Holding

Restoration of land under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 is not a "transfer" under Section 8 of the Ceiling Act and therefore the restored land is not to be counted in the appellant's ceiling holding.

Summary

Bhupendra Singh purchased land from a tribal (Kisana) in 1958. The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, later restored that land to the tribal's heirs in 1976‑77. The Surplus Land Determination Tribunal, applying the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, treated the restored land as part of Singh's holdings as of the ceiling Act's commencement date (2 Oct 1975), leading to a surplus land finding. Singh appealed, arguing that the restoration was not a "transfer" under Section 8 of the Ceiling Act and therefore should not be counted in his ceiling holding. The Supreme Court held that restoration under the 1974 Act does not fall within the definition of "transfer" and consequently the land is not liable to be included in the ceiling calculation. The appeal was partly allowed and the matter remanded for fresh determination of Singh's ceiling holding.

Issues considered

Whether land restored to a tribal under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, constitutes a "transfer" within the meaning of the Explanation to Section 8 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.
Whether such restored land should be included in the appellant's ceiling holding for purposes of the Ceiling Act.

Legislation cited

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961s. 10(1), s. 16(1), s. 16(2), s. 18, s. 21, s. 3, s. 8
Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974s. 3, s. 4

Subjects

land ceilingrestoration of tribal landsdefinition of transfersurplus land determinationMaharashtra land lawtribal land rightsstatutory interpretation

Judgment

BHUPENDRA SINGH A
v.
STATE OF MAHARASHTRA AND ORS.

NOVEMBER 21, 1995

[M.M. PUNCHHI AND SUJATA V. MANOHAR, JJ.] B

Land Laws:

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 :
Sections 3 and 8-Ceiling area-Detennination of-Land purchased from C
tribal subsequently restored on the coming into force of the Maharashtra
Restoration of land to Scheduled Tribe Act, 1974-Dimunition of area taking
place by thmst of another statut~Held : restoration of land not a "transfer"
within the meaning of Expln. to Section 8-Such land not liable to be
included in the ceiling holdings-The Maharashtra Restoration of land to D
Scheduled Tribe Act, 1974.

The appellant had purchased land from a tribal under a registered
sale-deed. The Maharashtra Restoration of Lands to Scheduled Tribes
Act, 1974 which came into force on 1st November, 1975, provided for
restoration of land to a tribal transferor. The Authority under the Res- E
toration Act passed an order and directed that the land which had' been
purchased by the appellant from the Tribal be restored to his heirs.

Subsequently, an enquiry under the Maharashtra Agricultural
Lands (Ceiling on Holdings) Act, 1961 was held for determining the ceiling
area of the appellant's family unit. The surplus Land Determination F
Tribunal held that the Lands which were restored to the Tribal formed a
part of the Holdings of the appellant's family unit at the commencement
date i.e.; 2nd October, 1975 under the Ceiling Act and had to be included
in the holding of the appellant's family unit.
G
This view had been upheld by the Revenue Tribunal. The writ peti-
tion filed by the appellant challenging the decision of the Tribunal was
dismissed ty the High Court. Aggrieved by the High Court's judgment the
appellant preferred the present appeal.

On behalf of the appellant it was contended that since the lands had H
491
492 SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A been restored to the tribal under the provision to the Restoration Act
before the enquiry under th_e Ceiling Act, the lands could not be considered
as part of his holding.

Partly allowing the appeal, this Court

B HELD : 1.1. Under the Maharashtra Restoration of Lands to
Scheduled Tribes Act, 1974 the lands which were purchased by a non-
Tribal transferee are restored to the Tribal transferor. There is no
provision in the Act which makes the sale transaction void ab initio. Section
3 of the Restoration Act provides for the Authority's taking possession of
C the land from the non-Tribal transferee and restoring it to the Tribal
transferor, for which the Tribal Transferor has to return the consideration
and pay for improvements as provided in the Act. There is no provision
under the Act providing for any retrospective cancellation or annulment
of sales. The contention, therefore, that by virtue of the Restoration Act,
the said land cannot be considered a part of the appellant's holding even
D prior to the coming i_nto effect of the Restoration Act, cannot be accepted.
The lands have, therefore, been rightly held to be a part of the appellant's
holding. [496-D-E]

Lingappa Pochanna Appelwar v. State of Maharashtra & Anr., [1985]
E 1 sec 479, referred to.

1.2. The restoration of lands under the Restoration Act does not fall
within the definition of "transfer" under the Explanation to Section 8 of the
Maharashtra Agricultural Lands (Ceiling. on Holdings) Act, 1961.
[497-A-B]
F
2.1. The restoration is obviously not a transfer inter vivos. It cannot
also be considered as a transfer pure and simple by an order of a Court,
tribunal or authority. The order of the authority here is for the purpose of
carrying out the scheme under the Restoration Act. The scheme under the
G Restoration Act is for cancellation of transfer and restoration of land to
the Tribal. The scheme is more akin to the transactions which are excluded
from the definition of "transfer", such as acquisition of land for a public
purpose. This is restoration of land to the Tribal for a public purpose of
effecting "distributive justice". The land which is so restored by reason of
the said Act is, therefore, not covered by the definition of "transfer" in
H section 8. Hence section 10(1) also will not apply to such land. [497-E-F]
BHUPENDRASINGHv. STATE 493

2.2. Under section 16(2) of the Ceiling Act, a person or family unit is A
entitled to select the lands he or it wishes to retain upto the ceiling area.
This right is subject to section 16(1). Section 16(1), inter alia, provides that
where a person or family unit holds lands in excess of the ceiling area and
the whole or part of such land is subject to an encumberance, then the
person or family unit shall retain such land upto the extent of the ceiling
land. The High Court has treated the land restored to the Tribal as encum-
B
bered land of the appellant. Prior to the Restoration Act, the land belonged
to the appellant who had a clear title. After the Restoration Act came into
force the appellant lost the land which was restored to the Tribal's heirs
much prior to the order of the Surplus Land Determination Act. The
provisions of section 16(1) do not apply to such a situation. The appellant's c
family unit was, therefore, entitled to select the lands. [497-G-H; 498-A-B]

3.1. 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
Ceiling Act requires that these be taken note of in accordance with law D
before any declaration is made under section 21. These are important
matters to be kept in mind especially when in the instant case the diminu-
tion 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. [498-F-G] E
3.2. As the said land is now restored to the Tribal's heirs by opera-
tion of the provisions of the Restoration Act, there can be no question of
the State acquiring the said land as surplus land of the appellant under
the Ceiling Act, as the land does not now form a part of the appellant's
F
surplus holding by reason of the Restoration Act. [498-H; 499-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10606-07
of 1995.

From the Judgment and Order dated 20.4.90 & 6.1.88 passed by the G
Division Bench of the Bombay High Court in W.P. No. 2390/79 and L.P.A.
No. 100 of 1988.

V.C. Mahajan, Adv. Shirish Kr. Mishra and Uday Umesh Lalit for
~~~ H
494 SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R. ,-

A G.B. Sathe, for D.M. Nargolkar, Adv. for the Respondents.

The Judgment of the Court was delivered by

MRS. SUJATA V. MANOHAR, J. Delay condoned in view of the
statements made in the application for condonation of delay.
B
Leave granted.

These appeals relate to proceedings under the Maharashtra Agricul-
tural Lands (Ceiling on Holdings) Act. 1961 (hereinafter referred to as 'the
Ceiling Act'). The Surplus Land Determination Tribunal held that out of
c the total land belonging to the family of the appellant the surplus lands
held were 91.02 acres. The dispute in these appeals is confined to certain
lands held by the appellant which he had purchased from one Kisana, a
tribal under a registered sale-deed dated 31.1.1958.

D The Maharashtra Restoration of Lands to Scheduled Tribes Act,
1974 (hereinafter referred to as 'the Restoration Act') came into force
w.e.f. 1st of November, 1975. Section 3 of the Restoration Act provides as
follows:

"Section 3(1) where due to transfer -
E
(a) the land of a Tribal-transferor is held by a non-Tribal transferee
or

(b) ............................ .

F and the land so transferred is in possession of the non-tribal
transferee, and has not been put to any non- agricultural use on
or before the 6th day of July, 1974, then nothwithstanding anything
contained in any other law for the time being in force, or any
judgment, decree or order of any tribunal or authority the Collec-
G tor either suo motu at any time, or on the application of a Tribal
transferor made within three years from the commencement of this
ACt shall, after making such enquiry as he thinks fit, direct that -

(i) .................. .

H (ii) the land transferred ......................... be taken from the posses-
BHUPENDRASINGH v. STATE [MRS. SUJATA V. MANOHAR, J.) 495

sion of the non-Tribal transferee, and restored to the Tribal trans- A
feror, free from all encumbrances and the Tribal transferor shall
pay such transferee and other persons claiming encumberances the
amount determined under Clause (b) of sub-section (4) :

B
Sub-section (4) provides for return of consideration and payment for
improvements made on the land to be determined as set out therein. In
the present case on 26-11-1976 the Authority under the restoration Act
passed an order and directed that the land which had been purchased by
the appellant from the Tribal Kisana which is in Survey No. 15, village c
Padha, Tehsil Kelapur, District Yavatmal be restored to the heirs of the
Tribal Kisana who was the original transferor. Pursuant to this order, on
8th of August, 1977 possession of the said land was handed over to the
heirs of Kisana.
D
The enquiry under the Ceiling Act for determining the ceiling area
of appellant's family unit was held therefore. The Surplus Land Determina-
tion Tribunal held, inter alia, by its order dated 30.5.1978, that the said
lands which were restored to the tribal formed a part of the holding of the
appellant's family unit at the commencement date i.e. 2nd of October, 1975 E
under the Ceiling Act and had to be included in the holding of the
appellant's family unit. This view has been upheld by the Maharashtra
Revenue Tribunal. It, however, remanded the matters to the Surplus Land
Determination Tribunal on other grounds. The writ petition which was
filed by the appellant challenging the decision of the Maharashtra Revenue
Tribunal was dismissed and a Letters Patent appeal before the Division
F
Bench of the High Court was also dismissed. Hence the present appeal is
filed before us.

The relevant date under the Ceiling Act is the commencement date.
For the lowered ceiling the commencement date is 2nd of October, 1975. G
Under section 3 of the Ceiling Act, subject to the provisions of Chapter II
and III, no person or family unit shall, after the commencement date, hold
land in excess of the ceiling area, as determined in the manner provided
in the said Act. The appellant, on and after the commencement date, did
hold lands in excess of the ceiling area. For the purpose of determining the H
I

496 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A total holding of the appellant the lands which he had purchased from the
Tribal Kisana were includible in his holding on the commencement dated
because at the point of time, the Restoration Act had not come into effect.
These lands were held by the appellant on the commencement date under
. a registered sale-deed. The Restoration Act came into effect on 1st Novem-
B ber, 1975. The order of restoration is dated 26th November, 1976, and the
possession was restored to the Tribal's heirs on 8th August, 1977. The
authorities below, therefore, have rightly come to the conclusion that the
land which was subsequently restored to the tribal constituted a part of the
appellant's holding on the commencement date of the Ceiling Act.

c It is submitted before us by the appellant that since the lands have
been restored to the tribal under the provision to the Restoration Act
before the enquiry under the Ceiling Act, the lands cannot be considered
as a part of his holding. The question, therefore, is whether at the com-
mencement date and thereafter these lands formed a part of the appellant's
D holding. Under the Restoration Act, however, the lands which were pur-
chased by a non-Tribal transferee are restored to the Tribal transferor.
There is no provisions in the Act which makes the sale transaction void ab
intio. Section 3 of the Restoration Act which is set out above provides for
the Authority's taking possession .of the land from the non-Tribal transferee
and restoring it to the Tribal transferor, for which the Tribal transferor has
E to return the consideration and pay for improvements as provided in the
Act. There is no provision under the Act providing for any retrospective
cancellation or ann'ulment of sales. The contention, therefore, that by virtue
of the Restoration Act, the said land cannot be considered a part of the
appellant's holding even prior to the coming into effect of the Restoration
F Act, cannot be accepted. In the case ofLingappa Pochanna Appelwar v.
State of Maharashtra & Anr., [1985] 1 SCC 479 this Court interpreted
Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 and said

..
that the Act is based on the principle of distributive justice. "It seeks to re-
open transactions between parties having unequal bargaining power result-
ing in transfer of title from one to another due to force of circumstances
G and also seeks to restitute the parties to their original position". The sale
transaction, therefore, has been reversed subsequently as a result of the
operation of the Restoration Act. The lands have, therefore, been rightly
held to be a part of the appellant's holding.

H We have, however, to consider whether these lands must be included
BHUPENDRASINGH v. STATE [MRS. SUJATA V. MANOHAR, J.] 497
/.

in the ceiling holding of the appellant. A
The restoration of lands under the Restoration Act does not fall
within the definition of "transfer" under the Explanation to section 8 of the
Ceiling Act. The definition of transfer under the Explanation to section 8
of the Ceiling Act is as follows :
B
"Explanation : In this section, "transfer" means whether by way of
sale, gift, mortgage with possession, exchange lease, assignment of
land for maintenance, surrender of a tenancy or resumption of land
by a landlord or any other disposition, whether by act of parties
made inter viovs or by decree or order of a Court, tribunal or C
authority (except where such decree or order is passed in a
proceeding which is instituted in such Court, tribunal or before
such authority before the 26th day of September, 1970, but does
not include transfer by way of sale or otherwise of land for the
recovery of land revenue or for sums recoverable as arrears of land D
revenue, or acquisition of land for a public purpose under any law
for the time being in force."

The restoration is obviously not a transfer inter vivos. It cannot
also be considered as a transfer pure and simple by an order of a Court,
tribunal or authority. The order of the authority here is for the purpose of E
carrying out the scheme under the Restoration Act. The scheme under the
Restoration Act is for cancellation of transfer and restoration of land to
the Tribal. The scheme is more akin to the transactions which are excluded
from the definition of "transfer", such as acquisition of land for a public
purpose. This is restoration of land to the Tribal for a public purpose of F
effecting "distributive justice" as this Court has put it. The land which is so
restored by reason of the said Act is, therefore, not covered by the
definition of "transfer" in section 8. Hence section 10(1) also will not apply
to such land.

Under section 16(2) of the Ceiling Act, a person or family unit is G
entitled to select the lands he or it wishes to retain upto the ceiling area.
This right is subject to section 16(1). Section 16(1), inter alia, provides that
where a person of family unit holds lands in excess of the ceiling area and
the whole or part of such land is subject to an encumberance, then the
person or family unit shall retain such land upto the extent of the ceiling H
498 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
·"-
A land. The High Court has treated the land restored to the Tribal as
encumbered land of the appellant. We fail to see how the land can be so
treated. Prior to the Restoration Act, the land belonged to the appellant
who had a. clear title. After the Restoration Act came into force, the
appellant lost land, land which was restored to the Tribal's heirs much
B prior to the order of the Surplus Land Determination Act. The provisions
-"
of section 16(1) do not apply to such a situation. The appellant's family
unit was, therefore, entitled to select the lands.

Section 18 of the Ceiling Act requires the ceiling authority to con-
sider certain matters enumerated therein before issuing a declaration
c under section 21 declaring the land which the person or the family unit is
entitled to hold that 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 section 8, and if so, whether the land so
transferred should be considered or ignored in calculating the ceiling area
D 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 G) 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
E authority to consider which particular land out of the total lands held by
the holder should b~ delimited as surplus land. Clause (1) 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
F require that these be: taken note of in accordance with l~w 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 Restorati~n Act. Since the said
land is neither encumbered land nor land transferred in contravention of
G section 8, it is not liable to be included in the ceiling holding of the
appellant.
r
As the said land is now restored to the Tribal's heirs by operation of
the provisions of the Restoration Act, there can be no question of the State
H now acquiring the said hind as surplus land of the app~llant under the
BHUPENDRASINGH v. STATE [MRS. SUJATA V. MANOHAR, J.] 499

Ceiling Act, as the land does not now form a part of the appellant's surplus A
holding by reason of the Restoration Act.

In the premises, the appeals are allowed to the above extent. The
matter is remanded to the Surplus Land Determination Tribunal for a fresh
determination of the appellant's ceiling holding in the light of what we have
stated above. There will, however, be no order as to costs. B

v.s.s. Appeal partly allowed.