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Showing contexts for: mlrc in Atul Projects India Ltd vs Babu Dewoo Farle & Ors. Ig on 25 March, 2011Matching Fragments
7. An application under Section 36A of the Maharashtra Land Revenue Code, 1966 ( "MLRC") was submitted by the predecessors of the Plaintiff for permission to alienate the property. Defendants 23 to 27 were claiming certain rights in the property and on 22 December 2005 a Deed of Release was executed by them against payment. The application under Section 36A was made on 11 June 2007. Statements were recorded by the Circle Inspector. On 27 November 2009 and 4 February 2010 the Tahsildar and the S.D.O. Submitted their recommendations respectively for the grant of permission. On 22 April 2010 an Advocate's notice was issued by Defendants 1 to 8 and by Defendants 14 to 18 seeking to repudiate the Agreement both on the ground that the Plaintiff had not performed its obligation under the Agreement and that the Agreement was null and void for want of permission of the Collector under Section 36A of the MLRC.
9. On behalf of the Plaintiff it has been submitted that:
(i) the Agreement to Sell that has been executed in favour of the Plaintiff has been registered and Defendants 19 to 22 are not purchasers without notice.;
(ii) the Plaintiff had applied for permission under Section 36A of the MLRC which is recommended by the S.D.O. and the Tahsildar though final orders have not been passed;
10. It has been urged on behalf of Defendants 1 to 8 and 23 to 27 that the suit suffers from unexplained latches. The notice of termination was issued on 22 April 2010; whereas the suit has been lodged only on 7 March 2011.
More significantly the defence which has been urged is that the Agreement with the Plaintiff is null and void since it was been entered into without prior permission as required under Section 36A of the MLRC. This has been supported by learned counsel appearing on behalf of Defendants 19 to 22 who urged that the agreement which was entered into with the Plaintiff is not just an Agreement to Sell. The Agreement constitutes a transfer of the right to develop the property together with possession. This it was urged Chandka 8 NM-S-L-581-11 amounts to a transfer of occupancy within the meaning of Sections 2(22) and 2(23) of the MLRC and would stand vitiated in the absence of prior permission.
Section 36A which is a provision on the other hand which has ig been especially engrafted to deal with tribal holdings does not refer to the transfer of land but to the transfer of the occupancy of a tribal. While Section 43 of the Tenancy Act confines itself to the five recognised modes of the transfer of property, Section 36A of the MLRC contemplates those modes "or otherwise". While considering the provisions of Section 43, it has been held in judgments of learned Single Judges of this Court that a mere agreement to sell which does not create interest in property would not attract Section 43 and it is only at the stage of the execution of the sale deed when the property is actually transferred that the provision would be attracted. (Balu Baburao Zarole & Ors. vs. Shaikh Akbar Shaikh Bhikan & Ors. 2001 (3) Bom. C.R. 255) In taking this view I had followed an earlier judgment of D. K. Deshmukh, J. in a judgment dated 1 October 1997 in Appeal from Order No. 713 of 1977. In another case that has been Chandka 16 NM-S-L-581-11 decided by the Supreme Court the provisions of the J & K Prohibition on Conservation of Land and Alienation of Orchards Act 1975 came up for consideration in Manzoor Ahmed Magray vs. Gulam Hassan Aram and Ors.4. Section 3 of the J & K Act imposes a bar on the alienation of a Orchard except with the previous permission of the Revenue Minister. The Supreme Court emphasized that the prohibition on the transfer of Orchards was not absolute and the question of obtaining previous permission under Section 3(1)(a) would arise at the time of execution of the sale deed on the basis of a decree for a specific performance. The provisions of Section 36A of the MLRC are even more stringent when they are compared with the provisions of Section 43 of the Tenancy Act to which a reference has been made earlier or to those of the J & K Act which fell for determination before the Supreme Court. Section 36A imposes a prohibition on the transfer of occupancy rights from a tribal to a non tribal, without prior permission.