JUDGMENT - Tulpule R.D. J.-This is a petition by a transferee of a portion of land out of survey No. 48/2 of village Kalambeshwar, Tahsil Mehkar, District Buldana. The property was sold to petitioner Chindu by one Kundlik Govinda who was a protected lessee of the holder of this land which he held from its erstwhile owner Motilal Ganeshlal. 2. It appears that Motilal Ganeshlal sold this land survey No. 48/2 by a sale deed dated 12th June 1963 to Kundlik for a consideration of Rs. 576. The transaction was inter-vivos and without the intervention of the Tenancy Authorities and not in accordance with section 41 of the Bombay Tenancy and Agricultural Lands Act, 1958. 3. Sometime in 1969 or 1970, suo motu proceedings were commenced in respect of this land, when it was noticed that the transfer was not in accordance with the provisions of the Tenancy Act, under section 122. That was Revenue Case No. 12/59(29)/1969–70. There,, it was found that the sale price was 48 times the assessment and, therefore, was reasonable as laid down under section 90 of the said Act. The tenant was asked to pay a penalty of Re. 1 presumably under section 122(2)(i) of the Tenancy Act, which he paid on 28th February 1970. Thereafter the case against him came to be dropped. 4. During the course of that enquiry, the Tenancy Naib Tahsildar, Mehkar noticed that Kundlik in his turn had disposed of this land to Ranuji, Chindu and Shrikrishna. This Chindu was in possession of 7.2 acres pur- chased under three sale deeds, dated 13th January 1965, 6th June 1966 and 8th April 1968. The remaining land i. e. 7.12 acres, was sold to Ranuji on 16th March 1967. It appears that Kundlik had also transferred 2.00 acres of land in favour of Shrikrishna who in turn sold it to Shankar and Shankar sold it to Chindu, and thus the present petitioners Nos. 1 and 2 held the whole of this land survey Nos. 48/2 and are interested in that land. 5. The Naib Tahsildar, Mehkar then proceeded to hold an enquiry in regard to these transfers by Kundlik in favour of Chindu, Ranuji and Shri- krishna initially made by Kundlik and came to the conclusion that these transfers were hit by the provisions of section 57 of the Tenancy Act and were not permitted. 5. The Naib Tahsildar, Mehkar then proceeded to hold an enquiry in regard to these transfers by Kundlik in favour of Chindu, Ranuji and Shri- krishna initially made by Kundlik and came to the conclusion that these transfers were hit by the provisions of section 57 of the Tenancy Act and were not permitted. He held that the sales were invalid and that the lands were liable to vest in the State Government under section 122 of the Tenancy Act. 6. Against that decision an appeal came to be filed to the Special Deputy Collector, Land Reforms, Buldana by Ranuji and Chindu, being Revenue Appeal No. 2/59/1972–73. The Special Deputy Collector set aside the order passed by the Naib Tahsildar and remanded the matter back to him for further enquiry after giving an opportunity to all persons and after issuing a notice to Motilal Ganeshlal. That order was passed on 30thDecember 1972. 7. On remand, the Additional Tahsildar, Mehkar enquired into the matter and again came to the conclusion that the transfers made subsequently by Kundlik of survey No. 48 /2 were invalid and lands were liable to be forfeited under section 122(2) of the Tenancy Act. He, therefore, passed an order accordingly on 20th March 1974. An appeal against that decision was filed to the Sub-Divisional Officer, who dismissed it, and a further revisien application to the Maharashtra Revenue Tribunal also failed. The learned Member of the Maharashtra Revenue Tribunal held that the transfers were affected by the provisions of section 57 of the Tenancy Act and the order of validation made in favour of Kundlik on payment of a nominal penalty of Re. 1 was obtained “without disclosing the fact that he had already trans-ferred the above field.” It is this order which is, therefore, challenged by the petitioners. 8. It was contended on behalf of petitioners that the basic assumption made by all the Courts that section 57 of the Tenancy Act applied to the facts in this case and /or the transfer in favour of Kundlik was a transfer as contemplated by section 122 of the Tenancy Act and amounted to sale under that section was unwarranted either by the wording of the sections or by the transactions. It was contended that it is section 41 of the Act alone which provides for purchase of land by a tenant following that procedure. It was contended that it is section 41 of the Act alone which provides for purchase of land by a tenant following that procedure. The other sections by which ownership of land is transferred to a tenant under the provisions of the Act are those contained in sections 46 and 49A with which in the present case we are not concerned. It was pointed out that section 122 of the Tenancy Act as such does not provide for the sale of land to a tenant and the Courts below misread the provisions of section 122 of the Act. It was pointed out that section 57 is a stringent provision which places hurdles and restrictions upon the transfer of lands by the tenant. But that section places this restriction only in the event and circumstance of the transfer contemplated in that section or acquisition of ownership by the tenant, and in no other case. The section cannot be extended and made applicable to cases of transfer which are not within the four corners of the sections mentioned in*that section. 9. It would be proper to examine the provisions of section 57 and then section 122 of the Tenancy Act: Section 57 is as follows: “57. (1) No land purchased by a tenant under sections 41 or 46 or 49A or 57D or 130 or sold to any person under section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment or partitioned without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to-such conditions as may be prescribed by the State Government. (2) Any transfer or partition of land in contravention of sub-sec- tion (1) shall be invalid : Provided that nothing in this section shall apply to the lands purchas-ed by an occupancy tenant.” It will thus be seen that section 57 places an embargo upon tenant's rights to deal with any land which he has purchased under section 41 or 46 or 49A or 57D or 130. Similarly section 57 places a ban upon any person to whom any land is transferred or sold under section 91 or 122. Similarly section 57 places a ban upon any person to whom any land is transferred or sold under section 91 or 122. The words “sold to any person” in the latter part of section 57(1) are capable of embracing even a tenant, while the first half of that sentence or part of that section refers only to tenants specifically. 10. It cannot be said that in the present case this land was purchased by tenant Kundlik either under section 41 or 46 or 49A or for that matter section 57D or 130. He had not applied to the Tenancy authorities for fixation of price, nor any such permission was granted. The transaction of sale between Kundlik and Motilal was entirely a private transaction and not under any of the provisions to which a reference is made. It is also not the assumption or the finding of the tenancy authorities that the transfer by Motilal to Kundlik of land survey No. 48/2 was under any of these sections, namely section 41 or 46 or 49A or 57D or 130. They seem to have held and found that the transfer was under section 122. It was, therefore, in their opinion, a sale under section 122 and Kundlik being 'any person' including a tenant, he would hot be entitled to transfer the said land either by sale, gift, exchange, mortgage, lease or assignment or in any other manner except with the previous permission of the Collector. It is common ground that no such sanction was obtained. The next and most material question, therefore, is whether this can be said to be land* sold to Kundlik under sec-Jion 122 of the Act. Section 122 of the Act is as follows: “122. It is common ground that no such sanction was obtained. The next and most material question, therefore, is whether this can be said to be land* sold to Kundlik under sec-Jion 122 of the Act. Section 122 of the Act is as follows: “122. (1) Where in respect of the transfer or acquisition of any land made on or after the commencement of this Act the Tahsildar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Tahsildar shall issue a notice in the prescribed form to the transferor, the transferee or the person acquiring such land, as the case may be, to show cause as to why the transfer or acquisition should not be declared to be invalid and shall hold an inquiry and decide whether the transfer or acquisition is or is. not invalid. (2) If after holding such inquiry, the Tahsildar comes to a conclu- sion that the transfer or acquisition of land is invalid, he shall make an order declaring the transfer or acquisition to be invalid : Provided that where the transfer of land was made by the landlord to the tenant in possession of the land and the area of the land so trans-ferred'together with the area of other land, if any, cultivated personally by the tenant did not exceed three family holdings, the Tahsildar shall not declare such transfer to be invalid if- (i) the price of the land received by the landlord does not exceed the reasonable price thereof under section 90 and the transferee pays to the State Government a penalty of one rupee within such period not exceeding three months as the Tahsildar may fix, or (ii) the price of the land received by the landlord exceeds the reasonable price thereof under section 90 and the transferor as well as the transferee pays to the State Government each a penalty equal to one-tenth of the reasonable price within such period as the Tahsildar may fix. (3) On the declaration made by the Tahsildar under sub- section(2),- (a) the land shall be deemed to vest in the State Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting, and shall be disposed of in the manner provided in sub-sec-tion (4); the encumbrances shall be paid out of the occupancy price in the manner provided in section 44 for the payment of encumbrances out of the purchase price of the sale of land, but the right of the holder of such encumbrances to proceed against the person liable for the enforcement of his right in any other manner shall not be affected; (b) the amount which was received by the transferor as the price of the land shall be deemed to have been forfeited to the State Govern- ment and it shall be recoverable as an arrear of Sand revenue; and (c) the Tahsildar shall, in accordance with the.provisions of sec- tion 90, determine the reasonable price of the land. (4) After determining the reasonable price, the Tahsildar shall dispose of the land by sale at a price equal to the reasonable price deter- mined under sub-section (3) in the prescribed manner in the following order of priority :- (i) the tenant in actual possession of the land; (ii) the persons or bodies in the order given in section 84; Provided that where the transfer of land was made by the landlord to the tenant in possession of the land and the area of the land so trans-ferred together with the area of other land, if any, cultivated personally by the tenant did not exceed three family holdings, then- (a) if the price of the land received by the transferor does not exceed the reasonable price the amount forfeited under sub-section (3) shall be returned to the transferor and the land restored to the trans- feree on payment to the State Government of a penalty of one rupee; and (b) if the price of the land received by the transferor exceeds the reasonable price, the Tahsildar shall grant the land to the transferee on payment of price equal to one-tenth of the reasonable price and out of the amount forfeited under sub-section (3) the transferor shall be paid back an amount equal to nine-tenth of the reasonable price. (5) The amount of the price realised under sub-section (4) shall subject to the payment as aforesaid of any encumbrances subsisting on the land, be credited to the State Government: Provided that where the acquisition of any excess land was on account of a gift or bequest the amount of the price realised under sub-section (4) in respect of such land shall, subject to the payment of any encumbrances subsisting thereon be paid to the donee or legatee in whose possession the land had passed on account of such acquisition.” 11. It seems to have been assumed and there is a specific reference to section 122 (2) (i) of the Act in the order passed by the Naib Tahsildar on 30th January 1971 that the transaction was validated under that provi-sion. That seems to be an erroneous assumption. The proviso to sec-tioa 122(2) makes it clear that a transfer in favour of .a tenant, who is in possession, by a landlord though contrary to the provisions of the Tenancy Act, will not be and cannot be declared as invalid, if the tenant in posses-sion pays the penalty of Re. 1. In the present case it is stated that tenant Kundlik paid the penalty of Re. 1 and, therefore, there is no power in the Tahsildar to declare the transfer in favour of Kundlik as invalid, which it would otherwise have been under section 91 (8) of the Act, 12. The result of the aforesaid discussion and the application of the provisions of the Act is that tenant Kundlik having paid the penalty, the transaction by Motilal of sale of the land in question to Kundlik is not invalid, though contrary to the provisions of sections 41 and 91 of the Tenancy Act. It *is not, therefore, a purchase of land by Kundlik either under section 41 or section 91 of the Act. There is no question of any other sections being applicable and the only section which has been relied upon is section 122. As We see the provisions of section 122 (1) and (2), they do not speak of any sale of any land under that section to any person. It speaks of validation or declaration of a transaction being invalid or a transaction not becoming invalid in certain circumstances. It is only sub-sections (3) and (4) which speak of sale of land under section 122. It speaks of validation or declaration of a transaction being invalid or a transaction not becoming invalid in certain circumstances. It is only sub-sections (3) and (4) which speak of sale of land under section 122. But sub-section (3) which prescribes the power of sale, and the sale itself under sub-section (4), pre-supposes that a declaration must be made by the Tahsildar, the consequence of which is to “vest (the land) in the State Government free from all encumbrances lawfully subsisting thereon.” In other words, the provisions of sub-sections (3) and (4) are not at all attracted, unless there is a declaration by the Tahsildar as contemplated by sub-section (2) that the land has vested in the State Government. The declaration which the Tahsildar can make under sub-section (2) of section 122 is where the transfer of land is invalid or becomes invalid. Now, in the present case, since the transfer has not been declared to be invalid.and could not be declared to be invalid so far as the sale in favour of Kundlik is concerned, there is no question of making a declaration of the land vesting in the State Government under section 122(2) of the Act so far as Kundlik was concerned. 13. The only question then is if the transaction between Motilal and Kundlik could not be declared to be invalid, and was not declared to be invalid, whether the subsequent transaction of the land in favour of Chindu, Ranuji and Shrikrishna could be declared to be invalid under section 122 of the Act. That brings us back to section 57 and it becomes necessary to examine whether the transfer by Kundlik in favour of Chindu, Ranuji and Shrikrishna was a transfer of land which he had either purchased under section 41, which is the only applicable section, or which had been sold to him under section 122. As I have pointed above, there was no sale of land to Kundlik under section 122 of the Act, nor under section 41 or sec-tion 91. In the circumstances, if there was no sale of land to Kundlik, if there was no purchase by tenant Kundlik either under section 41 or any other section, then the vice of section 57 to his subsequent transactions cannot at all be invoked. In the circumstances, if there was no sale of land to Kundlik, if there was no purchase by tenant Kundlik either under section 41 or any other section, then the vice of section 57 to his subsequent transactions cannot at all be invoked. Section 57 cannot apply in such a case, since the sale to Kundlik was not under section 91 or section 122, nor was it a pur-chase by him under any of the provisions referred to in section 57. Kundlik, therefore, was completely free to deal with the land in any manner he liked. If that was so, no such declaration as is purported to have beenmade of land, on their transfer by Kundlik to Chindu, Ranuji and Shrikrishna, vest-ing in the State Government could have been made by the Tahsildar. If such a declaration could not be made, the very foundation of the case against the petitioners is not established. 14. In the circumstances, and in the view which I have taken, it is not necessary to refer to the decisions in Shankar v. Stoate of Bombay1, Kisan v. Tukaram2 and the Division Bench decision in Kedu Baliram v. State of Bombay3. 15. The petition, therefore, succeeds and is, therefore, allowed. Pro- ceedings against the petitioners are quashed. Rule made absolute, order as to costs. Order Accordingly. -----