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Anandrao Namdeo Jachak Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 27 of 1975
Judge
Reported in1980MhLJ661
ActsMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 21, 21(1) and 45(2)
AppellantAnandrao Namdeo Jachak
RespondentState of Maharashtra and ors.
Appellant AdvocateDilip G. Karnik, Adv.
Respondent AdvocateC.J. Sawant, A.G.P. and ;W.S. Devnani, A.G.P. for respondent No. 1 and ;Raja S. Bhonsale, A.G. and ;V.R. Bhonsale, Adv. for respondents 3 to 5
DispositionPetition dismissed
Excerpt:
.....not bar commissioner from exercising revisional jurisdiction under section 45 (2). - - the privy council in that decision was concerned with the construction of the words 'where there had been an appeal''in article 182 of the limitation act, 1908. it is well-know that article 182 of the limitation act provides for making an application for execution of a decree or order of any civil court not provided for by article 183 or by section 48 of the civil procedure code, 1908. the period of limitation is three years and in the third column of article 182 the time from which the period begins to run is mentioned as follows :1. the date of the decree or order; ''before going into the facts of the case before the privy council, it is necessary to point out that it is a well-know rule of..........the state government. therefore, the declaration under section 21 can be made only where the total land holding of the landholder is declared surplus and it is only on such declaration being made that right of appeal can accrue either to the landholder or to any person who is adversely affected thereby. it is no doubt true that section 33 refers to a right of appeal even in respect of a part of the declaration under section 21. it was on the basis of this clause that it was argued by mr. karnik that the petitioner was aggrieved by the manner in which irrigated land was converted into dry crop land and, therefore, he had filed an appeal. now it is no doubt true that a person who is aggrieved by an error in conversion of irrigated land into dry crop land which has ultimately the effect or.....
Judgment:

M.N. Chandurkar, J.

1. The petitioner is challenging in this petition an order passed by the Additional Commissioner, Poona Division, Poona, reversing the decision of the Deputy Collector that the petitioner did not hold any surplus land.

2. The Sub-Divisional Officer who made an enquiry into the holding of the petitioner came to the conclusion that the holding of the petitioner in terms of dry crop land came to 71 acres and 5 gunthas, while he was entitled to hold 96 acres of dry crop land. He, therefore, passed an order that the petitioner does not hold any land in excess of the ceiling area fixed by the First schedule to the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (hereinafter referred to as the ''Ceiling Act''). While computing the total holding of the petitioner, the Sub-Divisional Officer excluded certain lands which stood in the name of respondents Nos. 3 and 4 who are niece and nephew respectively of the petitioner. Respondents No. 4 is the daughter of the petitioner's brother Sahebrao and respondent No. 3 is the son of Sahebrao.

3. Even though the Sub-Divisional Officer had held that the petitioner did not have any surplus land under the provisions of the Ceiling Act, he filed an appeal before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal while dealing with the appeal observed at the very outset that there was no declaration of excess area with the petitioner which would give him a ground to file the appeal.

4. The Tribunal declined to go into the contention raised before it with regard to conversion of irrigated land into dry crop land on the ground that such a contention could not be raised at it was already decided by the High Court in special Civil Application No. 1630 of 1965 decided on 14th November, 1967. The appeal thus came to be summarily rejected as ''not being admissible.''

5. The Additional commissioner later decided to exercise his suo motu power under section 45(2) of the Ceiling Act. While the notice served on the petitioner indicated that the total holding of the petitioner was liable to be computed at 283 acres 39 gunthas and the petitioner was entitled to hold only 96 acres with the result that the surplus area would be 187 acres 39 gunthas, by the final order passed by the Additional Commissioner, the total holding of the petitioner was determined in terms of dry crop land 187 acres 39 gunthas and 91 acres 39 gunthas was held liable to be surplus, While computing the total holding of the petitioner, land to the extent of 82 acres 8 gunthas and 48 acres 7 gunthas in terms of dry crop land which, according to the petitioner, was given by him in a family partition to his niece Mandakini and his nephew Prithviraj respectively came to be included in his total holding. These were irrigated lands and there is no dispute about the ratio of irrigated land to dry crop land. The Additional Commissioner held that the partition at which these lands were supposed to have been given to the nephew and the niece was a bogus partition. He found that there could not be a partition between the petitioner and his nephew and niece, who were minor children of the petitioner's separated brother and belonged to the family of the brother and, therefore, were not sharers in the petitioner's property. The partition is supposed to have been effected in 1959 and was recorded for the first time on 21st December, 1961. It is significant that after 16th June, 1961 when the Ceiling Act received the assent of the President, the Commissioner found that mutation had been effected within 15 days and it was not understood how the petitioner who was an educated person would keep quite till 1961 about the petition which is said to have taken place in April 1959.

6. The jurisdiction of the Additional Commissioner to exercise his powers under section 45(2) of the Ceiling Act is challenged on behalf of the petitioner on the ground that the petitioner having filed an appeal before the Maharashtra Revenue Tribunal , the Commissioner could not exercise his jurisdiction under section 45(2) of the Ceiling Act notwithstanding that the appeal itself was held to be untenable by the Revenue Tribunal. Mr. Karnik appearing on behalf of the petitioner has vehemently contended on the strength of the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey, A.I.R. 1932 P C 185, that filing of an untenable appeal would be sufficient to deprive the Commissioner of his jurisdiction under section 45(2) of the Ceiling Act because, according to the learned Counsel, the words used in section 45(2) were ''unless an appeal against any such declaration or part thereof has not been filed within the period provided for it.'' It is contended that section 45(2) does not require that an appeal must be maintainable and that the mere filing of a memo of appeal before the Revenue Tribunal would be sufficient for the purpose of the proviso section 45(2).

7. Now the scope of the proviso to section 45(2) of the Ceiling Act has been considered in four Division Bench decisions of this Court, the last one being a decision given by us in Ganpatrao Gulabrao Pawar v. The State of Maharashtra, Special Civil Application No. 439 of 1975 decided on 26th July, 1979. In that decision we have taken the view that the appeal referred to in the proviso to section 45(2) in an appeal which can validly be preferred by a landlord when a declaration under section 21 declaring surplus land has been made and where no declaration as contemplated by section 21 is made, there is no right of appeal and id a person whose land is held to be below the ceiling area still files an appeal before the Tribunal challenging certain findings recorded by the Deputy Collector, such an appeal is not maintainable.

8. In another decision of another Division Bench reported in Bhagwan Sonaji Ambhure v. State of Maharashtra, 1979 MhLJ 476, the provision of the proviso to section 45(2) of the Ceiling Act was considered. After referring to two earlier decisions of this Court in Rambhau v. State, 1976 MhLJ 443 and Baswantrao v. Commr. Nagpur Divn., 1977 MhLJ 834, the Division Bench has pointed out that in order that the remedy of revision under section 45(2) should be lost, there must be an effective appeal and a scrutiny and examination on merits of the points involved by the Appellate Authority. Referring to the proviso to section 45(2), it was observed :

'' The real meaning of the proviso to sub-section (2) of section 45, therefore, seems to be that to the extent that a controversy has been heard and disposed of on merits by the Appellate Authority, the powers of supervision would cease to be operative. So long as we do not have such a decision, the entire area uncovered by the decision of the Appellate Authority would still be open for the scrutiny by the state under section 45(2) of the Ceiling Act.''

Inspite of this consistent view of this Court that the appeal contemplated by proviso to section 45(2) which must have the effect of depriving the Commissioner of his revisional jurisdiction under section 45(2) must be an appeal in which there is a scrutiny and examination of the points involved in the appeal by the Appellate Authority, Mr. Karnik has argued with vehemence that the decision of the Privy Council has not been considered in any of the earlier decisions. We have, therefore, heard him at considerable length and we are not impressed by the arguments that there is an error in the view which has been taken by a series of Division Benches of this Court.

9. Before we go to the decision of the Privy council, we may once again point out that it can hardly be disputed that the appeal referred to in the proviso to section 45(2) is the appeal which is provided under section 33. Section 33 of the Ceiling Act, inter alia, provides for an appeal against an order of the collector in the cases enumerated in section 33 and one of the cases mentioned at serial No. 1 is a declaration or any part thereof under section 21.

10. Now we go back to section 21. The declaration contemplated therein consists of different parts, but the essence of the declaration is the area, description and full particulars of the land which is delimited as surplus land and 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 the state Government, have to be notified in the Official Gazette. Apart from the fact that on the terms of section 21(1), it is clear that the declaration contemplated thereby can be made only in a case where the Collector comes to the conclusion that the landholder holds land in excess of the ceiling area and that some land was liable to be declared as surplus, this is made further clear by sub-section (2) of section 21. Sub-section (2) of section 21 requires that once the declaration under sub-section (1) is made, then the area, description and full particulars of the land which is delimited as surplus land and also of the land therefrom, the right , title and interest in which is to be forfeited to the State Government, have to be notified in the Official Gazette. Consequent on this notification being published in the Gazette with effect from the date of publication, the right, title and interest inn the land which is liable to be forfeited stands forfeited to and vests in the State Government. Therefore, the declaration under section 21 can be made only where the total land holding of the landholder is declared surplus and it is only on such declaration being made that right of appeal can accrue either to the landholder or to any person who is adversely affected thereby. It is no doubt true that section 33 refers to a right of appeal even in respect of a part of the declaration under section 21. It was on the basis of this clause that it was argued by Mr. Karnik that the petitioner was aggrieved by the manner in which irrigated land was converted into dry crop land and, therefore, he had filed an appeal. Now it is no doubt true that a person who is aggrieved by an error in conversion of irrigated land into dry crop land which has ultimately the effect or creating and error in computation of his total holding can challenge this conversion, but the fact remains that before a person can file an appeal under section 33, there must be a declaration of surplus land. If the five clauses in section 21(1) are carefully perused, each one of them enters in to the computation of the total holding and consequently affects the declaration of surplus land. In a case where the total holding of the landholder is less than the ceiling area. There is no occasion to make a declaration under section 21(1). There is thus no occasion to the landholder to challenge any part of that declaration.

11. Our attention had been invited to a decision of a learned Single Judge of this Court reported in Shakuntala Raje v. Maharashtra Revenue Tribunal, 1973 MhLJ 737. The learned Judge seems held that 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 than the ceiling area and that an appeal can lie under section 33 against such a negative declaration. The landholder in that case was found to be holding only 91.11 acres of dry crop land which was less than 108 acres which was the local ceiling area and the proceedings were, therefore, directed to be filed. An appeal against this order was filed by the landholder but was dismissed by the Revenue Tribunal holding that the appeal under section 33 of the Ceiling Act will not lie against the declaration that there is no surplus land. This order of the Revenue Tribunal was challenged before the High Court by a petition. When the Special Deputy collector in that case was computing the holding of the landholder on the basis of a return filed by the landholder in which, according to the landholder, certain lands were acquired by there on 11th November, 1949 by a valid transfer deed executed by the ex-proprietor the Deputy Collector held that these lands had vested in the Government after coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950, and, therefore, they could not be included in the return filed by the landholder because these lands could not be said to be lawfully and in actual possession of the landholder either as an owner or as a tenant. The Deputy Collector further directed that since the landlady was in possession of the lands unlawfully and unauthorized, the competent authority may take suitable action to vacate the unlawful possession of the landlady. Thus the Deputy Collector held rejecting the contention of the landlady that certain fields which were recorded in the name of the State Government were wrongly recorded as vested in the name of the State Government and that the remaining area should not be deleted from her holding. It was this part of the order of the Special Deputy Collector which was challenged in the appeal before the Revenue Tribunal and consequently later before this Court and this Court held that the landholder was aggrieved by the decision of the Special Deputy Collector that she was not lawfully in actual possession of the fields which had been recorded and vested in the State Government and would, therefore, have a right to file an appeal. It was in that context that the question of maintainability of the appeal was dealt with and having held that the appeal before the Tribunal was maintainable and there was error in the order of the special Deputy Collector, the matter was remitted back to the special Deputy Collector to decide afresh the question as to whether the lands which were recorded to have been vested in the State Government could be included in the total holding of the landholder or not.

12. It is not possible for us to accept the view of the learned Single-Judge that an appeal lies against what the learned Judge described as a negative declaration. In our view, if a declaration under section 21(1) declaring surplus land was not made in that case, no appeal could really be filed against a part of the declaration, i.e. that part relating to the computation of the total holding, Therefore, though section 21 provides for an appeal against a part of the declaration, if the learned Judge wanted to lay down a proposition that the decision of the learned member in so far as it holds that the appeal against the order declaring that the landholder did not have surplus land was maintainable that, in our view, will be contrary to the terms of section 21.

13. Coming now to the decision of the Privy Council in Nagendra Nath Dey's case cited supra, we must at the outset point out that decision was not in respect of the statute which was in pari materia with the Ceiling Act with which we are concerned in this petition. The Privy Council in that decision was concerned with the construction of the words ''where there had been an appeal'' in Article 182 of the Limitation Act, 1908. It is well-know that Article 182 of the Limitation Act provides for making an application for execution of a decree or order of any Civil Court not provided for by Article 183 or by section 48 of the Civil Procedure Code, 1908. The period of limitation is three years and in the third column of Article 182 the time from which the period begins to run is mentioned as follows :

''1. The date of the decree or order; or

2. (where there has been an appeal) the date 1of the final decree or order of the Appellate Court.''

Before going into the facts of the case before the Privy Council, it is necessary to point out that it is a well-know rule of interpretation of statute that a construction placed on a provision of one act is not of mush assistance for interpreting of the provisions of another Act and more so when the two acts are not in pari materia as pointed out by the Supreme Court in Hari Khem Gawali v. Deputy Commissioner of Police, Bombay, : 1956CriLJ1104 , it is not safe to pronounce on the provisions of one Act with reference to decisions dealing with other Acts which may not be in pari materia.

14. In Assistant Collector of Customs, Calcutta, v. Sitaram Agarwala, : 1966CriLJ712 , it was pointed out by the Supreme Court that a Court cannot construe a section of a statute with reference to that of another unless the latter is in pari materia with the former and it, therefore, follows that decisions made on a provision of a different statue in India or elsewhere will be of no relevance unless the two statutes are in pari materia. The Supreme Court observed :

''Any deviation from this rule will destroy the fundamental principle of construction, namely, the duty of a Court is to ascertain the expressed intention of the Legislature.''

15. Thus the decision of the Privy Council in Nagendra Nath Dey's case was concerned with finding out as to what was the starting point of limitation for an execution application on the facts of that case. The limitation under Article 182 commences in a case where an appeal has been filed from the date of the final decree or the order of the appeal Court. Therefore, the decision in question as to whether there is an appeal or not was related to the question as to whether there is an order of the appeal Court from the limitation was said to have commenced in that case. The relevant observations of the Privy Council on which heavy reliance was placed were as follows :

''There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in due course, and a decree was made upon it. (Underlining is ours).

The observations made by the Privy Council on which reliance is placed on behalf of the petitioner have to be read in the light of the facts on which they were made, The suit out of which the appeal before the Privy Council arose was a suit for partition of certain properties held jointly by the parties to the suit and their predecessors. A receiver was appointed in that suit who borrowed Rs. 18,000/- from some of the co-sharers and executed a mortgage in their favour amongst the mortgagees were the appellants before the Privy Council who were original defendants Nos. 11 and 12 and one Madan Mohan and his son, who were respondents Nos. 24 and 27 before the Privy Council. Thus some of the co-sharers were mortgagees and all the co-sharers were mortgagors. After the shares of the co-sharers in the partition had been allotted to them and the receiver was discharged, Madan Mohan and his son instituted a suit out of which the appeal before the Privy Council arose to enforce the mortgage. Madan Mohan claimed that the appellants before the Privy Council had assigned their interest in the mortgage to him. This claim was accepted by the trial Court who passed a mortgaged decree. On appeal to the High Court a compromise was effected and a preliminary decree in suppression of the one passed by the trial Court was made by the High Court in terms of the compromise. In the preliminary decree made by the High Court the co-sharers were arrived into two groups, one of the decree holders consisting of six sets of co-sharers and the other of judgment-debtors consisting of eight sets of co-sharers. On 24th June, 1920 the Subordinate Court disallowed Madan Mohan's claim that the appellants had assigned their interest in the mortgage to him and passed a final decree for the sale of the mortgaged properties. On 27th August, 1920, Madan Mohan presented an application to the High Court purporting to be an appeal from the ''order of'' the Subordinate Judge dated 24th June, 1920. The appeal was made in an irregular form and was insufficiently stamped. It was dismissed both on the ground of irregularity and upon the merits by the High Court on 24th August, 1922. On 3rd October, 1923, the appellants presented an application to the Subordinate Judge for execution by sale of the mortgaged properties. It was opposed by some of the judgment-debtors on the ground that it was barred by Article 182 of the Limitation Act because the limitation must run from 24th June, 1920. On these facts the question before the Privy Council was as to from what date the limitation would commence. If the limitation was to commence from the date of the decree of the Subordinate Judge, i.e., 24th June, 1920, it was out of time, but it was within time if the limitation was to commence from 24th August, 1922 when Madan Mohan's appeal was dismissed by the High Court. The High Court had dismissed the appellant's application as it was time barred and that order was sought to be supported before the Privy Council by the respondents on the ground that an appeal in order to save limitation under Article 182 must be one to which the persons affected, i.e., in the said case the judgment-debtors, were parties and also on the ground that it must also be one in which the whole decree was imperiled. Considering Article 182 the Privy Council took the view that there was an appeal from the mortgage decree on 24th June, 1920 and, therefore, time ran against the appellants from 24th August, 1922, which was the date of the appellate Court's decree and, therefore, the execution application was within limitation.

16. These facts would clearly show that the appeal filed before the High Court which was dismissed by it on the ground of irregularity and upon merits was treated as an appeal for the purpose of Article 182. The Privy Council decision specifically mentions the facts that not only the appeal was dismissed on the ground of irregularity and on merits, but ''the dismissal was embodied in the decree of the High Court dated 24th August, 1922.'' The observations of the Privy Council must, therefore, be read in the light of these facts. The appeal was not dismissed merely on the ground that it was incompetent or irregular, but it was treated as an appeal against the final decree and if the appeal was dismissed, a decree of dismissal was drawn in the High Court.

17. Now it is difficult to see how by merely emphasizing the fact that the Privy Council had styled the appeal before the High Court as irregular or incompetent, it will be open to the petitioner to urge that an incompetent appeal, as in the present case, must also be considered as an appeal contemplated by the Ceiling Act for the purposes of deciding whether the Commissioner was deprived of his supervisory revisional jurisdiction under the proviso to section 45(2). As pointed out by the Supreme Court, we must look at the intention of the legislature as contained in the proviso to section 45(2). The proviso to section 45(2) cannot be constructed de hors the other provisions of the Ceiling Act, such as the provisions of section 21(1) and section 33 which deal with the right of appeal. The intention of the legislature in enacting the proviso appears to us to be very clear. The intention is to vest in the State Government the power of scrutiny in respect of proceedings if a declaration or part thereof if the same have not been subjected to the scrutiny of the Appellate Authority under the Act, which was the Maharashtra Revenue Tribunal. The appellate jurisdiction of the Maharashtra Revenue Tribunal can be exercised only when an appeal is filed by the aggrieved party against a declaration or a part thereof. The provisions of section 45(2) or the proviso there to clearly show that the Legislature wanted to vest in the State Government revisional jurisdiction for the purposes of determining the legality of the proceedings taken under the Ceiling Act only in a limited category of cases. The limitation on the revisional jurisdiction is incorporated in the proviso itself. The first limitation is that there is no power of scrutiny by the State Government in case where the Appellate Authority has subjected the declaration under section 21 or any part thereof to scrutiny by an appeal within the period provided for the appeal. The second limitation is that the land must not have been taken possession of under section 21(4) by the Collector and the third restriction that the jurisdiction cannot be exercised if the period of three years from the date of the declaration has elapsed. Subject to these restrictions, the State Government has been given the power to call for the record of any enquiry or proceeding for a declaration under section 21. There is therefore, no substance in the contention raised that merely because something in the nature of an appeal is filed which is dismissed summarily as not maintainable, the Commissioner did not have jurisdiction to make an order under section 45.

18. It was than contended that the Commissioner should not have rejected the story or partition. Now whether in fact there was a partition or not is question of fact. But apart from that, so far as the instant case is concerned, it was not possible for the learned Counsel to explain as to how and on what basis any land was given to the sons of separated brother of the petitioner. The nephew and the niece were admittedly son and daughter of a separated brother. They had no right in the property belonging to the petitioner. There is nothing to show that while two partitions had taken place earlier, any joint property had remained to be divided, What is significant is that the entry with regard to the partition is made long after the Act had already received assent of the President. What is further important is that inspite of the fact that the parents of the minor nephew and niece were still alive, the petitioner at whose instance a revenue entry was made has shown himself to be a guardian of the two minor transferees. If on these facts the commissioner has come to the conclusion that the so-called partition at which the nephew and niece who were not entitled to any share have been given share in the property belonging to the petitioner was a bogus partition and it had to be ignored, that finding cannot be interfered with in this petition.

19. On behalf of respondents Nos. 3 and 4 an argument was advanced that they had not been given notices by the Commissioner before he exercised his revisional jurisdiction. Now if the partition was bogus and the petitioner was shown as the guardian, in our view, the notice which was issued to the petitioner both in his personal capacity and in the alleged capacity of his guardianship will be sufficient compliance with law. The order of the commissioner, therefore, does not get vitiated for the failure of the issue of any separate notice in the name of respondents Nos., 3 and 4 who were admittedly minor.

20. In our view, there is no substance in this petition. It fails and is dismissed with costs.


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