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Tukaram Zipru Wani Vs. Baban Dhondu Deshmukh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 389 of 1964
Judge
Reported in(1965)67BOMLR908; 1966MhLJ171
AppellantTukaram Zipru Wani
RespondentBaban Dhondu Deshmukh
Excerpt:
.....during execution proceedings can, however, on behalf of the court obtain sanction for sale of the land from the collector under section 4(2) of the act,;mrs. chandnee widya vati v. dr. g.l. katial [1964] a.i.r. s.c. 978 and dy. director of consolidation v. deen bandhu [1935] a.i.r. s.c. 484 referred to. - - 8. having regard to the scheme of these provisions, and there being nothing in section 4(2) of the act which prevents any one on behalf of the court from making an application, in our view, both the collector and the commissioner were in error in holding that the application must fail only on that ground. the second case illustrates the point that the revenue authority cannot refuse to make an order on arbitrary grounds but must act on the basis of the principle laid down by the..........of the land, it is against the will of the owner. the owner would never be willing to apply for sanction to transfer the land. in view of the fact that the court is selling the property against the will of the owner who does not and will not co-operate, it is the court who must obtain the sanction of the relevant authority. it is true that the court, being in a peculiar position, cannot be required to file an application before the collector but it can authorise someone or even the decree-holder to obtain the required sanction on its behalf. since the court has stayed the execution proceedings to enable the decree-holder to make this application, it must necessarily follow that, impliedly it permitted the decree-holder to obtain sanction for sale of the property from the collector,.....
Judgment:

Patel, J.

1. This petition arises out of an execution proceeding commenced by the petitioner against his judgment-debtor respondent No, 1.

2. Respondent No. 1 was the owner of two lands survey numbers 204 and 221, measuring 6 acres 15 gunthas and 6 acres 4 gunthas, in the village of Bhadgaon in Jalgaon District. He held these lands as Class V Inam. In 1950, the Bombay Paragana and Kulkarni Watans (Abolition) Act was passed, as a result of which the lands became resumed by the Government. They were retransferred to respondent No. 1, on his paying occupancy price equal to twelve times the amount of the full assessment. The petitioner obtained his decree in Regular Suit No. 57 of 1950 and sought to proceed in execution against these two survey numbers by attachment and sale of the properties in Darkhast No. 218 of 1958. Respondent No. 1 contended that these lands could not be sold as they were re-granted to him on limited tenure and were inalienable under the provisions of Section 4, Sub-section (2) of the Act without the permission of the Collector for the transfer of the same. The learned Civil Judge, Junior Division, by his judgment and order dated April 1, 1960, directed the sale of the properties to proceed, deferring the matter of obtaining the permission of the Collector to a later date. Respondent No. 1 went in appeal to the District Court, being Appeal No. 185 of 1960. The learned District Judge by his judgment dated June 15, 1961, set aside the order of the Civil Judge, Junior Division, and held that the properties could not be sold as no sanction of the Collector was obtained. The petitioner filed a second appeal, being Second Appeal No. 1463 of 1961 which was heard by V.S. Desai J. on February 1, 1963. The learned Judge set aside the judgment of the District Judge and restored that of the Civil Judge, Junior Division, holding that the question of sanction could arise only after the sale was effected and before it was confirmed. He directed the learned Civil Judge, Junior Division, to proceed with the execution of the decree from the stage at which it was left.

3. After this judgment, the petitioner made an application to the Collector for sanction of the sale. The Collector after giving a hearing to the petitioner rejected his application on the ground that only a holder of the land could make an application for permission to transfer the land tinder Section 4(2) of the said Act, on paying Nazarana for the same, and that respondent No. 1 did not want permission to transfer the land. He also observed that he had rejected similar application previously and that he had no right under the Land Revenue Code to review his order. The petitioner went in appeal to the Commissioner who confirmed the judgment, rejecting it on almost the same ground. The petitioner seeks to challenge this order.

4. Section 4, Sub-section (2), of the said Act is as follows :

The occupancy of the land regranted under Sub-section (1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine.

Section 70 of the Land Revenue Code which has got a bearing on this question is as follows:

In any case where an occupancy is not transferable without the previous sanction of the Collector, and such sanction has not been granted to a transfer which has been made or ordered by Civil Court or on which the Court's decree or order is founded,

(a) such occupancy shall not be liable to the process of any Court, and such transfer shall be null and void, and

(b) the Court, on receipt of a certificate under the hand and seal of the Collector, to the effect that any such occupancy is not transferable without his previous sanction and that such sanction has not been granted, shall remove any attachment or other process placed on or set aside any sale of, or affecting, such occupancy.

5. It is true that in Sub-section (2) of Section 4, there is no reference to transfer or partition by execution process. But then, the combined effect of this sub-section and Section 70 of the Land Revenue Code is that, as the occupancy is made by statute non-transferable and non-partible, it is not liable to be sold or partitioned by execution of an order of a Court. This, however, does not mean that an application should be made only by the holder of the land.

6. It must at once be apparent that the provision as to non-transferability was not made in the interests of dishonest judgment-debtors. Paragana Vatandars were required to pay only twelve times the assessment as occupancy price, and in view of the fact that the price charged was low, it is possible that the Government intended to regrant the land on what is known as new tenure, which means non-particle and non-alienable tenure. But then it does not mean that, under no circumstances, the land was intended to be unalienable. The land could be alienated with the sanction of the Collector. Inasmuch as, by Section 70 of the Land Revenue Code, this provision was applicable also to sales and transfers by orders of Court, advisedly apparently no provision is made in Section 4 of the said Act that an application for transfer shall necessarily be made by the holder of the land.

7. As regards the question as to who should be able to make an application for this purpose, one has to consider the nature of execution process. Whenever a decree is being executed, it means that the judgment-debtor is not prepared to carry out the terms of the decree, and it is the coercive process of the Court which enforces the execution of its decree. When property is sold by the Court in execution of a decree against the owner or holder of the land, it is against the will of the owner. The owner would never be willing to apply for sanction to transfer the land. In view of the fact that the Court is selling the property against the will of the owner who does not and will not co-operate, it is the Court who must obtain the sanction of the relevant authority. It is true that the Court, being in a peculiar position, cannot be required to file an application before the Collector but it can authorise someone or even the decree-holder to obtain the required sanction on its behalf. Since the Court has stayed the execution proceedings to enable the decree-holder to make this application, it must necessarily follow that, impliedly it permitted the decree-holder to obtain sanction for sale of the property from the Collector, and accordingly the petitioner filed the present application.

8. Having regard to the scheme of these provisions, and there being nothing in Section 4(2) of the Act which prevents any one on behalf of the Court from making an application, in our view, both the Collector and the Commissioner were in error in holding that the application must fail only on that ground.

9. Mr. Vaidya relies in support of his contention on two decisions of the Supreme Court in Mrs. Chandnee Widya Vati v. Dr. C.L. Katial [1964] AXE. B.C. 978 and Dy. Director of Consolidation V. Deen Bandhu : [1964]4SCR560 . The first case arose out of a contract entered into by the appellant before their Lordships with the respondent to sell to the respondent a house which stood on a plot granted by the Government. According to the terms of the contract, the vendor had to obtain the necessary permission from the Government for the sale within certain time. She made an application for the necessary permission, but for some reason of her own she withdrew that application. Eventually, the respondent filed a suit for specific performance of the contract. The trial Court dismissed the suit but the High Court decreed the same. Their Lordships observed (p. 979) :.the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction.

They confirmed on this ground the decree of the High Court. In the second case, a question arose under the United Provinces Consolidation of Holdings Act of 1954. An application for transfer of certain land was made by the owner for the purpose of an exchange. Section 13(a), (6) and (c) laid down the principles for granting or refusing the permission. The Settlement Officer, for reasons alien to that section, rejected the application. The Supreme Court held that the rejection was improper and directed that the application should be dealt with in accordance with the provisions of Section 13 of the Act.

10. In the first case, the rights between the parties arose out of a contract, and naturally, therefore, the Court insisted on the defendant being forced to make, an application for permission for the transfer. The second case illustrates the point that the Revenue authority cannot refuse to make an order on arbitrary grounds but must act on the basis of the principle laid down by the relevant section and that if it acts on grounds other than those on which it is entitled to act, the order must necessarily be regarded as bad.

11. In the affidavit, the only ground in support of the orders under review that is mentioned is that the decree holder was not competent to make an application. No other reasons are suggested for rejecting the same and none is apparent from any of the orders of the authorities. It is clear, therefore, that the order cannot be allowed to stand.

12. Mr. Gumaste contends that the petitioner had made an application on September 29, 1961, and it was disposed of on. February 5, 1962, and, therefore, the second application is not competent. Except for the reference to the order, none has been produced before us from the record. When we called upon Mr. Gumaste to produce the relevant record he only showed us the record which contains a copy of an intimation in Marathi to the petitioner, without there being an order as such by the Collector. The real position is that the petitioner had filed an appeal against the decision of the Collector dated February 5, 1962, before the Commissioner. The Commissioner directed the Collector to give a hearing and thereafter decide the matter. If that is so, the Collector was bound to obey the order of the Commissioner and could not avoid deciding the matter as he did, saying that he had no power to review his prior order. It also appears from the order of the Collector now made that he refused to make the necessary order because respondent No. 1 who is the holder of the land did not want permission for transfer. This is not a case of voluntary transfer. The Court is selling the property against his will, and his volition in the matter has no place.

13. We have been read the affidavit of the Commissioner in answer to the rule. He has not referred to any principle or any rational reason on the basis of which the said prayer could possibly be rejected. If the law itself does not prescribe any principle on the basis of which the Collector has to make a decision or order, then the section itself may be of doubtful validity. If the principles are prescribed, then it is not the contention of Mr. Gumaste that any would be violated by the making of the order.

14. We, therefore, set aside the orders made by the authorities below and direct the Collector to issue the necessary sanction to transfer the property in order to enable, the Civil Court to sell the same in execution of the decree on the petitioner paying the requisite amount. The petitioner will get his costs from respondent No. 2.


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