1. Petitioner Smt. Shakuntala Raje filed a return under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereinafter referred to as the Ceiling Act, in respect of the land held by her. According to her, she held 163. 92 acres of land. An enquiry was started in this behalf by the Special Deputy Collector, Land Reforms, Bhandara. In the return filed by the petitioner under Section 12 of the Ceiling Act she had included Khasra Nos. 432, 434, 438, 439 and 426 of Mouza Nerala, district Bhandara. According to the petitioner, these lands were acquired by her by virtue of transfer deed dated 7-11-1949 executed by the ex-proprietor. The said transfer deed is duly registered and the petitioner is also in possession of the lands since the date of the transfer.
2. However, the Special Deputy Collector held that these lands had vested in the Government after coming into force of the M.P. Abolition of Proprietary Rights (Estates,l Mahals, Alienated Lands) Act, 1950, hereinafter referred to as the Act. Therefore, they cannot be included in the return filed by the petitioner, because it cannot be said that she is lawfully in actual possession of the land as an owner or as a tenant. The learned Special Deputy Collector further held that a compensation for this vested land was fixed by the then Compensation Officer, Bhandara, under the provisions of the Act and an instalment of Rs. 1000/- was also paid to the landlord as compensation and the remaining amount is kept in revenue deposit. He further directed that since the landlady is in possession of these lands unlawfully and unauthorisedly the competant authority may take suitable action to vacate unlawful possession of the landlady. Before the Special Deputy Collector the agent appeared on behalf of the landlady and he contended that the petitioner had no objection to delete the lands at Kaolewada as the same were not only recorded in the name of the Government, but were not actually in her possession. He also conceded to delete the area comprised in Khasra Nos. 367 and 359/1 from village Nerala. However, the landlady contended before the Special Deputy Collector that the remaining area from village Nerala out of Khasra Nos. 432, 434, 438 and 439 and 426 should not be deleted from her holdings, although it is recorded, in the name of the Government, as, according to her, it was wrongly recorded as vested in the name of the Government. It was also contended on her behalf before the Special Deputy Collector that these Khasra numbers are actually in her possession and were transferred by the ex-proprietor in her favour before the date of vesting, by the registered permanent lease-deeds dated 7-11-1949 executed by the ex-proprietor. It was also contended before the Special Deputy Collector that any entries made in the records under the provisions of the Act regarding these lands were not binding upon her as she was not a party to any proceedings under the said Act. The said entries were made behind her back, and therefore, were not binding upon her.
3. It seems from the record that the Special Deputy Collector made a reference to the Commissioner, Nagpur Division, Nagpur, and the Commissioner vide his letter dated 12-11-1968 intimated to hum that the total holdings of the landlady have to be calculated in terms of Section 12 with reference to Sections 8, 10 and 18 of the Ceiling Act. He further directed that the Special Deputy Collector should decide the matter with reference to the provisions of Section 2 (14) of the Ceiling Act as to whether the landlady holds land in the light of the definition. Ultimately the Special Deputy Collector came to the conclusion that the landlady has shown the land as owned and possessed by her which is vested in the Government under the Act. Ultimately, therefore, the Special Deputy Collector held that the landlady is holding only 91-11 acres of dry crop land, which is less than 105 acres of local ceiling area, and therefore, he ordered the proceedings to be filed.
4. Against this order passed by the Special Deputy Collector, the landlady filed Act. The learned Member of the Maharashtra Revenue Tribunal by his order dated 23-6-1969 dismissed the appeal summarily, as, according to the learned Member, it was not tenable. The learned Member of the Revenue Tribunal held that the appeal under Section 33 of the Ceiling Act will not lie against a declaration of no land as surplus. It was also observed that the order by the Compensation Officer under the Act was not open for review by the Ceiling Court and the Ceiling Court could not go behind it. In this view of the matter the appeal filed by the landlady was dismissed summarily by the Maharashtra Revenue Tribunal. Against these orders the present writ petition has been filed.
5. Shri Ghate, who appears for the petitioner before, me, contended that the learned Member of the Maharashtra Revenue Tribunal has committed an error apparent on the face of the record in holding that an appeal under Section 33 of the Ceiling Act will not lie against the order passed by the Special Deputy Collector. He further contended that the Maharashtra Revenue Tribunal has committed an error in holding that the order passed by the Compensation Officer was binding upon the Ceiling Court. According to Shri Ghate, the petitioner was not a party to the proceedings taken under the Act, and therefore, any decision given in the said proceedings or entries made in the Revenue records in pursuance of the orders passed under the said Act are not binding upon her.
6. In my opinion there is considerable substance in these contentions raised by Shri Ghate. Section 33 of the Ceiling Act provides for an appeal against an order or an award of the Collector to the Maharashtra Revenue Tribunal, and S. 33(1) (2) further provides that such an appeal shall lie against a declaration or any part thereof under Section 21. Section 21 lays down that as soon as may be after the Collector has considered the matters referred to in Section 18 and the questions, if any under sub-section (2) of S. 20, he shall make a declaration stating therein his decision on the various points referred to in clauses (a) to (e). Clauses (a) and (b) of Section 21(1) read as under :
'21 (1) As soon as may be after the Collector has considered the matters referred to in Section 18 and the questions, if any, under sub-section (2) of S. 20, he shall make a declaration stating therein his decision on :
(a) the total area of land which the person is entitled to hold as the ceiling area;
(b) the total area of land which is in excess of the ceiling area;'
Therefore, it is quite clear from the provisions of Section 21(1) of the Ceiling Act that the Collector has to make a declaration stating as to what is the total area of the land which the person is entitled to hold as the ceiling area and also the total area of the land which is in excess of the ceiling area. Section 2 (14) defines the term 'to hold land' in the following words :
'2(14) ' to hold land', with its grammatical variations and cognate expressions, means to be lawfully in actual possession of land as owner or as tenant and 'holding' shall be construed accordingly;'
It is, therefore, quite clear that the Collector has to find out as what is total holding of the person proceeded against and whether he is actually in possession of the said land as an owner or as a tenant and what is the nature of his or her possession. All these matters are required to be gone into. This finding is part and parcel of the declaration contemplated by Section 21 of the Ceiling Act . Further Section 41 of the Ceiling Act bars the jurisdiction of Civil Court to settle or deal with any question required to be settled or dealt with under the Act. Section 45, as amended, only provides for filing of a revision application. The scope and limitations of the revisional jurisdiction are well known. The jurisdiction conferred upon the State Government under this section can be exercised by the State Government in certain circumstances only. The said jurisdiction cannot be exercised by the State Government if an appeal is filed against a declaration or part thereof given by the Collector under Section 21 of the Ceiling Act. Moreover said provision made in Section 45 of the Act was not originally on the Statute book and was substituted by an amendment later on. Said provision cannot take away or curtail the right of any appeal conferred upon the parties under Section 33 of the Ceiling Act.
7. It is no doubt true, as observed by this Court in State of Maharashtra v. Sharad 1972 Mah LJ 54, that the declaration and no piecemeal declaration with regard to the items specified in Section 18 is contemplated and the right to appeal does not accrue before stage of making final declaration under Section 21(1). However, it is further held by this Court that part of declaration is appealable, though there are not two independent declarations regarding land which is surplus and land which a land-holder is entitled to retain. Therefore, in my opinion, if the provisions of Section 21 are read with Section 33 of the Ceiling Act, it is quite clear that an appeal shall also lie from a decision of the Collector making a declaration regarding the total area of land which a person is holding and is entitled to hold under the Ceiling Act. The declaration contemplated by Section 21 can also be a negative declaration to the effect that the person holds the total area of land which is less that the ceiling area itself. It is well established principle of law that an appeal is a creature of the Statute and the powers and jurisdiction of the appellate Court must be circumscribed by the Statute itself. If they are not so circumscribed then the Court of Appeal is a Court which is entitled to correct the errors in the decisions appealed from and its jurisdiction is, therefore, co-extensive with that of the trial Court. Normally there does not seem to be any fetter to its power to do what the trial Court can do. Therefore, in my opinion, the learned Member of the Revenue Tribunal was not right in holding that the appeal is not maintainable only because a negative declaration is given. This was a declaration given by the Special Deputy Collector under Section 21 of the Ceiling Act which is specifically made appealable under Section 33 of the Ceiling Act.
8. There is one more aspect of this matter which deserves to be considered. Suppose in a given case it is decided by the Collector that a person does not hold land more than the ceiling area prescribed for the said area and he orders that the proceedings should be filed, then, if the interpretation put forward by the Revenue Tribunal upon the provisions of Section 33 is accepted, then in that case even the Government will not be entitled to file an appeal under Section 33 of the Ceiling Act challenging the said decision of the Collector. Section 33 of the Ceiling Act, as it is drafted, does not bar filing of an appeal by the Government against any decision recorded by the Collector in the cases enumerated in Section 33 itself.
9. This Court had an occasion to interpret Section 33 of the Ceiling Act in Abdul Mahamadbhai v. The State, (Special Civil Applns. Nos. 1480 and 1502 of 1966 decided on 17-4-69 = (1969) 17 Tena LR 277. In the said case one Manikrao filed a return under Section 12 of the Ceiling Act. Before holding an enquiry under Section 14 of the Act the Special Deputy Collector caused a public notice to be given under Section 17(1) to all persons interested in the lands comprised in the holding of Manikrao calling upon them to file their objections. In response to this notice, Abdul Mahamadbhai and Appasaheb Hon appeared at the enquiry conducted by the Special Deputy Collector. They did so because their lands survey numbers 10/1 and 10/3 respectively in the village Chandakasare were held by Manikrao as a tenant and were included in the return filed by Manikrao. In the return Manikrao claimed that he did not hold any excess land than the ceiling area. After holding an enquiry the Special Deputy Collector held that Manikrao was not a surplus holder and ordered that the proceedings should be enclosed. When the matter went before the Maharashtra Revenue Tribunal at the instance of Abdul Mahamadbhai and Appasaheb the Bench of the two Members of the Revenue Tribunal delivered differing judgments, though they concurred in rejecting the appeals. One of the Members held that the appellants had no right to file an appeal while the other Member held that the appellants were entitled to challenge the order of the Special Deputy Collector and the appeals were maintainable. After referring to the provisions of Sections 17 and 14 of the Act, the High Court held that the petitioners in those two petitions had a right to participate in an enquiry under Section 14 and try to establish that the holding of Manikrao was in excess of the ceiling area. It should therefore, follow that when the Deputy Collector found that the holding of Manikrao was less than the ceiling area, the petitioner had a right to approach the Maharashtra Revenue Tribunal in appeal from the decision. An argument view of the fact that the petitioners would have no right to restoration of these lands under Section 19 of the Ceiling Act, they had no locus standi to file an appeal. This argument was repelled by the High Court and it was held that from this it does not, however, follow that the petitioners are not interested in getting a decision to the effect that the holding of Manikrao is in excess of the ceiling area. From this decision of the High Court it is quite clear that an appeal can also lie for establishing the fact that the landholder holds land in excess of the ceiling area. In the present case the right of the landholder, namely, the petitioner, so far as Khasra Nos. 432, 434, 438, 439 and 426 of Nerala in district Bhandara are concerned, is finally decided against her and a decision has been given by the Special Deputy Collector that she is not lawfully in actual possession of the said land as contemplated by sub-section(14) of S. 2 of the Ceiling Act. Obviously the petitioner-landlady is aggrieved by the said decision given by the Special Deputy Collector, and therefore, she had a right to file an appeal against the said declaration given by the Special Deputy Collector.
10. As a result of the finding recorded hereinbefore that an appeal lies to the Maharashtra Revenue Tribunal under Section 33 of the Ceiling Act, normally I would have remanded this case back to the Revenue Tribunal for deciding the appeal on merits. However, from the order of the Maharashtra Revenue Tribunal as well as of the Special Deputy Collector it is quite clear that both the authorities have taken the view that the orders passed by the Compensation Officer in the proceedings under the Abolition Act are binding upon them and it is not open for the Ceiling Court to go behind it. In my opinion, this finding recorded by both the Courts below cannot be sustained.
11. The scheme of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 was considered by the Supreme Court in Himmatrao v. Jaikisandas, : 3SCR815 While laying down the scope of the Act it is observed by the Supreme Court as under :
'The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Act for brevity) was enacted, as the long title thereof shows, to provide for the acquisition of the rights of proprietors in estates, mahals alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith. It was not intended to take away each and every kind of right possessed by a person in immovable property situated in such villages. The vesting section in Section 3. Sub-section (1) thereof makes it clear that the rights which were acquired by the State were proprietary rights save as otherwise provided in the Act, but not any other kind of right possessed by an owner of property.'
Thus it is quite clear from the provisions of the Act itself that it was not intended to take away each and every kind of right possessed by a person in immoveable property situated in the villages. It has been specifically alleged by the petitioner-landlady that she was not a party to any proceedings taken under the Act. As observed by the Special Deputy Collector in his order the landlady has also placed on record the registered permanent lease-deed dated 7-11-1949 executed by the ex-proprietor in her favour. It was also contended that if this transaction amounts to a legal transfer, then these lands cannot vest in the Government. It was further contended by her that by making certain entries in the Record of Rights a person cannot be divested of her property more so, when such entries a party to the said proceedings. For this proposition Shri Ghate has brought to my notice the decision of the Madhya Pradesh High Court in Komalchand v. State of M.P. 1963 MPLJ 389. While dealing with the contentions raised before the High Court that the compensation Officer's order is final and cannot be challenged as provided in S. 15(4) of the Abolition Act it was observed by the Madhya Pradesh High Court in paras 10 and 11 of the judgment as under :-
'10. The last contention on behalf of the appellant is that the record made at the time of abolition by the Compensation Officer is final and cannot be challenged as provided in Section 15(4) of the Abolition Act. Under Section 13, the Compensation Officer is required to record the details of the land which shall vest in the State Government after its acquisition in lieu of the payment of such compensation. The Form prescribed under that section for making such record is Form III, Part I-A. This form has eight columns with the following heading :- Area held by absolute Area held by occupancy Area held byproprietor not included in tenants. home-farm occupancy tenants. (1) (2) (3)Area of village Area of land other than Sir Area under grass, scrub, service holdings held by any person from the jungle and on favourable terms proprietor forest. for service rendered by him. (4) (5) (6)Area under village Other unoccupied land.sites hats, bazars, meals, wells, tanks, ponds, water channels, rivers, nalas, pathwaysand other communal land.(7) (8)
It is not disputed that the area of the suit lands is included in the area mentioned in column 2 and not in column 6. As chhotaghas, it should have been entered in column 6. Sub-section (4) of S. 15 is as follows :-
'Except as provided in sub-sections(1) to (3) the decision and the record by the Compensation Officer shall be final and conclusive in respect of the quantum of the compensation payable, and other entries made in the statement of the Compensation Officer.'
The question is whether this sub-section creates a bar against the Government for asserting the real character of the land.
11. It has to be noted that the State Government is challenging in this case the right asserted by the plaintiff as a tenant. No question of the rights of the ex-proprietor arises in this case, as the ex-proprietor is not claiming any right in the lands. Form III, which shows the details of lands vesting in the Government under Section 13(1), includes all sorts of lands in the village including occupancy tenancy lands. The rights of the proprietor in these lands also vest in the Government. The record does not go any further. Section 13 does not require the Compensation Officer to record the rights of the tenants or other persons and he cannot, therefore. make any enquiry in this matter. This is naturally so because under the Abolition Act it is only the rights of the proprietor which vest in the State and it is only these which have to be recorded in the prescribed Form. The bar under Section 15(4) arises only when the challenge is made by the proprietor on the ground that certain lands have wrongly been treated as vested and operates only between him and the Government. That section does not prevent a person who claims to be a tenant from challenging any entry made by the Compensation Officer wrongly recording his land as vested. Had that been the intention, Section 13 would have provided an opportunity to him for being heard. As it is, a tenant has no locus standi at that stage to press his claim. It follows that he is not bound by the entry and as a necessary corollary the converse also follows that the Government is free to challenge his claim irrespective of the record made under Section 13. Accordingly, we hold that the Government is not debarred from setting up that defence in answer to the assertion by plaintiff that he is an occupancy tenant.'
Similar observations seems to have been made by the Nagpur High Court in Rahmatulla Khan v. Mahabir Singh, 1956 Nag LJ 1 AIR 1956 Nag 132. In the said decision it is observed by the Nagpur High Court that no person should be made to suffer for an error or omission on the part of an authority to perform its statutory duty.
12. Shri Ghate has also relied upon another decision of the Madhya Pradesh High Court in Rajaram v. Rani Jamit Kunwar 1961 MPLJ 944 wherein it was held that the power under Section 15 of the M.P. Abolition of Proprietary Rights Act could be exercised only in regard to a decision given under Section 13 which dealt mainly with compensation payable to ex-proprietor. Disputes between the State Government and ex-proprietor about land vesting in the State were to be decided, and no power was given to the Compensation Officer to decide any dispute between an ex-proprietor and a third person about title to land not vested in the State, nor could a third person, who was not a party to the proceedings, be bound by such decision.
13. Therefore, in my opinion, it is quite clear from the provisions of the Abolition Act that by the said Act it was not intended to take away such and every kind of right possessed by a person in the immoveable property situated in such village, nor a finding recorded or an entry made in the Revenue Records under the provisions of the said Act can bind a third person who was not a party to those proceedings. If the said decision of the Compensation Officer was not binding upon petitioner, because the petitioner was not a party to the said proceedings, then the said decision cannot be used against the petitioner landlady in these proceedings, while deciding the question under the Ceiling Act. In this view of the matter, in my opinion, the learned Member of the Maharashtra Revenue Tribunal as well as the Special Deputy Collector had committed an error in holding that the said order of the Compensation Officer was binding upon the Ceiling Court and the authorities constituted under the Ceiling Act cannot go behind it.
14. The authorities below have not decided the question on merits. It seems that only because the authorities below felt that they are bound by the order passed by the Compensation Officer they had not made any enquiry on the merits of the matter. In this view of the matter, in the interest of justice it is necessary to send back the case to the Special Deputy Collector for deciding the matter on merits in advertence to the observations made hereinbefore.
15. In the result, therefore, the order passed by the Maharashtra Revenue Tribunal dated 23-6-1969 in Ceiling Appeal No. Alc-A-78 of 1969 and the order passed by the Special Deputy Collector dated 22-2-1969 in Ceiling Case No., 22/A-60(2)1965-66 are hereby quashed and set aside and the case is remanded back to the Special Deputy Collector for deciding the same on merits in advertence with the observations made in this judgment. As the agent for the petitioner landlady had conceded before the Special Deputy Collector that she had no objection to delete the lands situated in Kaolewada and the lands, namely, Khasras 367 and 359/1 situated at village Nerala from her holding and as the said part of the order is not challenged either before the Maharashtra Revenue Tribunal or before me, this order is restricted to the Khasras 432, 434, 439, 438 and 426 situated at mouza Nerala in district Bhandara only.
16. In the result, therefore, the petition is allowed. However,. in the circumstances of the case there will be no order as to costs.
17. Petition allowed.