STATE OF MAHARASHTRA Vs. GULAB RAO

JUDGEMENT

(1.) The civil appeal is filed by the State of Maharashtra after obtaining special leave to appeal from this Court under Article 136 of the Constitution of India. It seeks to challenge the decision rendered by learned Single Judge of the Bombay High Court in Special Civil Application No. 3525 of 1976, decided on 30th September, 1976/1st October, 1976 (reported in 1976 Mh.L.J. 727). In order to appreciate the grievance of the appellant-State, it will be necessary to have a glance at a few introductory facts. The respondent-landlord was possessed of various pieces of agricultural lands situated in Malkhed, Taluka Darwha in Yavatmal District of Maharashtra State. He had filed a return of agricultural land holding under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (hereinafter referred to as 'the Act'). It was found that he was holding surplus agricultural land to the extent of 124 acres and 13 gunthas. The enquiry conducted by the Competent Authority under the Act showed that there were 6.20 acres of pot kharab lands in all the holdings of the appellant. The family of the surplus holder consists of three members. The enquiry further revealed that the respondent surplus holder had agreed to sell Survey Nos.12, 13 and 14 measuring in all 51.08 acres on the basis of Sauda Chittis executed on 1-4-1968. The respondent contended that these lands covered by Sauda Chittis, that is, agreements of sale, cannot be included in his holding. The competent authority did not allow these transactions by treating them to be invalid. He held that they were hit by section 10 of the Ceiling Act. After taking all these facts into consideration, the respondent was found to be in possession of 64.13 acres land over and above the ceiling area. Aggrieved by this order, the respondent presented an appeal before the Maharashtra Revenue Tribunal. The said appeal came to be dismissed by the Tribunal on 23rd April, 1976. The respondent thereafter filed a writ petition under Article 227 of the Constitution of India in the Nagpur Bench of the Bombay High Court. The learned Single Judge of the High Court by his aforesaid order allowed the writ petition by taking the view that though these agreements dated 1-4-1968 were hit by section 10 of the Ceiling Act, the concerned transfers were protected by section 53-A of the Transfer of Property Act, and as the respondent surplus holder was not in actual cultivation of these lands on the commencement date, the Tribunal was in error in confirming the order of the Original Authority adding these lands to the holding of the respondent. The learned Judge further took the view that merely because of unregistered agreements entered into by the land holder it was not possible to give an extended meaning to Explanation II to section 10(1) of the Ceiling Act and, therefore, the matter was required to be re-examined in the context of the actual possession of the land either as an owner or a tenant. It was also required to be found out whether the land holder had parted with the genuine contracts of sale or not. Accordingly, the order of the Tribunal was set aside and the matter was remanded for a fresh decision of the Tribunal.

(2.) It is vehemently contended by learned Counsel for the appellant-State hat the entire approach of the learned Single Judge of the High Court was erroneous and the order of remand as passed by the learned Single Judge is contrary to the very scheme of the Act especially section 10 red with section 8 of the Act and no further enquiry was required as wrongly assumed by the learned Single Judge. In this connection, the learned Counsel submitted that the facts are not in dispute. Three Survey Nos., namely, survey Nos. 12, 13 and 14 measuring 51.08 acres were admittedly conveyed to the prospective purchasers transferees by Sauda Chittis dated 1-4-1968. These Sauda Chittis or agreements of sale were unregistered. That once that happened on a combined operation of the first Explanation to section 10 and section 8, these agreements would be covered by the sweep of the second Explanation to section 10. Consequently, it has to be held that these transactions regarding Survey Nos. 12, 13 and 14 would be treated to have seen the light of the day between 26th September, 1970 and the commencement date. Therefore, section 10(1)(a) would get attracted and would treat these transactions to have been entered in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 and consequently as laid down by section 10, sub-section (1), lands covered by these transactions have to be taken into consideration in calculating the ceiling area of the transferror of such lands. Once these facts are undisputedly established on record, the legal effect of these established facts would flow from the statutory scheme and no further enquiry is contemplated as wrongly assumed by the learned Single Judge of the High Court. That the Tribunal's order was required to be confirmed instead of being interfered with. The question of applicability of section 53-A of the Transfer of Property Act was totally irrelevant for deciding the present controversy, that section 3, sub-section (1) had no effect on the automatic operation of the scheme of section 10. It was, therefore, contended that the order under appeal suffers from patent error of law.

(3.) Mr. Lalit, learned Senior Counsel for the respondent submitted that Explanation II to section 10 creates a rule of evidence and even assuming that an unregistered transfer prior to 26th September, 1970, is to be ignored, still the question would remain whether these lands were part of the holding of the person concerned as required by section 3(1) which denotes the holding of any excess land. In this connection enquiry into the question whether the person concerned was holding the land lawfully and was in actual possession of the land as owner or tenant as laid down by section 2(14) read with section 3(1) would be required to be undertaken on evidence and precisely for that reason the matter was remanded by the learned single Judge to the Tribunal. It was alternatively contended that the transfers of such lands could be said to be a deemed tenant under section 4 of the Bombay Tenancy and Agricultural Land Act, and even on that ground the lands held by such transferees as deemed tenants could not be clubbed with the holding of the transferror.