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PETITIONER: UTTAM CHAND

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT14/02/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1980 AIR  806            1980 SCR  (2)1048  1980 SCC  (2) 292

ACT:      Maharashtra Agricultural Land (Ceiling of Holdings) Act 1961, Sections  2(11), 2(22),  8, 10 and 12-Scope-Only those transfers made at any time on or after 4-8-1959 would be hit by the Act.

HEADNOTE:      The appellant  in his  return filed  before the  Deputy Collector had  shown the total lands in his possession to be 370 acres  and 34 gunthas. Proceedings under the Maharashtra Agricultural Lands  (Ceiling of  Holdings)  Act,  1961  were taken against  him in  order to determine whether the return filed was  correct or  not. It  was alleged by the appellant that some  time in  the year  1956  there  was  a  partition between the  appellant and  his nephews as a result of which his family  got 202 acres of land. The appellant had sold 51 acres of  land to  other persons  before the  Act came  into force and  that he gave some land to his adopted son in lieu of the  latter’s share  and that  the adopted son thereafter gave 93.25  acres of  land to  his mother  under Civil Court decree. All  these transactions  took place some time in the year 1956.  The Collector  after examining  the return found that the  total land owned by the appellant was 118 acres 36 gunthas and  the excess  was only  4 acres  36 gunthas which could be  taken over  under the Act. The Commissioner called for the  records and  interfered suo moto. After making some enquiry, he  held that the land declared by the appellant in his return  far exceeded  the ceiling limit and in computing the total  lands owned by the appellant he took into account even the  lands which  had been  given by the adopted son to his mother, the wife of the appellant.      The appellant  filed a  writ petition against the order of the  Commissioner in  the High  Court  which  refused  to interfere on  the ground  that the  transfer of  the land in favour of  the adopted sons was held to be collusive as also the decree.      In the appeal to this Court, it was contended on behalf of the  appellant that under the provisions of the Act, land which was  received by his wife from the adopted son was her personal property  and could  not be included in the ceiling of  the   appellant  and   that  the   Commissioner  had  no jurisdiction to add that land and treat the same as the land

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of the  appellant and  to set  aside the order of the Deputy Collector. On behalf of the respondent it was contended that the word  ’person’ defined  in  section  2(22)  of  the  Act includes family  and that  ’family’ as  defined  in  section 2(11) includes, a Hindu Undivided family, and in the case of other persons,  a group  or unit,  the members  of which  by custom or  usage are  joint in  an estate  or possession  or residence.      Allowing the appeal. ^      HELD: 1. The judgment of the High Court is set aside as also that  of the  Commissioner and that the judgment of the Deputy Collector restored. [1052B] 1049      2. The Act clearly exempts the land which may have been acquired or transferred prior to 4-8-1959. Section 8, 10 and 12 which  deal with  the subject  clearly enjoin  that  only those transfers  would be  hit by  the Act which are made at any time on or after 4-8-1959. [1051A]      3. There was neither any pleading nor any case made out either before  the  Deputy  Collector  or  even  before  the Commissioner to  indicate that  the transfer  of the land in favour of  the adopted  son and  the transfer by the adopted son in  favour of  his mother  were collusive  or tainted by fraud. Both  these transactions  took place  as far  back as 1956 that  is to say 5 years before the Act came into force. [1050G-H]      4. The  High Court  was not justified in presuming that the transfer  made by the appellant in favour of his adopted son towards his share and the transfer by the adopted son to his mother  was either  collusive or  fraudulent. There  was neither any  foundation in the pleadings nor any evidence to support this conjecture of the High Court. [1051A-C]      5. Sections  2(11),  2(12)  are  of  no  assistance  as Section 6  takes within  its fold  lands  belonging  to  the owner, or  his family  as a  single unit and is not meant to cover the separate or individual property of a member of the family which is self-acquired property and cannot be clubbed together with  the land of the owner or his family. To begin with, the Act merely intended to include the land within the ceiling limits  of a  person or his family which belonged to such a  person or  persons having  different shares  in that property. That  is why all transfers made prior to 1959 were expressly exempted from the operation of the Act. [1051E-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1415 of 1970.      From the Judgment and Order dated 30-9-69 of the Bombay High Court in S.C.A. No. 1512 of 1967.      V. M.  Tarkunde, R.  Satish, V.  K. Pandita  and E.  C. Agarwala for the Appellant.      M. C.  Bhandare, C. K. Ratnaparkhi and M. N. Shroff for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALL  J. This  appeal by  certificate is  directed against a  judgment of the Bombay High Court dated 30-9-1969 dismissing the  writ petition filed by the appellant against an order of the Commissioner.      The facts  of the  case lie within a narrow compass and may be stated as follows:      Proceedings  under   Maharashtra   Agricultural   Lands

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(Ceiling of  Holdings) Maharashtra  Act No.  XXVII 1961  and (hereinafter to  be referred  to as  the Act) which received the assent of the President on 1050 16-6-1961 were  taken against  the  appellant  in  order  to determine whether  the return  filed by  the appellant under the provisions  of the Act was correct or not. In his return filed before  the Deputy  Collector, the appellant had shown the total  lands to  be 370  acres and  34 gunthas.  It  was however alleged  by the appellant that some time in the year 1956, there  was a  partition between  the appellant and his nephews as  a result  of which  his family  got 202 acres of land. The  appellant had  sold 51  acres of  land  to  other persons before  the  Act  came  into  force.  The  appellant further alleged  that he  gave some lands to his adopted son in lieu  of the  latter’s share.  The adopted  son Nemichand thereafter gave  93.25 acres  of land  to his mother under a civil Court  decree. All  these transactions took place some time in  the year  1956. The  Collector after  examining the return found  that the total land owned by the appellant was 118 acres  36 gunthas  and the  excess was  only 4  acres 36 gunthas which could be taken over under the Act. Against the order of  the Deputy  Collector, the Commissioner appears to have called  for the  records and  interfered suo  moto  and after making some enquiry, he held that the land declared by the appellant  in his return far-exceeded the ceiling limit. In computing  the total  lands owned  by the  appellant, the Commissioner appears  to have  taken into  account even that land which  had been  given by  Nemichand to his mother, the wife of  the appellant.  Against this order of Commissioner, the appellant  filed a  writ petition  before the High Court which was  dismissed as a result of which an application was filed for  grant of  certificate for  appeal to  this  Court which was granted. Hence this Appeal.      The short  point taken  by Mr.  V. M. Tarkunde, learned counsel for  the appellant  is that  under the provisions of the Act,  land which  was received  by  his  wife  from  the adopted son  was her  personal property  and  could  not  be included in  the ceiling  of  the  appellant  and  that  the Commissioner therefore  had no jurisdiction to add that land and treat  the same as the land of the appellant and proceed to set  said the  order of  the Deputy  Collector. The  High Court in a short judgment refused to interfere mainly on the ground that the transfer of the land in favour of Nemichand, the adopted  son, was  held to  be  collusive  as  also  the decree. There was neither any pleading nor any case made out either before  the  Deputy  Collector  or  even  before  the Commissioner to  indicate that  the transfer of the lands in favour of  the adopted  son and the transfer of Nemichand in favour of  his mother were collusive or tainted by fraud. In fact both these transactions took place as far back as 1956, that is  to say,  five years before the Act came into force. Even the Act clearly exempts lands which may 1051 have been  acquired or transferred prior to 4-8-1959. Ss. 8, 10 and  12 which  deal with  the subject clearly enjoin that only those  transfers would be hit by the Act which are made at any  time on  or after  4-8-1959. As  both the  transfers mentioned above  were prior  to 4-8-1959, it is obvious that they fell  completely outside the ambit of the provisions of the Act.  The High Court was thus not justified in presuming that the  transfer made  by the  appellant in  favour of his adopted son  towards his  share  and  the  transfer  by  the adopted son Nemichand to his mother were either collusive or fraudulent.  There   was  neither   any  foundation  in  the

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pleadings nor any evidence to support this conjecture of the High Court.      Mr.  Bhandare,   learned  Counsel   appearing  for  the respondent submitted  that the word ’person’ defined in Sec. 2(22) of  the Act  includes  family  and  that  ’family’  as defined in Sec. 2(11) of the Act includes, a Hindu undivided family, and  in the  case of  other persons, a group or unit the members  of which by custom or usage are joint in estate or possession  or residence.  Reliance was  also  placed  on Section 6 of the Act which runs thus:           "Where a  family unit  consists of  members  which      exceed  five  in  number,  the  family  unit  shall  be      entitled to hold land exceeding the ceiling area to the      extent of one-fifth of the ceiling area for each member      in excess  of five,  so however  that the total holding      shall not  exceed twice  the ceiling  area, and in such      case, in  relation to  the holding of such family unit,      such area shall be deemed to be the ceiling area."      These sections  are of  no assistance to the Respondent because Section  6 takes  within its fold lands belonging to the owner,  or his  family as a single unit and is not meant to cover  the separate or individual property of a member of the family  which is  self-acquired property  and cannot  be clubbed together  with land of owner or his family. To begin with the  Act merely  intended to  include land  with in the ceiling limit  of a  person or  his family which belonged to such a  person or  persons having  different shares  in that property. That  is why all transfers made prior to 1959 were expressly exempted  from  the  operation  of  the  Act.  The arguments advanced  by the  respondent appear  to have found favour with  the Commissioner,  but it was legally erroneous as indicated  above. In  these circumstances, therefore, the more important  fact to be determined was whether or not any transfer that  has been  made by  the person  concerned  was prior to  or after 4-8-1959. If the transfer was prior to 4- 8-1959 then  the provisions  of the  Act would  not apply at all. In the instant case, both the 1052 transfers being  three years  prior to  the  date  mentioned above, the  Act would  not apply  to the  appellant, and the Commissioner and  the High  Court therefore erred in holding that the lands transferred by Nemichand to his mother should be included  in the  total area  of the  land owned  by  the appellant.      We,  therefore,   allow  this  Appeal,  set  aside  the judgment of the High Court and also that of the Commissioner and restore  the judgment  of the  Deputy Collector.  In the special circumstances, there shall be no orders as to costs. The appeal is accordingly allowed. N.K.A.                                       Appeal allowed. 1053