DHIRENDRA NATH Vs. STATE

JUDGEMENT

(1.) The challenge made in this petition is to the constitutional validity of S. 170-A and S. I70-B of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the Code) as well as the notification No. F-16-1-81-II-XXV, dated 15th April 1981 (Annexure-A) issued by the Governor of Madhya Pradesh in exercise of the powers conferred by sub-para (1) of para 5 of the Fifth Sch. to the Constitution of India. This order shall also dispose of the entire batch of petitions in which the validity of these provisions has been challenged on account of which all these petitions were heard together.

(2.) The history of legislation together with the relevant provisions may be stated at the outset. The M. P. Land Revenue Code, 1959, came into force with effect from 2-10-1959. Section 165 relates to rights of transfer and in sub-sec. (1) it says that a Bhumiswami may transfer any interest in his land subject to the other provisions of this section and the provisions of S. 168. Section 168 deals with leases and restricts the grant of lease by a Bhumiswami beyond the period specified except by a Bhumiswami belonging to one of the specified categories, for example, a widow, a minor etc., in whose case cultivation of the land directly is considered impracticable. Section 169 provides for the effect of an unauthorised lease resulting in accrual of rights of an occupancy tenant on the lessee giving rise to the further consequences mentioned in Ss. 189 and 190 of the Code. i.e. conferral of Bhumiswami rights on an occupancy tenant in the circumstances mentioned therein. Sub-sec. (6) of S. 165, as originally enacted, prohibited transfer of the right of a Bhumiswami belonging to a tribe which had been declared to be an aboriginal tribe by the State Government by notification in that behalf to a person not belonging to such tribe without the permission of a revenue officer not below the rank of a Collector given for reasons to be recorded in writing. As a consequence thereof, S. 170 was enacted for avoidance of transfers in contravention of S. 165. As originally enacted, S, 170 provided for recovery of possession of the holding by any person who if he survived the Bhumiswami without nearer heirs would inherit the holding by an application to the Sub-Divisional Officer within two years of such transfer made in contravention of sub-sec. (6) of S. 165. These provisions in the Code prohibited transfer by such a Bhumiswami of his rights in the land to a non-tribal without the written permission of the Collector and also provided for avoidance of a transfer in contravention of this provision in the manner indicated. It is also significant that sub-sec. (6) of S. 165, as originally enacted, dealt with the right of a Bhumiswami in the land which meant any right in the immovable property.

(3.) By M. P. Act No. 37 of 1973 the original sub-sec. (7) of S. 165 was amended. The original sub-sec, (7) laid down that only that part of a holding of Bhumiswami shall be liable to attachment or sale in execution of any decree or order which was in excess of five acres of irrigated or ten acres of unirrigated land. By this amendment made in 1973, it was also provided that no land comprised in a holding of a Bhumiswami belonging to such an aboriginal tribe shall be liable to be attached or sold in execution of a decree or order.