|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7760 of 2012
(Arising out of SLP (Civil) No. 1861 of 2008)
Gwalior Sugar Co. Ltd. & Anr. … Appellant(s)
Versus
Anil Gupta and Ors. … Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
Leave granted.
2. This appeal is directed against the judgment and order dated
01.12.2007 passed by the High Court of Madhya Pradesh in a Public Interest
Litigation registered and numbered as Writ Petition No.1773/2006. By the
order impugned in the present appeal, directions have been issued by the
High Court for demarcation of the surplus land of the appellant – Company
both under the provisions of the Urban Land Ceiling Act, 1976 (since
repealed) (hereinafter referred to as ‘the Urban Land Ceiling Act’) as well
as the provisions of the Madhya Pradesh Ceiling on Agriculture Holding Act,
1960 (hereinafter referred to as “the Ceiling on Agricultural Holding Act).
After the demarcation of the excess land in terms of the directions issued
by the High Court, further directions have been issued for vesting of the
excess land, both urban and agricultural, in the Government. Furthermore,
the appellant – Company has been restrained from affecting any transfers of
the urban land allotted to it and all such transfers as may have been made
have been declared as null and void by the High Court.
3. A brief resume of the relevant facts in which the above noted
directions have been issued by the High Court may now be set out:
The appellant, a private limited company, is the owner of a sugar
mill located at Dabra, district Gwalior in the State of Madhya Pradesh. A
total of 215 bighas (approximately) of land was allotted to the appellant –
Company in Samvat 1998 (corresponding to English Calender year 1941) on the
basis of 6 pattas issued by Zamindar in whom the land had come to be
vested. The pattas specified that the land was meant for setting up of the
sugar factory and any kind of agricultural operations therein was
prohibited. The pattas also specified that the same would be valid till
the existence of the factory. After setting up of the sugar mill the
Company appears to have run into certain financial difficulties and for the
upkeep of the sugar mill and for modernization thereof the Company by a
Resolution decided to sell/transfer some parts of the vacant land allotted
to it. In fact some surplus land stood transferred by way of sale to
certain individuals and the area so transferred is roughly about 9 bighas.
In these circumstances, the Writ Petition in question was filed as a Public
Interest Litigation contending that surplus land has been transferred
contrary to the terms of the patta in connivance and collusion with the
officials of the State Government. According to the petitioner more such
transfers were contemplated.
4. The stand of the officials – respondents, initially, was that land
measuring about 178 bighas stood recorded in the name of the appellant –
Company in the revenue record of Samvat 2013. In the said records the name
of the appellant was recorded as a “pucca tenant” under Section 54 (vii) of
the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (hereinafter
referred to as ‘the Tenancy Act’). Thereafter with the coming into force
of the MP Land Revenue Code in the year 1959 the name of the appellant –
Company was recorded as a ‘bhumiswami’ in respect of the aforesaid land.
The revenue records in support of the above facts were in fact enclosed to
the return filed before the High Court on behalf of the State. A report
dated 2.5.2003 of the primary revenue authority i.e. Naib Tehsildar
reciting the above facts and the fact that the appellant Company was
exempted from the operation of the provisions of the Ceiling on
Agricultural Holding Act by an order dated 8.1.1976 passed by the competent
authority was also enclosed to the said return. Subsequently, however, an
additional return dated 7.8.2007 was filed on behalf of the state wherein
the right of the appellant to transfer the land contrary to the terms of
the pattas issued to it was questioned, notwithstanding, its status as a
Bhumiswami under the Land Revenue Code, 1959.
5. The appellant – Company and its principal Director who were impleaded
respondent Nos.12 and 13 in the PIL, in their return, placed before the
High Court copies of the original pattas granted by the then Zamindar in
Samvat 1997-98 (English Calender year 1941-42). It was claimed that on the
basis of the entries in the revenue records, namely, Khasra of village
Dabra, Samvat 2007 (equivalent to English calendar year 1950) the status of
the appellant – Company in respect of the land in question was recorded as
‘Gair Mairusi’. The appellant – Company had contended that with the coming
into force of the Tenancy Act, w.e.f. 15.8.50, by virtue of the provisions
of Section 54 (vii), the status of the appellant – Company became that of a
“pucca tenant”. Thereafter, on the coming into force of the Land Revenue
Code in the year 1959, the status of the appellant – Company was that of a
bhumiswami which vested in the appellant – Company a right of transfer of
the land under Section 165 (1) of the Code. The bar imposed on such
transfer by sub-section (4) of section 165 did not apply to the case of the
appellant – Company in view of the fact that the land that it was holding
was non-agricultural land. The appellant – Company, in its return before
the High Court, had also referred to an order dated 22.11.1993 of the Under
Secretary to the Government of India, Ministry of Law Justice and Company
Affairs (Department of Company Affairs) which had noticed all the above
facts including the reasons for the transfers of some of the lands held by
the appellant – Company already made or proposed. It was contended that
by virtue of the aforesaid order dated 22.11.93 approval of the Central
Government for commencement of business of sale of surplus land by the
company was granted. Another significant fact that was mentioned by the
appellant – Company in its return is a proceeding before the High Court of
Madhya Pradesh in Second Appeal No.482 of 2002 which stood concluded by
order dated 25.8.03 holding that the appellant – Company had acquired the
status of Bhumiswami in respect of the land allotted to it.
6. On a consideration of the respective cases pleaded by the contesting
parties and on due consideration of the materials on record the High Court
had thought it fit to pass the impugned directions, details of which have
already been noticed. Aggrieved, this appeal has been filed.
7. We have heard Shri Ranjit Kumar, learned senior counsel for the
appellant and Shri B.S. Banthia, learned counsel for the respondent Nos. 3-
12. None has appeared on behalf of the PIL petitioners who have been
impleaded as the respondents 1 and 2 in the present appeal.
8. Learned counsel for the appellant has contended that in the revenue
records pertaining to the land in question, as existing prior to
commencement of Tenancy Act, the appellant – Company was recorded as a
‘Gair Mairusi’. After coming into force of the Tenancy Act w.e.f.
15.8.1950 the appellant – Company acquired the status of a “pucca tenant”
under Section 54(vii) of the Act. The said status entitled the appellant –
Company to the status of “bhumiswami” once the MP Land Revenue Code, 1959
came into force. The aforesaid position, it is pointed out, had been
accepted and acknowledged by the State Government in the return filed by it
before the High Court. Learned counsel has also pointed out that the
status of the appellant – Company as a bhumiswami had not been disputed in
the additional return filed on behalf of the State – wherein the only
contention urged is that such status would not confer in the appellant a
right to transfer the land contrary to the terms of the patta. Learned
counsel has also referred to the order of the Government of India,
Ministry of Law Justice and Company Affairs dated 22.11.1993 as well as the
judgment and order of the High Court of Madhya Pradesh dated 25.08.2003 in
Second Appeal No. 480 of 2002 to contend that the transfers already made or
proposed by the appellant – company were with due permission of the
competent authority of the Government of India and the right of the
appellant – company to affect such transfers, as a bhumiswami, had
attained finality in law by virtue of the judgment passed in the
proceedings of the Second Appeal before the High Court. Learned counsel had
vehemently argued that the right of a bhumiswami to transfer the land being
a statutory right, the exercise thereof cannot be curtailed by the
conditions of the patta, as urged in the additional return dated 7.8.2007
of the State.
9. Proceeding further, learned counsel has pointed out that the Urban
Land Ceiling Act stood repealed w.e.f. 22.3.1999 and thus was not in force
on the date of the judgment of the High Court. The provisions of the said
repealed Act, therefore, could not have been applied to the case of the
appellant. In so far as the Ceiling on Agricultural Holding Act is
concerned, it is pointed out that in the report of the Tehsildar dated
02.05.2003 it has already been recorded that the appellant – Company was
exempted from the provisions of the said Act. In such a situation the High
Court could not have invoked the provisions of either of the enactments to
the present case so as to justify the directions under challenge.
10. The State which had initially supported the case of the appellant
before the High Court had reiterated before us the stand taken by it in the
additional counter filed before the High Court on 7.8.2007. Shortly put,
it is urged that the land held by the appellant was allotted for the
purpose of industry and not agriculture. It is pointed out that after
coming into force of the Madhya Pradesh Zamindari Abolition Act, Samvat
2003, w.e.f. 2.10.1951, the land stood reverted to the Government. Under
Section 39 of the Zamindari Abolition Act it was incumbent on the appellant
to submit an application for grant of a fresh lease to be issued by the
State Government under Section 101 of the Tenancy Act of 1950. It is
contended that no such application was filed nor any fresh lease was
granted by the State Government under the aforesaid provisions of the two
Acts in question. The acquisition of the status of bhumiswami, in the
absence of a fresh lease under Section 101 of the Tenancy Act, has been
questioned on the aforesaid basis. It is also contended that the order of
the Government of India, Ministry of Law Justice and Company Affairs dated
22.11.93 was not a permission authorizing to the appellant – Company to
sell the land. In so far as the Civil Court decree is concerned, it is
contended that the said decree pertains only to land covered by three
specific khasra Nos. i.e. 1760/1, 1755/1 and 1776/1 and not to the entire
area allotted. In any case according to the State, the said decree would
not be binding on it in as much as it was not a party to the suit and the
resultant proceedings.
11. The provisions of section 101 of the Tenancy Act and section 39 of
the M.B. Zamindari Abolition Act may be extracted herein below for the
purpose of necessary clarity in the discussions that will have to follow:
Section 101 of the Tenancy Act
“101. Leases for non-agricultural purposes – (1) The Government may
grant leases of land to be used for other than agricultural purposes.
The rights and liabilities of the lessee of such land shall be such as
may be defined by the terms of his lease.
Special leases for agricultural purposes – (1) In order to develop and
demonstrate farming by mechanical means or in view of the special
circumstances of *[1][any tract or piece of land] the Government may
also grant leases of land for agricultural purposes on special and
specified conditions. The rights and liabilities of the lessee of such
land shall be such as may be defined by the terms of the lease.
2) The Government may either generally or specially delegate any of
its powers under this section to such officer as may be
specified in this behalf.”
Section 39 of the M.B. Zamindari Abolition Act
“39. Grant of fresh lease for land given for purposes other than
agriculture
A person who has taken land on lease from the proprietor for any
purpose other than agriculture shall apply within six months from the
date of vesting, to obtain from the Government a new lease under
Section 101 (1) of Madhya Bharat Revenue Administration and Ryotwari
Land Revenue and Tenancy Act, Samvat 2007, and the Government may
grant a lease subject to such terms and conditions for securing the
rent and utility of land as may be deemed proper. From the date of
vesting up to the grant of new lease the person shall be deemed to be
a lessee of the Government for that land on the same conditions on
which the lease was granted to him by the proprietor. If the
Government does not think it proper in the public interest to grant
the lease, the amount of compensation shall be paid at market value.”
12. At the very outset, it must be made clear that the provisions of
the Zamindari Abolition Act, 1951, have been pressed into service for the
first time in the present appeal. Neither in the pleadings nor in the
arguments made before the High Court on behalf of the State, the facts now
asserted and the legal issues now raised had been urged. However, the
question raised being with regard to the effect of a statutory enactment we
have considered the same. In the absence of any pleading that the procedure
for grant of a fresh lease contemplated under section 39 of the Zamindari
Abolition Act had not been followed by the appellant by making the
requisite application as contemplated by section 101 of the Tenancy Act, no
adverse consequence can be attributed to the appellant as contended on
behalf of the State. Rather, the status of the appellant as a bhumiswami
recorded in the revenue records of the later years, in the absence of any
contrary material, will have to be understood to be pursuant to the grant
of a fresh lease under section 39 of the Zamindari Abolition Act read with
the provisions of section 101 of the Tenancy Act. Infact, acceptance of
the acquisition of the status of bhumiswami by the appellant in the
aforesaid manner will render it unnecessary for us to go into the basis of
the acquisition of the said status as argued by the learned counsel for the
appellant, which, in any case, appears to be contrary to the provision of
section 1(2) of the Tenancy Act. The said provision clearly excludes the
villages settled under the Zamindari system from the purview of the
operation of Part II of the Tenancy Act, which part of the Act, inter alia,
also deals with the acquisition of the status of “pucca tenant” and
“Bhumiswami” by a tenant. However obliteration of Part II of the Tenancy
Act by operation of section 1(2) thereof does not extinguish the different
denominations of tenancy including the status of Bhumiswami which can very
well be acquired by grant of such status by a fresh lease under sections
101 of the Tenancy Act read with section 39 of the M.B. Zamindari Abolition
Act.
13. The rights of a bhumiswami are clearly enumerated by Section 165 of
the MP Land Revenue Code which encompasses a right to transfer. The bar
imposed on the right to transfer does not apply to non-agricultural lands
and, hence, would not be relevant to the present case. If the right of
transfer has been conferred on the appellant by the provisions of a statute
and the bar contemplated does not apply to the appellant, we do not see how
a clause or a condition in the original patta granted by the Zamindar in
samvat 1978-79 (corresponding to English Calender year 1940-41) can
restrict such a right. In any case, there is no specific clause or
condition in any of the original pattas prohibiting or even restricting the
right of the appellant to transfer any part of the land allotted to it that
may be lying vacant. Neither any material has been placed before us to
enable us to take the view that under terms of the lease granted under
Section 101 of Tenancy Act and Section 39 of Abolition of Zamindari Act any
restriction or bar had been imposed on the appellant – Company from making
such a transfer.
14. In view of the aforesaid conclusions the issue with regard to
applicability of the Urban Land Ceiling Act and the Ceiling on Agricultural
Holding Act, need not detains us, save and except to hold that the
provisions of either of the aforesaid Acts, ex-facie, do not apply to the
case of the appellant – Company. We would further like to observe on the
view taken by us it is not necessary to go into the question as to whether
the decree affirmed by the High Court of Madhya Pradesh in S.A. No.482 of
2002 binds the State or whether the same is in respect of the entire land
holding of the appellant – Company or only a part thereof.
15. In view of the foregoing discussions and conclusions reached we allow
this appeal and set aside the judgment and order dated 01.12.2007 of the
High Court as well as the directions contained in the said order.
...…………………………J.
[P. SATHASIVAM]
........……………………J.
[RANJAN GOGOI]
New Delhi,
November 2, 2012.
-----------------------
[1] The words “or place of land” are inserted by M.B. Act No. 18 of
1952.
-----------------------
16
