Transfer Of Tribal Land Impermissible Without Collector's Permission Even If Land Transferred To Another Tribal: Bombay High Court

Single Judge Rohit B. Deo stated that,

"The Legislature has in its wisdom not exempted tribal to tribal transfer from the requirement of previous sanction from the Collector. Presumably, the Legislature was conscious of the fact that a tribal is vulnerable and could possibly be exploited or induced to part with the agricultural land even by a fellow tribal who is in a more dominating position in life. It is precisely to prevent such exploitation that the previous sanction of the Collector is statutorily mandated."

The case involved a sale-deed executed by Mr. Kanha Namaji Nisande in favour of Mr. Vijay Anandrao Moghe in relation to the agricultural field situated at Mouza-Vasantpur Kharda. This sale-deed was regarded by Tahsildar, Digras and the Additional Collector/Sub-Divisional Officer, as illegal as being contrary to the provisions of Section 36 of the Code as the prior sanction of the Collector to the transfer was not obtained. Their order was challenged in the petition before the high court submitting that previous sanction of the Collector is not required since the transfer is by a tribal in favour of a tribal.

The signal judge noted that in Tulsiram Adku Marapa & another v. State of Maharashtra & others, 2011(1) ALL MR 22 it is unambiguously articulated that in view of the provisions of Section 36(2) of the Code, a transfer between tribal and tribal would be illegal in the absence of previous sanction of the Collector. The provisions of Sections 36 and 36-A of the Code serve the salutary purpose of protecting the interest of tribals, who are legislatively perceived to be potentially vulnerable. While Section 36(2) of the Code prohibits transfer of occupancies of persons belonging to the Scheduled Tribe except with the previous sanction of the Collector, and the prohibition would come into play even if the transfer is in favour of a tribal, Section 36A of the Code specifically governs the transfers of occupancies by tribals in favour of non-tribal. Section 36A of the Code mandates that such transfer will require the previous sanction of the Collector if the transfer is by way of lease, or mortgage for a period not exceeding five years and in all other cases, the previous sanction of the Collector with the previous approval of the State Government. The proviso obligates the Collector not to accord sanction unless he is satisfied that no tribal residing in the village in which the occupancy is situate or within 5 kilometers thereof is prepared to take the occupancy from the owner on lease, mortgage or by sale or otherwise.

"In the teeth of the provisions of Section 36(2) of the Code, which do not make any distinction based on the status of the purchaser or transferee, it is not possible to accept the submission that if the transfer is between tribal and tribal, the previous sanction of the Collector shall not be necessary. Such submission militates against the plain language of the statutory provisions and if accepted will be destructive of the legislative intent which is to protect the tribals from exploitation."

Single Judge stated that the view of the Tahsildar and the Additional Collector is consistent with the legislative mandate to protect tribals.

Case Title : Vijay Anandrao Moghe and ors v The Additional Collector/Sub-Divisional Officer and ors

Click Here To Read/Download Judgment