VITHALDAS JAGANNATH KHATRI (DEAD) v. THE STATE OF MAHARASHTRA REVENUE

VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT. 917 calculating the ceiling area, and delimiting any surplus land.” [Para 18][934 B-G] A

#4. Under Section 21, the Collector has to make a declaration as to entitlement of a person or family unit to hold within the ceiling area and area of land which is in excess of the ceiling area. Further, what is of importance is that Section 44B excludes pleaders from appearing on behalf of any party in any of the proceedings under the 1961 Act. This is for the reason that the Collector has to determine on the facts of each case, based on returns filed if any, as to what areas are to be excluded, and what areas of land are to be included so far as determination of ceiling of a person or family unit is concerned. If it were to be held that the Collector could go into a trial as to whether a particular partition deed is or is not sham, even though it is before the cut- off date, would have two effects that are not warranted in law - first, it would extend the legal fiction that is limited to transfers and partitions made after the cut-off date; and second, if a period even before the cut-off date can be considered, it would render the cut-off date otiose, as then in all cases the Collector could go into whether a particular transfer or partition has been entered into to avoid the effect of the 1972 Amendment Act, which is an enquiry restricted only to transfers and partitions which take place on or after 26.09.1970 upto the commencement date. Also, if the Collector were to substitute himself as a Civil Court deciding a Civil Suit, it would be absolutely essential for a person or family unit to engage a pleader of his choice to argue all the ramifications that his case may have, both in fact and in law. In fact, a Civil Court alone would have the jurisdiction to decide a question as to whether a partition deed entered into before the cut-off date is or is not sham, which would involve a declaration that the partition be declared void. The 1961 Act therefore bars the jurisdiction of the Civil Court only insofar as transfers and partitions are entered into on or after 26.09.1970 and before the commencement date, and not to transfers and partitions that take place before the cut- off date. [Para 19][934 F-H; 935 A-E]

#5. As a matter of fact, if the appeal provision, i.e. Section 33 of 1961 Act is to be seen, it is clear that appeals are provided to the Maharashtra Revenue Tribunal against a declaration or part B C D E F G H 918 SUPREME COURT REPORTS [2020] 3 S.C.R. thereof made under Section 21 of the 1961 Act. The persons who would be aggrieved by such declarations can only be the person or family unit whose ceiling area is determined or the landlord to whom possession of land is to be restored or the right, title and interest of the person or family unit whose land is to be forfeited to the State Government. If at all a cross-objection can be taken by a respondent under Section 33(1A), it can only be a person or family unit or landlord spoken of in Section 21(1) of the 1961 Act. The State Government may perhaps file a cross-objection where it contends that land has wrongly not been forfeited to it. But such is not the case on the facts of this appeal. Thus, the State taking a cross objection on the facts of this case would itself be outside Section 33(1A). If at all the State can be said to be aggrieved by a declaration made under Section 21, a suo moto power of revision is given to the State Government under Section 45, which on the facts of a particular case may well be exercised. This apart, once it is clear that the elder daughters are affected by virtue of the partition deed being held to be non est in law by the appellate tribunal, they ought to have been made parties to the appeal so that they could have made arguments in favour of the legal validity of the partition deed. This opportunity being denied to them is also fatal to the appellate authority’s order, which has therefore wrongly been upheld by the Single Judge and Division Bench of the High Court. [Paras 20, 21][935 E-H; 936 A-B]

#6. It is not possible to state that wherever the expressions “transfer” and “partition” occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word “genuine” is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be “ignored”. The language of Section 11 also leads to the conclusion that even in case of a partition that is made after A B C D E F G H VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT. 919 the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area. [Para 28][940 F-H; 941 A-B]