Bombay High Court
Vithal Kondhalkar vs State Of Maharashtra And Ors. on 20 July, 1979
JUDGMENT B.N. Deshmukh, C.J.
1. These petitions involve a common question of law relating to the real meaning and interpretation of sub-section (3) of section 5 of the Bombay Inferior Village Watans Abolition Act, 1958 (hereinafter referred to as 'the Abolition Act)' and the right of the Collector under section 59 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as 'the Code'). While dealing with each case, we will narrate the detailed facts and circumstances relevant to that particular case. Suffice it to point out in a broad manner as to how this dispute reached this Court and what points are involved.
2. All the lands, which are involved in the above petitions were formerly inferior watans before the said watan was abolished by the Abolition Act of 1958. The broad scheme of the Abolition Act is that on the appointed day, notwithstanding anything in any usage, custom, settlement, grant agreement sanad, or in any decree or order of a Court or in the existing watan law, all the inferior village watans stood abolished, and all incidents, including the right to hold office and watan property, the right to levy customary fees or perquisites in money or in kind, and the liability to render service, appertaining to the said watans were also thereby extinguished. Subject to the provisions of sections 5, 6 and 9 all watan land stood resumed and was thereafter subject to the payment of the land revenue under the provisions of the Code and the rules made thereunder as it were an unalienated land.
3. Prima facie, therefore, subject to the provisions of sections 5, 6 and 9, all inferior watans stood abolished and all the lands pertaining to this watan stood resumed to Government and became in law, on the appointed day, the unalienated Government land. However, the same Abolition Act simultaneously provided for regrant of the watan land. Except where orders are passed under sections 6 and 9, normally under section 5 the watan land was to be regranted to the original Watandar himself. Section 5 has three sub-sections. Sub-sections (1) and (3) are relevant for our purpose. The watan lands were of two types; some were subjected to the payment of the amount equal to the full assessment, and the others were subjected to the payment of three times the assessment by the Watandar under sub-section (1) of section 5 of the Abolition Act and the moment he did that the land was to be regranted to him. Therefore, on payment by the Watanadar to the State Government of the occupancy price equal to three times the assessment of the land within the prescribed period and in the prescribed manner, the Government had to regrant the land to the Watandar, who was to be deemed to be an occupant within the meaning of the Code with all the liabilities arising under the Code, the rules made thereunder or under any other law for the time being in force. If this payment was not made by the Watandar within the prescribed time, the land which was already resumed by Government vests in the Government and the ex-Watandar would become a trespasser and an unauthorised occupant after the prescribed period. The ex-Watandar would then be liable to be evicted summarily but would still be liable to pay the land revenue during the period during which he would make up his mind whether to pay three times the assessment or not. Once the payment is made, the grant followed almost automatically and the ex-Watandar had to execute a Kabulayat' in that behalf accepting the land from the Government on the usual terms and conditions under the Code. At this stage sub-section (3) of section 5 of the Abolition Act becomes most important and relevant and is quoted for ready reference:---
Section 5(3) : "The occupancy of the land regranted under sub-section (1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine."
4. The occupancy of the land regranted under sub-section (1) though has all the characteristics of an occupancy under the Land Revenue Code, was further burdened with certain conditions. The two conditions that were attached to the tenure granted under sub-section (1) of section 5 are that the occupancy of the land was not to be transferable or partible by metes and bounds unless two events occurred, viz., the previous sanction of the Collector was obtained and such permission could not be obtained except on payment of such amount as the State Government might by general or special order determine. It is not in dispute that, so far as the payment under sub-section (3) for releasing the occupancy from the two aforesaid conditions is concerned, it has been laid down by Government by a general order that the payment is to be ten times the assessment. In other words, if an ex-Watandar paid in all thirteen times the assessment whether three times in the first instance and ten times later, or all at once, the condition of non-transferability and impartibiltiy was to be removed forth-with by the Collector. It is to be remembered that it is the occupancy of the land regranted which is made non-transferable and impartible. The moment payment of ten times the assessment is made and the Collector passes an order in that behalf, these conditions cease to exist. In other words, the occupancy becomes transferable and partible in addition to heritable which was always available under the Code. The occupancy granted under the Land Revenue Code is transferable, heritable and partible. The restriction on transferability and partibility, which was the result of sub-section (3) of section 5 of the Abolition Act, was released on payment of ten times the assessment by the ex-Watandar. We may immediately point out that this Act is one of the many Acts passed by the Maharashtra Legislature where the various types of watans and Inams have been abolished from time to time. The process began for the first time in the year 1950 with the passing of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. The Bombay Inferior Village Watans Abolition Act, 1958 is one of the series of similar Acts. There appears to be a definite system followed by the legislature in all these Abolition Acts. On the appointed day, the watan or grant stood abolished and the land which was either pertaining to the Inam or watan stood resumed by Government. It became Government's inalienable land. There is also a provision uniformly made in all these Acts to regrant the same land to ex-Watandars or ex-Inamdars on payment of certain occupancy price. The grant of occupancy was in two stages; on the payment of the minimum occupancy price the grant was always subject to the condition of non-transferability or impartibiltiy which was understood in the Revenue Department by the entire staff dealing with the entries relating to these matters as a new grant which was accompanied by impartibility. The current language adopted by the Revenue Department is making Marathi entries in the Record of rights illustrates how the operations of these Acts under the Land Revenue Code was always heritable, transferable and partible. This was understood as an old tenure with the right of partibility. From the Marathi entries of the Record of Rights which were shown to us, we found the description of the tenure as "june bhajya" (tqus HkkT;) The new grant was described as "nave or naveen avibhajya" (uos fdaok uohu vfoHkkT;) The uniform scheme of all these regrants further shows that the occupancy was not to be transferred or partitioned without the previous consent or sanction of the Collector and except upon the payment of such amount as the Government may determine. Questions arose earlier while administering other similar Acts as to whether the Collector had any choice or right in granting or rejecting the conversion of a new tenure into an old one even if the party had paid the requisite additional amount determined by the Government. Government had taken a decision as early as 12th November, 1955 while issuing a Memorandum in relation to the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. The same was repeated when a further query was raised by the Collector of Jalgaon in the matter of the interpretation of section 5(3) of the Bombay Service Inams (useful to Community) Abolition Act, 1953. By a Memorandum dated August 5, 1954 issued by the Officer on Special Duty in the Revenue and Forest Department, the position was clarified and the Collector of Jalgaon was informed that the provisions of section 5(3) of the Bombay Service Inams (Useful to Community) Abolition Act, 1953 were exactly similar to the corresponding provisions of the tenure laws of the old Bombay State. Although it was not so specifically stated in sub-section (3) of section 5 that it was obligatory on the Collector to release the land from inalienability and impartibility on payment of the prescribed amount, Government by its Memorandum No. PKA-1056/87142-M(SPL) dated 12th November, 1955 informed all the Collectors that such a release was almost automatic on payment of the necessary Nazarana by the holder thereof and the Collector had no discretion to refuse to release the land if the Nazarana was paid by the holder. Instructions contained in the earlier Memoranda also hold good in respect of the lands held under the Bombay Service Inams (Useful to Community) Abolition Act, 1953.
5. We have no doubt that the Circular is very correct and represents the sprit of all the Abolition Acts pertaining to the regrant and the conditions on which the tenure is to be permitted to be converted into the old one from the initiation of the new tenure. It may be remembered that this language has been developed for its understanding and the Government has told the Department, through certain circulars which were shown to us, that this language of new and old grant is not available nor can it be found nomenclature which was adopted by the department to understand the operation of the Abolition Act and the nature and type of regrants which were being made initially on certain payment as occupancy price and thereafter on a further payment of Nazarana whereby the impediments of non-transferability and impartibility were sought to be removed from the regrant or the occupancy of the land.
6. We are thus satisfied that in administering all the abolition laws, the Collectors have to see whether the additional payment as contemplated by the particular Act has been made by the ex-Watandars or ex-Inamdars and the moment that was done, almost as a matter of formality the order of conversion must be passed. In other words, the order of relaxation of the two burdensome conditions must follow as of right the moment additional payment was made. So far as the Abolition Act under consideration is concerned, the additional payment contemplated under sub-section (3) of section 5 is ten times the assessment. Once, therefore, it is shown that not only payment of three times the full assessment is made initially but ten times payment has either accompanied the initial payment or has been subsequently made, the Collector must pass an order under sub-section (3) of section 5 relaxing the conditions. We, however, find that in these proceedings themselves inspite of such payments having been made orders have yet to come and in one case for ten years the Collector has not yet passed the requisite order under sub-section (3) of section 5 of the Abolition Act. We will express our views and give appropriate directions in that behalf when we dispose of each of the petitions on its merits. However, it appears to us that when payment is made the Collectors are bound to pass orders under sub-section (3) of section 5 of the Abolition Act. If for some reasons the orders have not been passed or have remained to be passed due to sheer lethargy on the part of the Department, the moment the Collector is made aware of this additional payment of Nazarana under sub-section (3) of section 5 of the Abolition Act, it is the first and foremost duty of the Collector to pass such an order and then embark upon an investigation into the complaints, if any, with regard to that occupancy.
7. The important point to remember is that non-transferability and impartibility, without the Collectors sanction and except on payment of such amount as determined by the State Government, is a condition attached to the occupancy of the land granted to ex-Watandars, or ex-Inamdars. This is the main point to be remembered so far as the regrant is concerned.
8. In all these five petitions before us, the respective Collectors have passed orders of eviction against the petitioners under section 59(b) of the Code. The whole of section 59 of the Code is being reproduced below for ready reference :---
59. "Any person unauthorisedly occupying, or wrongfully in possession of any land--
(a) to the use or occupation of which by reason of any of the provisions of this Code he is not entitled or has ceased to be entitled, or
(b) which is not transferable without the previous permission under sub-section (2) of section 36 or by virtue of any condition lawfully annexed to the tenure under the provisions of sections 31, 37 or 44, may be summarily evicted by the Collector."
9. The Collectors have taken action and passed orders of eviction against the petitioners only under Clause (b) of section 59. We may indicate here as to who are the petitioners before us. Broadly speaking they are either purchasers of land from ex-Watandars after execution of a regular registered sale-deed on payment of consideration or they are intending purchasers or the prospective purchasers who had executed an Agreement of sale and have further obtained possession by paying the entire sale price under the contract itself. In some cases under contemplation payment of ten times the assessment has been made but there is no specific order passed by the Collector inspite of such payment having been made. In one or two cases, it appears, the ex-Watandars have paid merely three times the assessment which is the occupancy price and have obtained the occupancy rights under sub-section (1) of section 5 of the Abolition Act. They have not paid the additional amount of ten times the assessment under sub-section (3) of section 5 of the Abolition Act. Inspite of the non-payment in this manner under sub-section (3) of section (5) of the Abolition Act, the purchasers have obtained sale-deeds and entered upon the possession of those lands.
10. The position, therefore, that emerges is that an ex-Wantandar, who is a grantee of the occupancy rights has put all the petitioners in possession in some cases by taking a sale-deed while in the others only on the basis of an Agreement of sale. The Collectors have, in all the orders before us, held that without fulfilment of both the conditions under section 5(3) of the Abolition Act any transaction entered into in respect of the land by the ex-Watandars whereby they have put a stranger like the petitioners in possession of such land, is in breach of the conditions attached to the occupancy. We have specifically pointed out earlier that the principal question to be remembered while reading the provision of section 5 of the Abolition Act is to bear in mind that non-transferability and impartibility have been made conditions of the tenure or conditions of the occupancy and they are to be relieved only after the payment of the amount determined by Government and on an order being passed by the Collector in that behalf. If, therefore, a transaction has been entered into in breach of these conditions of occupancy or tenure, the occupancy obtained by the petitioners is in breach thereof. Clause (b) of section 59 reproduced above indicates that any person unauthorisedly occupying, or wrongfully in possession of any land which is not transferable without the prior permission under sub-section (2) of section 36 or by virtue of any condition lawfully annexed to the tenure under the provisions of sections 31, 37 or 44, might be summarily evicted by the Collector. Section 37 is being pointed out in all these cases as the relevant section under which the petitioners have become the unauthorised occupants, or their possession has become wrongful. No other provision referred to in Clause (b) of section 59 of the Abolition Act has been relied upon. Section 37 of the Code provides as follows :---
"An occupant is entitled to the use and occupation of his land in perpetuity conditionally on the payment of the amount due on account of the land revenue for the same, according to the provisions of this Code, or of any rules made under this Code or of any other law for the time being in force, and on the fulfilment of any other terms or conditions lawfully annexed to his tenure."
It is nobody's case that the land revenue as assessed under the Code is not being paid. The occupants are not on the land without payment of the land revenue. What is alleged is that they have occupied these lands in breach of a condition which was lawfully annexed to the tenure. The conditions, as we have noted earlier, was of non-transferability without payment of a certain amount and without the Collector's prior sanction. It appears on a plain reading of sub-section (3) of section 5 of the Abolition Act that both the conditions must be fulfilled. It is not enough if mere payment of ten times the assessment is made. The Collector's prior sanction must always be obtained. If payment of ten times the assessment is made, then the Collector is bound to pass the necessary orders as already observed by us. If the Collector fails to do so and is requested by an application but still does not take cognisance of the request, in our view, a mandamus can be issued by this Court directing the Collector to grant the appropriate sanction. It appears to be the statutory duty of the Collector to grant the sanction the moment the requisite payment is made. The circular, which we have referred to earlier, emphasises that position. The point to remember, therefore, is that for the removal of the disability of non-transferability and impartibility, the payment as well as the Collector's sanction are both the necessary requisites. If any one of them is wanting, the transfer of occupancy would be in breach of a condition annexed to the tenure and would squarely attract the provisions of section 37 of the Code. If such facts are found by the Collector, then he himself would have an obvious right under Clause (b) of section 59 of the Code to summarily evict a person, who is in unauthorised occupation.
11. Having thus found out the legal position, we will now proceed to consider the facts and circumstances of each case and give appropriate directions as justice in the case demands.
12. We may now briefly set out the facts in Special Civil Application No. 2177 of 1978. Respondent No. 3 in this petition is the original Watandar who had executed a Sale-deed for Rs. 8000/- on 16th March, 1968 in favour of the petitioners in respect of Gat No. 160 which comprised of the following lands :---
Survey No. Area Assessment A-Gs. Rs. Ps.
1. 277/1-A Bagayat 1-09 4.00 Jirayat 2-03 3-12
2. 277/2-B Jirayat 2-14 1.31 Bagayat 0-04 2-18
3. 277/2-A Bagayat 2-02 3.07
4. 277/1-B Bagayat 1-08 3-10
5. 277/2-A Jirayat 0-17 0.19 (Excluded in S. No. 277/2-C plus 3-D) 9-17 i.e. Total H.A.
------
3-81 In the above table, Survey No. 277/2-A has been separately shown as 'bagayat' and 'jirayat' portions respectively measuring 2 Acres and 2 Gunthas and 0-17 Gunthas. In the discussion made by the Tahsildar acting under the delegated authority of the Collector, he has referred to Survey No. 277/2-A as one piece of land. On that basis the Revenue Authorities have taken into account only four pieces together making Gat No. 160. These pieces have been divided into two grounds and they have been shown separately on the basis of the payments made by the Watander in respect of the regrant. It is found as a matter of fact that survey Nos. 277/1-A together measuring 3 Acres and 12 Gunthas and Survey No. 277/2-B together measuring 2 Acres and 18 Gunthas have been regranted on old tenure. There are orders passed in that behalf which are on record. So far as the actual payment is concerned in respect of Survey No. 277/1-A payment of 13 times the assessment has been made on 26th April, 1965 which is reflected in the mutation entry No. 2748. With regard to Survey No. 277/2-B payment of 13 times the assessment has been made on 22nd August, 1966 as can be seen from the mutation Entry No. 2777. There is, therefore, no dispute that payments in respect of both these lands were made in 1965 and 1966. However, the specific order under sub-section (3) of section 5 of the Abolition Act seems to have been recorded sometime on 28th April, 1970. The petitioner had purchased the entire Gat consisting of all the five pieces mentioned above on 16th March, 1968. It has, therefore, been held that on the date of the sale payment of ten times the assessment may have been made but the order of the Collector as required under sub-section (3) of section 5 of the Abolition Act was not passed. Hence the possession of the petitioner with respect to these two survey numbers also became unauthorised being in breach of the conditions annexed to the tenure.
13. So far as the other two lands are concerned, viz., Survey No. 277/2-A consisting of two portions and Survey No. 277/1-B, it is presumed that the payment of three times the assessement has been made by the ex-Watandar as he has not been deprived of that land at any time by the Government. Though some payment evidenced by the two certificates issued by the Sub-Treasury Officer, Newasa, on 29th September, 1977 is being canvassed as the payment of ten times the assessment made on 22nd August, 1966, the finding of both the Tribunals below is that there is no clear evidence to indicate that any payment was made in respect of these lands towards the money due under sub-section (3) of section 5 of the Abolition Act. Since one of the conditions contained in sub-section (3) of section 5 of the Abolition Act was satisfied, the occupancy of the petitioners in respect of these lands was also declared as unauthorised.
14. In our view this is not a litigation where the legality of the transaction is in question. That will be a matter between the petitioners and their vendor. So far as the State is concerned, the Collector's duty lies in removing a person in unauthorised possession if the findings warrant such a course. This is the permissible action under section 59 of the Code. It may be noted that the present proceedings were started in the year 1977 on the application of the vendor himself, who admittedly received Rs. 8000/- on 16 the March, 1968 and kept quiet till 1977. The Collector has not only summarily evicted the petitioners from the land but has immediately regranted all the lands to respondent No. 3 without any condition whatsoever. The Collector's duty under section 59 of the Code is to examine whether a particular party is in unauthorised occupation of the revenue yielding land. Technically, no doubt, even in 1977 no order was passed by the Collector converting the new tenure into an old one even though payment of ten times the assessment was made at least in respect of two lands as early as 1965 and 1966. We have, therefore, pointed out earlier that it is the statutory duty of the Collector to pass orders and that passing of such orders under section 5(3) of the Abolition Act is more or less a formality as the Government Circulars themselves rightly pointed out. Even after the passage of 11-12 years the Collector has failed to carry out his statutory duty of merely passing a formal order of conversion of the new tenure into an old one. Should he, therefore, be permitted to persist in not passing any order under section 5(3) of the Abolition Act and in merely using a technical weapon under section 59 of the Code? In our view such a course would be most unjust, improper and against the spirit of the provisions of the Abolition Act.
15. We have quoted the Government Memoranda in that behalf of 1964 and 1965 which fully endorsed the spirit behind the above legislation. When, therefore, facts were brought to his notice in this case that at least in respect of two lands payment of 13 times the assessment had been made as long as in 1965 and 1966, he should have first passed the formal orders of conversion to the old tenure, rather than go ahead with the proceedings under section 59 of the Code. In our view such a course is highly unjust.
16. Even though, therefore, technically the order may not be strictly unlawful being unjust, we quash and set aside the same and direct the Collector to pass the formal order of regrant and conversion from new tenure to the old one in respect of Survey Nos. 277/1-A and 277/2-B. Since we are giving this as a general direction to the Revenue Officers, who are entrusted with the enforcement of laws similar to the present Abolition Act, in our view it is only after passing such an order that the Collector may still consider if any action under section 59 of the Code is called for. Once such an order is passed, the tenure becomes a normal tenure under the Code which is heritable, transferable and partible. If, therefore, this is a transferable tenure then, whether the actual transaction of transfer, which has taken place, is fully supported by legal provisions or not, the occupation of the land by the transferee is certainly not in breach of any of the conditions attached or annexed to the tenure. If it is otherwise unlawful, it is for the vendor to see what action is to be taken. The intervention of a drastic nature of summary eviction is certainly not called for in circumstances like this. So far as the two lands mentioned above are concerned, we direct the Collector to pass appropriate orders in the light of our discussion made hereinabove and thereafter find out whether action under section 59 of the Code survives at all.
17. So far as the other two lands are concerned, viz., Survey No. 277/2-A and 277/1-A, it is true that the record as is available today is not very clear. If no payment under sub-section (3) of section 5 of the Abolition Act is made, there is no doubt that the transfer could not have been made at all. As none of the two conditions has been fulfilled or complied with, it may be stated that the possession on occupation of the lands by the petitioners is unauthorised and action under section 59 of the Code may be permissible. However, we are inclined to send down the case back to the Collector for passing appropriate orders and hence we are also inclined to give directions that the petitioners may be allowed to produce further evidence to prove whether payment of ten times the assessment has been made at all in respect of the remaining two lands. If the record discloses that such a payment has in fact been made, then the Collector will pass appropriate orders under sub-section (3) of section 5 of the Abolition Act. In the light of our aforesaid discussion and thereafter consider whether the action under section 59 of the Code survives at all. We would, further make it clear that the effect of retaining two lands with the petitioner and summarily evicting him from two other lands may have the effect of a part of the Gat remaining in his possession. However, the present action is not taken under section 9 of the Fragmentation and Consolidation Act. If any action is contemplated under that Act, a fresh enquiry must be held in that behalf before which the order of summary eviction shall not be enforced.
18. We desire to issue a further general direction in all these cases where there has been no payment made under section 5(3) of the Abolition Act. These directions are being based on the Resolution of Government dated 11th September, 1968 bearing No. LND. 3268/12844-B. This circular again reflects a very rational approach of Government in the case of those ex-Watandars who had committed a breach of the conditions attached to the tenure, which provided for recovering the market price of the land and again wanted to fall back on technical grounds with regard to the title and possession of the land. Undoubtedly the purchaser is a party to the breach. Government, therefore considered carefully what should be done in such cases. Government had originally issued instructions in respect of alienations regarding plots for non-agricultural use. The same instructions have not been extended by this resolution to transfer of lands where agricultural land is transferred only for agricultural purpose. Undoubtedly all the cases before us relate to transfer of agricultural lands for agricultural use. The Government having been given merely the right to claim Nazarana for conversion of the new tenure into an old one, the Resolution has been passed with a view to recover proper Nazarana so as not to cause loss to Government but at the same time to retain the land with the purchaser as far as possible if he is willing to satisfy the conditions contained in that Resolution. The net result may be that the transaction now becomes commercialised. But the Resolution has certain merits of doing justice to the Government as well as to the purchaser, who has, out of sheer greed for land, rushed in for a transaction rather impatiently when the ex-Watandar was willing to sell the land at the prevailing market price. Therefore, nothing would be easier to the Government than making him pay ten times the assessment. However, partly out of ignorance and partly out of the desire to grab the land before other bidders stepped into the field, such transactions have taken place on a large scale. Realising, therefore, the serious consequences of such transactions, Government Resolution was issued to do justice to the purchaser as much as possible under the circumstances. Therefore, when a transaction has taken place in breach of section 5(3) of the Abolition Act, the consequence undoubtedly is that the occupancy itself is forfeited. That is condition of the grant to ex-Watandars. If the right of forfeiture is exercised, which the Government must, the land will become unalienated Government land. It is certainly not the intention of Government to cultivate each and every piece of such land. It wants to regrant it. This circular, therefore, states that Government have carefully considered the question and are pleased to direct that the principle adopted in regulating unauthorised sale of non-agricultural plots held on new and restricted tenures in Government Resolution of the Revenue Department bearing No. L.N.D. 4857/169146-A-1 dated 21-11-1957, viz, that the Collector should sanction regularisation of unauthorised sale of new tenure plots by charging 621/2% to 75% of the net unearned income, should be followed in regularising the unauthorised sale of agricultural lands held on new and restricted tenure. It is further stated that before submitting such cases to Government, the Collector should see that notices are issued to the original occupants of the lands and their statements obtained in regard to the proposed regularisation. It should also be made clear as to which person whether the original occupant or the present holder is prepared to pay the aforesaid percentage of the net earned income. The Collectors should also find out and purpose the percentage of the net unearned income (i.e. the difference between the sale price and the original price paid to Government plus the estimated cost of the improvement made in the land by the original occupant i.e. alienor) to be recovered having regard to the circumstances of the case. This Resolution has been issued with the concurrence of the Finance Department.
19. It is, therefore, clear that if any breach of the provision of section 5(3) of the Abolition Act is detected which leads to the forfeiture of the tenure and immediate action of summary eviction under section 59 of the Code is not to be initiated by the Collector before implementation of the Government direction contained in the circular mentioned above.
20. In respect of the two lands for which ten times payment may not have ultimately been found to be made, we direct the Collector to follow the course indicated in the Government Circular dated 11th September, 1968 in the light of the principle mentioned by us earlier. It must be borne in mind that respondent No. 3, at whose instance the present proceedings have been initiated, is a vendor who is as much guilty as the purchaser, but who has already reaped the profit of Rs. 8000/- as early as 1968. Keeping these facts in view and the immoral approach of respondent No. 3 in making the application after having pocketed the amount, the Collector will make appropriate enquiries in respect of these two lands consistent with the circular discussed above.
21. In Special Civil Application No. 2319 of 1978 the facts are as follows :
Gat No. 158 consisting of Survey No. 277/3-B admeasuring 3 Acres and 4 Gunthas and assessed at Rs. 1.75 p. has been sold by respondent No. 2 to the petitioners. This was done by a registered sale-deed dated 20-7-1971 for a consideration of Rs. 3,000/-. What is clearly on the record is that the ex-Watandar made a payment of Rs. 14.07 on 22nd August, 1966 in respect of Gat No. 158 as well as Survey No. 263/1-C. The assessment of these two lands together was Rs. 4.69 p. Three times the amount of this assessment comes to Rs. 14.07 p. In other words, payment of three times the assessment has been made by the ex-Watandar in this case in respect of the disputed land on 22nd August, 1966. The order of regrant in on record. It reiterates the condition that this grant is subject to the provisions of section 5(3) of the Abolition Act and unless ten times payment is made and the Collector's prior sanction is obtained, the tenure would continue to be non-transferable and impartible. Prima facie, therefore, this is a case where payment of three times the assessment has been made and the Collector, on remand, may have to consider the provisions of the Circular dated 11th September, 1968 before the order of summary eviction is enforced. However, the regrant order contains a reference to two figures : one of Rs. 47.81 on the right hand side of the paper just opposite Rs. 14.07 which is noted on the left hand side of the paper. What precisely that entry was nobody could enlighten us on this aspect.
22. Mr. Kukarni, the learned Advocate for the petitioner, prayed that since the matter is being remanded to the Collector for passing appropriate orders, the petitioners may be permitted to lead further evidence if they could to show that even payment of ten times the assessment has been made in addition to three times payment which is the admitted position. We think that in view of the confused state of the record, it would not be out of place to grant the petitioners this concession in the regrant proceedings under section 5(3) of the Abolition Act. The Collector will, therefore, after permitting the petitioners to do so, and after considering such evidence as the petitioners might be able to lead, dispose of this case in the light of our general observations made hereinabove regarding the passing of the appropriate orders under section 5(3) of the Abolition Act in the first instance and thereafter taking action under the circular dated 11th September, 1968 and ultimately acting under section 59 of the Code, if necessary.
23. The facts in Special Civil Application No. 3322 of 1978 show that the consolidation scheme has not been applied to this village when the Collector considered the matter. The lands involved are Survey No. 23/2 measuring 1H. 4 Ars. assessed at Rs. 1.87 and Survey No. 23/1-A (part) measuring 0.75 Ars. assessed at Rs. 0.95 p, only. On payment of three times the assessment three has been a regrant under the new tenure to the ex-Watandar on 31-7-1968. Respondent No. 2 is the ex-Watandar. On 28-2-74 respondent No. 2 executed an Agreement of sale in favour of the petitioner in respect of both the Survey Nos. for a sum of Rs. 7,000/-. The petitioner paid the entire price and entered upon the possession of both the lands under the Agreement of Sale. However, on 7-8-1974 respondent No. 2 paid the Nazarana of ten times the assessment under section 5(3) of the Abolition Act in the Treasury. He also made an application dated 25th August, 1974 to the Collector for conversion of the lands to the old tenure. Instead of passing an order on that application in pursuance of the payment made under section 5(3) of the Abolition Act, the Collector seems to have commenced suo motu proceedings under section 59 of the Code which have resulted in the summary eviction of the petitioner. It is true that a view has been taken in all these cases that since there was no specific permission of the Collector obtained after making the payment, on the date of the sale deed the transactions were bad. We have already explained above that the Collector is not very much concerned with the lawful or unlawful nature of the transaction in respect of any land so as to exercise powers under section 59 of the Code. The facts of this case, therefore, become very simple in view of our earlier observations.
24. The Collector had to pass an order under section 5(3) of the Abolition Act on the application of respondent No. 2 dated 25th August, 1974 in the first instance. If, in terms of the Government instructions which we have already discussed above, he was able to pass an order of conversion in favour of respondent No. 2, this case could at once be taken out from the purview of section 59 of the Code as we have already indicated earlier. Summary eviction, therefore, does not seem to be possible.
25. We accordingly remand this case to the Collector to enable him to decide the application of respondent No. 2 dated 25th August, 1974 in the first instance and consistent with the order passed on that application, he may further dispose of this case in the light of our general discussion above which covers cases of non-payment under section 5(3) of the Abolition Act but contemplates regularisation of the transactions in terms of the Government Circulars.
26. This takes us to Special Civil Application No. 3323 of 1978. In this case also two pieces of land bearing Survey No. 23/1-A (part) measuring 0.75 Ars. assessed at Rs. 0.95 p. and Survey No. 23/3 measuring 1 Hec. 92 Ars. assessed at Rs. 2.51 are involved. Both these lands were regranted to respondent No. 2 on new tenure in the year 1969. He made an agreement of sale with the petitioner for an amount of Rs. 9000/- on 2-12-1973. On full payment of the agreed amount towards the agreement of sale, possession has already been transferred to the petitioner, from the date of the agreement. On 7-8-1974 respondent No. 2 deposited in the Treasury the Nazarana amount of ten times the assessment and on 25th August, 1974 he applied for conversion of the new tenure into an old one, but the application has not been decided as yet by the Collector. Instead, as in the earlier case, suo motu proceedings were adopted which have resulted in the summary eviction of the petitioner. The facts of this case are similar to the earlier one.
27. We will, therefore, remand the papers of this case to the Collector to enable him to pass in the first instance an order on the application of respondent No. 2 dated 25th August, 1974 and thereafter to dispose of the case in the light of our entire discussion made hereinabove.
28. The last of the cases in this group is Special Civil Application No. 2413 of 1978 wherein a sale transaction dated 22nd February, 1973 in respect of two pieces of lands bearing Survey Nos. 86/4 measuring 1 Hec. 66 Ars. assessed at Rs. 5.87 p. and 86/7 measuring 0.13, Ars. assessed at 0-47. p. was involved. Respondent No. 2, the former Watandar had deposited three times the assessment under section 5(1) of the Abolition Act on 28-1-1962. Thereafter he had sold both the lands to the petitioners 1 and 2 on 22nd February, 1973 for a price of Rs. 6000/-. The document was duly registered and possession of the lands has already been delivered. There is, however no payment of ten times the assessment made in this case under section 5(3) of the Abolition Act. This is, therefore, a case where the Collector will have to regularise the sale under the circular dated 11th September, 1968 containing Resolution No. LND 3268/12844-B. We have sufficiently discussed the contents of that resolution as well as the procedure the Collector is called upon to follow. When the papers reach back, the Collector will dispose of this case in the light of the contents of that Resolution and our observations made in this judgment.
29. We are told that in Special Civil Application Nos. 2413 of 1978 and 3323 of 1978 the order of the Collector has already been enforced and the lands have been regranted to the original Watandar. Since the result of this judgment is that the entire order of the Collector is quashed and set aside, those regrants to the original Watandar would also stand quashed. The Collector will reconsider the question of regularisation as per our detailed discussion hereinabove and thereafter decide as to who should continue in possession of those lands.
30. Rule is accordingly made absolute in terms of our orders passed in the judgment hereinabove.
31. In the circumstances of these petitions, we think that parties should be directed to bear their respective costs.