D.H. SHUKLA

(1) The petitioner. Mangalbhai Rayajibhai Mistri of Broach is aggrieved and dissatisfied with the judgment and order passed by the Joint Secretary in Revision Application dated 4 1979 whereby the Joint Secretary upheld the order passed by the Collector (a copy of which is not on record) whereby the Collector had passed an order confiscating a parcel of land bearing Survey No. 86 situated in Village Maktampura Taluka and District Broach on the ground that the respondent No. 2 Maganbhai Devabhai of Maktampura Broach had violated sec. 5(3) of the Bombay Inferior Village Watans Abolition Act. 1958 (hereinafter referred to as the) by entering into an agreement to sell the same parcel of land to the petitioner. The petitioner has assailed the above-stated orders of the Collector as well as the order passed by Revision be the Joint Secretary dated 4-1-1979 on the ground that the orders are illegal contrary to law and ultra vires.

(2) Respondent No. 2 Maganbhai Devabhai was granted land in lieu of his service as Vartania to the Government. The said land is a new and impartible tenure land The respondent No. 2 was not in a position to cultivate the aforesaid land personally and therefore he gave that land for cultivate to the petitioners since last about 14 years i.e. since 1964 and the petitioner paid Rs. 100.00 as rent every year. The petitioner is according to him in actual possession of the land and is doing cultivation thereon.

(3) As the respondent No 2 was unable to cultivate the land due to his in-health and old age the respondent No. 2 as absolute owner of the said land executed an agreement to sell dated 20-7-1972 and on 25-7-1972 he received a sum of Rs. 2500.00 (rupees two thousand live hundred only) as an earnest money towards the consideration of the sale which was fixed at Rs. 8 0 (rupees eight thousand). Thereafter the respondent No. 2 appeal for permission to the Assistant Collector Broach to accord an approval to the transfer of ownership of the land. A copy of the Banakhat alias agreement to sell is on record at Annexure A. The petitioner paid in all Rs. 7593-6 by instalments as per the need of the respondent No. 2 towards consideration for the sale of the aforesaid land and the respondent No. 2 wanted to get more money and to back out from his obligation for the specific performance of the contract for the sale of the land. Hence the petitioner filed a suit being Civil Suit No. 440/1977 on 21-7-1977 in the Court of the Civil Judge (S.D.) Broach for permanent injunction restraining the respondent No. 2 from entering the aforesaid suit land as the respondent No. 2 attempted to take possession of the land forcibly.

(4) The petitioner further submits that under the aforesaid circumstances at the instance of the respondent No. 2 the Assistant Collector Broach issued a show cause notice dated 26-8-1977 for confiscating the land as Government waste land for breach of the conditions of new tenure.

(5) The petitioner appeared before the Assistant Collector and submitted to him that he had built two huts in the said land and had paid Rs. 100.00. as rent per year to the respondent No. 2 and that he pays assessment education cess etc. for this land and takes crops of the land. However the Assistant Collector passed an order dated 1-12-1977 for confiscation of the land. The petitioner preferred an appeal before the Collector of Broach. but the Collector dismissed the said appeal on 18-5-1978 and confirmed the order of the Assistant Collector and held that there was a breach of new tenure condition by transferring land without permission of the competent authority

(6) The petitioner then approached the Special Secretary Revenue Department under sec. 211 of the Land Revenue Code challenging the impugned appellate order of the Collector but to no avail.

(7) There are several contentions raised in the petition many of them on equitable ground and only one on the legal ground. Mr. S. T. Mehta the learned Advocate for the Petitioner pressed the legal issue before me. I may state that this is the only point raised before mo by Mr. S. T. Mehta. Mr. Mehta raised a contention that the respondent No. 2 had entered only into an agreement to sell the land but no sale has been effected. Thus there was no transfer or alienation of land by the respondent No. 2 in favour of the petitioner since no regular sale-deed is executed. There is no transfer of right title and interest because agreement to sell does not come within the definition of registered sale.

(8) Mr. M. A. Malik the learned Assistant Government Pleader in reply to Mr. Mehtas submission stated that agreement to sell is accompanied by a transfer of possession of the land from the respondent No. 2 to the petitioner. Mr. Malik pointed out that the transfer of possession of the land is stated in the agreement to sell itself. Mr. Malik submitted that the real intention of the parties to the document was to sell the land but the actual conveyance of the property by sale was postponed only in order to avoid the impact of sub-sec. (3) of secs. 5 of the. Sub-sec. (3) of sec. 5 of the runs as under:-

"5 The occupancy of the land regranted under sub-sec. (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".

Mr. Malik submitted that it is an admitted position that no previous sanction of the Collector is obtained for the transfer of the land. He further submitted that in this case an agreement to sell was entered into the agreement to sell was accompanied by a transfer of possession from respondent No. 2 to the petitioner and there was also a payment of consideration which even according to the petitioner amounted to Rs. 7593-6 out of the total consideration of As. 8 0 Everything therefore has been done to bring about an effective sale excepting that the formalities of a sale-deed and its registration are kept back in order to avoid the impact of sub-sec. (3) of sec. 5 of the. Mr. Malik submitted that the words which are used in sub-sec (3) are shall not be transferable or partible by metes and bounds and the word transferable is to be understood in the context of the intendment and objective of the and not in the sense in which it is understood under the Transfer of Property Act. Such a transaction a camouflage obviously amounts to such a transfer which is prohibited by sub-sec. (3) of section 5 of the. Mr. Malik submitted that we must look through the sham transaction to the actual intent of the parties and that the parties cannot be permitted to bypass the provisions of the beneficient statute by a clever device of avoiding certain technicalities. If this is permitted. Mr. Malik submitted the beneficent object of the would easily be frustrated and in the end defeated. Mr. Malik fortified his argument by referring me to a decision of Vivian Bose J.reported in A.I.R. 1939 Nagpur 35 The facts of the reported case shortly stated are that a suit for pre-emption was filed in respect of Survey No. 64/1 which had two sets of co-sharer each owning 8 annas in it. One-half belonged to Jainarain defendant No. 4 and the other to Gulabchand and Madangopal defendant Nos. 2 and 3. On 10/05/1933 defendants Nos. 2 and 3 orally sold their half of the field to defendant No. 1 Surajkhan for Rs. 1700.00. This is the sale which the Plaintiff sought to pre-empt. After this on 13/03/1934 defendant No. 1 is said to have sold again orally the half share he had purchased as above to (defendant No. 4 who thus got the entire pot-hissa. This sale has been challenged by the plaintiff who says that the transaction was a fraudulent one and that it did not take place till after the institution of the suit and was then antedated. On 15/06/1934 the plaintiff instituted this suit for pre-emption. On 22/08/1934 the plaint was amended and defendant No. 4 Jainarayan who was not originally a party was added. Both the lower Courts find that the sale to defendant No. 4 did not take place on 13th March 1934 but after the institution of the suit and that it was a fraudulent device to defeat the plaintiffs claim.

(9) The point which was argued before the learned Judge Vivian Bose J was a point of law. It was argued that the sale which the plaintiff sought to pre-empt was one which according to the defendant had no binding force because it was oral and it was contended that the word transfer in sec. 183 Berar Land Revenue Code must be strictly construed to mean one of the transfers contemplated by secs. 176 177 and 178 and that the word sale in sec. 176 must be construed in the sense in which it is used in the Transfer of Property Act. The learned Judge after discussing the impact of the word transfer in the context of the Mahomedan Law wherein the word sale in case of a pre-emption was not understood in the limited sense in which it is referred to in the Transfer of Property Act observed as under:-

"...but the position that the word sale when use in connection with the general law of pre-emption in India is not to be construed in the narrow sense in which it is used in the Transfer of Property Act has now I think been placed beyond the realm of controversy by the Judicial Committee .... The next question therefore is whether the transaction in this case amounts to a sale within the meaning of the wider definition now given to it. Here also their Lordships of the Privy Council have laid down an important test though it is possibly not the only test. They state that in each case the intention of the parties must form the determining factor: See 45 Bom 1056 at p. 1063 upholding 35 Cal 575. In the present case there can be no doubt whatever that the intention was to sell to transfer all the interests which the vendor had to the vendee. Possession was given and the price was paid; and the only reason why a registered sale deed was not executed was to try and frustrate the co-sharers rights of pre-emption. These are the findings of the Courts below and being one of facts are binding here. I need not dilate upon the question whether an intention to frustrate is necessary and whether the interest contemplated by secs. 174 and 176 would pass even when there is no transfer of possession. It is enough to state that both these elements are present in this case and that when they are there the rule applies..."

(10) Mr. Malik submitted that the above ruling squarely applies to the present case. Here also in sub-sec. (3) of section 5 of thethe word transfer is used and it is sought to be bypassed by an agreement to sell whereby the possession was transferred and most of the considerations was received by the respondent No. 2. There can be no doubt that the intention of the parties was to frustrate the statutory provision contained in sub-sec. (3) of sec. 5 of the.

(11) Mr. S. T. Mehta had no answer to this position.

(12) I am of the view that there is considerable force in Mr. Maliks submission and it must be accepted.

(13) Apart from that the present case can also be viewed from a different angle. The Act describes in sub-section (xi) of section 2 the word Watandar as under:

"2 watandar means a person having a hereditary interest in an inferior village watan under the existing watan law: Provided that where any watan has been entered in a register or record-under the existing watan law as held by the whole body of watandars the whole of such body shall be deemed to be a watandar.

(14) Watan Property is defined in sub-section (xiii) of section 2 of theas under:

"2 (xiii) Watan property means the moveable or immoveable property held acquired or assigned under the existing watan law for providing remuneration for the performance of the duty appertaining to an inferior village hereditary office and includes a right under existing watan law to levy customary fees or parquisites in money or in kind whether at fixed times or otherwise and also includes cash payments in addition to the original watan property made voluntarily by the State Government and subject periodically to modification or withdrawal".

(15) By sec 4 of the all Inferior Village Watans have been abolished and the Watan land subject to provisions of sections 5 6 and 9 of thehas been resumed. After the resumption of the land by the State there is a provision about re-grant of watan land to holders. Section 5 of theruns as under:

"5 Regrant of watan land to holders of watan (1) A watan land resumed under sec. 4 shall in cases not falling under secs. 6 and 9 be regranted to the watandar of the watan to which it appertained on payment by or on behalf of the watandar to the State Government of the occupancy price equal to there times the amount of: the full assessment of such land within the prescribed period and in the prescribed manner and the watandar shall be deemed to be an occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder and all the provisions of tie (Code and rules relating to unalienated land shall subject to the provisions of this Act apply to the said land: Provided that in respect of the watan land which was not assigned under the existing watan law as the remuneration of the inferior village hereditary office on occupancy price equal to the amount of the full assessment of such land shall be paid by or on behalf of the watandar for the regrant of such land.

(2) If there is failure to pay the occupancy price under sub-sec. (1) within the prescribed period and in the prescribed manner the watandar shall be deemed to be unauthorisedly occupying the land and shall be liable to be summarily evicted therefrom by the Collector in accordance with the provisions of the Code.

(3) The occupancy of the land regranted under sub-sec. (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.

The different provisions of the statute thus shows that the ownership of the watan lands vested in the State and what was granted to the holder of the watan was the occupancy rights within the meaning of the Land Revenue Code. It is in this light that sub-sec. (3) of section quoted above is required to be read.

(16) Under sec. 3 of the Bombay Land Revenue Code occupy to occupancy land occupation are defined in sub-secs. (16) (17) (18) and (19) thereof as under:

"(16) occupant means a holder in actual possession of unalienated land; other than a tenant provided that where the holder in actual possession is tenant the landlord or superior landlord as the case may be shall be deemed to be the occupant. (17) occupy means a portion of land held by an occupant. (18) to occupancy land means to possess or take possession of land. (19) occupation means possession.

(17) There is no manner of doubt therefore that what the holder obtained under sec. 5 were occupancy rights and not the ownership in the land concerned. This occupancy of land which means to possess or take possession of land is transferred by actual delivery of possession to the petitioner under an agreement to sell. Even if we forget for the time being the agreement to sell and if a transfer of possession had taken place it would have violated the provisions of sub sec. (3) of sec. 5 of the.

(18) Under these circumstances I cannot accept the technical submission of Mr. S. T. Mehta that since the agreement to sell did not have the effect of transferring the ownership in the concerned land by entering into such an agreement the respondent No. 2 had not violated sub-sec. (3) of sec. 5 of the. The argument which at the first blush appears attractive is rather a misleading one and is required to be rejected in view of the foregoing discussion.

(19) As I pointed out earlier this was the only argument canvassed before me by Mr. S. T. Mehta

(20) In the results there is no substance in this Special Civil Application and hence it is rejected. Rule is discharged with no order as to costs. Petition rejected.