Shaikh Habib Shaikh Gulab vs State of Maharashtra and others

C.S. Dharmadhikari, J.—This writ petition is filed by objector Shaikh Habib son of Shaikh Gulab. According to the petitioner, he is in possession of survey number 99/2, area 12 acres 27 gunthas, continuously as a tenant since the year 1970-71. According to him, the respondents Nos. 2 and 3, namely, Vinayak and Parwatibai, tried to disturb his possession and, therefore, proceedings u/s 145 of the Code of Criminal Procedure were instituted by the Police before the Sub-Divisional Magistrate, Chandur Railway. The Sub Divisional Magistrate vide his order dated 24-10-73, came to the conclusion that the petitioner was in possession of the suit field during the year 1972-73. He further found that the petitioner had actually cultivated the disputed field as a tenant. Therefore, in view of the evidence before him, the Sub-Divisional Magistrate ultimately directed that the petitioner will continue to be in possession of the suit field, until he is evicted therefrom in due course of law.

I am informed by the counsel for the petitioner that after this order was passed by the Sub-Divisional Magistrate, Chandur Railway, the landlord did not institute any further proceedings either before a Civil Court or the Tenancy Court to seek possession of the suit field, though the landlord did file a revision application before the Sessions Judge, Amravati, challenging the order passed by the Sub-Divisional Magistrate. I am further informed that the said revision application filed by the landlord was also dismissed. In view of this, it is quite obvious that the order passed by the Sub-Divisional Magistrate dated 24-10-1973 became final and still holds the field, as it is not set aside by any competent Court.

It further appears from the record that in the return filed by the landholder, namely, respondents Nos. 2 and 3 to this petition, they included this survey number in their holding. Further, while exercising their choice u/s 16 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, referred to hereinafter as the Ceiling Act, the landlords made an offer that the land, namely, survey number 99/2, should be declared as surplus. Ultimately, therefore, u/s 21 of the Ceiling Act the Surplus Land Determination Tribunal made a declaration regarding the surplus land and delimited survey number 99/2. Such a declaration was given by the Surplus Land Determination Tribunal in spite of the specific objection raised by the petitioner in that behalf. The Surplus Land Determination Tribunal vide its order dated 6th March 1976 held that the petitioner has filed to prove that he was lawfully cultivating the suit field. In this view of the matter, it delimited survey number 99/2 situated at mouza Sawangi as surplus land and further directed that it shall vest in the State Government from the date of its possession without any encumbrances.

This order passed by the Surplus Land Determination Tribunal was challenged by the petitioner-objector before the Maharashtra Revenue Tribunal. The learned Member of the Maharashtra Revenue Tribunal proceeded on the basis of assumption and ultimately came to the conclusion that even if it is held that the petitioner is in possession of the suit field, in his capacity as a tenant, the said field is deemed to have been surrendered by him in view of the provisions of section 50 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, as he has failed to exercise his right of ownership within one year from the commencement of the tenancy. In this view of the matter, the learned Member further found that the petitioner''s possession, therefore, is neither that of a tenant nor as an owner and he is merely a trespasser. Consequently the appeal filed by the petitioner was dismissed. Against these orders, the present writ petition is filed by the petitioner.

To this writ petition, Vinayak and Parwatibai, who claim to be the owners of the field, were joined as the respondents Nos. 2 and 3 respectively. In spite of the notice duly served upon them, they have chosen to remain absent. Therefore, I had not the advantage to hear any argument on their behalf.

Shri R. N. Deshpande, the learned counsel appearing on behalf of the petitioner, contended before me that by virtue of the order passed by the Sub-Divisional Magistrate in the proceedings instituted u/s 145 of the Code of Criminal Procedure, the petitioner had a right to continue in possession of the suit field until he is evicted therefrom in due course of law. He further contended that the petitioner was in possession of the suit field as a tenant. Prima facie this position was accepted by the learned Sub-Divisional Magistrate in his order dated 24-10-1973. The said order passed by the Sub-Divisional Magistrate was challenged before the Sessions Court by tiling a revision application, which was ultimately dismissed. According to Shri Deshpande, to such a case the provisions of section 50 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 had no application. As the landholder had disputed the claim of the petitioner that he is a tenant and the said dispute was pending in a Court of law, then it cannot be said that the petitioner has failed to exercise his choice as contemplated by section 50 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, when the matter itself was subjudice. He further contended that in any case having regard to the fact that the petitioner was in possession of the suit field under an ostensible right of tenancy, which was to some extent accepted by the Sub Divisional Magistrate, who ultimately passed an order forbidding the landlords to interfere with the possession of the petitioner over the suit field until he is evicted therefrom in due course of law, the petitioner had a right and interest in the said land. In view of this right and interest, it was not open for the landholders to declare this land as surplus while exercising their option u/s 16 (1) of the Ceiling Act. On the contrary, it was obligatory on the part of the landlords that they should have retained this encumbered land and should have surrendered other land in its place. Section 16 of the Ceiling Act casts an obligation upon the landholder in this behalf which creates a corresponding right in the person who has a right or interest in the property. Therefore, according to Shri Deshpande, the orders passed by both the Tribunals below delimiting survey number 99/2 as surplus land are illegal, they being contrary to the provisions of the Ceiling Act. In my opinion, there is much substance in this contention.

For the limited purpose of this petition, it is not necessary to decide the question of title so far as field survey number 99/2 is concerned. It is also not necessary to decide the question as to whether the petitioner was in possession of the suit field as a tenant or otherwise The fact still remains that by virtue of an order passed by the Sub-Divisional Magistrate u/s 145 of the Code of Criminal Procedure, he has a right to remain in possession of the suit field, unless he is evicted therefrom in due course of law. An order passed u/s 145, Criminal Procedure Code is final and conclusive and is intended to be effective until the party in whose favour order is passed is evicted in due course of law. In view of the order passed by the Sub-Divisional Magistrate u/s 145, of the Criminal Procedure Code, it could safely be said that the land, namely, survey number 99/2, is an encumbered land. The term "encumbrance", which is used in section 16 of the Ceiling Act, is not defined in the said Act. In the absence of any definition in that behalf, it will have to be given its normal meaning as understood in common parlance. Many times while interpreting a statutory provision, it becomes necessary to take into consideration the subject matter of statute and the object it intended to achieve. That is why in deciding the true scope of a word used in a statutory provision, the context in which it appears, and the policy underlying the statute assumes importance. This is more so when we are dealing with a beneficent piece of legislation, like the Ceiling Act. If the word "encumbrance" is read in this context, then, in my opinion, in its import, apart from the other dealings such as mortgages etc, which create a specific charge upon the land, anything which interferes with the unrestricted rights of the Proprietor will be included. An order passed u/s 145, Criminal Procedure Code will in any case give the person in whose favour an order is passed a right of occupancy or possession over the land and, therefore, it would obviously amount to an "encumbrance". The term "encumbrance" is defined in Law Lexicon as under:

''encumbrance'' is a burdensome and troublesome load; a burden, obstruction and impediment; anything that impedes motion or action, or readers it difficult or laborious clog; hindrance; check; a word used as synonymous with obstruction, a burden or charge upon property; a legal claim or lien upon an estate which may diminish its value, a liability resting upon an estate; anything that impairs the use or transfer of property; an embarrassment of an estate or property so that it cannot be disposed of without being subject to it. As applied to an estate in land, it may fairly include whatever charges, burdens, obstructs, or impairs its use or prevents or impedes its transfer.

In the case before me, the petitioner had a right to continue in possession of the suit field until he is evicted therefrom in due course of law. This will obviously impair the vesting of the land as well as further distribution thereof by the State Government, as contemplated by the Ceiling Act.

The question as to how the Agrarian Laws should be construed came for consideration before the Supreme Court in State of Haryana and Others Vs. Sampuran Singh and Others, . In this context the Supreme Court in para. 6 of the said decision observed as under :

The key thought that pervades our approach is that if the constitutionally envisioned socio-economic resolution is not to be a paper tiger, agrarian laws have to be meaningfully enacted, interpreted and executed and the Court is not the anti-hero in the drama of limping land reform. Much to the same effect this Court observed in State of Punjab (Now Haryana) and Others Vs. Amar Singh and Another, ;

We have to bear in mind to activist, though inarticulate, major premise of statutory construction that the rule of law must run close to the rule of life and the Court must read into an enactment, language permitting, that meaning which promotes the benignant intent of the legislation in preference to the one which perverts the scheme of the stature on imputed legislative presumptions and assumed social values valid in a prior era. An aware Court, informed of this adaptation in the rules of forensic interpretation, hesitates to nullify the plain object of a land reforms law unless compelled by its language, and the crux of this case is just that accent when double possibilities in the chemistry of construction crop up.

While dealing with a somewhat analogous set of provisions under the same Act, the emphatic importance of augmenting the surplus pool for distribution by the State is brought out in Amar Singh thus :

The triple objects of the agrarian reform projected by the Act appear to be (a) to impart security tenure (b) to make the tiller the owner, and (c) to trim large land holdings, setting sober ceilings. To convert these political slogans into legal realities, to combat the evil of mass evictions, to create peasant proprietorships and to ensure even distribution of land-ownership a statutory scheme was fashioned, the cornerstone of which was the building up of a reservoir of land carved out of the large land-holdings and made available for utilisation by the State for re-settling ejected tenants.

If the provisions of the Ceiling Act are read in this context, it is quite obvious that the said Act was enacted with an intention to impose a maximum limit (or ceiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held in excess of such ceiling. The object of the Act is the ultimate distribution of land to subserve the common good so as to ensure the full and efficient use of the land for agricultural purposes. The purpose of the Act is not merely to acquire the surplus land. The object of the legislation is acquisition of surplus land for equitable distribution. The land which is ultimately declared surplus or is delimited is meant for distribution thereof to landless and other persons. With this object in mind, the Legislature has in the clearest terms laid down in section 16 of the Ceiling Act that while exercising the choice or selecting the land for retention, the land encumbered should be retained by the landholder. Such a land will not be declared surplus nor it could be delimited. The intention behind this is obvious. A land which is subject to an encumbrance is not easily available for re-distribution, which is the ultimate goal of the Ceiling Law. In my opinion, having regard to the object of the legislation and the context in which the term "encumbrance" is used u/s 16 of the Act, it is very clear that a land which is not in possession of the landholder and upon which another person has a right of occupancy or possession, as a result of an order passed in his favour by the competent Court u/s 145 of the Criminal Procedure Code, will be an encumbered land, which cannot be delimited of declared surplus under the Ceiling Act in view of the provisions of section 16 of the said Act.

In this writ petition, we are not concerned as to what will be the effect of such an order passed u/s 145 of the Criminal Procedure Code so far as the landlords and their holding are concerned. In the case before me, the landlords have chosen to include this land in their holding while filing the return. Therefore, according to the landlords themselves, their holding comprises of the said land. Therefore it is not necessary for me to decide the scope and effect of section 50 of the Tenancy Act. It is also not necessary for me to decide the effect of sections 19 and 20 of the Ceiling Act in this case as such a case is neither argued nor made out before me by any of the parties. The landlords have not chosen to appear before this Court and to make any submission in that behalf also. Therefore, it is not necessary for me to go into any wider question in this writ petition. From the stand taken by the landlords and their conduct in not challenging the order passed u/s 145, Criminal Procedure Code by instituting proper proceedings for possession of the land before any competent Court, it is quite obvious that they are not interested in claiming possession of the land. Till this day the said order holds the field. In these circumstances it will be inequitable to allow the landlord to declare such a land as surplus while exercising their choice u/s 16 of the Ceiling Act. Therefore, the orders passed by the Surplus Land Determination Tribunal as well as the Maharashtra Revenue Tribunal so far as they relate to the declaration of survey number 99/2 are concerned, are quashed and set aside. However, as a necessary consequence of this order, the respondents Nos. 2 and 3 will have to include this land in their holding and will have to exercise a fresh choice u/s 16 of the Ceiling Act by giving fresh choice for delimiting another land to that extent. For this, limited purpose the matter will have to be remitted back to the Surplus Land Determination Tribunal

In the result, the writ petition is allowed. The case is remanded back to the Surplus Land Determination Tribunal for fresh decision in accordance with law. However, in the circumstances of the case there will be no order as to costs.