Uttam Chand v. State of Maharashtra & Anr.

Judgment

CIVIL APPELLATE JURISDICTION: Civil App.,a! 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. Salish, V. K. Pandita and E. C. A garwala for the Appellant. M. C. Bhandare, C. K. Ratnaparkhi and M. N. Shrof] for the Respondent. The Judgment of the Court was delivered by FAzAL Au. 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 (Ceiling of R Holdings) Maharashtra Act No. XXVII 1961 and (hereinafter to be referred to as the Act) which received the assent of the President on 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 Depuiy Collecfor, 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 bis nephews as a result of which his family got 202 acres of land. The appellant bad sold 51 acres of land to other persons before the Act came into force. The appellant further alleged that he gave some lauds to his adopted son in lieu of the latter's share. Th~ 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 exainining 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 ihe 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 appel" !ant in his return far-exceeded the ceiling limit. In computing the total lands owned by ihe appellant, the Commissioner appears to have taken into account even that land which had been given by Nem.ichand to his mother, ihe 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 frant 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 !J.~ included in the ceiling of the appellant and that the Commissioner iherefore 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 Depnty Collector.

The High Court in a short judgment refused to interfere mainly on lhc 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 ihe Commissioner to indicate that the transfer of the lands in favour of the adopted son and ihe transfer of N em.ichand in favour of his mother were collusive or tainted by fraud. In fact both these transactions took place as far back as 1956, ihat is to say, five years before the Act came into force. Even ihe Act clearly exempts lands which may 1 UTTAM CHAND v. MAHARASHTRA (Fazai Ali, J.) 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 trallsfers wouW 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 justilied in pr\:Suming that the transfer made by the appetlant in favour of his ad0pted 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 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 bold land exceeding the ceiling area !o the extent of one-fifth of t.he ceiling area for each member in excess of five, 50 however that the total holding shall not exceed twice the ceiling area, and in such cas~, 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 seperate 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 within the ceiling limit of a person or his family which belonged lo 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 r~spondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances, therefore, the most important f~ct 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 R 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 on:Jers as to costs. The appeal is accordingly allowed. N.K.A. Appeal allowed.