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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: GULAB RAO

DATE OF JUDGMENT30/01/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) KULDIP SINGH (J) HANSARIA B.L. (J)

CITATION:  1995 SCC  Supl.  (2)  21 JT 1995 (3)   470  1995 SCALE  (1)670

ACT:

HEADNOTE:

JUDGMENT: MAJMUDAR, J. : 1.This  civil  appeal is filed by the State  of  Maharashtra after  obtaining  special leave to appeal  from  this  Court under Article 136 of the Constitution of India.  It seeks to challenge  the decision rendered by learned single Judge  of the Bombay High Court in Special Civil Application No.  3525 of  1976 decided on 30th September 1976/1st  October,  1976. In order to appreciate the grievance of the appellant State, it will be necessary to have a glance at a few  introductory facts.  The respondent-landlord was possessed of various 473 pieces  of  agricultural lands situated  in  Malkhed,  Taluk Darwha  in Yavatmal District of Maharashtra State.   He  had filed a return of agricultural land holding under Section 12 of the Maharashtra Agricultural Lands (Ceiling on  Holdings) Act,  1961,  (hereinafter referred to ’the  Act’).   It  was found  that he was holding surplus agricultural land to  the extent of 124 acres and 13 guntas.  The enquiry conducted by the  Competent Authority under the Act that there were  6.20 acres  of  potkharb  lands  in  all  the  holdings  of   the appellant.   The  family of the surplus holder  consists  of three  members.   The  enquiry  further  revealed  that  the respondent surplus holder had agreed to sell survey Nos. 12, 13 and 14 measuring in all 51.08 acres on the basis of Sauda Chittis executed on 1.4.1968. The respondent contended  that these lands covered by Sauda Chittis, that is, agreements of sale,  cannot  be included in his  holding.   The  competent authority did not allow these transactions by treating  them to be invalid.  He held that they were hit by Section 10  of the  Ceiling  Act.   After  taking  all  these  facts   into consideration, the respondent was found to be in  possession of  64.13  acres  land  over and  above  the  ceiling  area. Aggrieved by this order, the respondent presented an  appeal before  the  Maharashtra Revenue Tribunal. The  said  appeal

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came  to be dismissed by the Tribunal on 23rd  April,  1976. The  respondent  thereafter  filed  a  writ  petition  under Article 227 of the Constitution of India in the Nagpur Bench of  the Bombay High Court.  The learned single Judge of  the High Court by his aforesaid order allowed the writ  petition by  taking  the  view that  though  these  agreements  dated 1.4.1968  were  hit by Section 10 of the  Ceiling  Act,  the concerned  transfers  were protected by Section 53A  of  the Transfer  of  Property Act, and as  the  respondent  surplus holder- was not In actual cultivation of these lands on  the commencement  date, the Tribunal was in error in  confirming the  order of the original authority adding these  lands  to the  holding of the respondent.  The learned  Judge  further took the view that merely because of unregistered agreements entered into by the land holder it was not possible to  give an  extended meaning to Explanation 11 to Section  10(1)  of the  Ceiling Act and, therefore, the matter was required  to be  re-examined in the context of the provisions of  Section 2(14) of the Ceiling Act which requires a lawful and  actual possession  of the land either as an owner or a tenant.   It was  also required to be found out whether the  land  holder had  parted  with  the possession of lands  covered  by  the agreements  of sale and whether they were genuine  contracts of  sale or not.  Accordingly the order of the Tribunal  was set  aside and the matter was remanded for a fresh  decision of the Tribunal. 2.It  is  vehemently contended by learned  counsel  for  the appellant-State  that  the entire approach  of  the  learned single  Judge of the High Court was erroneous and the  order of remand as passed by the learned single Judge is  contrary to  the  very scheme of the Act especially Section  10  read with  Section  8  of  the Act and  no  further  enquiry  was required as wrongly assumed by the learned single Judge.  In this  connection,  the learned counsel  submitted  that  the facts are not in dispute.  Three survey Nos., namely, survey Nos.  12,  13 and 14 measuring 51.08 acres  were  admittedly conveyed to the prospective purchasers transferees by  Sauda Chittis dated 1.4.1968. These Sauda Chittis or agreements of sale were unregistered.  That 474 once  that  happened on a combined operation  of  the  first Explanation  to Section 10 and Section 8,  these  agreements would  be covered by the sweep of the second Explanation  to Section  10.   Consequently, it has to be  held  that  these transactions  regarding survey Nos. 12, 13 and 14  would  be treated  to  have  seen the light of the  day  between  26th September,  1970  and  the  commencement  date.   Therefore, Section  10(1)(a) would get attracted and would treat  these transactions  to have been entered in anticipation of or  in order  to  avoid or defeat the object of the  Amending  Act, 1972 and consequently as laid down by Section 10 sub-section (1),  lands covered by these transactions have to  be  taken into  consideration in calculating the ceiling area  of  the transferor of such lands.  Once these facts arc undisputedly established on record, the legal effect of these established facts  would flow from the statutory scheme and  no  further enquiry  is contemplated as wrongly assumed by  the  learned single  Judge of the High Court.  That the Tribunal’s  order was  required  to be confirmed instead of  being  interfered with.   The question of applicability of Section 53A of  the Transfer of Property Act was totally irrelevant for deciding the  present controversy, that Section 3 subsection (1)  had no  effect  on  the automatic operation  of  the  scheme  of Section  IO.   It was, therefore, contended that  the  order under appeal suffers from a patent error of law-

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3.Mr.  Lalit,  learned  senior counsel  for  the  respondent submitted  that Explanation 11 to Section 10 creates a  rule of evidence and even assuming that an unregistered  transfer prior  to 26th September, 1970, is to be ignored, still  the question  would remain whether these lands were part of  the holding of the person concerned as required by Section  3(1) which denotes the holding of any excess land.  In this  con- nection  enquiry  into  the  question  whether  the   person concerned  was holding the land lawfully and was  In  actual possession  of the land as owner or tenant as laid  down  by Section 2(14) read with Section 3(1) would be required to be undertaken  on  evidence and precisely for that  reason  the matter  was  remanded  by the learned single  Judge  to  the Tribunal.    It   was  alternatively  contended   that   the transferees of such lands could be said to be deemed tenants under Section 4 of the Bombay Tenancy and Agricultural lands Act,  and  even  on  that ground  the  lands  held  by  such transferees as deemed tenants could not be clubbed with  the holding of the transferor. 4.   Having  given  our anxious consideration to  the  rival contentions,  we have reached the conclusion that the  order of  learned single Judge cannot be sustained.   The  reasons are  obvious.   The Ceiling Act lays down a ceiling  on  the holding  of land by the person concerned.  As laid  down  by Section  3(1),  subject to the provisions of Chapter  2  and Chapter  3,  no  person  or  family  unit  shall  after  the commencement date hold land in excess of the ceiling area as determined   in   the  manner  provided  in   the   Sections hereinafter.   The words "to hold the land" are  defined  by Section 2(14) to be lawfully in actual possession of land as owner   or  as  tenant  and  holding  shall   be   construed accordingly.   "Owner"  is defined by Section 2(21)  to  the effect  that landowner would include the person holding  the land  as occupant or superior holder as defined in the  Code or  as lessee of Government, mortgagee in-possession  and  a person  holding  land  for  his  maintenance.   "Tenant"  as defined  under Section 2(30) is a person who holds  land  on lease and 475 includes  a  person who is deemed to be a tenant  under  the relevant  tenancy law and landlord means a person from  whom land is held on lease by a tenant and includes a person  who is  deemed to be a landlord under the relevant tenancy  law. A  conjoint reading of aforesaid parts of Sections 2  and  3 makes  it clear that in order to compute the holding of  any land  by  the owner it should be shown  that  the  concerned lands are in actual possession of the occupant as owner.  It is not the case of any one that respondent is a tenant.   He is  no  doubt  the owner of the land and  even  under  Sauda Chittis  survey Nos, 12, 13 and 14 have not gone out of  the ownership  of the respondent, as it Is well settled that  an agreement  of sale creates no interest in the transferee  in order  to  divest the transfer or of his  ownership  of  the land.   It is no doubt true that on the  commencement  date, the respondent was not in actual possession and  cultivation of survey Nos. 12, 13 and 14 and, therefore, if Section 3(1) had  stood alone then in the light of Section  2(14),  these lands covered by the agreements of sale dated 1.4.1968 would have got excluded from calculation but the situation changes when we turn to Chapter 3. As we have noted earlier  Section 3(1) itself is subject to the provisions not only of Chapter 2  but also of Chapter 3. When we turn to Chapter 3 we  find that  it deals with restriction on transfer and  acquisition of  land  and consequences of contravention.   This  Chapter ha,-, nothing to do with the actual cultivation of the  land

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by  the owners but despite the fact that they may not be  in actual cultivation of these lands which are transferred,  if these transferred lands are hit by any of the provisions  of Chapter 3, such transaction get ignored and the transferred land will have to be added back to the holding of the  owner for purpose of computing the ceiling and excess lands  owned by  him.   We  may in this connection  profitably  refer  to Section 10(1) with its Explanation as well as subsection (2) thereof which read as under:-               "S. 10.  Consequences of certain transfers and               acquisitions of land.               (1) if -               (a)   any person or a member of a family unit,               after  the  26th day of  September,  1970  but               before  the commencement date,  transfers  any               land  in anticipation of or in order to  avoid               or  defeat  the object of  the  Amending  Act,               1972, or               (b)   any land is transferred in contravention               of section 8 then, in calculating the  ceiling               area which that person, or as the case may  be               the family unit, is entitled to hold, the land               so    transferred   shall   be   taken    into               consideration,  and  the  land  exceeding  the               ceiling area so calculated shall be deemed  to               be  in  excess of the ceiling  area  for  that               holding,   notwithstanding   that   the   land               remaining with him or with the family unit may               not in fact be in excess of the ceiling area.               If by reason of’ such transfer, the holding of               a person, or as the case may be, of the family               unit is less than the area so calculated to be               in  excess of the ceiling area, then  all  the               land of the person, or as the case may be, the               family  unit  shall be deemed  to  be  surplus               land,  and out of the land so transferred  and               in  possession of the transferee (unless  such               land   is  liable  to  forfeiture  under   the               provisions  of  subsection (3),  land  to  the               extent  of such deficiency shall,  subject  to               rules  made in that behalf, also be deemed  to               be  surplus  land,  notwithstanding  that  the               holding  of the transferee may not in fact  be               in excess of the ceiling area.               476               Explanation  - For the purposes of clause  (a)               ’transfer’ has the same meaning as in  section               8.               All  transfers  made  after the  26th  day  of               September  1970  but before  the  commencement                             date,  shall be deemed (unless the contrary  i s               proved)  to have been made in anticipation  of               or  in order to avoid or defeat the object  of               the Amending Act, 1972.               Explanation   For  the purposes of  this  sub-               section,  a transfer shall not be regarded  as               made on or before 26th September, 1970 if  the               document   evidencing  the  transfer  is   not               registered on or before that date or where  it               is  registered  after  that date,  it  is  not               presented  for registration on or  before  the               said date.               (2)   If any land is possessed on or after the               commencement date by a person, or as the  case

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             may be, a family unit in excess of the ceiling               area  or  if as a result  of  acquisition  (by               testamentary  disposition  or  devolution   on               death  or by operation of law) of any land  on               or  after  that date, the total area  of  land               held  by any person or as the case may  be,  a               family  unit,  exceeds the ceiling  area,  the               land so in excess shall be surplus land." 5.   A  mere look at sub-section (1)(a) of Section 10  shows that  if any person or a member of a family unit  after  the 26th day of September 1970, but before the commencement date which is defined by Section 2(6a) as 2.10.75, transfers  any land  in anticipation of or in order to avoid or defeat  the object  of the Amending Act, 1972, then in  calculating  the ceiling  area  which that person or as the case may  be  the family  unit is entitled to hold, the land  so  transferred, shall  be  added  back  into  the  transferors  holding  and accordingly  the holding shall be computed for  arriving  at the  excess  holding  beyond  the  ceiling  area.   As   per Explanation  1  to Section 10 all transfers made  after  the 26th day of September 1970 but before the commencement  date shall be deemed (unless the contrary is proved) to have been made  in anticipation of or in order to avoid or defeat  the object  of  the Amending Act.  This fiction  will  arise  in connection  with  all such transfers  effected  between  the aforesaid  two termini which represent between them  a  grey area.   It is no doubt true that exfacie the  transfers  had taken  place  much  prior  to  26th  September,  1970   and, therefore,  they  would not be covered by the sweep  of  the first Explanation of Section 10, but then follows the second Explanation which states that for the purpose of sub-section (1) of Section 10, a transfer shall not be regarded as  made on   or  before  26th  September,  1970,  if  the   document evidencing the transfer is not registered on or before  that date.   We  are not concerned with the second  part  of  the Explanation  as  it is not the case of the  respondent  that these  agreement  were  registered at any  time  after  26th September, 1970.  It is not in dispute that these agreements of  sale  were unregistered documents.   Therefore,  by  the sweep  of Explanation 11 they will have to be treated to  be transfers  made  after 26th September, 1970 and  would  fall within  the grey area as indicated by Section 10(1)(a)  read with  the first Explanation and would be deemed  unless  the contrary is proved, to have been made in anticipation of  or in  order to avoid or defeat the object of the Amending  Act 1972, as it is not the case of the respondent that they were entered into at any time after the commencement date.   How- ever, Shri Lalit vehemently contended that Explanation 11 to Section  10  cannot  apply for the  simple  reason  that  an agreement of sale is not a transfer as understood by the 477 Transfer of Property Act.  That may be so.  However, as laid down in the Act, for the purpose of clause (a) of Section 10 Transfer has the same meaning as in Section 8, as stated  in the  first Explanation.  Then we turn to Section 8 and  find Explanation  giving meaning of transfer.  It lays down  that "Transfer  means  transfer, whether by way  of  sale,  gift, mortgage with possession, exchange, lease, assignment of law for  maintenance,  surrender of a tenancy or  resumption  of land by a landlord or any other disposition, whether by  act of  parties  made  inter vives or by decree or  order  of  a court,  Tribunal or authority (except where such  decree  or order is passed in a proceeding which is instituted in  such court, tribunal or before such authority before the 26th day of  September 1970) but does not include transfer by way  of

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sale  or otherwise of land for the recovery of land  revenue or  for  sums  recoverable as arrears of  land  revenue,  or acquisition  of land for a public purpose under any law  for the time being in force."                                   (Emphasis supplied) 6.   This Explanation to Section 8 gets engrafted in Section 10(1)(a)  by virtue of first explanation to  Section  10(1). The  Explanation  to Section 8 clearly covers all  types  of transfers  by way of sale, gift, mortgage, exchange,  lease, assignment of land for maintenance, surrender of tenancy  or resumption  of land, which are different forms of  transfers but  the said term also includes any other disposition  made inter  vives or by decree or order of the court.  The  words ’any  other disposition’ would clearly include  transfer  of possession of lands under an agreement of sale by the  owner to  the transferee who is the prospective purchaser as  such transfer  of possession is made by act of parties.  In  fact the  learned  single  Judge has also held that  in  view  of Section  8 read with the first Explanation even  the  second Explanation to Section 10 would get attracted.  However,  in his  view,  before the lands covered  by  such  unregistered agreements arc added back to the holding of the owner it has to  be  established  whether the owner  has  proved  to  the contrary,   namely,   the  transaction  was  not   made   in anticipation of or in order to avoid or defeat the object of the  Amending Act, 1972.  Now it must be kept in  view  that nowhere   before  the  Tribunal  nor  before  the   original authority any such clear cut defence was put forward by  the respondent  nor  had  he made any effort  to  prove  to  the contrary  for  getting  out  of  the  sweep  of  the   first Explanation  to  Section 10(1)(a) read with  Explanation  11 thereof  It  was not his case that these  transactions  were genuine ones which were absolutely needed to be entered into by the owner in favour of the transferees and they had noth- ing  to  do  with the Amending Act.  As  such  was  not  his defence  there  arose no occasion to prove such  a  defence. Ills  contention  was on the contrary solely to  the  effect that  this is not a transfer at all as contemplated  by  the Explanation and that the transferee was protected by Section 53 A of the Transfer of Property Act and that the owner  was not in actual possession of these lands on the  commencement date.  These contentions are totally irrelevant for deciding the applicability to twin Explanations to Section  10(1)(a). Whether  the  transfer is protected by Section 53 A  of  the Transfer  of  Property  Act  or not  is,  not  relevant  for deciding  the applicability of Section IO(  1)(a).   Whether the respondent was in cultivation of these lands or not  was equally  irrelevant when the question of adding back of  the transferred lands in 478 the  holding  comes lip for consideration in  the  light  of Section  10(1)(a).  Consequently, it must be held  that  all these  survey Nos. 12, 13 and 14 measuring 51.0  acres  were transferred   within   the  meaning  of   Section   10(1)(a) Explanation  1 and 1 before 26th September,  1970  otherwise than  by  registered  documents and hence they  were  to  be ignored  and  as  per  the sweep of  the  first  and  second Explanation  to Section 10(1)(a), they were deemed  to  have been made after 26th September 1970 in anticipation of or in order  to  avoid or defeat the object of the  Amending  Act. The  respondent,  as seen earlier, has failed to  plead  and prove to the contrary though amply opportunity was available to the respondent for doing so before both the  authorities, namely,  the first authority as well as Maharashtra  Revenue Tribunal.  The respondent could not have been given a second

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innings in this connection for proving a case never  pleaded by him.  Once that conclusion is reached the result  becomes obvious.   These transfers of land will he treated  to  have been made in anticipation of or in order to avoid or  defeat the object of the Amending Act, 1972, during the grey period after 26th September, 1970 and before the commencement date. Consequently,   as   laid  down  by  Section   10(1)(a)   in calculating  the  area which the transferor is  entitled  to hold  these transferred lands shall be taken into  consider- ation meaning thereby they will be added back to the holding even  though he may not be in actual cultivation thereof  on the  commencement  date  and after adding  these  lands  the excess  ceiling land would have to be determined.   That  is precisely  what is done by the original authority and it  is this  decision  which  was  confirmed  by  the   Maharashtra Tribunal, The said decision of the Maharashtra Tribunal  was perfectly  justified  both in law and on facts.   Hence  the learned  single Judge was in error in interfering  with  the said decision of the Tribunal. 7.   Before parting with the discussion on the main question considered by the Tribunal, we may refer to the  alternative contention  of Shri Lalit. He submitted that the  transferee would  become a deemed tenant under the Bombay Tenancy  Act. In  this  connection, reliance was placed on a  decision  of this  Court  in the case of Dhaya Lal and  Others  v.  Rasul Mohammad  Abdul Rahim, (1963 (3) SCR 1) which has taken  the view that for becoming a deemed tenant a person would be  in lawful  cultivation of somebody’s land and should not be  in any of the excepted categories as indicated in Section 4  of the Tenancy Act.  We fail to appreciate how this  contention can be of any assistance to the respondent.  The transferees have  never claimed that they were deemed tenants under  the agreements  of  sale.   No  orders  of  tenancy  authorities declaring the transferred to be deemed tenants under Section 4  of the Tenancy Act are brought on record.  There was  not even a whisper on the part of the respondent to that  effect before  all the authorities below including the High  Court. Such  a  totally new case requiring investigation  of  facts cannot be permitted to be raised for the first time in these proceedings before us.  Even otherwise, such a contention is totally  foreign to the scope of the present proceedings  In this case we arc not concerned with transferees’ holdings of lands.   We arc concerned with the short question about  the extent  of  the  holding of the agricultural  lands  by  the respondent  on the commencement date, and for deciding  that question,  Section  3(1) read with Section 10 would  be  the only rel- 479 event provisions.  Alleged deemed tenancy of the transferees which  is not in issue in this proceeding has to be  treated to  be  totally  irrelevant.   This  contention,  therefore, stands rejected. 18.In  the  result  this  appeal  succeeds.   The   impugned judgment  of the High Court is quashed and set  aside.   The writ petition of the respondent will stand dismissed and the order  of the Maharashtra Tribunal dated 23.4.76 in  Ceiling Appeal No. 343 of 1976 as confirming the order passed by the Surplus Land Determination Tribunal No.3, Darwha in  Ceiling Case No. 221/60-A (5) will stand restored.  In the facts and circumstances  of  the case, there will be no  order  as  to costs throughout. 482