Case: Bai Achhuba Amar Singh Vs. Sri Kalidas Harnath Ojha And Others

1. This is an appeal by special leave from the judgment of the High Court of Bombay allowing a writ application preferred before it by the first respondent and setting aside the order of the Bombay Revenue Tribunal which had upheld the order of the Prant Officer in a matter arising under the Bombay Tenancy and Agricultural Lands Act. 1948 (Bom. LXVII of 1948 hereafter referred to as the Act.2. The appellant was admittedly the owner of survey Nos 231 and 260 of the Village Duchakwada, Taluka Deodar, District Banaskantha in the State of Gujarat. Survey No. 231 was leased out to a tenant, Virua Pana, while survey No. 260 had been reserved by her in the year 1950 for grazing cattle. Possibly other cattle in the village were also allowed to graze there because of paucity of grazing facilities therein.3. The appellant is a jagirdar and evidently possesses considerable property. The respondent No. l was for some time her karbhari (manager of her estate). While he was occupying that position he obtained from her a sale deed on October 31, 1950, in respect of both these fields. According to the appellant she received no consideration for the transaction. However, that is not material. Shortly thereafter, the appellant made an application to the Mamlatdar, Deodar, for a declaration that the sale deed was invalid as being in contravention of Ss. 63 and 64 of the Act. It would appear that at about the same time certain villagers of Duchakwada made an application before the Collector, Banaskantha under S. 84 of the Act for the summary eviction of the respondent No. 1 on the ground that the transaction was rendered void by virtue of the provisions of Ss. 63 and 64 of the Act and also seeking the reservation of survey No. 260 for grazing purposes. It seems that the appellants application also went before the Collector, inasmuch as the order he made dealt with the appellants contention also. It raninto consideration all the circumstances it is hereby, ordered that the sale made by Shrimati Achhuba in respect of two fields Vidvalu and Vaghdelavalu should be treated as void under Section 64 (3) of the Bombay Tenancy and Agricultural Lands Act and the village records corrected accordingly. Shrimati Achhuba should be persuaded to set apart these two fields as grazing area for the grazing of village cattle of Duchakwada in order to maintain the standard as fixed by the Government. If she agrees, the persons in the present occupation of the land should be evicted and the fields kept open for free grazing of villageapplication for revision preferred by the respondent No. l before the Bombay Revenue Tribunal was dismissed by it. Thereupon he preferred a writ petition before the High Court. The High Court, while it affirmed the order of the Revenue Tribunal, in so far as survey No. 231 was concerned remanded the matter to the Collector for deciding two points, one being whether the respondent No.1 was an agriculturist and the other whether there was a tenant on the land and if it found that there was no tenant whether the Collector was justified in declaring the sale void under S. 63 (1). When the matter went back to the Revenue Tribunal after remand it was contended on behalf of the respondent No. 1 that the Collector had no jurisdiction to declare the sale to be void without passing a consequential order under S. 84. The Tribunal held that since this point had not been raised at the earlier stages of the proceedings nor even before the High Court the point should not be allowed to be raised. The Tribunal further held that respondent No. 1 was not an agriculturist. It also held that the Collector was justified in declaring the sale even of survey No. 260 void. A second writ petition was preferred by the respondent No. l against this order: but it was dismissed by the High Court.4. It will thus be seen that it had finally been held in the proceedings to which the respondent No. 1 was a party that the entire transaction in his favour was void and that he was in unauthorised occupation not only of survey No. 231 but also of survey No. 260.5. In the year 1956 the Act was extensively amended. The amendment came into force in August, 1956. One of the new provisions in the Act is S. 84-A. This provision reads84-A (1): A transfer of any land in contravention of Section 63 or 64 as it stood before the commencement of the Amending Act, 1955 made after the 28th day of December, 1948 (when the Bombay Tenancy and Agricultural Lands Act, 1948 came into force) and before the 15th day of June, 1955 shall not be declared to be invalid merely on the ground that such transfer was made in contravention of the said sections if the transferee pays to the State Government a penalty equal to one per cent. of the consideration or Rs. 100. whichever is less:Provided that, if such transfer is made by the landlord, in favour of the tenant in actual possession, the penalty leviable in respect thereof shall be one rupee:Provided further that if any such transfer is made by the landlord in favour of any person other than the tenant in actual possession, and such transfer was made either after the unlawful eviction of such tenant, or results in the eviction of the tenant in actual possession, then such transfer shall not be deemed to be validated unless such tenant has failed to apply for the possession of the land under sub-s. (1) of S. 29 within two years from the date of his eviction from the land.(2) On payment of such penalty, the Mamlatdar shall issue a certificate to the transferee that such transfer is not invalid.(3) Where the transferee falls to pay the penalty referred to in sub-s. (1) within such period as may be prescribed, the transfer shall be declared by the Mamlatdar to be invalid and thereupon the provisions of sub-ss. (3) to (5) of S. 84C shallto avail himself of this provision the respondent No. 1 made an application before the Mamlatdar, Deodar for validation of the transfer in his favour. This application was granted by the Mamlatdar. Shortly after this happened the Collector of Banaskantha took up the matter suo motu in revision and set aside the order of the Mamlatdar. A revision application preferred against the order of the Collector was dismissed by the Revenue Tribunal. Thereafter the respondent No. 1 preferred a writ petition before the High Court which was thus his third writ petition. That petition having been allowed, the appellant has come up before this Court, as already stated, by special leave.

Reasoning:
This contention is also without any force. We have already quoted the portion of the order of the Collector in so far as it related to the prayer of the appellant for evicting the respondent No. 1 from survey No. 260. It will be clear from it that the Collector did grant a conditional relief with respect to this field. For granting such a relief it was thus necessary for the Collector to adjudicate upon the validity or otherwise of the transfer. The Collectors order was affirmed by the Revenue Tribunal and the writ petition in which the respondent challenged it before the High Court was dismissed. The whole question, including the validity of the Collectors order must therefore, be regarded as having become final and conclusive between, the parties. Even assuming that despite all that has happened, it is open to us to consider whether the order of the Collector declaring the sale transaction to be void was within his jurisdiction or not, we have little doubt that it was within his jurisdiction. No doubt, neither S. 63 or S. 64 nor even S. 84 speaks of making a formal declaration by the Collector that a transaction is void because it is in contravention either of S. 63 or S.64 cannot be just ignored by the transferor. Some authority must determine whether in fact the transfer is in contravention of either of these provisions. The question of obtaining such a determination will arise where the transferor has lost possession. For obtaining possession of which the transferor was deprived in consequence of an invalid transfer the Act enables him to resort to the provisions of S. 84. Under that provision the Collector has to ascertain as already stated, whether the transfer is in fact in contravention of S. 63 or S. 64. His finding in that regard is tantamount to a declaration that the transfer is invalid. We may point out that there is no provision in the Act which expressly provides for the making of a formal declaration by any Revenue Authority to the effect that a transfer in contravention of S. 63 or S. 64 is invalid. When the legislature provided in S. 84A that a transfer in contravention of either of the two sections shall not be declared invalid what it meant was merely this that transfer shall not be treated to be invalid even when it is found to be in contravention of S. 63 or S. 64 of the Act. This is precisely what the Collector did in this case. Unless we give this meaning to these words they will be meaningless.11. We are further of the view that the provisions of S. 84A are prospective in their application. A bare perusal of the provisions of S. 84A would show that what that Section does is to impose an embargo upon the making of a declaration that a transfer is invalid on the ground that it was made in contravention of the provision of Ss. 63 and 64. Its operation is thus prospective in the sense that it bars making of any declaration or a finding that a transfer is invalid after it came into force. It does not affect any adjudication in which a transfer had already been held to be invalid. Thus it can possibly have no application to a case like the present wherein a declaration or a finding as to invalidity had already been made by the Collector and was followed by an order of eviction, albeit conditional. The Mamlatdar, therefore, had no jurisdiction to issue the certificate in question to the respondent.