JUDGMENT

FAZAL ALI, 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.

2. The facts of the case lie within a narrow compass and may be stated as follows :

Proceedings under Maharashtra Agricultural Lands (Ceiling on Holdings) Act (Maharashtra Act No. XXVII of 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 Deputy Collector, 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 his nephews as a result of which his family got 202 acres of land. The appellant had sold 51 acres of land to other persons before the Act came into force. The appellant further alleged that he gave some lands to his adopted son in lieu of the latters share. The 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 examining 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 the order of the Deputy Collector, the Commissioner appears to have called for the records and interfered suo motu and after making some enquiry, he held that the land declared by the appellant in his return far exceeded the ceiling limit. In computing the total lands owned by the appellant, the Commissioner appears to have taken into account even that land which had been given by Nemi Chand to his mother, the 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 grant of certificate for appeal to this court which was granted. Hence this appeal.

3. 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 be included in the ceiling of the appellant and that the Commissioner therefore had no jurisdiction to add that land and treat the same as the land of the appellant and proceed to set aside the order of the Deputy Collector. The High Court in a short judgment refused to interfere mainly on the ground that the transfer of the land in favour of Nemi Chand, 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 the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer by Nemi Chand in favour of his mother were collusive or tainted by fraud. In fact both these transactions took place as far back as 1956, that is to say five years before the Act came into force. Even the Act clearly exempts lands which may 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 transfers would 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 justified in presuming that the transfer made by the appellant in favour of his adopted son and the transfer by the adopted son Nemi Chand 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.

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