VITHALDAS JAGANNATH KHATRI (DEAD) THROUGH SMT. SHAKUNTALA ALIAS SUSHMA & ORS. versus THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS.
[2020] 3 S.C.R. 913, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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VITHALDAS JAGANNATH KHATRI (DEAD)
THROUGH SMT. SHAKUNTALA ALIAS SUSHMA & ORS.
v.
THE STATE OF MAHARASHTRA REVENUE
AND FOREST DEPARTMENT & ORS.
(Civil Appeal No. 6006 of 2009)
FEBRUARY 19, 2020
[R. F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, JJ.]
Maharashtra Agricultural Lands (Ceiling on Holdings) Act,
1961: ss.8, 10, 11, 21, 44B – Ceiling limits – Partition Deed dated
31.01.1970 (duly registered on 1.07.1970) executed between
appellant, his wife, minor son and three minor daughters in respect
of agricultural land of HUF – On 19.11.1976, 59 acres and 35
guntas of land of appellant declared surplus by SDO – Appeal filed
by appellant, his wife, minor son and elder daughter – Two other
minor daughters did not appeal being satisfied with the order of
SDO since no part of land that devolved upon them by means of
partition deed was declared surplus – State filed cross objections
challenging the exclusion of land of the two daughters but did not
implead them – Appellate authority allowed the objections holding
that the partition deed though before the cut off date was against
the principles of Hindu Law to the extent that it gave share to minor
daughters in ancestral land – Whether the partition deed registered
prior to cut-off date of 26.09.1970 was against the principles of
Hindu Law to the extent it gave a share to minor daughters in the
land and on that basis, was partition deed of no effect in law –
Held: It is clear from the provisions of the 1961
Act that transfers
or partitions of land made in anticipation of or in order to avoid or
defeat the 1972 Amending Act were to be ignored in calculating
ceiling limits – Under s.21, the Collector has to make a declaration
as to entitlement of a person or family unit to hold within the ceiling
area – Further, s.44B excludes pleaders from appearing on behalf
of any party in any of the proceedings under the 1961 Act – This is
for the reason that the Collector has to determine on the facts of
each case, based on returns filed if any, as to what areas are to be
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excluded so far as determination of ceiling of a person or family
unit is concerned – If it were to be held that the Collector could go
into a trial as to genuineness of a particular partition deed, even
though it is before the cut-off date, it would extend the legal fiction
that is limited to transfers and partitions made after the cut-off date;
and secondly, if a period even before the cut -off date can be
considered, it would render the cut-off date otiose, as then in all
cases the Collector could go into whether a particular transfer or
partition has been entered into to avoid the effect of the 1972
Amendment Act, which is an enquiry restricted only to transfers
and partitions which take place on or after 26.09.1970 upto the
commencement date – Also, if the Collector were to substitute himself
as a Civil Court deciding a Civil Suit, it would be absolutely essential
for a person or family unit to engage a pleader of his choice to
argue all the ramifications that his case may have, both in fact and
in law – In fact, a Civil Court alone would have the jurisdiction to
decide a question as to whether a partition deed entered into before
the cut- off date is or is not sham, which would involve a declaration
that the partition be declared void – The 1961 Act, therefore, bars
the jurisdiction of the Civil Court only insofar as transfers and
partitions are entered into on or after 26.09.1970 and before the
commencement
date, and not to transfers and partitions that take
place before the cut-off date – This apart, once it is clear that the
daughters are affected by virtue of the partition deed being held to
be non est in law by the appellate tribunal, they ought to have been
made parties to the appeal so that they could have made arguments
in favour of the legal validity of the partition deed – This opportunity
being denied to them is also fatal to the appellate authority’s order,
which has, therefore, wrongly been upheld by the High Court –
Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings)
and (Amendment) Act, 1972 – Hindu Law – Partition – Jurisdiction
– Interpretation of statutes – Legal fiction – Party, impleadment of.
Maharashtra Agricultural Lands (Ceiling on Holdings) Act,
1961: ss.8, 10 and 11 – Transfer and partition after cut-off date –
Jurisdiction of Collector to declare such transfer/partition sham
for determining ceiling area – Held: It is not possible to state that
wherever the expressions “transfer” and “partition” occur in ss.8,
10 and 11 of the 1961 Act, they must be understood as meaning
transfers and partitions which are genuine – If the word “genuine”
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is added, it would amount to straining the language of these
provisions and giving these provisions a construction which they
cannot possibly bear - a construction that would go against the
object of giving the Collector a limited jurisdiction to decide whether
lands fall within the ceiling area, and in so doing, whether transfers
and partitions between the cut-off date and commencement date
should be “ignored” – The language of s.11 also leads to the
conclusion that even in case of a partition that is made after the
cut-off date and before the commencement date, the power of the
Collector is not to declare such partition sham, and therefore void,
which is for a Civil Court to do, but is only to ignore such partition
for the purpose of calculating ceiling area – Land Laws –
Interpretation of Statutes.
Allowing the appeal, the Court
HELD: 1. It is clear from the provisions of the 1961 Act
that transfers or partitions of land made in anticipation of or in
order to avoid or defeat the 1972 Amending Act were to be
ignored in calculating ceiling limits. This was so laid down by the
Amending Act, 1975, which made 26.09.1970 the cut-off date after
which such transfers became suspect. The 1961 Act does not in
any manner declare such transfers to be void. However, if the
contrary is proved on the facts of a given case, i.e. that a bonafide
transfer or partition was in fact effected after the cut-off date, the
person affected would be out of the clutches of Section
10 and/or
Section 11 of the 1961 Act. In fact, what is important is the
expression “shall accordingly be ignored”, which occurs in
Section 11. [Para 16][933 A-D]
2. In terms of Section 13, where a person or member of a
family unit either fails without reasonable cause to furnish a return,
or furnishes a false return, he becomes liable to a penalty. A false
return may be ignored by the Collector, requiring the person or
family unit to submit a true and correct return complete in all
particulars under Section 13(2). If thereafter, any such person or
family unit fails to comply with the order within the time so
granted, then, as a penalty for failure to furnish such return or a
true and correct return complete in all particulars, the right, title
and interest in the land held by him or the family unit as the case
may be, in excess of the ceiling area, shall, subject to the
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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provisions of Chapter 4, be forfeited to the State Government
and vest in that Government. This Section gives a limited
jurisdiction to the Collector to determine whether a true and
correct return complete in all particulars has been given. Thus, a
Collector would be well within his jurisdiction to state that a
registered partition deed entered into after 26.09.1970 has been
suppressed in the return furnished, as a result of which a penalty
of INR 500 may be imposed, or excess land forfeited under
Section 13(3). This jurisdiction is limited only to the factum of a
partition deed having been suppressed from the return, and does
not extend to conduct an enquiry as to whether a partition deed
prior to 26.09.1970 is or is not a sham document. [Para 17][933
D-H; 934-A]
3. By Section 14 of the 1961 Act, the Collector is then to
hold an enquiry either suo motu or otherwise, whether or not a
return has been filed, in respect of every person or a family unit
holding land in excess of the ceiling area. In so doing, Section 18
states that the Collector must consider several matters including,
under sub-clause (b), whether any land transferred between
26.09.1970 and the commencement date (which is 02.10.1975),
or any land partitioned after the cut-off date should either be
considered or ignored in calculating the ceiling area as provided
in Sections 10 and 11 of the 1961 Act. If Section 18(a) to (k) are
seen, the evidence adduced
at the hearing to be given to the
holder and other persons interested in the land, only goes to
calculating the total area of the land, including land held by the
holder between 26.09.1970 and 02.10.1975 and lands that have
been acquired after 02.10.1975. All the details mentioned in
Section 18 only speak of ignoring certain transfers or partitions
between the cut-off date and the commencement date, and
otherwise would only go to the calculation of lands held by persons,
and then applying the drill of the ceiling provisions of the 1961
Act. To state that Section 18(l) is a catch-all provision by which
the Collector can determine whether a particular transfer or
partition is a sham transaction, even if entered into before the
cut-off date, is to go beyond the jurisdiction conferred on the
Collector by the 1961 Act. In point of fact, even the language of
Section 18(l) makes it clear that “any other matter” is
circumscribed by the following words: “for the purpose of
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calculating the ceiling area, and delimiting any surplus land.” [Para
18][934 B-G]
4. Under Section 21, the Collector has to make a declaration
as to entitlement of a person or family unit to hold within the
ceiling area and area of land which is in excess of the ceiling
area. Further, what is of importance is that Section 44B excludes
pleaders from appearing on behalf of any party in any of the
proceedings under the 1961 Act. This is for the reason that the
Collector has to determine on the facts of each case, based on
returns filed if any, as to what areas are to be excluded, and what
areas of land are to be included so far as determination of ceiling
of a person or family unit is concerned. If it were to be held that
the Collector could go into a trial as to whether a particular
partition deed is or is not sham, even though it is before the cut-
off date, would have two effects that are not warranted in law -
first, it would extend the legal fiction that is limited to transfers
and partitions made after the cut-off date; and second, if a period
even before the cut-off date can be considered, it would render
the cut-off date otiose, as then in all cases the Collector could go
into whether a particular transfer or partition has been entered
into to avoid the effect of the 1972 Amendment Act, which is an
enquiry restricted only to transfers and partitions which take place
on or after 26.09.1970 upto the commencement date. Also, if the
Collector were to
substitute himself as a Civil Court deciding a
Civil Suit, it would be absolutely essential for a person or family
unit to engage a pleader of his choice to argue all the ramifications
that his case may have, both in fact and in law. In fact, a Civil
Court alone would have the jurisdiction to decide a question as
to whether a partition deed entered into before the cut-off date is
or is not sham, which would involve a declaration that the partition
be declared void. The 1961 Act therefore bars the jurisdiction of
the Civil Court only insofar as transfers and partitions are entered
into on or after 26.09.1970 and before the commencement date,
and not to transfers and partitions that take place before the cut-
off date. [Para 19][934 F-H; 935 A-E]
5. As a matter of fact, if the appeal provision, i.e. Section 33
of 1961 Act is to be seen, it is clear that appeals are provided to
the Maharashtra Revenue Tribunal against a declaration or part
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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thereof made under Section 21 of the 1961 Act. The persons who
would be aggrieved by such declarations can only be the person
or family unit whose ceiling area is determined or the landlord to
whom possession of land is to be restored or the right, title and
interest of the person or family unit whose land is to be forfeited
to the State Government. If at all a cross-objection can be taken
by a respondent under Section 33(1A), it can only be a person or
family unit or landlord spoken of in Section 21(1) of the 1961 Act.
The State Government may perhaps file a cross-objection where
it contends that land has wrongly not been forfeited to it. But
such is not the case on the facts of this appeal. Thus, the State
taking a cross objection on the facts of this case would itself be
outside Section 33(1A). If at all the State can be said to be
aggrieved by a declaration made under Section 21, a suo moto
power of revision is given to the State Government under Section
45, which on the facts of a particular case may well be exercised.
This apart, once it is clear that the elder daughters are affected
by virtue of the partition deed being held to be non est in law by
the appellate tribunal, they ought to have been made parties to
the appeal so that they could have made arguments in favour of
the legal validity of the partition deed. This opportunity being
denied to them is also fatal to the appellate authority’s order,
which has
therefore wrongly been upheld by the Single Judge
and Division Bench of the High Court. [Paras 20, 21][935 E-H;
936 A-B]
6. It is not possible to state that wherever the expressions
“transfer” and “partition” occur in Sections 8, 10 and 11 of the
1961 Act, they must be understood as meaning transfers and
partitions which are genuine. If the word “genuine” is added, it
would amount to straining the language of these provisions and
giving these provisions a construction which they cannot possibly
bear – a construction that would go against the object of giving
the Collector a limited jurisdiction to decide whether lands fall
within the ceiling area, and in so doing, whether transfers and
partitions between the cut-off date and commencement date
should be “ignored”. The language of Section 11 also leads to
the conclusion that even in case of a partition that is made after
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the cut-off date and before the commencement date, the power
of the Collector is not to declare such partition sham, and
therefore void, which is for a Civil Court to do, but is only to
ignore such partition for the purpose of calculating ceiling area.
[Para 28][940 F-H; 941 A-B]
Raghunath Laxman Wani and Ors. v. State of
Maharashtra (1971) 3 SCC 391 : [1972] 1 SCR 48;
Jugal Kishore v. State of Maharashtra (1989) Supp. 1
SCC 589 : [1988] 3 Suppl. SCR 270; State of
Maharashtra and Anr. v. Rattanlal (1993) 3 SCC 326 :
[1992] 3 Suppl. SCR 536 – distinguished.
Gurdit Singh v. State of Punjab (1974) 2 SCC 260 :
[1975] Suppl. SCR 453; Uttar Chand v. State of
Maharashtra (1980) 2 SCC 292 : [1980] 2 SCR 1048;
Bhupendra Singh v. State of Maharashtra (1996) 1 SCC
277 : [1995] 5 Suppl. SCR 491 – referred to.
Case Law Reference
[1975] Suppl. SCR 453
referred to
Para 15
[1980] 2 SCR 1048
referred to
Para 15
[1972] 1 SCR 48
distinguished
Para 22
[1988] 3 Suppl. SCR 270
distinguished
Para 23
[1992] 3 Suppl. SCR 536
distinguished
Para 24
[1995] 5 Suppl. SCR 491
referred to
Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6006
of 2009.
From the Judgment and Order dated 27.11.2007 of the High Court
of Bombay Bench at Nagpur in Letters Patent Appeal No. 3 of 1991.
Krishnan Venugopal, Sr. Adv., Adarsh Tripathi, Anish Gupta,
Jamshed Bey, Amit Singh Chauhan, Ekansh Bansal, Mrs. Bandana Singh
and Ajay Kumar Talesara, Advs. for the Appellants.
Rahul Chitnis, Aaditya A.
Pande and Sachin Patil, Advs. for the
Respondents.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. This appeal has come to us owing to a difference of opinion
between Sanjay Kishan Kaul, J. and K.M. Joseph, J. in a judgment
dated 29.08.2019.
2. The brief facts necessary to appreciate the controversy in this
appeal are as follows: a partition deed dated 31.01.1970 (duly registered
on 1.07.1970) was executed between late Shri Vithaldas Jagannath Khatri
and his minor son and three minor daughters.In terms of this document,
the agricultural land of the Hindu Undivided Family (HUF) is sought to
be divided by mentioning that parties two to five - who are the four
children of Vithaldas - have to be provided expenses for their education
and marriage, which will be borne out of the separate property allotted
to each. An earlier partition deed was executed between Vithaldas and
his father Jagannath on 20.01.1955.Separate provision was made in favour
of the wife of Vithaldas by means of a gift deed of land in her favour.
3. At this stage, it is necessary to set out certain provisions of
‘The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961’
(hereinafter referred to as the “1961 Act”). Section 2(4) of the 1961 Act
defines ‘appointed day’ as meaning the day on which the 1961 Act comes
into force, which is 26.01.1962. Section 2(6A) defines ‘commencement
date’ as meaning the 2nd day of October, 1975. Section 2(11) defines
‘family’ as follows:
“(11)
“family” includes, a Hindu undivided family, and in the case
of other persons, a group or unit, the members of which by custom
or usage, are joint in estate or possession or residence;”
Section 2(11-A) defines ‘family unit’ as follows:
“(11-A) “family unit” means a family unit as explained in section
4;”
4. By Section 3, no person orfamily unit shall, after the
‘commencement date’, hold land in excess of the ceiling area, as is
determined in the manner provided. By Section 4(1), all land held by
each member of a family unit, whether jointly or separately, shall, for the
purposes of determining the ceiling area of the family unit, be deemed to
be held by the family unit. The explanation defines ‘family unit’ as follows:
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“Explanation.- A “family unit” means,-
(a) a person and his spouse (or more than one spouse) and their
minor sons and minor unmarried daughters, if any; or
(b) where any spouse is dead, the surviving spouse or spouses,
and the minor sons and minor unmarried daughters; or
(c) where the spouses are dead, the minor sons and minor
unmarried daughters of such deceased spouses.”
5. Section 5 then fixes the ceiling area. Section 8 deals with land
held in excess of the ceiling area on or after the commencement date.
Section 9 is a restriction on acquisition of land in excess of the ceiling
area on or after the commencement date. Section 10 is important and is
set out hereunder:
“10. Consequences of certain transfers and acquisitions of land.-
(1) If -
(a) any person or a member of a family unit, after the 26th day of
September, 1970 but before the commencement date, transfers
any land in anticipation of or in order to avoid or defeat the object
of the Amending Act, 1972, or
(b) any land is transferred in contravention of section 8, then, in
calculating the ceiling area which that person, or as the case may
be, the family unit, is entitled to hold, the land so transferred shall
be taken into consideration, and the land exceeding the ceiling
area so calculated shall be deemed to be in excess of the ceiling
area for that holding, notwithstanding that the land remaining with
him or with the family unit may not in fact be in excess of the
ceiling area.
If by reason of
such transfer, the holding of a person, or as the
case may be, of the family unit is less than the area so calculated
to be in excess of the ceiling area, then all the land of the person,
or as the case may be, the family unit shall be deemed to be
surplus land; and out of the land so transferred and in possession
of the transferee unless such land is liable to forfeiture under the
provisions of sub-section (3), land to the extent of such deficiency
shall, subject to rules made in that behalf, also be deemed to be
surplus land, notwithstanding that the holding of the transferee
may not in fact be in excess of the ceiling area.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]
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Explanation.- For the purposes of clause (a) ‘transfer’ has the
same meaning as in section 8.
All transfers made after the 26th day of September, 1970 but before
the commencement date, shall be deemed (unless the contrary is
proved) to have been made in anticipation of or in order to avoid
or defeat the object of the Amending Act, 1972.
Explanation.- For the purposes of this sub-section, a transfer
shall not be regarded as made on or before 26th September, 1970
if the document evidencing the transfer is not registered on or
before that date or where it is registered after that date, it is not
presented for registration on or before the said date.
(2) If any land is possessed on or after the commencement date
by a person, or as the case may be, a family unit in excess of the
ceiling area or if as a result of acquisition (by testamentary
disposition, or devolution on death, or by operation of law) of any
land on or after that date, the total area of land held by any person,
or as the case may be, a family unit, exceeds the ceiling area, the
land so in excess shall be surplus land.
(3) Where land is acquired in wilful contravention of section 9,
then as a penalty therefore, the right, title and interest of the person,
or as the case may be, the family unit or any member thereof in
the land so acquired or obtained shall, subject to the provisions of
Chapter IV, be forfeited, and shall vest without any further
assurance in
the State Government:
Provided that, where such land is burdened with an encumbrance,
the Collector may, after holding such inquiry as he thinks fit and
after hearing the holder and the person in whose favour the
encumbrance is made by him, direct that the right, title and interest
of the holder in some other land of the holder equal in extent to
the land acquired in wilful contravention of section 9, shall be
forfeited to Government.”
Section 11 states as follows:
“11. Restriction on partition.- Where any land held by a family is
partitioned after the 26th day of September, 1970, the partition so
made shall be deemed (unless the contrary is proved) to have
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been made in anticipation of or in order to avoid or defeat the
object of the Amending Act, 1972, and shall accordingly be ignored,
and any land covered by such partition shall, for the purposes of
this Act, be deemed to be the land held by the family; and the
extent of share of each person in the land held by the family shall
be taken into consideration for calculating the ceiling area in
accordance with the provisions of section 3.
Explanation.- For the purposes of this section, ‘partition’ means
any division of land by act of parties made inter vivos, and includes
also partition made by a decree or order of a court, tribunal or
authority.”
6. Section 12 deals with the submission of returns by a person or
a family unit. Section 13 is important and states as follows:
“13. Failure to submit return.- (1) Where a person or member of
a family unit required by section 12 to furnish a return,-
(a) fails without reasonable cause so to do, within the time specified
in that section, or
(b) furnishes a return which he knows, or has reason to believe,
to be false, he shall be liable to pay a penalty which may extend in
the former case to one hundred rupees, and in the latter case to
five hundred rupees.
(2) Where the Collector has reason to believe that a person or a
member of a family unit required by section 12 to furnish a return
has, without reasonable cause, failed so to do, or has submitted a
return which he knows or has reason to believe to be false, the
Collector shall issue a notice calling upon such person or member
to show cause within fifteen days of the service thereof, why the
penalty provided by sub-section (1) should not be imposed upon
him. If the Collector, on considering the reply or other cause
shown, is satisfied that the person or member has without
reasonable cause failed to submit the return within time, or has
submitted a return which he knew or had reason to believe to be
false, he may impose the penalty provided in the last preceding
sub-section and require him to submit a true and correct return
complete in all particulars, within a period of fifteen days from the
date of the order.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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[R. F. NARIMAN, J.]
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(3) If the person or member fails to comply with the order within
the time so granted by the Collector, then as a penalty for failure
to furnish a return, or a true and correct return complete in all
particulars, the right, title and interest in the land held by him or as
the case may be, by the family unit in excess of the ceiling area
shall, subject to the provision of this Chapter, be forfeited to the
State Government and shall thereupon vest without further
assurance in that Government.”
Section 14(1) states as follows:
“14. Power of Collector to hold enquiry.- (1) As soon as may be
after the expiry of the period referred to in section 12, or the
further period referred to in sub-section (2) of section 13, the
Collector shall, either suo motu whether or not a return had been
filed or on the basis of the returns submitted to him under either of
those sections, and such record as he may consider it necessary
to refer to, hold an enquiry in respect of every person or family
unit holding land in excess of the ceiling area, and shall, subject to
the provisions of this Chapter, determine the surplus land held by
such person or family unit.”
Section 18 is important and is set out hereunder:
“18. Collector to consider certain matters.- On the day fixed for
hearing under section 14, or on any other day or days to which the
inquiry is adjourned, the Collector shall, after hearing the holder
and other persons interested and
who are present and any evidence
adduced, consider the following matters, that is to say,-
(a) what is the total area of land which was held by the holder on
the 26th day of September, 1970;
(b) whether any land transferred between the period from the
26th day of September, 1970 and the commencement date, or any
land partitioned after the 26th day of September, 1970, should be
considered or ignored in calculating the ceiling area as provided
by sub-section (1) of section 10 or section 11;
(bb) whether the holder has any share in the land held by a family
or held or operated by any co-operative society or held jointly
with others or held as a partner in a firm; and the extent of such
share;
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(c) what is the total area of land held by the holder on the
commencement date?
(d) whether any transfer or partition of land is made by the holder
in contravention of section 8 or 11 and if so, whether, the land so
transferred or partitioned should be considered or ignored in
calculating the ceiling area under the provisions of sub-section (1)
of section 10 or section 11?
(e) whether any land has been acquired or possessed on or after
the commencement date by transfer or by partition?
(f) whether any land has been acquired on or after the
commencement date by testamentary disposition, devolution on
death or by operation of law?
(g) what is the total area of land held at the time of the enquiry,
and what is the area of land which the holder is entitled to hold?
(h) whether any land is held by the holder as tenant, and if so,
whether his landlord has a subsisting right of resumption of the
land for personal cultivation, under the relevant tenancy law
applicable thereto?
(i) whether any land held by the holder is to be forfeited to
Government under sub-section (3) of section 10, or of section 13,
or should be deemed to be surplus land under any of the provisions
of this Act?
(j) whether the proposed retention of land by the holder is in
conformity with the provisions of section 16?
(k) which particular lands out of the total land held by the holder
should be delimited as surplus land?
(l) any other matter which, in the opinion of the Collector, is
necessary
to be considered for the purpose of calculating the
ceiling area, and delimiting any surplus land.”
Section 21(1) and 21(3) then state:
“21. Collector to make declaration regarding surplus land etc.,
and consequences thereof.- (1) As soon as may be after the
Collector has considered the matters referred to in section 18 and
the questions, if any, under sub-section (3) of section 20, he shall
make a declaration stating therein his decision on-
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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[R. F. NARIMAN, J.]
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(a) the total area of land which the person or family unit is entitled
to hold as the ceiling area;
(b) the total area of land which is in excess of the ceiling area;
(c) the name of the landlord to whom possession of land is to be
restored under section 19, and area and particulars of such land;
(d) the area, description and full particulars of the land which is
delimited as surplus land;
(e) the area and particulars of land out of surplus land, in respect
of which the right, title and interest of the person or family unit
holding it is to be forfeited to the State Government.
The Collector shall announce his declaration in the presence of
the holder and other persons interested who are present at the
time of such declaration.
xxx  xxx  xxx
(3) The declaration made under this section, subject to the decision
of the Maharashtra Revenue Tribunal in appeal under section 33,
or of the State Government in revision under subsection (2) of
section 45, shall be final and conclusive, and shall not be questioned
in any suit or proceedings in any court.”
7. Appeals are provided against the Collector’s orders and awards
under Section 33 of the 1961 Act. This again is an important provision
and is set out hereunder:
“33. Appeals.- (1) An appeal against an order or award of the
Collector shall lie to the Maharashtra Revenue Tribunal in the
following cases:-
(1) an order under sub-sections (2) and (3) of section 13 not being
an
order under which a true and correct return complete in all
particulars is required to be furnished;
(2) a declaration or any part thereof under section 21;
(2a) an order under section 21-A ;
(3) an award under section 25;
(4) an order refusing sanction to transfer or divide land under
section 29;
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(5) an order of forfeiture under sub-section (3) of section 29;
(6) an amendment of declaration or award under section 37; and
(7) an order of summary eviction under section 40.
(1A) Any respondent, though he may not have appealed from any
part of the decision, order, declaration or award, may not only
support the decision, order, declaration or award, as the case may
be, on any of the grounds decided against him, but take cross-
objection to the decision, order, declaration or award which he
could have taken by way of an appeal:
Provided that, he has filed the objection in the Maharashtra
Revenue Tribunal within thirty days from the date of service on
him of notice of the day fixed for hearing the appeal, or such
further time as the Tribunal may see fit to allow; and thereupon,
the provisions of Order 41, rule 22 of the First Schedule to the
Code of Civil Procedure, 1908, (V of 1908) shall apply in relation
to the cross-objection as they apply under that rule.
(2) Every petition of appeal under sub-section (1), shall be
accompanied by a copy of the decision, order, declaration or award,
as the case maybe, against which the appeal is made.
(3) In deciding such appeal, the Maharashtra Revenue Tribunal
shall exercise all the powers which a Court has, and follow the
same procedure which a Court follows, in deciding appeals from
the decree or order of an original Court, under the Code of Civil
Procedure, 1908, (V of 1908).
Section 41 bars the jurisdiction of
the Civil Court as follows:
“41. Bar of jurisdiction.- No Civil Court shall have jurisdiction to
settle, decide or deal with any question which is by or under this
Act required to be settled, decided or dealt with by
the Commissioner, Collector, Tribunal, the officer authorised under
section 27, the Maharashtra Revenue Tribunal or the State
Government.
Explanation.- For the purpose of this section a Civil Court shall
include a Mamlatdar’s Court constituted under the Mamlatdars’
Courts Act, 1906, (Bom. II of 1906).”
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]
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Section 44B excludes pleaders from appearance as follows:
“44B. Pleaders etc., excluded from appearance.- Notwithstanding
anything contained in this Act or any law for the time being in
force, no pleader shall be entitled to appear on behalf of any party
in any proceedings under this Act before the Authorized Officer,
the Tribunal, the Collector, the Commissioner, the State Government
or the Maharashtra Revenue Tribunal:
Provided that, where a party is a minor or lunatic, his guardian
may appear, and in the case of any other person under disability,
his authorised agent may appear.
Explanation.- For the purposes of this section, the expression
“pleader” includes an advocate, attorney, vakil or any other legal
practitioner.”
Section 45 provides for revision by the State Government and
states:
“45. Control.- (1) In all matters connected with this Act, the State
Government shall have the same authority and control over the
officers authorised under Section 27, the Collectors and the
Commissioners acting under this Act, as they do in the general
and revenue administration.
(2) The State Government may, suo motu or on an application
made to it by the aggrieved person, at any time, call for the record
of any inquiry or proceedings under sections 17 to 21 (both
inclusive) for the purpose of satisfying itself as to the legality or
propriety of any inquiry or proceedings (or any part thereof) under
these sections and may pass
such order thereon as it deems fit,
after giving the party a reasonable opportunity of being heard:
Provided that, nothing in this sub-section shall entitle the State
Government to call for the record of any inquiry of proceedings
of a declaration or part thereof under section 21 in relation to any
land, unless an appeal against any such declaration or part thereof
has not been filed within the period provided for it, and a period of
three years from the date of such declaration or part thereof has
not elapsed.
Provided further that, no order shall be passed under this section
so as to affect any land which is already declared surplus and
distributed according to the provisions of this Act:
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Provided also that the revisional jurisdiction under this section shall
be exercised only where it is alleged that the land declared surplus
is less than the actual land which could be declared surplus.
(3) The State Government may, subject to such restrictions and
conditions as it may impose by notification in the Official Gazette,
delegate to the Commission the power conferred on it by sub-
section (2) of this section or under any other provisions of this Act
except the power to make rules under section 46 or to make an
order under section 49.”
8. It will thus be seen that under Section 11 of the 1961 Act,
where any land held by a family is partitioned after the cut-off date of
26.09.1970, the partition so made shall be deemed, unless the contrary is
proved, to have been made in anticipation of, or in order to avoid or
defeat, the Amending Act of 1972 and shall accordingly be ignored.There
is no doubt that on the facts of this case that the partition deed, as well
as its registration, is prior to the cut-off date.
9. On 19.11.1976, 60 acres and 27 gunthas of land of Vithaldas
was declared surplus. An appeal preferred against this order was
dismissed by the Maharashtra Revenue Tribunal on 16.02.1977. On
02.03.1982, a learned Single Judge of the Nagpur Bench of the Bombay
High Court remitted the matter to the Surplus Land DeterminationTribunal
for fresh enquiry. On remand, a fresh order was passed by the Sub-
Divisional Officer on 07.05.1984, where land
admeasuring 59 acres 35
gunthas was deemed to be surplus. An appeal was filed against the
aforesaid order by Vithaldas, his wife, his son and the third daughter
Bela Devi under Section 33 of the 1961 Act. The two other minor
daughters did not file any appeal, as they were satisfied with the view
adopted by the Sub-Divisional Officer, by which no part of the property
that devolved on them by means of the partition deed was declared
surplus. The State filed cross-objections in the appeal filed by Vithaldas,
challenging the exclusion of the land, inter alia, of the two elder daughters.
However, the State did not take care to implead them. The appeal filed
by Vithaldas et. al. was dismissed by the Appellate Authority, who allowed
the cross objections of the State by its order dated 03.12.1984. The
appellate authority found that the partition deed dated 31.01.1970, though
before the cut-off date, was against the principles of Hindu Law, to the
extent that it gave a share to minor daughters in ancestral land. On this
basis, the partition deed was declared to be of no effect in law.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]
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10. The aforesaid appellate order was challenged by Vithaldas
and his wife in writ proceedings before the Bombay High Court. The
learned Single Judge dismissed the writ petition in September, 1987. An
intra-court appeal was preferred which was then dismissed by the
impugned order dated 27.11.2007. A Special Leave Petition was filed by
Vithaldas through his legal representatives who are the two elder
daughters, as his legal heirs, as by now Vithaldas had expired. During
the course of the initial hearing, this Court, by its order dated 23.11.2016,
passed an order stating that it wished to see revenue entries in terms of
Section 148 and 149 of the Maharashtra Land Revenue Code, 1966,
post-execution of the partition deed.An additional affidavit was filed by
the son of the late Vithaldas, stating that records from 1970-75 are in a
mutilated condition, but that from the records made available, the two
elder daughters were shown as occupants from 1972 to 1976 for survey
nos. 12 and 14, through their guardian, i.e. their grandfather.
11. When the matter was argued before a Division Bench of this
Court, Justice Sanjay Kishan Kaul, after stating these facts, held that a
limited fiction has been created by Section 11 of the 1961 Act, as a result
of which, if a partition deed is prior to the cut-off date, it cannot be
ignored under Section 11.The learned Judge also held that the State’s
cross-objections being allowed in the
absence of the two elder daughters
was fatal, as they were both necessary parties to the proceedings. The
learned Judge then went into the unmarried daughters’ claims in HUF
property and held:
“38. The legal view, thus, is very clear:
a. A provision for marriage of unmarried daughters can be made
out of ancestral property.
b. Such provision can be made before, at the time, or even after
the marriage.
c. The provision is being made out of pious obligation, though the
right of women got diluted over a period of time. However, with
the amendment to the Hindu Succession Act, in 2005, a specific
right is now conferred on women to get a share on partition of
ancestral property, including the right to claim partition. As
mentioned above this change was brought about in Maharashtra
in 1994, itself.”
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12. The learned Judge went on to further observe that a provision
for an unmarried daughter in a partition deed may partake the nature of
a gift, and then concluded:
“45. In the end, it may be noted that the only aspect on which the
debate occurred was the share of the two elder daughters, and
the right to retain the land as their separate land, without it being
adjusted with the lands of late Vithaldas. The findings above, thus,
lead to the conclusion that the view taken by the SDO vide order
dated 7.5.1984, regarding the land of the two elder daughters, is
the correct view, and the subsequent view by the appellate authority
faulted on more than one reason, as mentioned aforesaid. The
further imprimatur of that view by the learned Single Judge and
the Division Bench of the High Court, thus, also cannot be sustained.
46. The impugned orders of the appellate authority, the learned
single Judge and the Division Bench are, thus, liable to be set
aside and the view taken by the SDO, restored, qua the lands
located in Survey Nos. 12 & 14 of Babhulgaon, giving rights to
the two elder daughters, who are the appellants in the present
proceedings.”
13. K.M. Joseph, J. differed with Justice Kaul. According to the
learned Judge, the questions that would arise for consideration by the
Court are as follows:
“114. The following questions would arise for consideration by
the Court:-
1. Whether the authorities under the Act have the power to find
that the partition
entered into before 26.9.1970, was sham or
collusive and thereby ignore the same?
2. Notwithstanding the registered partition dated 31.01.1970,
whether the property allotted to the elder daughters of Shri
Vithaldas is liable to be included in the account of the family unit?
3. What is the effect of the cross-objections of the State being
allowed in the absence of elder daughters, in the appeal before
the Tribunal?”
After setting out the provisions of the Act, the learned Judge
concluded as follows:
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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[R. F. NARIMAN, J.]
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“130. Thus, it can be concluded as follows:
i. A transfer or a partition entered into before 26.09.1970, if it is
not genuine and is collusive or is a sham transaction, can, in a
given case, on materials being present, be found to be so by the
Authority under the Act;
ii. What is contemplated under Sections 10 and 11 of the Act read
with Section 8, undoubtedly, is a transfer as defined in Section 8,
being a genuine transaction. A fraudulent transaction or a sham
transaction if entered into before 26.09.1970, would incur the wrath
of Section (3), and a farce of a partition likewise, bringing about a
mock division of property among the sharers, would also incur
wrath of Section (3) of the Act. No doubt, even if the transaction
is a sham transaction, be it a transfer or a partition, needless to
say, it would incur the wrath of Sections 10 and 11 and it would
not be necessary to justify the invalidity with any materials if
entered into or effected after 26.09.1970.
iii. It does not mean that a transaction which is entered into,
particularly after the Act came into force, be it a transfer or a
partition, and if there are materials and circumstances brought
out, which persuades Authorities to hold that it is collusive or a
sham transaction and the property did not change the hands, the
property would not be liable to be treated as held by the previous
owner as on the commencement day and included in the account
despite the
purported transfer or partition.”
14. Having concluded thus, the learned Judge then went on to
declare that the partition deed, being unnatural, was sham; that
coparcenary property alone is partible, and stated that the question as to
whether or not a gift could have been validly made by Vithaldas to his
elder daughters cannot be gone into, as no such case had been set up.
Finally, the learned Judge held that it was of no moment that cross-
objections of the state were allowed without making the two elder
daughters parties to the appeal before the appellate tribunal, and then
concluded that the appeal should stand dismissed.
15. Shri Krishnan Venugopal, learned Senior Advocate appearing
on behalf of the Appellants largely relied upon the judgment delivered by
Justice Sanjay KishanKaul and in particular, strongly relied upon Gurdit
Singh v. State of Punjab 1974 (2) SCC 260 and Uttar Chand v. State
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of Maharashtra (1980) 2 SCC 292. On the other hand, Shri Rahul
Chitnis, appearing for the State, largely read from Justice Joseph’s
judgment and supported it.
16. On a conspectus of the provisions of the 1961 Act that have
been set out hereinabove, what becomes clear is that transfers or
partitions of land made in anticipation of or in order to avoid or defeat
the 1972 Amending Act were to be ignored in calculating ceiling limits.
This was so laid down by the Amending Act, 1975, which made 26.09.1970
the cut-off date after which such transfers became suspect.What is
important to note is that the 1961 Act does not in any manner declare
such transfers to be void. However, if the contrary is proved on the
facts of a given case, i.e. that a bonafide transfer or partition was in
fact effected after the cut-off date, the person affected would be out of
the clutches of Section 10 and/or Section 11 of the 1961 Act. Infact,
what is important is the expression “shall accordingly be ignored”, which
occurs in Section 11.
17. The scheme of the 1961 Act is that a person or a family unit
has to submit returns by certain dates and extended dates that are
mentioned in Sections 12 and 12-A of the 1961 Act. Section 13 is important
in that where a person or member of a family unit either fails without
reasonable cause to furnish a return, or furnishes a false return, he
becomes liable to a penalty, which may extend to INR 100 or 500, as the
case may be. A false return may be
ignored by the Collector, requiring
the person or family unit to submit a true and correct return complete in
all particulars under Section 13(2), together with the penalty of INR
500. If thereafter, any such person or family unit fails to comply with the
order within the time so granted, then, as a penalty for failure to furnish
such return or a true and correct return complete in all particulars, the
right, title and interest in the land held by him or the family unit as the
case may be, in excess of the ceiling area, shall, subject to the provisions
of Chapter 4, be forfeited to the State Government and vest in that
Government. This Section gives a limited jurisdiction to the Collector to
determine whether a true and correct return complete in all particulars
has been given. Thus, a Collector would be well within his jurisdiction to
state that a registered partition deed entered into after 26.09.1970 has
been suppressed in the return furnished, as a result of which a penalty of
INR 500 may be imposed, or excess land forfeited under Section
13(3). This jurisdiction is limited only to the factum of a partition deed
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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[R. F. NARIMAN, J.]
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having been suppressed from the return, and does not extend to conduct
an enquiry as to whether a partition deed prior to 26.09.1970 is or is not
a sham document. Also, the discretion vested in the Collector under
Section 30 is at a stage anterior to the holding of an enquiry under Section
14, and the resultant declaration under Section 21. 
18. By Section 14 of the 1961 Act, the Collector is then to hold an
enquiry either suo motu or otherwise, whether or not a return has been
filed, in respect of every person or a family unit holding land in excess of
the ceiling area. In so doing, Section 18 states that the Collector must
consider several matters including, under sub-clause (b), whether any
land transferred between 26.09.1970 and the commencement date (which
we have seen is 02.10.1975), or any land partitioned after the cut-off
date should either be considered or ignored in calculating the ceiling
area as provided in Sections 10 and 11 of the 1961 Act. If Section 18(a)
to (k) are seen, the evidence adduced at the hearing to be given to the
holder and other persons interested in the land, only goes to calculating
the total area of the land, including land held by the holder between
26.09.1970 and 02.10.1975 and lands that have been acquired after
02.10.1975. All the details mentioned in Section 18 only speak of ignoring
certain transfers or partitions between the cut-off date and the
commencement date, and otherwise
would only go to the calculation of
lands held by persons, and then applying the drill of the ceiling provisions
of the 1961 Act. To state that Section 18(l) is a catch-all provision by
which the Collector can determine whether a particular transfer or partition
is a sham transaction, even if entered into before the cut-off date, is to
go beyond the jurisdiction conferred on the Collector by the 1961 Act. In
point of fact, even the language of Section 18(l) makes it clear that “any
other matter” is circumscribed by the following words: “for the purpose
of calculating the ceiling area, and delimiting any surplus land.”
19. This becomes even clearer when the other provisions of the
1961 Act are looked at. Under Section 21, the Collector has to make a
declaration as to entitlement of a person or family unit to hold within the
ceiling area and area of land which is in excess of the ceiling area.
Further, what is of importance is that Section 44B excludes pleaders
from appearing on behalf of any party in any of the proceedings under
the 1961 Act. This is for the reason that the Collector has to determine
on the facts of each case, based on returns filed if any, as to what areas
are to be excluded, and what areas of land are to be included so far as
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determination of ceiling of a person or family unit is concerned. If it
were to be held that the Collector could go into a trial as to whether a
particular partition deed is or is not sham, even though it is before the
cut-off date, would have two effects that are not warranted in law -first,
it would extend the legal fiction that is limited to transfers and partitions
made after the cut-off date; and second, if a period even before the
cut-off date can be considered, it would render the cut-off date otiose,
as then in all cases the Collector could go into whether a particular
transfer or partition has been entered into to avoid the effect of the 1972
Amendment Act, which is an enquiry restricted only to transfers and
partitions which take place on or after 26.09.1970 upto the
commencement date. Also, if the Collector were to substitute himself as
a Civil Court deciding a Civil Suit, it would be absolutely essential for a
person or family unit to engage a pleader of his choice to argue all the
ramifications that his case may have, both in fact and in law. In fact, a
Civil Court alone would have the jurisdiction to decide a question as to
whether a partition deed entered into before the cut-off date is or is not
sham, which would involve a declaration that the partition be declared
void.The 1961 Act therefore bars the jurisdiction of the Civil Court only
insofar as transfers and partitions are entered into on or after 26.09.1970
and before the commencement
date, and not to transfers and partitions
that take place before the cut-off date.
20. As a matter of fact, if the appeal provision, i.e. Section 33 of
1961 Act is to be seen, it is clear that appeals are provided to the
Maharashtra Revenue Tribunal against a declaration or part thereof made
under Section 21 of the 1961 Act. The persons who would be aggrieved
by such declarations can only be the person or family unit whose ceiling
area is determined or the landlord to whom possession of land is to be
restored or the right, title and interest of the person or family unit whose
land is to be forfeited to the State Government. If at all a cross-objection
can be taken by a respondent under Section 33(1A), it can only be a
person or family unit or landlord spoken of in Section 21(1) of the 1961
Act. The State Government may perhaps file a cross-objection where it
contends that land has wrongly not been forfeited to it.  But such is not
the case on the facts of this appeal. Thus, the State taking a cross objection
on the facts of this case would itself be outside Section 33(1A). If at all
the State can be said to be aggrieved by a declaration made under Section
21, a suo moto power of revision is given to the State Government under
Section 45, which on the facts of a particular case may well be exercised.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]
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21. This apart, once it is clear that the elder daughters are affected
by virtue of the partition deed being held to be non est in law by the
appellate tribunal, they ought to have been made parties to the appeal so
that they could have made arguments in favour of the legal validity of
the partition deed. This opportunity being denied to them, as has been
rightly held by Justice Kaul, is also fatal to the appellate authority’s order,
which has therefore wrongly been upheld by the learned Single Judge
and Division Bench of the Bombay High Court.
22. At this stage, it is important to consider some of the judgments
of this Court under the 1961 Act. In Raghunath Laxman Wani and
Ors. v. State of Maharashtra (1971) 3 SCC 391, a Special Leave
Petition was entertained directly against the judgment and order passed
by the Maharashtra Revenue Tribunal dated 02.09.1966, in proceedings
held by the Deputy Collector under Section 14 of the 1961 Act in respect
of lands held by the appellants therein. The Deputy Collector and the
Tribunal concurrently found on fact that the appellants’ case of severance
of status and partition of the family lands - partially in 1956, and then in
1960, was not acceptable. In the absence of any document regarding
alleged severance of the family and partition, other factors when toted
up rendered the appellants’ case of partition, first in 1956 and then in
1960,‘doubtful’. Given these circumstances,
this Court held that it “would
be more than reluctant to interfere and upset such a finding”(see
paragraph 14). The Court then examined the scheme of the 1961 Act in
paragraphs 15 to 17, and held that the ceiling area is to be ascertained
with reference to the state of affairs existing only on the ‘appointed
date’. In this view, the Revenue Tribunal was held to be correct in not
taking into consideration three children born in the family after the
appointed date while determining the ceiling area to which the appellants’
family was entitled. This case turned largely on its facts, and was in any
case decided before the introduction of Section 44-B to the 1961 Act in
1976 - which forbade pleaders from arguing cases before the authorities
under the 1961 Act.
23. In Jugal Kishore v. State of Maharashtra (1989) Supp. (1)
SCC 589, the question before this Court was whether in view of Section
100(2) of the Bombay Tenancy and Agricultural Lands (Vidharbha
Region) Act, 1958 (hereinafter referred to as the “Bombay Tenancy
Act”), the Tenancy Tehsildar had exclusive jurisdiction to decide the
issue of tenancy. In holding that the authorities under the 1961 Act would
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have to determine the land holdings of the petitioner therein, this Court
held:
“8. It is, therefore, submitted on behalf of the petitioner that
determination of the question of tenancy by the Ceiling Authorities,
was without jurisdiction. The High Court held that in the facts of
this case it was not. The Ceiling Authority had to determine the
land holdings of the petitioner. Incidentally, where a transfer is
made by the landholder creating a tenancy, there whether the
transfer was made bona fide or made in anticipation to defeat the
provisions of the Ceiling Act, is a question which falls for
determination squarely by the Ceiling Authorities, to give effect to
or implement the Ceiling Act. In that adjudication it was an issue
to decide whether tenancy right was acquired by the tenant of the
petitioner. But here before the Ceiling Authorities the adjudication
was whether the transfer to the tenant, assuming that such transfer
was there, was bona fide or made in anticipation to defeat the
provisions of the Ceiling Act. This latter question can only be
gone into in appropriate proceedings by the Ceiling Authorities.
Unless the Acts, with the intention of implementing various socio-
economic plans, are read in such complementary manner, the
operation of the different Acts in the same field would create
contradiction and would become impossible. It is, therefore,
necessary to take a constructive attitude in interpreting provisions
of these types and determine
the main aim of the particular Act in
question for adjudication before the court.
9. In our opinion, having regard to the Preamble to the Act of the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961,
which was enacted for giving effect to the policy of the State
towards securing the principles specified in clauses (b) and (c) of
Article 39 of our Constitution; and in particular, but without
prejudice to the generality of the foregoing declaration, to ensure
that the ownership and control of the agricultural resources of the
community are so distributed as best to subserve the common
good and having regard to the purpose of the Bombay Act, it was
open to the Ceiling Authorities to determine whether there was, in
fact, a genuine tenancy.”
In this case, no question similar to the question that is before us in
the present matter arose on the facts. It was assumed that adjudication
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before the ceiling authority would include an adjudication as to whether
a person was made a tenant to defeat the provisions of the 1961 Act.
Based on that assumption, the question posed and answered by the Court
was that it would be the ceiling authorities - and not the Bombay Tenancy
Act authorities - who would be competent to answer such question.
This judgment also does not, in any manner, decide the questions that
have been posed before this Court, with particular reference to the
language of Section 11 of the 1961 Act and partitions which took place
prior to a cut-off date where even a limited deeming fiction did not become
applicable.
24. In State of Maharashtra and Anr. v. Rattanlal (1993) 3
SCC 326, this Court was concerned with the operation and reach of
Section 45 of the 1961 Act, which dealt with the revisional power of the
State Government. On the facts of Rattanlal (supra), the Additional
Commissioner had issued a show cause notice to the respondents therein,
inter alia, for the reason that the respondent did not disclose the lands
or his half share in a particular declaration, having suppressed the same.
On hearing the respondent, and for reasons recorded in his order dated
09.06.1980, he remitted the case to the primary Tribunal to redetermine
surplus land. The High Court held that once an appeal was preferred by
the declarant under the 1961 Act, and an order made thereon, the
Commissioner or State
Government is devoid of jurisdiction to determine
the ceiling area. The Supreme Court set aside the judgment of the High
Court, and held that it was perfectly within the jurisdiction of the Additional
Commissioner under Section 45 of the 1961 Act, suo moto, to call for
the records of a case and thereafter to decide it and pass such order
thereon as it deems fit under Section 45(2) of the 1961 Act. This case
again is far removed from the facts of the present case, concerning
itself with the suo moto powers exercisable under Section 45 of the
1961 Act.
25. In Bhupendra Singh v. State of Maharashtra (1996) 1 SCC
277, this Court, while dealing with proceedings under the 1961 Act, held:
“13. Section 18 of the Ceiling Act requires the ceiling authority to
consider certain matters enumerated therein before issuing a
declaration under Section 21 declaring the land which the person
or the family unit is entitled to hold and the surplus lands. Clause
(d) of Section 18 requires the Collector to consider, inter alia,
whether any transfer is made by the holder in contravention of
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Section 8, and if so, whether the land so transferred should be
considered or ignored in calculating the ceiling area under Section
10(1). Clause (g) requires the authority to consider what is the
total area of land held at the time of the enquiry and what is the
area of land which the holder is entitled to hold. Clause (j) requires
the authority to consider whether the proposed retention of land
by the holder is in conformity with the provisions of Section 16.
Clause (k) requires the authority to consider which particular land
out of the total lands held by the holder should be delimited as
surplus land. Clause (l) requires the authority to consider any other
matter necessary to be considered for the purpose of calculating
the ceiling area and delimiting any surplus land. If some diminution
in the area held by the person or family unit has occurred between
the relevant date and the date of the enquiry, the above clauses
require that these be taken note of in accordance with law before
any declaration is made under Section 21. These are important
matters to be kept in mind especially when in the instant case the
diminution has taken place by thrust of another statute, i.e., the
Restoration Act. Since the said land is neither encumbered land
nor land transferred in contravention of Section 8, it is not liable to
be included in the ceiling holding of the appellant.”
(emphasis supplied)
This judgment is important in that it delineates the scope of Section
18(l) of the 1961 Act, and confines it to ‘calculating ceiling area and de-
limiting surplus land’, albeit by the application of another statute, namely,
the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.
26. Shri Krishnan Venugopal strongly relied on the observations
in Gurdit Singh (supra). This case dealt with Section 32-DD which
was introduced into ‘The Pepsu Tenancy and Agricultural Lands Act,
1955’ with retrospective effect from 1956.  This Section states as follows:
“3. The Act was amended by Act 16 of 1962 and Section 32-DD
was introduced into the Act with retrospective effect from October
30, 1956. That section reads:
“32-DD. Future tenancies in surplus area and certain judgments
etc. to be ignored.—Notwithstanding anything contained in this
Act, for the purposes of determining the surplus area of any
person—
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(a) a tenancy created after the commencement of the Pepsu
Tenancy and Agricultural Lands (Second Amendment) Act, 1956,
in any area of land which could have been declared as the surplus
area of such person; and
(b) any judgment, decree or order of a court or other authority,
obtained after the commencement of that Act and having the effect
of diminishing the area of such person which could have been
declared as his surplus area shall be ignored.”
27. This Court repelled an argument enlarging the scope of Section
32-DD, which was based on the object sought to be achieved by the
Section in the following terms:
“12. … We are aware that the object of this provision in an Act
like the one under consideration is to prevent circumvention of its
provisions by dubious and indirect methods. But that is no reason
why we should put a construction upon the section which its
language can hardly bear. It would have been open to the
respondents to allege and prove that the judgment was obtained
collusively. But that could have been done only after notice to
Appellants 2 and 3 and after giving them an opportunity of being
heard. Therefore, to say, as the High Court has said, that no
prejudice was caused to Appellants 2 and 3 for want of an
opportunity to them of being heard, is neither here nor there. We
think the High Court went wrong in assuming that the Collector
was right when he ignored the judgment by his order dated May
20, 1963
on the ground that it had the effect of diminishing the
area of the first appellant which could have been declared as his
surplus.”
28. Likewise, as has been held by us hereinabove, it is not possible
to state that wherever the expressions “transfer” and “partition” occur
in Sections 8, 10 and 11 of the 1961 Act, they must be understood as
meaning transfers and partitions which are genuine. If the word “genuine”
is added, it would amount to straining the language of these provisions
and giving these provisions a construction which they cannot possibly
bear – a construction that would go against the object of giving the
Collector a limited jurisdiction to decide whether lands fall within the
ceiling area, and in so doing, whether transfers and partitions between
the cut-off date and commencement date should be “ignored”. It may
be added that the language of Section 11 also leads to the conclusion
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that even in case of a partition that is made after the cut-off date and
before the commencement date, the power of the Collector is not to
declare such partition sham, and therefore void, which is for a Civil
Court to do, but is only to ignore such partition for the purpose of
calculating ceiling area.
29. Shri Krishnan Venugopal then relied upon Uttar Chand
(supra).This case also dealt with 1961 Act, the cut-off date in that case
being 04.08.1959. As both the transfers in the aforesaid case were prior
to 04.08.1959, this Court held that the High Court was not justified in
holding that the said transfers were either collusive or fraudulent. This
Court held:
“5. These sections are of no assistance to the respondent because
Section 6 takes within its fold lands belonging to the owner, or his
family as a single unit and is not meant to cover the separate or
individual property of another member of the family which cannot
be clubbed together with land of the concerned owner or family.
The argument advanced by the respondent appears to have found
favour with the Commissioner, but it was legally erroneous as
indicated above. In these circumstances the most important fact
to be determined was whether or not any transfer that had been
made by the person concerned was prior to or after August 4,
1959. If the transfer was prior to August 4, 1959 then the provisions
of the Act would not apply at all. In the instant case, both the
transfers being three years prior
to the date mentioned above, the
Act would not apply to them and the Commissioner and the High
Court therefore erred in holding that the lands transferred by
Nemichand to his mother should be included in the total area of
the land owned by the appellant.”
30. What is of importance in this case is that in a similar fact
situation, if a transfer took place before the cut-off date mentioned by
the 1961 Act, the 1961 Act would not apply so as to include lands
subsumed in the said transfers, in calculating the ceiling area.
31. Regard being had to our finding that the Collector’s jurisdiction
under the 1961 Act does not go to the extent of declaring a registered
partition deed that is made before the cut-off date as being sham, it is
unnecessary for us to go into any of the other findings of both the learned
judges of this Court in relation to Hindu Law.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]

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32. We are, therefore, of the view that the appeal deserves to be
allowed, and the impugned judgment of the Bombay High Court dated
27.11.2007 set aside for the reasons given by us. The judgment of the
Sub-Divisional Officer dated 07.05.1984 stands restored, as a result.
Devika Gujral
Appeal allowed