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State of Madhya Pradesh Vs. Board of Revenue, Gwalior and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 275 of 1982
Judge
Reported inAIR1983MP111
ActsMadhya Pradesh Ceiling on Agricultural Holdings Act, 1960 - Sections 5(1), 11, 16, 16(2), 35 and 50(1); Madhya Pradesh Ceiling on Agricultural Holdings Rules, 1962 - Rule 3A; Constitution of India - Articles 14, 31A, 226 and 227; Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1976 - Sections 5 and 6; Contract Act, 1872 - Sections 23; Transfer of Property Act, 1882 - Sections 4
AppellantState of Madhya Pradesh
RespondentBoard of Revenue, Gwalior and ors.
Appellant AdvocateR.K. Varma, Adv.
Respondent AdvocateY.S. Dharmadhikari, Adv.
Cases ReferredAbdul Hameed v. Mohd. Ishaq
Excerpt:
- - the consequences of vesting are given in section 4 of the act which, like any other similar act. these persons not satisfied even with more than 37 lakhs as compensation filed three appeals before the collector which were dismissed by three orders dated 31st march 1980. thereafter three revisions were filed by these persons before the board of revenue which bv order dated 14th august 1981 (annexure p-16) allowed the revisions and remanded the cases to the competent authority for re-calculating the additional compensation payable in respect of trees with certain directions. narsinghdas, shakuntala and sajankumar were not satisfied even with the direction of the board of revenue which it carried out would have resulted in payment of more than a crore as compensation for the trees and.....g.p. singh, c.j.1. this order will also dispose of miscellaneous petition no. 1051 of 1981. this case illustrates how unimaginative and casual (we refrain from using the word mala fide) execution of land reforms legislations by revenue officers cannot only completely defeat their object but can also burden the state with enormous financial liabilities for which it is really not liable.2. one hariprasad naik was proprietor of village shivpuri in raigarh district. the proprietary rights were abolished by the madhya pradesh abolition of proprietary rights act, 1950, with effect from 31st march 1951 which was the date of vesting under the act. the consequences of vesting are given in section 4 of the act which, like any other similar act. vests in the state free from all encumbrances all.....
Judgment:

G.P. Singh, C.J.

1. This order will also dispose of Miscellaneous Petition No. 1051 of 1981. This case illustrates how unimaginative and casual (we refrain from using the word mala fide) execution of land reforms legislations by revenue officers cannot only completely defeat their object but can also burden the State with enormous financial liabilities for which it is really not liable.

2. One Hariprasad Naik was proprietor of village Shivpuri in Raigarh District. The proprietary rights were abolished by the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, with effect from 31st March 1951 which was the date of vesting under the Act. The consequences of vesting are given in Section 4 of the Act which, like any other similar Act. vests in the State free from all encumbrances all rights, title and interest of the proprietor in the land of a proprietary village including grass land, scrub jungle, forest etc. A proprietor was allowed to retain in his possession, as provided in Section 4 (2), only homestead and home-farm land. It appears that village Shivpuri was essentially a forest area and in the normal course almost the entire village ought to have vested in the State. But surprisingly very large areas comprising of forest were allotted in Bhumiswami rights not only to the ex-proprietor Naik but also to his wife, wife's sister and wife's sister's daughter. The lands which came to be held by Naik and his relatives in Bhumiswami rights in Shivpuri after abolition are as follows :

(1) Hariprasad Naik, Khasra no. 12, area 496.76 acres.

(2) Krishna Kumari (wife's sister of Hari prasad), Khasra Nos. 30 and 39. area 183.32 acres.

(3) Sitarani, w/o Hariprasad, Khasra Nos. 36, 27 and 28 area 245.00 acres.

(4) Tarlika Kumari, d/o Krishna Kumari, Khasra no. 11, area 76.73 acres.

3. After the coming into force of the Madhya pradesh Ceiling on Agricultural Holdings Act, 1960, four ceiling cases were initiated in respect of the aforesaid holders. The ceiling case in respect of Naik was Case No. 178/8/90-B/63-64. The Competent Authority by order dated 19th July, 1972 (Annexure P-25) held that the holder was entitled to retain only 90 acres and declared 406.76 acres as surplus. The ceiling case in respect of the holding of Krishna Kumari was Case No. 4/A-90-B/1969-70. The Competent Authority by order dated 6th July 1972 (Annexure P-27) allowed the holder to retain 105 acres of land and declared 78.32 acres as surplus. The ceiling case in respect of Sitarani was Case No. 3/A-90-B/19G9-70. This case was also decided bv the Competent Authority on 7th July 1972 (Annexure P-26). The holder was allowed to retain 75 acres of land and 170 acres were declared as surplus. The case concerning Tarlika Kumari was Case No. 1/A-90-B/1969-70 which too was decided by the Competent Authority on 7th July, 1972. In this case the holder was allowed to retain the entire area of 76.73 acres. The orders of the Competent Authority in these ceiling cases were maintained in the appeals filed by the holders to the Collector and the Additional Commissioner which were dismissed on 23rd March 1974 and on 17th May 1975 respectively. The result of these railing cases is summarised as follows:

Holder

Land allowed to be retained.

Surplusdeclared.

HariprasadNaik

90 acres

406.76acres

KrishnaKumari

105 acres

78.32acres

Siarani

75 acres

170.00acres

TarlikaKumari

76.73acres

6.00acres

4. Before any final order in the aforesaid ceiling cases could be passed by the Competent Authority and in spite of a ban on transfer, except with the permission in writing ot the Collector, Naik and his relatives referred to above transferred their holdings by four sale-deeds executed on 17th January 1967 in favour of Mamanchand and his family members/relations tor a total consideration of Rs. 30,000. The details of these transfers are as follows :

(1) Hariprasad Naik sold for Rs. 14,000 the entire 496.76 acres of land to Shambhu Ram, Narsinghdas both sons of Mamanchand, and Shakuntala Devi d/o Mamanchand:

(2) Krishna Kumari sold for Rs. 6,000 the entire 183.32 acres to Anand Kumar minor son of Mamanchand and Ushabai minor daughter of Mamanchand;

(3) Sitarani sold for Rs. 7,000 the entire 245.00 acres of land to Smt. Kamla-bai w/o Mamanchand and Bhagwatibai d/o Mamanchand;

(4) Tarlika Kumari sold for Rs. 3,000 the entire 76.73 acres to Mamanchand.

Mamanchand in his turn transferred 35 acres of land out of 76.73 acres purchased from Tarlika Kumari to his son-in-law Sajankumar (husband of Shakuntala Devi).

5. The purchasers on the basis of the aforesaid sale-deeds applied for mutation. The Tahsildar by order dated 12th April 1967 rejected the applications for mutation on the ground that the transfers violated Sections 5 and 7 of the Ceiling Act and Section 165 (4) of the Madhya Pradesh Land Revenue Code, 1959. Appeals by the purchasers were dismissed by the Collector. Further appeals to the Commissioner were also dismissed on 19th October, 1969.

6. The Madhya Pradesh Ceiling on Agricultural Holding Act, 1960, was drastically amended by two Acts, Act No. 12 of 1974 and Act No. 13 of 1974, which came into force on 7th March, 1974. By these amendments the ceiling limit was reduced and certain exemptions were withdrawn. Three fresh ceiling cases after these amendments were commenced before the Competent Authority. The first case is Case No. 16/A-90-B/1974-75 (State v. Shambhuram, Narsingdas and Shakuntala. This case was instituted on a return purporting to have been submitted by Naik through one of the purchasers, namely. Shambhuram, in respect of the entire area of 496.76 acres purchased from Naik for Rs. 14,000 and stating that the earlier ceiling case against him was pending, although it had been decided by order dated 19th July 1972 and an area of 486.76 acres was declared surplus. This case was decided by the Competent Authority on 24th March 1976 and an area of 403.76 acres was declared as surplus. This was slightly modified by the Collector in appeal decided on 2nd September 1976 and 412.76 acres were declared as surplus. It is a point to be noted that out of this area 406.76 acres had already been, declared surplus in the earlier ceiling case against Naik by order of the Competent Authority, dated 19th July 1972 and it had already vested in the State. The second ceiling case is State v. Mamanchand (Case No. 18-A/ 90-B/74-75). This case covered the land purchased by Mamanchand from Tarlika Kumari in the names of his minor children Anandkumar and Ushabai and in his name from Krishna Kumari minus 35 acres of land which he transferred in favour of his son-in-law Sajankumar. It will be recalled that in the ceiling case of Krishna Kumari 105 acres of land were allowed to be retained by her by the order of the Competent Authority dated 6th July 1972 and in the ceiling case of Tarlika Kumari, by another order passed on the same date 76.73 acres were allowed to bo retained by her. The total area of land allowed to be retained in these cases comes to 181.73 acres. Deducting 35 acres transferred in favour of Sajankumar by Mamanchand the remaining area comes to 146.73 acres. So in the ceiling case against Mamanchand he declared 146.73 acres of land of the family unit. By the order of the Competent Authority dated 20th March 1976 as modified in appeal Mamanchand was allowed to retain 63 acres for himself and his minor children constituting the family unit and 83.73 acres were declared to be surplus. In the third ceiling case against Sajankumar (Case No. 766-A/90-B/74-75) decided by the Competent Authority on 7th January 1976, five acres were declared as surplus and Sajankumar was allowed to retain 30 acres. The result of these ceiling cases is as follows :

Calling case

Landallowed to be retained.

Land declared surplus

16/A.90 (B) 74-75

54 acres to Shambhuram s/o Mamaschand.

412. 76 acres

18/A-90(B) 74-75

30 acres to shakuntala d/o Mamachand 63 acres toMamanchand as representing the family unit consistingof himself and four minor children.

83.73acres

766.A.90 (B) 74-75

30 acresto Sanjankumar son-in-law of Mamanchand.

5 acres

7. In Ceiling Case No. 16/A-90-B/74-75, the Competent Authority allowed Rs. 8,255.20 as compensation for the surplus land. Similarly in Ceiling Case No. 18/A-90-B/74-75 the Competent Authority allowed Rs. 1674.60 as compensation and in Ceiling Case No. 766-A-90-B/74-75 the Competent Authority allowed Rs. 100 as compensation for the land declared to be surplus. Applications were filed on 6th April 1977 for additional compensation for trees in accordance with Section 16 (2) as amended by Act No. 13 of 1974 and Rule 3-A of the Rules made under that provision. The Tahsildar counted 3,11,246 trees in the first case, 43,972 in the second case and 4,818 in the third case. On this basis the Competent Authority by three orders passed on 4th December 1979 (Annexures P-10, P-11 and P-12) allowed Rs. 32,26,688 as compensation for trees in the first case (No. 16/A-90-B/74-75) to Shambhuram, Narsinghdas, sons of Mamanchand, and Shakuntala d/o Mamanchand, Rs. 4,44,776 in the second case [No. 18-A(B)/74-75] to Mamanchand and Rs. 49,679/- in the third case [No. 766-A-90(B)/74-75] to Sajankumar. These persons not satisfied even with more than 37 lakhs as compensation filed three appeals before the Collector which were dismissed by three orders dated 31st March 1980. Thereafter three revisions were filed by these persons before the Board of Revenue which bv order dated 14th August 1981 (Annexure P-16) allowed the revisions and remanded the cases to the Competent Authority for re-calculating the additional compensation payable in respect of trees with certain directions. These directions are that Mahua, Char, Jamun, Tendu and Awala be treated as fruit bearing trees lor purposes of compensation and even bamboo and bushes should be counted as trees.

8. Mamanchand, Shambhuram. Narsinghdas, Shakuntala and Sajankumar were not satisfied even with the direction of the Board of Revenue which it carried out would have resulted in payment of more than a crore as compensation for the trees and they filed Misc. Petition No. 1051 of 1981 for being allowed the market value of the trees as compensation and for a declaration that Rule 3-A and Form A-2 are invalid. But excessive greed is very often a person's undoing. In preparing its defence in answer to Misc. Petition No. 1051 of 1981 the State Government realised the enormous loss to which it was being put by paying additional compensation for the trees in terms of the orders of the Competent Authority and the Board of Revenue. The Slate Government, therefore, apart from contesting the claim in Misc. Petition No. 1051 of 1981, itself filed this writ petition (Misc. Petition No. 275 of 19820 for challenging the entire proceedings taken in the second set of ceiling cases and for quashing all orders made in them including the orders relating to payment of compensation.

9. Before coming to the contentions raised in these petitions it is first necessary to notice the relevant provisions of the Ceiling Act. We have already mentioned that the Madhya pradesh Ceiling Act whch was first enacted in 1960 was drastically amended by Acts Nos. 12 and 13 of 1974 both of which came into force on 7th March 1974. By these Acts the ceiling limit was considerably reduced and certain exemptions were withdrawn. Surplus land under the Act is declared by the Competent Authority under Section 11. Section 5 contains a ban on transfer until a final order is passed under Section 11. Sub-sections (1) and (2) of Section 5 which are relevant read as follows:

'5. Restrictions on transfer of subdivisions of land and consequences of, transfer or sub-division made in contravention thereof--

(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 of sub-division of land is likely to defeat the object of this Act.'

Surplus land vests in the State Government under Section 12. Before amendment by Act No. 3 of 1976 which came into force from 16th July 1976, vesting of land under Section 12 took place 'with effect from the commencement of the agricultural year next following the date on which it is declared surplus.' After the amendment, the vesting takes place on the date when the land is declared surplus by the Competent Authority. Section 3 of the Act contains the exemptions. Before the amendment of this section by Act No. 13 of 1974 'land to the extent of 30 acres used for orchard or mango grove constituting compact block of not less than such area as may be prescribed' was exempt from the operation of the Ceiling Act. The Act provides for compensation for surplus land under Section 16. According, to Section 16 (1), the State is to pay compensation for the surplus land vesting in the State under Section 12 to the holder in accordance with the rules contained in the Schedule. Sub-sections (2) and (3) of Section 16 provide for additional compensation. Before amendment by Act No. 13 of 1974, these sub-sections read as follows :

'16. Liability of State Government to pay compensation for surplus land--

XX XX XX(2) In addition to the compensation payable under Sub-section (1), the State Government shall pay to the holder of such land additional compensation-- (i) for any improvement made by him on land, or

(ii) for trees, if any, standing on land.

(3) In determining the additional cempensation payable under Sub-section (2), the following matters shall be taken into consideration, namely:--

(a) the enhancement of the value of the land due to the improvement;

(b) probable duration of the effect of the improvement:

(c) labour and capital spent by the holder on the improvement:

(d) nature of trees and value thereof'

Section 50 (1) of the Act confers on the State Government power 10 make rules 'for carrying out the purposes of the Act.' Section 50 (2) enumerates certain specific matters on which rules can be made but we are not concerned with that. After amendment of Section 16, providing for compensation for trees, the State Government made Rule 3-A and Form A-2 which came into force on 10th September 1976. They read as follows:

'3-A. The additional compensation for the standing trees shall be calculated according to the scale given in Form A-2 appended to these rules. The holder claiming additional compensation for the standing trees shall file a statement in Form A-1. The Competent Authority shall get the statement checked by the Tahsildar who shall verify the nature of trees measurement of girth and other particulars and calculate the value of trees on the basis of scale given in Form A-2.' 'FORM A-2

(SeeRule 3-A).

Scale

Measurementof girth of the trees at breast high in centimeters.

Compensation per tree (Timber)

Sagwan

othertimber trees

(1)

(2)

(3)

Rs.

Rs.

Up to 60 Cm.

3.00

2.00

61 Cm to120 Cm.

100.00

25.00

121 Cm.and above

200.00

50.00

Compensation per tree irrespective of the girth

Mango

Citrus

fruit

others

Fruit bearing.

Non-fruit bearing.

Fruit bearing.

non-fruit bearing.

(4)

(5)

(6)

(7)

(8)

Rs.

Rs.

Rs.

Rs.

Rs.

100.00

25.00

50.00

6.00

10.00

Forms A-1 and A-2 added by Notification No. 1918-XXVIII-76, dated the 1st September 1976, published in the M. P. Rajpatra dated the 10th September 1976.'

10. The following contentions have been raised before us by the learned Deputy Advocate General :

(1) The word 'trees' in Section 16 (2) (ii) of the Ceiling Act must be confined to trees planted by the holder and additional compensation is not payable for trees of spontaneous growth.

(2) Section 16 (2) (ii) is not retrospective and additional compensation is not payable for trees on surplus land vesting in the State before 7th March 1974 when Act 13 of 1974 came into force

(3) Land declared as surplus in the first set of ceiling cases against Naik and his relatives could not be made subject matter of the second set of ceiling cases against Mamanchand and his family members/relations.

(4) The sales in favour of Mamanchand and his family members/relations were void as they were made during the pendency of the first set of ceiling cases and consequently the second ser of ceiling cases could not be initiated on the assumption that these transfers are valid and no compensation or additional compensation could be allowed in favour of the transferees.'

11. Shri Y. S. Dharmadhikari, the learned counsel for Mamanchand and his family members/relations in addition to countering all the aforesaid contentions of the learned Deputy Advocate General submitted that additional compensation for trees should be paid in accordance with their marker value and Rule 3-A and Form A-2 are invalid being beyond the rule-making power and also for the reason that the compensation provided therein is arbitrary and discriminatory and, therefore, violative of Article 14. The learned counsel also submitted that the State did not go up in appeal against the orders of the Competent Authority in the second set of coiling cases and the orders made in them became final against the State and it is now too late to contend that the sales were invalid and the transferees could not be recognised and no compensation could be allowed to them.

12. The first contention of the Deputy Advocate General relates to the construction of Section 16 (2) (ii), as introduced by Act no. 13 of 1974. In construing a provision in the Ceiling Act the broad objective of the Act has to be kept in view. The Ceiling Act is a social welfare legislation designed to implement the great objective of securing social justice enshrined in the Preamble and the Directive Principles of the Constitution. The object of the Ceiling Act is to make availRble surplus land to the Government for distribution to the needy. The rules of construction applicable to exproprietory legislation are not applicable here and language permitting the construction which best secures the object of the Ceiling Act must be preferred against others, which seek to defeat agrarian justice. Reference here may be made to Section 35 of the Act which provides tor allotment of surplus land vesting in the State. Under Section 35, surplus land vested in the State under Section 12 has to be allotted in Bhumiswami rights essentially to agricultural labourers and landless persons or to their societies in accordance with the priorities mentioned therein on payment of premium (payable in not more than twenty instalments) equivalent to compensation payable in respect of such land. The very object of allotment of surplus land to agricultural labourers and landless persons on payment of premium equivalent to compensation shows that the compensation provided for in the Act was not intended to be so high as to be out of reach of the labourers and landless persons. It is in this background that we should construe Section 16 (2) (ii) making provision for additional compensation for trees. Having given our anxious consideration we are inclined to agree with the submission that the word 'trees' in Section 16 (2) (ii) is used to signify trees such as those in a grove or orchard i.e. trees planted by the holder which can be described to be improvement and not trees of spontaneous growth such as in a forest. The first thing that has to be noticed in this connection is that when Section 3 of the Act contained exemption for orchard and mango grove, the Act did not contain any provision for payment of compensation for trees. The compensation provided for in Section 16 was only for surplus land and for improvement made by the holder on such land. It was only when by Act No. 13 of 1974 the exemption relating to orchard and mango grove was withdrawn that the provision for additional compensation in respect of trees was inserted in Section 16. This shows that the provision for compensation in respect of trees is related to the withdrawal of exemption in respect of land used for orchard and mango grove. In other words, the intention of the Legislature was to make provision for compensation for trees planted by the holder as is done in an orchard or a mango grove. The second point to be noticed is that the provision for additional compensation for trees occurs in the same sub-section which makes provision for additional compensation in respect of improvement made by the holder. This also indicates that the trees should be in the nature of improvement made by the holder. Now trees which are of spontaneous growth cannot be regarded as improvement made by the holder. Only trees which are planted by the holder can be regarded as improvement on the land made by him. Further the Act covers only land as defined in Section 2 (k) i.e. land which is held for an agricultural purpose. The compensation provided for in, the Ad is. therefore, for loss of agricultural income to the holder from vesting of the surplus land in the State, Income from trees of spontaneous growth is not an agricultural income and the Legislature could not have intended to make provision for payment of compensation for loss of non-agricultural income. All these considerations lead us to the conclusion that though the word 'trees' in Section 16 (2) (ii) is used without any qualification still it must be construed to mean only trees which are planted by the holder. This conclusion is further re-enforced if we look to the consequences which will flow from accepting the wider meaning as contended by Shri Dharmadhikari, if the word 'trees' is construed to mean all trees whether planted by the holder or of spontaneous growth, that will result in making the State liable to pay crores of rupees as compensation to the holders on vesting of surplus lands in these and similar cases and it would be impossible to allot any land under Section 35 to labourers and landless persons, because they would hardly be in a position to pay as premium even in twenty instalments which the State will have to pay as compensation to the holders. Thus the wider construction if accepted would entirely defeat the object of the Act. In our opinion, the word 'trees' cannot be construed without any qualification. As earlier expressed by us, the word 'trees' has to be construed to mean only trees which are planted by the holder and not trees of spontaneous growth. The expression 'trees, if any, standing on land' would thus mean trees, if any, planted by the holder on the surplus land which are standing on the date of vesting i. e. which have not been removed or felled before that date.

13. As regards the validity of Rule 3-A and Form A-2. it is to be noticed that Section 16 (3) of the Act only says that the nature of trees and the value thereof should be taken into account in determining the additional compensation payable for the trees. As the Act itself does not contain any definite indication as to what amount should be paid as compensation for trees, whether market value or something else, Rule 3-A was made which read with Form A-2, fixes the money value which the State must pay as additional compensation for trees. The rule read with the form carries out the object of the Act by fixing the amount of compensation payable for the trees and cannot be said to be beyond the rule making power conferred by Section 50 (1) which empowers the State Government to make rules for carrying out the purpose of the Act. As regards the argument that the compensation provided by the rule is arbitrary and therefore, discriminatory, in our opinion, the argument is not open because the Act and the rules are part of a scheme of land reform and both would be protected from attack under Article 31A of the Constitution. In Latafat A. Khan v. State of U. P., AIR 1973 SC 2070 the Supreme Court on a challenge to Rule 4 (4) made under the Uttar Pradesh Imposition of Ceiling on Holdings Act 1967 held that the said rule and Section 6 of the Act were part of a scheme of land reform in Uttar Pradesh and both were protected under Article 31A. Latafat A. Khan's case still holds the field as to the scope of Article 31A as held by a Division Bench of this court in P. Invest Corpn. v. Union of India 1981 MPLJ 62 at pp. 74, 75 : (AIR 1981 Madh Pra 140 at pp. 150, 151) where the case of Prag Ice & Oil Mills v. Union of India AIR 1978 SC 1296 was distinguished and it was observed: 'In Prag Ice Mills case the Supreme Court overruled the view taken in Latafat A. Khan's case relating to the scope of Article 31B but it did not disturb the view taken in that case relating to Article 31A'. The argument that Rule 3-A and Form A-2 are violative of Article 14 being arbitrary and discriminatory must, therefore, be rejected.

14. Coming to the second contention of the Deputy Advocate General that the amendment made in Section 16 (2) (ii) is not retrospective, the liability to pay compensation under Section 16 for surplus land vesting in the State arises on the date of vesting as is expressly declared by Sub-section (4) of that section. It is the law as it then stands which determines what compensation the State must pay for the surplus land. The amendment of Section 16 by Act No. 13 of 1974 by inserting therein a provision for payment of additional compensation for trees is not in terms retrospective and cannot be construed to be retrospective. In other words, Section 16 (2) (ii) will not apply to surplus land vested in the State before the coming into force of Act No. 13 of 1974 i.e. 7th March, 1974. We have already mentioned that orchard and mango grove were to begin with exempt from ceiling Act No. 13 of 1974 took away that exemption and, therefore, it also made provision for payment of compensation for trees. This circumstance supports that, there was no intention to make the provision for additional compensation for trees retrospective so as to cover prior vesting.

15. On the finding reached by us that Section 16 (2) (ii) providing for compensation for trees is not retrospective and operates in respect of surplus land vesting in the State on or after 7th March, 1974, it is clear that this provision would not apply to the surplus lands which had already vested in the State in the first set of ceiling cases against Naik and his relatives. It may bo recalled that these ceiline cases were decided by the Competent Authority in July, 1972. In accordance with Section 12 as it then stood, the lands declared surplus in these ceiling cases vested in the State from the commencement of the next agricultural year. i.e. 1st July, 1973, much before the provision for additional compensation for trees was inserted in Section 16. We have already seen that 406.76 acres of land which was declared surplus in ceiling case No. 178-A/90-B/64-64 against Naik was again included and again declared surplus in Ceiling Case No. 16/A-90-B/74-75 against Shambhu-ram, Narsinghdas and Shakuntala. This on the fact of it was wholly illegal. The land once vested in the State in accordance with the Ceiling Act as it stood before the amendment by Act No. 13 of 1974, could not be subject matter of a fresh ceiling case and it could not be again declared to be surplus. Indeed, even the ceiling cases pending on 7th March, 1974 when Acts Nos. 12 and 13 of 1974 came into force reducing the ceiling area had to be decided in accordance with the principal Act and fresh ceiling cases had to be started under the amended provisions in respect of the area remaining with the holders after the vesting of surplus land in accordance with the principal Act. This was made clear by Sections 5 and 6 of Act No. 37 of 1976 which read as follows :

'5. Pending proceedings.-- Any proceeding in respect of a holding of any holder pending before any officer or authority on the date of the commencement of the Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1972 (No. 12 of 1974) shall be disposed of by such officer or authority in accordance with the provisions of the Principal Act as in force immediately before the said date and thereafter the proceedings for the determination of the ceiling area in respect of the holding of such holder and the surplus land in such holding shall be initiated in accordance with the provisions of the Principal Act as amended by the said Act.

6. Section 5 to have retrospective effect-- Section 5 shall be deemed to have come into force with effect from the 7th March, 1974.',

16. It appears to us that 406.76 acres of land declared surplus in the ceiling case against Naik was fraudulently re-included in the ceiling case asainst Shambhuram Narsinghdas and Shakuntala, so that it may be again declared surplus after 7th March, 1974 entitling the holders to get compensation for forest trees standing on this area. It is in respect of this area that the Competent Authoritv allowed more than rupees 32 lacs as compensation for trees.

17. Coming to the question whether the transfers made by Naik and his relatives in favour of Mamanchand and his family members/relations were invalid, it is quite clear that they were in contravention of Section 5 (1) of the Act which has been quoted earlier. Section 5 (1) creates a statutory ban on transfer and sub-divisions until a final order under Section 11 is passed, except with the permission in writing of the Collector, It is true that the section does not in terms say that a transfer made in contravention of the prohibition contained in it would be void, but that would be the consequence in view of Section 23 of the Contract Act read with Section 4 of the Transfer of Property Act. The purpose of Section 5 was to prevent a holder from defeating the obiect of the Act by making transfers or sub-divisions of his holding. Even if permission is applied for, the Collector cannot grant permission for transfer or sub-division if the object of the Act would be defeated. There being a public policy behind Section 5, the requirement of permission of the Collector must be construed as mandatory and transfers made in contravention of that requirement must be held to be void for all purposes. Shri Dharmadhikari relied upon the case of Mauji Ram v. State of M. P., 1972 RN 476 where Krishnan, J. was of opinion that such a transfer would not be void and it would not be given effect to only till the making of the final order under Section 11. The other Judges in that case did not express any opinion on this question. We do not agree with the opinion of Krishnan J. Although the period of ban is limited up to the date of passing of the final order under Section 11, but a transfer made during the period of ban cannot be held to be a transfer made after the final order and confined to the land allowed to remain with the holder. The effect of Section 5 (i) read with Section 23 of the Contract Act is to make the transfer in contravention of Section 5 (1) void and such a transfer cannot be given effect to at any stage. Shri Dharmadhikari also relied upon the decision of the Supreme Court in Murlidhar v. State of U. P., AIR 1974 SC 1924 which approved the decision of the Allahabad High Court in Udhoo Das v. Prem Prakash, AIR 1964 All 1. In Prem Prakash's case a Full Bench of the Allahabad High Court held that a contract of tenancy in violation of the District Magistrate's order made under Section 7 (2) of the U. P. (Temporary) Control of Rent and Eviction Act was not void because the District Magistrate's order did not amount to law. The basis of the ruling of the Allahabad High Court was that the contract of tenancy though violative of the District Magistrate's order was valid because it was not prohibited by law as the District Magistrate's order did not amount to law. It was this view which must be taken to have been approved by the Supreme Court. The Allahabad case and the Supreme Court case are not applicable as in the case before us the transfers are in violation of Section 5 which clearly amounts to law. We may also mention that the view taken by the Allahabad High Court in Prem Prakash's case was overruled by a larger Full Bench in Abdul Hameed v. Mohd. Ishaq, AIR 1975 All 166 in which it was held that the District Magistrate's order under Section 7 (2) was law and a contract of tenancy in violation of the District Magistrate's order would be prohibited by law and therefore void. This later judgment of the Allahabad High Court was not brought to the notice of the SUPreme Court in Murlidhar's case (AIR 1974 SC 1924). Be that as it may, these cases can have no application when there is a clear prohibition by law as contained in Section 5 (1). Transfers made in contravention of such a provision must be held to be invalid and void.

18. On the findings reached by us that the transfers made in favour of Mamanchand and his family members/ relations were void, it necessarily follows that, the second set of ceiling cases could not have been initiated by them or against them. The second set of ceiling cases should have been started against Naik and his relations in respect of the land remaining with them after the declaration of the surplus land in the first set of ceiling cases. It may here be recalled that when Mamanchand and other purchasers had applied for mutation on the basis of the transfers, the Tahsildar by his order dated 12th April. 1967 had refused mutation on the ground that the transfers were violative of Section 5 of the Ceiling Act and the order of the Tahsildar was upheld in appeal by the Collector and the Commissioner. In face of these orders holding the transfers invalid the transferees were allowed to initiate the second set of ceiling cases. This only shows that the Revenue Officers concerned in the second set of ceiling cases were grossly negligent if not dishonect in implementation of the provisions of the Ceiling Act. They not only recognised the transferees but also declared, as earlier seen, 406.75 acres of land surplus which had already been declared surplus in the earlier ceiling case burdening the State with enormous liability for payment of compensation. In our opinion, the orders of the Competent Authority and the higher authorities in the second set of ceiling cases must be set aside and the proceedings quashed.

19. We are not prepared to accept the contention of Shri Dharmadhikari that as the Government did not file any appeal against the orders of the Competent Authority in the second set of ceiling cases, the High Court is now powerless to interfere and the Government must be held to be bound by those orders, it cannot be lost sight of that the State Government unlike a living person acts only through its officers. In proceedings before the Competent Authority the Authority itself is required to look after the interest of the State and if the Authority either out of ignorance or negligence or mischievously decides against the State it would be difficult for any responsible officer of the State to know the consequences soon thereafter to enable the State to file an appeal. It is certainly surprising that even the Board of Revenue while allowing the appeals of Mamanchand and his family members/relations in the cases relating to compensation for trees lost fight of the fact that if its orders were given effect to. the State will have to pay crores as compensation for an area which was purchased only for twenty three thousand. This result itself should have demonstrated to the Board that. there was something basically wrong in the contention put forward by the purchasers. There are no doubt ladies on the part of the State Government but public interest and the State Exchequer must be protected. We cannot shut our eyes to the fact that if we do not interfere the State would be losing crores and the gamble of Mamanchand and his family members/relations would succeed.

20. During the course of arguments it was also hinted that as the lands were mostly covered by forest they did not fall within the Ceiling Act. In our opinion, that is not the correct legal position. The lands though covered by forest were held by Naik and his relations in Bhumiswami rights for agricultural purposes. The lands, therefore, came within, the definition of land in Section 2 (k). It is another matter that these lands should not have been settled with Naik and his relations under the Abolition of Proprietary Rights Act. We have already said that forest land could not be described as home-farm and could not be settled with the proprietor. However, the fact remains that Naik and his relations somehow got these lands settled in Bhumiswami rights and it is not too late to undo that mischief. There is also no prayer in the petition filed by the State to cancel the settlement made in favour of Naik and his relations who are also not parties to these petitions.

21. As a result of the aforesaid discussion. Misc. Petition No. 275/82 is allowed. The entire proceedings and all orders of the Competent Authority in the three ceiling cases (Nos. 16-A/90-B/74-75: 18-A/90-B74-75 and 766-A/ 90-B/74-75) including the orders for payment of compensation and additional compensation (Annexures P-10, P-11 and P-12) and all orders passed in appeal and revisions arising out of these cases including the orders of the Board of Revenue dated 14th August, 1981 (Annexure P-16) are quashed. It would be open to the Competent Authority to lake fresh proceedings in respect of the lands covered by these cases against Hariprasad Naik, Krishna Kumari and Tarilaka Kumari, but only to the extent of the lands which are not declared surplus in the first set of ceiling cases against these persons. The respondents Nos. 4 to I namely Mamanchand, Shambhuram, Narsinghclas, Shakuntala-devi and Sajankumar are ordered to refund to the State the compensation including additional compensation paid to them. They will also pay costs to the State in this petition. Counsel's fee Rupees 500. Misc. Petition No. 1851 of 1981 fails and is dismissed but without any order as to costs.


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