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2005 DIGILAW 505 (MP)

Vir Singh v. Collector

2005-04-11

A.K.SHRIVASTAVA

body2005
Judgment ( 1. ) BY this petition, the petitioner is challenging the validity of the order of Sub Divisional Officer dated 31-3-1989 (Annexure A-5) and the order of Collector dated 10-9-1990 (Annexure A-6), passed in appeal. ( 2. ) THE predecessors of respondent Nos. 3 to 5 filed an application under Section 4 of the "m. P. Samaj Ke Kamjor Vargon Ke Krishi Bhumidharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976" (hereinafter referred to as the Act ). According to the application since the transaction was in contravention to the Act, therefore, it was prayed to deliver the land back to the applicants. ( 3. ) THE application was resisted by the present petitioner. According to him the sale transaction took place on 23rd November, 1953 and the land was sold to the petitioner after receiving the consideration. ( 4. ) THE Sub Divisional Officer vide its order dated 31-3-1989 (Annexure A-5) came to hold that the provisions of Section 4 are applicable and as such directed petitioner to deliver the possession of the land in question. This order was assailed by petitioner by filing appeal before the Collector which has also been dismissed by it on 10-9-1990 (Annexure A-6 ). ( 5. ) THE contention of learned Counsel for petitioner is that nowhere in the application filed under Section 4 of the Act by the predecessors of respondent Nos. 3 to 5, who were the applicants before the SDO, it has been pleaded that they are the "holder of agricultural land". Learned Counsel has invited my attention to the definition of "holder of agricultural land" which is defined in Section 2 (c) of the Act. It has been further contended that there is no finding either by the SDO or by the Collector that predecessors of respondent Nos. 3 to 5 were "holder of the agricultural land" and thus it can not be said that there is any applicability of any of the provisions of the said Act. Learned Counsel has placed reliance on three decisions of Division Bench of this Court. They are Narmada Shankar and Anr. v. Collector, Dhar and Ors. , 1985 MPLJ 444 , Kesharsingh and Anr. v. Bhavsingh and Ors. , 1994 MPLJ 268 and Ram Prasad v. State of M. P. and Ors. , 1995 (2) Vibha 113. ( 6. Learned Counsel has placed reliance on three decisions of Division Bench of this Court. They are Narmada Shankar and Anr. v. Collector, Dhar and Ors. , 1985 MPLJ 444 , Kesharsingh and Anr. v. Bhavsingh and Ors. , 1994 MPLJ 268 and Ram Prasad v. State of M. P. and Ors. , 1995 (2) Vibha 113. ( 6. ) ON the other hand Shri Das, learned Counsel for the respondents argued in support of impugned orders and has submitted that the SDO and Collector by arriving at a finding of fact that loan was subsisting and, therefore, did not err in passing the impugned orders. ( 7. ) HAVING heard learned Counsel for the parties, I am of the view that this petition deserves to be allowed. ( 8. ) THE moot question to be decided is whether the predecessors of respondent Nos. 3 to 5 were the "holder of agricultural land" or not. In this regard, it would be appropriate to re-write the definition which reads thus : "2. Definitions. In this Act, unless the context otherwise requires, (a) *** *** *** *** (b) *** *** *** *** *** (c) "holder of agricultural land" in the weaker sections of the people means a holder of land used for purposes of Agricultural not exceeding eight hectares of unirrigated land or four hectares of irrigated land within the State whether as a Bhumiswami or an occupancy tenant or a Government lessee either in any one or all of the capacities together within the meaning of the Code. " ( 9. ) IN order to set in motion the provisions of Section 4 of the Act, it is to be proved that the predecessors of respondent Nos. 3 to 5 were of weaker sections and they were not holding the land exceeding eight hectares of unirrigated or four hectares of irrigated land within the State whether as a Bhumiswami or an occupancy tenant or a Government lessee. According to me, in order to attract the provisions of Section 4 of the said Act, it is incumbent to prove that the agriculturist was "holder of agricultural land" and was not having eight hectares of unirrigated or four hectares of irrigated land in the State. ( 10. According to me, in order to attract the provisions of Section 4 of the said Act, it is incumbent to prove that the agriculturist was "holder of agricultural land" and was not having eight hectares of unirrigated or four hectares of irrigated land in the State. ( 10. ) IN the case of Narmada Shankar (supra), the Division Bench of this Court in Para 12 specifically held that the words used in Section 2 (c) of the Act are restricted to only those persons in the weaker section of the people and not every holder of agricultural land who has less than eight hectares of unirrigated and four hectares of irrigated land and it is only such people who have been exploited in relation to their agricultural lands that their transaction could be covered under the definition of Section 2 (f) defined under the prohibited transaction of land. In the present case neither there is any averment in the application filed before SDO nor there is any finding in that regard either by the SDO or Collector that the predecessors of respondents were having land lesser to 8 hectares of unirrigated and four hectares of irrigated land. According to me, in absence of any such averments in the application, the dispute which was raised, was is not maintainable. There is no finding in this regard either by SDO or by Collector, therefore the applicability of Section 4 of the Act does not arise. ( 11. ) IN the case of Kesharsingh (supra) in Para 20, this Court held that before re-opening the prohibited transaction of loan, the SDO must first conclude that the applicant is "holder of agricultural land". In the case of Kesharsingh (supra), this Court allowed the petition by setting aside the order of SDO and Collector and the transaction which took place on 27-6-1960 was held to be not prohibited transaction of loan. Similar view was taken in the case of Ram Prasad (supra ). Since there is no averment in that regard in the application that predecessors of respondent Nos. 3 to 5 were having less land as mentioned in Section 2 (C) of the Act, according to me, the SDO and Collector without jurisdiction and arbitrarily passed the impugned order. Similar view was taken in the case of Ram Prasad (supra ). Since there is no averment in that regard in the application that predecessors of respondent Nos. 3 to 5 were having less land as mentioned in Section 2 (C) of the Act, according to me, the SDO and Collector without jurisdiction and arbitrarily passed the impugned order. Though in the application, it is mentioned that the land which is sold in that land, predecessors of respondents were having l/3rd share, but, nowhere in the application it is mentioned that apart from the disputed land they were not having any other land. ( 12. ) IN view of above, according to me, the order Annexure A-5, dated 31-3-1989 passed by SDO and order Annexure A-6, dated 10-9-1990 passed by Collector is hereby set aside. The petition is allowed without any order as to costs.