STATE OF M.P. Vs. POONAMCHAND

JUDGEMENT

(1.) THE respondent No.1 had purchased a piece of malik mukbuza land, measuring 0.26 acres, assessed to land revenue at Rs.0.62, of village Sausar, under a registered sale -deed dated 26 -10 -1928. After the said purchase, the respondent No.1 constructed a house on the said plot and thus diverted the agricultural land to non -agricultural purposes. The Sub -Divisional Officer, Sausar, acting under section 59 (2) of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as 'the Code'), by his order dated 10th March 1964, revised the assessment of the land and fixed it at Rs.48.40. The assessment so fixed was to come into effect from the agricultural year 1963 -64. That order was set aside by the Board of Revenue by its order dated 16th July 1966 wherein it was held that section 59 (2) of the Code was prospective in operation and the provisions thereof could not be relied on for re -assessment of the land which was diverted to non -agricultural purposes before the Code came into operation. This order is being challenged before us by the State of Madhya Pradesh by this petition under article 226 of the Constitution.

(2.) THE relevant provisions of section 59 of the Code are as under:

(3.) FROM all these decisions it is clear that where an enactment uses the present tense for describing certain set of facts justifying a certain action it is used to express a hypothesis, without regard to time. In this view of the matter, it must be held that the expression "is diverted" is used in sub -section (2) of section 59 of the Code without any reference to time. When proceedings are initiated under section 59 (2), what must be seen in whether on that date the land stood actually diverted or not, irrespective of the fact whether the diversion took place before or after the Code came into force. When the section is so interpreted, the question of giving it retrospective effect does not arise. The decision of the Board of Revenue, therefore, cannot be sustained.