Rajesh Kumar and others vs State of M.P. and others

A.K. Shrivastava, J.

By this petition under Articles 226 and 227 of the Constitution of India, the petitioners are seeking for quashment of order passed by the Revenue Board dated 20-7-1989 (Annexure-P-3) and order dated 3-10-1991 (Annexure-P/3-A) passed in the revision and order dated 29-8-1988 dismissing the objections of the objector/transferee, in default. It has been further prayed by the petitioners that the transfer of the disputed land be held to be valid.

Petitioner No. 1-Rajesh Kumar (hereinafter referred to as ''the holder'') was holder of agricultural land which was found to be in excess of his entitlement under the provisions of M. P. Ceiling on Agricultural Holdings Act, 1960 (in short ''the Act'') which was amended in the year 1974 and the holder of the agricultural land was directed to file his return u/s 10 of the Act. The land was found to be 73.92 acres with the holder on 1-1-1971 and on 7-3-1974 it was found that the holder was in possession of only 39.33 acres of land. The contention of the holder is that his father who was acting as his guardian had sold 34.59 acres of the land to petitioner No. 2-Mohanlal (hereinafter referred to as ''the transferee'') and possession was also delivered. During the pendency of this petition, petitioner No. 2-Mohanlal died as a result of which his legal representatives have been brought on record. The amended Act No. 12/1974 came into force w.e.f. 7th March, 1974, therefore, there was no question either to the holder or his guardian, having the knowledge of the amended Act.

The objector who is petitioner No. 2 (hereinafter referred to as ''transferee'') and who had died during the pendency of this petition and whose L.Rs.. have been brought on record, submitted the objections. However, the competent officer constituted under the Act declared the sale in favour of transferee to be void u/s 4 of the Act. The appeal which was preferred by the holder and the transferee was allowed by the Revenue Board and the matter was remanded to the Sub Divisional Officer to decide the matter afresh after issuing notices to the transferee. The competent authority again passed the order declaring the impugned sale to be void. The holder of the land as well as the transferee filed appeal before the Revenue Board which has been dismissed by the impugned order dated 20-7-1989. A review petition which was filed by them was also dismissed vide Annexure-P/3-A on 3-10-1991 by the Revenue Board. Hence this petition has been filed.

The contention of Learned Counsel for the petitioner is that the transferee was not aware about the amended Bill which was later on became Act No. 12/1974 and which was published on 18-4-1972 and was enforced w.e.f. 7th March, 1974, therefore, the registered sale deed which was executed by the holder of the land to the transferee on 14-3-1972 cannot be declared to be null and void.

On the other hand, Shri V. P. Nema, learned Government Advocate for the respondents, argued in support of the impugned order passed by the Revenue Board.

After having heard Learned Counsel for the parties, I am of the view that this petition deserves to be dismissed.

Before dealing with the rival contention of Learned Counsel for the parties, it would be appropriate to say something in regard to the preamble of the Act and its objects and reasons. On bare perusal of the preamble, it is perceptible that the Act has been enacted in order to provide for the imposition of Ceiling on Agricultural Holdings, acquisition and disposal of surplus land and matters ancillary thereto. On analyzing the preamble, the crux which comes out is that the object and reasons for enacting the Act is to provide the land to the needy or landless persons in order to procure the progress of the society and economically weaker sections of the society. Thus, the technicalities which are neither here and there and which does not go to the root of the matter, should not come in the way in order to deal these type matters, otherwise the very aim and object for enacting the Act would be defeated.

After independence, in some part of the Country, even earlier, the Legislature of the States made provisions to settle land with the actual tillers of the soil and to abolish all the intermediaries. Conferring of some sort of stability on the sub-tenants and abolition of Zamindaries, Malguzaries, Jagirdaries was the first step in this direction. Prior to the enforcement of the M. P. Land Revenue Code, 1959, the enactments repealed by it, contained provisions putting a check or even complete bar on leases or Batai. This object was further achieved by the enforcement of M. P. Land Revenue Code, 1959 which came into force on 2nd October, 1959. The policy of the M. P. Land Revenue Code, 1959 is clear from the provisions of sections 164, 165 and 189. Section 189 prescribes a ceiling limit of 25 acres of un-irrigated land. Sections 164 and 165 also mention a ceiling area "prescribed". Though "prescribed" means prescribed by rules made under the Code, the area was never prescribed and could not be prescribed by the Rules made under the Code. The Code sought to give a permanent footing to subtenants and lease holders, the Bhumiswami, who did not cultivate the land personally and got the land cultivated through sub-tenants, had to lose his rights, except under certain circumstances which are enumerated in the Code itself.

In order to implement and to achieve the target of directive principle embodied in Article 39(b) of the Constitution, land reform was conceived in the shape of Ceiling Laws. The ceiling laws sought to take away land even from those tenure holders who cultivated their lands personally and whose only vocation was agriculture, if the area of the land with them was more than the prescribed ceiling limit. The aim was to take away surplus area for distribution to the vast multitude of landless agricultural labourers particularly of the Scheduled Tribes and Scheduled Castes (see commentary to the preamble on the M. P. Ceiling on Agricultural Holdings Act, 1960 by eminent author Late Dr. Harihar Nivas Dvivedi).

The definition "appointed day" in the Act would mean the date of commencement of the Madhya Pradesh Ceiling on Agricultural Holdings (Amendment) Act, 1972. The definition of "appointed day" was amended by M. P. Act No. 12/1974 and which came into force w.e.f. 7th March, 1974. According to section 4 of the Act, where after the 1st January, 1971 but before the appointed day, any holder has transferred any land held by him by way of sale, gift, exchange or otherwise or has effected a partition of his holding or part thereof or the holding held by the holder has been transferred in execution of a decree of any Court, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after such enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of or to defeat the provisions of this Act. In this section there is a non-obstante clause also. Under sub-section (4) of section 4, every transfer to which section 4 applies, the burden of proving that the transfer was not Benami or was not made in any other manner to defeat the provisions of this Act was shifted on the shoulders of the transferor. Thus, for all practical purposes the burden is on him to prove that the sale was made bona fide and not in any manner to defeat the provisions of the Act.

On going through the order passed by the Revenue Board Annexure-P/3 dated 20th July, 1989 dismissing the appeal of the holder and transferee, it is gathered that neither the holder nor the transferee submitted any return despite having provided several opportunity to them. From para-3 of the order, it is found that the counsel for the holder and transferee also sought permission from the competent authority to argue the matter without adducing any evidence. Eventually, the competent authority, after hearing the arguments, categorically came to hold that in order to defeat the provisions of the Act the transfer was made by the holder. As a result of which, the competent authority declared 19.92 acres of the land of the holders to be surplus and directed it to be vested in the State. If the scope of sub-section (4) of section 4 of the Act is considered in proper perspective and is analyzed, it would be as clear like a noon day that the heavy burden to prove that the transfer was bona fide and was not in order to defeat the provisions of the Act, was not at all discharged by the holder. The holder as well as the transferee did not submit any return nor adduce any evidence. Their counsel specifically stated that the matter may be decided without recording the evidence. Since there is no material on record that the sale deed dated 14-3-1972 was executed bona fidely and not in order to defeat the provisions of the Act, therefore, the Revenue Board did not err in passing the impugned order.

The Full Bench of this Court in the case of Narbada Prasad v. State of M.P., 1981 MPLJ (FB) 260 : 1981 JLJ 294, has held that it cannot be laid down as a rule of law that the moment the holder files an affidavit that he has no knowledge of the impending amendment, burden on the transferor is discharged unless some material is put forward to show that the affidavit or evidence is not true, for the value of an affidavit or evidence given by a transferor would depend upon the facts and circumstances of each case. The Full Bench has further gone upto the extent by saying that the burden of proof can be decided only by offering a plausible explanation for the transfer and by proving it by preponderance and probabilities. In para-17 of this decision, the Full Bench has said that merely giving plausible reason is not sufficient to discharge the burden. The transferor should not only give a plausible explanation for the transfer but should also support it by evidence and make it acceptable by preponderance of the evidence. It is only then that the burden of proof is discharged. If the ratio decidendi of the Full Bench of this Court in the case of Narbada Prasad (supra) is tested on the anvil and touchstone of the present factual scenario in the given case, it is found that the facts are worst. In the present case the return was not filed by the holder and the transferee; they did not submit any affidavit nor adduce any evidence in order to justify the transfer to be bona fide. In absence of any evidence and material provided by the holder and the transferee, no option was left to the competent authority except to hold that the impugned transfer made by the holder to be void. Learned Revenue Board did not err in upholding the action and the order of the competent authority by dismissing the appeal of the petitioners as well as review application vide impugned order Annexure-P/3 and P/3-A respectively. The Full Bench in the case of Narbada Prasad (supra) was further placed reliance by Single Bench of this Court in the case of Harishankar Shrivastava v. State of M.P. and Others, 2000 RN, 187. Thus, by placing the reliance on these two decisions, I have no scintilla of doubt that this petition is bereft of any substance and the same is required to be dismissed.

Ab judicatio, this petition is dismissed with no order as to costs.