9911796707
TMI Blog2024 (2) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... ession was stated to have been given in the year 2003 by the defendant to the plaintiff. On 10.01.2003, the plaintiff paid an additional consideration of Rs.65,000/- and thus out of a total consideration of Rs.2,25,000/-, an amount of Rs.2,20,000/- was paid. Since the defendant did not perform his part of the contract to execute the sale deed, the plaintiff filed Special Civil Suit no.11 of 2005 before the concerned trial Court seeking the decree for specific performance of the agreement to sell and in the alternative, for refund of the advance sale consideration / earnest money of Rs.2,20,000/- along with interest @ 6% p.a. In response to the suit summons and notice issued by the trial Court the defendant appeared and denied the case of the plaintiff by filing his written statement. The trial court framed the issues for its consideration and ultimately refused the decree of specific performance and granted the alternative relief of refund of Rs.2,20,000/- with interest 6% p.a. Being aggrieved by the denial of the decree for specific performance of the agreement to sell, the plaintiff preferred his appeal before the First Appellate Court. The First Appellate Court (Ad-hoc Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract whereas the defendant had not done so. Therefore the trial Court as well as the first appellate Court were not right in granting only the alternative relief. He further contended that Section 36A of the Land Revenue Code was improperly invoked by the High Court. The said Section clearly stipulates that if a tribal is to alienate land to a non-tribal by way of sale, gift, exchange, or mortgage, lease or deal otherwise then such a non-tribal has to make an application and with the previous sanction, a tribal can alienate or convey the land to a non-tribal. He submitted that in the absence of the defendant coming forward to execute the sale deed, there was no occasion for the plaintiff to seek such a sanction of the State Government that only if the decree for specific performance is passed in favour of the plaintiff herein he would be in a position to seek such a sanction and ultimately the decree would be executed only if the sanction is given by the State Government in terms of Section 36A of the Land Revenue Code. Therefore, the High Court was not right in holding that in view of the Section 36A of the Land Revenue Code, the defendant had no right to even enter into an agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no occupancy of a Tribal shall, after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act,, 1974, be transferred in favour of any non-Tribal by way of sale (including sales in execution of a decree of a Civil Court or an award or order of any Tribunal or authority), gift, exchange, mortgage, lease or otherwise, except on the application of such non-Tribal and except with the previous sanction- (a)in the case of a lease or mortgage for a period not exceeding 5 years, of the Collector; and (b) in all other cases, of the Collector with the previous approval of the State Government. Provided that, no such sanction shall be accorded by the Collector unless he is satisfied that no Tribal residing in the village in which the occupancy is situate or within five kilometers thereof is prepared to take the occupancy from the owner on lease, mortgage or by sale or otherwise. (2) The previous sanction of the Collector may be given in such circumstances and subject to such conditions as may be prescribed. (3) On the expiry of the period of the lease or, as the case may be, of the mortgage, the Collector may, notwithstanding anything contained in any law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld such a sale take place. The conveyance by way of sale would take place only at the time of registration of a sale deed in accordance with Section 17 of the Registration Act, 2008. Till then, there is no conveyance. Therefore, there is no bar for a tribal to enter into an agreement to sell and seeking advance sale consideration. However, before conveying the land by the tribal in favour of a non-tribal, the requisites of Section 36A must be complied with by the non-tribal before the State Government in terms of Section 36A of the Land Revenue Code. That stage has not yet arisen in the instant case, for the reason that the defendant failed to perform his part of the agreement inasmuch as he did not come forward to execute the sale deed. Possibly, if the defendant had come forward to execute the sale deed in favour of the plaintiff, then it would have been the duty of the appellant to have proceeded under Section 36A of the Land Revenue Code and seek the requisite permission or previous sanction from the Collector. In view of the defendant not performing his part of the agreement to sell, the plaintiff was constrained to file suit for specific performance. When all the courts hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idhar Dayandeo Kesekar v. Vishwanath Pandu Barde, 1995 (Supp.) 2 SCC 549 for the reason that the appellant in that case, being a non-tribal purchaser, had been denied permission for alienation by the Collector and the Commissioner, and had filed a writ petition before the High Court that had come to be dismissed. Therefore, this Court dismissed his Special Leave Petition on the ground that the denial of permission by the State authorities could not be faulted for it was in consonance with the constitutional scheme and the assigned land cannot be permitted to be sold or converted to non-agricultural use. The question before the High Court, as noticed by us, was different because the stage of taking steps to secure the previous sanction under Section 36A of the Maharashtra Land Revenue Code, 1959 had not arisen in the present case. In the circumstances, we modify the judgment of the High Court, First Appellate Court as well as the trial Court and decree the suit filed by the plaintiff by holding that the plaintiff is entitled to the relief specific performance of the agreement to sell dated 31.07.2001. The suit is decreed in the aforesaid terms. It is needless to observe that now t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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