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1960 Supreme(MP) 398
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
A.H. KHAN, SHIV DAYAL SHRIVASTAVA, JJ.
Mangilal Mali
Vs.
State
M.P. No. 28 of 1958
Decided On: 12.12.1960
Important Points
Subject
Land Law - Tenancy Laws
Act Referred
GOVERNMENT OF INDIA ACT : S.104, S.107
Headnote
MADHYA BHARAT TENANCY ACT, 1950 - SECTION 70 - SALE OF HOLDING BY TENANT - CONDITIONS - VALIDITY - FUNDAMENTAL RIGHTS - ARTICLE 19 AND 31 OF THE CONSTITUTION - ARTICLE 254(2) OF THE CONSTITUTION - APPLICABILITY.
Fact of the Case:
The petitioner, a sub-tenant, purchased seven Khasara numbers from the respondents, who were Maurusi Kashtkaras and became Pucca tenants on the abolition of Zamindari. The sale was made without obtaining the previous permission of the Collector as required by Section 70(1) of the Madhya Bharat Tenancy Act. The petitioner applied to the Collector under Section 70(2) for validating the sale, but his application was refused on the ground that the vendors did not have the required 15 acres of non-irrigated land for their maintenance. The petitioner's appeal and revision petition were also dismissed.
Finding of the Court:
The court held that the conditions imposed in Section 70 of the Tenancy Act were reasonable in the interests of the general public and did not infringe any fundamental right of the petitioner. The court also held that the impugned section aimed at reserving at least five acres of irrigated or 15 acres of non-irrigated land for the maintenance of the vender tenant and his family. However, if the tenant wanted to sell the entire holding in the Pargana he was enabled to do so without any restriction so as not to be tied down to that Pargana.
Issues: 1. Whether the conditions imposed in Section 70 of the Madhya Bharat Tenancy Act were ultra vires as they offended against the fundamental rights to property under Articles 19 and 31 of the Constitution? 2. Whether the impugned section aimed at reserving at least five acres of irrigated or 15 acres of non-irrigated land for the maintenance of the vender tenant and his family? 3. Whether the assent of the President under Article 254(2) of the Constitution was required since the impugned section abridges the right of the citizen to sell one's property as one pleases under the Transfer of Property Act?
Ratio Decidendi: 1. The court held that the conditions imposed in Section 70 of the Tenancy Act were reasonable in the interests of the general public and did not infringe any fundamental right of the petitioner. The court also held that the impugned section aimed at reserving at least five acres of irrigated or 15 acres of non-irrigated land for the maintenance of the vender tenant and his family. However, if the tenant wanted to sell the entire holding in the Pargana he was enabled to do so without any restriction so as not to be tied down to that Pargana. 2. The court held that the assent of the President under Article 254(2) of the Constitution was not required since the impugned section fell within the purview of Entry 18 in List II of the Schedule Seventh, which entry includes "transfer and alienation of agricultural land".
Final Decision: The petition was dismissed.
For Appellant/Petitioner/Plaintiff: G.P. Patankar
For Respondents/Defendant:S.T. Mungre, Govt. Advocate for State
SHIVDAYAL, J.
1. This is a petition under Article 227 of the Constitution. Umrao Beg and Afzal Beg (Respondents 2 and 3) were Maurusi Kashtkaras. They became Pucca tenants on the abolition of Zamindari. The Petitioner was their sub-tenant.
2. On October 13, 1953, by a registered sale-deed Respondents 2 and 3 sold seven Khasara numbers for Rs.700 to the Petitioner. The price of the land was paid before the Registrar.
3. Since the vendors had not obtained a previous permission of the Collector as require red by Section 70(1) of the Madhya Bharat Tenancy Act, the Petitioner applied to the Collector under Section 70(2) of that Act for validating the sale. Permission was refused on the ground that atleast 15 acres of non-irrigated land was not still left in the possession of the vendors for the maintenance of himself and his family as required under Sub-section (3) of that section.
4. The Petitioner went in appeal before the Commissioner, but his appeal was dismissed. He filed a revision petition to the Board of Revenue but to no avail.
5. It is first contended by Shri Patankar that Sub-section (6) of Section 70 of the Tenancy Act applies to this case as the Petitioner was a sub tenant. And in Sub-section (6) there is no reference to Sub-section (3) although the other foregoing Sub-sections are applied even to the case of a sub-tenant. That being so, the Petitioner's application, under Section 70(2) could not be disallowed because of Sub-section (3). In my opinion this contention is devoid of substance. Sub-section (6) merely gives a prior claim to purchase the land on a voluntary sale of a holding to (a) a co-tenant; (b) a sub-tenant; and (c) a registered co-operative farming society. That Sub-section does not confer any other right. The prior claim to purchase is made subject to the provisions contained in Sub-sections (1), (2), (4) and (5). Now, Sub-section (1) requires an intending vendor to obtain the sanction of the Collector before he transfers his rights in the whole or part of the holding; Sub-section (2) empowers the Collector to validate a sale on payment of the prescribed penalty if the transfer by sale has already been effected without his previous sanction. The power of the Collector to be exercised under either of the two Sub-sections is regulated by Sub-section (3), which directs the Collector to grant such permission or to validate such sale only when one of the two conditions enumerated therein as (a) or (b) is fulfilled. If both those condition remains unsatisfied, the Collector has no power to grant such permission or to validate such sale. From this it necessarily follows that as soon as Sub-section (1) or (2) is made applicable to a case under Sub-section (6), the third Sub-section ipso facto comes into play. That is why it was unnecessary to mention Sub-section (3) among those named in Sub-section (6). Therefore, as the vendors were left with only 10 acres of non-irrigated land and it is nobody's case that this was all their holding in the Pargana, the Petitioner's application under Sub-section (2) was bound to be dismissed.
6. It is then urged by the learned Counsel for the Petitioner that the conditions imposed in Section 70 are ultra vires as they offend against the fundamental rights to property under Articles 19 and 31 of the Constitution. Reliance is placed on the decision in Atma Ram and Ors. v. State of Punjab AIR 1959 SC 519). The argument is that such a provision abridges the fundamental right under Article 19 and in that case the enactment was saved under Article 31-A, but here the assent of the President under the last mentioned Article was not obtained. This contention too must be rejected. No fundamental right of an intending vendee is infringed by the impugned Section 70. As regards the fundamental right of the vender to dispose of his property, in my opinion the restrictions imposed in that section were reasonable in the interests of the general public. Fragmentation of holdings beyond ascertai
