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Judgment
The present petition under Article 227 of the Constitution of India has been filed by the petitioners seeking the following reliefs :-
"(i)That a writ in the appropriate nature may kindly be issued to, quash the order impugned dt.12.03.2007 contained in ANN-P/4 passed by the Addl. Commissioner, Jabalpur Division, Jabalpur as also order dt.01.08.2008 contained in ANN-P/5 passed by the Board of Revenue;
(ii)That a writ in the appropriate nature may also be issued directing the competent authority, the Addl.Commissioner, Jabalpur to pass a fresh order after issuing the notices to the person concerned - the purchasers of the properties and after considering the distribution of the lands to the landless persons and the report submitted by the Revenue Inspector and to pass a fresh order on merits of the matter as directed by the Board of Revenue in earlier occasion dt.11.03.1991;
(iii)Any other relief flowing from the facts and circumstances of the case may please be awarded alongwith the costs of the proceedings to meet the larger interest of justice."
It is submitted by learned counsel for the petitioners that the petitioners have filed this present petition challenging the order dated 12.03.2007 passed by the Additional Commissioner, Jabalpur Division as well as the order dated 01.08.2008 passed by the Board of Revenue whereby, the agricultural land ad measuring 88.13 acres belonging to late Hetram was declared surplus under the provisions of M.P. Ceiling on Agricultural Holdings Act, 1960, (hereinafter referred to as 'the 1960 Act') and directions were issued to take possession of the said surplus land in accordance with law.
It is the case of the petitioners that proceedings under the 1960 Act were initiated by the competent authority against one Hetram, who expired on 19.05.1982, wherein, vide order dated 26.12.1975, from the total land of 288 acres, 117 acres of land has been declared as surplus. The aforesaid order was modified by order dated 27.03.1976 and only 73 acres of land was declared as surplus. Against the said order, appeal was preferred and vide order dated 16.01.1989, 88.13 acres of land was declared as surplus land. The petitioners challenged the said order before the Board of Revenue on the ground that some transactions/transfer of lands had taken place between the period 01.01.1971 to 07.03.1974 and those transactions should have been excluded. The Board of Revenue, vide order dated 11.03.1991, remanded the matter back to the competent authority to decide the matter afresh in light of the provisions as contemplated under Section 4(1) of the 1960 Act. It is the grievance of the petitioners that even after remand of the matter, the Additional Commissioner has not taken into consideration the report submitted by the Revenue Inspector and also the list of persons to whom the lands had been transferred between the period 1971-1974 (Annexures-P/2 and P/3) and has passed the final order dated 12.03.2007 (Annexure-P/4). Again, an appeal was preferred against the said order before the Board of Revenue whereby, vide order dated 01.08.2008 (Annexure-P/5), had directed the Tehsildar concerned to take possession of 88.13 acres of surplus land within a period of one month. It is further contended that the authorities ought to have taken into consideration that the legal representatives of Late Hetram have also got their shares on the said land as per Section 7 of the 1960 Act, and, therefore, no piece of land could have been declared as surplus. Hence, this petition.
Per contra, it has been contended by learned counsel for the State that certain portion of the land which has been declared as surplus has been allotted to landless persons. It is further submitted that the report submitted by the Revenue authorities merely refer to transactions undertaken and do not disclose specific details regarding addresses of the persons in whose favour transactions have taken place or other particulars such as date of sale deed has not been mentioned in the said report. Therefore, notices could not have been issued to the persons and the proceedings were kept pending for more than 16 years. Hence, the petitioners were not held entitled and the said land was declared as surplus. Thus, prayed for dismissal of the petition as no case is made out warranting interference by this Court.
It is further contended by learned counsel for the petitioners that the order dated 12-03-2007, annexure P/4, passed by the appellate authority pursuant to remand order dated 11-03-1991, annexure P/1, is not tenable on facts as well as law because in the earlier round of litigation the matter travelled up to the Board of Revenue and the Board of Revenue had remitted back the matter to the appellate authority to decide the appeal on the issue that if any transfer has been made in the inter-regnum period of 1.1.71 and 7.3.74, then those purchasers are also required to be heard as having interest in the lis. It was further observed that notices were required to be issued to them as per the draft statement of the ceiling and, accordingly, the appellate authority was directed to examine that under what circumstances such land in ceiling has been transferred considering the provisions of section 4(1) of the 1960 Act and whether such transfer is against the provision and object of the amendment brought in the 1960 Act and accordingly pass an order.
Pursuant to the said order passed on 11-03-1991, the matter remained pending with the appellate authority till the year 2007. It is the case of the petitioners that pursuant to the order passed by the Board of Revenue, the petitioners had submitted a list of the purchasers as annexure P/2 before the appellate authority, as sought by the appellate authority; but, despite having information furnished by the petitioners and direction by the Board of Revenue, the appellate authority had never issued notices nor conducted an inquiry as directed by the Board of Revenue in accordance with the remand order. It is submitted that the proceeding is vitiated if the authority dealing with the matter under remand has failed to comply with the direction of the higher revisional authority / higher quasi judicial authority. It is further submitted that as the amendment was incorporated in the year 1974 in the 1960 Act, whereby the earlier provision pertaining to transaction/transfer done by the parties to defeat the ceiling proceedings have been more clarified. The amended provision of section 4 is reproduced hereunder for ready reference :-
4. Transfers or partitions made after the publication of the Bill but
before the commencement of this Act.- [(1) Notwithstanding anything contained in any law for the time being in force, where after, [the 1st January 1971] but before the appointed day, any holder has transferred any land held by him by way of sale, gift, exchange or otherwise or has effected a partition of his holding or part thereof or the holding held by the holder has been transferred in execution of a decree of any Court, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after such enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of or to defeat the provisions of this Act.]
[(2) Nothing in this section shall apply to a transfer made by a holder-
(a)who does not hold land in excess of the ceiling area; or
(b)who is a member of a family and where all the members of the family together do not hold land in excess of the ceiling area; as specified in sub-section (1) of section 7 as substituted by section 8 of the Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1974 on the date of the transfer.]
(3)Any person aggrieved by an order of the competent authority under this section may prefer an appeal against such order to the Board of Revenue. The decision of the Board and subject to the decision of the Board in appeal the decision of the competent authority shall be final.
[(4) [In regard to every transfer to which this section applies], the burden of proving that the transfer was not benami or was not made in any other manner to defeat the provisions of this Act shall be on the transferor.
(5)Notwithstanding anything contained in any law for the time being in force,-
(i)no Court shall entertain any suit for the specific performance of any contract of sale of land on the basis of any agreement or document made [on or before the 1st January, 1971], or
(ii)any decree passed by a Civil Court for the specific performance of the contract of sale of land on the basis of any agreement or document made[on or before the 1st January, 1971] shall be null and shall not be enforceable, over if such suit or decree is for the purpose of defeating the provisions of this Act.]
According to the said amended provision, any holder who has transferred his land in the inter-regnum period mentioned in the amended provision by way of sale, gift, exchange or otherwise or has effected a partition of his holding or part thereof or the holding held by the holder has been transferred in execution of a decree of any court, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after notice such enquiry as it thinks fit to make, declare the transfer or partition to be void, if it finds that the transfer or the partition as the case may be, was made in anticipation of or to defeat the provisions of this Act.
The sole ground which has been raised before this court is that despite remand on a particular issue of enquiry as per the amended provision of section 4(1) of the 1960 Act, the appellate authority has neither issued notices to the purchasers despite information furnished by the petitioners nor conducted an enquiry, as contemplated under the law and directed by the revisional authority. The petitioners have also submitted that a list, annexure P/2, was submitted before the appellate authority to call upon those persons in whose favour the transfer has been made. The learned Government Advocate has produced the original record during course of arguments and also acknowledged the fact that such list is in the record. When such information was already with the Authority, then the Authority was required to dwell upon the issue framed by the higher forum as per the remand order. Division Bench of this court in the case of Budhilal Vs. Mahant Jagannathdas, reported in 1963 SCC Online MP 18 , has held an under :-
"The powers and jurisdiction of the lower Court to deal with the suit, after remand, depended on the specifications of the remand order. Because, but for the order of remand, it had ceased to have any seisin of the case and the jurisdiction conferred on it to re-deal with it was circumscribed by the terms of the order in which the remand was made. We are, therefore, of opinion that where the order of remand lays down any limits for the enquiry to be made by the lower Court, that Court has no jurisdiction to enter into any question which falls outside those limits".
From bare perusal of order dated 12.3.2007, it is clear that the appellate authority while dealing with the issue, after remand, has not conducted any enquiry. In fact, the order was passed in a very callous manner. It was the duty of the Authority to look into all the aspects of direction given by the higher authority while remanding the matter by conducting an enquiry under section 4(1) of the 1960 Act. The Authority in a very cursory manner has held that the petitioners had not submitted any information in regard to the purchasers, therefore, they were not called upon to show cause to conduct an enquiry under section 4(1) of the Act.
This fact which has been observed by the appellate authority after remand found to be against the facts and the record submitted by the learned Government Advocate. A list was furnished in which the details of the purchasers have been mentioned and they are said to be residents of the same village. Therefore, in the considered opinion of this court, the appellate authority has not considered the case of the petitioners pursuant to the order dated 11.3.1991 passed by the second appellate Authority and, therefore, committed illegality, more so jurisdictional error, which calls for interference by this Court under supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India.
It is further submitted by the learned senior counsel for the petitioners that the issue of sons having an independent unit for assessing/calculating the ceiling limit of the family and individual, the petitioners had submitted that son forms a separate independent unit, however, for the same no adjudication was done by the authority.
From bare perusal of the remand order passed by the second appellate authority dated 11.3.1991, it is found that on the said issue remand was not made. However, as a legal question has been raised by the petitioners, the same ought to have been decided by the appellate authority by taking into consideration the very object of section 7 of the 1960 Act, which is reproduced hereunder :-
7.Maximum extent of land to be held by a person or family.- [(1) Subject to the provisions
of this Act, no holder or where the holder is a member of a family, no such family, shall, as from the appointed day, be entitled to hold land other than exempted land in excess of the land as is specified below:-
(1)land capable of yielding two
(a)where the holder is crops and receiving assured 10 acres. not a member of a irrigation or assured private family. irrigation for both the crops;
(2)land capable of yielding one crop and receiving assured irrigation or 15 acres. assured private irrigation for the crop;
(3)dry land. 30 acres.
(b)where the holder is (1) land capable of yielding two a member of a family crops and receiving assured 18 acres. of five members or irrigation or assured private less. irrigation for both the crops;
(2)land capable of yielding one crop and receiving assured irrigation or 27 acres. assured private irrigation for the crop;
(3)dry land. 54 acres.
(c)where the holder is (1) land capable of yielding two 18 acres plus 3 acres for each a member of a family crops and receiving assured member in excess of five of more than five irrigation or assured private subject to the maximum of 36 members. irrigation for both the crops; acres.
(2)land capable of yielding one crop 27 acres plus 4.50 acres for and receiving assured irrigation or each member in excess of five assured private irrigation for the subject to the maximum of 54 crop; acres. 54 acres plus 9 acres for each member in excess of five
(3)dry land. subject to the maximum of 108 acres:
Provided that where all or any one of the members of a family is also holder and holds land in his own rights, the aggregate land which such family shall hold shall not exceed the ceiling area specified ??? members of the family shall continue to hold land within the ceiling area in proportion to the extent of the land held by each one of them, before the appointed day.
(2)Where a holder who its member of a family one or more major sons, each such son shall, subject to the ceiling area specified in sub-section (1) for a holder, be entitled to hold land separately from out of the land belonging to the family before the appointed day, as if each such son were a holder:
Provided that if such major son or a member of his family hold land in his own rights and the extent of such land is less than ceiling area specified in sub-section (1) for the category of holders under which he falls, he shall be entitled to hold land out of such family holding only to the extent by which the land held by him as on 1st January, 1971 falls short of the ceiling area:
Provided further that no major son shall be entitled to have land under the preceding proviso unless he files before the competent authority a declaration in such form and within such period as may be prescribed.]
(3)In computing the ceiling area under sub-section (1)-
(i)orchards other than banana gardens and vineyards shall be treated as dry land; and
(ii)land which a holder or member of a family has in a [Joint Farming Society or any other Co-operative Society] as member thereof shall be treated as land held by such holder or member of a family;
(iii)one acre of land capable of yielding two crops and receiving assured irrigation or assured private irrigation for the crops shall be equal to 1.5 acres of land capable of yielding one crop and receiving assured irrigation or assured private irrigation for the crop or three acres of dry land.]1
Explanation:-For purposes of this section different kind of crops grown in either Rabi or Kharif season shall be deemed to be one crop.]
It is submitted by learned counsel for the petitioners that certain properties have been acquired by the sons prior to the amendment incorporated in section 4 and as per section 7, the exemption to the sons having their own independent unit can be extended. The case of the petitioners ought to have been considered in that regard also.
As no material has been placed before this court in regard to having independent unit of a son, this court cannot comment upon the merits of the submissions made by the petitioners. However, the petitioners are directed to submit the said submissions before the appellate authority along with some material and evidence to corroborate this fact, as the matter is to be decided by the competent authority in the light of the remand order.
The Division Bench of this Court in the case of Chandrashekhar Harprasad was State of M.P., reported in 1981 MPLJ 97 , has held that the object of amendment incorporated in the 1960 Act brought by way of Amendment Bill 1974, was given retrospective effect w.e.f. 24th January 1971. It is held as under :-
"8.So far as the jurisdiction of the Competent Authority acting under the M.P. Act is concerned it does not appear to be restricted to those transfers which have been made after 1-1-1971 and before 7-3-1974 as specified by the section 4(1), but it extends to those transfer also which might have been made after publication of the Bill (i.e. 15-9-1959) and before the commencement of the Principal Act (i.e. 15-11-1961). This is what flows from the title of the section 4, which has remained unamended in spite of several amendments brought about in the Act and also from the expression “made in anticipation of or to defeat the provisions of this Act” occurring in sub-section (1) of section 4 thereof. From the language employed in sub-section (I) of section 4, it appears as if there is a lacuna in provision in that section to cover the cases of transfers or partitions made between (a) 15-11-1961 to 1-1-1971 and (b) on or after 7-3-1974. If one looks to the provisions of section 5 of the M.P. Act it at once becomes clear that the provisions thereof squarely cover the cases of transfers not falling within the plea of the section 4(1). On such a construction, there does not appear to be any vacuum or omission in the Act. As such, there is no occasion for supplying any cause omissus. The net spread by section 4(1) of the M.P. Act thus is wider than that spread by section 22 of the T.N. Act".
9.The object of enquiry under section 4 (1) of the M. P. Act and that under section 22 of the T. N. Act is, in essence, the same, although it appears to be different the section having been differently worded. Sec-tion 4 (1) of the M. P. Act uses the expression "made in anticipation of or to defeat the provisions of this Act", whereas the expression used in section 22 of the T. N. Act is "defeats any of the provisions of this Act". No doubt the aforesaid expressions have been couched in different language, but the ultimate object of enquiry under both the provisions appears to be the same i. e. to find out whether a transfer in question is liable to be declared void or not. The import of the word 'to' occurring in the forequoted expression in section 4 (1) of the M. P. Act appears to be 'with object or result of. As per Shorter Oxford English Dictionary Illustrated, Volume Two, (reprint 1959), the word 'to' also means 'indicating result, effect or consequence. That apart, 'effect' of a fact has potency of indicating its 'cause'; likewise, 'cause' is capable of indicating that 'effect'. A transfer within the postulate of section 4 (1) of the M. P. Act as well as section 22 of the T. N. Act is a voluntary transfer. In a transfer which is an outcome of volition of the parties, intention is its necessary concomitant. It can, therefore, safely be regarded that if a transfer by way of sale, gift, exchange, or otherwise, in effect, defeats any of the provisions of the relevant Act, it must have been made with the intention of defeating its provisions. In this view of the matter, nothing appears to turn on the difference of the language in which section 4 (1) of the M. P. Act and section 22 of the T. N. Act have been couched. However, the feature which is peculiar to the M. P. Act is existence of provisions in the shape of sub-section (4) of section 4. Sec-tion 4 (4) of the M. P. Act casts burden of proving that transfer in question is not Benami and was not made in anticipation of or to defeat in any manner the provisions of the Act, on the transferor. The concept of burden of proof is germane in respect of consideration which is relevant for ad-judication of a lis. Accordingly, Benaminess or otherwise of a transfer is one of the relevant considerations, for the purpose of an enquiry under section 4 (1) of the M. P. Act."
According to the said amendment, the burden of proof is on a transferer to substantiate that any transfer which has been made between the inter-regnum period as mentioned in the amendment Act was not to defeat the object of the Act and in fact, it was a bonafide transaction. The said aspect was required to be enquired into by the Authority as per the mandate of the provision. As the petitioners had submitted the list of the purchasers, annexure P/2, which finds place in the record, the finding of the appellate court that such record was not made available by the petitioners is perverse and is against the record.
Therefore, in view of the aforesaid analysis of fact and law, the matter is remitted back to the appellate authority to decide the effect of Amendment Act on the land transferred by the petitioners in the inter-regnum period of 1.1.1971 to 7.3.1974. As the list is already available with the appellate authority, it is expected from the authority to issue notices to the concerned as per the earlier remand order annexure P/1 and conclude the enquiry as expeditiously as possible, as the matter had remained pending with the appellate authority after remand for 16 years and that has been decided without examining the true import of the provision and the direction of the appellate authority. It is further found that when the order was challenged before the Board of Revenue, the Board of Revenue vide order dated 1.8.2008, annexure P/5, has affirmed the order that too also without discussing the import of section 4 of the 1960 Act and also the earlier direction issued by the Board of Revenue.
In view of the aforesaid, the orders passed by the Board of Revenue as well as appellate authority dated 1.8.2008 and 12.3.2007, annexure P/5 and P/4, respectively are found to be perverse, illegal and both the authorities have committed jurisdictional error in deciding the matter, therefore, impugned orders are hereby quashed. The matter is remitted back to the appellate authority to decide the matter, as directed hereinabove, by conducting an enquiry as provided under section 4(1) of the 1960 Act within a period of six months from date of receipt of the certified copy of this order.
Accordingly, the petition stands disposed of without any order as to cost.