LAXMI PRASAD Vs. GAJADHAR PRASAD

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution, the petitioner seeks a writ of certiorari for quashing an order dated 16th February 1966 passed by the Board of Revenue, M. P., in Revenue Revision No. 32- IV of 1966.

(2.) THE petitioner's brother Biharilal held 20.53 acres of land in Bhumi- swami rights. He transferred 5.42 acres of land to each of the respondents 1 and 2 under registered sale-deeds dated 25th May 1961. THEse transfers were in contravention of section 165 (4) (b) of the Madhya Pradesh Land Revenue Code, 1959. THE petitioner, therefore, applied to be put in possession of the said land under section 170 of the Code. Mst. Ramdulari (respondent No. 6), the wife of Biharilal, also pressed her claim before the Sub-Divi- sional Officer for being put in possession of the said land on the ground that she was the nearer heir. THE Sub-Divisional Officer found as a fact that the two transfers were hit by section 165 (4) (b) of the Code. He, however, held, that Mst. Ramdulari being the nearer heir was entitled to possession of the land under section 170 of the Code. THE Sub-Divisional Officer accordingly M. P. No. 255 of 1966 decided on 3-2-1967. N. passed an order in favour of the respondent No. 6 subject to the condition thai she would be liable to pay the arrears of land revenue, if any, and the price paid by the respondents 1 and 2 for purchasing the property, and the application of the petitioner was dismissed. THE petitioner and the respondents 1 and 2 thereupon preferred appeals before the Collector. THE Collector took the view that the transactions in question were not in violation of the provisions of section 165 (4) (b) of the Code and therefore allowed the appeal of the respondents 1 and 2 and rejected that of the petitioner. THE petitioner and the respondent No. 6 challenged the order of the Collector before the Additional Commissioner. THE Additional Commissioner dismissed both the appeals on the ground that section 170 of the Code was subsequently amended which deprived the appellants of any right to make an application under section 170. THE Additional Commissioner expressed the view that the change in law could be taken into consideration in deciding the appeals before him. THE respondent No. 6 did not prefer any revision against that order but the petitioner challenged the order of the Additional Commissioner before the Board of Revenue. THE Board of Revenue refused to interfere with the order of the Additional Commissioner on the only ground that the petitioner being a distant relation had no locus standi to file an application under section 170 of the Code. THE Board did not consider the questions as to whether the transfers effected in favour of the respondents 1 and 2 were contrary to section 165 (4) (b) or whether the Additional Commissioner was in error in holding that the amendment of section 170 had the effect of depriv. ing the petitioner of his right to apply under section 170.

(3.) IT may be mentioned here that the State Government has framed rules under section 170 of the Madhya Pradesh Land Revenue Code, 1959. Under rule 5 the Sub-Divisional Officer is required to record a finding if the transfer in question was contrary to the provisions of section 165 (4) (b). If the finding is in affirmative, the Sub-Divisional Officer is required to issue notices to persons who seem to him prima facie to have a right equal or prior to that of the applicant. He is also required to issue a proclamation inviting claims of such persons. Under rule 7 the Sub-Divisional Officer is then authorized to put in possession the applicant or any other person so entitled. These rules thus clearly indicate that the application for being put in possession can be made even by a remoter heir and the Sub-Divisional Officer is authorized to put the applicant in possession if other nearer heirs are not prepared to press their claim. IT may also be pointed out at this stage that neither section 170 nor the rule framed under that section require the applicant to pay any consideration to the transferee. What is required under these provisions is that the applicant or any other claimant must accept the liability for arrears of land revenue and any other dues which form a charge on the holding, and nothing more. The rules, quoted above, also support the conclusion that under section 170 even a distant heir may make an application.