Bombay High Court Holds Prior Collector Sanction for Transfer of Mahar Watan Land Mandatory but Its Absence Does Not Void Sale; Quashes Minister’s Order
Bombay High Court Holds Prior Collector Sanction for Mahar Watan Land Transfer Mandatory but Sale Without Sanction Is Not Automatically Void
Facts
The Bombay High Court decided a batch of connected writ petitions through a common judgment, taking Suryakant Ravji Shah & Anr. v. Gautam Ramchandra Desai & Ors., Writ Petition No. 10990 of 2019, as the lead matter. The judgment was delivered by Justice Amit Borkar on 6 August 2026.
The dispute concerned land originally held as Mahar Watan land. It had been re-granted to the occupants on 23 July 1968. Certain landholders subsequently executed powers of attorney in favour of respondent No. 5 in 2006 for obtaining necessary permissions for transfer. In 2011, some of those powers of attorney were cancelled through public notice and a registered Declaration Deed.
On 27 June 2012, several owners entered into a registered Agreement for Sale with the petitioners. However, on 30 November 2012, respondent No. 5, relying upon the earlier powers of attorney, executed another registered sale deed in favour of respondent Nos. 1 to 5. Mutation Entry No. 755 was recorded on the basis of that transaction, but was not certified because the sale had been executed without the required prior permission.
Thereafter, on 28 May 2013, the Collector granted permission for transfer of 3 H 89 R of the land in favour of the petitioners. The original owners consequently executed a registered sale deed in favour of the petitioners on 31 May 2013, leading to Mutation Entry No. 757. The Tahsildar subsequently cancelled Mutation Entry No. 755 on the ground that the competing 2012 sale deed had been executed without necessary permission.
The dispute travelled through the revenue hierarchy. Ultimately, on 4 September 2019, the Minister allowed three revision applications, cancelled the Collector’s permission and set aside Mutation Entry No. 757 standing in the petitioners’ names. The petitioners therefore approached the Bombay High Court.
Issues
The High Court formulated, inter alia, the following questions:
- Whether insertion of Section 5(4) by the 2002 Amendment altered the law governing transfers of Mahar Watan lands.
- Whether the expression “previous sanction” makes prior Collector sanction mandatory and whether every transfer without such sanction consequently becomes void.
- Whether earlier Bombay High Court precedents including Vithal Kondhalkar, Sheikh Lal, Bhagwantrao, Narsingh Laxman Bahirwade and Mohan Sonaji Shilwant continued to govern Mahar Watan transfers after insertion of Section 5(4).
- Whether Supreme Court and High Court authorities interpreting statutes requiring previous permission governed Section 5(4).
- Whether the Minister’s impugned orders warranted interference in writ jurisdiction.
Petitioners’ Arguments
The petitioners argued that after the 2002 amendment, Mahar Watan land was deliberately placed in a distinct statutory category. Section 5(4), according to them, imposed a complete prohibition upon transfer without previous Collector sanction.
They contended that the expression “previous sanction” was mandatory and that a transfer completed without obtaining such sanction could not subsequently be validated.
Reliance was placed upon LIC v. Escorts Ltd., Asha John Divianathan v. Vikram Malhotra, Central Hindu Military Social Education Society, Saraswati Shamrao Dhere and Vinodchandra Sakarlal Kapadia to contend that where a statute expressly requires previous permission, the requirement must ordinarily be complied with before the transaction.
The petitioners further sought to distinguish or challenge earlier Bombay High Court authorities concerning Watan lands, arguing that some of them had either misapplied Vithal Kondhalkar or failed to adequately consider the effect of the subsequent statutory amendments.
Respondents’ Position
The respondents relied upon the statutory scheme of the Watan Abolition legislation and earlier Bombay High Court authorities to resist the proposition that absence of previous sanction necessarily rendered the underlying transaction void.
The central dispute therefore became not merely whether previous sanction was mandatory—it was—but what legal consequence followed from failure to obtain it before executing the conveyance.
Court’s Analysis of Section 5(4)
The High Court drew an important distinction between:
(a) a statutory requirement being mandatory; and
(b) breach of that requirement automatically rendering the transaction void.
The Court held that Section 5(4) undoubtedly requires previous sanction. However, the provision does not expressly declare that a transfer made without previous sanction “shall be invalid” or “shall be void.”
The Court contrasted Section 5(4) with statutes where the Legislature expressly provides invalidity as the consequence of breach. For example, Section 43(2) of the Maharashtra Tenancy and Agricultural Lands Act specifically declares transfers made in contravention of the provision invalid. Section 5(4) of the Watan Abolition Act contains no comparable declaration.
Accordingly, the High Court rejected the proposition that absence of prior sanction by itself annihilates the transaction.
Instead, rights arising from such a transaction remain subject to the statutory machinery and consequences contemplated by the Watan Abolition Act.
Revenue Authority Cannot Decide Civil Title
The second significant aspect of the judgment concerns the jurisdiction of revenue authorities.
The Minister had proceeded on the premise that because an earlier registered sale deed had already been executed, the vendors were divested of their entire right, title and interest and therefore had nothing left to convey to the subsequent purchasers.
The High Court held that this reasoning improperly imported Section 48 of the Transfer of Property Act into proceedings under the Watan Abolition Act.
Questions such as:
- validity of competing sale deeds;
- effect of cancellation of powers of attorney;
- authority of the persons executing the conveyance;
- whether the transferor retained any subsisting interest;
- rights of bona fide purchasers; and
- priority between rival conveyances
are questions of civil and proprietary title. They cannot be conclusively adjudicated by revenue authorities exercising jurisdiction under Sections 5 and 59 of the Watan Abolition Act.
The Court held that revenue authorities may determine whether Section 5 has been complied with, whether previous sanction existed, whether the prescribed Nazarana was paid, whether regularisation is permissible and what statutory consequences follow. But they cannot determine that one purchaser acquired better proprietary title merely because his registered sale deed was executed earlier. That question belongs to the competent civil court.
Precedent Analysis
Vithal Kondhalkar
The Court relied significantly upon Vithal Kondhalkar. That decision had held that after the prescribed payment was made, the Collector was bound to pass the necessary orders and that mandamus could issue directing grant of appropriate sanction.
The present Court interpreted this precedent as demonstrating the limited statutory jurisdiction of the Collector: the Collector administers the requirements of the special Watan legislation but does not thereby acquire jurisdiction to adjudicate competing civil titles.
LIC v. Escorts Ltd. and Asha John Divianathan
The Court did not accept that the mere presence of the words “previous sanction” automatically answered the consequence of non-compliance.
It distinguished Asha John Divianathan on the basis that the Supreme Court had considered the entire statutory scheme under FERA—including prohibitory, penal and confiscatory provisions—before concluding that ex post facto permission was impermissible.
Thus, the consequence of breach had to be determined from the particular statutory scheme, rather than by treating every statutory requirement of “previous permission” identically.
Court’s Reasoning
The Court essentially adopted a three-stage approach.
First, previous sanction under Section 5(4) is mandatory.
Second, the Legislature did not prescribe automatic voidness as the consequence of executing a transfer without such sanction. Therefore, absence of sanction does not by itself make the sale void; the transaction remains subject to consequences under the special statute.
Third, revenue authorities cannot use proceedings under the Watan Abolition Act as a substitute for a civil suit determining competing titles.
Accordingly, the Minister committed jurisdictional error by concluding that the earlier registered sale deed had necessarily exhausted the vendors’ proprietary rights and that subsequent purchasers therefore acquired nothing. The Minister should have confined the enquiry to the statutory consequences of the rival transfers under Section 5.
Final Ruling
The Bombay High Court allowed the writ petition and quashed and set aside the Minister’s order dated 4 September 2019.
Most importantly, the Court expressly held:
Previous sanction under Section 5(4) is mandatory, but absence of previous sanction does not render the transfer void.
Rights flowing from such a transfer remain subject to the statutory consequences prescribed under the Watan Abolition Act.
The Court further clarified that it was deciding only the legality of the Minister’s revisional orders and the interpretation of Section 5(4). Questions concerning civil title, rival conveyances, cancellation of powers of attorney and other proprietary rights must be independently decided by the competent civil court on their own merits.
Case Details
Case: Suryakant Ravji Shah & Another v. Gautam Ramchandra Desai (Deceased) Through Legal Heirs & Others
Court: Bombay High Court, Civil Appellate Jurisdiction
Case No.: Writ Petition No. 10990 of 2019 with connected petitions
Coram: Justice Amit Borkar
Reserved: 3 August 2026
Pronounced: 6 August 2026
Result: Writ petition allowed; Minister’s order quashed; prior sanction under Section 5(4) held mandatory but its absence does not automatically void the transfer; civil title disputes left to the competent civil court.
