court can not grant decree for specific performance of contract if land is to be transferred from tribal to non-tribal

*After carefully considering the facts of the present case and the arguments advanced in the light of the aforesaid case law, it is crystal clear that, in case of a land of tribal, the permission of Collector with or without the approval of the Government as required u/s. 36A is mandatory before entering into even agreement to sell wherein the possession is agreed to be transferred or is transferred under such agreement. If without prior sanction there is transfer of possession by tribal to a non-tribal under agreement to sell, it is void ab initio.* In other matters, the permission is required for execution of only sale deed. The permission required for transfer of land of tribal cannot be equated with the permissions or sanction required for execution of sale deed under other Acts. The facts disclose that, the defendant, a tribal, transferred by agreement to sell his land in the year 2001 and delivered possession in the year 2003, which was a transaction contrary to the directive principles, the national goal and the prohibition u/s. 36A of MLRC. There are provisions which casts obligation on the Collector to restore the land to the tribal and also to see that the land is used only for the benefit of the tribals.* In the situation, the arguments of Mr. V.R. Dhorde that a decree for specific performance can be granted subject to conditions obtaining sanction from the Collector u/s. 36A cannot be accepted. It will be not only contrary to the spirit of National Goal and the public policy of upliftment of weaker class of tribal set, it will also some sort of recognition to the illegal transfer which is void ab initio for which there are provisions for restoration of earlier status.*  In addition, it will put some pressure on the authorities of the fact that, the courts have approved the transaction and requested them only to consider whether sanction should be granted or not. Such a course is not permissible. The ld. appellate Court has given sound, elaborate reasons and both the courts below have committed no error in refusing the decree for specific performance of the contract.

15.  *I may further say that, in such a suit, the discretion under Section 20 of Specific Performance Act also could not have been exercised in favour of the grant of specific performance.*  In the result, the substantial question of law is answered in the negative.

*IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)*

Second Appeal No. 118 of 2018

Decided On: 17.12.2018

*Babasaheb Vs.  Radhu Vithoba Barde*

Hon'ble Judges/Coram:

*A.M. Dhavale, J.*

Citation: *AIR 2019 Bom 49*