Smt. Subhadara Wd/O Janardhan Meshram & Ors. vs Vidarbha Rural Reconstruction Foundation Public Trust & Ors.

Heard finally with the consent of learned Counsel appearing for the parties.

In the present matter, the learned Counsel for the petitioners submits that the learned Maharashtra Revenue Tribunal passed the impugned order in Tribal Appeal No.TRI/A-109/9/2011 dated 05/01/2012 without jurisdiction, and therefore, seeks the indulgence of this Court.

Learned Counsel for the petitioners states that an application under Section 36A of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as “the MLR Code” for short) was moved before the Sub-Divisional Officer, Kelapur, for cancellation of the sale deed executed on 03/06/1994 by the petitioners in favour of Respondent No.1. It is the contention of the petitioners that the said transaction is illegal as they belongs to a tribal community, and permission of the competent authority under Section 36A of the MLR Code was necessary. However, in absence of necessary permission, said transaction is illegal.

The application filed by the petitioners was allowed by the learned Tahsildar vide order dated 19/07/2011 by holding that in absence of permission of competent Authority under Section 36A of MLR Code, the transaction is illegal. Accordingly respondent No.1 was directed to restore the land to petitioners.

The said order of Tahsildar was challenged by the respondent - society by way of an appeal before the Maharashtra Revenue Tribunal, Nagpur by invoking the powers under Section 6 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.

In appeal, the present petitioners has raised a preliminary objection that the application filed before the Tahsildar was under Section 36A of the MLR Code. Therefore, an appeal filed under Section 6 of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 is not maintainable. However, learned Maharashtra Revenue Tribunal failed to consider the specific objection raised by the petitioners regarding maintainability and by considering the merits of the case has decided the appeal and thereby set aside the order passed by the learned Tahsildar in the matter.

Aggrieved by the order dated 05/01/2012 passed by the Maharashtra Revenue Tribunal, Nagpur, petitioners have approached before this Court to challenge the judgment of the learned Tribunal by stating that same was passed without jurisdiction, and therefore, the intervention and indulgence of this Court is necessary in the matter.

This Court vide order dated 16/08/2013 was pleased to issue Rule in the present writ petition, observing that the issue arises for consideration as to whether the Notification relied upon by the respondent dated 16/02/1978 issued by the Revenue and Forest Department, Government of Maharashtra, whereby it was notified that the Maharashtra Revenue Tribunal would have the jurisdiction to entertain and decide the appeals against decisions and orders passed by the Collector under Section 36 of the MLR Code is required consideration in the matter.

I have heard the learned Counsel appearing for the respective parties at length and perused the record, as well as the Notification dated 16/02/1978. The Notification relied upon by the respondents reads as under:

Perusal of notification made it clear that if any order passed by Authority by invoking powers under Section 36 of the MLR Code, then Member, Maharashtra Revenue Tribunal can entertain the Appeal on merits. In entire notification there is no mention of 36A of MLR Code. Therefore prima facie, proceeding which were decided by the Tahsildar in the matter invoking provision under Section 36A does not come under purview of notification.

It would be further pertinent to note that there is a material distinction between Section 36 & 36A of MLR Code. Section 36 deals with the general nature & transferability of occupancy rights, whereas Section 36A provides special statutory protection against transfer of occupancy rights belonging to members of Scheduled Tribes. Section 36 recognises the general proprietary character of occupancy whereas Section 36A places a specific statutory embargo upon transfer to non-tribals, subject to the prescribed procedure and previous sanction of competent authority.

In the present petition, the order of Tahsildar shows that by invoking power under Section 36A of MLR Code held that sale transaction is illegal between the parties and directed to restore the land in favour of the petitioner. In the order of Tahsildar, there is no finding recorded that, he has invoked the provisions of Section 36 of MLR Code while reaching the final conclusion.

It is thus clear that, respondents can not take benefit of Notification dated 16/02/1978. Accordingly, only conclusion can be drawn that learned Maharashtra Revenue Tribunal has wrongly entertained the Appeal that too under Section 6 of Maharashtra Restoration of Land to Schedule Tribes Act, 1974.

It would be relevant to note that, proceeding being initiated under MLR Code, the statutory provision therein made available the forum to challenge the order of Tahsildar. Hence, filing of proceeding under the provisions of Maharashtra Restoration of Land to Scheduled Tribes Act, 1974 is otherwise also not tenable in view of the provisions available under MLR Code.

Learned Counsel for the respondents contended that, the learned Maharashtra Revenue Tribunal rightly considered the merits of the controversy, and since the matter was remanded back to the Tahsildar, those findings ought to be considered by this Court while deciding the present petition. However, this submission cannot be accepted. Once it is held that the Maharashtra Revenue Tribunal has no jurisdiction to entertain the appeal, any observations or findings recorded in the impugned order are a nullity and cannot be taken into consideration by this Court.

In view of above, as the order passed by the learned Maharashtra Revenue Tribunal is without jurisdiction. Same does not stand to the scrutiny of law and deserves to be quashed and set aside. Hence, following order is passed:

The writ petition stands disposed of.

Rule made absolute in the aforesaid terms. No order as to costs.