Naginbhai Lallubhai Patel vs Union Territory Of Dadra And Nagar ...
2003 Latest Caselaw 260 Bom

JUDGMENT

R.M. Lodha, J.

1. The order dated 22nd July, 1992 passed by the Administrator, Dadra and Nagar Haveli in appeal affirming the order passed by the Resident Deputy Collector, Dadra and Nagar Haveli on 14.6.91 is impugned in the present writ petition.

2. The controversy arises in the facts and circumstances which we briefly narrate hereinafter.

3. Babarbhai Kaliabhai Patel-respondent No. 2 herein was the Alvara holder of land bearing survey No. 654/1 of village Sayali. The petitioner Naginbhai Lallubhai Patel claims to be closely related to respondent No. 2. Both are Adivasi and resident of same village. Vide agreement dated 16.6.75, respondent No. 2 agreed to transfer his occupancy rights in the aforesaid land to the petitioner for a consideration of Rs. 950/-. The possession of land was given by respondent No. 2 to the petitioner. The entire consideration was paid by petitioner to respondent No. 2. It appears that some dispute arose between the petitioner and respondent No. 2 and the respondent No. 2 herein sought restoration of possession of the said land by making an application to the Mamlatdar, Dadra and Nagar Haveli, Silvasa. The Mamlatdar forwarded the case file to the resident Deputy Collector, Dadra and Nagar Haveli, Silvasa. The enquiry was made through the Circle Officer and it was found that transfer of the occupancy rights by respondent No. 2 in favour of the petitioner vide agreement dated 16.6.75 was without obtaining prior permission of the competent authority under the Dadra and Nagar Haveli Land Reforms Regulation, 1971 (for short 'Regulation 1971'). The transaction was prima facie found to be in contravention of Section 4(6) of the Regulation 1971 and accordingly, notice was given to the parties viz. the petitioner and the respondent No. 2. After recording the necessary evidence, the resident Deputy Collector held that the transfer of land by respondent No. 2 in favour of the petitioner was in violation of Section 4(6) of Regulation 1971. He, accordingly, ordered forfeiture of said land to the Government and further ordered that possession be taken of the said land. The order passed by resident Deputy Collector on 14th June, 1991 was challenged by the petitioner in appeal before the Administrator, Union Territory of Dadra and Nagar Haveli, Silvasa. The appellate authority heard the parties and found no merit in the appeal. The appellate authority, thus, maintained the order of Resident Deputy Collector. The orders passed by Resident Deputy Collector on 14th June, 1991 and the Administrator on 22.7.92 are impugned in the present writ petition.

4. Mr. Harshad E. Palwe, learned counsel for the petitioner invited our attention to Section 4(6) of Regulation 1971 and strenuously contended that by the agreement dated 16.6.75 entered into between the respondent No. 2 and petitioner there was no transfer of the occupancy rights as such and therefore, it cannot be said that there was any contravention of law, particularly Section 4(6) of the Regulation by respondent No. 2. The learned counsel submitted that, subsequently, the petitioner filed a suit for specific performance against the respondent No. 2 herein and the said suit has been decreed. He, thus, submitted that the agreement to transfer occupancy rights is not covered by Section 4(6) of Regulation 1971 and therefore, the impugned orders are liable to be set aside.

5. Regulation 1971 was enacted to abolish Alvara and Teram tenures in Dadra and Nagar Haveli and to confer regulation occupancy rights of Alvara and Teram holders and their tenants to impose a ceiling on possession of agricultural lands and other matters connected therewith.

was the Alvara holder of the land bearing survey No. 654/1. He was granted occupancy rights in respect of the said land admeasuring 40 Acres and he was in possession of the said land accordingly. The execution of agreement dated 16.6.75 between respondent No. 2 and the petitioner is not in dispute. The agreement reads thus-

"A G R E E M E N T

VENDOR - Baber Kalia Dhadi, resident of Sawervarni, Dadra and Nagar Haveli, hereinafter called as Vendor in this agreement.

Purchaser who is getting this agreement written Shri Naginbhai Lallubhai Patil, resident of Sawarvarni, Nagar Haveli, hereinafter cased as PURCHASED in this agreement.

On the 7th Monday of Month Jeth Samvat year 2031 (English Calender 16th day of June, 1975 the Vendor hereby Write to the Purchaser as follows)

I have my own tenancy land bearing S. No. 654/1, admeasuring OH.40 (fourty) Are, situated at Village Sayali in the Union Territory of Dadra and Nagar Haveli. That land today I have sold to you for Rs. 950/- (Nine hundred and fifty only). That consideration have received today in cash. There is no dispute regarding consideration you can deal with the land sold in a manner in which you like including occupation, possession and enjoyment.

The possession of land sold is given under your possession, without any defect including the standing trees. I hereby undertake to indemnify you in case of any third party claiming any right title and interest at my cost.

If any premium is required to be paid, that shall be paid by me. This land prior to you have not been subject matter of any agreement of mortgage, sale or gift. I have given full confidence of the title and written this.

In the above land I have not retained any right title claim or interest nor have been retained. you are entitled to get the land transferred on your name and for that purpose, if any declaration or signature is required then I have to give as and when required. Land Revenue henceforth shall have to be paid by you. The registered sale deed I have to execute as and when you call upon me at your costs.

The four boundaries of the property sold is as follows:

North - Govt. Plot land of Raviq

South - Land of Uttam Soker

West - Land of Soula Mausi

Land in between the four boundary is absolutely sold to you and possession have been given to you.

The above agreement I have executed voluntarily, in my good state of mind without having influence of intoxication, without any pressure of any person at Silvassa on my own accord, which shall be binding upon me and my legal heirs whatever written above is correct. Silvassa dated 16th June, 1975.

 LTM of Balerkalia made in         Sd/-
my presence & signed as       Khusal Lally
witness at his instance.      Dt. 16.6.1976

Sd/-
Khusal Navsa Patil            LTM of Jagan
16.6.1975                     budhia
                              16.6.1975
 
 

7. Though the document is entitled 'Agreement', a perusal of the aforesaid document would show that the land bearing survey No. 654/1 admeasuring 40 Areas, situate at village Sayali was in fact sold by respondent No. 2 to the petitioner for a consideration of Rs. 950/- and possession thereof was also given to the petitioner. The respondent No. 2-the vendor undertook vide aforesaid document that he did not retain any right, title or claim whatsoever in the transferred land. Merely because the document has been entitled "agreement" it would not cease to be document of sale if vendor divested himself of his right, title and interest in the said land by such document, received full consideration and handed over possession to the purchaser. Assuming that the document dated 16.6.1975 is not sale by itself, the question that arises is: whether by the said document there was transfer of the occupancy rights and such transfer is hit by Sub-section (6) of Section 4.

8. Section 4(6) of the Regulation reads thus-

"(6) No person shall transfer by way of sale, lease, mortgage, exchange or otherwise, any agricultural land, including any part thereof, in respect of which occupancy rights are deemed to have been granted to him under this section except in accordance with such rules as may be made in this behalf."

9. Sub-section (7)( of Section 4 provides that any transfer of land made in contravention of the provisions of Sub-section (6) shall be void and the occupancy rights in respect of the land so transferred shall stand forfeited to the State Government.

10. The expression "otherwise" occurring in Sub-section (6) of Section 4 cannot be read to mean transaction as narrated proceeding thereto alone like transfer by way of sale, lease, mortgage or exchange. The instances of transfer by way of sale, lease, mortgage and exchange in Section 4(6) are only illustrative and not exhaustive. There may be some other transfers besides instances of transfer stated in Sub-section (6) of Section 4 and word "otherwise" has been used keeping that in mind. By use of the expression "otherwise", the law makers have given an extended meaning to include the transactions of transfer which are otherwise not covered by way of sale, lease,mortgage and exchange but whereby the occupancy rights have been transferred. By use of the word "otherwise", apparently, the law makers intended to cover other cases of transfer of occupancy rights which may not come within the meaning of preceding instances. What seems to us is that law makers intended to cover all possible cases of transfer in relation to the occupancy rights for whatever reasons and by whatever modes. The word "otherwise" has been used in all inclusive sense. The law maker has been cautious and by use of expression "otherwise" sought to plug all avenues of escape. The word "otherwise" is not a word of limitation but extension so as to cover all possible ways in which transfer occupancy rights may occur.

11. We are fortified in our view by the judgment of the Division Bench of this Court in Vinayakrao Ganpatrao Pimpalapure v. State of Maharashtra, 1975 Mh.L.J. 566 where the Division Bench of this court was concerned with the word "otherwise" occurring in Section 31 of Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act which was under consideration before the Division Bench reads thus-

"31. Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall be-

(a) transferred whether by way of sale (including sale in execution of a decree of a civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, or lease, or otherwise, except in according with such conditions as may be prescribed."

12. In the case before Division Bench the subject matter related to an agreement of sale in relation to some lands in contravention of Section 31. The argument was that the agreement of sale was neither a sale nor a gift, exchange or lease and therefore, provisions of Section 31 were not attracted. It was also contended that the word "otherwise" should be interpreted as a transaction of like nature. Dealing with this aspect, the Division Bench observed thus-

"At the hearing of the petition when it was pointed out that sub-division of a holding is not permitted under Section 31 without the permission in writing of the Commissioner subject to the general orders of the State Government, the case in respect of Unit No. 97 which was a transfer in favour of 7 transferees was not pressed by the petitioner. The petitioner mainly pressed his case in respect of Unit No. 50 which he had agreed to sell to one transferor, namely, Raghoba and there was no dispute that he was an agriculturist. Reading Rule 27 of the said Rules, the Collector can grant permission to any person desiring to transfer any holding as provided by Clause (a) of Section 31. Therefore, it is necessary to consider the provisions of Section 31 of the Act which we have already reproduced. Section 31 clearly lays down that no holding allotted under this Act or any part thereof shall be transferred whether by way of sale or by way of gift, exchange or lease or otherwise except in accordance with such conditions as may be prescribed. It was contended that the agreement of sale which was entered into by the petitioner was neither a sale nor a gift, exchange or lease and, therefore, provisions of Section 31 are not attracted. It was also contended that the word "otherwise" should be interpreted as a transaction of like nature. On that basis it was urged that agreement of sale, even though in the instant case possession was given to the transferee, was not a transaction of a like nature like a sale or by way of gift, exchange or lease. We are unable to accept the submission urged on behalf of the petitioner. The opening part of Section 31 states "Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall be transferred." The instance of transfer are stated in Section 31 of the Act. However, they are not exhaustive and for showing that there may be some other transfers besides the instances of transfers stated, is our opinion, the word "otherwise" has been used."

13. The Division Bench of this court, thus, with reference to the provisions contained in Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act and the nature of transaction by agreement to sale held that the word "otherwise" comprehends within itself such transaction and it is hit by provision 31. In our opinion, in the present case also, as already noted by us above, the expression "otherwise" occurring in Sub-section (6) of Section 4 is an all inclusive expression and comprehends within itself the cases which may not come within the meaning of preceding clauses viz. by way of sale, lease, mortgage, exchange. The transaction between the respondent No. 2 and petitioner on 16.6.75 vide agreement noted above is directly hit by Clause 6 of Section 4.

14. The learned counsel for the petitioner, however, pressed into service the judgment of the learned Single Judge of this Court in Sitaram Ganu Mhaskar and Anr. v. Keshav Ramchandra Shelor and Anr. 2001 (4) All MR 116. In Sitaram Ganu Mhaskar, the learned Single Judge was dealing with the case arising out of Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948. Section 43 of the Act of 1948 which was under consideration before the learned Single Judge in Sitaram Ganu Mhaskar reads thus-

"43. (1) No land purchased by a tenant under Section 32, 32F, (32II, 3230, 33C or 43-ID) or sold to any person under Section 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector, (such sanction shall be given by the Collector in such circumstances, and subject to such conditions, as may be prescribed by the State Government:....."

15. Dealing with the aforesaid provision, the learned Single Judge held that agreement for sale of land without previous sanction of the Collector cannot be said to be hit by Section 43 as and agreement does not transfer any interest in land. Pertinently, Section 43 does not have expression "or otherwise" which occurs in Sub-section (6) of Section 4. We have already explained the effect of the expression "otherwise" above which we need not repeat. Suffice, however, to observe that the observation made by learned Single Judge in Sitaram Ganu Mhaskar in the light of Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948 cannot be made applicable to the case in hand which arises out of Sub-section (6) of Section 4 of Regulation 1971 wherein the expression "or otherwise" occurs and that makes both the provisions substantially and materially distinct.

16. In the light of the aforesaid discussion, we do not find any infirmity in the order of Resident Deputy Collector as well as the order of The Administrator that the agreement to transfer of land being Survey No. 654/1 by respondent No. 2 to the petitioner herein was in contravention and violation of Sub-section (6) of Section 4 of Regulation 1971. The impugned order, therefore, cannot be faulted. Resultantly, the writ petition has no merit and is dismissed with no order as to costs.