring to
Vithal Kondhalkar and Sheikh Lal, Court
observed in paragraph 10 that Collector has statutory duty to grant
sanction after payment of prescribed amount. Further, in
paragraph 11, relying upon
Sheikh Lal, Division Bench held:
"the sanction, as contemplated under Section 5(3) of the
Abolition Act can be granted even subsequently and
therefore the occupant in possession of the land, in
contemplation of grant of such sanction under Section 5(3)
of the Abolition Act, cannot be regarded as unauthorised
possessor."
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74.In paragraph 13, Division Bench directed regularisation of
the transaction in accordance with Government policy. Therefore,
respondents submit that
Mohan Sonaji Shilwant gives answer to
petitioners' submissions because it dealt with Mahar Watan land
even after insertion of Section 5(4) and followed earlier Division
Bench judgments. According to Petitioners, though
Mohan Sonaji
Shilwant
noticed Section 5(4), it did not undertake examination of
Statement of Objects and Reasons accompanying Amendment Act
of 2002. According to them, Court did not consider later
judgments of the Supreme Court interpreting statutes containing
expression "previous permission". Therefore, according to them,
that judgment cannot be treated as deciding every issue arising in
these petitions.
75.This Court finds that both sides have advanced submissions
regarding scope of these precedents. It would not be proper to
ignore distinction introduced by Amendment Act of 2002 or to
overlook judgments of this Court interpreting Section 5. Therefore,
true answer can be reached by considering statutory scheme,
legislative history and subsequent judgments of the Supreme Court
dealing with "previous sanction" and "previous permission"
together.
Interpretation of the Expression "Previous Sanction" under Section
5(4) in Light of the Statutory Scheme and Judicial Precedents:
76.Main submission of the petitioners is based upon the words
"previous sanction" appearing in Section 5(4). According to them,
once Legislature has used the word "previous", this Court cannot
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make that requirement weak by accepting any post facto sanction.
Their submission is that after insertion of Section 5(4), previous
sanction has become one condition which must exist before
transfer can become legal. For supporting this submission, learned
counsel placed reliance upon judgments of the Supreme Court in
LIC v. Escorts Ltd., Asha John Divianathan, Vinodchandra Sakarlal
Kapadia
and judgment of this Court in Saraswati Shamrao Dhere.
Respondents, however, did not accept this position. According to
them, all these judgments were delivered under different
enactments where Legislature had attached different statutory
consequences. Their submission is that the present Act is code and
therefore its provisions are required to be interpreted from its own
language, object and statutory scheme. Therefore, it becomes
necessary to consider these authorities and see statutory
background in which those judgments were rendered.
77.In LIC v. Escorts Ltd., Constitution Bench was considering
Section 29 of the Foreign Exchange Regulation Act. While
examining distinction between expressions "permission" and
"previous permission", Constitution Bench observed in paragraph
63 as follows:
"The distinction made by Parliament between permission
simpliciter and previous permission in the several provisions
of the same Act cannot be ignored or strained to be
explained away by us. That is not the way to interpret
statutes."
78.Court observed in the same paragraph: "The proper way is to
give due weight to the use as well as the omission to use the
qualifying words in different provisions of the Act."
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79.Petitioners submit that these observations directly are
relevant for interpretation of Section 5(4). According to them,
once Legislature retained the word "previous", this Court cannot
read that provision in such way that permission obtained
afterwards becomes enough. Their submission is that if such
interpretation is accepted, the word "previous" will lose its
meaning.
80.There is no dispute about the principle stated by Constitution
Bench. It is settled rule of interpretation that every word used by
Legislature should be given its natural meaning. If Legislature
qualifies the expression "sanction" by adding the word "previous",
Court cannot ignore that qualifying word. At the same time,
Constitution Bench did not lay down in paragraph 63 that every
statute using the expression "previous permission" must make
invalid every transaction entered into without such permission. On
the contrary, paragraph 63 indicates that interpretation depends
upon statutory scheme and legislative object. Constitution Bench
distinguished Section 29 from Section 31 of the same Act because
Parliament had used different language in different provisions.
Thus, the judgment requires Court to examine statutory scheme
before recording any final conclusion.
81.Similar issue again came before the Supreme Court in Asha
John Divianathan
while interpreting Section 31 of the Foreign
Exchange Regulation Act. In paragraph 26 of that judgment,
Supreme Court held that:
"A contract is void if prohibited by a statute under a penalty,
even without declaration that the contract is void, because
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such a penalty implies a prohibition."
82.Court observed in the same paragraph that prohibition and
negative words are mandatory. Thereafter, in paragraph 28,
Supreme Court referred to paragraph 63 of
LIC v. Escorts Ltd. and
explained that Sections 29 and 31 of the Foreign Exchange
Regulation Act operated in different statutory fields. Court
observed that while ex post facto permission could be recognised
under Section 29, such permission was not permissible under
Section 31 because Parliament had adopted different statutory
scheme for that provision. Supreme Court held in paragraph 32 :
"The requirement of taking 'previous' permission of RBI before
executing the sale deed or gift deed is the quintessence; and
failure to do so must render the transfer unenforceable in law."
Court observed: "There is no possibility of ex post facto permission
being granted by RBI under Section 31 of the 1973 Act, unlike in
the case of Section 29."
83.Learned counsel for the petitioners placed reliance upon
these observations. According to them, once Supreme Court has
held that previous permission cannot be substituted by later
permission, present controversy stands concluded and subsequent
sanction cannot validate transfer of Mahar Watan land.
84.This submission requires examination. Even then, ratio of
Asha John Divianathan cannot be read separately from statutory
scheme in which that judgment was delivered. Supreme Court
reproduced Sections 47, 50 and 63 in paragraph 21. Thereafter,
while discussing paragraphs 26, 28 and paragraph 32, Court held
that combined effect of those provisions indicated prohibition
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along with penal consequences as well as confiscatory powers. It
was after considering that statutory scheme that Supreme Court
held that ex post facto permission was not permissible. Thus,
conclusion reached in
Asha John Divianathan did not follow
merely because the word "previous" appeared in Section 31. It
followed because the statutory scheme disclosed legislative
intention that transfer should not become effective unless previous
permission had been obtained. Therefore, ratio of that judgment
has to be understood in light of statutory provisions examined in
paragraphs 21, 26, 28 and 32.
85.Petitioners next relied upon judgment of this Court in
Saraswati Shamrao Dhere. That judgment interpreted Section 43
of the Maharashtra Tenancy and Agricultural Lands Act. Section
43(2) provides:
"Any transfer of land in contravention of sub-section (1) shall
be invalid."
86.While interpreting that provision, this Court observed in
paragraph 15:
"The provisions makes reference to 'previous sanction'." Court
concluded: "The mandatory nature of the requirement
contained in section 43(1) cannot be diluted by permitting
some post-facto sanction."
87.In my opinion, one distinguishing factor lies in Section
43(2). Unlike Section 5(4) of the present Act, the Tenancy Act
declares every transfer made in breach of Section 43(1) to be
invalid. That provision appears to have influenced reasoning
adopted in
Saraswati Shamrao Dhere. Therefore, though principle
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regarding importance of previous sanction is binding, statutory
basis upon which that judgment is based is different from the
present enactment.
88.Learned counsel for the petitioners relied upon
Vinodchandra Sakarlal Kapadia. Supreme Court there examined
Section 43 of the Tenancy Act and explained object behind
restrictions upon transfer. In paragraph 35, Supreme Court
observed:
"The primary concern of those provisions is to see that the
legislative scheme of granting protection to persons from
disadvantaged categories and conferring the right of
purchase upon them…" Court observed: "The prohibition
against transfers of holding without the previous sanction of
the authorities concerned, is to be seen in that light as
furthering the cause of legislation."
89.There can be no dispute with these observations. Even
Section 5(4) appears to have been enacted for safeguarding
interests of Mahar Watan holders. Therefore, protective object
behind amendment cannot be ignored while interpreting present
provision. At the same time,
Vinodchandra Sakarlal Kapadia arose
under Section 43 of the Tenancy Act where Legislature had
declared transfers made in breach to be invalid. Therefore, that
decision proceeded on statutory scheme different from the Bombay
Inferior Village Watans Abolition Act and cannot be applied
without examining difference in statutory language.
90.Respondents, on the other hand, relied upon Govindlal
Chhaganlal Patel
. In paragraphs 11 to 13, Supreme Court
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explained that use of the word "shall" is not conclusive. In
paragraph 13, Court observed:
"The question as to whether a statute is mandatory or
directory depends upon the intent of the Legislature and not
upon the language in which the intent is clothed."
91.The Court observed that legislative intention has to be
gathered "not only from the phraseology of the provision, but by
considering its nature, its design, and the consequences which
would follow from construing it the one way or the other."
92.In my opinion, these observations indicate correct approach
for deciding present controversy. Mere use of the expression
"previous sanction" cannot conclude the issue. At the same time,
Court cannot ignore that expression. Intention of Legislature has to
be gathered after reading Section 5(4) together with whole
statutory scheme, legislative history and consequences likely to
follow.
93.Respondents relied upon decision in Narsingh Laxman
Bahirwade
. Learned Single Judge distinguished cases arising under
Section 36 of the Bombay Public Trusts Act and held, in paragraph
8, that Division Bench judgment in
Vithal Kondhalkar is applicable
to transfers under the Watan Abolition Act. Court observed that
once application had been made and Nazarana had been paid,
permission related back because authorities had no discretion to
refuse conversion after statutory requirements stood fulfilled.
Though
Narsingh Laxman Bahirwade was decided before
amendment of 2002, it indicates consistent view that under the
Watan Abolition Act, after statutory requirements were fulfilled,
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role of the Collector was different from authorities exercising
discretionary powers under other Acts. Therefore, after considering
all these authorities together, it becomes clear that both groups of
judgments relied upon by respective parties arise under different
statutory schemes.
94.Authorities relied upon by the petitioners lay down that
wherever Legislature uses expressions like "previous sanction" or
"previous permission", Courts should respect that language. Those
judgments show that where statutory scheme treats prior
permission as condition precedent and provides consequence of
invalidity, ex post facto permission cannot cure such transaction.
On the other hand, authorities relied upon by the respondents
show that under the Bombay Inferior Village Watans Abolition Act,
statutory scheme has proceeded on basis that payment of
prescribed Nazarana and grant of permission regulate the tenure
of the land rather than destroying the transfer.
Whether absence of "previous sanction" under section 5(4)
automatically renders the transfer void
95.After considering statutory provisions, legislative history and
all judgments relied upon by both sides, it appears that the
question before this Court is whether absence of previous sanction
under Section 5(4) makes transfer void or whether the Act
provides some other legal consequence for such breach.
96.At the outset, one aspect is required to be kept in mind.
Section 5(4) uses the words "previous sanction of the Collector."
Legislature has inserted this expression only in relation to Mahar
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Watan lands. Therefore, this Court cannot interpret the provision
in such way that the qualifying word "previous" loses all meaning.
To this extent, petitioners are right in submitting that amendment
introduced by Maharashtra Act No. XXI of 2002 deserves
recognition. At the same time, interpretation of a statute cannot
stop by reading only one expression separately from the remaining
provisions.
97.As Supreme Court observed in Govindlal Chhaganlal Patel,
paragraph 13:
"not only from the phraseology of the provision, but by
considering its nature, its design, and the consequences
which would follow from construing it the one way or the
other."
98.Likewise, Constitution Bench in LIC v. Escorts Ltd.,
paragraph 63, observed:
"The proper way is to give due weight to the use as well as
the omission to use the qualifying words in different
provisions of the Act."
99.Therefore, expression "previous sanction" cannot be
understood by reading those two words alone. It has to be
understood after reading scheme of the Bombay Inferior Village
Watans Abolition Act and object which Legislature intended to
achieve. Section 5(4) nowhere says that transfer made in breach of
that provision shall become void. Legislature has prohibited
transfer without previous sanction. Even then, Legislature has not
declared that every such transfer shall become nullity or non est.
In my opinion, legislature has shown in different enactments that
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whenever it wanted invalidity to become direct result of breach, it
has said so in clear language. Therefore, absence of such
declaration in Section 5(4) becomes one relevant circumstance
while finding out true legislative intention behind the provision.
For example, Section 43(2) of the Maharashtra Tenancy and
Agricultural Lands Act provides: "Any transfer of land in
contravention of sub-section (1) shall be invalid." It was because of
this provision that this Court observed in
Saraswati Shamrao
Dhere
, paragraph 15:
"The mandatory nature of the requirement contained in
section 43(1) cannot be diluted by permitting some post-
facto sanction."
100.Similarly, in Asha John Divianathan, Supreme Court did not
decide issue merely because expression "previous permission"
appeared in the statute. As noticed while discussing paragraphs
21, 26, 28 and 32 of that judgment, Supreme Court examined
combined effect of Sections 31, 47, 50 and 63 of the Foreign
Exchange Regulation Act and found that statutory prohibition was
supported by penal provisions as well as confiscatory powers. Only
after examining that statutory scheme, Supreme Court held that ex
post facto permission was not permissible.
101.Section 5(4) of the Bombay Inferior Village Watans Abolition
Act contains no such declaration. It neither provides that transfer
shall be invalid nor states that transaction shall become void only
because previous sanction had not been obtained before execution.
On the other hand, scheme of the Bombay Inferior Village Watans
Abolition Act creates statutory machinery for dealing with
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consequences arising from such breach. Under the Act, competent
authority has to examine relevant facts and determine legal
consequences by following procedure. Therefore, consequences are
not left to arise merely because breach has occurred. Thus, scheme
of the Act appears to contemplate stated consequences instead of
nullity in respect of transfer made in breach of Section 5(4).
Legislative scheme indicates that breach of Section 5(4) provides
proceedings contemplated under the Act. However, Act leaves
determination of those consequences to authorities and machinery
created under the statute instead of declaring that every transfer
shall be void.
102.In Vithal Kondhalkar Division Bench held that both
requirements, namely payment of prescribed amount and
Collector's sanction, were necessary before conditions attached to
the tenure are lifted. Therefore, requirement regarding previous
sanction was never regarded as directory. Division Bench examined
Government policy together with statutory scheme and held that
Collector was required to examine whether statutory requirements
had been fulfilled, pass appropriate orders under the Act and
proceed according to law. Government Resolution relating to
regularisation of agricultural transfers was noticed. Therefore,
judgment did not proceed on footing that every transfer made
without previous sanction had become void. Therefore,
Vithal
Kondhalkar
cannot be understood as laying down that every
transfer made without previous sanction becomes nullity.
103.Thereafter, Division Bench in Sheikh Lal went one step
further. Though neither previous sanction nor prescribed payment
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existed before transfer, Court granted opportunity for making
payment and directed Collector to grant permission. Petitioners
contended
Sheikh Lal travelled beyond ratio of Vithal Kondhalkar.
This submission cannot be said to be without substance because
Sheikh Lal does not contain discussion regarding distinction
between breach of condition and validity of transfer. Even then,
Sheikh Lal continues to remain binding precedent and has been
followed in later judgments of this Court.
104.In Bhagwantrao, in paragraphs 9 and 10, learned Single
Judge held that sanction under Section 5(3) "can be granted even
subsequently" and persons awaiting such determination "could not
be regarded as persons in unauthorised possession." Likewise,
Division Bench in
Mohan Sonaji Shilwant, after considering
amended provisions including Section 5(4), relied upon
Vithal
Kondhalkar
and Sheikh Lal and directed regularisation of the
transaction after payment of prescribed amount according to
Government policy. Thus, for several decades, consistent view of
the Act has remained that breach of Section 5 gives rise to
provided consequences.
105.Petitioners argued that insertion of Section 5(4) has changed
legislative intention and earlier authorities no longer govern
transfers relating to Mahar Watan lands. This Court is unable to
accept that submission. It is true that insertion of Section 5(4)
shows legislative intention to continue Government control over
transfers relating to Mahar Watan lands. That legislative intention
deserves full respect. At the same time, amendment retained the
same language regarding previous sanction. Legislature did not
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insert any provision declaring that every transfer made without
previous sanction shall become void or incapable of regularisation.
Had Legislature intended to override interpretation adopted by
this Court since
Vithal Kondhalkar, nothing prevented it from
enacting that every such transfer would become void. Statement of
Objects and Reasons supports this view. Statement nowhere
records that every unauthorised transfer should become nullity. On
the contrary, it records that earlier procedure had resulted in
illegal transfers and consequent loss of Government revenue. Even
while deciding to continue Government supervision over Mahar
Watan lands, Legislature nowhere indicated that every breach
should render transaction void.
106.In my opinion, judgments relied upon by petitioners
establish that previous sanction is not formality. It is statutory
requirement which parties are expected to satisfy before effecting
transfer. At the same time, judgments relied upon by respondents
show that under the scheme of the Bombay Inferior Village Watans
Abolition Act, breach of that requirement attracts consquences.
107.Accordingly, this Court records following conclusions.
(i) Section 5(4) requires previous sanction of the Collector
before transfer of Mahar Watan land. This statutory
requirement is mandatory and parties are expected to
comply with it before effecting transfer;
(ii) Mere absence of previous sanction does not make every
transfer void ab initio because the Act nowhere declares such
consequence;
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(iii) Such transfer remains subject to proceedings
contemplated under the Bombay Inferior Village Watans
Abolition Act and the Maharashtra Land Revenue Code.
Competent authority continues to possess jurisdiction to
examine legality of the transaction, determine whether
holder answers description of unauthorised holder and pass
appropriate orders according to the statutory scheme;
(iv) Consequence of such breach has to be determined
under machinery created by the Bombay Inferior Village
Watans Abolition Act.
Whether execution of the earlier sale deed concluded the
controversy.
108.Learned Minister has recorded finding that respondent Nos.1
to 19 executed one registered sale deed in favour of the applicants
and another sale deed came to be executed in favour of
respondent Nos.20 and 25. On that basis, learned Minister further
held that after sale deed came into existence, executants were left
with no right to execute any further sale deed. Therefore, question
which now requires consideration is whether such conclusion can
stand when the property involved is Mahar Watan land and its
transfer is governed by special statutory provisions and not only by
ordinary law relating to transfer of property.
109.There is no dispute that under ordinary law, once owner
transfers his title in immovable property, he cannot again transfer
the same property to somebody else. This principle is well
recognised under the Transfer of Property Act. If transfer has
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become complete, transferor does not keep any transferable
interest which can be given to another purchaser. To that extent,
reasoning adopted by the learned Minister cannot be said to be
without legal basis under the general law. Still, that may not be
enough because present dispute arises under a different statutory
sheme. Even then, present dispute cannot be decided only by
applying ordinary principles relating to successive transfers under
the Transfer of Property Act. It is admitted that subject land is
Mahar Watan land regranted under the Bombay Inferior Village
Watans Abolition Act, 1958. Such land does not stand on the same
footing as ordinary property. Source of ownership comes from the
statute and that statute puts restrictions upon transfer. Therefore,
before applying general provisions of the Transfer of Property Act,
it became necessary to examine whether statutory conditions
governing transfer of Mahar Watan land had been complied with.
Unless that issue was decided, ordinary principles under the
Transfer of Property Act could not settle the controversy.
110.Petitioners have contended that earlier sale deed was
executed without obtaining "previous sanction" required under
Section 5(4). According to them, this omission affects legality of
the transaction and therefore no rights could be claimed merely
because that sale deed happened to be earlier in point of time.
Contesting respondents submitted that although previous sanction
had not been obtained before execution of the sale deed, such
defect could be cured and therefore earlier transaction continued
to remain effective. Thus, dispute between parties was never only
about which sale deed came and which came later. Basic
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controversy remained regarding legal effect of the sale deed under
the Bombay Inferior Village Watans Abolition Act.
111.Learned Minister appears to have proceeded on the
assumption that earlier registered sale deed had become effective
and examined second transaction by applying Section 48 of the
Transfer of Property Act. In my opinion, such approach puts the
inquiry in reverse sequence. As held while deciding earlier
questions, Section 5(4) requires "previous sanction" of the
Collector. At the same time, after considering
LIC v. Escorts Ltd,
Govindlal Chhaganlal Patel, Saraswati Shamrao Dhere,
Vinodchandra Sakarlal Kapadia, Vithal Kondhalkar, Sheikh Lal,
Bhagwantrao and Mohan Sonaji Shilwant, it cannot be held that
mere absence of previous sanction does not make transfer void
because the Act nowhere prescribes such consequence. Rights
flowing from such transfer continue to remain subject to
consequences contemplated under the Bombay Inferior Village
Watans Abolition Act. Therefore, neither side could claim complete
title merely by relying upon the sequence in which the sale deeds
happened to be executed. Those rights remain subject to the
statutory scheme. Consequently, finding recorded by the learned
Minister that executants had no subsisting right only because
earlier registered sale deed had been executed cannot be sustained
in the form in which it has been recorded. Such finding ignores
statutory restrictions regulating Mahar Watan lands. It also
proceeds on the assumption that execution of the registered sale
deed concluded the question of title. In my opinion, such
assumption does not flow from the statutory scheme of the
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Bombay Inferior Village Watans Abolition Act, 1958, particularly
after the earlier discussion made regarding legal effect of absence
of "previous sanction" under Section 5(4). Therefore, that
reasoning cannot be accepted. This Court, therefore, holds that
existence of the earlier registered sale deed is one relevant
circumstance and it cannot be ignored. Even so, that circumstance
was not sufficient to conclude the controversy unless legal effect of
that earlier transaction under Section 5(4) of the Bombay Inferior
Village Watans Abolition Act was determined. Therefore, finding
recorded by the learned Minister cannot be sustained and is liable
to be set aside.
Whether Section 48 of the Transfer of Property Act decides the
rights of the parties.
112.Second reason given by the learned Minister is based on
Section 48 of the Transfer of Property Act, 1882. According to the
learned Minister, after registered sale deed was executed, all
rights, title and interest in the suit property had gone to the
purchasers. Therefore, according to the learned Minister, later
purchasers did not get any enforceable right in the property.
113.Section 48 contains one well known rule about two or more
transfers made by the same person. It says that where one person
creates rights in the same immovable property at different times,
rights created earlier will get priority over rights created later.
Therefore, this provision speaks about deciding priority between
transfers made by the same transferor. Even so, Section 48
proceeds on the basis that earlier transfer is capable of creating
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legal and enforceable rights in the property. If source of title is
controlled by one special statute which puts restrictions on
transfer, then effect of that special statute has to be seen before
general rule contained in Section 48 can be applied. Otherwise,
real nature of the transaction may remain unnoticed.
114.In the present matter, property is Mahar Watan land
regranted under the Bombay Inferior Village Watans Abolition Act,
1958. Right to transfer such land comes from that special
enactment. Section 5(4) specifically provides that such occupancy
"shall not be transferable... without the previous sanction of the
Collector". Therefore, power of the transferor to transfer the land
is regulated by the statute. That restriction cannot be ignored
while deciding rights of the parties. It is well settled that where
special enactment creates rights and at the same time also
prescribes the manner in which those rights can be exercised,
provisions of that special enactment will prevail over the general
law to the extent both cannot operate together. Transfer of
Property Act lays down general principles regarding transfer of
immovable property. Bombay Inferior Village Watans Abolition Act,
1958 creates one separate statutory scheme only for regranted
Watan lands. Therefore, so far as transfer of such lands is
concerned, provisions of the special enactment have to receive
preference over the general law.
115.Learned Minister has not examined consequences flowing
from Section 5(4). Learned Minister applied Section 48 of the
Transfer of Property Act as if dispute had arisen only under law
relating to transfer of property. Such approach ignores that legality
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of the sale deed depended upon the provisions contained in the
Bombay Inferior Village Watans Abolition Act, 1958. Unless those
provisions were considered, application of the general law became
incomplete.
116.As held while deciding the principal controversy, expression
"previous sanction" occurring in Section 5(4) is mandatory. At the
same time, this Court has also held that the Act nowhere says that
transfer made without such sanction becomes void. Instead, the
Act creates separate machinery for dealing with consequences of
such breach. Therefore, legal position has to be understood after
reading the statutory scheme.
117.Once it is held that absence of previous sanction does not
make it void, it follows that mere execution of the registered sale
deed does not give complete title free from statutory consequences
provided under the Act. Both these legal positions have to be read
together because both come from the same statutory scheme
governing Mahar Watan lands.
118.Judgments relied upon before this Court show that under
earlier statutory provisions, requirement regarding sanction was
examined by looking at the entire scheme governing regranted
Watan lands. Decisions in
Vithal Kondhalkar, Sheikh Lal,
Bhagwantrao and Mohan Sonaji Shilwant examined consequences
of such transfers by keeping in view provisions governing Watan
lands. Whether those decisions continue to apply in every respect
after insertion of Section 5(4) is a different question. Even then,
they show that this controversy has been treated as arising under
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the special enactment and not merely under Section 48 of the
Transfer of Property Act. Therefore, Section 48 remains relevant
while deciding priority between two competing transfers. Even so,
that stage comes only after the Court determines legal effect of the
earlier transaction under the governing special statute. Section 48
cannot be used as a substitute for deciding statutory questions
arising under Section 5(4) of the Bombay Inferior Village Watans
Abolition Act, 1958.
119.In the present case, learned Minister treated Section 48 as
though it decided the dispute without deciding statutory questions
arising under the Bombay Inferior Village Watans Abolition Act,
1958. In my opinion, such reasoning cannot be sustained because
special provisions required examination before the general law
relating to transfer of property could be applied. Therefore, second
finding recorded by the learned Minister, namely that Section 48 of
the Transfer of Property Act establishes that only the purchasers
acquired enforceable rights and the later purchasers acquired
none, cannot be upheld in the form in which it has been recorded.
Effect of the rival sale deeds after interpretation of Section 5(4).
120.After holding that learned Minister could not have decided
the dispute only by applying Section 48 of the Transfer of Property
Act, it now becomes necessary to see what legal effect should
follow from both rival sale deeds after considering interpretation
of Section 5(4) recorded by this Court. This Court has held that
Section 5(4) requires "previous sanction" of the Collector before
transfer of Mahar Watan land can take place. Legislature kept this
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requirement only for Mahar Watan lands, though similar
restrictions relating to other inferior village Watan lands were
removed by Amendment Act of 2002. Statement of Objects and
Reasons records that "so far as the occupants of the Mahar watan
lands are concerned, in order to safeguard the interests of such
occupants, Government considers it expedient to continue the
existing Government control and supervision over transfer or
conversion of occupancy rights of such occupants." Therefore, this
legislative intention cannot be ignored while deciding the present
controversy. It shows that Legislature wanted Government control
to continue in respect of this class of lands.
121.At the same time, this Court has also held that the Act
nowhere declares that every transfer made without previous
sanction becomes void or non est. Unlike Section 43(2) of the
Maharashtra Tenancy and Agricultural Lands Act, 1948, which
specifically provides that "Any transfer of land in contravention of
sub-section (1) shall be invalid", Section 5(4) contains no such
declaration. Likewise, unlike Section 36 of the Maharashtra Public
Trusts Act, which provides that no sale "shall be valid" without
previous sanction, Section 5(4) does not contain similar words.
This omission also becomes one important circumstance while
understanding the true intention of the Legislature. Had
Legislature intended such consequence, it could have said so.
122.Therefore, legal position coming out from the statutory
scheme is that transfer made without previous sanction is against
the statutory requirement. Even then, Legislature has chosen to
regulate consequences of such breach through machinery created
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under the Act instead of declaring every such transfer void. Thus,
breach of the provision and consequence of that breach are not
made identical by the statute.
123.Once this legal position is accepted, earlier sale deed dated
30 November 2012 cannot be treated either as non-existent in law
or as giving absolute and indefeasible title free from statutory
restrictions. It stands somewhere in between these two positions.
Transaction continues to exist in the eye of law, but at the same
time it remains subject to statutory consequences contemplated
under the Bombay Inferior Village Watans Abolition Act, 1958.
124.Same reasoning applies to the later sale deed executed in
favour of the petitioners. That transaction also cannot prevail only
because earlier transaction suffered from absence of previous
sanction. If earlier transaction is not void, later purchasers cannot
improve their position only because another sale deed came to be
executed by the same vendors. Mere execution of the second
document cannot remove legal effect of the earlier one.
125.Thus, neither set of purchasers can say that the statute gives
them complete title only because one sale deed was executed
earlier and the other one later. Rights claimed by both sides
continue to remain controlled by the statutory scheme governing
Mahar Watan lands.
126.Learned Minister appears to have proceeded on two
assumptions at the same time. First, that earlier transaction
became fully protected under Section 48 of the Transfer of
Property Act. Secondly, that later purchasers acquired absolutely
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no legal rights at all. In my opinion, neither of these assumptions
flows from the scheme of Section 5(4).
127.If earlier transaction continued to remain subject to statutory
control under Section 5(4), learned Minister could not have held
that complete title had passed so as to exclude every possible right
arising from the later transaction. At the same time, if earlier
transaction was not void, petitioners also cannot contend that
purchasers acquired absolutely nothing under the earlier sale deed.
Therefore, correct legal position appears to lie somewhere between
these two extreme stands taken by the rival parties. Learned
Minister treated sale deed as transferring complete ownership and
second sale deed as creating no enforceable right at all. Such
reasoning overlooks the limited nature of transfers governed by
Section 5(4) of the Bombay Inferior Village Watans Abolition Act.
128.Record shows that disputes exist regarding cancellation of
powers of attorney, execution of rival sale deeds, permissions
granted by the Collector, mutation proceedings and conduct of the
respective parties. All these matters have direct bearing upon rival
rights and equities claimed by both sides. None of these issues
could become unnecessary only because Section 48 of the Transfer
of Property Act was applied.
129.On overall consideration of the statutory provisions,
legislative history, binding precedents and admitted facts available
on record, this Court holds that both rival sale deeds are required
to be examined by appropriate forum. Neither transaction can be
decided only by applying Section 48 of the Transfer of Property
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Act. Consequently, findings recorded by the learned Minister
regarding title and priority between rival purchasers cannot be
sustained and are liable to be set aside.
Whether Revenue Authorities could decide title by applying
Section 48 of the Transfer of Property Act.
130.After considering statutory provisions and all judgments
discussed, particularly the Division Bench judgment in
Vithal
Kondhalkar
, this Court now proceeds to examine one more issue.
The question is whether the Collector or appellate revenue
authorities could decide ownership rights only on the ground that
the sale deed had exhausted every right of the transferor because it
was executed earlier. This issue requires examination keeping in
view the statutory scheme applicable to Mahar Watan lands and
the nature of jurisdiction exercised by the revenue authorities.
131.In the opinion of this Court, answer to this question has to be
in the negative. Jurisdiction conferred under the Bombay Inferior
Village Watans Abolition Act is confined to matters arising under
that special enactment. Authorities exercising powers under that
Act are required to examine whether statutory conditions attached
to the occupancy have been complied with and what consequences
follow under that Act if there is compliance or breach. Merely
because dispute regarding title comes before them during such
proceedings, it does not enlarge their jurisdiction so as to decide
proprietary rights between purchasers.
132.This position becomes clear from the Division Bench
judgment in
Vithal Kondhalkar. While explaining scope of
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Collector's powers under Section 5(3), the Division Bench
observed:
"the Collectors have to see whether the additional payment
as contemplated by the particular Act has been made by the
ex-Watandars or ex-Inamdars and the moment that was
done, as a matter of formality the order of conversion must
be passed."
133.The Division Bench observed:
"the Collector must pass an order under sub-section (3) of
section 5 relaxing the conditions."
134.These observations show that enquiry before the Collector is
confined to seeing whether requirements, such as payment of
prescribed Nazarana and fulfilment of other statutory conditions,
have been complied with. Nothing in these observations indicates
that Collector has been given authority to decide ownership claims
between purchasers claiming under sale deeds.
135. Another part of Vithal Kondhalkar supports this conclusion.
In paragraph 17, the Division Bench directed that if payment of ten
times assessment was found to have been made:
"the Collector will pass appropriate orders under sub-section
(3) of section 5 of the Abolition Act. In the light of our
aforesaid discussion and consider whether the action under
section 59 of the Code survives at all."
136.Thus, even while examining transfer alleged to be in breach
of statutory conditions, Collector was required to pass appropriate
orders under Section 5 and consider whether proceedings under
Section 59 of the Maharashtra Land Revenue Code survived. The
Division Bench nowhere authorised Collector to pronounce upon
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proprietary rights arising from sale deeds or to determine civil title
between purchasers.
137.In the present matter learned Minister considered analogy of
Section 48 of the Transfer of Property Act and held that after
execution of the registered sale deed nothing remained with the
vendors which could later be transferred in favour of subsequent
purchasers. Such reasoning proceeds upon principles governing
proprietary rights under the Transfer of Property Act. In the
opinion of this Court, this approach travels beyond the enquiry
contemplated under the Bombay Inferior Village Watans Abolition
Act. the judgment in
Vithal Kondhalkar, the Division Bench
treated powers of the Collector as flowing only from the special
enactment. The Court examined whether prescribed payment had
been made, whether sanction ought to be granted, whether
proceedings under Section 59 survived and whether Government
policy regarding regularisation required implementation. At no
place did the Division Bench hold that Collector could decide inter
se civil rights of purchasers by applying Section 48 of the Transfer
of Property Act or by determining proprietary title between them.
138.Whether purchaser acquired better title than subsequent
purchaser because of Section 48 of the Transfer of Property Act
requires examination of civil questions. Such questions include
validity of the sale deed, effect of cancellation of powers of
attorney, authority of the executants, whether transferor retained
any subsisting interest, rights of bona fide purchasers and priority
between rival conveyances. These are questions relating to
proprietary title. Neither Section 5 nor proceedings under Section
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59 of the Bombay Inferior Village Watans Abolition Act confer
jurisdiction upon revenue authorities to adjudicate all such issues.
This conclusion receives support from paragraph 10 of
Vithal
Kondhalkar
. There the Division Bench observed that after
prescribed payment had been made:
"the Collector is bound to pass the necessary orders" The
Court observed that if Collector failed to do so: "a mandamus
can be issued by this Court directing the Collector to grant
the appropriate sanction." These observations again indicate
that statutory duty of the Collector is confined to grant of
sanction and implementation of requirements under the
special enactment. They do not enlarge his jurisdiction so as
to determine whether one purchaser has acquired better title
than another under transfers of property.
139.Therefore, in my opinion, authorities exercising powers
under the Bombay Inferior Village Watans Abolition Act may
examine whether Section 5 has been complied with, whether
"previous sanction" had been obtained, whether prescribed
Nazarana has been paid, whether regularisation is permissible,
whether proceedings under Section 59 survive and what statutory
consequences should follow. However, they cannot record a finding
that because one registered sale deed was executed earlier,
executants stood divested of every proprietary right and, therefore,
subsequent purchasers acquired no title whatsoever. Such
conclusion relates to adjudication of title under the Transfer of
Property Act and falls within jurisdiction of the competent civil
court.
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140.Therefore, finding recorded by the learned Minister that
after execution of the earlier registered sale deed all rights, title
and interest stood transferred to the purchasers and later
purchasers acquired no rights, cannot be sustained in the form in
which it has been recorded. Learned Minister was required to
examine legality and consequences of the rival transfers within the
scheme of Section 5 of the Bombay Inferior Village Watans
Abolition Act. Consequently, this finding cannot be sustained and
is liable to be set aside.
141.In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
(i) The writ petition succeeds;
(ii) The judgment and order dated 4 September 2019
passed by the Learned Minister in Revision Application
Nos.3418/6148/File No.120/J/5, is quashed and set aside;
(iii) This Court holds that previous sanction contemplated
by Section 5(4) of the Bombay Inferior Village Watans
Abolition Act, 1958 is mandatory. However, absence of such
previous sanction does not render the transfer void. The
rights flowing from such transfer remain subject to the
statutory consequences provided under the Act;
(iv) It is clarified that this judgment decides only the
legality of the impugned revisional orders passed by the
learned Minister and the interpretation of Section 5(4) of the
Bombay Inferior Village Watans Abolition Act, 1958. Any
independent question relating to civil title, validity of rival
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conveyances, cancellation of powers of attorney or other
proprietary rights, if pending before a competent civil court,
shall be decided and on its own merits, without being
influenced by the observations made by the learned Minister
in the impugned orders;
(x) Rule is made absolute in the above terms.
(xi) There shall be no order as to costs.
(AMIT BORKAR, J.)
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