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

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 535 of 1971
Judge
Reported inAIR1973MP130
ActsMadhya Pradesh Land Revenue Code, 1959 - Sections 165(5) and 170
AppellantAil Das
RespondentBoard of Revenue, Madhya Pradesh, Gwalior and ors.
Appellant AdvocateRavish Agarwal, Adv.
Respondent AdvocateK.K. Adhikari, Deputy Govt. Adv. and ;P.C. Pathak, Adv.
DispositionPetition allowed
Cases ReferredFirm Ramnarayan Begraj v. Thakur Churamansingh
Excerpt:
.....states that the provisions of the chapter are applicable to lands situated in urban areas. p, land revenue code, 1959. section 61 clearly indicates that the provisions of the chanter are applicable to lands situated in rural areas while section 92 establishes the fact that the provisions of the chapter arc applicable to lands situated in urban areas for this reason we would reject the contention of the learned counsel for the petitoner that no provisions of the code are applicable to the lands situated in urban areas we may further observe that at least some provisions of the m. , clearly indicated that the provisions were applicable to rural areas to lands situated in villages and mahals. (e) any right to water enjoyed by the owner or occupier of land as such and (f) any rights..........in the application that no sanction of the collector as required by section 165 (6) of the m. p. land revenue code had been obtained and, therefore, the fourth respondent as an heir of the transferor was entitled to avoid the alienation and he prayed for being placed in possession of the house. what was sold was the house standing on the said plot by a registered sale deed for consideration of rs 2.500/-, which had been paid in full privately.2. the sub-divisional officer dismissed the application holding that section 165 or section 170 of the m. p. land revenue code, 1959, was not applicable to nazul land situated in an urban area and the transferor could not be said to be a bhumiswami, but was merely a holder of a nazul plot from the government. in this view of the matter, the.....
Judgment:

P.K. Tare, C.J.

1. This is a Writ petition under Arliclcs 226 and 227 of the Constitution of India by a purchaser of a house in the city of Bilaspur from the predecessor of the fourth respondent, by a registered sale deed, dated 26-9-1962. The predecessor of the fourth respondent, namely, Diwan Mahabir Sewak Singh, an ex-Zamin-dar, was a member of the scheduled tribe. The alienation was challenged by the third respondent under Section 170 of the M. P. Land Revenue Code, 1959, for avoiding the transfer, which Wits said to be in contravention of Section 165 (6) of the said Code. It was alleged that the husband of the fourth respondent was a Malik-makbuza holder of a plot of 0.05 acres of Nazul sheet No. 17 of Mohalla Dabripara in Bilaspur town, which he had sold to the petitioner by a registered sale deed and the alienation was liable to be avoided on the ground that the petitioner-purchaser was not a member of the scheduled tribe. It was also alleged in the application that no sanction of the Collector as required by Section 165 (6) of the M. P. Land Revenue Code had been obtained and, therefore, the fourth respondent as an heir of the transferor was entitled to avoid the alienation and he prayed for being placed in possession of the house. What was sold was the house standing on the said plot by a registered sale deed for consideration of Rs 2.500/-, which had been paid in full privately.

2. The Sub-Divisional Officer dismissed the application holding that Section 165 or Section 170 of the M. P. Land Revenue Code, 1959, was not applicable to Nazul land situated in an urban area and the transferor could not be said to be a Bhumiswami, but was merely a holder of a Nazul plot from the Government. In this view of the matter, the application under Section 170 of the Code made by the third respondent, Bharatsing was held to be not maintainable (Petitioner's Annexure-B). Against that order, the third respondent filed an appeal before the Collector, who, by order, dated 24-5-1963 (Petitioner's Anncxure-C) allowed the appeal holding that the application filed by the third respondent under Section 170 of the M. P. Land Revenue Code, 1959, was maintainable. A second revenue appeal was filed by the present petitioner before the Commissioner, Bilaspur Division, who, by order, dated 26-11-1969 (Petitioner's Annexure-D) set aside the order of the Collector and restored that of the Sub-Divisional Officer. Against the said second appellate order, the third respondent, Bharatsingh filed a revision before the Board of Revenue, which, by order, dated 26-2-1971 (Annexure-E) allowed the revision and set aside the order of the Commissioner and restored that of the Collector holding that Section 165 (6) of the Code was applicable to Nazul plots situated in urban areas and for that reason, the third respondent's application under Section 170 of the Code was maintainable. In that view of the matter, the case was remitted to the Sub-Divisional Officer for deciding the application on merits. The present Writ petition has been filed against the revisional order passed by the Board of Revenue (Petitioner's Annexure-E). Therefore, the question arises whether Section 165 (6) and Section 170 of the M. P. Land Revenue Code, 1959, are applicable to Nazul plots situated in urban areas.

3. Before considering the question it may be relevant to reproduce Sections 165 (6) and 170 of the M. P. Land Revenue Code, 1959, which are as follows:--

'Section 165. -- Rights of transfer --... ..... ..... ..... ..... ..... ..... .......... ..... ..... ..... ..... ..... ..... .......... ..... ..... ..... ..... ..... ..... ..... (6) Notwithstanding anything in Sub-section (1), of a Rhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf for the whole or a part of the area to which this Code applies shall not be transferred to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of a Collector, given for reasons to be recorded in writing.'

'Section 170. -- Avoidance of transfer in contravention of Section 165 --

(1) Where possession is transferred by a Bhumiswami in pursuance of a transfer which is in contravention of Sub-section (6) of Section 165 any person who, if he survived the Bhumiswami without nearer heirs would inherit the holding, may within two years of such transfer of possession, apply to the Sub-Divisional Officer to be placed in possession subject so far as the Sub-Divisional Officer may, in accordance with the rules made in this behalf, determine to his acceptance of the liabilities for arrears of land revenue or any other dues which form a charge on the holding, and the Sub-Divisional Officer shall dispose of such application in accordance with the procedure which may be prescribed.

(2) Where any land of a Bhumiswami is sold in contravention of Sub-section (5) of Section 165. the Court by which such sale is ordered shall, on the application of the Bhumiswami or any person who, if he survived the Bhumiswami without nearer heirs would inherit the holding made within two years of such sale set aside the sale and place the applicant in possession of the land subject to his accepting the liability for arrears of land revenue or any other dues which form a charge on the land.'

4. The learned counsel for the petitioner urged that no provisions of the M. P. Land Revenue Code, 1959, are applicable to Nazul lands situated in urban areas and the provisions of the Code are applicable to lands situated in rural areas alone, which are used either for agricultural or for non-agricultural purposes. In this connection the learned counsel invited attention to the provisions of the C. P. Land Revenue Act, 1917, as also some provisions of the M. P. Land Revenue Code, 1954 and the M. P. Land Revenue Code, 1959. Presently we shall deal with these provisions.

5. At the outset we may observe that on a reference to Sections 54 and 88 of the M. P. Land Revenue Code, 1954, as also Sections 61 and 92 of the M. P. Land Revenue Code, 1959, certain provisions of the said Codes are applicable to lands situated in urban areas. For instance. Section 54 of the M. P. Land Revenue Code, 1954, gives a clear indication that the Chapter is applicable to lands situated in rural areas, while Section 88 of the said Code clearly states that the provisions of the Chapter are applicable to lands situated in urban areas. Similar is the position wish reference to Sections 61 and 92 of the M. P, Land Revenue Code, 1959. Section 61 clearly indicates that the provisions of the Chanter are applicable to lands situated in rural areas while Section 92 establishes the fact that the provisions of the Chapter arc applicable to lands situated in urban areas For this reason we would reject the contention of the learned counsel for the petitoner that no provisions of the Code are applicable to the lands situated in urban areas We may further observe that at least some provisions of the M. P. Land Revenue Code 1959 are certainly applicable to lands situated in urban areas For instance, we might refer to Section 248 of the M. P. Land Revenue Code, 1959, which empowers a Revenue Officer to evict an encroacher who was encroached on Bhumiswami land. In this connection we might also advert to the observations of a Division Bench of this Court in State of M. P. v. Atmaram, 1970 MPLJ 195, wherein it was held that Section 248 of the M. P. Land Revenue Code, 1959, was available to oust an encroacher of lands situated in urban areas. We are in agreement with the view expressed by the said Division Bench.

6. We feel that the proposition propounded by the learned counsel for the petitioner would be rather too broad. But at the same time, we might observe that the contention of the learned counsel for the respondents cannot be accepted in its entirety. According to the learned counsel for the respondents, all the provisions of the M. P. Land Revenue Code, 1959, would be applicable to Nazul lands situated in urban areas. In our opinion, this also is too broad a proposition to be accepted.

7. In this connection while tracing out the history of Malik-makbuza holders, the C. P. Land Revenue Act. 3917, as also the subsequent enactments, namely, the M. P. Land Revenue Code, 1954 and the M. P. Land Revenue Code, 1959, give an indication that previously there used to be Malik-makbuza holders of agricultural lands situated in rural areas and also there used to be Malik-makbuza holders of land situated in urbnn areas. The word 'Malik-makbuza' only indicated that the owner was a plot proprietor who was liable to pay revenue directly to the Government and who was not a tenant of the landlord or who was not a lessee on the estate. Therefore, the word 'Malik-makbuza' was used in both senses indicating the status of a plot proprietor in rural as also in urban areas and certainly as the term was comprehensive enough, it could not be confused to contend that all the provisions of the C. P. Land Revenue Act. 1917, were applicable to all urban lands of which persons were Malik-makhuza holders. Even under the said Act the lands situated in urban areas were governed mostly by executive instructions contained in the Revenue Book Circulars as per the C. P. Revenue Manual, Volume II. In this connection we may advert to the observations of Pollock, J., Sambhsho Markhandi v. Laxman Zingaji AIR 1940 Nag 210, The question that arose for consideration before the Seamed Judge in that case was whether the Nazul Plot No. 3 in the town of Chanda was liable to attachment in execution of a decree. The plot was The plot was describeed as Bari (Kitchen garden) and had admittedly been cultiveted by the judgment debtor for many years. The judgment-debtors claimed that they had the right of an occupancy tenant therein and that the land was exempt from attachment under Section 12 of the tenant therein and that the land was exempt from attachment under Section 12 of the C. P. Tenancy Act, 1920. In a previous decision regarding the very plot. Bose J, in Second Appeal No. 329 of 1935 had held that judgment-debtors had held this land from Government to whom they made an annual payment, which was described as rent in the Nazul Settlement Khasra and that they were, therefore, tenants of Government and must be deemed to be occupancy tenants. Accordingly, Bose, J., had held that the plot was not liable to attachment in execution of a decree. However, the revenue records were subsequently changed in the Town Settlement of Chanda. Pollock, J., considered the Settlement Instructions No. 18, which laid down the proper procedure to be adopted in Nazul Settlements and the persons in possession were described as 'occupants' and the payments they made were described as 'revenue'. Pollock, J., considered the definition of 'tenant' in Section 2 (11) of the C. P. Tenancy Act, 1920, which meant a person who held land of another person. However, according to Pollock, J., it did not include a person who held land from Government. For that reason. Pollock, J., held that the holder of the plot could not claim the status of an occupancy tenant so as to be exempt from the processes of attachment and sale. In that view of the matter, the appeal filed by the decree-holder was allowed by Pollock, J.

8. Thus, from this judgment it is clear that as long as the C. P. Land Revenue Act, 1917, and the C. P. Tenancy Act, 1920, were in force, the holders of Nazul plots from Government in urban areas were held not to be governed by the provisions of the said two Acts and instead, such holders were treated as lessees from the Government or as Malik-makbuza holders, who were liable to pay revenue to Government and whose terms were governed by the executive instructions as contained in the C. P. Revenue Manual Volume II. It is true that after the enactment of the M. P. Land Revenue Code, 1954, and the M. P. Land Revenue Code, 1959, certain provisions of the said Codes have been made applicable even to Nazul lands situated in urban areas, as is clear from Section 88 of the M. P. Land Revenue Code, 1959. But even so, it would be wrong to assume that all the provisions of the said Code would be applicable to the Nazul lands situated in urban areas, although it is true that certain provisions of the said Codes will be applicable to Nazul lands situated in urban areas.

9. The Preamble to the C. P. Land Revenue Act, 1917, indicated that it was meant to consolidate and amend the law relating to land revenue, the powers of Revenue Officers and other matters relating to land and the liabilities incident thereto in the Central Provinces. Section 2 of the Act defined 'Estate' to mean any collection of mahals held by the same proprietor, which the Provincial Government may, by notification, declare to be an estate. In pursuance of the power conferred by the said Sub-section, certain areas in different districts were declared to be mahals. Sub-section (9) of Section 2 defined 'Malik-makbuza' to mean any person who owned one or more plots of land separately assessed to land revenue in a mahal. The other definitions such as that of the 'Proprietor', 'Patel, 'Patti' etc., clearly indicated that the provisions were applicable to rural areas to lands situated in villages and mahals. The 'survey number' was defined by Sub-section (18) of Section 2 to mean any area held by, or intended to be settled with, a raiyat under a separate assessment of land revenue in a village or land which was the property of the Crown.

10. On a reference to the C. P. Ten-nancy Act, 1920, we find that the Act was meant to consolidate and amend the law relating to agricultural tenancies and village-service holding in the Central Provinces. Thus, the C. P. Tenancy Act, 1920, necessarily applied to agricultural tenancies and as indicated by Pollock, J., a Government lessee of Nazul land could not be considered to be an occupancy tenant, as per the definition provided by Section 2, Sub-section (11)' of the C. P. Tenancy Act, 1920. Similarly Sub-section (6) of the said Section defined 'land' to mean land which was let or occupied for agricultural purposes or for purposes subservient thereto, and included the sites of buildings appurtenant to such land. Thus, necessarily the C. P. Land Revenue Act, 1917, and the C. P. Tenancy Act, 1920, related to lands situated in rural areas for agricultural or non-agricultural purposes and the definition of land included sites of buildings appurtenant to such land. But no provision of the said Acts was applicable to Nazul lands in rural areas.

11. On a reference to the C. P. Land Alienation Act, 1916 (Act No. 11 of 1916), which provides for certain safeguards in respect of alienation made by members of the aboriginal tribes, we find that Sub-section (2) of Section 2 of the said Act defines the word 'land' to mean land which was not occupied as the site of any building in a town or village and was occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes--

(a) the sites of buildings and other structures on such land;

(b) a share in the profits of a mahal or sir land;

(c) any sum payable under a Sub-settlement by an inferior proprietor to a superior proprietor;

(d) a right to receive rent;

(e) any right to water enjoyed by the owner or occupier of land as such and

(f) any rights enjoyed by the proprietor in the waste land or the forest produce of a mahal.

12. As such, the said Act is applicable to the property of aboriginals, who are members of the scheduled tribes and who have property in the rural areas. Any property in the urban area is specifically excluded from the operation of the said Act. It was for the first time when the M. P. Land Revenue Code, 1954, was enacted, which came Into force with effect from 1-10-1955, that Chapter 8 of the said Code was enacted regarding assessment and re-assessment of land in urban areas. As such, there can be no doubt that Chapter 8 of the said Code would govern the lands situated in urban areas. The M. P. Land Revenue Code, 1954, was subsequently repealed by the M. P. Land Revenue Code, 1959, which also made similar provisions. Chapter 7 of the 1959 Code provides for revenue survey and settlement in non-urban areas; while Chapter 8 of the 1959 Code makes provisions for assessment and re-assessment of land in urban areas. As such, there can be no doubt that Chapter 8 of the M. P. Land Revenue Code, 1959, will be applicable to lands situated in urban areas. But it is not possible to accept the contention of the learned counsel for the respondents that the other Chapters of the M. P. Land Revenue Code, 1959, will be applicable to Nazul lands situated in urban areas. As such, we are clearly of the opinion that Section 165 of the M. P. Land Revenue Code, 1959, which forms part of Chapter 12 of the Code, would not be applicable to Nazul lands in urban areas. We may observe that Section 157 of the Code, which is the first Section in Chapter 12, lays down that there shall be only one class of tenure-holders of lands held from the State to be known as Bhumiswami. The plot proprietors of Nazul land in urban areas are also, known as Bhumiswamis. But it does not mean that the provisions of Chapter 12 in their entirety can be made applicable to such plot proprietors of Nazul land in urban areas, Who are also known as Bhumiswamis.

13. Lastly we may advert to the view as expressed by a Division Bench of this Court in Firm Ramnarayan Begraj v. Thakur Churamansingh, L. A. P. No. 4 of 1962, D/~ 19-12-1962 (Madh. Pra.) (presided over by Dixit, C. J. and Pandey, L). The facts of the said case were that the respondents had brought a suit to recover from the appellants a sum of money. Since the appellants could not pay the amount in one lump sum, they promised to create a charge over the disputed house. The respondents agreed to receive payments in instalments. Therefore, a decree in terms of the compromise was passed, whereby a charge was created on the house. The appellants were unable to make any payment with the consequence that the whole of the amount became payable at once and it was sought to be recovered by executing the decree and by putting the house to sale. The judgment-debtors, while objecting to the sale, relied on Sub-section (7) of Section 165 of the M. P. Lnnd Revenue Code, 1959, which is as follows:--

'Section 165. (7) Notwithstanding anything contained in Sub-section (1) or in any other law for the time being in force--

(a) only that part of a holding of a Bhumiswami shall be liable to attachment or sale in execution of any decree or order as is in excess of five acres of irrigated or ten acres of unirrigated land;

(b) no land comprised in a holding of a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under Sub-section (6) shall be liable to be attached or sold in execution of any decree or order;

(c) no receiver shall be appointed to manage the land of a Bhumiswami under Section 51 of the Code of Civil Procedure, 1908 (V of 1908) nor shall any such land vest in the Court or anv receiver under the Provincial Insolvency Act, 1920 (V of 1920) contrary to the provisions of Clause (a) or Clause (b):Provided that nothing in this Sub-section shall apply where a charge has been created on the land by a mortgage.'

14. The appellants contended that the disputed house was situated upon a holding within the meaning of Clause (a) of the said Sub-section. The land on which the house stood was made up on Khasra Nos. 342, 693 and 695, which were formerly Abadi plots and Khasra Nos. 343/1, 344, 692 and 694, which were occupancy plots. By virtue of Section 246 of the M. P. Land Revenue Code, 1959, the Abadi plots became Bhummiswami plots. Similarly, the occupancy plots first became Bhumidhari plots by virtue of Sec. 147 of the M. P. Land Revenue Code 1954, (Act No. 2 of 1955) and then they became Bhumiswami plots under Section 158 of the M. P. Land Revenue Code, 1959. The appellants, therefore, contended that at the material time, they held all the plots constituting one holding as Bhumiswamis and since the area of the holding, which was unirrigated. did not exceed ten acres, no part of the holding was liable to be sold in execution of the decree obtained by the respondents. It was contended that the plots could not be sold on account of the bar created by Sub-section (7) of Section 165 of the M. P. Land Revenue Code, 1959. The Division Pench negatived that contention by holding that the benefit of Sub-section (7) of Section 165 of the Code was not available to non-agriculturists. The Division Bench also expressed the opinion that the word 'holding' in Sub-section (7) of Section 165 of the Code meant an agricultural holding and not one which had been diverted to non-agricultural purposes. Support for that view was derived from a recent amendment of Sub-section (4) of that Section, which as it stood originally, prohibited a transfer of Bhumiswami land 'if such transfer shall result in a holding the area of which is below five acres of irrigated land or ten acres of unirrigated land'. By that amendment made in 1961, all transfers of land held for non-agricultural purposes were excluded from the operation of the said subsection. The Division Bench further expressed the view that the amendment of 1961 was merely declaratory of the true legal position and that both Sub-sections (4) (b) and (7) (b) do not apply to lands held by a Bhumiswami for non-agricultural purposes.

15. Agreeing with the view of the learned Judges constituting the said Division Bench, we are of opinion that Sub-section (5) of Section 165 and Section 170 of the M. P. Land Revenue Code, 1959, cannot be made applicable to Nazul lands situated in urban areas. In this view of the matter, the decision of the Board of Revenue is liable to be quashed, as neither Section 165 (6) of the M. P. Land Revenue Code, 1959, nor Section 170 of the said Code, nor the provisions of the C. P. Land Alienation Act, 1916, would be applicable to the instant case, where the predecessor of the fourth respondent sold a house situated on Nazul land in an urban area. For that reason we quash the order of the Board of Revenue and we restore the order passed by the Commissioner, Bilaspur Division, dated 26-11-1969 (Petitioner's An-nexure-D), which, in our opinion, represents the correct legal position.

16. Accordingly, we allow this petition as indicated. However, as the case was not free from doubt, we direct that there shall be no order as to costs, which shall be borne as incurred. The outstanding amount of the security deposit be refunded to the petitioner.


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