Skip to content


Narbada Prasad Vs. State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Nos. 324 of 1977 and 376 of 1978
Judge
Reported inAIR1981MP101; 1981MPLJ260
ActsMadhya Pradesh Ceiling on Agricultural Holdings Act, 1960 - Sections 4, 4(1), 4(2), 4(4), 5(3) and 35; Madhya Pradesh Ceiling on Agricultural Holdings Act, 1974
AppellantNarbada Prasad
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateR.K. Pandey and ;A.R. Pandey, Advs.
Respondent AdvocateS.L. Saxena and ;M.V. Tamaskar, Govt. Advs.
DispositionPetition dismissed
Cases ReferredChandrasekhar v. State of H. P.
Excerpt:
- - (ii) better farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons; (viii) better farming society of agriculturists; (iii) better farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons; (viii) better farming society of agriculturists; 20 of 1974, 1st january, 1971 was substituted in place of 24th january, 1971. there is thus clearly a reasonable basis for fixing the date 1st january, 1971 as the beginning of the period, the transfers made within which can be invalidated under section 4 as amended by acts nos. this only means that a.....g.p. singh, c.j.1. this order shall also dispose of misc. petition no. 324 of 1977.2. these petitions involve the construction of section 4 of the madhya pra-desh ceiling on agricultural holdings act, 1960, as it now stands.3. the bill of the principal act i. e. the act as originally enacted was published in the madhya pradesh gazette of 15th september, 1959. the principal act received the assent of the president on 20th september, 1960 and the assent was first published in the gazette on 1st october, 1960. the act was enforced by a notification issued under section 1 (3) with effect from 15th november, 1961. section 7 of the principal act fixed 28 standard acres as the ceiling limit of land which could be held by a person. the principal act also made provision for declaring void.....
Judgment:

G.P. Singh, C.J.

1. This order shall also dispose of Misc. Petition No. 324 of 1977.

2. These petitions involve the construction of Section 4 of the Madhya Pra-desh Ceiling on Agricultural Holdings Act, 1960, as it now stands.

3. The Bill of the principal Act i. e. the Act as originally enacted was published in the Madhya Pradesh Gazette of 15th September, 1959. The principal Act received the assent of the President on 20th September, 1960 and the assent was first published in the Gazette on 1st October, 1960. The Act was enforced by a notification issued under Section 1 (3) with effect from 15th November, 1961. Section 7 of the principal Act fixed 28 standard acres as the ceiling limit of land which could be held by a person. The principal Act also made provision for declaring void transfers under Section 4 and for preventing transfers under Section 5, The first set of amendments of the principal Act were made by Acts Nos. 35 of 1961, 38 of 1965 and 25 of 1966. These amendments were given retrospective effect from the date of the commencement of the principal Act. The ceiling limit under Section 7 of the Act was reduced from 28 to 25 standard acres. There were some minor amendments in Sections 4 and 5. These two sections as amended by the aforesaid Acts read as follows:--

'4. (1) Notwithstanding anything contained in any law for the time being in force, where after the date of publication of the Madhya Pradesh Ceiling on Agricultural Holdings Bill, 1959 (36 of 1959), in the Gazette, but before the commencement of this Act, any holder has transferred any land held by him by way of sale, gift, exchange or otherwise or has effected a partition of his holding or part thereof, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after such enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of and to defeat the provisions of this Act.

(2) Nothing in this section shall apply to-

(a) a transfer made by a holder who does not hold land in excess of the ceiling area on the date of the transfer;

(b) a transfer by way of sale to any person specified in categories (i) to (v) of Sub-section (1) of Section 35 or to a holder holding land less than five standard acres on the date of the transfer.

(c) a transfer by way of donation to a Bhoodan Yagna Board constituted under the law relating to Bhoodan Yagna for the time being in force.

(3) Any person aggrieved by an order of the competent authority under this section may prefer an appeal against such order to the Board of Revenue. The decision of the Board and subject to the decision of the Board in appeal the decision of the competent authority shall be final.'

'5. (1) Notwithstanding anything contained in any law for the time being in force, no land shall be-

(a) transferred whether by way of sale (including sale in execution of a decree of a civil court or of an award or order of any other lawful authority) or by way of gift, exchange, lease or otherwise; or

(b) sub-divided (including sub-division by a decree or order of a civil court or any other lawful authority) whether by partition or otherwise;

Until a final order under Section 11 is passed except with the permission in writing of the Collector,

(2) The Collector may refuse to give such permission if in his opinion the transfer or sub-division of land is likely to defeat the object of this Act.

(3) Nothing in this section shall apply to-

(a) a transfer or partition of land by a holder who does not hold land in excess of the ceiling area on the date of the transfer;

(b) a transfer before the appointed date by way of sale to any person specified in categories (i) to (v) of Sub-section (1) of Section 35 or to a holder holding land less than five standard acres on the date of such transfer.

(c) a transfer by way of donation to a Bhoodan Yagna Board constituted under the law relating to Bhoodan Yagna for the time being in force.

(4) The registering officer shall furnish to the Collector or such other officer as may be authorised by him in writing in this behalf, particulars relating to every transfer of land made on or after the commencement of this Act and before the appointed day, in such form and within such period as may be prescribed.'

4. Section 11 of the Act deals with preparation of a statement of land held in excess of ceiling area by the competent authority. A holder is required to furnish return under Section 9. After making such enquiry as it may deem fit, the competent authority prepares and publishes a preliminary statement under Section 11 (1) which amongst others contains the description of the land which the competent authority proposes to declare surplus and the description of land which the holder is to retain. After receipt of objections to the draft statement and decision thereon, a final statement is prepared under Section 11 (6) specifying therein the entire land held by the holder; the land to be retained by him and the land declared to be surplus. Section 11 (2) is relevant for our purposes which provides as under:

'11 (2). The transferor shall, for the purpose of this Act, be deemed to be the holder of the land the transfer of which-

(i) has been declared to be void under Sub-section (1) of Section 4; or

(ii) has been found by the competent authority, on such enquiry as may be prescribed to be in contravention of the provisions of Sub-section (1) of Section 5.'

5. The surplus land declared under Section 11 (6) is deemed to be needed forpublic purpose and vests in the State absolutely free from all encumbrances under Section 12. Section 16 provides for payment of compensation for the surplus land vesting in the State under Section 1'2. The disposal of surplus land vesting in the State is dealt with in Section 35. This section provides that the surplus land shall be allotted in Bhumiswami rights to the persons mentioned in the section in the order of priorities as indicated therein on payment of a premium equivalent to the compensation payable in respect of such land. The priorities as contained in Section 35 of the principal Act were as follows:

'(i) joint farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons;

(ii) better farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons;

(iii) agricultural labourers;

(iv) landless persons whose main occupation is cultivation or manual labour on land;

(v) displaced tenants subject to the provisions of Section 202 of the Madhya Pradesh Land Revenue Code, 1959 (20 of 1959);

(vi) holders holding contiguous land;

(vii) joint farming society of agriculturists;

(viii) better farming society of agriculturists;

(ix) any other co-operative farming society subject to the condition that land (including the land as owner or tenant individually by members) shall not exceed the area equal to the number of members multiplied by the ceiling area;

(x) an agriculturist holding land less than the ceiling area.'

6. The second set of amendments of the principal Act started in 1971. The first amendment in this series was proposed by the Madhya Pradesh Ceiling on Agricultural Holdings (Amendment Bill) 1972 (Bill No. 15 of 1'972J which was published on 18th April 1972. The Bill was assented to by the President on 9th December, 1972 and the assent was first published on 7th March, 1974. This amendment Act, i. e. Act No. 12 of 1974, was brought into force on 7th March, 1974. The important change brought about by this Act was that 'family' was artificially denned in Section 2 (gg) of the Act to mean husband, wife and their minor children and it was made a separate unit for ceiling purposes. The second amendment in this series was proposed by the Madhya Pradesh Ceiling on Agricultural Holdings Second Amendment Bill, 1972 (Bill No. 57 of 1972) published on 22nd December, 1972. The assent of the President to this Bill was given on 15th June, 1973. The resulting Act, i. e. Act No. 13 of 1974, was enforced from 7th March, 1974, i. e. from the date the assent was published in the gazette. The object behind this amendment Act was to reduce the ceiling limit on the basis of the guideline drawn by the Government of India in accordance with the conclusions of the Chief Ministers' Conference held on 23rd July, 1972 and to give effect to the same from a date not later than 24th January, 1971. The object further was to give priority in distribution of surplus land to agricultural labourers belonging to Scheduled Castes and Scheduled Tribes. The Statement of Objects and Reasons of this Act reads as follows :

'The Government of India have forwarded to the State Government guidelines drawn on the basis of the conclusions of the Chief Ministers' Conference on ceiling on agricultural holdings held on the 23rd July, 1972 at New Delhi and have desired that the State Ceiling Law should be brought in conformity with the national guidelines. The guidelines mainly laid down-

(1) That the level of ceiling for a family of five members should be between 10 acres to 18 acres of land receiving assured irrigation or assured private irrigation on two crops.

(2) That retrospective effect should be given from a date not later than 24th January, 1971 with condition that onus of proving bona fide nature of any transfer of land made after the date should be on the transferor.

(3) That in distribution of surplus land priority should be given to the agricultural labourers particularly those belonging to Scheduled Castes and Scheduled Tribes,'

7. Section 4 of the Act as substituted by Act No. 13 of 1974 made provision for declaring void transfers made between 24th January, 1971 and before the appointed day i. e. 7th March, 1974. Section 14 of Act No. 13 of 1974, however, made Section 4 of the principal Act applicable to transfers made after 1st January, 1972 and before 7th March, 1974. This Section 14 was redundant in view of the fact that Section 4 as substituted covered the transfers made aiter 24th January, 1971 and before 7th March, 1974. This anomaly was removed and the date as to the restriction of transfers was shifted from 24th January, 1971 to 1st January, 1971 by Ordinance No. 3 of 1973 which was replaced by Act No. 20 of 1974. Some other amendments were also made in the Act. The Statement of Objects and Reasons for Act No. 26 of 1974 is as under :

'(1) The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1972 (No. 12 of 1974) and the Madhya Pradesh Ceiling on Agricultural Holdings (Second Amendment) Act, 1972 (No. 13 of 1974) were enacted in succession by the State Legislature to bring the ceiling law in force in the State in conformity with national guidelines. However, the time lag between enactment of the aforesaid two Acts resulted in- Section 14 of the first named Act, which provided for restrictions on transfers of land made on or after the first January, 1972 becoming nugatory as under the provisions of the second named Act such restriction became operative from the 24th January, 1971.

(2) The Government of India also desired certain clarificatory amendments to be made in the provisions covered by the aforesaid two amending Acts and proposed that restrictions on transfers should be as from the 1st January, 1971.'

Sections 4 and 5 as substituted and amended by these amending Acts i. e. Ac:t,s Nos. 13 and 20 read as under :

'4. (1) Notwithstanding anything contained in any law for the tune being in force, where after the 1st January, 1971 but before the appointed day, any holder has transferred any land held by him by way of sale, gift exchange or otherwise or has effected a partition of his holding or part thereof or the holding held by the holder has been transferred in execution of a decree of any Court, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of or to defeat the provisions of this Act.

(2) Nothing in this section shall apply to a transfer made by a holder-

(a) who does not hold land in excess of the ceiling area; or

(b) who is a member of a family and where all the members of the family together do not hold land in excess of the ceiling area; as specified in Sub-section (1) of Section 7 as substituted by Section 8 of the Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1974 on the date of the transfer.

(3) Any person aggrieved by an order of the competent authority under this section may prefer an appeal against such order to the Board of Revenue. The decision of the Board and subject to the decision of the Board in appeal, the decision of the competent authority shall be final.

(4) In regard to every transfer to which this section applies, the burden of proving that the transfer was not be-nami or was not made in any other manner to defeat the provisions of this Act shall be on the transferor.

(5) Notwithstanding anything contained in any law for the time being in force-

(i) no Court shall entertain any suit for the specific performance of any contract of sale of land on the basis of any agreement or document made on or before the 1st January, 1971, or

(ii) any decree passed by a Civil Court for the specific performance of the contract of sale of land on the basis of any agreement or document made on or before the 1st January, 1971 shall be null and shall not be enforceable, if such suit or decree is for the purpose of defeating the provisions of this Act.

5. (1) Notwithstanding anything contained in any law for the time being in force, no land shall be-

(a) transferred whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order of any other lawful authority) or by way of gift, exchange, lease or otherwise; or

(b) sub-divided (including sub-division by a decree or order of a Civil Court or any other lawful authority) whether by partition or otherwise; until a final order under Section 11 is passed except with the permission in writing of the Collector.

(2) The Collector may refuse to give such permission if in his opinion the transfer or sub-division of land is likely to defeat the object of this Act.

(3) Nothing in this sub-section shall apply to a transfer made by holder :--

(a) who does not hold land in excess ofthe ceiling area; and

(b) who is a member of a family and where all the members of the family together do not hold land in excess of the ceiling area;

as specified in sub-section (1) of Section 7 as substituted by Section 8 of the Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1974 on the date of the transfer.

(4) The registering officer shall furnish to the Collector or such other officer as may be authorised by him in writing in this behalf, particulars relating to every transfer of land made on or after the 1st January, 1971 and before the appointed date, in such form and within such period as may be prescribed.

(5) In regard to every transfer to which this section applies the burden of proving that the transfer was not benami or was not made in any other manner to defeat the provisions of this Act shall be on the transferor.'

8. The priorities for allotment of land as contained in Section 35 were also amended by Acts Nos. 13 and 20 of 1974. Items (i) to (x) as amended by these Acts read as follows :

'(i) agricultural labourers-

(a) belonging to Scheduled Castes and Scheduled tribes; and

(b) others :

(ii) joint farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons;

(iii) better farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons;

(iv) freedom fighters;

(v) displaced tenants subject to the provisions of Section 202 of the Madhya Pradesh Land Revenue Code, 1959 (20 of 1959);

(vi) holders holding contiguous land;

(vii) joint farming society of agriculturists;

(viii) better farming society of agriculturists;

(ix) any other co-operative farming society subject to the condition that land (including the land as owner or tenant individually by members) shall not exceed the area equal to the number of members multiplied by the ceiling area;

(x) an agriculturist holding land less than the ceiling area.'

9. We heard Shri R. K. Pandey andShri Y. S. Dharmadhikari, learned counsel for the petitioners appearing in these petitions. We also heard Shri P. S. Khirwadkar, Shri A. R. Choubey, Shri R. C. Rai and Shri N. K. Patel, learned counsel appearing in other petitions of similar nature. Shri Tamaskar, learned Government Advocate, addressed us on behalf of the State Government. We now proceed to deal with the various contentions raised by the learned counsel.

10. It was first contended that there was no basis for making provision in Section 4 for invalidating transfers from 1st January, 1971 on the ground that the transfers were made in anticipation of or to defeat the provisions made by Act No. 13 of 1974. It was argued that the Bill which became that Act was first published on 22nd December, 1972 and no person could conceive that the Gov eminent was contemplating to reduce the ceiling limit by amending the principal Act before that date. It was also argued that if a transferor filed an affidavit thai he had no knowledge that the ceiling limit was going to be reduced by amending the principal Act at the time when he made the transfer, this should be taken to be sufficient to discharge the burden of proof laid on the transferor by Sub-section (4) of Section 4 at least in those cases where the transfers were made before the publication of the Bill which became Act No. 13 of 1974. Support for this argument was drawn from the ruling of a Division Bench of this Court in Ramchandra v. Board of Revenue (1978 R. N. 60).

11. It may be recalled that Section 4 of the principal Act as substituted by Act No. 13 of 1974 made provision for avoidance of transfers made after 24th January, 1971 and before the appointed date i. e. 7th March, 1974. By Act No. 20 of 1974, 1st January, 1971 was substituted in place of 24th January, 1971 as the commencement of the period the transfers made within which can be invalidated under Section 4. The relevance of these dates as stated in the return is that in January, 1971 the Government announced the policy o: lowering the ceiling limit. This statement in the return has remained un-controverted. It is also fully supported by the historical facts mentioned in paragraph 35 of the judgment of the Supreme Court in Ambika Prasad v. State of U. P., AIR 1980 SC 1762. A perusal of that judgment goes to show that the Congress Party which was in power at the centre and in most of the States including Madhya Pradesh announced its election manifesto on 24th January, 1971 which contained revised agrarian policy for reducing the ceiling limit. The announcement made by the Congress Party which was in power at the centre and in most of the States was in fact the announcement of the Government in power for revision of the agrarian policy. It is for this reason that the conference of Chief Ministers decided to implement the new agrarian policy from 24th January, 1971 as is stated in the Objects and Reasons of Act No. 13 of 1974. Section 4 as substituted by this Act, therefore, made provision for invalidating transfers made after 24th January, 1971. But it must have been later noticed that the election manifesto became known to many before it was formally announced and, therefore, by Act No. 20 of 1974, 1st January, 1971 was substituted in place of 24th January, 1971. There is thus clearly a reasonable basis for fixing the date 1st January, 1971 as the beginning of the period, the transfers made within which can be invalidated under Section 4 as amended by Acts Nos. 13 and 20 of 1974.

12. Sub-section (4) of Section 4 provides that in regard to every transfer to which the section applies, the burden of proving that the transfer was not benami or was not made in any other manner to defeat the provisions of the Act shall be on the transferor. In Ramchandra v. Board of Revenue, (1978 RN 60) (Madh Pra) (supra), the transferors filed affidavits that they had no knowledge that any amendment in the parent Act reducing the ceiling limit would be introduced by Act No. 13 of 1974. The transfers were made on 11th February, 1971. It was held that when the Bill which became Act No. 13 of 1974 was published on 18th April 1972, after the sale-deeds were registered and when the transferors filed affidavits that at the time of making the transfers they had no knowledge that the principal Act would be amended, the Competent Authority should have referred to some other material from which it could bo inferred that the statements made by the transferors were improbable. From this ruling it was sought to be argued that the moment the transferors file affidavits denying any knowledge of any move to reduce the ceiling area and the transfers relate to a date prior to the date of the publication of the Bill, the burden on the transferors placed by subsection (4) of Section 4 is discharged. In our opinion, Ramchandra's case is not an authority for any such proposition. It, however, appears that the learned Judges deciding Ramchandra's case were not informed of the reason for fixing 1st January 1971 as the date for the commencement of the period the transfers made within which can be invalidated under Section 4. As pointed out by us, the party in power announced in January 1971 its decision to revise the agrarian policy. This fact was not brought to the notice of the learned Judges. An affidavit filed or evidence given by a transferor that he had no knowledge that the principal Act was going to be amended when he made the transfer, cannot in this background be so readily accepted. At any rate, it cannot be laid down as a rule of law that the moment such an affidavit is filed, the burden on the transferor would be discharged unless some other material is put forward to show that the affidavit or evidence is not true for the value of an affidavit or evidence given by a transferor would depend upon the facts and circumstances of each case. As we shall point out later in this order, the burden of proof laid on the transferor can be discharged only by offering a plausible explanation for the transfer and by proving it by preponderance of probabilities.

13. It was next contended that there was no exact correspondence between Sub-sections (1) and (4) of Section 4 and to the extent the transfers falling under Sub-section (1) were not covered by Subsection (4), the burden of proof laid on the transferor under the latter would not be attracted. In this connection it was pointed out that firstly Sub-section (1) covers both transfers and partitions whereas Sub-section (4) is limited to transfers; and secondly Sub-section (1) empowers the competent authority to invalidate a transfer that was made in anticipation of or to defeat the provisions of the Act but Sub-section (4) is limited to a transfer which is benami or which is made to defeat the provisions of the Act and it does not cover a transfer which was made in anticipation of the provisions of the Act. This contention is without substance. The entire Ceiling Act including Section 4 has to be construed to effectuate the object of the legislature in making available surplus land to the Government for distribution to the needy.

In dealing with a similar provision, which was even more stringent, in Authorised Officer, Thanjavur v. S. Naganatha Ayyar. AIR 1979 SC 1487, the Supreme Court laid down that in construing a provision relating to social legislation the Courts must be animated by a goal-oriented approach so that the Courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations. It is in this spirit that we must proceed to interpret Section 4 which is a part of social welfare legislation designed to implement the great objective of securing social justice enshrined in the Preamble and the Directive Principles of State Policy. The rules of construction relating to expropriatory legislation which is construed in case of doubt in favour of the subject have no application here. Sub-section (1) refers to transfers by way of sale, gift, exchange or otherwise and partitions as also to execution sales. Sub-section (4) opens with the words 'In regard to every transfer to which this section applies'. These words used in Sub-section (4) are wide enough to cover transfers and partitions referred to in Sub-section (1). A partition may not be in certain context a transfer but in the context in which the words 'every transfer' occur in Sub-section (4), it is clear that these words embrace all kinds of transfers to which the section applies and include even partitions falling within Sub-section (1). The intention to make Sub-section (4) very wide in application is further shown from the fact that the burden laid on the transferor is to prove 'that the transfer was not benami' or 'was not made in any other manner to defeat the provisions of the Act'. The words 'in any other manner' are wide words and read in the context of the expression 'every transfer' which occur in the beginning of Sub-section (4), the intention is clear to make the sub-section applicable also to a partition. This wide interpretation would also promote the object of the Act. It is also not possible to accept that Subsection (4) does not embrace a transfer or partition in anticipation of the Act and is restricted to a transfer made to defeat the provisions of the Act. The words 'in anticipation of' and the words 'to defeat the provisions of' the Act in the context of Section 4 have the same meaning. A transfer is in anticipation of an Act when it is made with a view to defeat the provisions of an Act which is likely to be passed in future. As Section 4 only covers transfers made before the commencement of the Amendment Act No. 13 of 1974, all transfers to defeat its provisions will be in anticipation of the Act. Thus, in the context of Section 4, all transfers made in anticipation will be with a view to defeat the provisions of the Act and vice versa. It cannot, therefore, be said that Sub-section (4) of Section 4 omits from its ambit certain transfers which are covered by Sub-section (1). It was also argued that the words 'in any other manner' as used in Subsection (4) should be restricted to transfers in the nature of benami i.e. transfers which are not real and this sub-section should not be construed to include genuine transfers. Acceptance of this argument would be defeating entirely the object behind this provision. The argument cannot be accepted on any principle of construction. The words 'in any other manner'' are very wide words and they cannot be restricted to unreal transfer or transfers in the nature of benami. In our opinion, the special burden of proof laid by Sub-section (4) will apply to all transfers and partitions covered by subsection (1) of Section 4.

14. It was next contended that transfers which were saved by Sub-section (2) of the principal Act are not covered by Sub-section (1) of Section 4 as substituted by Acts Nos. 13 and 20 of 1974. The argument in support of this contention is that although Sub-section (1) as substituted by the aforesaid amending Acts operates in respect of transfers made between 1st January 1971 and 7th March 1974, Sub-section (2) of the principal Act continued to be effective till 7th March 1974 and, therefore, transfers made before 7th March. 1974 which fell within the permissible limits of that Sub-section were not affected. The argument proceeds upon a complete misunderstanding of the scope of Section 4 of the principal Act and Section 4 as substituted by Acts Nos. 13 and 20 of 1974. Section 4 of the principal Act empowers the competent authority to declare void transfers made after the date of publication of the Ma-dhya Pradesh Ceiling on Agricultural Holdings Bill, 1959, i.e. 15th September, 1959, and before the commencement of the principal Act, i.e. 15th November, 1961. The competent authority by Subsection (1) of Section 4 of the principal Act gets jurisdiction to declare void these transfers if they were made in anticipation of or to defeat the provisions of the principal Act. Sub-section (2) of Section 4 of the principal Act which opens with the words 'nothing in this section shall apply to a transfer made by a holder', excludes the operation of the section to transfers referred to therein. This only means that a transfer made after 15th September 1959 and before 15th November 1961 would not be invalidated by the competent authority if it falls within the categories of transfers mentioned in Sub-section (2). Sub-section (2) of Section 4 of the principal Act like Sub-section (1) of that section is limited to the transfers made within the said period. Section 4 of the principal Act has no application to any transfer made on or after 15th November 1961. The object of Sub-section (2) of the principal Act is that if the transfer made before the coming into force of the principal Act was made by a holder who did not hold laud in excess of the ceiling area or was made to the persons of categories (i) to (v) mentioned in Section 35 (1) or to a holder holding less than 5 standard acres, such transfers would not be invalidated by the competent authority. Subsection (2) of the principal Act cannot be construed as a permission for transfer for any period after the coming into force of the Act. That subject is dealt with in Section 5. Sub-section (2) of Section 4 of the principal Act cannot be used as exception to the power of invalidating transfers conferred on the competent authority by Section 4 as substituted by A is Nos. 13 and 20 of 1974. As earlier seen by us, Sub-section (1) of Section 4 substituted by Acts Nos. 13 and 20 of 1974 enables the competent authority to declare void transfers made after 1st January 1971 and before 7th March 1974. Sub-section (2) of Section 4 of the principal Act was also substituted by these amending Acts by a new sub-section. Sub-section (2) of Section 4 of the principal Act was an exception to Sub-section (1) of Section 4 of the principal Act and it cannot be read as an exception to Subsection (1) of Section 4 as substituted by the amending Act. For finding out, in respect of which transfers, the power under Sub-section (1) of Section 4 as substituted by the amending Acts is not applicable, we have to see Sub-section (2) of Section 4 as substituted by these amending Acts and not Sub-section (2) of Section 4 of the principal Act. Both the amending Acts came into force on 7th March, 1974. It is only after that date thai the commentent authority could exercise the power of invalidating transfers made after 1st January 1971 and before 7th March 1974. Sub-section (2) of Section 4 was also substituted from 7th March, 1974 specifying transfers to which the power under Sub-section (1) of Section 4 cannot be exercised. A perusal of new Sub-section (2) goes to show that it makes new Sub-section (1) inapplicable to a transfer made by a holder who does not hold lands in excess of the ceiling area as fixed by Act No. 13 of 1974. Thus a transfer made by a person within the aforesaid period who held land within the ceiling area fixed by the principal Act but more than the ceiling area as fixed by Act No. 13 of 1974 would also be hit by new Sub-section (1) and the competent authority will have jurisdiction to invalidate it in case it was made in anticipation of or to defeat the provisions of the Act as amended. In support of the argument that the transfers mentioned in Sub-section (2) of Section 4 of the principal Act were saved from the operation of Sub-section (1) of Section 4 as substituted by the amending Acts Nos. 13 and 20 of 1974, reliance was placed on Mahadeo v. State of M. P. 1980 RN 482 : 1980 Jab LJ 797 and Pratap Singh v. State of M. p., 1980 RN 525. These cases decided by a Division Bench of this Court do support this construction but, in our opinion, they were not correctly decided. In Pratap Singh's case, the learned Judges relied on State of Kerala v. Philomina, AIR 1976 SC 2363. That case related to the Kerala Land Reforms Act, 1963, the provisions of which were different and not in pari materia with Section 4 of our Act. Section 84 of the Kerala Act invalidated transfers made between 15th September, 1963 and 1st January, 1970. But the section was not made applicable to Kayal lands till 1st January, 1970 and, therefore, it was held that transfers of Kayal lands between the said period were not affected. The provisions of Section 4 of our Act are entirely different as so Philomina's case has no application here.

15. It was then contended that Section 4 (1) as substituted by the amending Acts cannot be applicable to transfers which were permitted by Section 5 (3) of the principal Act. Section 5 (1) prohibits transfers after coming into force of the principal Act except with the permission in writing of the Collector. Sub-section (3) of the principal Act made exceptions and the permission was not needed in respect of certain transfers, for example, transfer or partition by a holder who did not hold land in excess of the ceiling area as fixed by the principal Act and transfer or sale to persons specified in categories (i) to (v) of Section 35 (1) or to the holder holding lands less than 5 acres. These transfers could be made without the permission of the Collector as provided in subsection (3) of Section 5 of the principal Act. The obvious reason was that these transfers did not defeat the provisions of the principal Act. As already seen, the Act was radically amended by Acts Nos. 12 of 1972, 13 and 20 of 1974 and ceiling limit was further reduced. Power was conferred on competent authority to invalidate transfers made after 1st January, 1971 and before 7th March, 1974, if they were in anticipation of or to defeat the provisions of the Act. which means the Act as amended. Simply because the transfers made within this period were within the exception contained in Sub-section (3) of Section 5 of the principal Act, they are not saved from the operation of new Section 4 if they were made in anticipation of or to defeat the provisions of the Act as amended. The new agrarian policy having been announced in 1971, even landholders having lands within the ceiling limit as prescribed by the principal Act were tempted to transfer their lands to escape from the oncoming legislation. These transfers, even though permitted by Section 5 (3) ol the principal Act, would be hit by new Section 4 unless they are saved by Sub-section (2) thereof. It was also argued that transfers to persons mentioned in Clauses (i) to (v) of Section 35 cannot defeat the Act as the object is to distribute surplus land to them. This argument is also not sound. The object of the Act, as shown by its long title, is to provide for imposition of ceiling and acquisition and disposal of surplus land. The distribution of surplus land in the scheme of the Act has to be through the agency of the Government for otherwise it will lead to many malpractices. A land-holder, having surplus land, by selling or transferring land even to a person of any of the categories mentioned in Section 35 cannot be said to be acting in furtherance of the object of the Act. The policy of the Act is equitable distribution of the land through the agency of the Government which cannot be implemented by individual land-holders.

16. It was further contended that although Acts Nos. 13 and 20 of 1974 substituted new Section 4, the original heading of the section was not changed and hence the new section cannot be given effect to. The heading of Section 4 is; 'Transfers or partitions made after the publication of the Bill but before the commencement of the Act'. This heading was in line with Section 4 as it originally stood. It ought to have been changed when the original section was substituted by the new section. The omission in that matter, however, has no effect on the construction of the new section for in plain terms it covers the transfers made between 1st January, 1971 and the appointed day i.e. 7th March, 1974. It is well settled that the heading of a section cannot control its plain language.

17. Arguments were also addressed as to the ambit of the burden of proof laid on the transferor by Sub-section (4) of Section 4. In this connection, it was submitted that a mere denial by the transferor that he intended to defeat the provisions of the Act by the transfer or at any rate the giving of a plausible explanation by him should be sufficient to discharge the burden of proof. It was also submitted that the transferor cannot prove anything else in discharging the burden to prove a negative. We are unable to agree. The occasion and reason for making the transfer are specially within the knowledge of the transferor. It is for him to state the facts relating thereto and to prove them by preponderance of probabilities. If the transferor is able to state and establish any good reason for the transfer by preponderance of probabilities, it should be held that the burden of proof laid on him under Section 4 (4) is discharged. Looked from this angle, it cannot be said that the burden on the transferor is to prove a negative fact. To hold that a mere denial or putting forward of some plausible explanation for the transfer would discharge the burden of proof laid by Sub-section (4) would be entirely defeating its provisions for it would be easy for every transferor to deny that he made the transfer with a view to defeat the provisions of the Act and to put forward a plausible explanation which may be entirely false. In this connection, our attention was drawn to P. Sambasiva Rao v. Revenue Divisional Officer, AIR 1977 Andh Pra 51 which was followed by a Division Bench in Chandrasekhar v. State of H. P., 1980 RN 467. The Andhra Pradesh case does lay down that if the transferor gives some plausible explanation, the burden of proof laid on him under Section 7 of the Andhra Pradesh Ceiling on Agricultural Holdings Act is discharged and the explanation given by the transferor must be accepted. To the same effect is the ruling of the Division Bench in Chandrasekhar's case. We are unable to agree with the view taken in these cases. Such a view will reduce Sub-section (4) of Section 4 to a dead letter. A transferor must not only give a plausible explanation for the transfer but also support it by evidence and make it acceptable by preponderance of probabilities. It is only then that it can be said that the burden of proof is discharged.

18. We no'w turn to the facts of the cases in hand. We first take up Misc. Petition No. 376 of 1978. Petitioner No. 1, Narbadaprasad, is son of petitioner No. 2, Raghunandanlal. Narbadaprasad was holder of 202.46 acres of land on 1st January, 1971. He executed six sales between 22nd November, 1971 and 13th April, 1972 covering 140.27 acres of land. Raghunandanlal, petitioner No. 2, was holder of 99.57 acres of land on 1st January, 1971. He executed three sales on 22nd March, 1972 covering 48.52 acres of land. All these sales were made to relatives. It was stated that one of the petitioners was kidnapped by dacoit Murat-singh in 1969 and the petitioners had to borrow loans of Rs. 1 lac in all from the relations in 1967 to pay ransom to Murat Singh and the sales were executed for repayment of these loans. There is no writing evidencing the loans. The loans were time barred on the date when the sales were executed. Having regard to all these factors, the competent authority and the Board of Revenue, in appeal disbelieved the story of repayment of loans by sales and came to the conclusion that the petitioners had failed to discharge the burden that the transfers were made to defeat the provisions of the Act. This finding does not suffer from any error of law or error of jurisdiction.

19. We now come to Misc. Petition No. 324 of 1974. The sale in favour of the petitioner of 30.96 acres of land for Rs. 7,500/- was made on 18th April, 1972 by Pancham Singh who was the holder. The transferor stated that the transfer was made for the marriage of his daughter. He produced no evidence that there was really any marriage for which expenses were incurred. The transferor also stated that in 1972 he purchased bullocks for Rs. 2,000/- and spent Rupees 1,000/- on construction of an embankment but led no evidence to prove it. The transferor admitted that he gave loan to his brother for purchase of a tractor from which it was inferred that the transferor was a well-to-do person who could himself advance loans. The transferor was in possession of 101 acres of land. The competent authority an ! the Board of Revenue after appreciating the evidence came to the conclusion that the explanation given for making the sale was not established and the burden was not discharged. In our opinion, the finding so reached does not suffer from any error of law or error of jurisdiction.

20. The petitions fail and are dismissed but without any order as to costs. The security amount be refunded to the petitioners.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //