MADHAVSINGH Vs. RAMNARAIN

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution filed by the transferee of an agricultural holding from Sukhram non -applicant numbered fourth among them, who are all brothers inter se. The order that is sought to be set aside in exercise of this Court's supervisory powers under Article 227, is the one passed by the Board of Revenue in revision upholding the order of the Additional Commissioner, Ujjain, itself supporting the Tehsildar's order for the restoration of possession to the four brothers under section 58 of the Madhya Bharat Land Revenue and Tenancy Act. The Tehsildar himself who originally passed the order to the same effect, made it under section 78 of the same Act. The later section has presented certain difficulties of interpretation which are being cleared by this Court in the judgments of two other cases under Article 227, As far as this petition is concerned, we have only to see whether the Revenue Courts could under section 58 of the Act order the restoration of possession by removal of the transferee on the ground that the transfer had been effected in contravention of the provisions of the Madhya Bharat Land Revenue and Tenancy Act in this case without obtaining the Collector's permission.

(2.) STATED thus, the question is very simple, namely: Has section 58 any application to a transfer of occupied land by an occupant to another without observing the requirements of the Act? The revenue authorities seem to have felt that section 58 can be invoked both in regard to occupied land in the possession of a cultivating tenant with a tenancy right, as well as in regard to unoccupied land in charge of the Government. However, the decisions of this Court have been to the effect that section 58 has application only to unoccupied land. It empowers the Tahsildar in exercise of his discretion to remove an occupant without legal authority. In addition, the Tahsildar is also competent to levy a penalty and in appropriate cases impose a fine as well The measure of the penalty is twice the sum equal to the revenue or rent which would have been assessed "if the land had been allotted to any other person" The word used is "may" and in appropriate cases the revenue authorities may recognize the occupant and treat him object to terms as a tenant of the land. For our consideration, the point to note is that section 58 pre -supposes that the land which has been unlawfully occupied is at that stage land that had not been al1otted. Thus, section 58 as such cannot be invoked where the land before occupation by the person sought to be removed has been allotted or occupied by a tenant. This is clear from the wording of the section and has already been held by this Court in the following rulings: Shrikrishna Vs. Kesho, Civil Revision No. 501 of 1958 decided on 25 -8 -1959 (SB); Dhansingh Vs. Mathu, Civil Second Appeal No. 235 of 1958 decided on 30 -1 -1961 (SB); Chhogalal Vs. Nandanbai, Misc. Petition No. 45 of 1958, decided on 15 -1 -1962 (DB).

(3.) THE opposite party 1, 2 and 3 seeking to support the order of the Board tried in this Court to make out that the section applicable is 78 and not 58. Though the Board is emphatic that section 78 has no application and section 58 empowers it to remove the transferee it is urged by this party that the same order should be deemed to have been made under section 78. From this, that party goes on to interpret that section in a manner suitable to its contention; but before going in to that section, we have to see whether notwithstanding the position taken by the Board, section 78 does at all come into the picture.