ORDER
S.P. Srivastava, J.
1. Heard the learned counsel for the petitioner as well as the learned counsel representing the contesting respondents.
2. Perused the record.
3. Feeling aggrieved by the order dated 30-6-1980, passed by the Board of Revenue, the respondent No. 2, whereunder restoring the order passed by the Collector, -- Vidisha dated 11-9-1984, directing for the reversion of the agricultural holdings in dispute in favour of the original tenure-holder, and requiring for recording his name as bhumiswami in the revenue records, and for his being put in possession thereof, the petitioner has now approached this Court seeking redress praying for the reversal of the impugned order.
4. The facts in brief shorn of details and necessary for the disposal of this case He in a narrow compass. Sukka, son of Nanna, was the recorded bhumiswami of the agricultural holdings in dispute. He was a member of the tribe which has been declared to be an aboriginal tribe as envisaged under the provisions of Section 165 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as the Code).
5. The petitioner had purchased the aforesaid holdings which belonged to Sukka, Adivasi, through a registered sale deed dated 18-5-1961, which was duly acted upon as the transferee had delivered the possession thereafter to the transferee, Baldev Singh. This transaction of sale however, was carried out without obtaining the prior permission of the Collector as required under the provisions of the Section 165 of the Code.
6. Sukka, the transferer had initiated proceedings for the recovery of the possession of the agricultural holdings asserting trial although he had delivered the possession to the transferee, , Baldev Singh, yet he had not in fact, sold the same to him.
7. In the aforesaid proceedings initiated by Sukka before the Sub-Divisional Officer, initially it was registered as case No. 3242-B-125/ 76-77, which was later on registered as case No. 227/B-121-77-78, and the application of the transferer, Sukka was ultimately dismissed.
8. Subsequent to the enforcement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980, a committee had been constituted to investigate into the cases where action was warranted in view of the new provisions in Section 170 brought into force vide the aforesaid amendment. This committee submitted a report on 30-4-1982, indicating that in the absence of the requisite information as contemplated under Section 170B(2) of the amended provision, the possession of the present petitioner over the agricultural holdings in question had to be treated as without any lawful authority and the agricultural holdings were liable to be reverted to the person to whom it originally belonged.
9. On the basis of the aforesaid report, a case giving rise to the order impugned in the present proceedings was registered against the petitioner on 5-5-1982.
10. The Sub-Divisional Officer issued notice of the proceedings to Baldev Singh, the trans-feree and as well as Sukka, the transferer.
11. The aforesaid case was disposed of by the Sub-Divisional Officer vide the judgment and order dated 6-3-1984, whereunder the proceedings were terminated holding that the sale in question could not be taken to be fradulent in any manner. It was found that the sale consideration was adequate and the transaction could not be taken to be vitiated on account of any fraud. In fact, the finding recorded was that Sukka, the transferer 'had executed the sale deed on his free will and had received the adequate consideration. The claim of Sukka that he had only delivered the possession of the agricultural holdings in dispute to Baldev Singh and had not sold the same to him was not found to have been established as the sale deed in question had been duly registered in accordance with the provisions of the Registration Act. Further, its due execution had in fact been proved taking note of the fact that even Sukka, the transferer had never disputed the execution of the sale deed by him.
12. The transferer, Sukka, feeling aggrieved by the order passed by the Sub-Divisional Officer referred to hereinabove, challenged the same in an appeal which was heard and disposed of by the Collector, Vidisha, vide the judgment and order dated 11-9-1984.
13. The Collector in his turn came to the conclusion that since it was not disputed that Sukka, the transferor was an Advasi and the agricultural holdings in question had been transferred without obtaining the prior permission as required by law, and further it was not disputed that the requisite information as contemplated under Section 170B(1) of the Code, as amended had not been furnished, there could be no escape from the conclusion that the statutory presumption available under Section 170-B(2) of the Code, became available, with the result that there was no option but to pass an order of reversion of the agricultural holdings in dispute in favour of the original tenure holder with a direction for his name being restored in the revenue record, and he be put in possession of the agricultural holdings which were the subject-matter of the sale deed.
14. The Collector, however, did not go into the question relating to the implications arising under the dismissal of the application filed by Sukka, to which a reference has been made hereinabove on the assumption that the Sub-Divisional Officer had not based his findings thereon.
15. Baldev Singh challenged the order of the Collector in a revision before the Additional Commissioner.
16. The Additional Commissioner vide the judgment and order dated 3-3-1986, came to the conclusion that the information required to be furnished under Section 170-B(1) of the Code, had in fact been furnished within the time limit prescribed though not by the transferee but by the investigating committee. In such circumstances, it was held that since the requisite information had been furnished though by a different person, it was incumbent upon the concerned authority to hold an enquiry as provided under Section 170-B(3), of the Code.
17. The Additional Commissioner, however, endorsed the finding of the Sub-Division Officer to the effect that the sale in question was not vitiated on account of any fraud, and further that it was a bona fide transaction.
18. In the circumstances, in view of the earlier finding to the effect that the information required under Section 170-B(1) of the Code had to be taken to have been furnished, he directed that the matter be re-examined in the light of the provisions contained in Section 170-6(3) of the Code.
19. As a consequence, the order passed by the Collector was set aside and the case was remanded to him, for deciding the appeal afresh.
20. Sukka, the transferer submitted to the order passed by the Additional Commissioner but the State Government felt aggrieved and challenged the same in the revision before the Board of Revenue, the respondent No. 2.
21. The Board of Revenue vide its judgment and order dated 30-6-1989, reversed the finding of the Additional Commissioner on the question in regard to the availability of the statutory presumption contemplated under Section 170-B(2) of the Code, on the ground that the aforesaid presumption could not be available only if the requisite information contemplated under the provisions contained in Section 170-B(1) had been furnished by the transferee himself within the time prescribed and since in the present case no such information had been furnished by the transferee himself, the Board of Revenue held that the statutory presumption had become available and no enquiry was required as envisaged under Section 170-B(3) of the Code.
22. The Board of Revenue also expressed the opinion that in the cases where the permission of the Collector had not been obtained for the transfer of the agricultural holding, the question of assessing the market value on the basis of the quality of the land was not proper.
23. On the aforesaid findings, the Board of Revenue allowed the revision and set aside the order passed by the Additional Commissioner and restored that of the Collector.
24. The learned counsel for the petitioner has strenuously contended that the impugned order passed by the 6oard of Revenue is mainfestly illegal and is based on an erroneous interpretation of the provisions contained in Section 170-B of the Code.
25. It has further been contended that in any view of the matter, the provisions contained in Section 170-B of the Code, could not be deemed to have affected a vested right which stood accrued in favour of the petitioner on account of the rejection of the application filed by Sukka, before the Sub-Division Officer, wherein he had assailed the impugned transaction of sale but had remained unsuccessful.
26. It has further been urged that the revising authority had no jurisdiction to interfere with the finding recorded by the Sub-Divisional Officer, which stood upheld even by the Additional Commissioner on the question relating to the sale in dispute being a bona fide transaction for adequate consideration especially when Sukka, the transferer had submitted to the order passed by the Additional Commissioner and had not challenged the findings relumed against him by the Additional Commissioner on the question relating to the genuineness of the transaction of the sale.
27. It has further been contended that the statutory presumption which has been made available under Section 170-B(2) of the Code, is founded upon the absence of the information required to be furnished under Section 170-B(1) of the Code, and since this information had in fact been furnished to the concerned authority within the time prescribed, there could be no occasion to proceed against the petitioner simply on the basis of a presumption without affording any opportunity to him to rebut the same even though in the circumstances of the present case, the said presumption stood already rebutted in view of the earlier order passed by the Sub-Divisional Officer prior to the initiation of the proceedings giving rise to the impugned orders which order passed by the competent authority had attained finality.
28. The learned counsel for the respondents/ State has tried to support the order passed by the Board of Revenue on the reasonings contained therein.
29. I have given my anxious consideration to the rival submissions made by the learned counsel for the parties.
30. Ordinarily, when the language used in the statute is unambiguous and on a plain grammatical meaning the end result is neither arbitrary, irrational or contrary to the object of the statute then it is the duty of the Court to give effect to the words used in the statute as the words declare the intention of the law making authority.
It should however be not forgotten that the statutes are not to be construed as theorems of euclid but with some imagination of the purposes which lie behind them, that is the general legislative purpose and one should not go by the letter of the statute but by the spirit of it. A purposive approach ought to be adopted in such matters.
30.1. The Relevant provisions contained in Section 170-B of the Code, are to the following effect;
'170-B. Reversion of land of members of aboriginal tribe which was transferred by fraud.-(1) Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under Sub-section (6) of Section 165 between the period commencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within two years of such commencement, notify to the Sub-Divisional Officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land.
(2) If any person fails to notify the information as required by Sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land shall, on the expiration of the period aforesaid revert to the person to whom it originally belonged and if that person be dead, to his legal heirs.
(3) On receipt of the information under Sub-section (1) the Sub-Divisional Officer shall make such enquiry as may be necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and--
(a) to(b)....'
31. The aforesaid provision was brought into force with effect from 24-10-1980.
32. It may be noticed that the provisions contained in Section 170(1) of the Code, prior to its amendment vide the M.P. Act No. 61 of 1976, which came into force on 29-11-1976, was to the following effect:
'(1) Where possession is transferred by a Bhoomiswami in pursuance of a transfer which is in contravention, or of Sub-section (6) of Section 165 any person who, if he survived the Bhoomiswami without nearer heirs would inherit the holding, may within two years of such transfer of possession, apply to the Sub-Divisional Officer to be placed in possession subject so far as the Sub-Divisional Officer may, ia accordance with the rules made in this behalf, determine to his acceptance of the liabilities for arrears of land revenue or any other dues which form a charge on the holding, and the Sub-divisional Officer shall dispose of such application in accordance with the procedure which may be prescribed.'
33. The aforesaid provision vested the transferor or his heirs with a right to recover possession of the agricultural holdings transferred within two years of such transfer of possession.
34. However, with effect from 29-11-1976, the right was made exercisable so far as the transfer of possession prior to the 1 -7-1976, were concerned up to 31-12-1978 and so far as the other cases were concerned within five years of such transfer of possession.
35. The provisions contained in Section 170A of the Code, however, provide for the setting aside of certain transfer by persons belonging to aboriginal tribe referred to thereunder in case it was established that the bona fide nature of the transfer was not proved.
36. The jurisdiction under Section 170-A of the Code, could be exercised by the Sub-Divisional Officer either on the application by the transferor or even suo motu.
37. Section 170-B of the Code, however, had the effect of casting a statutory duty on the transferee who got possession of the lands belonging to aboriginal tribe to furnish information as to how he had come into possession of such land to the Sub-Divisional Officer within the period prescribed therefore under Section 170-B(1) of the Code.
38. Section 170-3(2) of the Code, made available a presumption in regard to the possession of a transferee envisaged under Section 170-B(1) of the Code over the agricultural holding of an aboriginal tribe to be without any lawful authority, in the event of the failure on the part of the transferee to furnish the information as required under Section 170-B(1) of the Code.
39. As has already been noticed hereinabove, the presumption about the possession of the transferee being without any lawful authority could only be raised on the failure of such a transferee to furnish the required information. In case, the information was furnished, in that event the Sub-Divisional Officer was required to make an enquiry as to whether the aboriginal tribe had been defrauded of his legitimate right and on the finding that it was so, the Sub-Divisional Officer had to declare the transaction null and void and pass an order revesting the agricultural land in the transferer and in case he was dead, in his legal heirs.
40. The question, therefore, arises is as to whether the expression 'shall be presumed' as occurring in Section 170-B(2) is a legal fiction or and unrebuttable presumption or the presumption is such which can be said to be conclusive in nature.
41. The respondent authority appear to have proceeded on the assumption that the presumption which is made available under Section 170-B(2) of the Code, is of a conclusive nature. This view appears to have been solely based on account of the use of the expression 'shall' occurring in the aforesaid provision.
42. Taking into consideration the legislative intent underlying the provisions contained in Sections 170, 170-A and 170-B of the Code, there can be no escape from the conclusion that the expression 'shall' as occurring in Section 170-6(2) of the Code has not been used in an imperative sense leaving no choice of action. I
43. The expression 'shall be presumed' as used in Section 170-B(2) of the Code, in my considered opinion cannot be equated with a statutory fiction making it obligatory on the respondent-authorities to proceed on the assumption that the possession of the transferee over the agricultural holdings in question is without any lawful authority especially when no effort was made by the transferer to recover possession exercising his right which stood vested in such a transferer under the provisions of the unamended as well as amended Section of 170 of the Code.
44. Moreover, in the present case no effort was made by the transferer to get the transfer set aside as provided under Section 170-A of the Code.
45. The presumption contemplated under Section 170-B(2) of the Code, has to be taken to be a rebuttable presumption and cannot be equated with a statutory fiction or conclusive proof preventing the leading of any evidence for the purpose of rebutting the presumption.
46. In the aforesaid connection, it may be noticed that this Court in its decision in the case of, Atmaram v. State of M.P., rendered by a Division Bench reported in, 1995 MPLJ 633 : (AIR 1995 MP 225), after considering the various implications arising under the provisions of the Code, had observed that the presumption referred to in Sub-section (2) of Section 170-B of the Code must be regarded as a rebuttable presumption.
47. In the present case, what I find is that the effort of the transferer to recover possession of the agricultural holdings in question had failed and his application for the purpose was rejected as noticed by the Sub-Divisional Officer. Further there was nothing on the record to indicate that any effort was made by Sukka, the transferer to get the transaction declared null and void even by initiating proceedings under Section 170-A of the Code, and moreover, the transferer himself did not challenge the order passed by the Additional Commissioner dated 3-3-1986, and submitted to the findings returned against him by the revising authority in its aforesaid order.
48. The order of the Additional Commissioner dated 3-3-1986, was challenged by the State of Madhya Pradesh, only in a revision before the Board of Revenue.
49. While exercising the revisary jurisdiction, the Board of Revenue could not interfere with the finding recorded by the Sub-Divisional Officer which stood affirmed by the Additional Commissioner so far as the bona fide nature of the transaction of sale was concerned holding the sale consideration to be adequate and the findings in respect whereof had been returned in favour of the transferee on an appraisal of the evidence and the materials brought on the record.
50. I am further of the opinion that the presumption made available under Section 170-B(2) of the Code, considering the facts and circumstances brought on record as indicated hereinabove, stood clearly rebutted.
51. The impugned orders in my considered opinion stand vitiated in law on account of the wrong approach and being based on entirely erroneous assumptions. Sufficient ground has therefore, been made out for an interference by this Court.
52. In the result, this writ petition succeeds. The impugned order dated 30-6-1989, passed by the Board of Revenue, true copy of which has been filed as annexure P/4, is quashed and the order passed by the Sub-Divisional Officer dated 6-3-1984, true copy of which has been filed as Annexure P/1, is restored.
53. There shall however be no order as to cost.