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PETITIONER: M.K. HARIHAR IYER

       Vs.

RESPONDENT: AUTHORISED OFFICER LAND REFORMS, TIRUNELVELI

DATE OF JUDGMENT14/02/1990

BENCH: MUKHARJI, SABYASACHI (CJ) BENCH: MUKHARJI, SABYASACHI (CJ) THOMMEN, T.K. (J) AHMADI, A.M. (J)

CITATION:  1990 AIR  907            1990 SCR  (1) 358  1990 SCC  Supl.  182     JT 1990 (1)   222  1990 SCALE  (1)191

ACT:     Tamilnadu  Land Reforras (Fixation of Ceiling  on  Land) Act  1961--Sections  3(2),  3(31),  5(2),  10(B),  21A,  22, 23(vii)--Whether ’affected person’ can avail of Section  21A in respect of proceedings commenced prior to the 1970 Amend- ing Act.

HEADNOTE:     The  appellant  land-owner held lands in  excess  of  30 standard acres as on 6.4.1960. He filed a return as required by the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act,  1961  and an enquiry was initiated by  the  Authorised Officer concerned under Section 9(2)(b) of the Act.  Several objections  raised  by the appellant were rejected  and  the Authorised Officer came to the conclusion that the family of the  appellant could be reckoned to be of five  members  be- tween  6.4.1960  and 2.10.1962 and thus  the  appellant  was entitled to 30 standard acres; his wife and daughter however could hold 10 and 7.71 standard acres respectively as strid- hana. The appellant was asked to elect which lands he wished to  be included in his holding and state which lands  should be treated as surplus. Feeling aggrieved by the said  deter- mination,  the appellant preferred an appeal  under  Section 78(1) to the Land Tribunal. The appellant contended (i) that the Authorised Officer had wrongly included the lands of his minor sons, unmarried daughter and wife gifted to them  long before  1960;  (ii)  that subsequent to the  filing  of  the appeal,  the  Act was amended as a consequence  whereof  his rights and liabilities with regard to the fixation of  ceil- ing area were required to be worked out on the basis of  the revised  date  of commencement of the  Act  i.e.  15.2.1970; notified  date  being 2.10.1970. It was also  urged  by  the appellant  that the lands of his eldest  son  Laxminarayanan could  not  be  included in his holding.  On  those  grounds amongst others relating to the effect of subsequent transac- tions  the  appellant  prayed that the matter  ought  to  be remanded to the Authorised Tribunal for a de novo considera- tion.  The appellant authority rejected all the  contentions and dismissed the appeal, whereupon the appellant  preferred a  revision  application before the High Court.  Before  the

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High  Court his plea regarding subsequent  transactions  was confined  to  the documents executed between  15th  February 1970, the date of commencement of the 359 Act,  and 2nd October 1970, the notified  date;  contentions regarding  other  transactions were not  pressed.  The  High Court  accepted this contention and took the view that  even in  respect  of  proceedings which commenced  prior  to  the coming  into force of the Amending Act, an  affected  person can take advantage of the provisions contained In Section  2 IA. The High Court held that while Section 2 of the Amending Act reduced the ceiling area to half, benefit was  conferred by Section 21A and hence both the provisions had to be  read together.  On that reasoning the High Court opined that  the three documents relating to subsequent transactions executed between  the said date, could not be ignored in  fixing  the ceiling  area  unless it was found that the  documents  were executed to defeat the provisions of the Act, in which  case the  transactions may be declared void under Section  22  of the Act. The High Court accordingly directed the  Authorised Officer to make further inquiries regarding the three trans- actions  in question and pass appropriate orders.  The  High Court  rejected the other contentions. The  appellant  being aggrieved  with the rejection of other points raised  before the High Court has preferred this appeal by special leave. Dismissing the appeal, this Court,     HELD:  The  proceedings  in this case  had  started  and concluded  before  the Authorised Officer  long  before  the Amending Act saw the light of the day. Under Section 3(1) of the  Amending  Act, any action taken  (including  any  order made,  decision or direction given, proceeding taken,  etc.) under  the provisions of Act before the date of  publication of the Amending Act, can be continued and enforced after the said date in accordance with the provisions of the Act as if the  Amending  Act  had not been passed.  This  is  however, subject  to subsection (2) which carves out an exception  to sub-section (1) insofar as the reduction of the ceiling area from  30 standard acres to 15 standard acres  is  concerned. [367E-G]     B.K.V.  Radhamani  Ammal  v.  Authorised  Officer,  Land Reforms, Coimbatore, [1985] 2 SCC 46, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  695  of 1975.     From  the  Judgment  and Order dated  21.3.1974  of  the Madras  High  Court in Civil Revision Petition No.  2598  of 1972. G. Viswanatha lyer and N. Sudhakar for the Appellant. 360 V. Krishnamurthy for the Respondent. The Judgment of the Court was delivered by     AHMADI, J. This appeal by special leave is filed against the  judgment and order of the High Court of Madras  whereby it remitted the matter to the Authorised Officer for dispos- al  in accordance with law and in the light of the  observa- tions made therein. The facts giving rise to this appeal are as under:     The  appellant-land  owner  held  lands  in  Kanyakumari District  in  excess of 30 standard acres as on  6th  April, 1960.  He  filed a return in Form No. 2 as required  by  the Tamil  Nadu Land Reforms (Fixation of Ceiling on Land)  Act, 1961  (Act  58 of 1961), hereinafter called  ’the  Act’.  An

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enquiry  was initiated by the Authorised Officer,  Land  Re- forms,  under  Section  9(2)(b) of the  Act.  The  appellant raised  several  objections  but they  were  overruled.  The Authorised Officer came to the conclusion that the family of the  appellant could be reckoned to be of five  members  be- tween 6th April, 1960 and 2nd October, 1962 and  accordingly the  land owner was entitled to 30 standard acres while  his wife  and  daughter could hold 10 and  7.71  standard  acres respectively as stridhana lands. The appellant was  directed to state which lands he wished to be included in his holding and identify the lands which fell surplus, failing which the Authorised  Officer said he would be constrained  to  select the surplus lands. The appellant was given five days time to make the option.     Feeling  aggrieved  by the decision  of  the  Authorised Officer,  the  appellant preferred an appeal  under  Section 78(1)  to the Lands Tribunal. The appellant complained  that the  Authorised Officer had wrongly added the lands  of  his minor sons, unmarried daughter and wife gifted to them  long before  1960  in his holdings for determining if  his  total holdings exceeded the ceiling limit fixed under Section 5(2) of  the  Act. According to him the lands covered  under  the registered  gift deed ought to have been excluded  from  his holding  under  the Explanation to Section 3(14) as  a  gift stood  on par with a partition. As a limb of the same  argu- ment  the appellant contended that subsequent to the  filing of the appeal, the Act was drastically amended by Tamil Nadu Land  Reforms (Reduction of Ceiling on Land) Act, 1970  (Act 17 of 1970), hereinafter called ’the Amending Act’,  whereby under  Section 3(2), ’the date of commencement of this  Act’ came  to be fixed as 15th February, 1970 and  the  ’notified date’  came to be fixed as 2nd October, 1970  under  Section 3(31) of the Act. Consequently, argued 361 the appellant, his rights and liabilities with regard to the fixation  of ceiling area were required to be worked out  on the  basis of the state of affairs existing on  the  revised date  of commencement of the Act i.e. 15th  February,  1970, fixed by virtue of the amendment in the Act. He also  relied on the fact that his eldest son who was a minor on th April, 1968 had attained majority on 1st January, 1970 (in the High Court  judgment the date is 1st October, 1970)  i.e.  before the commencement of the Act on 15th February, 1970, and also before  the notified date i.e. 2nd October, 1970, and  hence his land could not be included in his holding as was done by the Authorised Officer. It was also pointed out that his son had  created  a trust in respect of a portion  of  the  land which  would  be  exempt from the operation of  the  Act  by virtue  of Section 73(2)(b) of the Act. It  was,  therefore, submitted that his eldest son Laxminarayanan was a necessary party  and the proper course would be to set aside  the  im- pugned order of the Authorised Officer and remand the matter for  a  de novo consideration after notice to his  son.  The second submission made was that on 10th April, 1968 when the impugned  order was made the appellant’s wife was  pregnant, she  had  since delivered a daughter and had gifted  to  her 5.71  acres of Vadaseri land on 1st October, 1970 and  later an additional 5.06 acres of the land from the same  village, which  developments had to be taken into account  as  subse- quent  events touching the determination of the  appellant’s ceiling area. Thirdly, it was pointed out that the appellant had transferred 2 acres 48 cents of S. No. 2221, 0.82  cents of S. No. 2208-A and 1 acre 66 cents of Vadaseri lands to  a third  party  on 26th April, 1970 for services  rendered  to him.  Similarly  a portion of S. No. 2224  admeasuring  0.31

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cents  was  sold to yet another third party on  23rd  April, 1969 for valuable consideration and it was necessary to give effect  to these transactions which were subsequent  to  the impugned  order.  It was lastly contended by  the  appellant that  his property bearing S. Nos. 1387-A and  1363-A  which was subject to mortgage had to be sold on 1st July, 1968,  a development  subsequent to the impugned order which too  had to  be  noticed in fixing the ceiling area.  These  transac- tions,  it  was said, were protected by Section 21A  of  the Act. It was, therefore, submitted that since an appeal was a continuation  of the original proceedings it was  obligatory on the part of the appellate authority to examine the impact of these subsequent developments and refix the ceiling area. The  appellant,  however, contended that  as  third  parties would have to be heard before deciding the issue, the proper course was to direct the Authorised Officer to consider  the matter  afresh  in  its entirety.  The  appellate  authority negatived all the contentions and dismissed the appeal  with costs. 362     Thereupon,  the appellant approached the High  Court  by way  of  a revision application. Before the High  Court  the contention  in  regard to the  subsequent  transactions  was confined  to the documents executed between  15th  February, 1970, the date of commencement of the Act, and 2nd  October, 1970,  the notified date. That included the  two  settlement deeds  dated 1st October, 1970 made in favour of the  unmar- ried  daughters  and the sale deed dated  26th  April,  1970 executed in favour of a third party. The contention was  not pressed in respect of the transaction evidenced by the  sale deed dated 23rd April, 1969 in favour of a third party. This contention found favour with the High Court. The High  Court took the view, relying on an earlier Division Bench judgment in  C.R.P.  No. 1197 of 1971 (Fakir Mohmad v. The  State  of Tamil  Nadu),  that "even in respect  of  proceedings  which commenced  prior  to the coming into force of  the  Amending Act, an affected person can take advantage of the provisions contained in Section 21A". It was held that while Section  2 of the Amending Act reduced the ceiling area to half,  bene- fit was conferred by Section 2 IA and hence both the  provi- sions had to be read together. It was, therefore, held  that the  three  documents  could not be ignored  in  fixing  the ceiling  area  unless it is found that  the  documents  were executed to defeat the provisions of the Act, in which  case the  transactions may be declared void under Section  22  of the Act. In this view of the matter, the High Court directed the  Authorised Officer to make further inquiries  regarding the said three transactions and pass appropriate orders. The High Court, however, rejected the rest of the contentions by which  exclusion  was  sought, viz., (,i)  on  the  conjoint reading  of  Section 10(8) and Section 3(14) insofar  as  it concerned Laxmmarayanan as a member of the appellant’s fami- ly; (ii) in regard to lands which were locked in litigation; (iii)  in regard to lands in the possession  of  mortgagees; and  (iv) the lands which are covered under Section  73(vii) of  the  Act.  In this view that the High  Court  took,  the matter  was remitted to the Authorised Officer in regard  to the aforesaid three transactions.     The appellant, feeling aggrieved by the rejection of his other  contentions  by the High Court,  has  preferred  this appeal by special leave. The main grievance of the appellant is  that the High Court fell into an error in  limiting  the benefit  of Section 21 A to three transactions only  and  by directing  an enquiry under Section 22 overlooking the  fact that  it was not subject to Section 22. He further  contends

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that  the High Court was wrong in thinking that the  conten- tion  in regard to the sale deed dated 22nd April, 1969  was not pressed. In brief the contention is that the High  Court failed to appreciate the impact of the 363 amendments introduced by the Amending Act on the two settle- ments of 1st October, 1970 and the sale deed of 26th  April, 1970 and erred in holding that the relief under Section  21A must be determined after an enquiry under Section 22 of  the Act. This was the main thrust of the submissions made at the hearing of this appeal.     The  Act (Act 58 of 1961) was notified on  2nd  October, 1962  but  the  date of its commencement was  fixed  as  6th April, 1960. The present proceedings had commenced under the said  Act. Th Act was amended by Act 17 of 1970 whereby  the ceiling area was reduced from 30 standard acres for a family not exceeding five member to 15 standard acres and the  date of  commencement  of the Act was shifted to  15th  February, 1970  and the notified date to 2nd October, 1970. There  can be  no  doubt that after the passing of Act 17 of  1970  the family’s holding had to be determined with reference to  the notified date i.e. 2nd October, 1970. See: B.K.V.  Radhamani Ammal  v.  Authorised  Officer,  Land  Reforms,  Coimbatore, [1985] 2 SCC 46.     The  Act  was  enacted to provide for  the  fixation  of ceiling on agricultural land holdings and matters  connected therewith.  Section 5 fixes the ceiling area in the case  of every family consisting of not more than five members at  15 standard acres after the amendment made in the provision  by virtue  of  Section 2(2)(a) of the Amending Act.  Section  7 lays  down that on and from the date of commencement of  the Act,  no person shall, except as otherwise provided  by  the Act, be entitled to hold land in excess of the ceiling area. The family of the appellant consisted of himself, his  wife, two  minor  sons and an unmarried daughter at  the  date  of commencement  of  the Act and on the notified date  as  they stood  before the Amending Act. One son had become  a  major w.e.f.  1st  January, 1970. In the High Court  judgment  the date  is stated to be 1st October, 1970. That will not  make any difference so far as the submission is concerned.     We  may first notice Sections 21A and 22 of the  Act  as amended by the Amending Act. They read as under: "21A. Notwithstanding anything contained in Section 22 or in any other provision of this Act and in any other law for the time being in force, where, after the 15th day of  February, 1970 but before the 2nd day of October, 1970. (a) any person has effected by means of a registered instru- ment a partition of his holding or part thereof; or 364 (b)  any parent or grand-parent has voluntarily  transferred any  land  on account of natural love and affection  to  any minor son, unmarried daughter, minor grand-son, or unmarried grand-daughter in the male line; or (c) any person has voluntarily transferred any land (i) to any educational institution; or (ii) hospital. of a public nature solely for the purposes of such  institu- tion or hospital; such partition or transfer shall be valid:           Provided  that  in the case of  transfer  to  such educational  institution or hospital, the  land  transferred absolutely  vests  in the institution or  hospital  and  the entire income from such land is appropriated for the  insti- tution or hospital." "22. Where, on or after the date of the commencement of this

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Act,  but  before the notified date, any person  has  trans- ferred  any land held by him by sale, gift (other than  gift made  in contemplation of death), exchange, surrender,  set- tlement or in any other manner whatsoever except by  bequest or has effected a partition of his holding or part  thereof, the authorised officer within whose jurisdiction such  land, holding  or  the major part thereof is situated  may,  after notice  to  such person and other persons affected  by  such transfer  or partition and after such enquiry as  he  thinks fit to make, declare the transfer or partition to be void if he finds that the transfer or the partition, as the case may be, defeats any of the provisions of this Act." Section 21A begins with a non-obstante clause and limits its application  to partition or transfer mentioned  in  clauses (a)  to  (c) effected between 15th February,  1970  and  2nd October, 1970. The settlement deeds, both dated 1st October, 1970  and the sale deed dated 26th April, 1970  fall  within the  two  termini points fixed by Section 21A but  the  sale deed dated 23rd April, 1969 is clearly outside the scope  of Section  21A and therefore it seems the learned counsel  for the  appellant in the High Court rightly did not  press  the claim in regard to the 365 land  covered under the said document. However, the  learned counsel  for the appellant before us pointed out that  while the  High  Court  rightly came to the  conclusion  that  the appellant was entitled to the benefit of Section 21A insofar as  the  two settlement deeds of 1st October, 1970  and  the sale deed of 26th April, 1970 are concerned, it fell into an error in holding--"However, if those transfers are meant  to defeat any of the provisions of the Act, then the Authorised Officer  may  declare the said transfers to  be  void  under Section  22  of the Act"--thereby  totally  overlooking  the opening words of Section 2 IA which are intended to override Section 22. The further observations of the High Court based on  decision in Naganatha Ayyar v. Authorised Officer,  [197 1]1 M.L.J. 274 make it clear that the High Court misread the observations of Ramanujam, J. when it said: "Ramanujam,  J.  pointed  out that  all  transfers  effected between the date of commencement of the Act and the notified date  cannot be declared to be void as defeating the  provi- sions  of the Act. It has been pointed out that only if  the transfers  are  really not transfers but  sham  and  nominal transactions or bogus transactions, they would be  defeating the  provisions  of the Act and that only then they  can  be declared to be void under Section 22 of the Act". The  above  observations  are somewhat  confusing.  A  sham, nominal or bogus document may not necessarily be one intend- ed to defeat any provision of the Act. A partition or trans- fer  evidenced  by such a document would be of no  avail  to seek  the benefit of Section 21A regardless of  Section  22. Section  21A, which begins with  the  words--notwithstanding anything contained in Section 22--clearly overrides  Section 22 and therefore the transactions referred to in Section 21A cannot  be the subject-matter of enquiry under  Section  22. Section  21A  refers to only three types of  transfers  viz. ,(i)  transfer  of holding by a registered  partition  deed; (ii) transfer of land to specified individuals on account of natural love and affection; and (iii) transfer in favour  of an  educational institution or hospital of a  public  nature solely  for  the purposes of such  institution  or  hospital provided the transferred land vests absolutely in the insti- tution  or hospital and the entire income from such land  is appropriated  for the institution or hospital.  Even  though the  transactions referred to in Section 21A cannot  be  de-

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clared void under Section 22 as defeating any of the  provi- sions  of the Act, the Authorised Officer would be  entitled dehors Section 22 of the Act, to find out if the instruments of transfer or partition though answering the description of transactions under Section 21A, are in fact genuine 366 transactions and not sham, nominal or bogus ones.  Similarly the Authorised Officer would be entitled to determine if the instruments of transfer even if genuine answer the  descrip- tion  of documents referred to in Section 21 A, and if  not, he would be justified in invoking Section 22 of the Act.  To put  it  differently  when any party seeks  the  benefit  of Section  21A, he must show, if a doubt arises, that (i)  the instrument  on  which he relies is a genuine one and  not  a sham, nominal or bogus one and (ii) it answers the  descrip- tion  of  the documents referred to by Section 21A.  If  the document is not found to be genuine, the Authorised  Officer will not act on it, if it is genuine, the Authorised Officer will  determine if it is one referred to in Section 21A  and if  not  he will resort to Section 22 of the  Act.  On  this consideration the sale deed dated 26th April, 1970 in favour of  a third party clearly falls outside the purview of  Sec- tion  21A  and the Authorised Officer will  be  entitled  to embark  on  an enquiry under Section 22 of the Act,  if  the instrument  is otherwise genuine. In regard to the two  set- tlements  in favour of unmarried daughters also  the  Autho- rised  Officer  will  have to consider  if  the  settlements answer  the  description  of the documents  referred  to  in Section  21A  even if they are genuine. If he  answers  both these  points in the affirmative he need not test the  docu- ments on the additional requirement of Section 22 but if  he comes  to  the  conclusion that the documents  do  not  fall within  Section  21A,  he would be required  to  test  their validity on the touchstone of Section 22 of the Act. We have thought  it  necessary to clearly define the  scope  of  the enquiry before the Authorised Officer on remand to clear the doubt,  if  any, arising from the observations of  the  High Court and to avoid unnecessary complications.     The next contention urged by the learned counsel for the appellant  is based on the plain language of  Section  10(2) read with the definition of ’family’ in Section 3(14) of the Act.  The appellant’s son Laxminarayanan is stated  to  have attained majority on 1st January, 1970, i.e. before the date of  commencement of the Act on 15th February, 1970  and  the notified date of 2nd October, 1970. Even if the date  stated by  the High Court is correct, he attained  majority  before 2nd October, 1970. On his attaining majority he ceased to be a member of the appellant’s family. Under Section 10(2), the Authorised  Officer  has  to take into  account  only  those members  of the family as are covered by the  definition  of Section 3(14) of the Act. Although Laxminarayan was undoubt- edly a member of the appellant’s family on the date on which the  Authorised Officer first determined the  ceiling  area, the submission of the appellant’s counsel is that he  having ceased  to  be  a minor son, he cannot be  included  in  the appellant’s family when 367 the  Authorised  Officer  reconsiders the  ceiling  area  on remand. The High Court negatived this contention and in  our opinion  rightly.  The submission  overlooks  the  provision contained in Section 3 of the Amending Act by which the date of  commencement of the Act and the notified date  were  re- vised. Section 3 reads as under: "Saving-- (1) Subject to the provisions of sub-section (2), any action

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taken (including any order made, notification issued,  deci- sion  or  direction given, proceeding  taken,  liability  or penalty  incurred and punishment awarded) under  the  provi- sions  of the Principal Act before the date of the  publica- tion  of  this Act in the Fort St. George  Gazette,  may  be continued or enforced after the said date in accordance with the  provisions of the Principal Act as if this Act had  not been passed. (2)  Nothing in sub-section (1) shall be deemed  to  entitle any  person  whether or not such person is a  party  to  any proceeding  mentioned in sub-section (1), to hold after  the 15th  day  of February 1970, land in excess of  the  ceiling area  under the Principal Act as modified by Section  2  and the provisions of the Principal Act as modified by Section shall, after the said date, apply to such person." The  proceedings  in  this case had  started  and  concluded before  the Authorised Officer long before the Amending  Act saw the light of the day. Under Section 3(1) of the Amending Act,  any action taking (including any order made,  decision or direction given, proceeding taken, etc.) under the provi- sions of Act before the date of publication, of the Amending Act,  can be continued and enforced after the said  date  in accordance with the provisions of the Act as if the Amending Act  had not been passed. This is, however, subject to  sub- section (2) which carves out an exception to sub-section (1) insofar as the reduction of the ceiling area from 30  stand- ard acres to 15 standard acres is concerned. The High  Court was, therefore, right in rejecting this contention.     Lastly, it was submitted that lands which were converted into orchards of topes before 1st July, 1959 are exempt from the  provisions of the Act by virtue of Section  73(vii)  of the Act. The High Court has rejected this contention on  the following finding: 368 "In  the present case certain lands are claimed to be  topes and  exemption is claimed regarding the same. But  there  is nothing to show that the said lands had been converted  into topes prior to first day of July, 1959. Since the factual foundation is not laid we cannot entertain this contention.     These were the only contentions urged before us. In view of  the above discussion we see no merit in this appeal  and dismiss the same with costs. Y.  Lal                                        Appeal   dis- missed. 369