DULARI Vs. COLLECTOR RAIPUR

JUDGEMENT

(1.) RAMESHWAR Prasad predecessor in interest of the Petitioners filed application on 31.3.1979 before the Sub -Divisional Officer under Section 5 of the M.P. Samaj Ke Kamor Vargon Ke Krishi Bhumi -Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapne Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976, hereinafter referred to as the Act. According to the said Rameshwar Prasad, hereinafter referred to as the Petitioner, he received a sum of Rs. 1500/ - from Respondent No. 3 in the year 1970 and he executed Hundi on account thereof. According to the Petitioner, he further needed Rs. 3000/ - as he suffered loss in the agricultural operation, and put his need before Respondent No. 3. Petitioner was given the loan amount and was asked to execute sale -deed for security of the loan. His case further is that he was assured that possession of the land will continue with him and accordingly a sale -deed for 3.95 acress of land showing consideration money of Rs. 8,000/ -was executed. Further case of the Petitioner is that lateron, Respondent No. 3 forcibly harvested the crop and got his name mutated in the revenue records, in the aforesaid premise, Petitioner filed application for restoration of possession under the provision of the Act. Respondent No. 3 contested the claim of the Petitioner and his plea is that transaction in question is an o utright sale and the Petitioner does not come within the definition of holder of agricultural land so as to derive the benefit under the provisions of the Act. Application filed by the Petitioner was rejected by the Sub -Divisional Officer by its order dated 23.7.1981 holding that Petitioner does not come within the expression 'holder of agricultural land' and as such, the transaction cannot be said to be prohibitted transaction within the meaning of the Act. While doing so, the Sub -Divisional Officer held that the Petitioner's wife possesses 22.75 acres of land. Aggrieved by the same, Petitioner preferred appeal and the Additional Collector, by order dated 23rd February, 1983, allowed the appeal, set aside the order of the Sub -Divisional Officer and remanded the case for consideration in accordance with law; holding that petitoner possesses loss than 8 hectares of un -irrigated land and the land belonging to the other family members can not be taken into account.

(2.) AFTER the remand, the Sub -Divisional Officer by order dated 13.9.1998 allowed the application filed by the Petitioner and directed for restoration of land in his favor. He found that the transaction in question is a prohibitted transaction of loan as defined under Section 2(f) of the Act. Respondent No. 3 aggrieved by the same preferred appeal and by order dated 19.1.1989, the Appellate Court set aside the order of the Sub -Divisional Officer and held that the Petitioner does not come within the meaning of holder of agricultural land, as defined under Section 2(c) of the Act. It is this order of the Appellate Court dated 19.1.1989 which has been challenged by the Petitioner in this writ petition, filed under Article 227 of the Constitution of India. Mr. A.K Pandey appears for the Petitioners. Respondent Nos. 1 and 2 are represented by Sri Ajay Mishra, whereas Mr. S.K. Chakravarty appears for Respondent No. 3. Mr. Pandey, appearing on behalf of the Petitioners contends that once the Appellate Authority while setting aside the order of the Sub -Divisional Officer held that Petitioner is holder of agricultural land he, at a subsequent stage ought not to have held that the Petitioner does not come within the said expression, He further contends that Petitioner being the owner of less than 8 acres of un -irrigated land, this itself qualifies the petititoner to come within the definition of holder of agricultural land and hence the Appellate Court erred in law in holding that he is not so, Mr. Chakravarty, learned Counsel appearing on behalf of Respondent No. 3, however, submits that for coming within the definition of holder of agricultural land under Section 2(c) of the Act, the claimant is not only required to establish that he possesses less than 8 hectares of unirrigated land, but he is also required to prove that he belongs to the weaker section. Mr. Chakravarty in support of his submission has placed reliance on a Division Bench judgment of this Court in the case of Dayaram v. State of M.P. and Ors.,, 1988 RN 405. Clauses (c) and (f) of Section 2 of the Act which are relevant for the purpose read as follows -

(3.) 2(c) holder of agricultural land" in the weaker sections of the people means a holder of land used for purposes of agriculture not exceeding eight hectares of unirrigated land or four hectares of irrigated land within the State whether as a Bhumiswami or an occupancy tenant or a Government lessee either in any one or all of the capacities together within the meaning of the Code. 2(f) prohibited transaction of land" means a transaction in which a lender of money advances loan to a holder of agriculutral land against security of his interest in land, whether at the time of advancing the loan or at any time thereafter during the currency of the loan in any of the following modes, namely.... In my opinion, a plain reading of Section 2(c) of the Act clearly goes to show that to come within the definition of holder of agricultural land, one is not only required to possess less than 8 hectares of unirrigated land but he is also required to belong to weaker section. The view which I have taken finds support from the judgment of this Court in the case of Dayaram (supra) relied on by Shri Chakravarty. In the said case, it has been held as follows -