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HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'bte Shri Justice Prashant Kumar Mishra Writ Petition No.5176 of 1989 Vishal Chandrakar versus State of Madhya Pradesh (now Chhattisgarh) and others ORDER Post for 08 -3-2011 Sd//- Prashant Kumar Mishra Judge ^2- HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Prashant Kumar Mishra Writ Petition No.5176 of 1989 Petitioner Respondents versus Vishal Chandrakar State of Madhya Pradesh (now Chhattisgarh) and others Present: Shri P.P.Sahu, counsel forthe petitioner. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondents No.1 and 3. Shri Sandeep Dubey, counsel for respondents No.4 and 5. Writ Petition under Article 226/227 ofthe Constitution of India ORDER (Passed on O?^ March, 2011) Challenge in this writ petitionunder Article 226 and 227 of the Constitution of India, preferred by the holders of the agricultural land, is to the order passed by the Board of Revenue on 28-4-1989 (Annexure P-8) as also for a declaration that the sale-deed dated 2-2-1972 executed by the holder in favour of respondents No.4 and 5 be declared as valid. It has also been prayed that the entire holding be declared as unirrigated and the respondents be restrained from interfering in the possession of the petitioners over the land in'question. 2. The proceedings under the Madhya Pradesh Ceiling on ^gricultural Holdings Act, 1960 (Now Chhattisgarh Ceiling on Agricultural Holdings Act, 1960; henceforth 'the Act, 1960') was ^ ^. 2 initiated by the Sub-Divisional Officer, Durg, however, in view of the fact that the lands belonging to the original holder Smt. Basanbai is situated in more than two districts of Raipur Division, the ceiling case was transferred to the Additional Commissioner, Raipur Division. The Additional Commissioner, on the basis of information supplied by the Superintendent, Land Records, Ceiling, issued draft statement under Section 11(3) of the Act, 1960. In the absence of any statement (Vivarani) having been submitted by the holder, the draft statement was pasted on the house of the original holder. The Additional Commissioner-cum-competent authority passedan order on 20-5-1976, however, the said order was set aside by the Board of Revenue by its order dated 5-2-1977 (Annexure P-2) on the ground that the original holder was not heard before passing of the order. 3. In the proceedings after the remand, the Additional Commissioner passed final order on 30-9-1985 (Annexure P-3) to hold that out of the total area of 176.91 acres of land the holder is found to have surplus land admeasuring 17.81 acres. While passing the said final operative order, the Additional Commissioner recorded the following findings: (a) The holder was holding 176.91 acres of land out of which an area of 20.06 acres was found to be bona fidely alienated in the previous order and thus on . the appointed date the holder was actually holding 156.85 acres. (b) The holder and members of her family were entitled to hold 102 acres ofland and as earlier ordered, an area of 54.85 acres was found surplus. <?r ^- ^ ^al (c) On 2-2-1972 the holders executed sale-deed in favour of present respondents No.4 and 5, namely, Lugdu and Pawan Kumar by sale-deed dated 2-2- 1972 whereas actual possession was handed over to the purchasers about 8-9 years back from the date of execution of sale-deed. Thus, the sale- deed was held to be bona fide. (d) An area of 2.25 acres was acquired by the State Government for Sirsakala Tank (Jalashay) and this area is required to be excluded from computation. (e) Claim made by the holders for reducing 12.50 acres from computation on the ground that the said area was leased out to one Tetku was rejected. (f) An area of 3.53 acres is used as Khalihan and as such the user being for non-agricultural purpose this area is required to be exempted. (g) Plea regarding land of Village Deobaloda is not irrigated as it is located at the end of canal and water supply is not made available, was negatived. (h) An area of 6.65 acres sold to Shri B.L.Jethani on 6- 8-1970 and an area of 0.41 dismil sold to Hiraman on 17-5-1971 was found to be valid and this area was also excluded from computation. (i) Plea regarding gift of 1 acre of land to Government Middle School and thus entitled to exemption was rejected. (j) At the end, the Additional Commissioner found only 17.81 acres of land as surplus land. 4. The holders preferred appeal before the Board of Revenue to ehallenge the order passed by the Additional Commissioner on 30-9- CjS> ^ .-<( 4 1985. This appeat was decided vide order dated 22-7-1988 (Annexure P-5). It was held by the Board of Revenue that on proper calculation, the total area to be declared surplus would come to 15.12 acres as against the area calculated as 17.81 acres by the Additional Commissioner. However, the Board of Revenue, vide paragraph 10 ofthe order, recorded a finding that by its earlier order dated 8-9-1977, the Additional Commissioner had already declared the sale-deed dated 8-9-1977 executed by the holders in favour of Lugdu and Pawan as void in exercise of powers under Section 4 of the Act, 1960 and yet this transaction was subsequently allowed by the Additional Commissioner while passing the final order, which requires to be reconsidered by initiating suo motu revision proceedings and for this a separate suo motu revision was registered and notices were issued to the holders as well as to the purchasers. 5. The Board of Revenue issued the show cause notice on suo motu revision vide Annexure P-6 calling upon the holders and the purchasers to explain as to why such part of the order passed by the Additional Commissioner on 30-9-1985 declaring the sale-deed in favour of Lugdu and Pawan as valid may not be recalled and the sale-deed be declared void. The holders submitted their reply vide Annexure P-7. The suo moifu revision was ultimately allowed in favour of the State Government by the impugned order Annexure P-8. Though no express prayer for setting aside the order Annexure P-5 has been made yet in view of the averments made in ground No.8 in the writ petition, learned counsel for the petitioners was o ^ '--^ •^ allowed to raise arguments as if Annexure P-5 is also under challenge. 6. Learned counsel for the petitioner as well as learned counsel appearing for respondents No.4 and 5 (including legal heirs of respondent No.5) have argued that the Board of Revenue committed serious error of law by reopening the matter with regard to the sale- deed dated 2-2-1972 as the said sale-deed was already declared valid by the Additional Commissioner in his final order. They would submit that the said sale-deed was bona fide and was not executed to defeat the provisions of the Act, 1960 and, therefore, declaration of the said sale-deed as void is illegal. 7. Per contra, learned counsel appearing for the State has supported the impugned order to submit that finding regarding the said sale-deed being ma/a fide and was executed to defeat the provisions of the Act, 1960 is essentially a finding of fact which cannot be interfered in this petition under Article 226 and 227 of the Constitution of India. 8. Sub-sections (1) and (4) of Section 4 of the Act, 1960, under which the subject transaction has been declared void by the Board of Revenue, read thus: "4. Transfers or partitions made after the publication of the Bill but before the commencement of the Act.—(1) Notwithstanding anything contained in any law for the time being in force, where after, the 1 ^ January, 1971 but before the appointed day, any holder has transferred any land held by him by way of sale, gift, exchange or otherwise or has effected a partition of his i holding or part thereof or the holding held by the holder has been transferred in execution of a decree of any Court, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after such enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of or to defeat the provisions of this Act. xxxx xxxx xxxx xxxx (4) In regard to every transfer to which this section applies the .burden of proving that the transfer was not benami or was not made in any other manner to defeat the provisions ofthisAct shall be on the transferor." ~-~^ r + 9. While dealing with a similar provision contained in Tamil Nadu Land Reforms and Fixation of Ceiling on Land Act, 1961, the Hon'ble Supreme Court, in The Authorised Officer, Thanjavurand another vs. S. Naganatha Ayyar, ete., AIR 1979 SC 1487, has held in paragraphs 11 and 12 thus: "11. ........................ Section 22, literally read, teads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the Authorised Officer 'if he finds that the transfer defeats any of the provisions of this Act.' There is not the slightest doubt that severally and cumulatively the provisions of the Act seek to make available the maximum extent of land, in'excess ofthe ceiling, to be vested in Government for fulfillment of its purposes. Chapter II contains a fasciculus of provisions in this behalf and if any transfer carves out of the surplus area some land, pro tanto, the .provisions of the Act are defeated. Indeed, it is not seriously disputed that such will be the conclusion if we ol ----( 4 do not read into the provisions either the condition that it does not apply to bona fide • transfers, as Shri Ramamurthy would have it, or does not apply to any transfers other than sham, nominal or bogus transfers, as the High Court would have it. A policy-oriented interpretation tallies with the literal construction in the present case. The mischief rule in Heydon's case (1584- 76 ER 637) and the grammatical construction which is the Golden Rule converge to the same conclusion in the present case. 12. The policy of the law of land reform with drastic limit on holdings often drives large holders to evade by manouvres. They make gifts, execute sales or settlements, enter into other dealings to save their properties from being taken by the State. May be in a few cases, the owner has real necessity. But why sell only on the eve of land legislation? Why execute deeds, though for good purposes, only where the bill fixing ceilings is round the corner? By and large, the strategies of extrication of holdings from the arm of the law is the reason that prompts sudden affection for making gifts, sudden realization of debts due and sudden awareness offamily necessity. The legislature, astute enough notto be outwitted in, its objective, puts a blanket ban on transfers which, in effect, defeat its provisions. This may cause hardship to some but every cause claims martyrs. Individual trauma is inevitable while ushering in a new economic order. This is the rationale of Section 22 of the Ceiling Act. Toalloy the sense of the text and to mix alien concepts is to debase the statutory metal. Likewise, laws are not value-free and so he reads the symbolsof words best who projects in the process the values of the legislation as distinguished from his own. Reading other values into the legislators' words may judicially ie^ < ^^ demonetize the statute and break the comity between constitutional instrumentalities." 10. Yet again, while dealing with challenge to the similar provision contained in Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1961, the Hon'ble Supreme Court, in Ambika Prasad Mishra vs. State of U.P. and others, AIR 1980 SC 1762, has held in paragraphs 13 and 14 thus: "13. The last point which had a quaint moral flavour was that transfers of landed property, although executed after the dates specified in the Act were unreasonably invalidated by the Act even when there was no "mens rea" vis-a-vis the Ceiling Law on the part of the transferor and this was violative of Art. 19(1)(f) and of Art. 14 as arbitrary. A facet of over-inclusiveness which breaches Article 14Was also urged. It is perfectly open to the legislature, as ancillary to its main policy to prevent activities which defeat the statutory purpose, to provide for invalidation of such actions. When the alienations are invalidated because they are made after a statutory date fixed with a purpose, there is sense in this prohibition. Otherwise, all the lands would have been transferred and little would have been left by way of surplus. Let us read the text of S. 5(6) which is alleged to be bad being over- inclusive or otherwise anomalous. The argument, rather hard to follow and too subtle for the pragmatic of agrarian law, may be clearer when the provision is unfurled. S. 5(6) runs thus: "In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty- fourth day of Jan. 1971, which but for the transfer would - have been declared surplus land under this Act, shall be ignored and not taken into account: ..iia.niinBii o.3 Provided that nothing in this sub-section shall apply to: 'r- •< --^ t (a) a transfer in favour of any person (including Government) referred to in sub-sec. (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of the family." 14. There is no blanket ban here but only qualified invalidation of certain sinister assignments eto. Counsel weaves gossamer webs which break on mere judicial touch when he argues that transfer 'in good faith and for adequate consideration' have been unconstitutionally exempted. The bizarre submission is that 'adequate consideration' is an arbitrary test. We reject it without more discussion. The second limb of the submission is that while S. 5(6) directs the authority to ignore certain transfers it does not void it. The further spin-off adroitly presented by counsel is that the provision violates the second proviso to Art. 31A. It is a little too baffling to follow and we dismiss the submission as hollow. The provision in S. 5(6), when read in the light ofthe Provisos, isfairand valid." 11. The constitutional validity of Section 4 of the Act, 1960 with which this Court is dealing in the present case was challenged and rejected by.the Full Bench of the Madhya Pradesh High Court in Narbada Prasad vs. State of Madhya Pradesh and others, AIR 1981 MP 101. Though this Court is not faced with the challenge to the constitutional validity of sub-sections (1) and (4) of Section 4 of the Act, 1960 yet in order to appreciate the contention raised by ,0' \ -^f 10 learned counsel for the petitioners as well as learned counsel for respondents No.4 and 5, it is important to keep in mind the observations made by the Full Bench of the Madhya Pradesh High Court as to theobject of legislature in making the said provisions. Extracts of paragraph 13 of the judgment in Narbada Prasad vs. State ofMadhya Pradesh and others (supra) are as under: "13. It was next contended that there was no exact correspondence between sub-sections (1) arid (4) of Section 4 and to the extent the transfers falling under sub-section (1) were not covered by sub-section (4), the burden of proof laid on the transferor under the latter would not be attracted. In this connection it was pointed out that firstly sub-section (1) covers both transfers and partitions whereas sub-section (4) is limited to transfers; and secondly sub-section (1) empowers the competent authority to invalidate a transfer that was made in anticipation of or to defeat the provisions of the Act but sub-section (4) is limited to a transfer which is benami or which is made to defeat the provisions of the Act and it does not cover a transfer which was made in anticipation of the provisions of the Act. This contention is without substance. The entire Ceiling Act including Section 4 has to be construed to effectuate the object of the legislature in making available surplus land to the Government for distribution tothe needy. ................................... The intention to make sub-section (4) very wide in application is further shown from the fact that the burden laid on the transferor is to prove "that the transfer was not benami" or "was not made in any other manner to defeat the provisions of the Act". The words "in any other manner" are wide words and read in the context of the expression "eyery transfer" which occur in the beginning of sub- section (4), the intention is clear to make the sub-section (OJ> < ^^ / + 11 applicable also to a partition. This wide interpretation would also promote the object of the Act. It is also not possible to accept that sub-section- (4) does not embrace a transfer or partition in anticipation of the Act and is restricted to a transfer made to defeat the provisions of the Act. The words "in anticipation of' and the words "to defeat the provisions of' the Act in the context of Section 4 have the same meaning. A transfer is in anticipation of an Act when it is made with a view to defeat the provisions of an Act which is likely to be passed in future. As Section 4 only covers transfers made before the commencement of the Amendment Act No.13 of 1974, all transfers to defeat its provisions will be in anticipation of the Act. Thus, in the context of Section 4, all transfers made in anticipation will be with a view to defeat the provisions of the Act and vice versa. It cannot, therefore, be said that sub-section (4) of Section 4 omits from its ambit certain transfers which are covered by sub-section (1). .............................." 12. This Court would now consider the challenge to the order passed by the Board of Revenue on 28-4-1989 (Annexure P-8) on the anvil of the law laid down and observations made by the Hon'ble Supreme Court in The Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar, etc., (supra) and Ambika Prasad Mishra vs. State of U.P. and others (supra) and by the Madhya Pradesh High Court in Narbada Prasad vs. State of Madhya Pradesh and others (supra). In paragraph 2 of the impugned order, while discussing the earlier order of the Additional Commissioner passed on 8-9-1977 declaring the subjectsale-deed dated 2-2-1972 as void, it has been observed by the Board of Revenue that the said transaction was made on a meager consideration and no valid fC^ < --^i 12 reason for alienating such a large area of land has been demonstrated and that the transaction has been made to defeat the provisions of the Act, 1960. It has further been observed that once the subject transaction has been dedared void by the Additional Commissioner on 8-9-1977 in exercise of powers under Section 4 of the Act, 1960 and thereafter it proceeded to issue final draft under Section 11(6) of the Act, 1960, the Additional Commissioner could not have reconsidered the validity of the transaction to treat it as a genuine transaction not for defeating the provisions of the Act, 1960. 13. Admittedly, transactions/transfer of land between 1-1-1971 to 7-3-1974 are covered within the mischief of sub-section (1) of Section 4 of the Act, 1960 and the burden is on the transferor to prove that the transfer was not Benami or was not made in any other manner to defeat the.provisions of the Act, 1960. The subject sale- deed was executed on 2-2-1972. In response to the show cause notice issued by the Board of Revenue while registering suo motu revision, the petitioners filed their reply vide Annexure P-7. In reply, it has been mentioned that the sale-deed has been executed on 2-2- 1972, i.e., before the introduction ofthe Bill in the legislature on 18- 4-1972 and one agreement to sell was already executed between the parties on 5-11-1963, therefore, the transaction is bona fide and is not covered within the mischief of the provisions contained in Section 4(1) of the Act, 1960 and the earlier order of the Additional Commissioner passed on 8-9-1977 was without jurisdiction, illegal and void. The Board of Revenue has dealt with this reply in paragraphs 3 and 4 ofthe impugned order and thereafterfindinghas i-r < ^f' 13 been recorded in paragraph 6 of the impugned order. It has been observed that while making enquiry before passing the order on 8-9- 1977 und.er Section 4(1) of the Act, 1960 statements of son of Basanbai and respondent No.4 Lugdu were recorded. The said Lugdu had also filed an affidavit and considering all these materials it was concluded by the Board of Revenue that the sale-deed was executed for a meager consideration and it has been executed to defeat the provisions of the Act, 1960. 14. It is to be seen that at the time of issuance of draft under Section 11(3) of the Act, 1960, the said Lugdu and Pawan did not raise any objection before the competent authority nor any appeal was preferred by the said Lugdu and Pawan as provided under sub- section (3) of Section 4 of the Act, 1960. The said sub-section (3) provides that any person aggrieved by an order of the competent authority [under sub-section (1)] under this section may prefer an appeal against such order to the Board of Revenue. The decision of the Board and subject to the decision of the Board in appeal, the decision of the competent authority shall be final. Thus, it was for the said Lugdu and Pawan to prefer an appeal under sub-section (3) of Section 4 of the Act, 1960, however, in the absence of any appeal having been preferred, the fact that the subject sale-deed was in fact a sham transaction to defeat the provisions of the Act, 1960 gets cemented. It is also to be seen that show cause notice Annexure P-6 was issued by the Board of Revenue to the holders, i.e,, the transferors as well as the purchasers, i.e., respondents No.4 and 5 Lugdu and Pawan, respectively. However, nothing has been placed i -.< 14 in the record of this writ petition that the said Lugdu and Pawan also submitted their reply before the Board of Revenue. 15. In Satyadhyan Ghosal and others vs. Smt. Deorajin Debi and another, AIR 1960 SC 941, it