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Kaniram Jagannath Lokhande and anr. Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 287 of 1976
Judge
Reported inAIR1977Bom240
ActsMaharashtra Restoration of Lands to Scheduled Tribes Act, 1974 - Sections 2, 2(2), 2(3), 3, 3(1), 3(4), 4 and 10; Constitution of India - Articles 14, 15, 19, 31, 226 and 227; Maharashtra Land Revenue Code, 1966 - Sections 36(1) and 36(3); Bombay Tenancy and Agricultural Lands Act, 1948; Constitution of India (40th Amendment) Act, 1976
AppellantKaniram Jagannath Lokhande and anr.
RespondentThe State of Maharashtra and ors.
Appellant AdvocateA.P. Deshpande, Adv.
Respondent AdvocateR.W. Adik, Adv. General, ;M.M. Qazi, Addl. Govt. Pleader and ;V.V. Naik, Hon. Asstt. to A.G.P.
Excerpt:
.....the civil court should not be attracted. the amount made recoverable by collector as arrear of land revenue under section 3 (4) (g) thus covers the amount payable under section 3 (1) (i) read with sub-section (4) (a) (c) (d) as well as under section 3 (1) (ii) read with section 3 (4) (b) of the act there is absolutely no warrant to restrict the connotation of the words 'in lump sum' only to the dues made payable so expressly in lump sum and assume legislative intent not to include amounts payable so in lump sum impliedly. we are, however, firmly of the opinion, that the amount payable to the non-tribal-transferee under section 3 (1) (ii) read with section 3 (4) (b) is clearly covered by section 3 (4) (g) of the act without regard to whether the amount is refundable towards the..........and the relevant tenancy laws have been effective in extending the intended protection to the tribals. lands, sold by the tribals during the period from 1-4-1957, i.e. tillers day, so notified under the bombay tenancy and agricultural lands act of 1948 to 6-7-74 when ordinance no. 13 of 1974 amending the code was enforced to non-tribals alone are covered by the definition of 'transfer' which includes all transfers by act of parties including exchange made inter vivos, or made under the order or decree of the court and also statutory sales but excludes transfers covered by section 36(1) and (3) of the cede. section 3 of the act deals with the restoration of lands transferred inter vivos by the act of the parties while section4 deals with statutory sales. lands put to non-agricultural.....
Judgment:

Deshpande, J.

1. The petitioners purchased the lands in dispute from respondent No. 3 for a sum of Rs. 1,800 on 17-4-1963. A few days before they filed an application in this Court under Articles 226 and 227 of Constitution on 5-1-1976, they received a notice from the Sub-Divisional Officer, Umrer calling upon them to appear before him on 28th of August 1975 to show cause why the lands Khasra Nos. 7 and 8 should not be restored to the tribal, respondent No. 3, under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as 'the Act'). Subsequent to the service of the first notice, the Government of Maharashtra framed rules on 1st of November 1975 under the Act prescribing the forms in which the notices were to be served for initiating the proceedings for restoration of lands to the tribals. Another notice, therefore, was also served in form No. II requiring the petitioner to appear on 28th of December 1975. The petitioners challenge the validity of the Act as also the legality of these notices in this Special Civil Application.

2. Rule and interim stay was granted by this Court on 7th of January 1976 as in many other cases challenging the validity of the Act. After this rule was granted, the Act itself has now been included in the Ninth Schedule under the 40th Constitution Amendment Act of 1976, The effect of the inclusion of this enactment in the Ninth Schedule is to immunise it from any attack on its validity by reference to any provision in Part III of the Constitution, including Arts. 14, 15, 19 and 31.

3. Mr. A.P. Deshpande, learned Advocate appearing for the petitioners, therefore, could not press his contention based on these constitutional provisions. He, however, raised two points for our consideration. He firstly contends that the Act is an incomplete and defective piece of legislation in that, though the restoration of land to the tribal is intend-ed to be accompanied by refund of the purchase price and value of the improvements made, by him to the non-tribal, the Act not only does not provide any machinery for the enforcement of the recovery thereof, but on the contrary precludes even the Civil Court from doing it. He secondly challenges the legality of the notices as being not in conformity with requirement of the Act.

4. Now, as indicated in the preamble itself, the Act is intended to restore the lands to the persons belonging to the Scheduled Tribes referred to in the Act as 'tribals' which were duly transferred by them to other persons. This Act has been enacted on the recommendations of a Committee appointed to find out how far the Maharashtra Land Revenue Code of 1966 (hereinafter referred to as 'the Code'), and the relevant Tenancy Laws have been effective in extending the intended protection to the tribals. Lands, sold by the tribals during the period from 1-4-1957, i.e. Tillers day, so notified under the Bombay Tenancy and Agricultural Lands Act of 1948 to 6-7-74 when Ordinance No. 13 of 1974 amending the Code was enforced to non-tribals alone are covered by the definition of 'transfer' which includes all transfers by act of parties including exchange made inter vivos, or made under the order or decree of the Court and also statutory sales but excludes transfers covered by Section 36(1) and (3) of the Cede. Section 3 of the Act deals with the restoration of lands transferred inter vivos by the act of the parties while Section4 deals with statutory sales. Lands put to non-agricultural use before 6-7-1974 are excluded and restoration of the land is made conditional on tribal's undertaking to cultivate the land personally and refund of such amount to the non-tribal as the Collector would determine under Sub-section (4) of Section 3. The relevant portion of Section 3 (1) authorises the Collector to re-store the land free from encumbrances from the non-tribal to the tribal, notwithstanding any law or decree, etc. to the contrary, sold by the tribal to the non-tribal. It is as follows:

'3. (1) Where due to transfer --

(a) the land of a Tribal-transferor is held by a non-Tribal-transferee, or...

(ii) the land transferred otherwise than by exchange be taken from the possession of the non-Tribal-transferee, and restored to the Tribal-transferor, free from all encumbrances, and the Tribal-transferor shall pay such transferee and other persons claiming encumbrances the amount determined under Clause. (b) of sub- Section (4).'

5. It is unnecessary to dilate in details, as to how Collector includes some other officers under Section 2 (b) or on sub- Sections (2) and (3) of this Section for disposal of the point raised.

6. Sub-section (4) of Section 3 deals with the determination of the amounts payable by the tribal or the non-tribal, for the value of improvements and encumbrances and consequential refund of consideration. This Sub-section (4) consist of Clauses. (a) to (g). Clause (a) of Sub-section (4) authorises the Collector to determine the Value of improvements made by the tribal or the non-tribal on the exchanged lands during the period of their occupation. Clause (d) enables the Collector to determine .the amount of encumbrances created on the exchanged lands and Clauses. (c) and (d) leave it to the discretion of the Collector to require such payments towards the value of improvements and encumbrances either in lump sum or in annual instalment of not exceeding 12, with 4 1/2% interest thereon, in cases of other transfers by the tribal-transferor to the non-tribal transferee, the Collector has to determine the amount of the refundable consideration not exceeding 48 times of the Land Revenue, as also the value of improvements made on the land by the non-tribal during the period of his occupation of the land. The Clause (b) deals with this power of the Collector. But Clause (b) does not invest the Collector with any discretion to permit payment in instalments, as under Clauses (c) and (d) for the amount determined under Section 3 (4) (a) and (d). Implicit in this absence of any such discretion is the liability to pay in lump sum. Clause (e) deals with the apportionment of the encumbrances between the transferee and other charge holders while Clause (f) deals with suspension of rent, with which we are not concerned in this case. Then follows Clause (g) on the language of which the contention of Mr. Deshpande is founded.

7. Clause (g) is to the following effect:

'If the Tribal-transferor or as the case may be, non-tribal-transferee fails to pay the amount in lump sum or remains in arrears of two or more instalments, the amount so remaining unpaid (with interest thereon at 4 1/2 per cent, per annum) shall be recoverable by the Collector as an arrear of lend revenue. The amount so recovered shall be paid by the Collector to the non-tribal-transferee and persons claiming encumbrances, if any, or as the case may be, the tribal-transferor.'

8. Mr. Deshpande contends that under Section 3 (4) (g) only the value of improvements made and the value of encumbrances created on the exchanged land during the period when the tribal or non-tribal-transferee happens to be in possession, is made recoverable as arrears of land revenue by the Collector. This Clause (g) of Sub-section (4), contends Mr. Deshpande, does not cover the liability of the payment created by Section 3 (1) (ii) and determinable by the Collector under Sub-section (4) (b). This contention, no doubt, is rendered attractively plausible Because of the preceding expressions 'fails to pay the amount in lump sum'* or 'remains in arrears of two or more instalments'' before the enforceability portion in the above Clause (g), making It appear as if the amount made expressly so payable under Clauses (c) and (d) alone is enforceable as arrear of land revenue under the clause.

9. The learned Advocate General appearing for the State on the other hand contends that every amount made payable under the Act, as under any other enactment, is ordinarily payable in lump sum unless it is expressly made payable in instalments. The expression 'fails to pay the amount in lump sum' covers every amount so payable without regard whether it is made expressly payable in lump sum or is payable in lump sum. impliedly. He also further contends that, even if such amount is found not to be recoverable under Section 3 (4) (g), that itself will be the good reason why Section 10 of the Act ousting the jurisdiction of the Civil Court should not be attracted.

10. It is true that the phraseology quoted above from Clause (g) only occurs in Clauses (c) and (d) of Sub-section (4) and is not to be found either in Clause (b) of Sub-section (4) or Section 3 (1) (ii) of the Act which gives rise to the liability of the tribal-transferor to pay. In other words, Section 3 (4) (g) gives an impression as though what can be recovered as arrears of land revenue by the Collector under this Clause is the amount determinable under Section 3 (4) .(a) and made expressly payable in lump sum under Clauses. (c) and (d) alone and not the one made payable under Clause (b) of Sub-section (4). This contention, however, assumes that no amount becomes payable in lump sum unless the law expressly says so. Any such contention, in our opinion, is wholly misconceived. Close examination of Sub-clauses, (c) and (d) of Sub-section (4) of Section 3 would show that use of the expression 'lump sum' was necessitated by the contemplated concession of instalments to be extended in the discretion of the Collector, for payment of value of improvements and encumbrances in regard to the exchanged lands. The Legislature in its wisdom has thought it necessary to treat the dues under exchange transactions on different footing from the dues arising out of other transfers. Discretion vested in the Collector to permit payment in instalment in contradistinction of payment in lump sum/ could hardly have been emphasized otherwise. The use of expression 'in lump sum' would have been otherwise wholly unnecessary. The Sub-clause (g) had to import the phraseology of the clauses (c) and (d) by way of abundant precaution to ensure the recover-ability as arrear of land revenue of such dues also.

11. The liability to pay, whether under exchange or other transfer, is the creature of Sections 3 (1) (i) and 3 (1) (ii). Clauses (a) and (b) of Sub-section (4) deal with the mode of determination of such dues. Clauses (c) and (d) of Sub-section (4) deal with the mode of payment of the dues determinable under Clause (a) of Sub-section (4). It is the liability that is created under Section 3 (1) (i), (ii) and determined under Clauses (a) and (b) of Sub-section (4) against tribal-transferor and non-tribal transferee, that is made enforceable under Clause (g). Mere absence of the words 'in lump sum' in Section 3 (1) (ii) or 3 (4) (b) can^ not make the payment in any manner but in lump sum, There is nothing to indicate that Clause (g) is restricted to the dues shown to be payable under Clause (a) read with Clauses (c) and (d) of Section 3 (4) only which only determines the mode of discharging liability created under Section 3 (1) and determined under Section 3 (4). In the absence of any indication of concession of payment by instalment payment in lump sum is implicit in the very scheme of these two provisions. The amount made recoverable by Collector as arrear of land revenue under Section 3 (4) (g) thus covers the amount payable under Section 3 (1) (i) read with Sub-section (4) (a) (c) (d) as well as under Section 3 (1) (ii) read with Section 3 (4) (b) of the Act There is absolutely no warrant to restrict the connotation of the words 'in lump sum' only to the dues made payable so expressly in lump sum and assume legislative intent not to include amounts payable so in lump sum impliedly. Thus by implication the amount payable under Section 3 (1) (ii) or Section 3 (4) (b) must be deemed to have been payable in lump sum and it must be deemed to have been covered under Section 3 (4) (g) of the Act.

12. There is not much substance in the contention of Mr. Deshpande that Section 10 of the Act ousts the Civil Court's jurisdiction for enforcement of the recovery of such amount even when recovery thereof is not covered by Section3 (4) (g). In the event of the amount payable under Section 3 (1) (ii) read with Section 3 (4) (b) being excluded from the purview of Section 3 (4) (g), there would be no reason why the bar of jurisdiction of the Civil Court created under Section 10 of the Act should operate. What is excluded from the jurisdiction of the Civil Court under Section 10 is only that which is required to be settled, decided or dealt with under the provisions of this Act. If the amount due under Section 3 (1) (ii) read with Section 3 (4) (b) is .excluded from the purview of Section 3 (4) (3), the amount cannot be said to have been liable to be settled, decided or dealt with under any of the provisions of the Act and the exclusion contemplated under Section 10 of the Act cannot cover such contingency. We are, however, firmly of the opinion, that the amount payable to the non-tribal-transferee under Section 3 (1) (ii) read with Section 3 (4) (b) is clearly covered by Section 3 (4) (g) of the Act without regard to whether the amount is refundable towards the consideration paid or towards the value of improvements or encumbrances by such tribal-transferor to the non-tribal-transferee, and question of considering the effect of Section 10 does not arise. The first contention of Mr. Deshpande is liable to be rejected.

13. The second contention of Mr. Deshpande is not without some force. The enactment confers drastic power on the Collector. Citizens are contemplated to be deprived of their right in, and possession of, the lands purchased by them bona fide by this summary procedure. The only safeguard against such drastic action lies in ensuring scrupulous adherence to the procedure required to be followed by the Collector so that the affected citizens get enough opportunity, to have their say in the matter and, defence properly adjudicated, before their title to the property is destroyed and they are finally deprived of the possession of the same. The first notice appears to have been issued long before the Rules were framed in this behalf. The notice speaks of the petitioner having 'violated the provisions of Restoration of Lands to Scheduled Tribes Act of 1974', without indicating in which manner the provisions have been so violated. Even the name of the enactment under which the proceedings were initiated is not correctly given in the notice. Though the section speaks of the day of appearance being required to be mentioned in the notice, the notice does not so mention it. The second notice betrays the total lack of application of mind by the officer who has issued the same. The officer has not taken care even to strike off the passages which were irrelevant. The notice does not indicate the time at which the petitioner was required to appear in his Court. It is true that the addressee could have with a little more enquiry found out from the office as to what precisely was intended in the said notice and what the officer was intending to do against him. But then when the enactment itself requires some notice to be issued in the prescribed form and intimation of certain facts to be given to the addressee in advance by way of safeguard against the danger implicit in such summary procedure, there is no reason why the same should not have been complied with and scrupulously followed by the officers who are charged with the duty of enforcing the same. We were informed at the Bar that in all these cases very little time is given to the notices and requests for adjournment are not entertained with any favour. This may be in an anxiety to give effect to the enactment to promote the cause of those for whose benefit the legislature has enacted the law. But then the responsibility of those who are charged with administering the law in regard to scrupulously following the legislative dictates, is all the more greater, so that the aggrieved parties' grievances do not remain unheard. It is impossible to proceed on the hypothesis that what is assured by the officer or alleged by the tribal is all true and there could be no defences and no serious enquiry is required in such cases. Any such approach would make mockery of the intended 'summary enquiry'. It is, however, not necessary for the purpose of this case to consider the nature of irregularities and if these in fact vitiate the proceedings or not. Proceedings in either case shall have to be revived. In view of the same having been stayed issuing of fresh notices is indispensable.

14. We accordingly quash the two notices and make the rule absolute. It will be open for the officer, concerned to initiate the proceedings afresh, after serving the notice in accordance with the Act and the rules. Rule is made absolute. There will be no order as to costs.

15. Rule made absolute.


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