Gautamsheth Kisan Wadve And Anr vs Kisan Gangaram Kale And Ors

pps 1 of 139 TRIBAL WP ST 1338 -20.doc

Jog Centre, 1st Floor, Wakdewadi, Pune 1

6. The State of Maharashtra ..Respondents

WITH WRIT PETITION (ST) NO. 3339 of 2020

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, residing at Wadve Complex, Chakan, Taluka Khjed, District Pune .. Petitioner

v/s.

1. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

2. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

3. The State of Maharashtra

4. Nana Soma Kale Age Adult, Occ: Agriculturist Res. at Ambethan, Taluka Khed, District Pune ..Respondents

WITH WRIT PETITION NO. 1445 OF 2020

pps 2 of 139 TRIBAL WP ST 1338 -20.doc

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, Both residing at Wadve Complex, Chakan, Taluka Khjed, District Pune .. Petitioner

v/s.

1. Maniram Namdeo Kale, residing at Wadgaon, Ghenand Road, Near Vishranwad, Charoli Khurd, Taluka Khed, District Pune.

2. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

3. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

4. The State of Maharashtra ..Respondents

WITH WRIT PETITION (ST) NO. 2791 OF 2020

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, residing at Wadve Complex, Chakan, Taluka Khjed, District Pune .. Petitioner

v/s.

pps 3 of 139 TRIBAL WP ST 1338 -20.doc

1. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

2. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

3. The State of Maharashtra

4. Somaji Janku Pardhi res. at Thakar Vasti, Ambethan, Taluka Khed, District Pune. ..Respondents

WITH WRIT PETITION (ST) NO. 2794 OF 2020

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, residing at Wadve Complex, Chakan, Taluka Khjed, District Pune. .. Petitioner

v/s.

1. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

pps 4 of 139 TRIBAL WP ST 1338 -20.doc

2. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

3. The State of Maharashtra

4. Baban Raoji Thakar (since deceased) 4a. Navnath Baban Thakar 4b. Hausabai Baban Thakar 4c. Sangeeta Baban Thakar 4d. Bharti Somnath Keval all residing at Kadachi Vadi Taluka Khed, District Pune. ..Respondents

WITH WRIT PETITION (ST) NO. 2796 OF 2020

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, residing at Wadve Complex, Chakan, Taluka Khjed, District Pune. .. Petitioner

v/s.

1. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

2. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

pps 5 of 139 TRIBAL WP ST 1338 -20.doc

3. The State of Maharashtra

4. Baban Laxman Pardhi (since deceased) 4a. Shanataram Baban Pardhi 4b. Shivram Baban Pardhi 4c. Hausabai Shivram Khande 4e. Saibai Baban Pardhi all res. at Vaki Khurd, Taluka Khed, District Pune. ..Respondents

WITH WRIT PETITION NO.1973 OF 2020

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, residing at Wadve Complex, Chakan, Taluka Khjed, District Pune. .. Petitioner

v/s.

1. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

2. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

3. The State of Maharashtra

4. Dadabhau Yashwant Kale (since deceased) 4a. Ashok Dadabhau Kale 4b. Ramdas Dadabhau Kale 4c. Sandeep Dadabhau Kale 4d. Bhagubai Dadabhau Kale

pps 6 of 139 TRIBAL WP ST 1338 -20.doc

4e. Borabai Dattatray Jadhav

5. Balaji Yashwant Kale

6. Baydabai Yashwant Kale

7. Sulabai Shivram Pardhi all res. at Ambethkhan, Taluka Khed, District Pune. ..Respondents

WITH WRIT PETITION (ST) NO. 2799 OF 2020

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, residing at Wadve Complex, Chakan, Taluka Khjed, District Pune. .. Petitioner

v/s.

1. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

2. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

3. The State of Maharashtra

4. Rakhma Tauji Pardhi (since deceased) Through legal heirs 4a. Babaji Rakhma Pardhi 4b. Bayjabai Dattu Khande 4c. Bhaghubai Rakhma Pardhi

pps 7 of 139 TRIBAL WP ST 1338 -20.doc

all res. at Waki Khurd, Taluka Khed, District Pune. ..Respondents

WITH WRIT PETITION (ST) NO. 2800 OF 2020

1. Gautamsheth Kisan Wadve, Age 56 years, Occ: Agriculture, residing at Wadve Complex, Chakan, Taluka Khjed, District Pune. .. Petitioner

v/s.

1. SDO, Khed, Rajguru Nagar Division, having Office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune and having e mail sdokhed111@gmail.com

2. Maharshtra Industrial Development Corporation, through its CEO, having office at Jog Centre, 1st Floor, Wakdewadi, Pune 1

3. The State of Maharashtra

4. Balu Barku Kale Age Adult, Occ: Agriculturist res. at Waki Khurd Taluka Khed, District Pune.

5. Yamunabai Lakshman Kedari Age Adult, Occ: Agriculturist res. at Waki Khurd Taluka Khed, District Pune. ..Respondents

WITH WRIT PETITION NO.2798 OF 2020

pps 8 of 139 TRIBAL WP ST 1338 -20.doc

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1

3. The State of Maharashtra

4. Jaywant Shankar Kale, since deceased Through his Legal Heirs 4a. Rajaram Jaywant Kale Age: 43 Yrs., Occ: Agriculture 4b. Lalaji Jaywant Kale, since deceased Through his legal heirs 4b.(1) Deepak Lalaji Kale Age: 26 Yrs., Occ.: Agriculture 4b.(2) Sandip Lalaji Kale Age: 21 Yrs., Occ.: Agriculture 4b.(3) Baydabai Lalaji Kale Age: 41 Yrs., Occ.: Household 4c. Mangal Sanjay Pardhi Age: 37 Yrs., Occ.: Household 4d. Hirabai Jaywant Kale Age: 66 Yrs., Occ.: Household All R/at Vaki, Budruk,

pps 9 of 139 TRIBAL WP ST 1338 -20.doc

Tal.: Khed, Dist.: Pune ...Respondents

WITH WRIT PETITION (ST) NO. 2940 OF 2020

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune, ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune . And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1.

3. The State of Maharashtra

4. Tavji Muktaji Thakar Residing at - Thakar vasti, Ambethan, Taluka Khed, District Pune. ....Respondents

WITH WRIT PETITION (ST) NO.2801 OF 2020

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune, ....Petitioner

pps 10 of 139 TRIBAL WP ST 1338 -20.doc

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1.

3. The State of Maharashtra

4. Baban Taytaba Thakar Residing at - Thakar vasti, Nanekarwadi, Taluka Khed, District Pune. ....Respondents

WITH WRIT PETITION (ST) NO.710 OF 2020

1. Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist

2. Chandrakant Mayaram Pardeshi Age 59 years, Occ. Agriculturist Both residing at Wadve Complex, Chakan, Taluka Khed, District Pune ....Petitioners

Versus

1. Gangaram Govind Thakar Age Major, Occ. Agriculturist

2. Rajaram Govind Thakar

pps 11 of 139 TRIBAL WP ST 1338 -20.doc

Age Major, Occ. Agriculturist Both residing at Waki, Khurd Taluka Khed, District Pune

3. SDO, Khed, Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed District Pune. And having email sdokhed111@gmail.com

4. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1

5. The State of Maharashtra ....Respondents

WITH WRIT PETITION (ST) NO.2795 OF 2020

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune. And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation

pps 12 of 139 TRIBAL WP ST 1338 -20.doc

Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1.

3. The State of Maharashtra

4. Gopal Namdeo Kale Residing at - Wadgaon Ghenand Road, Near Vishrantwad, Charoli Khurd, Taluka Khed, District Pune. ....Respondents

WITH WRIT PETITION (ST) NO.2798 OF 2020

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune. And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1.

3. The State of Maharashtra

4. Nana Tukaram Kale Since Deceased Through its Legal Heirs Tanhaji Tukaram Kale

pps 13 of 139 TRIBAL WP ST 1338 -20.doc

Residing at - Wadgaon Ghenand Road, Near Vishrantwad, Charoli Khurd, Taluka Khed, District Pune. ....Respondents

WITH WRIT PETITION (ST) NO.2790 OF 2020

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune. And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1.

3. The State of Maharashtra

4. Laxman Taytaba Thakar Residing at - Thakar vasti, Ambethan, Taluka Khed, District Pune. ....Respondents

WITH WRIT PETITION (ST) NO.4535 OF 2020

Gautamsheth Kisan Wadve

pps 14 of 139 TRIBAL WP ST 1338 -20.doc

Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune. And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1

3. The State of Maharashtra

4. Bajaba Tavji Pardhi, since deceased Through his Legal Heirs 4a. Bapu Bajaba Pardhi 4b. Gopinath Bajaba Pardhi 4c. Kantabai Bajaba Pardhi 4d. Jijabai Kaluram Khande 4e. Gayabai Shivraj Sapre 4f. Mukktabai Bajaba Pardhi 4g. Yogesh Baliram Pardhi 4h. Sunil Baliram Pardhi 4i. Anita Surekh Khandve 4j. Phulabai Baliram Pardhi All residing at Vaki, Khurd, Tal.: Khed, Dist: Pune ....Respondents

WITH WRIT PETITION (ST) NO.4538 OF 2020

Gautamsheth Kisan Wadve

pps 15 of 139 TRIBAL WP ST 1338 -20.doc

Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1

3. The State of Maharashtra

4. Bayjabai Amruta Thakar Age: 54 yrs., Occ.: Household

5. Suresh Amruta Thakar Age: 20 yrs., Occ.: Household

6. Manisha Shivaji Kadale Age: 34 yrs., Occ.: Household

7. Tai Amruta Thakar Age: 29 yrs., Occ.: Household

8. Sunita Amruta Thakar Age: 23 yrs., Occ.: Household

9. Anita Amruta Thakar Age: 22 yrs., Occ.: Household All R/at Thakarwasti, Nanekarwadi, Tal.: Khed, Dist: Pune ....Respondents

pps 16 of 139 TRIBAL WP ST 1338 -20.doc

WITH WRIT PETITION (ST.) NO. 4539 OF 2020

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune. And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1

3. The State of Maharashtra

4. Balwant Krushna @ Kisan Kale (since deceased through Legal Heirs 4a. Rajaram Balwant Kale Age: Adult, Occ.: Agriculture 4b. Babulal Balwant Kale Age: Adult, Occ.: Agriculture 4c. Tai Kisan Kale Age: Adult, Occ.: Household 4d. Tarabai Balwant Kale Age: Adult, Occ.: Household

5. Maruti Kisan @ Krushna Kale Age: Adult, Occ.: Agriculture

pps 17 of 139 TRIBAL WP ST 1338 -20.doc

6. Dwarkabai Balu Mengale Age: Adult, Occ.: Household All residing at Kadachi Wadi, Tal.: Khed, Dist: Pune ...Respondents

WITH WRIT PETITION (ST) NO.4540 OF 2020

Gautamsheth Kisan Wadve Age 56 years, Occ. Agriculturist Residing at-Wadve Complex, Chakan, Taluka Khed, District Pune, ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed, District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1

3. The State of Maharashtra

4. Nana Soma Kale Residing at- Ambethan, Taluka Khed, District Pune ....Respondents

WITH WRIT PETITION (ST) NO. 3236 OF 2020

Sachin Gautamsheth Wadve Age 33 years, Occ. Agriculturist Residing at Wadve Complex,

pps 18 of 139 TRIBAL WP ST 1338 -20.doc

Chakan, Taluka Khed, District Pune. ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 1

3. The State of Maharashtra

4. Mayaram Shripati Kale Age Adult, Occ. Agriculturist

5. Fattu alias Falu Shripati Kale Age Adult, Occ. Agriculturist

6. Dadu Shripati Kale Age Adult, Occ. Agriculturist

7. Sababai Jaywant Kale Age Adult, Occ. Housewife

8. Indubai Bhika Bhalekar Age Adult, Occ. Housewife

9. Bayjabai Damu Kedari Age Adult, Occ. Housewife All Residing at- Thakar Vasti, Ambethan, Tal. Khed, Pune.

10. Gautamsheth Kisan Wadve

pps 19 of 139 TRIBAL WP ST 1338 -20.doc

Residing at Wadve Complex, Chakan, Taluka Khed, District Pune ....Respondents

WITH WRIT PETITION (ST.) NO. ASDB-CH-1 OF 2020

Ramindrasingh Surendrasingh Narang Age 45 years, Occ. Agriculturist Residing at Rasta Peth, Cycle Society, Pune 411011 ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 411 001

3. Collector, Pune Having address at Collector Office, Pune - 411 001.

4. The State of Maharashtra

5. Kisan Rama Shinde Age : Adult, Occ : Agriculturist, R/at. Thakar Wasti, Rohkal, Tal. Khed, Dist. Pune.

6. Sanjay Vishnu Nanekar Age. 50 yrs, Occ.: Agriculturist, R/at : Nanekar Wadi, Chakan,

pps 20 of 139 TRIBAL WP ST 1338 -20.doc

Tal. : Khed, Dist.: Pune

7. Anil Digambar Kad Age: 45 yrs, Occ.: Agriculturist, R/at : Waki Budruk, Tal.: Khed, Dist. Pune.

WITH WRIT PETITION (ST.) NO. ASDB-CH-2 OF 2020

Ramindrasingh Surendrasingh Narang Age 45 years, Occ. Agriculturist Residing at Rasta Peth, Cycle Society, Pune 411011 ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 411 001

3. Collector, Pune Having address at Collector Office, Pune - 411 001.

4. The State of Maharashtra

5. Punhaji Umaji Shinde Age : Adult, Occ.: Agriculturist, R/at : Thakar Wasti, Rohkal, Tal.: Khed, Dist. : Pune.

pps 21 of 139 TRIBAL WP ST 1338 -20.doc

6. Sanjay Vishnu Nanekar Age : 50 yrs, Occ : Agriculturist, R/at : Nanekar Wadi, Chakan, Tal.: Khed, Dist.: Pune.

7. Anil Digambar Kad Age : 45 yrs, Occ. : Agriculturist, R/at : Waki Budruk, Tal.: Khed, Dist. Pune.

WITH WRIT PETITION (ST.) NO. ASDB-CH-3 OF 2020

Pritamkaur Surendrasingh Narang Age 72 years, Occ. Housewife & Agriculturist, Residing at Rasta Peth, Cycle Society, Pune 411011 ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed District Pune And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 411 001

3. Collector, Pune Having address at Collector Office, Pune - 411 001.

4. The State of Maharashtra

5. Babu Raghu Shinde (since

pps 22 of 139 TRIBAL WP ST 1338 -20.doc

deceased through) :

a) Chandrakant Babu Shinde Age : Adult, Occ : Agriculturist,

b) Vasant Babu Shinde Age : Adult, Occ : Agriculturist,

c) Vilas Babu Shinde Age : Adult, Occ : Agriculturist,

d) Sonabai Babu Shinde Age : Adult, Occ : Agriculturist, R/at : Thakar Wasti, Rohkal, Tal. Khed, Dist. : Pune.

6) Dattaraj Madhukar Wafgaonkar Age : 55 yrs, Occ. : Agriculturist, R/at : Bajarpeth, Chakan, Tal. Khed, Dist. Pune.

7) Anil Digambar Kad Age : 45 yrs, Occ. : Agriculturist, R/at : Waki Budruk, Tal. : Khed, Dist : Pune.

WITH WRIT PETITION (ST.) NO. ASDB-CH-4 OF 2020

Pritamkaur Surendrasingh Narang Age 72 years, Occ. Housewife & Agriculturist, Residing at Rasta Peth, Cycle Society, Pune 411011 ....Petitioner

Versus

1. SDO, Khed Rajguru Nagar Division Having office at Wada Road, Rajguru Nagar, Taluka Khed District Pune

pps 23 of 139 TRIBAL WP ST 1338 -20.doc

And having email sdokhed111@gmail.com

2. Maharashtra Industrial Development Corporation Through his CEO, having office Jog Centre, 1st Floor, Wakdewadi Pune - 411 001

3. Collector, Pune Having address at Collector Office, Pune - 411 001.

4. The State of Maharashtra

5. Dadabhau Sitaram Bhangre Age. : Adult, Occ. : Agriculturist, R/at : Thakar Wasti, Rohkal, Tal. Khed, Dist. Pune.

6. Dattaraj Madhukar Wafgaonkar Age. 55 yrs, Occ. Agriculturist, R/at : Bajarpeth, Chakan, Tal. Khed, Dist. Pune.

7. Anil Digambar Kad Age. 45 yrs, Occ. Agriculturist, R/at : Waki Budruk, Tal. Khed, Dist. Pune. .Respondents

------------------

Mr. C.M.Korde, Sr. Advocate a/w. Mr. Shriram Kulkarni i/b. Mr.Chaitanya Nikte for the Petitioner in WP/1445/2020.

Mr. Shriram Kulkarni i/b. Mr. Chaitanya Nikte for the Petitioner in WP/ST/1338/2020, WP/ST/3339/2020, WP/ST/2791/2020, WP/1973/2020, WP/ST/2794/2020, WP/ST/2796/2020, WP/2799/2020, WP/2800/2020.

Mr. Surel Shah i/b. Mr. Chaitanya Nikte for the Petitioners in WP/St/2791/2020, WP/ST/2794/2020, WP/ST/2796/2020,

pps 24 of 139 TRIBAL WP ST 1338 -20.doc

WP/1973/2020, WP/ST/2799/2020, WP/ST/2800/2020 and WP/ST/2795/2020.

Mr. Mayur Khandeparkar i/b. Mr. Chaitanya Nikte for the Petitioners in WP/ST/2798/2020, WP/ST/4539/2020.

Mr. Ajinkya Udane for the Petitioners in WP/ST/3339/2020.

Mr. Sandesh D. Patil with Mr. Pavan S. Patil for Respondent No.1 in WP/ST/1338/2020, for Respondent No.4 in WP/ST/2791/2020, for Respondent Nos.4(a) to 4(d) in WP/ST/2794/2020, for Respondent Nos.4(a) to 4(e) inWP/ST/2796/2020 and WP/1973/2020, for Respondent Nos.4(a) to 4(c) in WP/ ST/2799/2020, for Respondent Nos.4 and 5 in WP/ST/2800/2020, for Respondent No.4 in WP/ST/2801/2020, WP/ST/2795/2020, WP/ST/2798/2020, WP/ST/4538/2020 and for the Respondent Nos .4 to 9 in WP/ST/3236/ 2020.

Mr. Pawan S. Patil for the Contesting Respondents in WP/ST/ 3339/2020 and WP/ST/ 2800/2020, WPST-ASDB-CH-1-2020, WPST-ASDB-CH-2-2020, WPST-ASDB-CH-3-2020, for Respondent No.5 in WPST-ASDB-CH-3-2020 and for Respondent Nos.1 and 2 in WP/ST/710/2020.

Mr. Drupad Patil i/b. Mr. Pawan S. Patil for the Respondent No.1. in WP/1445/2020.

Mr. Surel Shah i/b. Prasad Sarvankar for the Respondent No.3 in WP/ST/1338/2020.

Mr. Ankur Pahade i/b. Jay & Co. for the Respondent-MIDC in WP/ ST/1338/2020, WP/ST/3339/2020, WP/1445/2020 and WP/ST/2791/2020.

Mr. S.B.Kalel, AGP for the Respondent Nos.4 and 6 in WP/ST/1338/2020 and WP/ST/2791/2020, WP/ST/ASDB/CH-1- 2020, WP/ST/ASDB/CH-2-2020, WP/ST/ASDB/CH-3-2020, WP/ ST/ASDB/CH-4-2020.

Mr. R.P.Kadam, AGP for the State in WP/ST/3339/2020, WP/ST/2794/2020 and WP/ST/2796/2020.

pps 25 of 139 TRIBAL WP ST 1338 -20.doc

Mr. C.D. Mali, AGP for the State in WP/1973/2020, WP/2799/2020 and WP/2800/2020.

Ms.P.N.Diwan, AGP for the Respondent- State in WP/1445/2020, WPST/2798/2020, WPST/2790/2020, WPST/4535/2020, WPST/4538/2020, WPST/4539/2020, WPST/4540/2020, WPST/3236/2020.. Mr. M.M. Pable, AGP for the Respondent-State in WP/2791/2020, WPST/2794/2020, WP/ST/2795/2020 WPST/2796/2020, WP/ST/2940/2020, WPST/2801/2020, and WP/ST/710/2020 . CORAM : A.A.SAYED & ANUJA PRABHUDESSAI, JJ. RESERVED ON : 8th JULY, 2020. DATED : 29th JULY, 2020.

JUDGMENT (PER ANUJA PRABHUDESSAI, J.) :

1. All these Petitions involve identical issues and are being

disposed of by this common Judgment and Order.

2. The Petitioners have questioned the legality and validity of

the orders passed by the SDO rejecting their applications for

payment of compensation. The Petitioners have also prayed for a

writ of mandamus directing the SDO to refer the dispute to the

Competent Court and to deposit the compensation in the said Court.

3. The State of Maharashtra proposed to develop the lands

situated in villages Rohkal and Ambethan, Taluka Khed, Pune

District as Chakan Industrial Area, phase 5. By notification dated

pps 26 of 139 TRIBAL WP ST 1338 -20.doc

20.09.2003, issued in exercise of powers under Section 1(3) of the

Maharashtra Industrial Development Act, 1961, hereinafter referred

to as the MID Act, the provisions of Chapter VI of the MID Act

were made applicable with effect from 23.03.2005 to the lands as

notified and declared to be industrial area. Notification under

Section 32(2) of the MID Act was published in the Government

Gazette dated 03.05.2007. Notices were also served upon the

owners/interested persons to show cause why the proposed lands

should not be acquired for industrial purpose. Upon complying with

the mandatory procedure of personal hearing, notification dated

08.06.2017 under Section 32(1) of the MID Act came to be

published in the Government Gazettes dated 8 to 14 June 2017,

thereby vesting the said lands in the government free from all

encumbrances on and from the date of such publication. In

accordance with agreements between the State Government and the

concerned Owners/Occupants, the Sub-Divisional Officer, Khed

(SDO) vide Awards dated 16.09.2019 and 27.12.2019 determined

compensation of the acquired land @ Rs.1,37,50,000/- per hector.

4. The Petitioners filed Applications/Objections before the SDO

and claimed that the Occupants of the subject lands had assigned

pps 27 of 139 TRIBAL WP ST 1338 -20.doc

the right to receive compensation in their favour and that they have

filed Suits for specific performance. The Petitioners also brought to

the notice of the SDO that one of the Suits has been disposed of by

the Lok Adalat Award, some are decreed on merits and others are

pending adjudication. The Petitioners claimed that they are entitled

to receive the entire compensation by virtue of the said agreements,

Lok Adalat Award and Judgments passed by the Civil Court. The

Petitioners therefore prayed that the compensation be paid to them

or in the alternative to refer the dispute to the competent Court and

to deposit the amount of compensation in the Court.

5. The SDO, upon hearing the respective parties, held that the

land belongs to the tribals and the same cannot be transferred in

favour of a non-tribal without prior sanction of the Collector and

approval of the State Government as contemplated under Section

36A of the Maharashtra Land Revenue Code ( MLRC). The

learned SDO further held that the jurisdiction of the Civil Court to

decide the issue is barred under Section 10 of Maharashtra

Restoration of Land to Schedule Tribes Act, 1974 . The learned

SDO has further held that transfer of the subject land pending

acquisition under the provisions of MIDC was prohibited as per the

pps 28 of 139 TRIBAL WP ST 1338 -20.doc

mutation entries made in the Revenue Record. The learned SDO

held that the provisions of Section 35 of MIDC were not applicable

and hence rejected the Applications/Objections filed by the

Petitioners and ordered payment of compensation to the Occupants.

Being aggrieved by the order of the SDO, the Petitioners have

invoked the writ jurisdiction of this Court.

6. The Petitioners claim that they have entered into Agreements

for Sale/ Development Agreements with the Occupants of the

subject land, who were desirous of selling the land due to financial

constraints. The Occupants had also agreed that in the event of the

acquisition of the land by the MIDC, the Petitioners would have

right to receive the compensation and other acquisition benefits.

The Petitioners contend that since the land was allotted under new

and restricted tenure, the transfer of the subject land was subject to

certain restrictions and sanction from the Competent Authority. The

Petitioners claim that despite receipt of substantial consideration,

the Occupants did not obtain prior permission and did not take steps

to conclude the transfer. Hence, they were compelled to file Suits

to enforce the terms and conditions of the agreements and for order

of payment of the compensation.

pps 29 of 139 TRIBAL WP ST 1338 -20.doc

7. The Civil Suit No. 236 of 2016 which relates to the

WP/ST/3339/2020, has been disposed of by the Award of Lok

Adalat dated 08.07.2017 according to mutually agreed terms of

compromise. Whereas, by Judgments and Decrees dated 23.04.2018

the Suits for specific performance relating to Development

Agreements in WP/1445/2020, WP/1973/2020, WP/ST/2800/2020,

WP/ST/2795/2020, WP/ST/2798/2020, and WP/ST/4535/2020

have been decreed on merits, execution of which has been stayed

by the Appellate Court pending hearing of the Appeals. Suits

relating to other Petitions are pending adjudication before the Civil

Court.

8. The Petitioners claim that they are entitled to receive the

entire compensation in view of a specific clause in the Agreements

for Sale/ Development Agreements, assigning right to receive

compensation, as well as by virtue of the Award/ Judgments and

Decrees passed by the Civil Court. The Petitioners claim that the

SDO, Khed, was bound by the Award and the Judgments of the

Civil Court. He has erred in invoking provisions under Section 10

of the Maharashtra Restoration of Land to Schedule Tribes Act,

pps 30 of 139 TRIBAL WP ST 1338 -20.doc

1974, and has exceed his jurisdiction by questioning the legality of

the judgments of the Civil Court. The Petitioners have also

questioned the jurisdiction of the SDO in adjudicating the dispute

inter se between the parties. It is contended that the only option

available to the SDO was to refer the dispute to the competent Civil

Court and to deposit the compensation in the said Court as

mandated by Section 36 of the MID Act.

9. The Occupant Kisan Kale, (Respondent No.1 in

WP/ST/1338/2020) has filed his affidavit-in-reply wherein he has

stated that he was not aware of the Agreement for Sale executed by

the Respondent No.3 (POA) in favour of the Petitioner. He has

stated that the Respondent No.3 has not paid to them Rs.5,00,000/-

being part consideration allegedly received from the Petitioners.

He has further stated that the land was purchased by him under the

provisions of Section 32(G) of Bombay Tenancy and Agricultural

Lands Act, 1948 (BTAL Act) and hence there was restriction on

transfer of the land under Section 43 of the BTAL Act. He has

further stated that he is an Adivasi belonging to Thakkar

community and hence the transfer of occupancy was subject to

prior sanction of the Collector and approval of the State

pps 31 of 139 TRIBAL WP ST 1338 -20.doc

Government in terms of Section 36A of the MLRC. He has stated

that the Petitioners are not entitled to claim compensation on the

basis of an unregistered and unstamped agreement, which has been

executed by the Respondent No.3 as a Power of Attorney, without

his knowledge and consent.

10. Sanjay Baburao Teli, SDO, Khed, has filed his affidavit

stating that the subject land was purchased by the Occupants in WP/

ST/1338/2020 under the provisions of Section 32G of the BTAL

Act, and that the transfer of such land is subject to previous

sanction of the Collector. The subject land in the other group of

matters, was owned by the Government. By Order dated

16.03.1976 the said land was allotted to the Occupants-the landless

tribals, under the provisions of Section 20 and 21 of MLRC, on new

and restricted tenure. He has stated that the transfer of an

occupancy of the said land is subject to previous sanction of the

Collector and approval of the State Government under Section 36A

of the MLRC. He has stated that the Petitioner has entered into

agreements with the Occupants without obtaining prior sanction

under Section 36A of the MLRC. He has further stated that the

order of the Civil Court is not enforceable in view of the bar under

pps 32 of 139 TRIBAL WP ST 1338 -20.doc

Section 36(C) of the MLRC. It is stated that referring the dispute to

the Civil Court would be against public policy and would deprive

the tribals of their legitimate claim.

11. Earlier when the Petitions were posted for orders, Shri Pawan

Patil who had represented the Occupant in WP/ST/3339/2020

sought discharge and Shri Ajinkya Udane put in his appearance for

the said Occupant. A praecipe came to be filed stating that the

parties in WP/ST/3339/2020 have settled the dispute amicably. A

copy of the consent terms was placed on record with a prayer to

dispose of the Petition as per the consent terms.

12. We have perused the consent terms filed by the parties in WP/

ST/3339/2020. In our considered view, the consent terms are

opposed to law and public policy, for detail reasons, which are

elaborated hereinafter. We therefore declined to put a seal of

approval to a compromise between the parties and heard all the

Petitions on merits.

13. Submissions on behalf of the Petitioners can be summarized

as under:-

pps 33 of 139 TRIBAL WP ST 1338 -20.doc

(i) Prior sanction under Section 36A of MLRC is required only

when occupancy of a tribal is transferred to a non-tribal. It is

submitted that the Occupants had not disclosed that they were

tribals. Their claim has not been verified by the Caste Scrutiny

Committee. Under the circumstances, the learned SDO was not

justified in holding that the Occupants are tribals and further that

the agreements are not enforceable and /or are void for want of

prior sanction under Section 36A of MLRC.

(ii) The Agreement for Sale or assignment of right to receive

compensation is not void as the bar under Section 36 of the MLRC

and 43 of BTAL is attracted only at the stage of transfer of

occupancy or execution of the Deed of Conveyance. Reliance is

placed on the decision of the learned Single Judge of this Court in

Kalandi Baburao Raut & Ors. vs. Dattu Damu Thakare 2008

SCC Online Bom. 553.

(iii) The respective Occupants have entered into agreements with

the Petitioner, by virtue of which they have not only agreed to

transfer the subject land but have also assigned right to receive

compensation and other benefits arising from the land acquisition.

Relying upon the decision of the Delhi High Court in Sadhana

Gupta & Ors. vs. Shishpal & Anr. (2016) SCC Online Delhi 3810

pps 34 of 139 TRIBAL WP ST 1338 -20.doc

and the decision of the Allahabad High Court in Soran Singh V/s.

Collector, Agra & Ors. MANU/UP/2991/2018, it is submitted that

assignment of the right to receive compensation or enhancement

thereof in accordance with the provision of the Land Acquisition

Act does not fall under Clause (e) of Section 6 of the Transfer of

Property Act, which prohibits transfer of right to sue. It is

submitted that compensation payable under the provisions of the

Land Acquisition Act is "property" which is transferable under the

provisions of the Transfer of Property Act.

(iv) Right to receive compensation is an independent and distinct

right. Transfer of such right does not amount to transfer of

'occupancy' within the meaning of Section 2(22) of MLRC as to

attract restrictions under Section 36A of MLRC.

(v) Relying upon the decision of this Court in Dossibai

Nanabhoy Jeejeebhoy vs. P.M.Bharucha 1958 (60) Bom. LR

1208, it is contended that the "person interested" in the land under

Section 9 of Land Acquisition Act would include a person who

claims interest in compensation to be paid on account of acquisition

of land. The right to receive compensation is not restricted to those

persons who have legal or propriety interest in the land and is

available to all those who have right or claim to land even if such

pps 35 of 139 TRIBAL WP ST 1338 -20.doc

right or claim does not amount to legal or proprietary estate or

interest in the land.

(vi) The Petitioner in WP/ST/3339/2020 is entitled to receive

compensation as per the Award of the Lok Adalat and the

Petitioners in WP/1445/2020, WP/1973/2020, WP/ST/2800/2020,

WP/ST/2795/2020, WP/ST/2798/2020, and WP/ST/4535/2020 are

entitled for compensation as per the Judgments and Decrees of the

Civil Court.

(vii) The Award/Decrees have been passed by the Court of

competent jurisdiction. Relying on the decision of the Apex Court

in Balwant Viswamitra & Ors. vs. Yadav Sadashiv Mule (2004) 8

SCC 706 it is contended that there is distinction between a decree

which is void and a decree which is erroneous in law or on facts. It

is submitted that an erroneous, illegal or irregular decree is not void

and is binding on parties till it is set aside in an Appeal, Revision or

other appropriate proceedings.

(viii) The Civil Court has recorded categorical findings of facts that

the agreements have been validly executed and that the Occupants

have not been able to prove fraud. The Occupants have not

produced caste certificate in support of their claim of being

Adivasis or tribals and have thus failed to prove that the agreements

pps 36 of 139 TRIBAL WP ST 1338 -20.doc

are void or illegal in context of bar under Section 36A of MLRC.

The Civil Court was competent to decide a jurisdictional fact and

the adjudication on facts in issue was not without jurisdiction.

(ix) It is submitted that the Collector is not competent to enforce the

contract or to grant alternative relief hence the bar under Section

36C the MLRC is not applicable. Reliance is placed on Shiv

Ganesh Co-operative Housing Society vs. Lokhandwala

Infrastructure Pvt. Ltd. & Ors. (Appeal (St) No.769 of 2014).

(x) The SDO has exceeded his jurisdiction in questioning the

legality of the decision of the Civil Court. Reliance is also placed

on the decision of the learned Single Judge of this Court in

Lokhandwala Infrastructure Pvt. Ltd. vs. Dhobighat Compound

Rahivasi Seva Sangh & Ors. (Notice of Motion No.1516 of 2011

in Suit No.1108 of 2011).

(xi) It is submitted that sanction under Section 36A of MLRC or

43 of BTAL was not a prerequisite for filing a Suit for specific

performance. The Petitioners can always apply and obtain such

sanction as a fallout of the Decree/Judgment, or in execution under

Order 21 Rule 35 of the Code of Civil Procedure, at any time prior

to execution of the sale deed. That apart, the question whether any

sanction is necessary or not is itself pending adjudication before the

pps 37 of 139 TRIBAL WP ST 1338 -20.doc

Appellate Court.

(xii) Relying upon the judgments of the Apex Court in Urmila

Devi and Ors. vs. Deity Mandir Shree Chamunda Devi and Ors.

(2018) 2 SCC 284 and Jagdish Singh vs. Nathu Singh (1992) 1

SCC 647, it is submitted that even if a contract becomes incapable

of specific performance due to acquisition of the subject land,

Section 21 of Specific Relief Act enables Award of compensation in

lieu and substitution of specific performance.

(xiii) There is no reference to the order dated 31.10.2014 in the

impugned order. As such the Respondents cannot supplement

reasons to support the impugned orders as held by the Apex Court

in the case of Mahinder Singh Gill vs. Chief Election

Commissioner (1978) 1 SCC 405 and reaffirmed in T.P. Senkumar

vs. Union of India & Ors. (2017) 6 SCC 801.

(xiv) Bar under Section 10 of Maharashtra Restoration of Lands to

Schedule Tribes Act, 1974 (MRLST) is attracted only in context of

issues which could be decided by the Authority under the MRLST

Act. Such Authority cannot possibly pass a decree of specific

performance. Hence, the jurisdiction of the Civil Court in passing a

decree for specific performance is not barred under Section 10 of

the MRLST Act.

pps 38 of 139 TRIBAL WP ST 1338 -20.doc

(xv) The jurisdiction of SDO is circumscribed by Sections 33 to 36

of the MID Act. He cannot sit in appeal over the judgment of a

Civil Court. He cannot comment upon the findings rendered by a

Civil Court or question validity of the judgment.

(xvi) Mr. Korde and Mr. Kulkarni have submitted that the matter

involves several complex legal issues viz. (a) whether the clause

relating to transfer of compensation is an independent agreement;

(b) whether such transfer requires prior sanction under Section 36A;

(c) legal effect of order dated 31.10.2014 whereby possession was

restored to the Occupants etc. The SDO was not competent to

decide these issues. Hence, it was mandatory for the SDO to make a

reference to the civil court. Reliance is placed on the decisions in (i)

Dr.G.H.Grant Vs. State of Bihar AIR 1966 SC 237; (ii) State of

Uttar Pradesh vs. Jogendra Singh (1964) 2 SCR 197; (iii)

Kuchilal Rameshwar Ashram Trust evam Anna Kshetra Trust vs.

Collector Haridwar & Ors. (2017) SCC 418; (iv) Meher Rusi

Dalal vs. Union of India & Ors. (2004) 7 SCC 354;(v) Mohandevi

Sohanlal Jhawar vs. Special Land Acquisition Officer 2002 (3)

Mh.L.J. 820. (vi) Dnyaneshwar Tarde vs. State of Maharashtra

2002 (2) Mh.L.J. 612; (vii) Special Land Acquisition Officer,

Girna Project, Nashik vs. Bhogilal Lalchand 1971 Mh.L.J. 106;

pps 39 of 139 TRIBAL WP ST 1338 -20.doc

(viii) Sakhubai @ Shakuntalabai Chopde vs National Thermal

Power Corporation 2012 (4) Mh.L.J. 147; (ix) Arulmughu

Laxmainarsimha Swami vs. Union of India (1996) 6 SCC 408.

(xvii)Mr. Mayur Khandeparkar submits that Section 34 is not

exhaustive. It can be resorted to only by a person aggrieved by the

decision of the Collector in determining the amount of

compensation.

(xviii) Section 35 is independent of Section 34(1) & (2). The word

"may" in Section 35 has to be read as "shall" only when there is a

dispute between the parties as regards apportionment of

compensation or to whom it is payable and no suit is pending in any

court. In cases where suit is already pending there is no reason to

make a reference but in such cases, it is mandatory for SDO to

deposit the compensation in the Court where such dispute is

pending.

(xix) Mr. Surel Shah however contends that recourse to Section 34

can be taken not only by a party aggrieved by determination of

compensation but also when there is dispute as to apportionment of

compensation or to whom it is payable.

(xx) He submits that the word "may" in Section 35 has to be read as

pps 40 of 139 TRIBAL WP ST 1338 -20.doc

"shall" and it is mandatory for SDO to refer the dispute to the Civil

Court and to deposit the compensation before that said Court.

(xxi) He contends that Section 34 and 35 of the MID Act are not

pari materia with Section 18 and 30 of the Land Acquisition Act.

Hence the law declared by the Hon'ble Apex Court and the High

Courts in so far as Section 30 being discretionary is not applicable

to Section 35 of the MID Act. What is pari materia has been

explained by the Apex Court in the case of Bangalore Turf Club

Ltd. vs. Regional Director , Employees State Insurance

Corporation (2014) 9 SCC 657.

(xxii) It is also submitted that the Petitioners had pre-existing right

and they had raised objections on 30.8.2019 and had claimed right

to receive the entire compensation, much prior to the Award. Since

the Petitioners had raised a dispute much prior to the Award, the

learned SDO was duty bound to hear the Petitioners before finally

determining the compensation in terms of Section 33(4) of the MID

Act.

(xxiii) He submits that considering the award/ judgments of the

Civil Court in favour of the Petitioners and pendency of civil Suits/

Appeals, it was mandatory for the SDO to refer the dispute to the

Competent Court and to deposit the compensation before the said

pps 41 of 139 TRIBAL WP ST 1338 -20.doc

Court.

(xxiv) The Petitioners are persons aggrieved and as abundant

caution they had filed applications dated 13.1.2020 for reference

under Section 34 of the MID Act. It is stated that once an

application had been made satisfying the requirement of Section 34,

the SDO had no discretion in the matter and he had to make a

reference to the Civil Court to adjudicate the dispute.

14. In response to the submissions, the learned Counsel for the

Respondents have submitted as under : -

(i) The Revenue entries record that the transfer of the land was

subject to restrictions under Section 36 MLRC and 43 of the BTAL

Act. The Petitioners had not obtained sanction under Section 36A

MLRC, which imposes prohibition on transfer of occupancy of a

tribal in favour of a non-tribal without prior sanction of the

Collector and approval of the State Government.

(ii) The transfer of tribal land by virtue of Development

Agreement, without prior sanction is void. Reliance is placed on

the decision of the Apex Court in Rajasthan Housing Board vs.

New Pink City Nirman Sahakari Samiti Limited & Another

(2015) 7 SCC 601 and the decision of the Division Bench of this

pps 42 of 139 TRIBAL WP ST 1338 -20.doc

Court in Rama Narayan Mali vs. Addl. Collector Thane (2008) 3

Mh. L.J. 300 and Adivasee Sarvangin Vikas Samitee vs. State of

Maharashtra & Ors. 2013(6) Mh. L.J. 557; and the decision of the

Single Judge of this Court in Atul Projects India Ltd. vs. Babu

(2011( 6) MahL.J. 352.

(iii) By order dated 31.10.2014, the SDO had already held that the

transfer of land from tribal to non-tribal was invalid for want of

sanction under Section 36 A the MLRC.

(iv) There is no concluded contract in favour of the Petitioners.

Mere Agreement for Sale or Power of Attorney does not convey

right, title or interest in favour of the Petitioner. Reliance is placed

on Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr.

(2012) 1 SCC 656.

(v) The Development Agreements are in contravention of Section

36A, the object of which is to effectuate constitutional policy of

economic empowerment of weaker section of the society. The

agreement that is against public policy is not enforceable and is

void under Section 23 of the Contract Act. Reliance has been

placed on the decision of the Apex Court in Ratan Chand Hira

Chand vs. Askar Nawaz Jung (dead) By Lrs, & Ors. (1991) 3 SCC

67, Murlidhar Dayandeo Kesekar vs. Vishwanath Pandu Barde &

pps 43 of 139 TRIBAL WP ST 1338 -20.doc

Anr.1995 Supp. (2) SCC 549 and the decision of the Single Judge

of this Court in Babasaheb Dhondiba Kute vs. Radhu Vithoba

Barde AIR 2019 Bom 49.

(vi) The agreements are invalid for want of permission under

Section 43(i) of BTAL Act. Reliance is placed on the decision of

the Division Bench of this Court in Himmatrao Ukha Mali & Ors.

vs. Popat Devram Patil & Anr. 1998(2) Mh. L.J. 383.

(vii) The post notification transactions are void and do not create

any interest in favour of the Petitioners. Reliance is placed on the

decision of the Apex Court in Mira Sahani vs. Lft. Governor of

Delhi & Ors. (2008) 9 SCC 177; the decisions of the Division

Bench of this Court (Aurangabad Bench) in Avdhut Rokdoba

Shinde & Ors. vs. State of Maharashtra & Ors. 2013 (5) Mh.l.J.

330; Shaikh Kalim Sk. Mohd. & Anr. vs. State of Mahrashtra &

Ors . (W.P. No.10895 of 2017 );

(viii) Section 35 of MID Act is pari materia to Section 30 of the

Land Acquisition Act and confers discretion on the SDO to refer the

dispute to the Civil Court. Since the transactions are ex-facie void,

the SDO was justified in exercising his discretion to reject the

objections raised by the Petitioners. Reliance is placed on Sharda

Devi vs. State of Bihar & Anr. (2003) 3 SCC 128.

pps 44 of 139 TRIBAL WP ST 1338 -20.doc

15. We have perused the records and considered the submissions

advanced by the learned Counsel for the respective parties. The

two main issues raised before us are-:

(i) The validity of agreements under which the Occupants of the

subject land have assigned right to receive compensation and other

benefits of acquisition in favour of the Petitioners.

(ii) The legality of the Order whereby the learned SDO has

rejected the Objection/Application of the Petitioners to refer the

dispute to the Civil Court and directed payment of compensation to

the land owners.

16. The controversy in these Petitions centers mainly around the

rights of the tribals who are socially distanced, economically

disadvantaged, and geographically isolated. Subsistence existence

and illiteracy of this marginalized section make them easy prey to

economic and social exploitation. Their ignorance of the subtleties

of the intermeddlers and land grabbers make them highly

vulnerable to the exploitative and unscrupulous ingenuity of such

lobby in severing their deep-rooted connection with land, which is

their identity and prime source of existence. Being conscious and

pps 45 of 139 TRIBAL WP ST 1338 -20.doc

cognizant of the exploitation of the tribals, founding fathers of the

Constitution were anxious to preserve and protect this distinctive

class from social injustice and all other forms of exploitation. This

is evidenced by the special status provided to the tribals through

Article 46 and other safe guards embodied in the Constitution for

advancement, preservation, and protection of interest and

prevention of exploitation of this marginalized class.

17. In implementation of the Directive Principles of the State

Policy enshrined in Article 46 of the Constitution, which specially

enjoins the State to protect Scheduled Caste and Schedule Tribe

from social injustice and other forms of exploitation, appropriate

legislative enactments are brought on Statute Books to protect the

land and other rights of tribals. It was noticed that despite

legislation being in place, the tribals were exploited with impunity

and rendered landless. Hence, a Committee was set up to look into

the efficacy of the existing provisions. The report submitted by the

Committee exposed the stark reality that the protective arm of the

law did not prevent the beneficiaries of special legislation from

falling prey to unscrupulous ingenuity of the intermeddlers/land

grabbers. There was indiscriminate transfer of land from tribals to

pps 46 of 139 TRIBAL WP ST 1338 -20.doc

non-tribals in contravention of the provisions of the MLRC. Since

the existing provisions did not achieve the legislative intent and

object, it became imperative to amend Section 36 of MLRC by

inserting Section 36A to 36CC and to implement the principles of

distributive justice by enacting legislation for restoration of land,

which had been transferred from tribals to non-tribals.

18. Section 36A, which is relevant to decide the issue involved in

these Petitions reads thus :

"36A. (1) Notwithstanding anything contained in sub- section (1) of Section 36 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 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.

(2) The previous sanction of the Collector may be given in such circumstances and subject to such conditions as

pps 47 of 139 TRIBAL WP ST 1338 -20.doc

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 for the time being in force, or any decree or order of any court or award or order of any Tribunal or authority, either suo moto or on application made by the Tribal in that behalf, restore possession of the occupancy to the Tribal.

(4) Where, on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 it is noticed that any occupancy has been transferred in contravention of sub-section (1), the Collector shall either suo-moto or on an application of any person interested in such occupancy, made within three years from the date of the transfer of occupancy hold an inquiry in the prescribed manner and decide the matter.

(5) Where the Collector decides that any transfer of occupancy has been made in contravention of sub-

section (1) he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government free of all encumbrances and shall be disposed of in such manner as the State Government may, from time to

pps 48 of 139 TRIBAL WP ST 1338 -20.doc

time, direct.

(6) Where an occupancy vested in the State Government under sub-section (5) is to be disposed of, the Collector shall give notice in writing to the Tribal-transferor requiring him to state within 90 days from the date of receipt of such notice whether or not he is willing to purchase the land. If such Tribal transferor agrees to purchase the occupancy, then the occupancy may be granted to him if he pays the prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such Tribal- transferor, whether as owner or tenant, does not as far as possible exceed an economic holding."

19. In Raoji Urkude (supra) the Division Bench of this Court,

while upholding the constitutional validity of Section 36A has

observed thus:

"7. ...Historical truth is that the Tribals belong to weaker sections of society which have been subjected to varied and worst types of exploitation b taking undue advantage of their backwardness, meekness, and helplessness. Promoting with special care interest of such sections is one of the major items of our national goals (Article 46 in Part IV). If in this background, the legislature came forward to protect their interest, it is

pps 49 of 139 TRIBAL WP ST 1338 -20.doc

difficult to see how question of invidious discrimination can at all arise. It is a distinct class. Classification has clear nexus with the objects. Section 36, as it originally stood, made certain transactions by a tribal voidable at his instance, provided application was made within two years of such transaction. This provision has received the assent of the President and there can be hardly any doubt about it being under the protective umbrella of Article 31A and 31C. Thus, under the old provisions, the purchaser could acquire only a defeasible right which could be defeated by appropriate action within appropriate time. Experience of those are better equipped to know the prevailing social condition revealed that the protection earlier granted was inadequate. The unfortunate truth about many of our social and beneficial legislations is that the beneficiaries thereunder many times even do not know them. Even if they come to know about their right, they are wholly ill-equipped to exercise those rights. Even if the rights are exercised, it is not always that they are able to keep the fruits of the legislation. Procedural delays, official negligence and apathy come in the way. Not ignoring these realities, in case legislation further intervenes and puts in more stringent restrictions including total conditional ban on future transfers, it is difficult to see how Courts come into picture. It is equally difficult to see how it can be said that such a legislation is wholly unreasonable. The possibility to

pps 50 of 139 TRIBAL WP ST 1338 -20.doc

such bans operating unjustly in case of certain transactions cannot be ruled out. But that is no ground to hold a legislation bad. In any legislation intended to bring about such major social changes on large scale, generalization is inevitable; for it is not possible to legislatively contemplate every kind of exceptional situation. If that is attempted and several qualifications and exceptions are introduced, the very legislative object would be defeated. It is a rule of life that every revolutionary cause claims its martyr."

20. In Murlidhar Kesekar (supra), the non-tribals had challenged

refusal of sanction under Section 36A. While turning down the said

challenge, the Apex Court highlighted the object of the provision

and held that prior permission under Section 36A is a condition

precedent for alienation of the land. The Apex Court has held that

even if possession is granted in pursuance of an agreement, such

possession would be unlawful and cannot be protected under

Section 53A of TP Act. The Apex Court has held as under :

"14. Providing adequate means of livelihood for all the citizens and distribution of the material resources of the community for common welfare, enable the poor, the Dalits and tribes, to fulfill the basic needs to bring about a fundamental change in the structure of the Indian society which was divided by erecting

pps 51 of 139 TRIBAL WP ST 1338 -20.doc

impregnable walls of separation between the people on grounds of cast, sub-caste, creed, religion, race, language and sex. Equality of opportunity and status thereby would become the bed-rocks for social integration. Economic empowerment thereby is the foundation to make equality of status, dignity of person and equal opportunity a truism. The core of the commitment of the Constitution to the social revolution through rule of law lies in effectuation of the fundamental rights and directive principles as supplementary and complimentary to each other. The Preamble, fundamental rights and directive principles - the trinity arc the conscience of the Constitution. Political democracy has to be stable. Socio-economic democracy must take strong roots and should become a way of life. The State, therefore, is enjoined to provide adequate means of livelihood to the poor, weaker sections of the society the Dalits and tribes and to distribute material resources of the community to them for common welfare etc.

xxx

21. Economic empowerment to the poor, Dalits and Tribes, is an integral constitutional scheme of socio- economic democracy and a way of life of political democracy. Economic empowerment is, therefore, a basic human right and a fundamental right as part of

pps 52 of 139 TRIBAL WP ST 1338 -20.doc

right to live, equality and of status and dignity to the poor, weaker sections, Dalits and Tribes. The State has evolved, by its legislative and executive action, the policy to allot lands to the Dalits and tribes and other weaker sections for their economic empowerment. The government evolved two pronged economic policies to render economic justice to the poor. The Planning Commission evolved policies like DRDL for economic empowerment of the weaker sections of the society; the Dalits and tribes in particular. There should be short term policy for immediate sustenance and long-term policy for stable and permanent economic empowerment. All the State governments also evolved assignment of its lands or the lands acquired under the ceiling laws to them. Appropriate legislative enactments are brought on statute books to prevent alienation of the assigned lands or the property had under the planned schemes, and imposed prohibition there- under of alienation, declaring any conveyance in contravention thereof as void or illegal and inoperative not to bind the State or the assignee. In case the assignee was disqualified or not available, on resumption of such land, the authorities arc enjoined to resume the property and as- sign to heir or other eligible among the Dalits and tribes or weaker sections in terms of the policy. The prohibition is to effectuate the constitutional policy of economic empowerment under Articles 14, 21, 38, 39 and 46 read with the

pps 53 of 139 TRIBAL WP ST 1338 -20.doc

Preamble of the Constitution. Even in respect of private sales of the lands belonging to tribes, statutes prohibit alienation without prior sanction of the competent authority.

22. It is seen that prior permission for alienation of the land was a condition precedent. Before permission is given, the competent authority is enjoined, by operation of Article 46 of the Constitution, to enquire whether such alienation is void under law or violates provisions of the Constitution and whether permission could be legitimately given. In that behalf, the competent authority is enjoined to look to the nature of the property, subject-matter of the proposed conveyance and pre-existing rights flowing thereunder and whether such alienations or encumbrances violate provisions of the Constitution or the law. If the answer is in the positive, then without any further enquiry the permission straightaway would be rejected. Even in case the permission is granted, it would be decided on the anvil of the relevant provisions of the Constitution and the law. In this case, the authorities, though had not adverted to the aspect of the matter, broadly refused permission on the ground that the assigned land cannot be permitted to be sold or converted to non-

agricultural use. The action refusing permission, therefore, is in consonance with the Constitutional scheme in Part IV of the Directive Principles. The agreement is, therefore, void under s.23 of the Contract

pps 54 of 139 TRIBAL WP ST 1338 -20.doc

Act as opposed to public policy vide judgment in DTC v. DTC Mazdoor Congress, 1990 (suppl.) 1 SCR, 192, by one of us Ramaswamy, J. with whom Sawant and Ray, JJ. agreed by separate but concurring judgment and the permission was rightly refused to be given for alienation. The possession is unlawful Section 53-A of Transfer of Property Act is not attracted. The appellant's possession continues to be unlawful and he is not entitled to any improvement made on the lands. ..."

21. In Lingappa Pochanna Appelwar & Ors. vs. State of

Maharashtra & Anr. 1985 AIR 389, while upholding the

Constitutional validity of Section 3(1) and 4 of the Maharashtra

Restoration of Lands to Scheduled Tribes Act, 1974, the Apex

Court has observed that:-

"..Under the scheme of the Constitution, the Scheduled Tribes as a class require special protection against exploitation. The very existence of Scheduled Tribes as a distinctive class and the preservation of their culture and way of life based as it is upon agriculture which is inextricable linked with ownership of land, requires preventing an invasion upon their lands. The impugned Act and similar measures undertaken by different States placing restrictions on transfer of lands by members of

pps 55 of 139 TRIBAL WP ST 1338 -20.doc

the Scheduled Castes and Tribes are aimed at the State Policy enshrined in Article 46 of the Constitution which enjoins that The State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Tribes and shall protect them from social injustice and all forms of exploitation". One has only to look at the artlessness, the total lack of guill, the ignorance and the innocence, the helplessness, the economic and the educational backwardness of the tribals pitted against the artful, usurious, greedy land grabber and exploiter invading the tribal area from outside to realize the urgency of the need for special protection for the tribals if they are to survive and to enjoy the benefits of belonging to the 'Sovereign, Socialist, Secular, Democratic Republic' which has vowed to secure to its citizen 'justice, social, economic and political''assuring the dignity of the individual'.

22. In Ramanarayan Mali (supra) and Adviasi Sarvangin Vikas

Samiti (supra) the Division Bench of this Court has held that the

expression "or otherwise" in Section 36A is of comprehensive

nature and would include all arrangements by which the occupancy

of a tribal is sought to be transferred in favour of a non-tribal

irrespective of the nature of the device, whether it is in the form of a

pps 56 of 139 TRIBAL WP ST 1338 -20.doc

Development Agreement coupled with the Power of Attorney or

otherwise. It is held that the provisions of Section 36A are broad

enough to reach out to the mischief.

23. In Atul Projects India Ltd (supra) the Learned Single Judge

Dr. D.Y. Chandrachud, as his Lordship then was, while

emphasizing the intent of legislature in using the word "Otherwise"

in Section 36A has held thus :

"12. The transfer of occupancy may be by way of a sale, gift, exchange, mortgage, lease "or otherwise". The legislature has designedly used broad language so as to incorporate all the five recognized modes by which property may be transferred under the Transfer of Property Act, 1882. Significantly the legislature has expanded the ambit of the modes in which property can be transferred by using the words "or otherwise". The plain object of the legislature was to reach out to all modes by which the occupancy of a tribal may be conveyed to a non-tribal. The legislature was conscious of the fact that devious methods may be employed to divest tribals of their occupancy and the modes of transfer which are taken recourse to may not conform to the conventional modes for the transfer of property such as by sale, gift, exchange, mortgage or lease. Whatever be the mode of transfer, if the consequence is to effect a transfer of the occupancy of a tribal to a non

pps 57 of 139 TRIBAL WP ST 1338 -20.doc

tribal, the requirement of prior permission would be attracted. The Collector, even when he grants his sanction is empowered to do so subject to such conditions as may be prescribed. A transfer in violation of the provisions of Sub Section (1) of Section 36A would be invalid and of no legal consequence."

24. It is thus clear that Section 36A of MLRC which beholds the

spirit of constitutional mandate, provides special protection to the

tribals against exploitation by prohibiting transfer of an occupancy

of a tribal in favour of a non-tribal by any mode or method, without

prior sanction of the Collector where the period of lease or

mortgage does not exceed five years and in other cases, without

previous sanction of the Collector and approval of the State

Government. The validity of the agreements executed in favour of

the Petitioner as well as the Award and Judgments /Decrees passed

by the Civil Court has to be decided keeping in mind the object of

the provision under Section 36A of the MLRC and the

constitutional policy of economic empowerment of the tribals.

25. The applications for reference have been rejected mainly on

the ground that the transactions in favour of the Petitioner are

pps 58 of 139 TRIBAL WP ST 1338 -20.doc

invalid for want of prior sanction under Section 36A MLRC. The

Petitioners have sought to obviate the need to obtain previous

sanction by contending that the Occupants had not disclosed that

the subject land was a tribal land and further that their caste claim

has not been validated by the Caste Scrutiny Committee. It is

pertinent to note that taking note of the fact that tribal land was

being transferred to non-tribals without prior permission of the

Appropriate Authority, and that the tribals were being cheated by

the builders and developers, Government Resolutions were issued

on 17.03.2012 and 31.05.2012 making it mandatory to make entries

within two months in the 7 x 12 extract maintained by the Talathi

indicating that the land belongs to a tribal. Since no steps were

factually taken in terms of the Government Resolution, the Division

Bench of this Court in ASV Samiti, (supra) directed that the

Government Resolution dated 31.5.2012 shall be strictly

implemented and necessary action be completed in all cases across

the 6 Revenue Divisions of the State, not later than 31.08.2013.

While declining to issue generalized directions to the State as

regards steps to be taken in cases involving transfer of tribal land to

non-tribals, the Division Bench observed that it would be ultimately

for the Competent Authority under sub Section 5 of Section 36A to

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determine how the occupancy which has been transferred in

contravention of sub Section (1) should be disposed of having

regard to the true intent and purpose of Section 36A.

26. Pursuant to these directions, entries have been made in the

revenue records indicating that the land is subjected to restrictions

under Section 36A of MLRC. Hence even if it were to be accepted

that as on the date of the execution of the agreements, the

Petitioners were unaware that the land was tribal land and was

subjected to restrictions, such constructive knowledge/notice has to

be attributed to the Petitioners, who are the land developers, at least

from the date of the revenue entry. Under the circumstances, the

Petitioners cannot feign ignorance and claim that the subject land

was not a tribal land and that it was not obligatory to obtain

previous sanction under Section 36A of the Code.

27. The SDO also conducted inquiry, in exercise of powers under

sub-Section (4) and (5) of Section 36A, to determine the validity of

transactions between tribals and non-tribals. Upon hearing the

concerned parties, including the Petitioners, who have based their

claim on Development Agreements, the SDO recorded his

pps 60 of 139 TRIBAL WP ST 1338 -20.doc

satisfaction that the subject land is tribal land and that the

Occupants who are tribals have executed Development Agreements

in favour of non-tribals without prior sanction under 36A. The SDO

held that the Development Agreements are illegal and the transfer

in favour of non-tribals is invalid. Hence by Order dated

13.10.2014 the SDO ordered to restore possession of the land to the

tribals/Occupants. This order, which has attained finality, clearly

indicates that the Petitioners were well aware that the subject land

was tribal land. The Petitioners therefore cannot be heard to say that

they were not aware that the subject land was tribal land and the

transfer of the said land was subject to prior sanction from the

Collector and the approval of the State under Section 36A of the

MLRC.

28. The Petitioners claim to be "person interested" to receive

compensation on the strength of- (i) Agreements for Sale, (ii) Oral

Agreements for Sale/Development Agreements, (iii) Award of Lok

Adalat and Judgments and Decrees of the Civil Court. Hence these

Petitions can be broadly classified into three groups :

(A) The first group of six Petitions, wherein the Petitioners have

pps 61 of 139 TRIBAL WP ST 1338 -20.doc

based their claim on the Agreements for Sale, viz :

(i) WP/ST/1338/2020, (ii) WP/ST/710/2020, (iii)

WP/ST/AS/DB/CH/1/2020, (iv) WP/ST/AS/DB/CH/2/2020, (v)

WP/ST/AS/DB/CH/3/2020, and (vi) WP/ST/AS/DB/CH/4/2020.

(B) The second group of Petitions, wherein the Petitioners have

claimed rights based on Oral Agreements for Sale and Development

Agreements:

(i) WP/ST/2790/2020 (ii) WP/ST/2791/2020 (iii)

WP/ST/2794/2020 (iv) WP/ST/2796/2020 (v) WP/ST/2798/2020

(vi) WP/ST/2799/2020 (vii) WP/ST/2801/2020 (viii)

WP/ST/2940/2020 (ix)WP/ST/3236/2020 (x) WP/ST/4538/2020

(xi) WP/ST/4539/2020 and (xii) WP/ST/4540/2020.

(C) The third group of seven Petitions, wherein the Petitioners

have claimed right to receive compensation on the strength of the

Lok Adalat Award and Judgments and Decrees of the Civil Court:

(i) WP/ST/3339/2020 (ii) WP/1973/2020, (iii) WP/ST/2800/2020,

(iv) WP/ST/2798/2020, (v) WP/ST/2795/2020, (vi)

WP/ST/4535/2020, and (vii) WP/1445/2020

pps 62 of 139 TRIBAL WP ST 1338 -20.doc

29. The six Petitions in the first group of matters, wherein the

claim is based on Agreements for Sale, follow a common pattern.

These Petitioners contend that the Occupants in the said Petitions

were desirous of selling the subject land due to financial constraint.

The Occupants in the first two Petitions i.e. WP/ST/1338/2020 and

WP/710/2020, had agreed to sell the land situated at Rohkal, Khed

Pune to Amol Vasantlal Mutha and Leelachand Bhandari, (R-3 and

R-6 in respective Petitions) and executed Power of Attorney in their

favour to procure buyers, obtain sanction and do all such acts as

may be necessary to fully effectuate the sale deed. The Occupants

in the other four Petitions of this group had entered into

'Agreements for Sale' with Sanjay Nanekar and Dattaraj

Wafgaonkar, (Respondent No.6 in respective Petitions) for sale of

the subject land situated at Ambethan Khed, Pune. These Occupants

also executed Power of Attorney in favour of Anil Kad, Respondent

no.7 in all four Petitions, conferring similar powers, viz, to procure

buyers, obtain sanction, execute sale deed etc. These Agreements

for Sale which were personally executed by the Occupants in

favour of Respondents No. 3 and 6 in the respective Petitions, were

restricted to the sale of the subject land without any clause relating

to assignment of right to receive compensation. It is contended that

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the sale transactions with these Respondents could not be concluded

due to financial constraints. In all the six Petitions, acting on the

Power of Attorney, the Power of Attorney Holders entered into

agreements with the Petitioners whereunder they not only agreed to

sell the subject land but also permitted them to receive the

compensation, in the event of acquisition of land by MIDC. The

Petitioners are claiming right to receive compensation based on

these agreements, which have been executed by the Power of

Attorney Holders.

30. Suffice it to say that, a Power of Attorney is creation of an

agency whereby the principal authorizes the agent to perform the

acts specified therein on his behalf, which acts when performed

under such authority as is conferred expressly or by necessary

implication will be binding on the principal. The general principles

regarding the construction of a Power of Attorney are well settled.

In Church of Christ Charitable Trust vs. Ponniamman

Educational Trust (2012) 8 SCC 706 the Honourable Apex Court

has observed as under:-

"19) ........It is settled that a Power of Attorney has to be strictly construed. In order to agree to sell or effect a sale by a power of attorney, the power should also

pps 64 of 139 TRIBAL WP ST 1338 -20.doc

expressly authorize the power to agent to execute the sale agreement/sale deed i.e., (a) to present the document before the Registrar; and (b) to admit execution of the document before the Registrar. A perusal of the Power of Attorney, in the present case, only authorizes certain specified acts but not any act authorizing entering into an agreement of sale or to execute sale deed or admit execution before the Registrar. In a recent decision of this Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana & Anr. (2012) 1 SCC 656, the scope of Power of Attorney has been explained in the following words:

20. A Power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

21. In State of Rajasthan vs. Basant Nahata, (2005) 12 SCC 77. this Court held: (SCC pp. 90 & 101, paras 13

pps 65 of 139 TRIBAL WP ST 1338 -20.doc

& 52) 13. A grant of Power of Attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of Power of Attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of Power of Attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A Power of Attorney is, as is well known, a document of convenience."

31. In the instant case, a fair construction of the Power of

Attorney would indicate that the Occupants had authorized the

Power of Attorney Holders to procure buyers for sale of the subject

land, to obtain sanction and to do all other documentation relating

to sale of the subject land. The Power of Attorney Holders were not

authorized either expressly or impliedly to transfer or assign the

right to receive compensation and other acquisition benefits. Hence,

the act of the Power of Attorney Holders in assigning the right to

receive compensation/ acquisition benefits in favour of the

Petitioners is in excess of the authority conferred by the Occupants

pps 66 of 139 TRIBAL WP ST 1338 -20.doc

under the Power of Attorney. The Agents having exceeded the

authority given under the Power of Attorney, such clause would not

bind the Principal/Occupants.

32. The Agreements for Sale executed in favour of the Petitioners

in WP/ST/1338/2020, and WP/ST/710/2020, are unregistered/

unstamped agreements. Suffice it to say that an immovable property

can be transferred or conveyed only by Deed of Conveyance, which

is duly stamped and registered as required by law. In Suraj Lamp

and Industries (supra) the Apex Court has observed that any

Contract of Sale which is not a registered Deed of Conveyance

would fall short of the requirements of Section 54 and 55 of the

Transfer of Property Act and will not confer any title nor transfer

any interest in an immovable property, except to the limited right

granted under Section 53A of the TP Act. It has been held that an

Agreement for Sale whether with possession or without possession

is not a conveyance.

33. In Shiv Kumar & Anr. vs Union of India & Ors. (2019) 10

SCC 229 a three judge bench of the Hon'ble Supreme Court while

reiterating these principles has held that immovable property can be

legally and lawfully transferred/conveyed only by a registered Deed

pps 67 of 139 TRIBAL WP ST 1338 -20.doc

of Conveyance. Transactions of the nature of 'GPA sales' or

'SA/GPA/WILL transfers' do not convey title and do not amount to

transfer, nor can they be recognized as valid mode of transfer of

immovable property. The Apex Court has laid down that the Courts

will not treat such transactions as completed or concluded contracts

or as conveyances as they neither convey title nor create any

interest in an immovable property. They cannot be recognized as

deeds of title, except to the limited extent of Section 53A of the

Transfer of Property Act. Such transactions cannot be relied upon or

made the basis for mutation in Municipal or Revenue Records. It

has been made explicit that what has been stated above will not

only apply to deeds of conveyance in regard to freehold property

but also to transfer a leasehold property.

34. In the instant case, the agreements relied upon by the

Petitioners are post notification transactions. These unregistered

unstamped agreements, which have not culminated in concluded

contracts; neither convey title nor create any interest in the land.

Moreover, the subject land having been vested in the Government

with issuance of notification under sub-Section (1) of Section 32 the

MID Act, the Petitioners cannot seek enforcement of these

pps 68 of 139 TRIBAL WP ST 1338 -20.doc

agreements. The Petitioners therefore cannot claim any right title or

interest in the subject land based on such unstamped, unregistered

post notification agreements.

35. The agreements in favour of the Petitioners in the other four

Petitions are styled as "Agreement for Sale" and the clause relating

to handing over possession of the land has been scored out. It is

well settled that it is not the nomenclature but the substance that

decides the nature of the transaction under the document. A perusal

of the relevant clauses of the agreements indicate that the

Petitioners have been authorized to submit layout plan, to get the

land surveyed, to obtain necessary permissions and further to

develop and sub-divide the land. The Petitioners have also been

authorized to sell the developed sub-divided plots to the prospective

purchasers and receive the sale proceeds. The totality of the recitals

and the tenor of the documents clearly indicate that, though the

documents are styled as "Agreement for Sale", the Occupants have

indeed assigned development rights coupled with the transfer of

possession. This constitutes "transfer of occupancy" within the

meaning of Section 2(22) and 2(23) and would stand vitiated for

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want of prior sanction under Section 36 A of the MLRC. Hence the

ratio laid down in Kalandi Baburao Raut (supra) is not applicable to

these four Petitions. The agreements in these four Petitions, which

are violative of Section 36A, are null void and consequently not

enforceable.

36. In the second group of Petitions, the Petitioner- Gautamsheth

Wadve and his son Sachin Wadve have based their claim on oral

Agreements for Sale and Development Agreements allegedly

executed in their favour by the Occupants of the respective subject

land situated at Ambethan, Khed, Pune. The Petitioners have

alleged that sometime in the year 2006, the Occupants had agreed to

sell the subject land due to financial constraints and had accordingly

entered into oral Agreements for Sale of the subject land. In all

these Petitions, the Occupants had executed Power of Attorney in

favour of the Petitioner Gautamsheth Wadve, who is also arrayed as

Respondent No.10 in the Petition filed by his son Sachin Wadve.

Under these Power of Attorney the Occupants had authorized the

Petitioner Gautamsheth Wadve to procure purchasers, obtain

sanction, and do all the other acts and complete the documentation

for execution of sale deed. The Occupants had also authorized said

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Gautamsheth Wadve to collect the sale proceeds and compensation,

in the event of acquisition of the land, and to tender the same to

them.

37. The Occupants have executed Development Agreements in

favour of the Petitioner Gautamsheth Wadve whereas the

Development Agreement in favour of Sachin Wadve-Petitioner in

WP/ST/3236/2020 has been executed by his father Gautamsheth

Wadve as a Power of Attorney of the Occupants. Under these

Development Agreements the Occupants had assigned development

rights of the subject land for consideration of Rs.4,76,000/- and had

put the Petitioners in possession of the subject land. The

Development Agreements stipulate that the land being of new and

restricted tenure, development was to commence after obtaining

requisite sanction from the Competent Authority. The Development

Agreements also contain a clause that the land is likely to be

acquired by MIDC and that the Petitioners were entitled to receive

the said compensation.

38. Though the Petitioners have based their claim on oral

agreements purportedly executed in the year 2006, reference to such

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agreements has been made for the first time in the legal notice

issued in the year 2016 and later in the Suits filed in the year 2016-

2017. Furthermore, though the Power of Attorney and

Development Agreements were preceded by oral agreements, there

is no reference to such oral agreements either in the Power of

Attorney or in the Development Agreements. On the contrary, a

perusal of the Power of Attorney indicates that the Occupants had

authorized the Petitioner Gautamsheth Wadve to procure buyers for

sale of the subject land, to obtain sanction, to do all other

documentation relating to sale of the subject land, to receive the sale

consideration and compensation and tender the same to the

Occupants. These clauses negate the claim of oral agreements for

sale in favour of the Petitioners. Moreover such oral agreements

would not clothe the Petitioners with the title or interest in the land.

Be that as it may, the fact that the Occupants had subsequently

executed Development Agreements in favour of the Petitioners

would itself indicate that the initial intention of sale, if any, had

culminated in assignment of development rights.

39. Even though the Occupants had executed Power of Attorney

in favour of the Petitioner Gautamsheth Wadve authorizing him to

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obtain sanction and do all other acts necessary for execution of sale

deed, he did not apply for and obtain sanction under 36A. The

Development Agreements executed in contravention of Section 36A

have been held to be invalid by the Competent Authority under sub-

Section (4) & (5) of Section 36 A MLRC. Consequently, the

Petitioner cannot claim right or interest in the land or right to

receive compensation on the strength of Development Agreements,

which are held to be invalid and are void ab initio.

40. The Petitioners have made yet another vain attempt to

circumvent the rigors of Section 36A by claiming that assignment of

right to receive compensation is an independent and distinct right. It

is urged that assignment of right to receive compensation cannot be

equated with the "transfer of occupancy". The Petitioners claim that

this right, which is not subject to restriction under Section 36A

MLRC, is enforceable, albeit they may have no right, title, or

interest in the property.

41. It is to be noted that by the agreements in question, the

Petitioners agreed to purchase the subject land/acquire development

rights for a specific consideration stated in the agreements. Though

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the agreements provide that the Petitioners would have right to

receive compensation, there is no separate consideration for

assignment of such right. A perusal of the relevant terms,

conditions, and covenants clearly indicate that that the agreement is

indivisible with dominant intent to sell the land/assign development

right. To be specific, assignment of development rights and

authorization to receive compensation are not separate transactions

independent of each other, but are interdependent. This being so,

the enforcement of right to receive compensation is dependent on

fulfillment or enforcement of the right to purchase the land or

acquire development rights. Hence, the agreement to sell/

assignment of development right and assignment of right to receive

compensation cannot be construed as separate transactions.

Consequently, the clause assigning the right to receive

compensation is not severable and hence unenforceable.

42. Be that as it may, even if assignment of the right to receive

compensation is considered as an independent and distinct

transaction, such assignment would also attract restriction under

Section 36A, as compensation payable under the Award is nothing

but a monetized value of the land. Hence, transfer of compensation,

pps 74 of 139 TRIBAL WP ST 1338 -20.doc

which is held to be 'property' transferable under the provisions of

Transfer of Property Act, would require prior sanction under

Section 36A of MLRC. It therefore follows that assignment of such

right without prior permission under Section 36A would be in

violation of the constitutional scheme and being opposed to Public

Policy would be void under Section 23 of the Contract Act. This

interpretation is in consonance with legislative intent and

constitutional mandate to protect and safeguard the interest of the

tribals. We are therefore unable to accept the contention of the

Petitioner that assignment of right to receive compensation is an

independent right which does not attract restrictions under Section

36A. In our considered view, endorsing such interpretation will

defeat the very purpose and object of the Act and strike at the

Constitutional policy of economic empowerment of the weaker

section of the society.

43. At this stage, it will be advantageous to refer to the decision

of the Apex Court in Rajasthan Housing Board (supra). In the said

case, while considering the validity of the transaction, which was in

contravention of Section 42 of the Rajasthan Tenancy Act, the Apex

Court has held thus:-

pps 75 of 139 TRIBAL WP ST 1338 -20.doc

26. In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holding "shall be void". As the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non- SC/ST, obviously the agreements entered into by the Society with the Khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under Section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India.

xxx

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30. This Court in Amrendra Pratap (supra) has laid down that the expression 'transfer' would include any dealing with the property when the word 'deal with' has not been defined in the statute. Dictionary meaning as the safe guide can be extended to achieve the intended object of the Act. The transaction or the dealing with alienable property to transfer title of an aboriginal tribe and vesting the same in non-tribal was construed as transfer of immovable property. Extending the meaning of the expression 'transfer of immovable property' would include dealing with such property as would have the effect of causing or resulting in transfer of interest in immovable property. When the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. When the intendment of the Act is that the property should remain so confined in its operation in relation to tribals that the immovable property to one tribal may come but the title in immovable property is not to come to vest in a non-tribal the intendment is to be taken care by the protective arm of the law and be saved from falling prey to unscrupulous devices, and this Court concluded any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such

pps 77 of 139 TRIBAL WP ST 1338 -20.doc

property in a tribal and vesting the same in a non-tribal, would be included within the meaning of 'transfer of immovable property'.

31. It was further submitted on behalf of the Society that though a purchaser after issuance of notification under Section 4(1) of the Land Acquisition Act cannot question the legality of the notification, but, can lay a claim for payment of compensation. Reliance has been placed on U.P.Jal Nigam, Lucknow through its Chairman & Anr. v. Kalra Properties Pvt. Ltd., Lucknow & Ors. [1996 (3) SCC 124]. When we consider the aforesaid dictum, this Court has laid down that after notification under Section 4(1) was published, sale of land is void against the State and M/s. Kalra Properties acquired no right, title or interest in the land and it is a settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section

6. M/s. Kalra Properties, though acquired no title to the land, at best would be entitled to step into the shoes of the owner and claim compensation. However, in the instant case, it was a transaction which was not only void against the State but also void inter se vendor and vendee.

32. The right to claim compensation cannot be

pps 78 of 139 TRIBAL WP ST 1338 -20.doc

enforced by the Society on the basis of such transaction as that would defeat the very object of the Act and the constitutional provisions including such castes and tribes under the protective umbrella of the Schedules to Articles 341 and 342, they cannot be deprived of right to obtain the compensation of the land legally held by them and they cannot be made to fall prey to unscrupulous devices of land grabbers. The right to claim compensation is based on right, title or interest in the land, cannot be transferred by virtue of the mandate of Section 42 to a juristic person like the Society. It is the duty of the State to ensure that the benefit reaches to such persons directly and not usurped by intermeddlers as what is intended by the protection of the right to hold property of SC/ST, cannot be taken away by disbursing the compensation to Society. Persons of SC/ST, as the case may be, are the only rightful claimants to disbursal of compensation and such right cannot be tinkered with by void transaction as the purpose of compensation is the re-settlement of Scheduled Castes or tribes.

xxx.

34. Reliance has been placed on Dossibai Nanabhoy Jeejeebhoy v. P.M. Bharucha [1958 (60) Bom.LR 1208] so as to contend that the 'person interested' in the land under Section 9 of the Land Acquisition Act would include a person who claims interest in compensation to be paid on account of acquisition of land and the

pps 79 of 139 TRIBAL WP ST 1338 -20.doc

interest contemplated under Section 9 is not restricted to legal or proprietary estate or interest in the land but such interest as will sustain a claim to apportionment, is the owner of the land. In our opinion, the decision is of no avail. The instant transaction being void as per section 42 of the Rajasthan Tenancy Act and the property was inalienable to non-SC. Obviously, the logical corollary has to be taken that no right in apportionment to compensation can be claimed by the Society.

44. Shri Kulkarni, the learned Counsel for the Petitioner has

sought to draw a distinction between Section 36A of MLRC and

Section 42 of Rajasthan Tenancy Act by contending that Section 42

specifically provides that transfer in contravention of provision will

be void. Whereas under Section 36A of MLRC the Collector is

required to conduct an inquiry and on being satisfied that

occupancy has been transferred in contravention of sub-Section (1),

declare such transfer to be invalid.

45. It may be mentioned that sub-Section (1) of Section 36A

imposes restriction on the transfer of occupancy without prior

sanction of the Collector and approval of the Government.

Whereas, sub Sections (4) and (5) of Section 36 of the MLRC

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impose statutory duty on the Collector to hold an inquiry either suo-

moto or on an application made by any person interested in such

occupancy, and decide whether the transfer of occupancy is in

contravention of sub-section (1) of Section 36A. When the transfer

of occupancy is held to be in contravention of sub-Section (1), the

Collector is under a mandate to declare such transfer to be invalid

and restore possession of occupancy to the tribal on compliance of

requirement under sub-Section (6) of Section 36 of the MLRC. The

scheme of sub-Section (4) is predominantly a remedial measure for

securing restoration of transfer and not validation of transfer, which

is effected in contravention of sub-Section (1) of Section 36 of the

MLRC.

46. The statute has imposed restriction on transfer of occupancy

with an object of achieving the Constitutional goal of preserving the

economic interest of the tribals and immunizing them from social

injustice and exploitation. As it has been held by the Apex Court in

Murlidhar Kessekar (supra) and Rajasthan Housing Board (supra)

any transfer or alienation of the land or occupancy, which is against

the statutory restrain and constitutional mandate is opposed to

public policy and is void under Section 23 of the Contract Act. The

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voidability of the transaction therefore does not depend upon the

declaration under sub Section (5) of Section 36A. Such

transactions, which are in contravention of provisions under Section

36A are against constitutional policy of economic empowerment of

the tribals and being opposed to public policy are void ab-initio.

Hence, these Development Agreements which have been otherwise

held to be invalid would not enure any right in favour of the

Petitioners.

47. As regards the third group of seven Petitions, in

WP/ST/3339/2020, the Petitioner Gautamsheth Wadve has based

his claim on the Award dated 08.07.2017 passed by the Lok Adalat

in Reg. Civil Suit 236/2016. Whereas in the other six Petitions, viz.

WP/1973/2020, WP/ST/2800/2020, WP/ST/2798/2020,

WP/ST/2795/2020, WP/ST/4535/2020 and WP/1445/2020 the

Petitioner claims right to receive compensation on the strength of

the Judgments and Decrees dated 23.04.2018 passed by the Civil

Court.

48. The Petitioner in all the aforesaid Petitions had instituted

Suits for specific performance of Oral Agreements and

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Development Agreements. These Suits proceed on the basis that the

Occupants had entered into oral agreements with Petitioner for sale

of the subject land with further right to receive compensation and

other acquisition benefits. The Occupants in the respective

Petitions also executed Development Agreements assigning

development rights as well as right to receive compensation in

favour of the Petitioner. The Petitioner averred that the Occupants

had received substantial part of the consideration and the balance

amount was to be paid on fulfillment of conditions scribed in the

agreements. The Petitioner claimed that taking advantage of order

dated 31.10.2014 passed by the SDO, the Respondents-Occupants,

on one pretext or the other, avoided fulfilling their part of contract

and executing Conveyance Deeds. Hence, he was constrained to file

Suits for specific performance inter alia seeking to direct the

Occupants to fulfill the terms and conditions of agreements and to

execute Conveyance Deeds in his favour and in the event of

acquisition, to direct the Occupants to pay the compensation and

other acquisition benefits as per the clause in the said Agreements.

49. The dispute between the parties in Regular Civil suit No.236

of 2016, was referred to the Lok Adalat constituted under the

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provisions of the Legal Services Authorities Act 1987 (the LSA

Act). The contesting parties in the said Suit i.e. the Petitioner and

the Occupant in WP/ST/3339/2020 had arrived at a settlement and

filed consent terms before the Lok Adalat, which read thus:

" According to order 23 Rule 3 of the Civil Procedure Code, 1908 Compromise Deed between Plaintiff & Respondent No.1, is as under:-

1. Plaintiff has submitted this suit against Respondent for getting fulfillment of agreement and for Permanent Stay Order.

2. Plaintiff & Respondent talk with each other, discussed with each other, outside the Court ad it was decided between them that claim of the Plaintiff is to be accepted by Respondent and Plaintiff has to pay Rs.3,00,000/- to the Respondent as Consideration/ increased consideration and said suit is to be settled by making compromise.

3. There is a compromise between Plaintiff & Respondent as under:-

A) Plaintiff accepts and agrees that oral agreement of Sale Purchase executed between Plaintiff & Respondent on 30.11.2006 and accordingly Development Agreements executed on 23.042007 by Respondent in favour of Plaintiff, both agreements are valid and legal. And these agreements will be binding on all the heirs of Respondent.

B) For sale transaction of suit property, out of total consideration of Rs.4,76,000/- Plaintiff has paid an

pps 84 of 139 TRIBAL WP ST 1338 -20.doc

amount of Rs.2,50,000/- to the Respondent from time to time by cheque /cash, as per demands by the Respondent that he has received the said amount. C) As per the demand of Respondent, Plaintiff has to pay remaining amount of consideration amount plus a sum of Rs.3,00,000/- as increased consideration. Out of the said amount Plaintiff has paid a sum of Rs.10,000/- in cash to the Respondent on 14.06.2017, and today Plaintiff has paid a sum of Rs.1,00,000/- in cash to the Respondent. And an amount of Rs.1,90,000/- (In words Rs. One Lakh Ninety Thousand Only) has been paid by the Plaintiff to the Respondent by cheque no. 049474 dt.17.06.2017, drawn on Bank of India, Chakan branch.

D) Thus Respondent No.1 has received said amount of Rs.3,00,000/- and he is not having any complaint in this respect. Hence Respondent agrees that he will make all the fulfillment and he will execute registered Sale Deed in favor of Plaintiff, after taking required permission from Government. As per this compromise Deed Respondent gives guarantee to the Plaintiff that Respondent himself or any of his heirs will not create any dispute in any Court of Law or to Government, and they will not claim any type of rights in future. E) Suit property is to be acquired for Maharashtra Industrial Development Corporation. If the said suit property will be acquired by M.I.D.C. Plaintiff will be having right to get full amount of compensation of

pps 85 of 139 TRIBAL WP ST 1338 -20.doc

acquisition. Respondent herewith accepts and agrees that Plaintiff will be only person to have complete rights to receive full amount of compensation of acquisition.

F) After order will be passed according to this Compromise deed, Plaintiff himself may be appointed as Court Commissioner to do all the works such as -

making all the fulfillments for executing Sale Deed in favor of Plaintiff, getting permission from Government, making all the works required for getting consideration/ returns of amount of acquisition and making all the works for complete implementation of Order as per this compromise deed, so that Plaintiff should not face any problem. OR Plaintiff may be given rights to do all the above works. Respondent is not having any objection for the same and the Respondent accepts and agrees the same.

4. Thus compromises has been done between Plaintiff and Respondent and all the contents of this compromise deed is accepted and agreed by both the parties, and it will be binding on both the parties for ever.

5. Hence it is prayed that-

A) Order may be passed according to the compromise between Plaintiff and Respondent.

B) Plaintiffs may be appointed for executing all the works for the implementation of order which will be passed according to this Compromise Deed."

pps 86 of 139 TRIBAL WP ST 1338 -20.doc

50. The said suit was disposed of by Award dated 08.07.2017 as

per the consent terms filed by the parties. Whereas Civil Suits

relating to WP/1973/2020, WP/ST/2800/2020, WP/ST/2798/2020,

WP/ST/27952020, WP/ST/4535/2020, and WP/1445/2020 have

been decreed by the trial court vide its Judgments and Decrees

dated 23.04.2018. The learned Counsel for the Petitioners have

vehemently argued that the SDO has exceeded his jurisdiction in

deciding the validity of the transactions and or in commenting on

legality of the Award and the Judgments passed by the Court of

competent jurisdiction. It is submitted that the SDO was not

competent to supplement reasons for rejecting the

Application/Objections.

51. It is to be noted that Lok Adalats organized under Section

19(1) of the LSA Act do not have adjudicatory or judicial functions.

The role of the Lok Adalats, as prescribed by Section 19(5) of the

LSA Act is to determine and to arrive at a settlement between the

parties to a dispute in respect of (i) any case pending before or (ii)

any matter which is falling within the jurisdiction of, and is not

brought before, any court for which the Lok Adalat is organized.

Section 21(1) provides that every Award of the Lok Adalat is

pps 87 of 139 TRIBAL WP ST 1338 -20.doc

deemed to be decree of a Civil Court and under Section 21(2) of

the LSA Act, the same is final and binding on all the parties.

52. It can thus be seen that the Lok Adalat determines a reference

on the basis of a compromise or settlement between the parties and

puts its seal of confirmation by making an Award in terms of the

compromise or settlement. There can be no dispute about the legal

proposition that the Award passed by a Lok Adalat on the basis of

compromise as contemplated under Order 23 Rule 3 CPC is binding

on the parties to the dispute. However, this general rule will not

prevail when the Award is beyond the scope of compromise as

contemplated under Order 23 Rule 3 CPC or is based on void

agreement and or is against public policy. Such Award, which is a

nullity and non-est in the eye of law, can be challenged in any Court

at any time, in appeal, revision, writ or even collateral proceedings.

53. Similarly, a Judgment and Decree passed by the Court of

competent jurisdiction is binding on the parties until it is set aside in

an Appeal or other appropriate proceedings. In Balwant Viswamitra

(supra), whilst drawing a distinction between a illegal or irregular

decree and null and void decree, the Hon'ble Supreme Court has

pps 88 of 139 TRIBAL WP ST 1338 -20.doc

reiterated that a decree of the court of competent jurisdiction cannot

be denuded of its efficacy by any collateral attack or in incidental

proceedings even if it is erroneous or is suffering from illegality or

irregularity of procedure laid down by law. The Apex Court has

held that where a court lacks inherent jurisdiction in passing a

decree or making an order, a decree or order passed by such Court

would be without jurisdiction, non est and void ab initio. A defect of

jurisdiction goes to the root of the matter and strikes at the very

authority of the Court to pass a decree or make an order. Such

defect has always been treated as basic and fundamental and a

decree or order passed by a Court or an authority having no

jurisdiction is a nullity. Validity of such decree or order can be

challenged at any stage, even in execution or collateral proceedings.

54. In the matters in hand, the Agreements, Award and the

Judgments and Decrees which relate to the tribal land are

challenged on the ground of nullity. Undisputedly, this Court in

exercise of jurisdiction under Article 226 or 227 of the Constitution

can always consider the validity of the transaction and ascertain

whether the Award is against the basic principles of Order 23 Rule 3

CPC, and whether the Award and judgments are nullity and non est

pps 89 of 139 TRIBAL WP ST 1338 -20.doc

in the eye of law. Considering the fact that the transactions relate

to the tribal land and are challenged on the ground of nullity, it is

not only necessary but also obligatory to look into the validity of

the Award and Decrees as to prevent enforcement of void

transactions, perpetuation of patent illegality and consequent

infringement of the beneficial legislation and frustration of the

Constitutional objective.

55. The main question, which therefore arises, is whether the

Award of the Lok Adalat and the Decrees passed by the Civil Court

are null and void. Adverting to the Award passed in Civil Suit 236

of 2016, it is seen that the consent terms filed by the parties on

17.6.2017 do not disclose that the subject land is tribal land. The

parties had also not disclosed that by order dated 31.10.2014 the

SDO had already held the transfer of occupancy effected in favour

of the Petitioner by Development Agreement dated 23.04.2007 to be

invalid for want of prior sanction under Section 36A. On the

contrary, the consent terms proceed on a false statement that the

Development Agreement dated 23.04.2007 is valid and legal. The

consent terms also record an undertaking of the Occupant to execute

a sale deed in favour of the Petitioner by suppressing the fact that

pps 90 of 139 TRIBAL WP ST 1338 -20.doc

the notification under Section 32(1) of MID Act was already issued

on 8.6.2017 and the land had already vested in favour of the

Government. The Award, which is based on a void document and

false statement and obtained by fraud, is void and non est in the eye

of law.

56. The Petitioner has not ceased his endeavor to lure the very

same tribal-Occupant in entering in fresh unreasonable bargain, as

can be seen from the consent terms placed on record by Mr

Kulkarni, learned Counsel for the Petitioner in WP/ST/3339/2020.

He submits that the parties have settled the dispute amicably and

have signed the consent terms, which meet the requirement of Order

23 Rule 3 CPC. He fervently pleads that the compromise be

recorded and Petition be disposed of as per the terms, which read

thus:

CONSENT TERMS

1. The present Petition is filed challenging the Order dated 14/02/2020 passed by the Respondent No.1 SDO, below SR No.47/84 of 2019 whereby the Ld SDO was pleased to reject the Application filed by the Petitioners wherein the Petitioners are claiming amount of compensation or reference of the dispute of right to

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receive Compensation in respect of the acquired property to appropriate Civil Court and for such consequential reliefs.

2. All that piece and parcel of land bearing Survey No.812/1/23 admeasuring about 1 Hector 22 R situated at Village Ambethan, Taluka Khed, and within the limits of Sub-Registrar Khed, District Pune which is more particularly described in para 1 of the Plaint of Special Civil Suit bearing No.236 of 2016 filed before Civil Judge, Senior Division, Rajguru Nagar is hereinafter referred to as the "Suit Property", is originally owned by Respondent No.4 and accordingly his name is appearing on the 7/12 Extract of the suit property.

3. The Respondent No.4 decided to sell the suit property in favour of the Petitioner and accordingly entered into an oral agreement for sale dated 30/11/2006. It was specifically agreed by the Oral agreement, that in the event MIDC acquires the suit property, the entire compensation receivable along with other benefits will be received by the Petitioner. The right to receive compensation in respect of the suit property was assigned in favour of the Petitioner.

4. In pursuant of the oral agreement dated 30/11/2006 the Respondent No.4 executed an Irrevocable Power of Attorney dated 18/12/2006 in favour of the Petitioner,

pps 92 of 139 TRIBAL WP ST 1338 -20.doc

which is duly registered before the Sub-registrar of Assurances at Serial No.8406/2006. As per the said Power of Attorney there was a specific authority given by the Respondent No.4 to the Petitioner to do all such acts as necessary on behalf of the Respondent No.4 including to right to receive compensation along with other benefits in the event the suit property is acquired by MIDC.

5. Thereafter the Respondent No.4 executed a Development Agreement dated 23/04/2007 in favour of the Petitioner which is duly registered before the Sub-

registrar of Assurances at Serial No.3534/2007. It was specifically agreed in the Development Agreement as well as that in the event the suit property is acquired by the MIDC, then only the Petitioner is entitled to receive compensation and other benefits as and when determined.

6. In the meantime for certain breach on the part of Respondent no.4, the Petitioner was constrained to file Regular Civil Suit bearing No.236/2016 before the Civil Court Senior Division Khed, Rajgurunagar, for specific performance of oral Agreement dated 30/11/2006 and Agreement dated 23/04/2007.

7. The Petitioners states that, the above referred Civil Suit was settled between the Petitioner and Respondent no.4 and accordingly Compromise Judgment and Decree dated 08/07/2017 was passed by the Lok Adalat,

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Additional District Judge, Khed.

8. As per the Compromise terms, it was agreed that the Respondent no.4 will receive enhanced consideration and the Petitioner shall be entitled to receive any compensation and other benefits so determined in the event of acquisition.

9. In the meantime the Special land acquisition Officer/Collector No.26 issued notices under section 32(2) of the MIDC Act, 1961 thereby giving personal notices to all the parties and thereafter the State Government by notification dated 8th June 2017 notified various land including the Suit property by publishing the said notification as per the Section 32(1) of the MIDC Act, 1961.

10. The Petitioners by letter dated 30th August, 2019 raised the objection and dispute with the Respondent No.1 thereby intimating the Respondent No.1 that in view of the Agreement dated 30/11/2006 and view of the Compromise decree, the Petitioner himself is entitled to receive compensation and other benefits when the land is acquired for the Respondent MIDC and therefore requested that the entire compensation and other benefits may be paid to the Petitioners and requested the Respondent No.1 SDO that if anyone else demands payment of compensation and other benefits, the same

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may be deposited in appropriate court and the said dispute may be referred to appropriate Civil Court and also informed the Respondent No.1 that such dispute can be only decided by the Civil Court.

11. The Respondent No.1 SDO passed Award bearing No.SR/25/2019 dated 27/12/2019 as per the provisions of the MIDC Act, 1961 and thereby acquired the suit property and determined the compensation and other benefits payable for acquiring the suit property. As per the Award, the Respondent No.1 SDO who is acting as the Land Acquisition Officer has determined the amount of compensation of Rs.1,67,75,000/-( Rupees one crore sixty seven lacs, seventy five thousand only) subject of 10% Nazrana or 15% returnable Land.

12. On receipt of the Application and objection bearing No.47/84 of 2019, dated 30/8/2019 filed by the Petitioners herein, the Respondent No.1 SDO issued notices to the Respondent No.4 and the Petitioner as well calling upon them to submit their contentions in respect to entitlement of the compensation and thereafter heard the Petitioner and Respondent No.4.

13. After hearing both the sides the Respondent No.1 SDO by its Order dated 14/02/2020 below SR No.47/84 of 2019 was pleased to reject the objections filed by the Petitioners and held that the amount of compensation is

pps 95 of 139 TRIBAL WP ST 1338 -20.doc

payable to Respondent Nos.4.

14. Being aggrieved and dissatisfied by the impugned Order dated 14/02/2020 passed by the Respondent No.1 SDO, the Petitioner has filed this present Writ Petition challenging the same.

15. Thereafter the said Writ Petition was heard by this Hon'ble Court (Coram: Shri A.A. Sayed and Smt. Anuja Prabhudessai JJ.) from time to time.

16. Thereafter pending the said Writ Petition the Respondent Nos.4 approached the Petitioner to settle the said dispute of right to receive compensation between the parties amicably.

17. Accordingly, the Respondent Nos.4 and the Petitioner collectively agreed upon the terms of settlement and decided that the amount of compensation so determined by the Award bearing No.SR no.25 of 2019 dated 27/12/2019 shall be distributed amongst themselves. It was agreed that the Respondent No.4 will be entitled to an amount of Rs.50,00,000/- (Rs.Fifty Lacs only) subject to deduction of proportionate 10% Nazrana, and where as the Petitioner shall be entitled to the remaining amount of the Compensation, and also the benefit of the returnable land, and accordingly proportionate 10% Nazrana and amount of 15% returnable land, shall be deducted from

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the share of the Petitioner.

18. Accordingly, the Petitioners and the Respondent No.4 have settled the dispute inter-se mutually on the following terms and conditions which are recorded as follows:-

a. The order dated 14/02/2020 below SR No.47/84 of 2019 passed by the Respondent No.1 SDO stands Set- aside and substituted in accordance with the said Consent Terms.

b. The Petitioner and Respondent No.4 agree, declare and state that the Petitioner will be entitled to 1,17,75,000/- (Rupees One Crore seventeen lacs and seventy five thousand only) out of the amount of compensation so determined by the Award bearing No.SR/25/2019 dated 27/12/2019 subject to deduction of 10% Nazrana Amount and entire amount of 15% returnable land.

c. The Petitioners and Respondent No.4 agree, declare and state that the Respondent Nos.4 will be entitled to Rs.50,00,000/- (Rs. Fifty Lacs only) out of the amount of compensation so determined by the Award bearing No.SR/25/2019 dated 27/12/2019 subject to deduction of 10% Nazrana Amount.

d. The Petitioners and Respondent No.4 agree, declare

pps 97 of 139 TRIBAL WP ST 1338 -20.doc

and state that the Petitioner will be entitled for the 15% returnable land and the cost of the same would be borne by the Petitioner and/or shall be deducted from the amount receivable by the Petitioners.

e. Accordingly, the Petitioner and the Respondent Nos.4 are entitled to the following amount:-

(i) Amount of Compensation so determined by the Award-(without any deduction) Rs.1,67,75,000/-

(Rupees One Crore Sixty Seven Lacs, Seventy Five Thousand only).

(ii) Amount of 10% Nazrana Amount:-16,77,500/- (Rupees Sixteen Lacs Seventy Five Hundred only).

(iii).Amount towards returnable land(15%)-25,16,250/- (Rs Twenty Five Lacs, Two Hundred and Fifty Only)

(iv) Amount of compensation i.e. amount receivable by the Respondent No.4-Rs.50,00,000/-(10% Nazrana)= Rs.45,00,000/- (Rs. Forty Five lacs)

(v) The amount of Compensation i.e. amount receivable to the Petitioners-

a. Rs.1,17,75,000/--10% Nazrana= Rs. 1,05,97,500/- (Rupees One Crore Fifty Nine Thousand, Seventy Five Hundred only) b. Further deduction of amount of Returnable

pps 98 of 139 TRIBAL WP ST 1338 -20.doc

land i.e. 25,16,250/- = 80,81,250 (Rs.Eighty Lacs Eighty One Thousand and Two Hundred and Fifty only) f. In view of the above the Respondent nos.4 agree, declare and undertake to withdraw only the amount of i.e. Rs.45,00,000/- only.

g. The Petitioners agree, undertake and declare to withdraw the amount i.e. Rs.80,81,250/- (Rs. Eighty Lacs Eighty One Thousand and Two Hundred and Fifty only).

h. The Respondent No.1 SDO shall disburse the amount of compensation in the above referred term and award/transfer the Returnable land in favour of the Petitioner.

i. The above referred writ petition is disposed accordingly.

j. The parties have liberty to approach this Hon'ble Court in case of any difficulty.

57. It may be noted that the consent terms may constitute an

agreement or contract between the parties. However, such

settlement can be converted into a judgment only with a seal of

approval of the Court, on being satisfied that the compromise is

valid and legal. We are satisfied that the terms are neither valid nor

legal. As discussed in the foregoing paragraphs, the land belongs to

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a tribal. Though the Occupant had executed a Power of Attorney in

favour of the Petitioner Gautamsheth Wadve as far back as on

18.12.2006, authorizing him to obtain sanction, do all acts and

complete documentation necessary for execution of sale deed, the

Petitioner had not applied for sanction. Consequently, no sanction

has been accorded and approval granted under Section 36A MLRC.

The transfer of occupancy in favour of the Petitioner by virtue of

Development Agreement dated 23.04.2007 has been held to be

invalid for want of sanction under Section 36A. Resultantly, the

Petitioner has absolutely no right, title or interest in the subject land.

Despite which in the consent terms filed before the Lok Adalat, the

Petitioner had claimed right to receive the entire compensation by

paying to the Occupant a sum Rs.3,00,000/- in addition to the

consideration of Rs.4,76,000/- stated in the agreement. Whereas in

the consent terms filed before this Court, the Occupant, who is the

"person interested" has been allured by offering Rs.50,00,000/- as

against this the Petitioner who has no semblance of right, is to

receive compensation of Rs.1,17,75,000/- and in addition 15%

returnable land. This is nothing but a blatant attempt to exploit a

tribal and to deprive him not only of compensation but also to

render him landless and deprive him of his only source of

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livelihood. The consent terms are profoundly unjust and against

public policy.

58. By these consent terms the Petitioner has tried to nullify the

order dated 31.10.2014 and attempted to validate the transfer

without obtaining prior sanction of the Collector and approval of

the State Government. Suffice it to say that, neither the Court nor

the parties can validate transfer, which is violative of the mandate

under Section 36A MLRC. Authenticating such process, as adopted

by the Petitioner, will render the statutory provision nugatory and

deflect the course of justice. Hence, the Petitioner cannot be

permitted to receive compensation on the strength of the consent

terms which are based on a void agreement, opposed to public

policy and a nullity. Hence, we cannot put our imprimatur upon the

consent terms, which are not lawful and are against public policy.

59. We are constrained to observe here that Mr.Ajinkya Udane,

learned Advocate, who has put in his appearance on behalf of the

Occupant only for filing of the consent terms, has not tried to

safeguard the interest of his client, who is not familiar with the

nuances of law. Though in a different context, the role and duties of

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the advocate towards his client is well described by the Apex Court

in Panduang Dattatraya Kahandekar vs Bar Council of

Maharashtra Bombay & Ors. 1984(2) SCC 556 as under:

"For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. When an advocate is entrusted with a brief, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsel's paramount duty is to the client. When a person consults a lawyer for his advice, he relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client for the protection of his interests. An advocate stands in a loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need. The members of the legal profession should stand free from suspicion."

60. In the instant case, the Advocate representing the Occupant

has endorsed the consent terms which permit the Petitioner, who

has absolutely no right or interest in the land, to claim a major part

of compensation as well as 15% of the land which was to be

pps 102 of 139 TRIBAL WP ST 1338 -20.doc

returned to the Occupant. While endorsing the consent terms he has

ignored the principles in Sneh Prabha (Smt.) vs State of UP &

Anr. (1996) 7 SCC 426 that a subsequent purchaser cannot take

benefit of land policy and that these rights are conferred only on

the owner of the land on the date on which Section 4(1) notification

was published. In Shivkumar (supra), a three judge bench of the

Hon'ble Supreme Court has held that a person who has purchased

the land after section 4 notification under 1894 Act cannot claim

rehabilitation or resettlement as per Right to Fair Compensation Act

of 2013. The same principles will apply to the acquisition under the

MID Act. In the instant case there is no concluded contract in favor

of the Petitioner, as to treat him as a subsequent purchaser. Even

though the Petitioner has no semblance of right, Ajinkya Udane, the

Advocate for the Occupant has approved the consent terms which

are detrimental to the interest of his client. He has not acted in the

best interest of his client but it appears that Ajinkya Udane, who has

apparently been engaged only for the purpose of filing consent

terms, has acted in tangent with and as per the dictates of the

Petitioner. It is pertinent to remember at all times the words of His

Lordship Justice Krishna Iyer -"Nothing should be done by any

member of the legal fraternity which might tend to lessen in any

pps 103 of 139 TRIBAL WP ST 1338 -20.doc

degree the confidence of the public in the fidelity, honesty and

integrity of the profession."[V.C.Rangadurai vs D. Gopalan &

Ors.1979 SCR (1) 1054].

61. Now adverting to the validity of the judgments and decrees of

the Civil Court, it is seen that the Suits were based on Oral

Agreements for Sale and Development Agreements. The Petitioner

had pleaded and deposed that the Development Agreements are

valid, legal and still in force. That the Development Agreements

are valid and in force was apparently a false statement. The trial

court has accepted the said statement and has held that the terms

and conditions of the agreements are comprehensive and that the

time is not essence of contract. The trial court has held that since

the land is of new and restricted tenure, there is restriction on sale

or transfer of the land without prior permission. The trial court

accepted the contention of the Petitioner that the Occupants had

avoided obtaining the permission from the competent authority for

sale of the subject lands.

62. It is to be noted that the Occupants had claimed that the

Development Agreements relate to the tribal lands and were illegal

pps 104 of 139 TRIBAL WP ST 1338 -20.doc

for want of sanction under Section 36A. The Occupants had also

averred and deposed that by order dated 31.10.2014 the SDO had

held the transfer to be invalid for want of sanction under Section

36A. The trial Court has not referred to and relied upon the order

of the SDO but relying upon the statements of the Occupants that

they do not have documentary evidence to prove their caste claim

or that they are tribals, held that the agreements were validly

executed. The trial Court disbelieved the plea of fraud and

exercised discretion to grant specific performance in favour of the

Petitioner. Accordingly, the trial Court directed the Occupants to

comply with all the terms and conditions of the Agreement dated

30.11.2006 and 23.04.2007 within 45 days and to execute a Sale

Deeds in favour of the Petitioner on receipt of the balance

consideration. The trial Court has directed that since the Petitioner

is in possession of the subject lands on license basis as per the

Development Agreements, he should be put in permanent

possession of the subject lands. The trial Court has directed the

Occupants to pay the entire compensation to the Petitioner, in the

event the subject land is already acquired by the MIDC.

63. It is relevant to note that the Trial Court has granted relief of

pps 105 of 139 TRIBAL WP ST 1338 -20.doc

specific performance with direction to the Occupants to obtain

sanction from the Competent Authority to transfer the land allotted

under new and restricted tenure. The trial court has dispensed with

the requirement of sanction under Section 36A on the ground that

the Occupants have failed to prove their caste claim. Needless to

say, the findings of the trial Court on the issue of the validity of the

Agreements and caste claim of the Occupants, are contrary to the

findings recorded by the SDO in order dated 31.10.2014.

Furthermore, the trial Court has relied upon a false statement of the

Petitioner that the Development Agreements are valid and has

granted specific performance of agreements, which are held to be

invalid by the Competent Authority in exercise of powers under

sub-Section 5 of Section 36A of the MLRC. Suffice it to say that,

the jurisdiction of the Civil Court to nullify the order passed by the

SDO under sub-Section 4 and 5 of Section 36A or to dispense with

sanction under Section 36A is statutorily barred under Section 36C

of the MLRC. Moreover, a Decree based on Development

Agreements which are ab initio void is a nullity. This is the law

propounded by the Apex Court in Rajasthan Housing Board (supra).

In view of these reasons, the decision of the Division Bench of this

Court in Shivganesh Co-operative Housing Society (supra) which is

pps 106 of 139 TRIBAL WP ST 1338 -20.doc

in the context of Section 42 of the Maharashtra Slum Areas

(Improvement Clearance and Redevelopment) Act,1971, is

distinguishable and not applicable to the facts of the case. The

Decrees relied upon by the Petitioners, which are wholly without

jurisdiction and ab initio void, would not confer any right on the

Petitioners.

64. Reliance on the decisions of the Apex Court in Jagdish Singh

and Urmila Devi (supra) and of the Division Bench of this Court in

Dossibai (supra) and the contention that the Petitioners are entitled

to compensation in lieu of specific performance or that they have

right to receive compensation even though they have no right, title

or interest in the land is totally misplaced. The decisions in Jagdish

Singh and Urmila Devi (supra) were in the context of Section 21 of

the Specific Relief Act. The Plaintiffs in these cases were held to be

entitled for decree of specific performance. However, the contract

had become unenforceable due to the acquisition of the suit

property during the pendency of the Second Appeal. In this context

it was held that when the contract has become unenforceable, for no

fault of the Plaintiff, he would be entitled for compensation in lieu

and substitution of specific performance of contract.

pps 107 of 139 TRIBAL WP ST 1338 -20.doc

65. The question in Dossibai (supra) was whether the Claimants

who were entitled to claim the benefit of part performance under

Section 53A of the TP Act and also to claim specific performance to

agreement to lease, were 'person interested' and were entitled to

receive compensation. It is in this context the Division Bench of

this Court has held thus:

"6. .... A "person interested in the land" under Section 9 will, in our judgment, by the definition in Section 3(b), include a person who claims interest in compensation to be paid on account of the acquisition of land, and the interest which is contemplated by Section 9 and the other sections to which we have referred is not restricted to legal or proprietary estate or interest in the land but includes such interest as will sustain a claim to apportionment with the owner of the land. If a person has a right to remain in occupation or has a claim against the land, or some obligation or restriction is imposed upon the ownership of the land, the person in whom the right or claim is vested or who is entitled to the benefit of the obligation or restriction will, in our judgment, be entitled to compensation, even though the right, claim or the benefit may not amount to an interest or estate in the land. If a person has, without having any interest, a right to remain in occupation or possession of land of the ownership of another,

pps 108 of 139 TRIBAL WP ST 1338 -20.doc

compensation for extinction of that right by compulsory acquisition will be payable to the person having the right of occupation or possession. For instance, a person who has a licence which is irrevocable will be a person interested, even though the licence does not amount to an interest in the land. The owner of a dominant tenement, having an easement over a servient tenement, even though the easement does not amount to an interest in the land, is by the definition declared expressly to be a person interested in land. In our judgment, the right to receive compensation for compulsory acquisition of land is not restricted to those persons who have a legal or proprietary interest or estate in the land and is available to all persons who have a right or claim to land, even if such right or claim does not amount to legal or proprietary estate or interest in the land."

66. The facts of the aforestated cases are not in alignment with

the present matter. In the instant case, the agreements as well as the

Award and the Judgments and Decrees on the strength of which the

Petitioners have claimed right to receive compensation, do not

confer any right, title, or interest in favour of the Petitioner.

Moreover the Petitioners have not been able to demonstrate that

their right of whatsoever nature has been infringed or affected on

pps 109 of 139 TRIBAL WP ST 1338 -20.doc

account of acquisition of the subject land. Hence, the Petitioners

cannot be considered as persons interested in the land and/or are

interested to receive compensation in respect of the said land.

67. The Respondents have also claimed that the Petitioners cannot

claim any right based on post notification transactions, which are

void. In support of this contention, reliance has been upon the

decision of the Apex Court in Meera Sahani (supra), and the

decisions of the Division Bench of this Court (Aurangabad Bench)

in Avdhut Shinde and Shaikh Kalim Shaikh Mohammad (supra), In

Meera Sahni as well as in Avdhut Shinde, the subsequent purchasers

had challenged the acquisition proceedings whereas in Shaikh

Kalim Shaikh Mohammad (supra) challenge was to the refusal of

registration of subsequent sale transaction. The Apex Court as well

as this Court has turned down the challenge by the subsequent

purchasers on the ground that the post notification transactions are

illegal, void transactions, and do not bind the State.

68. It may be mentioned that in Shiv Kumar (supra), the question

involved was whether a purchaser of the property after issuance of

notification under Section 4 the Land Acquisition Act can invoke

pps 110 of 139 TRIBAL WP ST 1338 -20.doc

the provision contained in Section 24 of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act. While considering this issue, a

three-Judge Bench of the Apex Court, on considering the earlier

judgments on the issue, has reiterated that such transactions are void

and do not bind the State and that the only right available to the

subsequent purchaser is to claim compensation payable to the

original owner. The Apex Court has taken note of the fact that after

publication of Section 4 notifications, the builders and unscrupulous

persons purchase the property at a throw away price. Such

transactions are void and confer no right even to claim higher

compensation under Section 24 (2) of the Act of 2013.

69. It is thus well settled that the subsequent sale transactions do

not bind the State and that the subsequent purchasers cannot

challenge the acquisition. In the present Petitions, the Petitioners

herein have not challenged the acquisition but have claimed right to

receive compensation. The proposition that the subsequent

purchasers has right to claim compensation payable to the original

owners will not apply in the present case as in the present case the

claim is based on agreements for sale, which as stated earlier do not

pps 111 of 139 TRIBAL WP ST 1338 -20.doc

create any interest in or charge on the property. There being no

concluded contract in favour the Petitioners, they cannot be

considered as subsequent purchasers. The Development

Agreements relied upon in the second group of Petitions are void

not only against the State but, as in the case of Rajasthan Housing

Board (supra), are void inter-se between the parties. As a result, the

Petitioners have no right to claim compensation payable to the

original owners/ Occupants on the basis of these transactions.

Moreover, these post notification agreements, which are otherwise

void, also cannot be specifically enforced in view of publication of

notification under Sub- Section (1) of Section 32 and absolute

vesting of the land in the State Government, in accordance with

sub-Section 4 of Section 32 of the MID.

70. It is also pertinent to note that for a valid and enforceable

contract the terms of the contract have to be certain and the parties

have to be at consensus ad idem. In Soran Singh (supra) right to

receive compensation was transferred after passing of the Award,

and in Sadhana Gupta (supra) such right was transferred during the

pendency of the reference. In both these cases, the compensation

payable to the erstwhile owner was already quantified. Whereas, in

pps 112 of 139 TRIBAL WP ST 1338 -20.doc

the present case the Petitioners had entered into Agreement for Sale

and Development Agreements after publication of notification

under Section 1(3) of MID Act. The clause to assign right to

receive compensation was inserted knowing fully well that the tribal

land was likely to be acquired. As on the date of the execution of

the agreements, neither the date of notification under Section 32(1)

was finalized nor was the compensation payable to the person

interested quantified. It is thus evident that, the right that was

transferred viz. the right to receive compensation, was itself

ambiguous and indeterminate in nature.

71. As it has been aptly observed by the Calcutta High Court in

Abdul Khalegue vs. Megaswar Hossain AIR 1967 Cal. 56 - "to

permit in such a case and in such a context, sale of the mere right to

compensation which on the facts of the case itself is indeterminate,

and when at the time the sale proclamation was made, no

compensation roll had even been prepared, would be to encourage

speculation and trafficking in a new species of gambling. Such a

right to compensation due to its vagueness may be bought up by a

handful of persons throughout the State to promote rampant

speculation and the purchasers would not know what actually they

pps 113 of 139 TRIBAL WP ST 1338 -20.doc

are buying nor the seller would get the value which has any relation

to the reality".

72. We would like to add here that enforcing such agreements

will also encourage the intermeddlers and non-tribals, who are

always on the prowl to identify lands which are likely to be

acquired, to induce the innocent, vulnerable, poverty stricken tribals

to part with their only source of livelihood. The matters in hand are

illustrations of such dubious and unconscionable transactions and

exploitations of the tribals by non-tribals or intermeddlers. The

Petitioners, who are Developers, have identified the tribal land

which was notified under Section 1(3) of the MID Act and lured

and induced the tribals, who were facing financial crunch, to enter

into Agreements for Sale, Power of Attorneys and Development

Agreements with a clause to assign the right to receive

compensation and other benefits of acquisition for grossly

inadequate consideration, which as compared to the compensation

awarded in the acquisition proceedings is as good as no

consideration. These tribals, who have been divested of their land

due to the acquisition for ongoing industrial advancement, stare at

the prospect of being deprived of the compensation and other

pps 114 of 139 TRIBAL WP ST 1338 -20.doc

benefits of the acquisition. Enforcing such agreements and the

Clause in particular, the very object of which is to economically

exploit the tribals, will not only amount to placing premium on the

exploitation perpetuated by the land grabbers but will denude the

tribals of socio-economic empowerment and dignity of their person.

73. It is also well settled that unequal bargaining power, resulting

in unfair and unreasonable contract, is also an invalidating factor. In

Central Inland Water Transport Corporation Ltd. v. Brojo Nath

Ganguly, 1986 (2) SCR 278 the Apex Court while considering

constitutionality of the conditions in statutory rules vis-à-vis its

employee to terminate the service of a permanent employee in terms

of the rules held thus:

"...The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike an unfair and unreasonable contract, or an unfair and

pps 115 of 139 TRIBAL WP ST 1338 -20.doc

unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the speaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. ..."

74. The above ratio was upheld, per majority, in D.T.C. vs. D.T.C.

Mazdoor Congress, 1990 (1) Supp. SCR 142. Similarly in Lingappa

Pochanna Appelwar (supra) the Apex Court has observed that there

is always a presumption when there is a transfer between a tribal and

a non-tribal that it is an unequal bargain. As regards the weak and

pps 116 of 139 TRIBAL WP ST 1338 -20.doc

the helpless, the law guards them with a special protective care. The

Apex Court has further observed that it is axiomatic that a contract

is liable to be set aside due to inequality of bargaining power, if

someone without independent advice, enters into a contract on terms

which are very unfair or transfers property for a consideration which

grossly inadequate when his bargaining power is previously

impaired by reason of his own need or circumstances, or by his own

ignorance or infirmity, coupled with undue influences or pressures

brought to bear on him by or for the benefit of the other.

75. In Uddar Gagan Properties vs. Sant Singh (2016) 11 SCC

378 the builder had purchased the interest of the original land

holders after the acquisition process was initiated, and at his

instance the State had released the land under Section 48 of the Land

Acquisition Act. The decision of the State was questioned by the

land owners. The High Court set aside the release order and

quashed the acquisition and restored the land to the land owners. In

appeal, the Apex Court has referred to and quoted the observations

of the High Court wherein compulsions of farmers to sell the land,

which is a subject matter of acquisition, have been expressed as

under:

pps 117 of 139 TRIBAL WP ST 1338 -20.doc

" A farmer seldom sells the land save for compelling reasons. Agriculture being their only source of survival, the loss of land is a terrible nightmare for any farmer. The Land Acquisition Collector never assesses the compensation as per actual market value of the land and the only yardstick to be followed is the Collectors rate fixed for the purpose of registration charges. The farmers cannot sell the land in open marked as on issuance of Sec. 4 notification all sale transactions are invariably banned. These moments of fear and anxiety must have prompted the farmer to indulge in the best bargain. For the farmers the offer was like "better you give the wool then the whole sheep" . There was no free trade for the farmers. Their choice was limited: to accept the State compensation at the Collector's rate or a better offer given by State-sponsored private builder. There was inequality of bargaining power. The determination of land value was not at all in the control of farmers. They were groping in the dark. They had no clue that the land will be released. They accepted the unreasonable and unfair unilateral terms and lost their land."

76. In the instant case, the tribals were pitted against

unscrupulous land grabbers, who with money and muscle power

and with dubious means and methods were in a position to lure or

induce this economically and socially weaker class, to enter into

pps 118 of 139 TRIBAL WP ST 1338 -20.doc

strategically planned conniving transactions. The Petitioner who

are Developers by profession were no strangers to the fact that the

land was to be acquired. They had entered into these transactions

impending acquisition knowing the potential value of the land,

whereas the tribals were constrained to enter into unconscionable

and unreasonable bargain only due to financial constraints without

even knowing the value of the land. Even if the Occupants

have entered into similar transactions with other Developers as

alleged, it would only lead to an inference that the Socio economic

disparity of this disadvantaged section has made them highly

vulnerable to exploitative and devious ingenuity of the Developers.

77. The facts of the first group of Petitions highlight the

exploitation of the innocent tribals by wily and greedy land

grabbers. It is seen that in WP. (St) No.1338 of 2020, by Agreement

dated 05.06.2006 the Occupants had agreed to sell the subject land

admeasuring 3 Hectare 28 R to Amol Mutha (R-3) for sale

consideration of Rs.6,75,000/-. It is stated that an amount of

Rs.1,50,000/- was paid to the Occupant/Tribal and the balance

amount was to be paid on obtaining requisite sanction and on

execution of the sale deed. Being illiterate and ignorant of the

pps 119 of 139 TRIBAL WP ST 1338 -20.doc

requisite procedural aspect and nitty-gritty of such transaction, these

tribals executed a Power of Attorney in favor of the Respondent

No.3 authorizing him to procure purchasers, to prepare

documentation, obtain sanction/ permission, execute agreement for

sale, sale deed, etc in respect of the subject land and to submit the

same on their behalf before the Sub-Registrar for registration. The

Respondent No.3 did not conclude the transaction, but acting on the

said Power of Attorney, he entered into an Agreement for Sale dated

03.09.2016 with the Petitioner whereby he agreed to sell the land

and assigned right to receive compensation and other acquisition

benefits for sale consideration of Rs.20 lakhs.

78. Similarly in the other four Petitions of the first group, the

Occupants had entered into agreement with Sanjay Nanekar and

Dattaraj Wafgaonkar Respondent No. 6 in the respective petitions,

for sale of the land admeasuring 1 Hector 22 for sale consideration

of Rs.4,00,000/- each. The Occupants in these Petitions were paid

Rs.1,00,000/- and the balance sale consideration was to be paid on

execution of the sale deed. The said agreements did not culminate in

sale transactions as a consequence the Occupants were not paid the

balance sale consideration. It is seen that in little over two months,

pps 120 of 139 TRIBAL WP ST 1338 -20.doc

Anil Kad (R-7) as the Power of Attorney of the Occupants and

Respondent No. 6 in the respective Petitions as consenting parties,

entered into agreements for sale with the Petitioners-Narangs, for

sale of the subject lands for sale consideration of Rs.12,20,000/-.

79. The quantum jump in the sale consideration within a span of

three months would itself indicate that the price agreed in initial

agreements was not the actual value of the land. It is also to be

noted that in the second and third group of Petitions the Occupants

had assigned development rights in respect of land admeasuring 1

Hectare 22 R for consideration of Rs.4,76,000/. The vast disparity

in the price offered in the first group of Petitions and the second and

third group of Petitions indicates that the price was not determined

by the market force.

80. It is also not in dispute that Amol Mutha, Respondent No.3 in

WP/ST/1338/2020 had received a sum of Rs. 5 lakhs as part sale

consideration. Mr. Surel Shah, the learned Counsel for Respondent

No.3 has not disputed that Respondent No.3 has not paid the said

amount to the Respondent Nos.1 and 2 though the same was

received by him as their agent. Similarly, in the other four Petitions,

pps 121 of 139 TRIBAL WP ST 1338 -20.doc

a perusal of the Agreements executed by Respondent No.7- Anil

Kad in favour of Petitioners -Narangs indicate that in each of these

Petitions, out of total sale consideration of Rs.12,20,000/-, the

Petitioners had paid Rs. 6,10,000/- each to Sanjay Nananekar and

Dattataraj Wafgaonkar, (the erstwhile purchasers- Respondent No.6

in respective Petitions) and the balance sale consideration of

Rs.6,10,000/- has been paid to the Power of Attorney holder-Anil

Kad (Respondent No.7). As aforementioned, the erstwhile

purchasers had agreed to purchase the subject land for

Rs.4,00,000/-. They had paid an amount of Rs. 1,00,000/- to the

Occupants. Without concluding the contract and making any further

amount to the Occupants, they have received Rs.6,10,000/ each as a

consenting party. In these transactions, these proposed erstwhile

purchasers, who had absolutely no right to the land have walked

away with considerable amount, while the Occupants, who are the

actual landholders have been left in the lurch. Furthermore in these

six Petitions of the first group as well as in WP/(ST)/3236/ 2020,

the Power of Attorney holders have authorized the Petitioners to

receive compensation, despite there being no such authority in their

own favour. This is nothing but total misuse of Power of Attorney

and misappropriation of the amount payable to the Occupants.

pps 122 of 139 TRIBAL WP ST 1338 -20.doc

81. The Petitioners are claiming right to receive compensation

varying between Rs.2,75,00,000/- to Rs.1,67,75,000/- as against a

meager amount purportedly paid to the Occupants, which does not

exceed Rs.3,00,000/-. It is apparent that the Petitioners, who were

aware of restrictions on transfer of occupancy have allured these

tribals to assign the right to receive compensation on paying

nominal consideration. Compelled by financial constraints and

oblivious of their rights or ill equipped to protect their rights, these

tribals have fallen prey to the conniving Developers who were

looking for windfall gains. This is nothing but intended economic

exploitation and undue and unconscionable enrichment. In these

transactions, the tribals were nothing but puppets in the hands of the

Petitioners. They had no meaningful choice but had to accept

unreasonable and unfair unilateral terms determined by the

Petitioners. In view of clear socio economic disparity and gross

inequality of bargaining power between the contracting parties, it is

difficult to accept that the tribals had understood the true nature of

the contracts. The Clause relating to the assignment of right to

receive compensation is unfair, indefensible, arbitrary and between

the parties having highly unequal bargaining power, hence

pps 123 of 139 TRIBAL WP ST 1338 -20.doc

unenforceable. We are therefore of the considered view that the

agreements, based on which the Petitioners are claiming right to

receive compensation, are ab-initio void. As a corollary thereof, the

Petitioners are not entitled to claim or receive any compensation on

the basis of such Agreements.

82. The transactions on the basis of which the Petitioners are

claiming right to receive compensation were executed in the year

2006 - 2007. It is to be noted that the Power of Attorney Holders

who were authorized to obtain sanction and execute the Sale Deeds

had not taken steps to obtain sanction or to challenge the order

dated 31.10.2014 and to conclude the contract for a period of about

10 years. The Petitioner Gautamsheth Wadve has sought to enforce

these agreements by Suits filed in the year 2016-2017, whereas

Narangs-the Petitioners in the four Petitions of the first group have

filed the Suits in the year 2018 after publication of notification

under Section 32(1) and vesting of the land in favour of the State

Government. A perusal of the Award indicates that meeting was

held with the landholders/Occupants during the pendency of these

Suits and compensation was determined by agreement in

accordance with Section 33(2) of the MID Act. None of these

pps 124 of 139 TRIBAL WP ST 1338 -20.doc

Petitioners had participated in the meeting. They had neither

challenged the authority or competency of the Occupants to

negotiate nor have they raised any dispute over the quantum of

compensation determined by the SDO. The Petitioners therefore

cannot be heard to say that the State Government was bound to

refer the case to the Collector under sub-Section (3) of Section 33

of the MID Act for determining the amount of compensation as also

the persons to whom such compensation was payable.

83. It is pertinent to note that Section 34 of the MID Act, enables

a party aggrieved by the decision of the Collector determining the

amount of Compensation, to make a written application to the

Collector, within sixty days from the date of the decision, to refer

the matter to the Authority for determination of the quantum of

compensation. In the instant case, the Petitioners have raised the

objections even before determination of the amount of

compensation. Moreover, they have not challenged the quantum of

compensation. The Applications/ Objections, which were filed

prior to making of the Award, and which do not challenge the

quantum of compensation determined by the SDO cannot be

construed as applications for reference under Section 34 of the MID

pps 125 of 139 TRIBAL WP ST 1338 -20.doc

Act. The objections filed by the Petitioners prior to the Consent

Award, claiming right to receive compensation come within the

purview of Section 35 of the MID Act, which reads thus:

"35. When the amount of compensation has been settled under Section 33, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute for the decision of the Court."

84. Section 35 of the MID Act, which is pari materia with Section

30 of the Land Acquisition Act, 1894, confers discretion on the

SDO to make a reference to the Competent Court. In Sharda Devi

(supra), the Apex Court while considering the scope of Section 18

and 30 of the Land Acquisition Act, 1894 has held that-

"Under Section 18 the Collector does not have power to withhold a reference. The Collector has no discretion in the matter, whether the dispute has any merit or not is to be left for the determination of the Court. Under Section 30 the Collector may refer such dispute to the decision of the Court. The Collector has discretion in the matter. Looking to the nature of the dispute raised, the person who is raising the dispute , the delay in inviting the attention of the Court, and so on - are such illustrative factors which may enter into the

pps 126 of 139 TRIBAL WP ST 1338 -20.doc

consideration of the Collector while exercising the discretion. If the Collector makes the reference it may be decided by the Court subject to its forming an opinion that the dispute was capable of reference and determination under Section 30 of the Act. In case the Collector refuses to make a reference under Section 30 of the Act, the person adversely affected by withholding of the reference or refusal to make a reference shall be at liberty to pursue such other remedy as may be available to him under the law such as filing a writ petition or a civil suit."

85. It is not necessary to refer to all the other decisions relied

upon by the respective parties in view of this settled dictum.

Applying the same principles to the provision under Section 35 of

MID Act, it can be said that SDO is not bound to make a reference

to the Court. Though the SDO cannot adjudicate upon the dispute,

he is not expected to act as a post office to transmit the objections

to the Civil Court. The SDO certainly has discretion to consider

whether the Petitioners are aggrieved persons. It is only on being

prima facie satisfied that the Petitioners are indeed aggrieved

persons and that the dispute between the parties needs adjudication,

that the SDO is required to refer the dispute to the Competent Court

pps 127 of 139 TRIBAL WP ST 1338 -20.doc

and deposit the compensation in the said Court.

86. In the instant case, the SDO has refused to exercise the

discretion mainly on the ground that the agreements on the basis of

which the Petitioners are claiming right to receive compensation

were ex facie in contravention of the mandatory provision of

Section 36A and void ab-initio. Learned Counsel for the Petitioners

have not been able to demonstrate that the Petitioners are persons

interested in the subject land or that they have right to receive

compensation. Yet their persistence is on a reference under Section

35 and deposit of compensation either before the reference court or

before the court wherein the civil suits are pending. Such reference

is sought only on the ground that the SDO was not competent to

decide the validity of the agreements and comment on the judgment

of the Civil Court. We have independently considered the validity

of the agreements as well as the Lok Adalat Award and Decrees of

the Civil Court and have recorded a finding that the agreements,

Award and Decrees of the Civil Court are void. In such

circumstances, referring a non-existing dispute to the Civil Court

and subjecting the Occupants to a prolonged litigation at huge

expense will not only prejudice their interest but will in fact cause

pps 128 of 139 TRIBAL WP ST 1338 -20.doc

grave injustice to them.

87. In the circumstances, the learned SDO was justified in

declining to refer the dispute to the Civil Court and or to deposit the

compensation in the said Court. As already observed by us, the

Petitioners have no right or interest in the subject land and are not

entitled for compensation. The subject land belongs to the

Occupants and they are the only rightful claimants to disbursal of

compensation. Such right cannot be tinkered with by void

transactions. Hence, the SDO was justified in ordering payment of

compensation to the Occupants. Under the circumstances and in

view of discussion supra, the impugned orders do not warrant any

interference in writ jurisdiction. Resultantly, the Writ Petitions are

liable to be dismissed.

88. Generally, we would have directed the SDO to deposit the

compensation in the individual accounts of the Occupants in any

nationalized bank. However considering the vulnerability of the

tribals and an attempt made by the Petitioners to overreach the

Court by filing consent terms at the stage of order, we apprehend

that that these vested interests will deprive the tribals of

pps 129 of 139 TRIBAL WP ST 1338 -20.doc

compensation rightfully due to them. It is therefore obligatory to

ensure that the compensation is neither usurped by the Petitioners

nor squandered away the Occupants, for want of fiscal discipline.

At this stage, we would like to refer to the decision of the Gujarat

High Court in Ajarambhai And Muljibhai Anr. vs. United India

Insurance Co. Ltd. AIR 1984 Guj 7, wherein while dealing with

the application for withdrawal of compensation payable under the

Motor Vehicle Act, the Division Bench of Gujarat High Court has

observed that :

" If the whole or substantial part of the compensation money is paid to claimants who have never handled such huge amounts in their lives there is the danger of their frittering away the amount for want of fiscal discipline in their lives. If the amount is squandered away, which in all, probability may happen the socio- economic objective intended to be achieved by the award of compensation will be wholly defeated. We are, therefore, of the opinion that in such cases it is imperative on the Claims Tribunal to protect such claimants, no matter they are adults, by directing the investment of lump sum compensation awarded to them.

xxx The Claims Tribunal while investing the said amount in long term fixed deposits will also take care to see

pps 130 of 139 TRIBAL WP ST 1338 -20.doc

that the corpus remains intact so that no loan or advance is permitted on- the said fixed deposit to the applicants by the Bank without obtaining its express order in that behalf. The Bank issuing the fixed deposit receipt should endorse on the face of the receipt that no loan or advance should be granted on the strength of that-receipt unless there is an express order of the Tribunal in that behalf. Similar note should be made in the bank records to rule out the possibility of obtaining a loan or advance by taking out a duplicate receipt, On the expiry of the period of 5 years, the Claims Tribunal will consider whether the fixed deposit should be further extended and if so, for what period."

89. In the aforesaid decision, the Gujarat High Court has laid

down broad guidelines to be followed by the Claims Tribunals

while, disposing of claim applications arising, under the Motor

Vehicles Act, 1939, to scotch complaints of misapplication of

compensation money. These guidelines have been approved,

endorsed and adopted by the Hon'ble Supreme Court in Union

Carbide Corporation Etc. vs. Union Of India Etc. Etc 1992 AIR

248, with appropriate modifications. The Apex Court in General

Manager, Kerala S.R.T.C vs. Susamma Thomas 1994 AIR 1631,

has directed the Claims Tribunals to follow these guidelines to

pps 131 of 139 TRIBAL WP ST 1338 -20.doc

safeguard the feed from being frittered away by the beneficiaries

owing to ignorance, illiteracy and susceptibility to exploitation.

90. The plight of the Occupants in the present Petitions is no

different. They are illiterate, poverty stricken, vulnerable tribals,

who are highly susceptible to economic exploitation, rather have

already been subjected to economic exploitation. In a systematic

ploy, every attempt has been made to circumvent the statutory

provisions and to deprive the Occupants of right to receive

compensation of the land legally held by them. In view of these

peculiar facts, it is necessary to protect these tribals from economic

exploitation and usurpation of compensation by the Petitioners or

other vested interest. It is also necessary to prevent these tribals

from squandering away the compensation due to lack of fiscal

discipline. We therefore propose to adopt and follow the same

guidelines with appropriate modifications.

91. It is also a matter of great concern that in blatant violation of

statutory provisions, the Petitioners in unison with the Power of

Attorney Holders and erstwhile purchasers, have attempted to grab

the land which was either purchased by the Occupants under the

pps 132 of 139 TRIBAL WP ST 1338 -20.doc

provisions of Tenancy Act or was allotted to them by the State

Government in effectuating the policy of economic empowerment.

The facts brought on record prima facie indicate that the Occupants,

who are illiterate, poverty-stricken tribals, have succumbed to the

wiles of the Petitioner Gautamsheth Wadwe and entered into

dubious and unconscionable transaction, wherein they assigned

development rights as well as right to receive compensation for

nominal consideration. These transactions which are already held

to be invalid by the Competent Authority under the MLRC, are

unreasonable and prima facie cannot be said to be voluntary or free

from undue fraudulent influence.

92. Similarly, the facts of the first group of Petitions prima facie

indicate that there was unholy nexus between the Petitioners, Power

of Attorney Holders and the erstwhile purchasers, who had

connived to grab the tribal land which was likely to be acquired and

usurp the compensation payable to the tribals. The innocent

unsuspecting tribals falling prey to this well planned scheme

entered into 'Agreements for Sale' and simultaneously executed

power of attorney authorizing the Power of Attorney Holders to

procure buyers and to take all further steps for the execution and

pps 133 of 139 TRIBAL WP ST 1338 -20.doc

registration of the sale deed. The records reveal that without

cancelling the previous Agreements, the Power of Attorney Holders

as well as the erstwhile purchasers acting as consenting parties,

have entered into fresh transactions with the Petitioners in the first

group of Petitions, wherein they have not only agreed to sell the

land/assign development rights but also assigned right to receive

compensation. Similar is the case in WP/ST/3236/2020, wherein,

acting on the Power of Attorney, Gautamsheth Wadve has

authorized his son Sachin Wadve to receive the compensation. This

is nothing but blatant misuse of the authority given by the

Occupants. Furthermore, it is also on record that the Power of

Attorney- Amol Mutha and the erstwhile purchasers- Sanjay

Nanekar and Dattaraj Wafgaonkar have misappropriated the

consideration payable to the Occupants, while it is not clear

whether the consideration received by the Power Of Attorney

Holders in the other matters of the first group has been tendered to

the Occupants.

93. The totality of the facts prima facie substantiates the claim of

the Occupants that the transactions are not genuine. In fact, this has

been the consistent claim of the Occupants as can be seen from the

pps 134 of 139 TRIBAL WP ST 1338 -20.doc

defence raised before the trial court. In the written statement filed

before the trial Court, copy of which has been placed on record,

these Occupants had averred that the Petitioner had obtained Power

of Attorney and taken their signatures on certain documents

representing that he had good relations with the officials of MIDC

and could get the property released from acquisition and that he

could procure a purchaser who would offer better price. The

Occupants had denied having received any money from the

Petitioner. These Occupants had averred that the Petitioner was

aware that the Development Agreement could not be registered in

view of an entry in the Revenue Record. Hence the Petitioner did

not annex the 7/12 extract issued by the Talathi, but managed to

register the Development Agreement by annexing the computerized

copy of 7/12 extract without a remark about MIDC acquisition.

The Occupants have averred that the Petitioner Gautamsheth Wadve

and the witnesses Harishchandra Raju Kusalkar and Baban Jaywant

Kaldoke are involved in several such fraudulent transactions and

are facing criminal trial.

94. The appalling facts divulged in these Petitions and the

defence raised before the trial court could just be the tip of the ice

pps 135 of 139 TRIBAL WP ST 1338 -20.doc

berg. The matter therefore needs thorough investigation to verify

the veracity of the allegations made by the Occupants and to

unravel the truth. Such exercise is necessary to protect the propriety

rights and economic interest of the tribals and to prevent the

intermeddlers or land grabbers from exploiting and infringing their

rights with impunity. Unless such deterrent action is taken against

the perpetrators of crime, the rights of the tribals will continue to be

jeopardized thereby defeating the laudable object of the beneficial

legislation and frustrating the Constitutional policy of economic

empowerment.

95. Under the circumstances and in view of discussion supra, we

pass the following order:

i) The Writ Petitions are dismissed.

ii) The SDO is directed to deposit the compensation in respect of

each of the Occupants in the District Court, Pune, with details of

compensation payable to each of the Occupants.

iii) The Principal District Judge, Pune is directed to invest 95% of

the compensation in long-term fixed deposit in any nationalized

bank with further renewal from time to time. The balance 5%

compensation shall be deposited in the saving account of the

pps 136 of 139 TRIBAL WP ST 1338 -20.doc

respective Occupants.

iv) The Bank shall be intimated not to permit withdrawal of money

either pre mature or otherwise and not to advance loan in any form

on the fixed deposit without express permission of the Principal

District Judge, Pune. The Fixed Deposit Receipt shall carry such an

endorsement/note on the face of the document.

v) Monthly Interest accrued on the amount invested in long-term

fixed deposit shall be credited in the saving accounts of the

respective Occupants.

(vi) The Principal District Judge, Pune may permit withdrawal of

lump sum amount required by the Occupants for effecting

purchases of any movable or immovable property. The Principal

District Judge shall confirm that the amount is actually spent for the

purpose and the demand is not a ruse to withdraw money, while

ensuring that the Occupants are not deprived of utilizing the

compensation for genuine need;

(vii) In all cases, the Occupants have liberty to apply for withdrawal

in case of medical treatment, educational expenses, or any other

urgent expenses. The Principal District Judge shall consider

genuineness of such request and allow withdrawal of such amount

as may be necessary for incurring such expenses;

pps 137 of 139 TRIBAL WP ST 1338 -20.doc

(viii) The Principal District Judge, Pune, shall appoint an advocate

from legal aid panel, if required by the Occupant, to provide

assistance in seeking withdrawal of money.

ix) The principal District Judge, Pune shall decide the application

for withdrawal of money as expeditiously as possible and in any

event within four days from the date of the Application.

x) The SDO shall take necessary steps to ensure that 15%

returnable land allotted to the Occupants under the Award is not

transferred in any manner without prior sanction under the

provision of Section 36A of the MLRC.

xi) The SDO shall, within a period of six weeks from the date of

receipt of the order, lodge a complaint before the Sr.Inspector of

Police, Rajguru Nagar, Khed, District Pune against the Petitioners,

the Power of Attorney holders, and erstwhile purchasers for

entering into fraudulant transactions, misappropriating the sale

consideration and attempting to cheat the Occupants and deprive

them of their lawful property rights/compensation.

xii) The Sr. Police Inspector shall investigate the said crime,

independently without being influenced by observations made in

this judgment.

xiii) The investigating agency shall complete the investigation

pps 138 of 139 TRIBAL WP ST 1338 -20.doc

within a period of six months from the date of the complaint and

take further action in accordance with law.

xiv) The Sr. Police Inspector shall submit a report before this Court

within a period of two weeks from completion of the investigation.

. Petitions stand disposed of accordingly.

(ANUJA PRABHUDESSAI, J.) (A.A.SAYED, J.)

. At this stage, the learned Counsel for the Petitioners seek stay

to the operation of the Order for a period of six weeks.

. For the reasons recorded in the Order, we are not inclined to

grant a blanket stay. Nevertheless, we direct the Occupants not to

withdraw the compensation which will be deposited in their saving

account as per para 95 clause (iii), for a period of six weeks. We

also direct the SDO not to lodge the FIR for a period of six weeks

from the date of this Order.

(ANUJA PRABHUDESSAI, J.) (A.A.SAYED, J.) Digitally signed Prasanna by Prasanna P. Salgaonkar P. Date: Salgaonkar 2020.07.29 16:18:23 +0530 pps 139 of 139