The requirement for prior permission for the transfer of land as mandated by the Madhya Pradesh Land Revenue Code, 1959, is a mandatory precondition, and failure to obtain such permission renders the transfer a nullity.

SANJAY YADAV, J.

1. Heard. Order dated 8-2-2006 passed by Additional Commissioner is being assailed vide this petition; whereby while setting aside the order passed on 28-1-2002 by Collector, Mandla, the sale of land bearing Khasra No. 14 area 0.68 hectare, Khasra No. 1 area 1.23 hectare, Khasra No. 18 area 1.41 hectare, Khasra No. 162 area 0.60 hectare and Khasra No. 3 area 1.15 hectare, Patwari Halka No. 32, Village Khupsar by petitioners in favour of respondent No. 3 has been upheld.

2. Collector on the finding that the land in question being given on lease to respective petitioners in the year 1975-76, its transfer without seeking prior permission as contemplated under Section 165(7-b) of M.P. Land Revenue Code, 1959 was void and, therefore, the sale was set aside.

3. Reversing the order, Additional Commissioner found that the lease being granted in years 1975-76 and the transfer being effected in the year 1990, was not hit by Madhya Pradesh Land Revenue Code (Amendment) Act, 1992.

4. Amendment Act, 1992 inserted following sub-section (3) under Section 158:--

"3. Every person--

(i) who is holding land in Bhoomiswami right by virtue of a lease granted to him by the State Government or the Collector or the Allotment Officer on or before the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such commencement, and

(ii) to whom land is allotted in Bhoomiswami right by the State Government or the Collector or the Allotment Officer after the commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1992 from the date of such allotment,

shall be deemed to be a Bhoomiswami in respect of such land and shall be subject to all the rights and liabilities conferred and imposed upon a Bhoomiswami by or under this Code:

Provided that no such person shall transfer such land within a period of ten years from the date of lease or allotment."

5. Corresponding amendment was also brought in sub-section (7-a) of Section 165 of Code 1959 whereby following expressions were inserted:--

"(7-a) Notwithstanding anything contained in sub-section (1), no Bhoomiswami specified in Section 33 of the Madhya Pradesh Bhoodan Yagna Adhiniyam, 1968 (No. 28 of 1968) shall have the right to transfer any interest in his land specified in the said section without the permission of the Collector."

6. The above provision as it existed at the time when the transfer was effected, i.e., in the year 1999 was as follows:--

"(7-A) Notwithstanding anything contained in sub-section (1), no Bhumiswami specified in Section 33 of the Madhya Pradesh Bhoodan Yagna Adhiniyam, 1968 (No. 28 of 1968), shall have the right to transfer any interest in his land specified in the said section without the permission of the Madhya Pradesh Bhoodan Yagna Board."

7. Thus, incumbent it was upon the parties concerned to have obtained the permission before effecting the transfer of a land specified under Section 33 of Madhya Pradesh Bhoodan Yagna Adhiniyam, 1968.

8. Section 33 of 1968 Act provides for:--

"33. Bhoodan holders to acquire Bhoomiswami rights.--Any person holding land as a Bhoodan holder for ten years continuously in accordance with the provisions of this Act shall, at the expiry of the said period, acquire the rights of Bhoomiswami under the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959), and the title and interest of the Board in the said land shall cease."

9. It is evident from the facts of the present case that the petitioners were allottees of land by the State Government and respondent Nos. 3 and 4 having failed to establish that the allotment was not under the Act of 1968, the petitioners acquired Bhoomiswami right over the property in question.

10. Ignoring this aspect, Commissioner reversed the order passed by Collector on the following finding:--

11. These findings when tested on the anvil of the provisions contained under Section 165(7-A) as it existed when the transaction were effected wherein prior permission was a mandat