Madhya Pradesh High Court
Smt. Hirakumari Wife Of Thakur Jaipal ... vs State Of Madhya Pradesh And Ors. on 17 September, 2007
Bench: Chief Justice, Abhay Sapre
ORDER A.K. Patnaik, C.J.
1. This is a reference made initially by a learned single Judge and thereafter by a Division Bench by orders dated 28.1.1997 and 4.4.1997 respectively passed in this case for considering the correctness of the decision rendered by a Division Bench of this Court in State of M.P. v. Board of Revenue .
2. The background facts which have led to the reference are that a case under the M.P. Ceiling on Agricultural Holdings Act, 1960 (for short 'the Act of 1960) was instituted against the petitioners before the Sub-Divisional Officer-cum-Competent Authority, Pipariya. The Competent Authority published a draft statement in the said ceiling case and the petitioners raised objections with regard to Survey Nos. 76/1 and 239/4 contending that there were big trees standing on the land and that the land was not agricultural land and cannot be declared surplus under the Act of 1960. After spot inspection, the Competent Authority found the land to be agricultural land and declared the land to be surplus. Against the order of the Competent Authority, the petitioners filed appeal before the Collector, Hoshangabad, who dismissed the appeal. The petitioners thereafter filed revision before the Additional Commissioner, Hoshangabad who also dismissed the revision. Thereafter, the petitioners filed a second revision (Revision No.58-5/84) before the Board of Revenue, Madhya Pradesh, Gwalior and contended that the land was shown as jungle in settlement papers and there was natural forest on the land and, therefore, the land should not be treated as agricultural land.
3. The respondents, on the other hand, contended before the Board of Revenue that whether a land was agricultural land or not was a question of fact and all the authorities have recorded a concurrent finding that the land was agricultural land. The respondents further contended before the Board of Revenue that it will be clear from the finding that some portion of the land has been cultivated and the remaining portion of the land also could be brought under cultivation and, therefore, it has to be treated as agricultural land and the land cannot be treated as non-agricultural land. The Board of Revenue, after taking into consideration the aforesaid contentions, rejected the revision petition of the petitioners after holding that all the authorities have given a concurrent finding of fact on the point that the land was agricultural land and at the stage of second revision, there was no reason to interfere with the order. Paragraphs 5 and 6 of the order of the Board of Revenue dated 18.3.1985 are quoted herein below:
5. The only question agitated on behalf of the holder was that the land under dispute is partly recorded as jungle having trees and therefore it does not come under agricultural purpose. Under Section 2 (k) the word land has been defined and it means land held for agricultural purpose but does not include land diverted to or used for nonagricultural purpose. On this point there is a clear ruling in case of Razia Ban v. State of M.P. 1970 RN 435 that where the land is jungle, pathar and pahad, and is not cultivable, but is held in Bhumiswami rights and is assessed to agricultural purpose and also is not used for any nonagricultural purposes, the land is covered by the Act. Thus, it is clear that the land under dispute will be governed under the Act. The ruling reported in 1980 RN 17 in which it has been held that land on which these are natural forest, cannot be treated as agricultural land will not be applicable to the present case as the land under dispute is being partly cultivated and is held for agricultural purpose.
6. To ascertain facts the Competent Authority has visited the spot and himself satisfied that this is a land held for agricultural purpose. All the lower courts have given a concurrent finding of fact on this point. At the stage of revision I do not find any reason to interfere in the said findings. The revision petition is, therefore, rejected.
4. Aggrieved by order dated 18.3.1985 of the Board of Revenue in Revision No.58-V/84, the petitioner filed Misc. Petition No.4013 of 1985 before this Court under Articles 226 and 227 Constitution of India. When the petition came up for hearing before the learned single Judge, the learned Counsel for the petitioners contended that the authorities under the Act of 1960 had misdirected themselves in not appreciating that the land held by the petitioners was not for agricultural purpose and that it could not include land diverted to or used for non-agricultural purpose and the land, therefore, could not be declared as surplus under the said Act of 1960. The learned Counsel for the petitioners further submitted before the learned single Judge that the provisions of the M.P. Akrishik Jot Uchchatam Seema Adhiniyam, 1981 (for short 'the Adhiniyam of 1981') would be applicable and the petitioners would be entitled to hold atleast 21.85 hectares of land which fall within the definition of non-agricultural holding under Clause (d) of Section 2 of the Adhiniyam of 1981. The Government advocate appearing for the respondents, on the other hand, submitted before the learned single Judge, relying on the decision of the Division Bench in the State of M.P. v. Board of Revenue, Gwalior (Supra) that the land though covered by forest was held by the petitioner in his Bhumiswami rights and therefore, came within the definition of 'land' in Section 2 (k) of the Act of 1960.
5. The learned single Judge in the order dated 28.1.1997 referred to the findings of the Division Bench in the case of the State of M.P. v. Board of Revenue, Gwalior (Supra) that the lands though covered by forest were held by holder in Bhumiswami rights and therefore came within the definition of 'land' in Section 2 (k) of the Act of 1960. The learned single Judge, however, observed that the provisions of the Adhiniyam of 1981 were not brought to the notice of the Division Bench in the case of the State of M.P. v. Board of Revenue, Gwalior (Supra) and had the Division Bench considered the definition of 'holder' and 'non-agricultural holding' as given in the Adhiniyam of 1981, the Division Bench might have arrived at a different decision. The learned single Judge, thus, held in the order dated 28.1.1997 that the matter deserves to be re-considered by a larger Bench so that the wrinkles caused by the observations made in the matter of the State of M.P. v. Board of Revenue, Gwalior (Supra) by the Division Bench are creased out.
6. When the matter was thereafter referred to a Division Bench, the Division Bench took the view that since the correctness of the decision of the Division Bench in the State of M.P. v. Board of Revenue, Gwalior (Supra) is tobe considered, the matter should be placed before a larger Bench and this is how the matter has now been placed before this Full Bench.
7. Mr. A.D. Deoras, learned Senior counsel for the petitioners referred to para 12 of the judgment of the Division Bench in the State of M.P. v. Board of Revenue, Gwalior (Supra) and submitted that the Division Bench construed Section 16 (2) (ii) of the Act of 1960 which made a provision for additional compensation for trees and held that the word 'trees' under Section 16 (2) (ii) of the Act of 1960 is used to signify trees such as those in a grove or orchard i.e. trees planted by the holder which can be described to be improvement and not trees of spontaneous growth such as in a forest. He also referred to paragraph 20 of the judgment of the Division Bench in the State of M.P. v. Board of Revenue, Gwalior (Supra), in which the Division Bench has held that though the lands in that case were covered by forest, they were held in Bhumiswami rights for agricultural purposes and, therefore, came within the definition of 'land' in Section 2 (k) of the Act of 1960. He vehemently argued that the Division Bench lost sight of the fact that under the Adhiniyam of 1981, ceiling on non-agricultural holdings was imposed for the first time and Section 2 (c) of the Adhiniyam of 1981 defined 'holder' to mean Bhumiswami of a non-agricultural land and Section 2 (d) of the Adhiniyam of 1981 definined 'non-agricultural holding' to mean all forest land held by a Bhumiswami within the State. He submitted that these provisions would go to show that Bhumiswami rights in forest land could also be held within the State of M.P. and in respect of such forest land, the Act of 1960 did not apply but these aspects were not considered by the Division Bench while rendering the judgment in the State of M.P. v. Board of Revenue, Gwalior (Supra) as has been observed by the learned single Judge in the order of reference dated 28.1.1997 in the present case.
8. Mr. R.N. Singh, learned Advocate General appearing for the respondents, on the other hand, submitted that all the authorities under the Act of 1960, namely, the Competent Authority, the Appellate Authority and the first Revisional Authority have held in the present case that the land in question was agricultural land and this finding of fact recorded by all the three authorities has not been interfered with by the Board of Revenue, Gwalior in the revision. He submitted that since there is no finding of fact as yet by any of the authorities, as also the learned single Judge in the order of reference dated 28.1.1997 that the lands of the petitioners in Survey NOs.76/1 and 239/4 were actually forest land, and not agricultural land, the reference made by the learned single Judge was academic and it should not be answered by the Full Bench. He cited the decision of the Nagpur High Court in Laxman Ichharam v. Divisional Forest Officer, Raigarh and Ors. 1953N.L.J. page 44 in which a Division Bench of the Nagpur High Court has held that the word 'forest' has not been defined in the Forest Act and must be taken in its ordinary dictionary sense. He also referred to the order of the Supreme Court in T.N. Godavarman Thirumulkpad v. Union of India and Ors. in which a similar view has been taken that the term 'forest' occurring in Section 2 of the Forest Conservation Act, 1980 will not only include 'forest' as understood in the dictionary sense but also any area recorded as forest in the Government record irrespective of the ownership.
9. We have considered the submissions of Mr. Deoras and Mr. Singh and we find that in the Act of 1960, the word 'land' has been defined in Section 2 (k) to mean 'land held for agricultural purposes but does not include land diverted to or used for non-agricultural purposes'. Keeping in mind this definition of 'land' in Section 2 (k) of the Act of 1960, the Division Bench in the State of M.P. v. Board of Revenue, Gwalior (Supra) in second paragraph of the judgment took note of the fact that Hariprasad Naik was Proprietor of village Shivpuri in Raigarh District and after the abolition of proprietary rights by the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (for short 'the Act of 1950) with effect from 31st March, 1951, Naik was allowed to retain in his possession, as provided in Section 4 (2) of the Act of 1950, only homestead and home-farm land. Section 4 (2) of the Act of 1950 is quoted herein below:
4. Consequences of the vesting -
(1) ...
(2) Notwithstanding anything contained in subsection (1), the proprietor shall continue to retain the possession of his home-stead, home- farm land and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting.
It will be clear from the aforesaid provision in Section 4 (2) of the Act of 1950 that the Proprietor was allowed to retain possession of his home stead and home-farm land and in the Central Provinces also the land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting.
10. Since Naik and his relations were allowed to hold the land in question for agricultural purposes under Section 4 (2) of the Act of 1950, the Division Bench held in para 20 of the judgment as reported at page 122 of the AIR:
During the course of arguments it was also hinted that as the lands were mostly covered by forest they did not fall within the Ceiling Act. In our opinion, that is not the correct legal position. The lands though covered by forest were held by Naik and his relations in Bhumiswami rights for agricultural purposes. The lands, therefore, came within the definition of land in Section 2 (k)....
It will be clear from the aforesaid finding recorded by the Division Bench in the State of M.P. v. Board of Revenue, Gwalior (Supra) that though the lands in the aforesaid case were covered by forest, they were held by Naik and his relations in Bhumiswami rights 'for agricultural purposes'. Thus in the case of the State of M.P. v. Board of Revenue, Gwalior (Supra) there was a clear finding by the Division Bench that Naik and his relations were holding the alleged forest land as part of their Bhumiswami rights for agricultural purposes and not for non-agricultural purposes such as forest purpose.
11. Once it is held that the land in that case was held in Bhumiswami rights for agricultural purposes and not for non-agricultural purposes such as forest purposes, the land came within the definition of Section 2 (k) of the Act of 1960 and the provisions of the said Act of 1960 were applicable to the said land. Further, once it is held that the land was held in Bhumiswami rights for agricultural purposes, the provisions of the Adhiniyam of 1981 were not applicable inasmuch as the Adhiniyam of 1981 was a law imposing ceiling on non-agricultural holdings and Section 2 (d) of the Adhiniyam of 1981 defined 'non-agricultural holdings' to mean all forest land held by a Bhumiswami within the State. We have therefore no doubt in our mind that the Division Bench judgment in the State of M.P. v. Board of Revenue, Gwalior (Supra) was correctly decided on the facts as found in that case.
12. Coming now to the facts of the present case, the Competent Authority, Pipariya, the Collector, Hoshangabad who was the Appellate Authority, and the Additional Commissioner, Hoshangabad who was the first Revisional Authority, have held that the land in question was agricultural land to which the Act of 1960 was applicable and in second revision, the Board of Revenue has refused to interfere with such finding of fact recorded by the Competent Authority, Appellate Authority and the first Revisional Authority. The learned single Judge, who heard the writ petition against the order passed by the Board of Revenue, as yet, has not disturbed the finding that the lands of the petitioners were agricultural land. There is no finding whatsoever by any of the authorities including the learned single Judge hearing the writ petition that the petitioners held Bhumiswami rights in respect of forest land. Until a clear finding is recorded by any authority or the Court that the lands in Survey Nos.76/1 and 239/4 held by the petitioners were held not for agricultural purposes, this Court cannot render a decision that the lands of the petitioners are not agricultural lands to which the provisions of the Act of 1960 are not applicable.
13. The matter will now be placed before the appropriate Bench for deciding the writ petition on merits.