Before conveying of land by tribal person in favour of a non-tribal, requisites of Sec 36A of Maharashtra Land Revenue Code must be complied with by non-tribal before State Govt
Justices B.V. Nagarathna and Augustine George Masih [15-02-2024]

Read Order: Babasaheb Dhondiba Kute v. Radhu Vithoba Barde [SC- CIVIL APPEAL NO. 2458 OF 2024]

Tulip Kanth

New Delhi, February 22, 2024: While grating the relief of specific performance of the agreement to sell to the plaintiff, the Supreme Court has stated that section 36A of the Maharashtra Land Revenue Code requires the non-tribal to make an application for a previous sanction before a conveyance could be made by a tribal in favour of non-tribal before the State Government.

The facts of this case were such that the appellant-plaintiff and the respondent-defendant entered into an agreement to sell under which, the defendant agreed to sell his land to the plaintiff for a total consideration of Rs 2,25,000. An advance amount of Rs.1,55,000 was paid by the plaintiff to the defendant on the said date. Thereafter possession 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 a Special Civil Suit before the concerned trial Court seeking the decree for specific performance of the agreement to sell. 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.2,20,000with 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 District Judge) affirmed the judgment of the trial Court but increased the rate of interest from 6% to 14% from the date of the decree. He also directed the plaintiff to hand over possession to the defendant. Against this decision, the plaintiff preferred the second appeal, before the High Court. The High Court considered Section 36A of the Maharashtra Land Revenue Code, 1966 and observed that such a decree for specific performance could not be granted and thereby, dismissed the second appeal. Hence, the appellant approached the Top Court.

The Division Bench of Justice B.V. Nagarathna and Justice Augustine George Masih noted that the High Court had focused itself only on the aspect regarding Section 36A of the Land Revenue Code to deny relief to the appellant-plaintiff. The trial Court, the First Appellate Court as well as the High Court had concurrently held that there was indeed an agreement to sell between the parties and the plaintiff had paid a sum of Rs.2,20,000/- out of a total consideration of Rs.2,25,000/- to the defendant-respondent herein, who had also handed over possession of the subject land to the plaintiff.

Referring to Section 36A, the Bench opined that there is only a restriction on the transfer to be made by a tribal in favour of the non-tribal by way of sale, gift, exchange, mortgage, lease or otherwise. Such a restriction is in the context of requiring the non-tribal to make an application for a previous sanction before such a conveyance could be made by a tribal (defendant/ respondent) in favour of non-tribal (plaintiff/appellant) before the State Government so as to seek previous approval of the State Government only after a previous approval of the State Government could such a sale take place.

It was also made clear by the Bench that 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”, the Bench noted.

Further observing that this stage had 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, the Bench added that 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 have held that the plaintiff has performed his part of the agreement inasmuch as he had tendered a sum of Rs.2,20,000 out of a total consideration of Rs.2,25,000 and he was ready and willing to perform the rest of the obligation under the contract, it was only in the context of non-performance by the defendant that the plaintiff was constrained to file the suit for specific performance. Therefore, the Bench held that on the basis of Section 36A, the trial Court, the first appellate court as well as the High Court could not have declined to grant the decree for specific performance to the plaintiff inasmuch as the considerations under the provisions of the Specific Relief Act, 1963 only had to be made for the purpose of adjudicating the suit between the parties.

“Since there was no reason to decline the grant of a decree under the provisions of the said Act, the trial Court, the First Appellate Court as well as the High Court ought to have granted the said decree rather than granting an alternative relief”, the Bench added.

In such circumstances, the Bench decreed the suit filed by the plaintiff by holding that the plaintiff would be entitled to the relief specific performance of the agreement to sell. It was also made clear by the Top Court that he appellant-plaintiff shall proceed under Section 36A before seeking conveyance of the subject land in his favour in case the defendant is a tribal.