Shankargir Gulabgir Gosavi And ... vs State Of Maharashtra And Ors.
2004 Latest Caselaw 273 Bom

JUDGMENT

Kharche S.T., J.

1. In all these three petitions common questions of law are involved, all the petitions are being disposed of by this common judgment

2. The petitioners, by invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, challenged the order dated 24-7-1991 passed by the Maharashtra Revenue Tribunal (M.R.T.) in Ceiling Appeal No. Alc. A.-3 of 1991 whereby the appeal was dismissed and the findings recorded by the Surplus Land Determination Tribunal (S.L.D.T.) by the order dated 7-1-1991 were confirmed by which the claim of the petitioners purchasers was negatived that they being the purchasers of the agricultural land from Ajay Madhukar Yerawar should be excluded from consideration while delimiting the surplus land as per the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, the Ceiling Act).

3. Madhukar Yerawar is the owner of agricultural land and Revenue Case No. 188/60-A(5)75-76 of village Ghatna was started against him by the revenue authorities. The land holder had filed return and previously the matter was remanded by the M.R.T. in Ceiling Appeal No. 15 of 1990 by the order dated 24-9-1990 in which the M.R.T. set aside the earlier delimitation order passed by the S.L.D.T., Yeotmal on 21-8-1989. The M.R.T. remanded the matter for fresh delimitation of the land in accordance with the provisions of sub-section (1) of section 10 of the Ceiling Act. In pursuance of the remand order, the S.L.D.T. initiated the proceedings and issued notices to all the interested persons. In all 20 persons were served as an interested persons as those 20 persons have purchased the agricultural land held by respondent No. 2 after 2-10-1975. The father of respondent No. 2 died sometime in the year 1991. In the meanwhile, Ceiling Appeal No. 15 of 1990 was preferred by the petitioners before the M.R.T. and the said appeal was allowed and the matter was remanded back to the S.L.D.T. for computation of the delimitation of the land. The S.L.D.T. considered the contentions of the petitioners as well as the respondent Madhukar Yerawar and held that all the transfers made in favour of the petitioners by registered sale deeds were invalid. Being aggrieved by this order, the petitioners carried appeal to the M.R.T. and the appeal came to be dismissed on 24-7-1991 and this is how the petitioners are before this Court.

4. The learned Counsel for the petitioners contended that in all 20 per-sons were served as an interested persons and those persons had purchased the land of respondent No. 2 after 2-10-1975. It is contended that with a view to gain unlawful benefit and to save the land from the clutches of Ceiling Act, unlawfully taken advantage by selling the land and now near about excess land which is declared as surplus have already been sold and none of the lands after delimitation remains with the landlord and in these circumstances, the petitioners as also the other purchasers were put to substantial loss due to the act of the respondent No. 2. It is contended that while conducting the enquiry, the learned Member of the SL.D.T. did not fallow Rule 4 of the Maharashtra Agricultural Lands (Lowering Ceiling on Holdings) (Declaration and Taking Possession of Surplus Land) and Amendment Rules, 1975 (for short "the Rules, 1975"). It is contended that though the respondent No. 2 Madhukar Yerawar had sold some lands by execution of the registered sale deeds, those were not taken into consideration while delimiting the surplus land.

5. The learned Counsel further contended that the agricultural lands were sold to nine purchasers (petitioners) and these lands were taken into consideration by the S.L.D.T. while passing the order of delimitation. The learned Counsel further contended that the S.L.D.T. did not make any enquiry as to whether the petitioners-transferees became landless persons or their holdings will be reduced below the limits mentioned in Rule 4, and therefore there was no reason for the exclusion of the land of other transferees. The learned Counsel further contended that the deficit land will have to be carved out in accordance with the Rule 4 of the Rules, 1975 which lays down that firstly, the deficit surplus lands will have to be determined after taking into consideration the availability of the lands from all the transferees. Taking into consideration the land which has been transferred to all 20 persons has to be taken into consideration while delimiting the land and in pursuance of section 2 sub-section (5)(a), (b), (c), (d) and (e), no transferee can be dispossessed of his holdings below 1 hectare and in accordance with these provisions of law, several persons would become landless. The learned Counsel further contended that therefore the order passed by the S.L.D.T. is not in consonance with the provisions of sub-section (1) of section 10 read with Rule 4 and in such circumstances the order dated 7-1-1991 passed by the S.L.D.T. cannot be sustainable in law.

6. The bone of contention of the learned Counsel for the petitioners is that the impugned order dated 24-7-91 passed by the M.R.T. is also erroneous and the approach of the M.R.T. to the entire matter was wrong in observing that most of the land was transferred by respondent No. 2 after declaration of his surplus land only to save the surplus land for being delimiting the surplus land and that too in league with the petitioners. The learned Counsel further contended that the M.R.T. did not take into consideration the provisions of section 10 of the Act and Rule 4 of the Rules, 1975. It is contended that section 10 of the Ceiling Act provides that if by reason of such transfer, the holding of a person or as the case may be, of the family unit is less than the area so calculated to be in excess of the ceiling area, then all the land of the person, or as the case may be, the family unit shall be deemed to be surplus land; and out of the land so transferred and in possession of the transferee, the land to the extent of such deficiency shall subject to Rules made in that behalf also be deemed to be surplus land as per the provisions of the Ceiling Act, the purchasers holding would be reduced below economic holding and some became landless. In the circumstances the impugned order deserve to be set aside and the land held by the petitioners-transferees deserves to be excluded from consideration while delimiting the surplus land.

7. The learned Counsel for the intervenor respondent Nos. 3 to 24 (allottees of surplus land) contended that the original and owner Madhukar Yerawar and his family unit had challenged the order dated 31-10-1984 passed by the S.L.D.T. by filing Ceiling Appeal No. A-196-1984 before the M.R.T. which came to be finally decided on 27-2-1985. The learned Counsel contended that the lands which were transferred by the original owner Madhukar Yerawan during the period 26-9-1970 to 2-10-1975 were taken into consideration by both the authorities. He contended that the original land owner Shri Madhukar Yerawar and his son have deliberately sold the land to the petitioners in order to defeat the provisions of the Ceiling Act. In support of these submissions, the learned Counsel for the respondents relied on the decision of the Supreme Court in the case of Jugal Kishor v. State of Maharashtra, and further contended that those transferees in favour of the petitioners were not bona fide and only made to defeat the provisions of Ceiling Act and therefore, no interference into the same is warranted. The impugned order dated 24-7-1991 passed by the M.R.T. is perfectly legal and correct and no case has been made out for interference into the same.

8. The learned Assistant Government Pleader for the State supports the impugned order dated 24-7-1991 passed by the M.R.T.

9. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties It is not in dispute that Madhukar is the original owner of the agricultural land. It is also not in dispute that the original ceiling proceedings in respect of the land held by his family unit were started in the year. 1975-76 before the S.L.D.T., Yeotmal being Revenue Case No. 188/60A(5)/75-76. This case was decided by the S.L.D.T. on 31-10-1984. Ad per the return, the total land which was declared as surplus was 111.17 acres declared as per the provisions of section 21 of the Ceiling Act. The S.L.D.T. directed that the surplus land holder to file option for retention of the land in Form No. VII under section 16 of the Ceiling Act. The original owner being aggrieved by that order has carried the appeal which was registered as Ceiling Appeal No. A/196/1984 before the M.R.T. The order dated 27-2-1985 was passed by the M.R.T. who directed that the S.L.D.T. should allow further no land as directed above and transfer of 8.2 acres out of Survey No. 11 if properly established and excluded the area so allowed out of the total holdings of 146.39 acres, he may then delimit the remaining area over and above the ceiling limit of 54.00 acres in the family unit after ascertaining the choice of retention from the appellant and with these directions, the M.R.T. dismissed the appeal. It is also not in dispute that the original owner Madhukar Yerawar had filed Write Petition No. 933 of 1987 challenging the declaration of surplus land which was subsequently withdrawn by the owner and therefore, the said writ petition was dismissed for want of prosecution.

10. It is not disputed that the S.L.D.T. passed the order dated 21-8-1989 after the matter was remanded to it by the M.R.T. vide order dated 6-2-1989 in Ceiling Case No. ALC-A-42/88 which was filed by Madhukar Kashinath Yerawar. The S.L.D.T. after taking into consideration the contentions raised therein regarding the date of birth of Ajay Yerawar and other contentions, had made the declaration under section 21 (1) of the Ceiling Act as under:

a) The total area of the land which the landholder/family unit is ent-

   itled to hold as ceiling area.          54.00 acres 
b) The total area of land which is
   in excess of the ceiling area.          59.36 acres
c) The name of landholder to whom 
   possession of land is to be restored 
   under section 19 and area and           Nil 
   particulars of such land.
d) The area description and full
   particulars of land which is
   delimited as surplus land. :            As detailed below:
--------------------------------------------------------------
  Village     Sl. No. Area          Share
                      A.G.
--------------------------------------------------------------
  Ghatana     9/1     7.22          From Westside excluding
                                    potkharab land 3.11
  -do-        57      24.28         Full excluding potkharab
                                    land 0.13
  Loni        60      19.19         Full excluding potkkarab
                                    land 1.36
  -do-        10      10.15         Full excluding potkharab
                                    land 1.25
  -do-        7       10.32         From West Side-
  -do-        11      8.00          From North side excluding
                                    potkharab land 0.03
                     ______
                      59.36 
  e) The area and particulars of
     land out of surplus land in
     respect of which the right title
     and interest of the person holding
     it, is to be forfeited to State Govt.    Nil
 

This declaration of delimitation of the land was challenged by all the petitioners before the M.R.T. in Ceiling Appeal No. Alc.A-15 of 1990 and the M.R.T. by the order dated 24-9-1990 remanded the matter back to the S.L.D.T. for fresh delimitation order according to the provisions of sub-section (1) of section 10 and the Rules framed under the Ceiling Act. Thereafter the matter was decided by the S.L.D.T. after remand on 7-1-1991 wherein the S.L.D.T. negatived the contentions of the petitioners that they being the transferee, their land should not be taken into consideration in accordance with the provisions of section 10 of the Ceiling Act read with Rule 4 of the Rules, 1975. It is not in dispute that thereafter against the petitioners carried appeal to the M.R.T. and the appeal came to be dismissed on 24-7-1991.

11. Section 8 of the Ceiling Act deals with restriction on transfer which contemplate that; where as person, or as the case may be, a family unit holds land in excess of the ceiling area on or after the commencement date, such person, as the case may be, any member of the family unit shall not, on and after that date, transfer any land, until the land in excess of the ceiling area is determined under this Act.

Explanation.-In this section, "transfer" means transfer, whether by way of sale, gift, mortgage with possession, exchange, lease, assignment of land for maintenance, surrender of a tenancy or resumption of land by a landlord or any other disposition, whether by act of parties made inter vivos or by decree or order of a Court, Tribunal or authority (except where such decree or order is passed in a proceeding which is instituted in such Court, Tribunal or before such authority before the 26th day of September, 1970), but does not include transfer by way of sale or otherwise of land for the recovery of land revenue or for sums recoverable as arrears of land revenue, or acquisition of land for a public purpose under any law for the time being in force.

12. It is necessary to reproduce section 10 of the Ceiling Act, which leads thus:

(1) If-

(a) any person or a member of a family unit, after the 26th day of September, 1970 but before the commencement date, transfers any land in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, or

(b) any land is transferred in contravention of section 8, then, in calculating the ceiling area which that person, or as the case may be. The then, in calculating the ceiling area which that person, or as the case may be the family unit, is entitled to hold, the land so transferred shall be taken into consideration, and the land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area for that holding, notwithstanding that the land remaining with him or with the family unit may not in fact be in excess of the ceiling area.

If by reason of such transfer, the holding of a person, or as the case may be, of the family unit is less than the area so calculated to be in excess of the ceiling area, then all the land of the person, or as the case may be, the family unit shall be deemed to be surplus land; and out of the land so transferred and in possession of the transferee (unless such land is liable to forfeiture under the provisions of sub-section (3|), land to the extent to such deficiency shall, subject to rule made in that behalf, also be deemed to be surplus land, notwithstanding that the holding of the transferee may not in fact be in excess of the ceiling area.

Explanation.--For the purposes of Clause (a) 'transfer' has the same meaning as in section 8.

All transfers made after the 26th day of September, 1970 but before the commencement date, shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972.

Explanation.-For the purposes of this sub-section, a transfer shall not be regarded as made on or before 26th September, 1970 if the document evidencing the transfer is not registered on or before that date or where it is registered after that date, it is not presented for registration on or before the said date.

(2) If any land is possessed on or after the commencement date by a person, or as the case may be, a family unit in excess of the ceiling area or if as a result of acquisition (by testamentary disposition or devolution on death or by operation of law) of any land on or after that date, the total area of land held by any person, or as the case may be, a family unit, exceeds the ceiling area, the land so in excess shall be surplus land.

(3) Where land is acquired in wilful contravention of section 9, then as a penalty therefore, the right, title and interest of the person, or as the case may be the family unit or any member thereof in the land so acquired or obtained shall, subject to the provisions of Chapter IV, be forfeited, and shall vest without any further assurance in the State Government:

Provided that, where such land is burdened with an encumbrance, the Collector may, after holding such inquiry as he thinks fit and after hearing the holder and the person in whose favour the encumbrance is made by him, direct that the right, title and interest of the holder in some other land of the holder equal in extent to the land acquired in wilful contravention of section 9, shall be forfeited to Government.

13. In the case of Jugal Kishore v. State of Maharashtra, , the Hon'ble Supreme Court observed in relevant paras 8, 9 and 10 as under:

"It is, therefore, submitted on behalf of the petitioner that determination of the question of tenancy by the ceiling authorities was without jurisdiction. The High Court held that in the facts of this case it was not. The ceiling authority had to determine the land holdings of the petitioner. Incidently, where a transfer is made by the landholder creating a tenancy there whether the transfer was made bona fide or made in anticipation to defeat the provisions of the Ceiling Act is a question which falls for determination squarely by the ceiling authorities to give effect to or implement the Ceiling Act. In that adjudication it was an issue to decide whether tenancy right was acquired by the tenant of the petitioner. But here before the ceiling authorities the adjudication was whether the transfer to the tenant, assuming that such transfer was there, was bona fide or made in anticipation to defeat the provisions of the Ceiling Act. This latter question can only be gone into in appropriate proceedings by the ceiling authorities. Unless the Acts, with the intention of implementing various socio-economic plans, are read in such complimentary manner, the operation of the different Acts in the same Field would create contradiction and would become impossible. It is, therefore, necessary to take a constructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the Court.

In our opinion, having regard to the preamble to the act of the Maharashtra Agricultural Lands(Ceiling on Holdings) Act, 1961, which was enacted for giving effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 of our Constitution; and in particular, but without prejudice to the generality of the foregoing declaration, to ensure that the ownership and control of the agricultural resources of the community are so distributed as best to subserve the common good and having regard to the purpose of the Bombay Act, it was open to the ceiling authorities to determine whether there was, in fact, a genuine tenancy.

In that view of the matter we are of the opinion that the High Court was right in the approach it made. In the ceiling proceedings it has been held that the transfer to the tenant was not bonafide and was done in anticipation of the Ceiling Act. We find no ground to interfere with the order of the High Court. There is no merit in this application, Hence, it fails and is dismissed."

14. Perusal of the order dated 7-1-1991 passed by the S.L.D.T. would indicate that the M.R.T. by the order dated 24-9-1990 set aside the order passed by the S.L.D.T. on 21-8-1989 and remanded the matter for fresh delimitation of the land as per the provisions of sub-section (1) of section 10 of the Ceiling Act and after the remand, the S.L.D.T. again considered the facts and circumstances and observed that the total holdings of the land holder has already been decided as 156.13 acres out of which 12.17 acres land allotted as potkharab land and 89.36 acres land has been declared as surplus land. The S.L.D.T. further observed that the Talathi had. produced 7/12 extract along with the copy of mutation entry and the land was owner by the father of the land holder and a share of 7.20 acres (considering of five share holder as per the copy of mutation) came to the share of the land holder and the same was to be counted to his total holdings, and therefore, the surplus land would be 97.16 acres (156.13+7.20 - 163.23-12.17 potkharab= 151.16 = 54.00 ceiling area - 97.16). The S.L.D.T. further held that the landholders have sold and transferred their land to the interested persons and all these transfers are in contravention of the provisions of section 10 of the Ceiling Act.

15. All the land which have been transferred shall have to be taken into consideration as per Rule 4 of the Rules, 1975 and those transactions are 20 in number enumerated below as reflected in S.L.D.T.'s order:

Village Area

Landlord

Sl. No.

Total

Potk-kharab

Trans-referred

Dt. of transfer

Balance with landlord

Name of purchaser

1.

2.

3.

4.

5.

6.

7.

8.

9.

Loni Hirabai

16604

18-4-74

8.00

M.J. Dudhkar

Ghat-ana

--

10604

10604

12-6-74

--

Ukandu Tukaram

--

Madhukar

25601

25601

27-2-75

--

Bhoja Hariya

(lateron he has sold 20 acres land to N.S. (eligible) each.

22-6-77

Ramesh Vish-wanath

11-1-81

Mahado Vish-wanath

19-12-80

Ramdas Lachiram

20-1-81

Dashrath Vas-aiam

Loni

Ajay

20600

28-5-84

Deosingh Dbawda

18-3-85

Babulal Hiralal

30-12-86

Manik Champat

(including potkharah)

Ghatana

Madhkar

10633

18-3-85

4.02

Bandu Vasaram

(excluding potkharab)

--

Ajay

25634

18-1-85

Yamunabai Bandu

23-3-89

Kisan Doma

31-3-89

Lankanbai Premsingh

--

Shankargir Gulabgir -5605

(excluding potkharab)

Loni Vijay

21615

21615

11-4-85

Sakhibai Ganpat

Ghatana

--

  Village   Sl. No. Area   Purchased on      Name of seller 
-------------------------------------------------------------------
  Ghatana   8       8600   31-3-89           Shankargir Gulabgir     
  Ghatana   8       3611   31-3-89           Lankabai Premgir 
  -"-       8       3600   23-3-89           Kisan Doma 
  -"-       8       3600   18-1-85           Yamunabai Badu 
                    -----
                    17611
                    ----- 
  Loni     60       15622  11-4-85           Sakubai Ganpat 
  Ghatana   9/1     3620   18-3-85           Bandu Vasaram 
  Loni     10       6600   30-12-86          Manik Champat 
           10       5600   18-3-85           Babulal Hartal 
           10       5600   28-5-84           Deosing Dhawda 
                    -----
                    52613 
                    -----
                    97.16 
                    -----