36. Occupancy to be transferable and heritable subject to certain restrictions.
(1)An occupancy shall, subject to the provisions contained in Section 72 and to any conditions lawfully annexed to the tenure, and save as otherwise provided by law, be deemed an heritable and transferable property-(2)[ Notwithstanding anything contained in the foregoing sub-section occupancies of persons belonging to the Scheduled Tribes (hereinafter referred to as the 'Tribals') (being occupancies wherever situated in the State), shall not be transferred except with the previous sanction of the Collector:Provided that nothing in this sub-section shall apply to transfer of occupancies made in favour of persons other than the Tribals (hereinafter referred to as the 'non-Tribals') on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974.] [Sub-section (2) was substituted for the original by Maharashtra 35 of 1974, section 2(1)](3)Where an occupant belonging to a Scheduled Tribe in contravention of sub-section (2) transfers possession of his occupancy, the transferor or any person who if he survives the occupant without nearer heirs would inherit the holding, may, [within thirty years from the 6th July, 2004] [These words and figures were substituted for the words 'within thirty years of such transfer of possession' by Maharashtra 43 of 2011, section 2(a), (w.e.f. 6-7-2004)], apply to the Collector to be placed in possession subject so far as to the Collector may, in accordance with the rules made by the State Government in this behalf, determine to his acceptance of the liabilities for arrears of land revenue or any other dues which form a charge on the holding, [and notwithstanding anything contained in any law for the time being in force, the Collector shall] [These words were substituted for the words 'and the Collector shall' by Maharashtra 1 of 1991, section 2(a)(ii)] dispose of such application in accordance with the procedure which may be prescribed:[Provided that, where a Tribal in contravention of sub-section (2) of any law for the time being in force has, at any time before the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 transfer possession of his occupancy to a non-Tribal and such occupancy is in the possession of such non-Tribal or his successor-in-interest,] [These proviso were added by Maharashtra 35 of 1974, section 2(2)] and has not been put to any non-agricultural use before such commencement, then, the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu at any time or on application by the Tribal (or his successor-in-interest) made at any time [within thirty years from the 6th July, 2004] [These words and figures were substituted for the words 'within thirty years of such commencement' by Maharashtra 43 of 2011, section 2(b), (w.e.t. 6-7-2004)], after making such inquiry as he thinks fit, declare the transfer of the occupancy to be invalid, and direct that the occupancy shall be taken from the possession of such non-Tribal or his successor-in-interest and restored to the Tribal or his successor-in-interest.[****] [The explanation was deleted by Maharashtra 11 of 1976, section 3, Second Schedule][Provided further] [These words were substituted for the word 'Provided' by Maharashtra 11 of 1976, section 3, Second Schedule] that where transfer of occupancy of a Tribal has taken place before the commencement of the said Act, in favour of a non-Tribal, who was rendered landless by reason of acquisition of his land for a public purpose, only half the land involved in the transfer shall be restored to the Tribal.(3A)[Where any Tribal (or his successor-in-interest) to whom the possession of the occupancy is directed to be restored under the first provisio to sub-section (3) expresses his unwillingness to accept the same, the Collector shall, after holding such inquiry as he thinks fit, by order in writing, declare that the occupancy together with the standing crops therein, if any, shall with effect from the date of the order, without further assurance, be deemed to have been acquired and vest in the State Government.(3B)On the vesting of the occupancy under sub-section (3A) the non-Tribal shall, subject to the provisions of sub-section (3C), be entitled to receive from the State Government an amount equal to 48 times the assessment of the land plus the value of improvements, if any, made by the non-Tribal therein to be determined by the Collector in the prescribed manner.Explanation. - In determining the value of any improvements under this sub-section, the Collector shall have regard to -(i)the labour and capital provided or spent on improvements;(ii)the present condition of the improvements;(iii)the extent to which the improvements are likely to benefit the land during the period of ten years next following the year in which such determination is made;(iv)such other factors as may be prescribed.(3C)Where there are persons claiming encumbrances on the land, the Collector shall apportion the amount determined under sub-section (3B) amongst the non-Tribal and the person claiming such encumbrances, in the following manner, that is to say -(i)if the total value of encumbrances on the land is less than the amount determined under sub-section (38), the value of encumbrances shall be paid to the holders thereof in full;(ii)if the total value of encumbrances on the and exceeds the amount determined under sub-section (3B), the amount shall be distributed amongst the holders of encumbrances in the order of priority:Provided that, nothing in this sub-section shall affect the right of holder of any encumbrances to proceed to enforce against the non-Tribal his right in any other manner or under any other law for the time being in force.(3D)The land vested in the State Government under sub-section (3A) shall, subject to any general or special orders of the State Government in that behalf, be granted by the Collector to any other Tribal residing in the village in which the land is situate or within five kilometres thereof and who is willing to accept the occupancy in accordance with the provisions of this Code and the rules and orders made thereunder and to undertake to cultivate the land personally, so, however, that the total land held by such Tribal, whether as owner or tenant, does not exceed an economic holding within the meaning of sub-section (6) of Section 36A] [Sub-sections (3A) to (3D) were deemed always to have been inserted by Maharashtra 30 of 1977, section 2].(4)Notwithstanding anything contained in sub-section (1) or in any other provisions of this Code, or in any law for the time being in force it shall be lawful for an Occupant Class-II to mortgage his property in favour of the State Government in consideration of a loan advanced to him by the State Government under the Land Improvement Loan Act, 1883, the Agriculturists Loans Act, 1884, or the Bombay Non-Agriculturists Loans Act, 1928 or in favour of a co-operative society [or the State Bank of India constituted under Section 3 of the State Bank of India Act, 1955, or a corresponding new bank within the meaning of clause (d) of Section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, or the Maharashtra State Financial Corporation established under the relevant law] [These words were inserted by Maharashtra 36 of 1971, section 2(a)] in consideration of a loan advanced to him by such co-operative [society, State Bank of India, corresponding new bank, or as the case may be, Maharashtra State Financial Corporation] [The word was inserted, by Maharashtra 26 of 1971, section 2(b)], and without prejudice to any other remedy open to the State Government, [the co-operative society, the State Bank of India, the corresponding new bank or as the case may be, the Maharashtra State Financial Corporation] [These words were substituted for the words 'or as the case may be, the co-operative society', by Maharashtra 26 of 1971, section 2(c)] in the event of such occupant making default in payment of such loan in accordance with terms on which such loan is granted, it shall be lawful for the State Government, [the co-operative society, the State Bank of India, the corresponding new bank, or as the case may be, the Maharashtra State Financial Corporation] [These words were substituted for the words 'or as the case may be, the co-operative society', by Maharashtra 26 of 1971, section 2(c)] to cause the occupancy to be attached and sold and the proceeds to be applied towards the payment of such loan.The Collector may, [on the application of the co-operative society, the State Bank of India, the corresponding new bank or the Maharashtra State Financial Corporation,] [These words were substituted for the words 'on the application of the society', by Maharashtra 26 of 1971, section 2(d)] and payment of the premium prescribed by the State Government in this behalf, by order in writing reclassify the occupant as Occupant-Class I; and on such reclassification, the occupant shall hold the occupancy of the land without any restriction on transfer under this Code.Explanation. - For the purposes of this Section, "Scheduled Tribes" means such tribes or tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be Scheduled Tribes in [and persons, who belong to the tribes or tribal communities, or parts of, or groups within tribes or tribal communities specified in Part VIIA of the Schedule to the order [made under] [This portion was added by Maharashtra 35 of 1974, section 2(3)] the said Article 342, but who are not residents in the localities specified in that Order who nevertheless need the protection of this Section and Section 36A (and it is hereby declared that they do need such protection) shall, for the purposes of those Sections be treated in the same manner as members of the Scheduled Tribes.]
