Allowed

Smt. Chhaya Rajendra Zende and Anr. v. the State of Maharashtra through Secretary, Revenue and Forest Dept. and Ors.

Bombay HC10 Oct 2014WP/8744/2014

Case brief

AI extract

What is this about?

The Bombay High Court addressed delays by the State Government in granting prior approval for transferring tribal land to non-tribals under Section 36A of the Maharashtra Land Revenue Code. The Court ruled that pending proposals cannot be stalled pending code amendments and directed the State to decide them within four months to adhere to the Constitution.

What did the court decide?

Directed the State Government to decide pending proposals within four months and communicate orders to the District Collector within one week.

Smt. Chhaya Rajendra Zende and Anr. Vs the State of… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.8744 OF 2014

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1.Smt.Chhaya Rajendra Zende & Anr. ...Petitioners Vs. 1.The State of Maharashtra & Ors. ...Respondents. AND WRIT PETITION NO.8745 OF 2014 1.Shri.Arvind Ramchandra Shelar & Anr. ...Petitioners Vs. 1.The State of Maharashtra & Ors. ...Respondents. AND WRIT PETITION NO.8759 OF 2014 Rakeshbhai Ravji Desai. ...Petitioner Vs. 1.The State of Maharashtra & Ors. ...Respondents. AND WRIT PETITION NO.9018 OF 2014 1.Shri.Bhagwant Bhanudas Pathak & Anr. ...Petitioners Vs. 1.The State of Maharashtra & Ors. ...Respondents. AND WRIT PETITION NO.9020 OF 2014 1.Smt.Chitra Jhamru Kahandole @ Shubhada Padmakar Deshpande & Ors.. ...Petitioners Vs. 1.The State of Maharashtra & Ors. ...Respondents. ----Mr.Suresh M.Sabrad, for the Petitioners. Mr.S.N.Patil, AGP for the Respondent – State. -----

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CORAM : A.S.OKA & G.S.KULKARNI, JJ.

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DATED : 10^th OCTOBER, 2014.

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P.C. :

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The applications were made by the petitioners seeking sanction for transfer of lands held by a tribal to a non-tribal in accordance with subsection (1) of Section 36 and 36A of the Maharashtra Land Revenue Code (for short “the said Code”). In these cases, the applications were made for grant of permission to sell the lands held by a tribal to a non-tribal. In case of sanctions sought for the sale of a land held by a tribal to a non-tribal, in view of clause (b) of sub section (1) of Section 36A of the said Code, the Collector can grant sanction only with the prior approval of the State Government.

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On such applications being made for grant of sanction, the procedure which is normally followed is that the Collector or Additional Collector who is empowered to grant sanction, calls for report of the concerned Tahasildar. On the basis of the report of the Tahasildar, the Collector/ Additional Collector prepares his own recommendation. The application alongwith the recommendation of the Collector are sent to the office of the Divisional Commissioner of the concerned Revenue Division. The said recommendation alongwith the Divisional Commissioner's recommendation is placed before the State Government for grant of approval under clause (b) of sub clause (1) of Section 36A of the Code.

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Recently we have come across a large number of petitions filed in this Court making a grievance about the failure of the State Government to take a decision on the question of grant of approval within a reasonable time, though the recommendations are received long back.

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Several orders were passed by this Court directing the State Government to take appropriate decision. Our attention is invited to the order dated 6^th August,2014 in Writ Petition No.3161 of 2014 and other connected matters. During the course of hearing of the said petitions, a letter dated 6^th August,2014 was produced by the learned AGP addressed to him by the Section Officer of the Revenue and Forest Department. The said letter records that a Committee has been constituted for suggesting amendments to the said Code and the State Government will consider the suggestions of the Committee and only thereafter, the pending applications will be decided.

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As of today, even the draft of the proposed amendment to the said Code is not ready. The State Government and all concerned Authorities under the said Code are bound by the provisions of the said Code as it stand today. Therefore, for the reason that a Committee has been appointed for suggesting the amendments to the said Code, such proposals cannot be kept pending by the State Government. The learned AGP pointed out that about 700 proposals under Section 36A of the said Code are pending with the State

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Government for taking appropriate decision on the question of the grant of prior approval. He urged that even after the receipt of the recommendations of the Divisional Commissioner and the Collector, a scrutiny of the proposals is required to be made and considering the fact that large number of such applications are pending, there is a delay in taking appropriate decision. The learned Counsel for the petitioners has placed on record various orders passed by the State Government within last two months granting approval. He urged that only in certain cases that the approval is being granted. He, therefore, urged that the action of the State Government of keeping certain selected and chosen applications pending is an arbitrary action violative of Article 14 of the Constitution of India.

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We have considered the submissions of both the learned Counsel. As stated earlier, the sanction for sale of a land of a tribal to a non tribal can be granted by the Collector only after previous approval of the State Government. Where the previous approval of the State Government is required, the State is under an obligation to carefully examine the applications and the recommendations made thereon by the Collector and the Divisional Commissioner. Considering the object of Section 36 which prevents transfer of a land by a Tribal to a non-Tribal, the State Government cannot mechanically exercise the power of grant of prior approval. The State Government will have to grant prior approval only in those cases in which the sanction can be granted in accordance with law.

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In a given case, a tribal may be badly in need of money and therefore, such application cannot be kept pending for long time. We must hold that in any case, such applications/proposals cannot be kept pending on the ground that any amendment to the said Code is contemplated.

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In normal course, the State Government must make an endeavour to take a decision on the proposal received for grant of previous approval in terms of prayer clause (b) of sub-section (1) of Section 36A within a period of four months from the date on which the proposal is received by it unless considering the complex nature of the case, a very detailed scrutiny and/or inquiry is necessary.

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From the compilation produced by the learned Counsel for the petitioner, it appears that prior approvals have been granted by the State government in the recent past.

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Considering the above discussions, we dispose of the petitions with a direction to the State Government to take appropriate decision on the proposals.

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Accordingly we dispose of the petitions by passing the following

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order:-

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ORDER

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(i) The State Government shall take appropriate decision on the proposals of the petitioners pending for grant of prior approval under clause (b) of sub-section (1) of Section 36A of the Maharashtra Land Revenue Code,1966, as expeditiously as possible in any event within a period of three months from today;

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(ii) The orders passed by the State Government on the said proposals shall be forthwith communicated to the District Collector within a period of one week from the date of passing the orders;

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(iii) After receiving the communication of the orders from the State Government, the District Collector shall pass orders on the applications in accordance with law preferably within a period of one month from the date on which the orders of the State Government are communicated to him;

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(iv) Considering the above discussions, we direct the State Government to ensure that all such applications/ proposals for grant of prior approval under clause (b) of sub-section (1) of Section 36A are not kept pending for a long time and an endeavour shall be made to take appropriate decision on such proposals for grant of approval within a period of four months from the date on which the proposal is received from the Divisional Commissioner.

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(v) We dispose of the petition in terms of the above directions.

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(G.S.KULKARNI, J.) (A.S.OKA, J.)

Smt. Chhaya Rajendra Zende and Anr. v. the State of Maharashtra through Secretary, Revenue and Forest Dept. and Ors.

Case brief

What is this about?

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Smt. Chhaya Rajendra Zende and Anr. v. the State of Maharashtra through Secretary, Revenue and Forest Dept. and Ors.

Case brief

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What did the court decide?

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