Case Note & Summary
The petitioner, Kisan Songya Bangara, a tribal agriculturist, along with his family members, owned land bearing Survey No.46/2 (12.1 Ares) and Survey No.46/3 (61.7 Ares) at Mouje Valshind, Taluka Bhiwandi, District Thane. Due to financial need, they sought to sell the land to respondent No.6, Vijendra Shamlal Sharma, a non-tribal. Under Sections 36 and 36A of the Maharashtra Land Revenue Code, 1966, prior approval from the Collector or State Government is required for such a sale. On 14 July 2014, the petitioner applied to the Collector, Thane, for the necessary sanction. The Collector forwarded the application to the Tahsildar for inquiry and report. However, by letter dated 5 October 2020, the State Government (respondent No.1) informed the Collector that prior approval under Section 36A could not be granted. Consequently, the Collector issued a letter dated 28 October 2020 refusing the approval. The petitioner challenged both letters by way of a writ petition under Articles 226 and 227 of the Constitution. The court noted that the Collector had not considered the application on its merits and had merely acted on the government's letter. The government's letter relied on a circular that did not apply to the petitioner's case, as the application was made in 2014 and the land was not acquired or reserved. The court held that the impugned letters were unsustainable and quashed them, directing the Collector to decide the application afresh within eight weeks after hearing all parties.
Headnote
A) Land Revenue - Prior Approval for Sale of Tribal Land - Section 36A of the Maharashtra Land Revenue Code, 1966 - The Collector refused to grant prior approval under Section 36A for sale of tribal land to a non-tribal based on a government circular dated 5.10.2020 which stated that prior approval cannot be granted. The court held that the Collector failed to consider the petitioner's application on merits and the circular did not apply to the petitioner's case as the application was made in 2014 and the land was not acquired or reserved. The impugned letters were quashed and the Collector was directed to decide the application afresh within eight weeks. (Paras 1-21)
B) Constitutional Law - Writ Jurisdiction - Articles 226 and 227 of the Constitution of India - The court exercised its writ jurisdiction to quash the impugned letters and direct the Collector to consider the application on merits, as the refusal was arbitrary and without application of mind. (Paras 1-21)
Issue of Consideration
Whether the Collector's refusal to grant prior approval under Section 36A of the Maharashtra Land Revenue Code, 1966 for sale of tribal land to a non-tribal is sustainable when the application was not considered on merits and the refusal was based on a government circular that does not apply to the facts of the case.
Final Decision
The impugned letters dated 28.10.2020 and 5.10.2020 are quashed and set aside. The Collector, Thane, is directed to decide the petitioner's application for prior approval under Section 36A of the Maharashtra Land Revenue Code, 1966 afresh on its own merits, after hearing all concerned parties, within eight weeks from the date of the order.
Law Points
- Section 36A of the Maharashtra Land Revenue Code
- 1966
- prior approval for sale of tribal land
- duty of Collector to consider application on merits
- government circular cannot override statutory provisions
- writ of certiorari
- writ of mandamus
Case Details
2021 LawText (BOM) (04) 16
Writ Petition (ST) No. 98188 of 2020
S.J. Kathawalla, Prithviraj K. Chavan
Mr. N.V. Walawalkar (Senior Advocate) alongwith Mr. Surel Shah and Mr. Amey Sawant for the Petitioner, Mr. Suresh Sabrad alongwith Ms. Neha Parte for Respondent No.6, Mr. S.B. Kalel (AGP) for the State
The State of Maharashtra, The Collector Thane, The Deputy Collector, The Divisional Commissioner, Mumbai Metropolitan Regional Development Authority, Vijendra Shamlal Sharma
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Nature of Litigation
Writ petition challenging the refusal of the Collector to grant prior approval under Section 36A of the Maharashtra Land Revenue Code, 1966 for sale of tribal land.
Remedy Sought
Quashing of letters dated 28.10.2020 and 5.10.2020, and direction to grant prior approval under Section 36A.
Filing Reason
The Collector refused to grant prior approval for sale of tribal land to a non-tribal based on a government circular that did not apply to the petitioner's case.
Previous Decisions
The Collector had not considered the application on merits; the State Government had issued a letter stating prior approval cannot be granted.
Issues
Whether the Collector's refusal to grant prior approval under Section 36A of the Maharashtra Land Revenue Code, 1966 is sustainable when the application was not considered on merits.
Whether the government circular dated 5.10.2020 applies to the petitioner's application made in 2014.
Submissions/Arguments
Petitioner argued that the Collector failed to consider the application on merits and merely acted on the government's letter, which was based on a circular that did not apply to his case.
Respondent No.6 supported the petitioner's case.
State argued that the circular was applicable and prior approval could not be granted.
Ratio Decidendi
The Collector must consider an application for prior approval under Section 36A of the Maharashtra Land Revenue Code, 1966 on its own merits and cannot refuse based on a government circular that does not apply to the facts of the case. The impugned refusal was arbitrary and without application of mind.
Judgment Excerpts
By the above Writ Petition, the Petitioner interalia seeks the following relief : (b) That by an appropriate writ, order or direction, this Hon’ble Court be pleased to quash and set aside the letter dated 28.10.2020 issued by the Respondent No.2 Collector, Thane thereby refusing to grant prior approval u/s. 36A of the Maharashtra Land Revenue Code, 1966 as well as the letter dated 5.10.2020 issued by the Respondent No.1 herein to the Respondent No.2 thereby intimating that prior approval u/s. 36A of the Maharashtra Land Revenue Code, 1966 cannot be granted to the Petitioner...
The impugned letters dated 28.10.2020 and 5.10.2020 are quashed and set aside. The Collector, Thane, is directed to decide the petitioner's application for prior approval under Section 36A of the Maharashtra Land Revenue Code, 1966 afresh on its own merits, after hearing all concerned parties, within eight weeks from the date of the order.
Procedural History
The petitioner applied to the Collector on 14 July 2014 for prior approval under Section 36A. The Collector forwarded the application to the Tahsildar for inquiry. On 5 October 2020, the State Government informed the Collector that prior approval cannot be granted. On 28 October 2020, the Collector issued a letter refusing the approval. The petitioner then filed the present writ petition on an unspecified date. The petition was taken up for final hearing at the stage of admission by consent of parties.
Acts & Sections
- Maharashtra Land Revenue Code, 1966: 36, 36A
- Constitution of India: 226, 227
