# v. s. Kadarnbolithaya Appeal partly allowed. & Ors. BAI ACHHUBA AMAR SINGH v. SRI KALIDAS HARNATH OJHA AND OTHERS

- **Citation:** [1964] 5 S.C.R. 853
- **Court:** Supreme Court of India
- **Decided:** 1963-12-06
- **Case number:** Civil Appeal No. 397 of 1962
- **Bench:** K. SUBBA RAo, Raghubar Dayal, J.R. Mudhoi'.Kar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-s-kadarnbolithaya-appeal-partly-allowed-ors-bai-achhuba-amar-singh-v-sri-3049
- **Pages:** 17

## Headnote

The Bombay Tenancy and Agricultural Lands Act, 1948 (67 of
1948) ss. 84, 84A-Scope of s. 84A-If prospective-If affects
adjudication where transfer has already been declared inva/idApplication under s. 84-Ifmust be by landlord.
The appellant was the owner of fields bearing survey numbers
231 and 260 in a village in Gujarat. Respondent No. 1 was the
manager of her estate for some time and while occupying that position, he obtained from hera sale deed in respect of those fields. The
appellant made an application to the Mamlatdar for a declaration
that the sale was invalid as it was in contravention of ss. 63 and
64 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Certain villagers also made an application the Collector under
s. 84 for the summary eviction of respondent no. I on the ground
that the transaction was void as being in violation of provisions
of ss. 63 and 64 of the Act.
The Collector passed an order
that the sale made by the appellant should be treated as void and
the village records be corrected accordingly. The revision was
dismissed by the Revenue Tribunal. A writ petition was filed in
the High Court which remanded the case to the Collector. The
Collector again declared the sale to be void and his order was con·
firmed by the Revenue Tribunal. A writ petition against the order
of Revenue Tribunal was dismissed by the High Court.
In 1956, the Act of 1948 was amended ands. 84-A was added.
Fresh proceedings were started by respondent No. 1 under s. 84-A
Hidayatullah J.
1963
December 6
1963
BaiAchhuba
Amar Singh
v.
Sri Kalidas
Harnath Ojha
and Others
854
SUPREME COURT REPORTS
(1964]
and the Mamaltdar validated the transfer of land in his favour.
However, his orders were set aside by the Collector. A writ peti'
ti on was again filed in the High Court and the same was accepted.
It was held that the provisions of s. 84-A applied in the present
case. The appellant came to this court by Special Leave. Accepting the appeal,
Held: (per Subha Rao and Mudholkar, JJ.,
Raghubar
Dayal J., dissenting)
(i) The provisions of s. 84A are prospective in the sense
that they bar the making of any declaration or a finding that a
transfer is invalid after its coming into force. It does not affect
au adjudication in which the transfer had already been held to
be invalid. In the present case, the Collector had declared the
sale to be invalid and his order had been confirmed by the Revenue
Tribunal. The writ petition· against that order was ultimately
dismissed. The order of the Collector having become final, could
not be questioned after the inclusion of s. 84A in 1956.
(ii) For invoking the provisions of s. 84, it is not necessary
that an application must be made by the landlord alone. Any
person interested can resort to the remedy provided therein and
when that is done, it is the duty of the Collector to decide whether
the person sought to be evicted is or is not in possession in pursuance
of an invalid transfer.
Per Raghubar Dayal, J:
Though the Collector has necessarily, in certain proceedings
under s. 84 of the Act, to record a fiuding that a certain sale is
invalid and consequently the person in possession, on its basis,
is in unauthorised possession, he has no power to formally declare
the sale deed to be invalid. Ordinarily, it is for the Civil Court
to make a formal declaration about the validity of a deed.
However, the order of the Collector deciding that the sale deed was
invalid, had not become final by the time s. 84A was introduced
in the Acton August I, 1956 and hence the respondent No. l could
take advantage of the provisions of s. 84A. He could have· his
sale deed validated on payment of the requisite· penalty under
s. 84-A I. Hence the Mamaltdar had correctly issued the certificate
of validity and the order of the High Court setting aside the order of
the Collector and the Revenue Tribunal and restoring that of
Mamaltdar, was according to law.
CIVIL APPELLATE
JURISDICTION : Civil Appeal
No. 397 of 1962.
Appeal by spe

## Text

I
SS.C.R.
SUPREME COlJRT REPORTS
853
pensation will be deductible and accounts shall be
1963
adjusted between the parties accordingly.
C. Beepathumma
The appeal is thus partly allowed as indicated
& Ors
a hove.
In view of the fiailure on the main point,
v. ·
the appellants must pay the costs of the appeal to the
v. s.
respondents.
Kadarnbolithaya
Appeal partly allowed.
& Ors.
BAI ACHHUBA AMAR SINGH
v.
SRI KALIDAS HARNATH OJHA AND OTHERS
(K. SUBBA RAo, RAGHUBAR DAYAL AND
J.R. MUDHOI'.KAR- JJ.)
The Bombay Tenancy and Agricultural Lands Act, 1948 (67 of
1948) ss. 84, 84A-Scope of s. 84A-If prospective-If affects
adjudication where transfer has already been declared inva/idApplication under s. 84-Ifmust be by landlord.
The appellant was the owner of fields bearing survey numbers
231 and 260 in a village in Gujarat. Respondent No. 1 was the
manager of her estate for some time and while occupying that position, he obtained from hera sale deed in respect of those fields. The
appellant made an application to the Mamlatdar for a declaration
that the sale was invalid as it was in contravention of ss. 63 and
64 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Certain villagers also made an application the Collector under
s. 84 for the summary eviction of respondent no. I on the ground
that the transaction was void as being in violation of provisions
of ss. 63 and 64 of the Act.
The Collector passed an order
that the sale made by the appellant should be treated as void and
the village records be corrected accordingly. The revision was
dismissed by the Revenue Tribunal. A writ petition was filed in
the High Court which remanded the case to the Collector. The
Collector again declared the sale to be void and his order was con·
firmed by the Revenue Tribunal. A writ petition against the order
of Revenue Tribunal was dismissed by the High Court.
In 1956, the Act of 1948 was amended ands. 84-A was added.
Fresh proceedings were started by respondent No. 1 under s. 84-A
Hidayatullah J.
1963
December 6
1963
BaiAchhuba
Amar Singh
v.
Sri Kalidas
Harnath Ojha
and Others
854
SUPREME COURT REPORTS
(1964]
and the Mamaltdar validated the transfer of land in his favour.
However, his orders were set aside by the Collector. A writ peti'
ti on was again filed in the High Court and the same was accepted.
It was held that the provisions of s. 84-A applied in the present
case. The appellant came to this court by Special Leave. Accepting the appeal,
Held: (per Subha Rao and Mudholkar, JJ.,
Raghubar
Dayal J., dissenting)
(i) The provisions of s. 84A are prospective in the sense
that they bar the making of any declaration or a finding that a
transfer is invalid after its coming into force. It does not affect
au adjudication in which the transfer had already been held to
be invalid. In the present case, the Collector had declared the
sale to be invalid and his order had been confirmed by the Revenue
Tribunal. The writ petition· against that order was ultimately
dismissed. The order of the Collector having become final, could
not be questioned after the inclusion of s. 84A in 1956.
(ii) For invoking the provisions of s. 84, it is not necessary
that an application must be made by the landlord alone. Any
person interested can resort to the remedy provided therein and
when that is done, it is the duty of the Collector to decide whether
the person sought to be evicted is or is not in possession in pursuance
of an invalid transfer.
Per Raghubar Dayal, J:
Though the Collector has necessarily, in certain proceedings
under s. 84 of the Act, to record a fiuding that a certain sale is
invalid and consequently the person in possession, on its basis,
is in unauthorised possession, he has no power to formally declare
the sale deed to be invalid. Ordinarily, it is for the Civil Court
to make a formal declaration about the validity of a deed.
However, the order of the Collector deciding that the sale deed was
invalid, had not become final by the time s. 84A was introduced
in the Acton August I, 1956 and hence the respondent No. l could
take advantage of the provisions of s. 84A. He could have· his
sale deed validated on payment of the requisite· penalty under
s. 84-A I. Hence the Mamaltdar had correctly issued the certificate
of validity and the order of the High Court setting aside the order of
the Collector and the Revenue Tribunal and restoring that of
Mamaltdar, was according to law.
CIVIL APPELLATE
JURISDICTION : Civil Appeal
No. 397 of 1962.
Appeal by special leave from the judgment and
order dated July I, 1959. of the Bombay High Court
(noW' Gujarat High Court) in Special Civil Application
No. 302 of 1959.
S.H. Sheth, Mangaldas Shah and M. V. Goswami,
for the appellant.
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1
I
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..
5 S.C.R.
SUPREME COURT REPORTS
855
G.B. Pai, and 0.C.
Mathur, for respondent
1963
No. 1.
K.L. Hathi for R.H. Dhebar, for respondent
BaiAchhuba
N
2
Amar Singh
o.
.
December 6, 1963. The Judgment of K. Subba
Sri °Iaudas
Rao and J.R. Mudholkar, JJ. was delivered by Harnath Ojha
Mudholkar, J.
Raghubar
Dayal, J. delivered a
and Others
dissenting Opinion.
MUDHOLKAR J.-This is an appeal by special Mudholkar J.
leave from the judgment of the High Court of Bombay
allowing a writ application preferred before it by the
first respondent and setting aside the 01der of the
Bombay Revenue Tribunal which had upheld the
order of the Prant Officer in a matter arising under
the Bombay Tenancy and Agricultural Lands Act,
1948 (Born. LXVII of 1948) hereafter referred to as
the Act.
The appellant was admittedly the owner of Survey
Nos. 231 and 260 of the village Duchakwada, Taluka
Deodar, District Banaskantha in the State of Gujarat.
Survey No. 231 was leased out to a tenant, Vira Pana,
while Survey No. 260 had been reserved by her in the
year 1950 for grazing cattle. Possibly other cattle
in the yiJJage were also allowed to graze there because
of paucity of grazing facilities therein.
The appellant is a jagirdz.r and evidently possesses
considerable property. The respondent no. 1 was
for some time her karbhari (manager of her estate).
While he was occupying that position he obtained
from her a sale deed on October 31, 1950, in respect
of both these fields.
According to the appellant she
received no consideration for the transaction. However, that is not material. . Shortly thereafter, the
appellant made an application to the Mamlatdar,
Deodar, for a declaration that the sale deed ·was
invalid as being in contravention of ss. 63 and 64
of the Act. It would appear that at about the same
time certain villages of Duchakwada made an application before the Collector, Banaskantha, under
s. 84 of the Act for the summary eviction of the respondent no. 1 on the ground that the transaction was
1963
BaiAchhuba
Amar Singh
v ..
Sri Kalidas
Harnath Ojha
and Others
856
SUPREME COURT REPORTS
[1964]
rendered void by virtue of the provisions of ss. 63
and 64 of the Act and also seeking the reservation
of Survey No. 260 for grazing purposes. It seems
that the appellant's application also went before the
Collector, inasmuch as the order he made dealt with
the appellant's contention also. It ran thus:
"Taking into consideration all the circumstances
it is hei:eby ordered that the sale made by Shrimati
Achhuba in respect of two fields Vidvalu and
Vaghdelavalu should be treated as void under
section 64(3) of the Bombay Tenancy and
Agricultural Lands Act and the village records
corrected accordingly. Shrimati Achhuba should
be persuaded to set apart these two fields as
grazing area for the grazing of village cattle of
Dudhakwada in order to maintain the standard
. as fixed by the Government.
If she agrees,
the persons in the present occupation of the
land should be evicted and the fields kept open
for free grazing of village cattle".
An application for revision preferred
by the respondent no. 1 before the Bombay Revenue Tribunal
was dismissed by it. Thereupon he preferred a writ
petition before the High Court.
The High Court
while it affirmed the order of the Revenue Tribunal,
insofar as Survey No. 231 was concerned, remanded
the matter to the Collector for deciding two points, .
one being whether the respondent no. 1 was an agriculturist and the other whether there was a tenant
on the land and if it found that there was no tenant
whether the Collector was justified in declaring the
sale void under s. 63(1). When the matter went back
to the Revenue Tribunal after remand it was contended
on behalf of the respondent no. I that the Collector
had no jurisdiction to declare the sale to be void
without passing a consequential order under s. 84. The
Tribunal held that since this point had not been raised
at the earlier stages of the proceedings nor even before
the High Court the point should not be allowed to
be raised. The Tribunal further held that the respondent no. 1 was not an agriculturist. It also held
J
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,__,. ..
~
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5 S.C.R.
SUPREME COURT REPORTS
857
that the Collector was justified in declaring the sale
even of Survey No. 260 void. A second writ petition was
preferred by the respondent no. 1 against this order;
but it was dismissed by the Hizh Court.
It will thus be seen that it had finally been held
in the proceedings to which the respondent no. 1
was a party that the entire transaction in his favour
was void and that ht: was in unauthorised occupation
not only of Survey No. 231 but also of survey
No. 260.
In the year 1956 the Act was extensively amended.
The amendment came into force in August, 1956.
One of the new provisions in the Act is s. 84-A.
This
provision reads thus:
"Section 84A(I): A transfer of any land in
contravention of section 63 or 64 as it stood
before the commencement of the Amending Act,
1955 made after the 28th day of December,
1948 (when the Bombay Tenancy and Agricultural Lands Act, 1948 came into force) and before
the 15th day of June, 1955 shall not be declared
to be invalid merely on the ground that such
transfer was made in contraventfon of the said
sections if the transferee pays to the State Government a penalty equal to one per cent of the
consideration or Rs. 100, whichever is less:
Provided that, if such transfer is made
by the landlord, in favour of the tenant in actual
possession, the penalty leviable in respect thereof
shall be one rupee:
Provided further that if any such transfer
is made by the landlord in favour of any person
other than the ten~.nt in actual possession, and
such transfer is made either after the unlawful
eviction of such tenant, or results in the eviction of the tenant in actual possession, then
such transfer shall not be deemed to be validated unless such tenant has failed to apply for
the possession of the land under sub-section
(1) of section 29 within two years from the date
o( his eviction from the land.
\
1963
Bai Achhuba
Amar Singh
v.
Sri Ka/idas
Harnath O.iha
and Others
Mudholkar J.
\
1963
Bai Achhuba
Amar Singh
v.
Sri Kalidas
Harnath Ojha
and Others
Mudholkar J.
858
SUPREME COURT REPORTS
[1964]
(2) On payment of such penalty, the Mamlatdar ;hall issue a certificate to the transferee
that such transfer is not invalid.
(3) Where the transferee fails to pay the
penalty referred to in sub-section (!) within
such period as may be prescribed, the transfer
shall be declared by the Mamlatdarto be invalid
and thereupon the provisions of sub-sections (3)
to (5) of section 84C shall apply."
Seeking tc avail himself of this provision the respondent no. 1 made an application before the Mamlatdar, Deodai for validation of the transfer in his
favour.
This applicJtion was granted by the Mamlatdar. Shortly after this happened the Collector
of Banaskantha took up the matter suo motu in revision and set aside the order of the Mamlatdar.
A revision application preferred against the order
of the Collector was dismissed by the Revenue Tribunal. Thet eafter the respondent no. I preferred
a writ petition before the High Court which was
thus his third writ petition.
That petition having
been allowed, the appellant has come up before
this Com t, as already stated, by special leave.
·
The High Court, in allowing the application,
came to the conclusion that the previous adjudication
to the effect that the transaction upon which the
respondent no. 1 relies is invalid, does not, in so
far as Survey No. 260 is concerned, come in the way
of applying the provisions of sub-s. (]) of s. 84A.
The High Court observed that a transfer in contravention of ss. 63 and 64 becomes invalid by operation
of law and has not to be declared to he such
and, therefore, the mere fact that the Collector has
declared a transfer to be invalid because it contravenes either of these sections would not render the
new prov1S1ons inapplicable.
In coming to this conclusion the High Court
has apparently overlooked the provisions of s. 84
and also the fact that it was under this provision
that the appellant as well as the villagers had sought
redress from . the Collector, upon the ground that
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5 S.C.R.
SlJPREME COlJRT REPORTS
859
the >ale deed on which the respondent based his
claim to possession of the fields was in contravention
of the provisions of ss. 63 and 64. We are no longer
concerned with Survey No. 231 but are concerned
only with Survey No. 260
It is no doubt true that ss. 63 and 64 render certain
transactions invalid. But where advantage is sought
to be taken of the invalidity of a transaction on the
ground that it contravenes ss. 63 and 64 and relief
such as that awardable under s. 84 of the Act is sought,
it becomes necessary for the Collector to adjudicate
upon the dispute and decide whether the transaction is
or is not rendered invalid by either of these provisions.
It is because of this that the Collector did proceed
to adjudicate upon the validity of the transaction.
It was contended before us that all that was
before the C0llector was an application made by
certain r~sidents of Duchakwada who had been deprived of their grazing rights over Survey No. 260.
That is not correct because there is the admission of
the respondent no. 1 himself in his writ petition before
the High Court, dated February 17, 1959, that the
villagers had sought the cancellation of the sale deed
which comprised of the fields and that the appellant
also had made an application for the cancellation
of the sale deed in his favour. Even assuming that
the appellant had not moved the Collector under
s. 84 or that her application was not properly before
the Collector, we may point out that for invoking
the provisions of s. 84 of the Act it is not of the essence
that an application must be made by the landlord
alone. Upon the language of that provision any
person interested can resort to the remedy provided
therein and when its provisions are resorted to it
becomes the bounden duty of the Collector to decide
under cl. (a) thereof as to whether the person sought
to be evicted is or is not in possession in pursuance
of an invalid transfer.
It was next contended on the respondent's behalf
that so far as Survey No. 260 is concerned the Collector had refused to pass an order of eviction and,
1963
Bai Achhuba
Amar Singh
v.
Sri Ka/idas
Harnath Ojha
and Others
Mudholkar J.
1963
BaiAchhuba
Amar Sin1;ll
v.
Sri Ka/idas
Harnath Ojha
and Others
Mudholkar J.
860
SUPREME COURT REPORTS
[1964 J
therefore, the declaration as to invalidity of the sale
of Survey No. 260 made by the Collector would be
no bar to the applicability of s. 84A. This contention is also without any force. We have already
quoted the portion of the order of the Collector
in so far as it related to the prayer of the appellant
for evicting the respondent no. 1 from Survey
No. 260. It will be clear from it that the Collector did
grant a conditional relief with respect to this :field.
For granting such a relief it was thus necessary for
the Collector to adjudicate upon the validity or otherwise of the transfer. The Collector's order was
affirmed by the Revenue Tribunal and the writ petition in which the respondent challenged it before
the High Court was dismissed. The whole question,
including the validity of the Collector's order must,
therefore, be regarded as having become :final and
conclusive between the parties. Even assuming that
despite all that has happened, it is open to us to consider whether the order of the Collector declaring
the sale transaction to be void was within his jurisdiction or not, we have little doubt that it was within
his jurisdiction. No doubt, neither s. 63 or s. 64
nor even s. 84 speaks of making a formal declaration
by the Collector that a transaction is void because
it is in contravention either of s. 63 or s. 64 cannot
be just ignored by the transferor. Some authority
must determine whether in fact the transfer is in
contravention of either of these provisions. The
question of obtaining such a determination will arise
where the transferor has lost possession. For obtaining possession of which the transferor was deprived
in consequence of an invalid transfer the Act enables
him to resort to the provisions of s. 84.
Under
that provision the Collector has to ascertain, as already
stated, whether the transfer is in fact in contravention
of s. 63 or s. 64. His :finding in that regard is tantamount to a declaration that the transfer is invalid.
We may point out that there is no provision in the
Act which expressly provides for the making of a
formal declaration by any Revenue Authority to
the effect that a transfer in contravention of s. 63
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5 S.C.R.
SUPREME COURT REPORTS
861
or s. 64 is invalid. When the legislature provided
in s. 84A that a transfer in contravention of either
of the two sections what it meant was merely this
that the transfer shall not be treated to be invalid
even when it is found to be in contravention of s. 63
or s. 64 of the Act. This is precisely what the Collector did in this case. Unless we give this meaning
to these words they will be meaningless.
We are further of the view that the provisions
of s. 84A are prospective in their application. A
bare perusal of the provisions of s. 84A would show
that what that section does is to impose an embargo
upon the making of a declaration that a transfer is
invalid on the ground that it was made in contravention of the provisions of ss. 63 and 64. Its operat10n
is thus prospective in the sense that it bars making
of any declaration or a finding that a transfer is invalid
after it came into force. It does not affect any adjudication in which a transfer had already been held to
be invalid.
Thus it can possibly have no application
to a case like the present wherein a declaration or
a findinge as to invalidity had already been made
by the Collector and was followed by an order of
eviction, albeit conditional. The Mamlatdar, therefore, had no jurisdiction to issue the certificate in
question to the respondent. That being the position
we must hold that the High Court was in error in
setting aside the order of the Revenue Tribunal upholding that of the Collector. We, therefore, set aside
the order of the High Court and restore that of the
Revenue Tribunal.
Costs throughout will be borne
by the respondent no. 1.
1963
BaiAchhuba
Amar Singh
v.
Sri Kalidas
Harnath Ojha
and Others
Mudholkar J.
RAGHUBAR DAYAL J.-1 am of opinion that Raghubar Dayal
the appeal be dismissed.
J.
The appellant, Jagirdar of village Duchakwada,
sold two fields bearing Survey Nos. 231 and 260,
to respondent no. I, Kalidas Harnath Ojha, hereinafter called the respondent on October 28, 1950. On
November 24, 1952 the Collector,
District Banaskantha, passed an order, after an enquiry on aplicacations, by certain persons of that village to the Govern-
862
SUPREME COURT REPORTS
[1964]
~
1963
ment, to him and to the Deputy Collector, Tharad,
that the sale deed of the two plots was invalid in view
Bai Achhuba of the provisions of ss. 63 and 64 of the Bombay
Amar Singh
Tenancy and Agricultural Lands Act, 1948 (Act LXVll
v.
of 1948), hereinafter called the Act. He ordered
Sri Kalidas
the eviction of the appellant from plot no. 231 as
Harnath Ojha he found that one Harijan Vira Pana, one of the
and Others
applicants, was the tenant of that plot. We are not
-- now concerned with this order with respect to plot
fiaghubar Dayal no. 231.
.
J
·
With regard to plot no. 260, the Collector ordered
in view of the shortage of grazing land for cattle in
the village:
"Shrimati Achhuba should be persuaded to set.
apart these two fields as grazing area for the
grazing of village cattle of Duchakwada in order
to maintain the standard as fixed by the Government. If she agrees, the persons in the present
occupation of the land should be evicted and
the fields kept open for free grazing of village
cattle."
The Collector was wrong in mentioning the two fields
in the above quoted order, as one of the fields in
dispute before him was field No. 231 and about which
he had earlier, in his order, directed the Prant Officer
to restore that field to Harijan Vira Pana immediately.
The respondent's appeal against this order was
dismissed by the Bombay Revenue Tribunal on October 27, 1955. The Revenue Tribunal treated the
Collector's order to be an order under s.
84
of the Act. The respondent then approached the High
Court of Bombay with Special ,Civil Application
no. 2817 of 1955. The High Court allowed the application on July 2, 1956 with respect to plot no. 260,
set aside the order of the Revenue Tribunal and remanded the dispute about that plot to be decided
by the Tribunal afresh, according to law. On remand, the Tribunal again dismissed the respondent's
appeal on June 3, 1957. The respondent again went
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5 S.C.R.
SUPREME COURT REPORTS
863
to the High Court by Special Civil Application
No. 2220 of 1957. The High Court dismissed the
petition on December 18, 1957.
In the meantime, on August 1, 1956 the Bombay
Tenancy and Agricultural Lands (Amendment) Act,
1956 (Act XIII of 1956) came into force.
By this
Act, s. 84A was added in the parent Act. This section
reads:
1963
BaiAchhuba
Amar Singh
v.
Sri Kalidas
Harnath Ojha ·
and Others
"(I) A transfer of any land in contravention of Raghubar Dayal
section 63 or 64 as it stood before the commenJ.
cement of the Amending Act, 1955, made after
the 28th day of December 1948 (when the Bombay
Tenancy and Agricultural Lands Act, 1948, came
into force) and before the 15th day of the June
1955 shall not be declared to be invalid merelv
on the ground that such transfer was made in
contravention of the said sections if the transferee
pays to the State Government a penalty equal
to one per cent of the consideration or Rs. 100,
whichever is less;
Provided that, if such transfer is made by the
landlord, in favour of the tenant in actual possession, the penalty leviable in respect thereof shall
be one rupee:
Provided further that if any such transfer is
made by the landlord in favour of any person
other than the tenant in actual possession, and
such transfer is made either after the unlawful
eviction of such tenant, or results in the eviction
of the tenant in actual possession, then such
transfer shall not be deemed to be validated
unless such tenant has failed to apply for the
possession of the land under sub-section (1) of
section 29 within two years from the date of his
eviction from the land.
(2)
On payment of such penalty, the Mamlatdar shall issue a certificate to the transferee
that such transfer is not invalid.
(3) Where the transferee fails to pay the penalty
referred to in sub-section (!) within such period
1963
BaiAchhuba
Amar Singh
864
SUPREME COURT REPORTS
[ 1964]
as may be prescribed, the transfer shall be declared by the Mamlatdar to be invalid and thereupon the provisions
of sub-sections (3) to (5)
of section 84C shall apply."
Sri ;~/idas The respondent took advantage of the provisions
of this section, deposited Rs. 35 as fine on December
Harnath Ojha 9, 1957 and the same day got the order of the Mamand-Others
_
latdar Tenancy Aval Karkun, recognizing the sale to
Raghubar Dayal him of plot no. 260 under the sale deed of 1950.
J.
The Deputy Collector set aside the order of the
Mamlatdar holding that s. 84A did not apply to the
sale of plot no. 260 as that sale had been declared to
be invalid by the Collector prior to the coming into
force of s. 84A. The respondent then went in revision
against this order to the Bombay Revenue Tribunal ·
and was unsuccessful. He then filed Special Civil
Application No. 302 and prayed for the quashing
and the setting aside of the Tribunal's Order. The
High Court set aside the order of the Tribunal holding
that s. 84A applied to the sale of plot no. 260 to the
appellant, that the sale was invalid by operation of
law and required no declaration to that effect from
the Collector and that there was nothing in s. 84-A
which would justify excluding from the operation
of that section transfers which had been declared
invalid prior to the coming into force of that provision
of law. The High Court restored the order of the
Mamlatdar dated December 9, 1957 by which he
had issued a certificate to the respondent that the
transfer cf plot no. 260 was not invalid. It is against
this order that Bai Achhuba has preferred this appeal
after obtaining special leave from this Court.
The appellant was a party to all the proceedings
subsequent to the order of the Collector dated November 24, i 952 .. She did appear before the Collector
during his enquiry. It was stated at the hearing
of the appeal that she had also applied to the Collector. This was disputed by the respondent. The
matter was considered to be of some importance
in view of the respondent's contention that the previous
orders on the application of the villagers operated
•
It 5 S.C.R.
SUPREME COURT REPORTS
865
'<' .....
•
as res judicata, and this Court ordered the appellant,
1'163
on March 19, 1963 to file certified copies of the various
documents mentioned in that order. Those docuBal Achhuba
ments included the alleged application made to the
Amar Singh
Collector and an affidavit by the appellant showing
v.
that she was a party to the proceedings before the
SriKalidas
Collector. The appellant filed copies of certain Harnath Ojha
orders of the various Courts and a copy of the Special
and Others
Civil Application No. 2220 of 1957. She did not
--
file a certified copy of the application said to have been Raghubar Dayal
presented by her to the Collector simultaneously
J.
with the other villagers. Nagarlal Dalpatram Vyas,
describing himself as a Karbhari of the appellant,
states in his affidavit
"I personally went to the Mamlatdar of Deoda
Prant Officer of Radhanpur, the Collector of
Banaskantha, the Bombay Revenue Tribunal and
the. High Court of Gujarat, to obtain a certified
copy of the application made by the applicant
herein to the Collector of Banaskantha, which
resulted into his said order 24 November 1952,
but I have been told that the record is not· there
any of those Courts or Authorities. I was
told by the Collector of Banaskantha the record
of the case had gone to the Bombay High Court.
On inquiry it is found that the Gujarat High
Court does not have it though in ordinary course it
ought to have received it from Bombay High
Court."
.
The respondent has filed a
counter-affidavit
stating that the appellant had not filed any petition or
application before the Collector under s. 84 of the
Act seeking his eviction. On this material, I am
not satisfied that the appellant had applied to the
Government or the Collector simultaneously with
the other villagers on whose applications the Collector made an enquiry and passed the order of November 24, 1952. The Collector's order makes no mention of any application by the appellant and states
that certain persons of vlllage Duchakwada, among
whom were agriculturists and tenants of Duchakwada Jagir, had made applications praying that the
l/SCI/64-55
1963
BaiAchhuba
Amar Singh
v.
Sri Kalidas
Harnath Ojha
and Others
Raghubar Dayal
J.
866
SUPREME COURT REPORTS
[1964]
sale deed be declared void and the village records
corrected. accordingly. None of the other orders
of the Court makes any reference to the application
by Bai Achhuba to the Collector, even though some
of them definitely state about her application to the
Mamlatdar. The order of the Revenue Tribunal
dated June 3, 1957 states:
"The original proceeding started on an application made to the Collector of Banaskantha by
some villagers of Duchakwada."
The High Court, in its order on Special Civil Application No. 2220 of 1957 referred to the application
of Bai Achhuba to the Mamlatdar and then said:
"It would appear that shortly before this application, an application had been made by certain
villagers of the place and by the application the
villagers claimed that the sale deed should be
declared void and the village records· should
be corrected accordingly."
To my mind the following questions arise in
this case:
(i) Whether any proceedings started on
the application of the villagers for setting aside the
sale deed and the correction of the record, can be
said to be proceedings under s. 84 of the Act. (ii)
Whether the Collector, in such proceedings, can
make a declaration, distinct from deciding or making
a decision, about the invalidity of the sale deed or
whether he can merely decide about the invalidity
of the sale deed in order to form an opinion whether
the person proceeded against was in pmsession of the
land unauthorisedly or wrongfully and therefore should
be evicted or not.
(iii) Whether the order of the
Collector, be it of declaration or of mere decision
about the invalidity of the sale deed with respect to
sale of plot no. 260, had become final before the
coming into force of the provisions of s. 84A of the
Act on August 1, 1956.
(iv) If such order had become
final, whether that affects the operation of s. 48A
in this 'case.
On the first point it may be assumed that the
proceedings before the Collector in 1952 were pro-
' -
•
•
-
'~ ..
'
'
•
5 S.C.R.
SUPREME COURT REPORTS
867
ceedings under s. 84 of the Act as had been treated
1963
by the Revenue Tribunal and the High Court in the
various proceedings before them.
Bai Achhuba
Amar Singh
On the second point, I am of opinion that there
is nothing in any provision of the Act which empowers
Sri ;;,lidas
the Collector to make a declaration about the sale Harnath Ojha
deed to be invalid or void for contravening the proand Others
visions of ss. 63 and 64 of the Act. The High Court,
__
in its order dated July 2, 1956 in Special Civil Applica- Raghubar Dayal
tion No. 2817 of 1955 said, in dealing with the matter
J.
about plot No. 231:
"Again, in our view, an order passed by a Collector ordering summary eviction of a person who,
in his view, is unauthorisedly occupying or is
in wrongful occupation of the land does not
decide finally any question of title and we agree
with the view of the Tribunal that it is open to
the petitioner Kalidas Oza to file a civil suit
to establish his title in the Civil Court."
Again, in its order dated December 18, 1957 in Special
Civil Application No. 2220 of 1957, the High Court
said:
"Mr. Barot argues that a Tenancy Court cannot
give a declaration that a sale in contravention
of either section 63 or section 64 is invalid. Mr.
Barot would seem to be right . A tenancy Court
is not competent to give a declaration. The
power is the power of a Civil Court to give such
declaration in conformity with the provisions
of section 42 of the Specific Relief Act. But
I do not agree with the contention of Mr. Barot
that a Tenancy Court cannot decide the question
as to whether section 63 or a breach of section
64 of the Act and it is precisely this question
which the Collector as well as the Bombay Revenue Tribunal have decided."
It is clear therefore that though the Collector has
necessarily, in certain proceedings under s. 84 of the
Ac~, to record a finding that certain sale deed is invalid and consequently the person in possession,
868
SUPREME COURT REPORTS
1963
on its basis, is in unauthorised possession, he has
no power to formally declare the sale deed to be
Bai Achhubp invalid. Ordinarily it is for the Civil Court to make
Amar Singh
a formal declaration about the validity of a deed.
v.
It is only when any other Act specifically empowers
Sri Kalidas
a certain officer or Court to declare a certain deed
Harnath Ojha invalid that that Court or officer would have the power
and Others
to make such a declaration. It follows that the Collec-
.
-
tor could not, in proceedings under s. 84 of the Act,
\Raghubar Dayal make a declaration about a sale deed to be invalid.
I.
All what he decided by his order dated November,
18, 1952 was that in view of the provisions of law
the sale deed in favour of respondent no. 1 was invalid. The appellant must have realised that the
deciSion of the Collector could not amount to the
setting aside of the sale deed declaring it to be invalid
and so she instituted a Civil Suit in 1953 for a declaration that the sale deed was null and void and for the
recovery of possession over the properties included
in the sale deed. This suit was dismissed under
O.IX, r. 8 read with 0.XVII, r. 2 of the Code of Civil
Procedure ..
The order of the Collector deciding that the
sale deed was invalid had not even become final by
the time s. 84A was introduced in the Act on August
l, 1956. On July 2, 1956 the High Court remanded
the matter to the Revenue Tribunal for decision according to law. The Tribunal passed its order on June
3, 1957.
It follows therefore that apart from the consideration already mentioned that the Collector had
no power to declare a sale deed invalid while dealing
with a matter under s. 84 of the Act, that order had
not become final by August 1, 1956 and that therefore the . respondent could take advantage of the
provisions of s. 84A.
He could have his sale deed
which was executed between December 28, 1948
and June 15, 1955 validated on payment of the requisite penalty under sub-s. (1) of s. 84A. This
• -
•
'
section empowers the Mamlatdar to issue the certificate
.....
of validity and by sub-s. (3) provides that the MamllW
-
,
5 S.C.R.
SUPREME COURT REPORTS
869
latdar would declare the transfer to be invalid in case
1963
the transferee failed to pay the penalty. The pro-
-
visions of s. 84A brought the matter of validity or
Bai Achhuba ·
invalidity of a transfer deed within the jurisdiction · Amar Singh
of the Mamlatdar. It was in the exercise of this
v.
jurisdiction that the Mamlatdar issued a notice on
Sri Kit/idas
October 7, 1957 to the respondent for paying the liarnath OJha
penalty of Rs. 100 calculated at the rate of 5 °fo on the
and Others
consideration of the sale deed. On December 9,
-
1957 the Mamlatdar issued the necessary certificate Raghubar Dayal
validating the sale deed on the respondent's paying
J.
Rs. 35. I consider the certificate to be good in law.
It is not necessary to express an opinion in this
case whether the Mamlatdar could certify a transfer
to be valid in case it had been legally declared invalid
by a competent Court previously.
I am therefore of opinion that the order of the
High Court under appeal is correct and that this
appeal be dismissed.
ORDER
In view of the judgment of the majority, the
Order of the High Court is set aside and that of the
,.
Revenue Tribunal restored. The costs throughout
will be borne by Respondent No. I.
·
SRI RAMA VILAS SERVICE (P) LTD.
v.
C. CHANDRASEKARAN & ORS.
1963
(P.B. GAJENDRAGADKAR AND K.C. DAS GUPTA1 JJ.)
December 9
Motor Vehicles Act, 1939 (4of1939) s. 47(1) (a) and Constitution of India, Art. 226.-Consideration in granting permit-Meaning of Public interest-if writ of certiorari can be issued on questions
of fact.
.
The Regional Transport Authority granted one stage carriage
permit to the appellant. On appeal, the State Transport Appel-