MURLIDHAR DAYANDEO KESEKAR versus VISHWANATH PANDU BARDE AND ANR.

Citation: [1995] 2 S.C.R. 260 · Decided: 22-02-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Dismissed

Judgment (excerpt)

A 
MURLIDHAR DAYANDEO KESEKAR 
v . . 
VISHWANATH PANDU BARDE AND ANR. 
FEBRUARY 22, 1995 
[K. RAMASWAMY AND B.L. HANSARIA, JJ.] 
Bombay Land Revenue Code : Scheduled Tribe-Land held by-Agree-
ment for sale-Permission for alienation-Power and duty of competent 
authority-Refusal to grant permission on the ground that assigned land can-
C not be permitted to be sold nor converted to non-agricultural use held valid 
and in consonance with scheme of Part W of the Constitution. 
Contract Act, 1872 : Section 23. 
Land held by Tribal-Agreement for sale-Held void and opposed to 
D public policy. 
Transfer of Property Act, 1882 : Section 53-A-, 
Land held by Tribal-Agreement with non-tribal for sale-Purchaser in 
possession pi.trsuant to agreemen~ermission for sale refused by competent 
E · authority-Possession held unlawful-Section 53-A held inapplicable. 
Constitution of India, 1950: Articles 21, 38, 39(b) and 46. 
Social Justice-Weaker Sections-Scheduled Castes and Scheduled 
Tribe.s-Protection from social injustice-Duty of State. 
F 
·~ 
The respondent, a Tribal, was allotted 11 acres and 4 gunthas ofland 
by the State GovemmenL The appellant entered !nto an agreement with 
the respondent for purchase of the said land and sought permission of 
alienation from the Collector under the Bombay Revenue Code. Both the 
G Collector and Commissioner refused to grant permission on the ground 
-......._ 
that the assigned land cannot be permitted to be sold or converted to 
, non-agricultural use. Aggriued, the appellant filed a Writ Petition in 'the 
High Court which was dismissed summarily. 
In appeal to this Court it was contended by the appellant that (l) the 
H respondent being unable to cultivate the land entered into an agreement 
260 
-~. 
M.D. KESEKAR v. V.P. BARDE 
261 
of sale for valuable consideration; therefore the authorities were not A 
justified in refusing permission for alienation; (ii) the appellant who was 
inducted into possession of the land pursuant to the agreement is entitled 
to retain the same under section 53-A of the Transfer of Property Act; and 
(iii) the appellant is entitled to compensation for the improvements he had 
effected on the land. 
B 
Dismissing the appeal, this Court 
HELD : 1. Article 46 of the Constitution mandates the State to 
promote with special care the educational and economic interests of the 
weaker sections of the people, and, in particular, of the Scheduled Castes C 
and the Scheduled Tribes to protect them from social injustice and all 
fonns of exploitation. [269-B] 
2. Prior permission for alienation of the land was a conditi.on prece-
denL Before permission is given, the competent authority is enjoined, by 
operation of Article 46 of the Constitution, to enquire whether such aliena- D 
lion is void under law or violates provisions of the Constitution and 
whether permission could be legitimately given. In that behalf, the com-
petent authority is enjoined to loo.k to the nature of the property, subject-
matter of the proposed conveyance and pre-existing rights Rowing 
thereunder and whether such alienations violate provisions of the Con-
E 
stitution 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 
au~orities, though had not adverted to the aspect of the matter, broadly 
refused permission on the ground that the assigned land cannot be per-
F 
mittedto 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 Act as opposed to public policy. (274-E-G] 
3. The appellant's possession continues to be unlawful. Section 53-A G 
of Transfer of Property Act is not attracted. He is not entitled to any 
improvements made on the land. [275·A] 
4. Economic empowerment to the poor, Dalits and Tribes is an in· 
tegral Constitutional scheme of socio-economic democracy ~d a way oClife H 
262 
SUPREME COURT REPORTS 
[1995) 2 S.C.R. 
A of political democracy. 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. Appropriate legislative enact-
ments are brought o

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