TOLYA ETC Vs STATE OF M.P. & ANR. ETC.
Bench: RANJAN GOGOI,M.Y. EQBAL
Case number: C.A. No.-006471-006471 / 2014
Diary number: 1084 / 2005
Advocates: VARINDER KUMAR SHARMA Vs
ASHOK K. SRIVASTAVA
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.(s). 6471 OF 2014 (Arising out of Special Leave Petition (Civil) No.7039 of 2006)
Tolya etc. ………Appellants
Versus
State of M.P. & Another etc. ……..Respondents
J U D G M E N T
M.Y. EQBAL, J.
1. This appeal is directed against the order dated 5.8.2004
passed by the High Court of Madhya Pradesh, Bench at
Indore, in Second Appeal No.165-166 of 1999, whereby the
Second Appeal was allowed, the judgment and order passed
by the Courts below have been set aside.
2. The facts of the case, which are common, lie in a
narrow compass.
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3. The land in dispute is an agricultural land, originally
owned by Jagannath Singh. In a land ceiling proceedings
initiated against Jagannath Singh, under M.P. Ceiling on
Agricultural Land Holdings Act, 1960, land in question was
declared as surplus land. Consequently, it vested in the
State Government, who in turn allotted the land to the
defendant-appellants some times in the year 1973, under
the Bhumiswami Right, purported to be under Section 35 of
the said Act.
4. The appellants sold the said land allotted to them by
sale deed dated 4.7.1975 in favour of respondent No.2. It
appears that sometimes in the year 1979 on a complaint,
the Collector Shajapur, proceeded to revise the allotment
and action was contemplated to re-allot the land according
to the Rules. The respondent filed a revision against the
decision of the Collector before the Board of Revenue, where
the allotment of land in favour of the appellants and
subsequent transfer to respondent No.2 was upheld.
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5. It further appears from the record that proceedings
under Section 250 of the Land Revenue Code, 1959 was
initiated for restoration of the property in favour of the
appellants, who was illegally dispossessed and a notice to
that effect was issued to the respondent for directing him to
hand over the land to the appellants, failing which the
allotment shall be cancelled. The respondent then moved
the Civil Court by filing suits for declaration of ownership in
respect of the said property which was dismissed by
judgment dated 19.11.1998.
6. Appeal filed by the respondent against the said
judgment was stood dismissed on 17.3.1999. The
respondent then filed Second Appeal before the High Court
which was eventually allowed in terms of judgment and
order dated 5.8.2004 and the Judgment and Orders passed
by the trial court and the appellate court were set aside.
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7. The High Court while reversing the judgment of the trial
court as also the appellate court has taken the view that the
land was allotted to the appellants under Section 35 of the
M.P. Ceiling on Agricultural Holdings Act, 1960 (for short
“Ceiling Act of 1960”) and there is no provision under the Act
for resumption of land in case such land is allotted to any
person not entitled to such allotment. The High Court also
proceeded on the basis that neither the State nor any
Revenue officer has taken any proceeding for cancellation of
allotment in favour of the appellants. On the contrary, the
Board of Revenue has allowed the revision filed by the
respondent and has upheld the allotment and directed not to
proceed for resumption of land since the premium has
already been paid. The High Court further held that the
Ceiling Act does not provide for cancellation of patta of
surplus land under Section 35 or for resumption of land of
the State in case the land had been allotted to any person
not entitled to such allotment. On these legal provisions, the
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High Court held that the judgment passed by the trial court
and the appellate court are contrary to law.
8. We have heard learned counsel appearing for the
parties.
9. We have perused the impugned order passed by the
High Court. Prima facie we are of the view that the High
Court has not correctly appreciated the law in this regard.
10. Before we consider the contention made by the counsel
appearing for the parties, we would like to refer Sections 35
and 36 of the M.P. Ceiling on Agricultural Holdings Act, 1960.
The said section reads as under:-
“Section 35 - Allotment of surplus land vesting in the State Government under this Act- (1) Subject to the provisions of this Act and the rules framed thereunder surplus land vesting in the State under section 12 shall be allotted in Bhumiswami rights to the persons mentioned hereunder in the order of priority as indicated therein on payment of a
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premium equivalent to the compensation payable in respect of such land -- (i) agricultural labourers,
(a) belonging to Scheduled Castes and Scheduled tribes; and (b) others;
(ii) joint farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons; (iii) better farming society, the members of which are agricultural labourers, or landless persons whose main occupation is cultivation or manual labour on land, or a combination of such persons; (iv) freedom fighters; (v) displaced tenants subject to the provisions of section 202 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959); (vi) holders holding contiguous land; (vii) joint farming society of agriculturists; (viii) better farming society of agriculturists; (ix) any other co-operative farming society subject to the condition that land (including the land as owner or tenant individually by members) shall not exceed the area equal to the number of members multiplied by the ceiling area; (x) an agriculturist holding land less than the ceiling area :
Provided that unless the State Government otherwise directs surplus land consisting of compact area shall be either reserved for
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Government farm or allotted to co-operative societies or any other public purpose.
Explanation I -- For the purpose of clause (iv), "freedom fighter" means a person who by reason of his taking part in any national movement for independence prior to the 15th August, 1947-- (i) had been awarded capital punishment; or (ii) had to suffer imprisonment or detention for a period exceeding six months; or (iii) had been permanently incapacitated on account of injuries infected upon his person in firing or lathi charge; or (iv) had to suffer loss of property, whether wholly or partly or loss of employment or loss of his means of livelihood, and includes his principal heir where such person --
(a) was hanged in execution of the capital punishment; or (b) died during the course of imprisonment or detention.
Explanation II -- For the purpose of Explanation I, "principal heir" means the eldest son of the deceased or, if there is no son of the deceased or, if there is no son surviving, such other heir of the deceased, as the Collector may declare to be the principal heir. (2) The premium payable under sub-section (1) may be paid by the allottee either in a lump sum within six months of the commencement of the agricultural year next following the date of allotment or in twenty equal instalments, the first instalment being payable on the commencement of the
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agricultural year next following the date of allotment. If the premium is paid in instalments the unpaid balance of such premium shall carry interest at the rate of 3 per centum per annum with effect from the date on which the first instalment falls due. (3) Where the land allotted under Sub-section (1) is an orchard other than banana gardens and vine yards, the allottee shall maintain the orchard intact.
Section 36 – Recovery of premium in case of transfer of allotted land:- Where land allotted under section 35 is transferred, the amount of premium remaining unpaid in respect of such land shall be a first charge thereon and shall be recoverable from the transferee in the same manner as an arrear of land revenue.”
11. From a bare reading of the aforesaid provision, it is
manifestly clear that Section 35 makes a provision for
allotment of surplus land declared under the Ceiling Act after
vesting of the surplus land in the State. According to this
provision, the State shall allot the surplus land under
“Bhumiswami right” to the persons mentioned thereunder in
the order of priority. First, the surplus land shall be allotted
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to agricultural labourers belonging to SC & ST and,
thereafter, to other persons.
12. “Bhumiswami Right” has not been defined in the Ceiling
Act, 1960. Section 158 of the M.P. Land Revenue Code 1959
defines classes of tenure and Bhumiswami. Section 158
reads as under :-
158. Bhumiswami – (1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely –
(a) …………….. (b) …………….. (c) …………….. (d) …………….. (e) ……………..
(3) Every person –
(i) Who is holding land in Bhoomiswami right by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Madhya Pradesh Land Revenue code
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(Amendment) Act, 1992 from the date of such commencement, and;
(ii) To whom land is allotted in Bhumiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment,
shall be deemed to be a Bhumiswami in respect of such land and shall be subject to all the rights and liabilities conferred and imposed upon a Bhumiswami or under this Code;
Provided that no such person shall transfer such land within a period of ten years from the date of lease or allotment.
Explanation- In this Section the expression “Ruler” and ‘Indian State” shall have the same meanings as are assigned to these expressions in clauses (22) and (15) respectively by article 366 of the Constitution of India.”
13. Sub-section (3) of Section 158 clearly provides that
land allotted by the State to any person giving ‘Bhumiswami
right’ shall have all right to deal with the property. However,
proviso mandates that such Bhumiswami shall not transfer
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land so allotted to him within a period of ten years from the
date of lease or allotment.
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14. Section 250 of the Code is also worth to be quoted hereunder:-
“250. Reinstatement of Bhumiswami improperly dispossessed- (1) For the purpose of this Section and
Section 250-A, Bhumiswami shall include occupancy tenant and Government lessee.
(1-a) If a Bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the Bhumiswami to the use of such person has ceased to be entitled under any provision of this Code, the Bhumiswami or his successor in interest apply to the Tehsildar for restoration of the possession – (a) …………… (b) ……………
(2)………………
(3)………………
(4)……………….
(5)……………….
(6)……………….
(7)……………….
(8)………………
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(9)………………..”
15. In the light of the aforesaid provisions, we find that in
the instant case the land, which was declared surplus land,
was allotted by the State in purported exercise of power
under Section 35 of the said Act giving Bhumiswami right to
the appellants. The said allotment was made in the year
1973. Within two years from the date of the said allotment,
the land was purchased by the respondent by sale deed
dated 4.7.1975, which, according to the appellants, was
without consideration and the respondent in connivance with
the other persons managed to keep the appellants out of
possession. Prima facie, therefore, the sale deed alleged to
have been executed by the appellants in favour of the
respondent on 4.7.1975 is null and void and the same does
not confer any right, title or interest in favour of the
respondent-Sattar Khan.
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16. The trial court and the first appellate court, therefore,
correctly recorded a finding that the sale deed, said to have
been executed by the appellants in favour of the respondent,
is null and void and is without consideration. The High Court
while reversing the judgment has not considered these
provisions contained in the M.P. Revenue Code. We,
therefore, allow this appeal and set aside the judgment and
order passed by the High Court and restore the judgment of
the trial court. Consequently, the suit filed by the
respondent is dismissed. Appeal is allowed accordingly with
no order as to costs.
…………………………………….J. (Ranjan Gogoi)
…………………………………….J. (M.Y.Eqbal)
New Delhi August 22, 2014
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