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High Court Of Madhya Pradesh
J. S. VERMA, B. M. LAL
DHIRENDRA NATH - Appellant
Versus
STATE - Respondents
MISC. PETN. 1346 Of 1981
Decided On : 11/28/1985
(2) Words & Pharases-word 'otherwise'-meaning of.
An Explanation was added to sub-section (6) to say that the expression "otherwise" shall not include lease to indicate that leases were not covered by the amended section.
[Para 4]
(3) Land Revenue Code, 1959 (M. P.) -Ss. 170-A & 170-B-challenge to Constitutional validity rejected.
The challenge to the Constitutional validity of the impugned provisions must be rejected even without the aid of Article 31-B and 31-C since no case of violation of any of the Constitutional rights relied on by the petitioners has been made out. AIR 1985 SC 389 & AIR 1984 SC 1151 relied on. [Para 10]
(4) Land Revenue Code, 1959 (M. P.)-S. 170 B (3)-enquiry necessary -without enquiry a transfer cannot be declared void.
Sub-section (3) of section 170-B provided that on the receiept of such informotion, the Sub Divisional Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the tribal transferor has been defrauded, the transaction shall be declared null and void and an order would be made revesting the agricultural land in the tribal transferor or his legal heirs, as the case may be. The order contemplated by sub-section (3) is to be passed only as a consequence of a finding reached after due enquiry that in the transaction of transfer, the tribal transferor had been defrauded of his legitimate right. Unless such a conclusion is reached, no question arises of declaring the transaction null and void and passing an order revesting the agricultural land in the tribal transferor or his legal heirs. [Para 12]
(5) Land Revenue Code, 1959 (M. P.)-S. 170 B (2) & (3)-presumption under the provision is a final-has to be passed under sub section (3).
Obviously, the presumption arising by virtue of sub-section (2) is based on the ground that if the person in possession has nothing to say nor show that his possession is under any lawful right and that the same is not derived as a result of a transaction defrauding the tribal transferor, the logical consequence must follow to presume that the transfer was void. The rule of evidence contained in sub-section (2) providing for such a presumption obviously dispenses with any further enquiry in such a case and the final order contemplated by sub-section (3) is required to be made taking into account this presumption arising under sub-section (2). [Para 12]
The apprehension of the petitioners that in cases covered by sub-section (2), no order is required to be passed by the Sub-Divisional Officer is not justified either on the meaning of the provision or even on the actual practice adopted in disposal of such matters.
[Para 15]
(6) Land Revenue Code, 1959 (M. P.)-Ss. 170-A & 257-A are not ultra vires of Article 14.
(7) Constitution of India-Art. 14-Ss. 170-A & 257-A of the Code are not ultra vires of Art. 14. 1981 RN 382 (HC) relied on. [Para 16]
(8) Land Revenue Code, 1959 (M.P.)-Ss. 170-A & 257-A-are not un-constitutional-Constitution of India-Arts. 19 (1) (f) & 300-A.
(9) Constitution of India-Arts. 19 (1) (f) & 300-A-section 170-A & 257-A of the Code are not ultra vires the Constitution.
These provisions of section 170-A & 257-A are enacted only to declare invalid those transactions which were invalid from the outset and had not conveyed any title to the non-tribal transferee. It is now well settled that there is nothing like nullity in the absolute sense and even a nullity continues to operate unless so declared by a proper forum in a proper proceeding.
The impugned provisions, enabled declaration as nullity of transactions which were nullity from inception being un-conscionable transactions between un-equals in which the consent and the contract resulting in the transfer was void on account of absence of the essentials to make a valid contract. [Para 17]
(10) Land Revenue Code, 1959 (M. P.)-Ss. 170-A & 257-A-are not unconstitutional.
(11) Constitution of India-Art. 19 (1) (g)-do not make the provision of section 170-A & 257-A of the Code unconstitutional-transfers are invalid from inception.
If the transfer was void from the inception and the impugned provisions have only the result of enabling such a declaration, no right can be claimed on its basis and it is equally clear that there can be no case of deprivation of the land which was never validly transferred to such a transfree. [Para 18]
(12) Land Revenue Code, 1959 (M. P.)-S. 170-B (2) & (3) -provision are not contrary to the Central laws like Limitation Act-Constitution of India-Arl. 21.
(13) Constitution of India-Art. 21-scope of.
The mere fact that an order contemplated by sub-section (3) has to be passed even in cases falling within the ambit of sub-section (2), as practice which is admittedly being followed, is sufficient to indicate that there is no usurpation of judicial function thereby and there is no arbitrariness in the procedure nor is there the vice of absence of enquiry.
[Para 20]
(14) Land Revenue Code, 1959 (M.P.)-S. 170-B (3)-power of appellate authority-case can be re-opened if proper cause is shown-is not violative of Arts.14 & 254 (2) of the Constitution of India.
(15) Constitution of India-Art.14-when violated.
It would be open at least to the appellate authority in suitable cases, if proper cause is shown to reopen the matte, to direct toe Sub-Divisional Officer to give a fresh decision under subsection (3) on merits taking into account the cause shown by the transferee. This also ensures reasombility of the procedure in all cases including those falling within the ambit of sub-section (2). Such an order may also be treated as an ex-parte order which may be set aside by the Sub-Divisional Officer himself on sufficient cause being shown to explain the transferee's default in notifying the particulars within the period prescribed. This construction also shows that the procedure prescribed is fair and reasonable so that there is no violation of Article. 14. [Para 21]
Clause (2) of Article 254 relates to matters enumerated in the concurrent list. It is settled that the impugned legislation is under Entry 18 of the State list in the Seventh Schedule to the Constitution on account of which clause (2) of Article 254 of the Constitution is not attracted. AIR 1984 SC 1151 relied on. [Para 22]
(16) Land Revenue Code, 1959 (M.P.)-S. 170 B-provisions are not contrary to the Central Acts.
Declaration as void of a contract which was void ab initio is not repugnant to any provision in the Transfer of Property Act or Contract Act and is really consistent therewith. So far as the Limitation Act is concerned, section 29 (2) therein itself lays down that any special law of limitation supersedes the general limitation prescribed thereby. There is also, therefore, no repugnancy between section 170-B and any of these Central enactments. [Para 22]
(17) Land Revenue Code, 1959--Ss. 170-A & 170-B-question of limitation in appeal or revision-the appellate or revisional authority shall condone the delay because of time spent in writ proceedings. [Para 24]
( 1 ) THE challenge made in this petition is to the constitutional validity of S. 170-A and S. I70-B of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the Code) as well as the notification No. F-16-1-81-II-XXV, dated 15th April 1981 (Annexure-A) issued by the Governor of Madhya Pradesh in exercise of the powers conferred by sub-para (1) of para 5 of the Fifth Sch. to the Constitution of India. This order shall also dispose of the entire batch of petitions in which the validity of these provisions has been challenged on account of which all these petitions were heard together.
( 2 ) THE history of legislation together with the relevant provisions may be stated at the outset. The M. P. Land Revenue Code, 1959, came into force with effect from 2-10-1959. Section 165 relates to rights of transfer and in sub-sec. (1) it says that a Bhumiswami may transfer any interest in his land subject to the other provisions of this section and the provisions of S. 168. Section 168 deals with leases and restricts the grant of lease by a Bhumiswami beyond the period specified except by a Bhumiswami belonging to one of the specified categories, for example, a widow, a minor etc. , in whose case cultivation of the land directly is considered impracticable. Section 169 provides for the effect of an unauthorised lease resulting in accrual of rights of an occupancy tenant on the lessee giving rise to the further consequences mentioned in Ss. 189 and 190 of the Code. i. e. conferral of Bhumiswami rights on an occupancy tenant in the circumstances mentioned therein. Sub-sec. (6) of S. 165, as originally enacted, prohibited transfer of the right of a Bhumiswami belonging to a tribe which had been declared to be an aboriginal tribe by the State Government by notification in that behalf to a person notbelonging to such tribe without the permission of a revenue officer not below the rank of a Collector given for reasons to be recorded in writing. As a consequence thereof, S. 170 was enacted for avoidance of transfers in contravention of S. 165. As originally enacted, S, 170 provided for recovery of possession of the holding by any person who if he survived the Bhumiswami without nearer heirs would inherit the holding by an application to the Sub-Divisional Officer within two years of such transfer made in contravention of sub-sec. (6) of S. 165. These provisions in the Code prohibited transfer by such a Bhumiswami of his rights in the land to a non-tribal without the written permission of the Collector and also provided for avoidance of a transfer in contravention of this provision in the manner indicated. It is also significant that sub-sec. (6) of S. 165, as originally enacted, dealt with the right of a Bhumiswami in the land which meant any right in the immovable property.
( 3 ) BY M. P. Act No. 37 of 1973 the original sub-sec. (7) of S. 165 was amended. The original sub-sec, (7) laid down that only that part of a holding of Bhumiswami shall be liable to attachment or sale in execution of any decree or order which was in excess of five acres of irrigated or ten acres of unirrigated land. By this amendment made in 1973, it was also provided that no land comprised in a holding of a Bhumiswami belonging to such an aboriginal tribe shall be liable to be attached or sold in execution of a decree or order.
( 4 ) THE next significant amendments made in the Code were by M. P. Act. No, 61of 1976 with effect from 29-11-1976. By this amendment, sub-sec. (6) of S. 165, S. 169 and S. 170 were amended and S. 170-A and S. 257a were inserted in the Code. Briefly stated, the amended sub-sec. (6) of S. 165 laid down that in areas predominantly inhabitated by aboriginal tribes, transfer of land by sale or otherwise by a tribal could not be made to a non-tribal and in the remaining areas the land by a tribal could not be transferred by way of sale or otherwise without the permission in writing of a revenue officer not below the rank of C
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