Bhimashankar and others vs State of Maharashtra

C.S. Dharmadhikari, J.—The petitioners in this case are the residents of Warwand, tahsil Chikhali, district Buldana. The petitioner No. 1 filed a return u/s 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, referred to hereinafter as the Ceiling Act, before the Surplus Land Determination Tribunal, Chikhali. In the said return the petitioner No. 1 raised various contentions so far as the transfers of the land effected in the intervening period are concerned. In this writ petition we are only concerned with the two sale-deeds of survey number 184, area 36 acres 28 gunthas of village Warwand. Even according to the petitioners, by virtue of a partition which took place earlier, petitioner No. 3 Parvatibai was the owner of the said field. By virtue of two sale-deeds dated 19-4-1973 the said land was sold to one Gangadhar Murgappa and Kaduba and Suresh. According to the petitioners, these transfers were made with a view to pay the debts incurred for the marriage of their daughter as well as for payment of debts of Co-operative Bank, Land Mortgage Bank etc. In support of their case, the petitioners adduced oral evidence and also produced before the Surplus Land Determination Tribunal various receipts.

After taking into consideration the said evidence, the learned Tribunal came to the conclusion that the holder was indebted and he had to pay the dues of Co-operative Bank and Land Development Bank etc. However, according to the learned Member of the Tribunal, the sale was merely justified to the extent of 17 acres 34 gunthas land from survey number 184 and, therefore, Surplus Land Tribunal directed that the said 17 acres 34 gunthas will be excluded while calculating the ceiling area of the holder. The Tribunal also negatived other contentions raised on behalf of the landholder and ultimately had delimited as surplus an area of 32 acres 6 gunthas of land.

The petitioners thereafter filed an appeal before the Maharashtra Revenue Tribunal. In the memo of appeal as many as 14 grounds were raised challenging the order of the Surplus Land Determination Tribunal. So far as the sale of land, namely, survey number 184, was concerned, it was contended by the petitioners that the field was sold as there was compelling necessity and it was not sold in order to avoid or defeat the object of the Ceiling Act. According to the petitioners, they were heavily indebted and the dues and the loans of the Co-operative and Land Development Banks, Panchayat Samiti and other Government dues were outstanding against them. According to them, they had also incurred debts to the tune of Rs. 8,000 for the marriage of their daughter which took place in the year 1970. Civil Suits for recovery of Rs. 3,700 and Rs. 4,400 were also pending against petitioner No. 1 Bhima-Shankar. According to them, all the relevant papers were filed before the Surplus Land Determination Tribunal to establish their need in this behalf. The receipts in that behalf were also filed. They further contended that the evidence on record clearly indicated that the said transfers were bona fide and, therefore, the Surplus Land Determination Tribunal ought to have excluded them from their holding.

While dealing with this contention, the learned Member of the Maharashtra Revenue Tribunal found that the Surplus Land Determination Tribunal has given detailed reasons for holding as invalid the sales of these survey numbers. The reasons given by the Surplus Land Determination Tribunal, according to the Maharashtra Revenue Tribunal, arc very sound. In para 5 of the order passed by the Maharashtra Revenue Tribunal, it observed asunder:

The main attack of the surplus holder was regarding the sales of Survey No. 183/2, 114, 115(1 and 184, area 25 acres 18 gunthas The learned Surplus Land Determination Tribunal has given very detailed reasons for holding as invalid the sales of these survey numbers. The reasons given by the learned Surplus Land Determination Tribunal are very sound and this arguments are very well reasoned. After giving very sufficient reason for holding that these sales are invalid, he did not give relief to the surplus holder by holding that the sale of 17.34 acres of field survey No. 184 was justified. Thus out of the 4 sales of four survey numbers, covering an area of 43 12 acres, the surplus holder has been allowed the sale of 17.34 acres as valid. The order would show that the learned Surplus Land Determination Tribunal has applied its mind absolutely and thoroughly to the facts of the case and sales of survey numbers which have taken place after the prohibited period, I have no reason to interfere in the observations of the learned Surplus Land Determination Tribunal on these sales.

This is the whole reasoning given by the learned Member of the Maharashtra Revenue Tribunal. From it, it is quite obvious that the learned Member of the Maharashtra Revenue Tribunal thought that the sales were invalid. Obviously this is not the correct position. The sales in this case were effected on 19-4-1973 and were not covered by section 8 of the Ceiling Act, though these sales are in terms covered by Explanation to sub-section (1) of section 10. In view of the Explanation to sub-section (1) of section 10 as the transfers were effected after 26th day of September 1970 but before the commencement date of the Amending Act, 1972, that is, 2nd October 1975, these transfers 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, 1972. According to the petitioners, they have rebutted the presumption raised by this Explanation to subsection (1) of section 10 of the Ceiling Act by adducing cogent evidence. Therefore, according to them, they have proved to the contrary, meaning thereby that they have proved that the sales were not made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972. According to them, these sales were effected bona fide and in good faith for payment of loans and outstanding dues.

It is no doubt true that Explanation to sub-section (1) of section 10 raises a presumption in this behalf. However, said presumption is rebuttable. In this context it is contended by Shri Gupta that Explanation to section 10 (1) of the Act operates retrospectively, and therefore, should be liberally construed. He further contended that the petitioners are illiterate villagers living in a village which is far away in the interior in tahsil Chikhali, district Buldana. He also contended that the petitioners had neither information nor knowledge before hand that the Ceiling Act was likely to be amended and the ceiling area prescribed by the Ceiling Act was being reduced. Having regard to the fact that the petitioners are residing in a far away village in interior no constructive knowledge could also be attributed to them. Therefore, according to Shri Gupta, it will be against the principles of natural justice to permit the subject of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of due and reasonable diligence have acquired any knowledge. It is well established principle of natural justice that before a law can become operative it must be promulgated or published. It must be broadcast is some recognisable way so that all men may know what it is, or at least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. In support of his contention Shri Gupta has relied upon a decision of Supreme Court in Harla v. State of Rajasthan AIR 1961 S C 467. Relying upon this decision he further contended that in the present case the petitioners who are innocent and illiterate villagers cannot be punished or penalised by raising a presumption against them under Explanation to sub-section (1) of section 10 of the Ceiling Act. He further contended that it is no doubt true that the Legislature has got power and jurisdiction to give retrospective effect to a legislation, but in that case while construing such a piece of legislation in the matter of rebuttal a liberal construction is called for so that the transactions effected bona fide and a good faith will not be affected. He further contended that at the time when the transfers were effected they were perfectly legal and valid Therefore, while considering the question regarding the bona fides or as to whether they were effected in good faith or not somewhat liberal view will have to be taken. In substance, therefore, it is his contention that as the petitioners had no information or knowledge that the Ceiling Act is being amended, or the ceiling area is being reduced, it cannot be said that the transfers which are otherwise bona fide were effected by the petitioners in anticipation of or in order to avoid or defeat the object of the Ceiling Act. In this context Shri Gupta has also relied upon a decision of Madras High Court in P. Subrahmanyam v. The Authorised Officer A I R. 1967 Mad. 422 and the decisions of this Court in Madhorao v. Special Deputy Collector, Nagpur Special Civil Application No. 354 of 1966, decided on 28-11-1967, Shankar v. State of Maharashtra Special Civil Application No. 1137 of 1971, decided on 9-1-1975 and Ambadas v. State of Maharashtra Special Civil Application No. 1147 of 1972, decided on 22-1-1975. However, it is not necessary to decide this question finally at this stage, as the matter is being remanded back to the Revenue Tribunal for a fresh decision in accordance with law, after giving a reasonable opportunity to the petitioners to put forward their case.

It is obvious that the Amending Act has been given retrospective effect. But for the provisions of the Amending Act the transactions which took place on 19-4-1973 were not per se invalid. However, section 10 of the Ceiling Act by the aforesaid Explanation declares that 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, 1972. It appears from the record that the Surplus Land Determination Tribunal found as a fact that the holder was indebted and he had to pay the dues of the Co-operative Bank and the Land Development Bank etc. Therefore, the sale to the extent of one-half of the said land was held to be bona fide by the learned Surplus Land Determination Tribunal and was, therefore, excluded while calculating the ceiling area of the holder. At the appellate state the petitioners had challenged the finding recorded by the Surplus Land Determination Tribunal so far as the other half portion of the land from survey number 184 is concerned.

u/s 33 of the Ceiling Act an appeal against the order passed by the Surplus Land Determination Tribunal is specifically provided. Obviously, therefore, an appeal lies on the questions of law as well as on facts. It cannot be forgotten that the Legislature in its wisdom has provided a remedy of filing an appeal and not a remedy of revision. It is well established principle of law that a right of appeal is not merely a procedural right, but is a substantive right. The right of appeal is one of the methods by which a decision which would otherwise be final could be challenged before a higher Court or a Tribunal. An appeal is a continuation of proceeding in which a question is raised as to whether an order of the lower Court from which an appeal is brought was right or wrong on the basis of material which the lower Court had before it. From this it naturally follows that an appellate Court has the power to go into the questions of law as well as the questions of fact. Such a power would further enable the appellate Court to review or re-assess the entire evidence and to come to its own conclusion. The Legislature in its wisdom has provided a remedy of tiling of an appeal before the Maharashtra Revenue Tribunal u/s 33 of the Ceiling Act. A question as to what is the duty of an appellate Court while exercising the appellate powers fell for consideration of this Court in Janba v. Rameshkumar 1975 Mh. LJ 746. After making a reference to the decision of the appellate Court in that case in paras. 12 and 13 of the judgment this Court observed as under :

Therefore, practically the appellate Court has not applied its mind to the evidence of the tenant at all. As already observed, the learned Presiding Officer of the appellate Court has not considered the evidence of both the parties. So far as the evidence on record is concerned, he observed as under :

''The learned Rent Controller has discussed in details about the genuine needs for starting cloth business as well as the residence of the landlord in his order which is well reasoned and based on evidence on record. I quite agree with the same.''

This is hardly an order which is expected of an appellate Court, It cannot be forgotten that the appellate Court is the final Court of fact and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. In this context a reference can safely be made to a decision of Kerala High Court in Kurian Chacko Vs. Varkey Ouseph, and particularly to the following observation of V. R. Krishna Iyer J., (as he then was) :

''An appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him.

Such a view as also been taken by this Court in Atmaram v. Ramchandra 1975 Mh. L J Note 23 wherein this Court held as under :

''The appellate Court dealing with the appeal is bound to give reasons for the findings. It is not enough to record mere findings after summarising the evidence. The evidence has to be appreciated on its own merits and the findings are to be recorded as a result of such appreciation by the appellate authority. If the findings are recorded in a vague manner and it is nor clear whether the appellate authority did or did not accept the competing evidence led by the respective parties, the findings have to be set aside.

The right of appeal provided by clause 21 of the Pent Control Order is in very wide and general terms. Obviously, therefore, the appeal can lie both on the questions of fact and law. Before deciding the appeal the Collector is obliged to send for the record of the case and after perusing the record and making such further enquiry, as he may think fit, he has to decide the appeal. Further by clause 21 (2-A) of the Rent Control Order powers of review are also conferred upon the Collector. Therefore, it is obvious that the "decision" which the Collector is expected to give in appeal, while exercising powers of appeal under clause 21, is in the nature of judgment. The term "decision" or ''''Judgment" is not defined. However, as observed by this Court in Emperor Vs. Nandlal Chunilal Bodiwala, , the judgment or decision will mean the expression of opinion of a Court arrived at after due considers ion of the evidence and of the argument, if any. In this context, therefore it is the duty of the appellate Court to properly appreciate the evidence on record and then to write an order indicating that the evidence has been fairly and properly dealt with. It is further a duty of a Court or a judicial or quasi judicial Tribunal to make sincere effort in the administration of justice to show to the superior Court that it has applied its mind to all the evidence on record and has also considered all the important factors in that behalf. It cannot be forgotten that the Rent Controller as well as the appellate authority acting under the Rent Control Order exercises judicial functions and are legal Tribunals and not merely executive officers. They act as quasi judicial Tribunals adjudicating upon the civil rights of the parties. It cannot be forgotten that any decision given by the Rent Controller is not only subject to review under clause 21 (2-A) of the Rent Control Order, but it is also subject to the supervisory power of the High Court under Article 227 of the Constitution of India and in a given case of the appellate power of the Supreme Court under Article 136 of the Constitution of India. The sue cess or-in-office, or the High Court and the Supreme Court would be placed under a great disadvantage if well considered and well reasoned order is not passed by the Collector in appeal. Therefore, it was the duly of the appellate Court to independently apply its mind to the evidence on record and then to have recorded a reasoned findings. In the present case, but for the general observations made by the appellate authority he has not referred to any evidence on record. In this view of the matter, in my opinion, the learned counsel for the petitioner was right in contending that the learned appellate authority has failed to carry out his duty, and therefore, his order is vitiated.

In my opinion, these observations will aptly apply to the present case also. Therefore, it is quite obvious that Maharashtra Revenue Tribunal being an appellate Court was a final Court of fact and, therefore, a litigant is entitled to a full, fair and independent consideration of the evidence at that appellate stage and anything less than this is unjust to him. The appellate Court cannot act mechanically as mere rubber stamp

It cannot be forgotten that the view of the provision of section 44B of the Ceiling Act, no pleader or a legal practitioner is entitled appear on behalf of any party in the proceedings under the Ceiling Act. Therefore, the legal practitioners are wholly excluded from appearing before the Tribunal constituted under the Act, including the Maharashtra Revenue Tribunal. In this view of the matter, in my opinion, a further duty is cast upon the appellate Court, namely, Maharashtra Revenue Tribunal, to independently apply its mind to the evidence on record. A duty is cast upon the appellate Court to consider the various grounds raised in the memo of appeal as well as at the time of hearing and after full, fair and independent consideration of the evidence and the grounds of challenge, the appellate Court is expected to decide the appeal. Mere general observations based on the order passed by the Surplus Land Determination Tribunal without independent application of mind to the evidence on record or the contentions raised at the appellate stage cannot be termed to be a full, fair and independent consideration of the evidence or material on record.

The question as to why the judicial and quash judicial authority white exercising such a jurisdiction should give reasons in support of their conclusion came for consideration before the Supreme Court in Woolcombers of India Ltd. Vs. Woolcombers Workers Union and Another, , though in the context of exercise of initial jurisdiction by the judicial or quasi-judicial Tribunal. In this context a reference could usefully be made to the following observations of the Supreme Court in para 5 of the said judgment:

The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard relevant or extraneous considerations. Second, it is a well-known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasi judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases this investment of time and industry will be saved if reasons are given in support of the conclusions. So it is necessary to emphasise that judicial and quasi-judicial authorities should always give the reasons in support of their conclusions.

In my opinion, these observations will aptly apply even to the appellate orders.

It is also a well known fact that a writ petition under Article 227 of the Constitution lies to this Court against the decision passed by the Maharashtra Revenue Tribunal. A judgment written without application of mind or without reference to the evidence or material on record will be of little assistance to this Court. In that case this Court will have to wade through the entire record and find for itself whether the decision of the appellate Tribunal or the Surplus Land Determination Tribunal is right or wrong. In the present case though this writ petition was admitted by this Court on 8-4-1976 and a writ for calling of the records of the lower Court was issued on 10th June 1976, records of the Tribunals below have not been received so far. Therefore, in the present case it is also not possible for me to judge as to whether the order passed by the Surplus Land Determination Tribunal or the Maharashtra Revenue Tribunal is based on the evidence or material on record. In this context a reference could be usefully made to another decisions of the Supreme Court in Raja Bahadur S. A. N. M. H. Mahapatra v. Bidyadhar Nayak 1969 Vol. III Supreme Court Cases 395. In that case a grievance was made before the Supreme Court that the High Court has dealt with the appeal in the said case under misapprehension as to its power and duties u/s 44 of Orissa Hindu Religious Endowments Act, 1951. While considering such a contention, the Supreme Court in paras 5, 6 and 7 of the said judgment observed as under:

In our opinion it does seem as if the High Court misunderstood its powers and duties u/s 44 of the Act. It was urged before this Court in Sri Sadasib Prakash Brahmachari Vs. The State of Orissa, that a mere right to appeal to the High Court would virtually be in the nature of a limited appeal confined to challenge only on certain basic matters and probably limited to questions of law.

Jagannadhadas J. speaking for the Court, repelled this contention in the following words:

''We can find no warrant for any such apprehension. The right of appeal is given in very wide and general terms. Obviously the appeal can be both on facts and on law and would relate not merely to the merits of the scheme but also to all basic matters whose determination is implicit in the very framing of the scheme.''

If this is the scope of the appeal it is quite apparent from the judgment of the High Court (hat it did not discharge its duties u/s 44 of the Act, for the High Court observed :

''From the evidence on record the Courts of fact were competent to come to the conclusion that it has not been established that the appellant was really exercising any act of management so as to be termed as hereditary trustee in respect of the institutions in question. On a scrutiny of the evidence there is not satisfactory evidence to be traced out as to the origin and foundation of the endowments in question. The evidence regarding management prior to 1926 seems to be not very clear. In my view, the Courts of Fact were competent to come to the finding that the appellant was not exercising any act of management so as to be termed as hereditary trustee as claimed.''

It may be that the findings of the Assistant Commissioner of Endowments and the Commissioner of Endowments could not be successfully challenged even after going through the evidence, but the High Court must first consider the evidence and come to its own conclusions

In the present case, also the right of appeal is given in very wide and general terms. Therefore, obviously the appeal will lie both on the grounds of fact and on law and even if it is assumed that the order passed by the Surplus Land Determination Tribunal could not have been successfully challenged even after going through the evidence on record, in my opinion, it was the duty of the appellate Court first to consider the evidence and then to come to its own conclusion. In the case before me the learned Member of the Maharashtra Revenue Tribunal has not made any reference to the evidence on record. Thus there is no independent application of mind in this behalf. Therefore, as the learned Member of the Maharashtra Revenue Tribunal has failed to carry out his duties as an appellate Court, in my opinion, this is a fit case where the matter should be remanded back to the Maharashtra Revenue Tribunal for rehearing of the appeal, so far as transfers of survey number 184 are concerned.

As other contentions, though raised, are not argued before me, it is riot necessary to interfere with the other part of the order passed by the Surplus Land Determination Tribunal or the Maharashtra Revenue Tribunal. Therefore, the findings recorded in that behalf by the Surplus Land Determination Tribunal and the Maharashtra Revenue Tribunal are confirmed.

In the result, therefore, the petition is allowed. The finding recorded by the Maharashtra Revenue Tribunal dated 1st April 1976, so far as it relates to the other half portion of survey number 184 is concerned, is set aside and the matter is remitted back to the Maharashtra Revenue Tribunal The Maharashtra Revenue Tribunal will now re-hear the appeal and after giving a reasonable opportunity to the petitioner to put forward their case in this behalf, will decide the same in accordance with law. Obviously it will be open to the Maharashtra Revenue Tribunal to pass such consequential order as may be necessary in this behalf. However, in the circumstances of the case there will be no order as to costs.