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1975 DIGILAW 114 (BOM)

VINAYAKRAO GANPATRAO PIMPLAPURE v. State of Maharashtra

1975-03-19

A.R.SHIMPI, B.N.DESHMUKH

body1975
JUDGMENT SHIMPI J.-Petitioner by this special civil application prays that the order dated 27-1-1969 passed by the Commissioner, Nagpur Division, Nagpur, in a revision application filed by the petitioner dismissing his petition whereby he confirmed the order of the Collector under which the petitioner was fined Rs. 200 and he was not granted permission to sell his agricultural lands, be quashed. The facts, in brief, are as under:- 2. Petitioner held agricultural lands situate at village Mohadara, Tahsil Umrer. The old Survey Nos. being 61/1, admeasuring 65 acres and 65 decimals and 45/2, 45/4 and 46 admeasuring 15.22 assessed at Rs. 21.37. In the year 1966 under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, consolidation of agricultural holdings took place at the said village and old Survey No. 61/1 was given a new number being Unit No. 97 while the other three lands Nos. 45/2, 45/4 and 46 were given a new number as Unit No. 50. 3. After this consolidation of holdings took place, the petitioner entered into an agreement to sell these lands some times on 23-5-1966 in favour of certain persons mentioned in the order of the Collector which is Annexure-2 to the petition. He had sold Unit No. 97 admeasuring 65.65 to 7 persons. The total transferred land came to 61.40 acres and 4.25 acres of this Unit remained with him. Though the agreement of sale is not produced along with this petition, it is an admitted fact that the agreement of sale mentions that this Unit was sold to these 7 persons by dividing the holding in between these 7 persons. The total price agreed to be received from each of the transferees was received by the petitioner on the date on which he executed the agreement of sale and on the very day he transferred possession of the land to these transferees. Similarly, Unit No. 50 admeasuring 15.22 acres was agreed to be sold to one Raghoba son of Maroti for Rs.22,830. In his case also an agreement of sale was executed between the parties under which petitioner received the whole consideration of Rs. 22,830 and delivered possession of the holding to the transferee, namely Raghoba son of Maroti. Similarly, Unit No. 50 admeasuring 15.22 acres was agreed to be sold to one Raghoba son of Maroti for Rs.22,830. In his case also an agreement of sale was executed between the parties under which petitioner received the whole consideration of Rs. 22,830 and delivered possession of the holding to the transferee, namely Raghoba son of Maroti. At the hearing of this petition, the agreement of the sale was perused by us and one of the terms which was relied upon by the learned Advocate for the petitioner was that these sales were subject to the permission of the Collector for which an application would be made to the Collector and if permission was refused, then the transferees were to deliver possession of the holdings to the petitioner and the petitioner was to return the amount to them. Pursuant to this agreement, the transferees entered into possession and were in possession of the various portions when an application was made to the Collector by the petitioner on 5-7-1966. The Collector on hearing the parties came to the conclusion that the petitioner received the full consideration of the lands in question and he had already transferred his holding to the transferee. Therefore, such a transfer of land was void under section 9 (1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, hereinafter would be referred to as the Act. The Collector, therefore, rejected the application for the grant of permission made by the petitioner under Rule 27 of the said Act and fined the petitioner to pay Rs. 200 as stated above. 4. Aggrieved by this order, revision application was filed. For the same reasons, the order of the Collector was upheld by the Commissioner. The Commissioner further observed that there was lacuna in the order of the Collector in so far as there was no clarification whether the transferees should be evicted from the holdings or not under section 9 (3) of the Act. The Commissioner's order gave direction to the Collector, Nagpur, to pass proper orders in the said matter under section 9 (3) of the Act. Aggrieved by this order, the present application is filed. 5. Shri Munshi, who appears for the petitioner submitted that both the Collector and that the Commissioner were in error in holding that this was a transaction akin to sell. Aggrieved by this order, the present application is filed. 5. Shri Munshi, who appears for the petitioner submitted that both the Collector and that the Commissioner were in error in holding that this was a transaction akin to sell. It was submitted that though possession was given to the respective transferees it was by way of an arrangement but subject to the permission of the Collector. It was a bona fide transaction entered into by the petitioner. It was, therefore, urged that after quashing these orders, permission as required under Rule 27 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Rules, 1959, should be granted to the petitioner to execute valid title-deeds in favour of the intending purchasers. 6. In order to appreciate the submissions of Shri Munshi, it is necessary to refer to the provisions of the Act 'especially section 9 and section 31 and Rule 27 Section 9 of the Act reads as under:- "1. The transfer or partition of any land contrary to the provisions of this Act shall be void." The further sub-sections are not necessary to be considered. Section 31 of the Act runs as under:- 31. Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall be- (a) transferred whether by way of sale (including sale in execution of a decree of a civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, or lease, or otherwise, except in accordance with such conditions as may be prescribed." Rule 27 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Rules, 1959, runs as under:- "27. Application for permission for transfer of consolidated holding or any part thereof and conditions for such transfer.- (I) Any person desiring to transfer or interested in the transfer of any holding allotted under the Act or any part thereof, as provided by clause (a) of section 31 such transfer not being a mortgage in favour of a co-operative land development bank, a primary land development bank or a primary co-operative society) may make an application to the Collector in that behalf. (2) On receipt of an application under sub-rule (1), the Collector may, subject to the provisions of the relevant tenancy law and the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (in so far as such provisions relate to restriction on the transfer of agricultural land) permit the transfer of the holding or as the case may be, the part thereof." Thereafter the various conditions are stated in the rule. Sub-clause (f) of Rule 27 of the said Rules, is material which runs as under :- "If the entire land allotted under the Act is to be transferred to an agriculturist or an agricultural labour." At the hearing of the petition when it was pointed out that sub-division of a holding is not permitted under section 31 without the permission in writing of the Commissioner subject to the general orders of the State Government, the case in respect of Unit No. 97 which was a transfer in favour of 7 transferees was not pressed by the petitioner. The petitioner mainly pressed his case in respect of Unit No. 50 which he had agreed to sell to one transfer or, namely, Raghoba and there was no dispute that he was an agriculturist. Reading Rule 27 of the said Rules, the Collector can grant permission to any person desiring to transfer any holding as provided by clause (a) of section 31. Therefore, it is necessary to consider the provisions of section 31 of the Act which we have already reproduced. Section 3 I clearly lays down that no holding allotted under this Act or any part thereof shall be transferred whether' by way of sale Narottamdas Patel. It was denied that petitioner was residing in the premises at the time of her husband's death in November 1953. On 27th January 1954 an order was passed under section 6, sub-section 4, clause (a) of the Bombay Land Requisition Act, 1948, by the Government of Bombay to requisition the said premises for a public purpose, because on enquiry it was found that the premises had become vacant in the month of October 1952. The petitioner challenged the validity of the order of requisition stated above. The High Court of Bombay dismissed her petition. The petitioner moved the Supreme Court challenging the vires of the Act as also the legal efficacy of the order impugned. 9. The petitioner challenged the validity of the order of requisition stated above. The High Court of Bombay dismissed her petition. The petitioner moved the Supreme Court challenging the vires of the Act as also the legal efficacy of the order impugned. 9. The Supreme Court considered the contention raised on behalf of the petitioner how the word "otherwise" used in explanation (a) to section 6 should be construed. It was observed on Page 528 Para. II as follows: "It was contended on behalf of the petitioner that Explanation (a) to section 6 quoted above contemplates a vacancy when a tenant (omitting other words not necessary) "ceases to be in occupation upon termination of his" tenancy, eviction, or assignment or transfer in any other manner. The argument proceeds further to the effect that in the instant case admittedly there was no termination, eviction, assignment or transfer and that the words "or otherwise" must be construed as ejusdem generis with the words immediately preceding them; and that therefore on the facts as admitted even in the affidavit filed on behalf of the Government there was in law no vacancy. In the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The Legislature has been cautious and the rough going enough to bar all avenues of escape by using the words "or otherwise". Those words are not words of limitation but of extension so as to cover all possible ways in which a tenancy may occur. Generally speaking, a tenant's occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenant's interest. But the Legislature, when it used the words "or otherwise" apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenant's occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense." In our opinion, this interpretation of the word "otherwise" is amply applicable while interpreting section 31 of the Act. We are, therefore, unable to accept the submissions urged on behalf of the petitioner. We feel that the order passed by the Collector as confirmed by the Commissioner does not require any interference at our hands. In the result, rule discharged with costs. Petition dismissed.