Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has held that under the West Bengal Restoration of Alienated Land Act, 1973, homestead land, when included within the meaning of the term ‘land’ means homestead of the agriculturist and not any or every structure of non­-agricultural land. The said view was expressed by Calcutta High Court in Prosad Kumar Dhara v. Kamala Kanta Dikshit, 1982 SCC OnLine Cal 82 and approving the same, the Court said,

“This proposition has been laid down on interpretation of a State Law by the jurisdictional High Court. The said judgment has held the field since 1982.”

The Court, further, held that even waterbodies like pond or tank should also have some connection with agricultural land or the occupation of the transferor as agriculturist to come within the purview of the 1973 Act.


Scheme of the West Bengal Restoration of Alienated Land Act, 1973


The West Bengal Restoration of Alienated Land Act, 1973 contemplates, in substance, return of land to a small landholder in a situation such a landholder conveys the same to raise funds to tide over financially distressed condition. For restoration of the conveyed land, the concerned landholder is required to make an application to the authority prescribed under the said statute. This legislation lays down certain parameters within which a landholder ought to come to invoke the provisions relating to restoration of the land already conveyed by him.

The nature of land to which the said Act applies is defined in Section 2 (2) of 1973 Act. Under the said provision, land means agricultural land and includes homestead, tank, well and water channel. To be eligible for the protective umbrella of this statute, the aggregate holding of the transferor cannot exceed two hectares. The 1973 Act, as originally framed, applied to any transfer made by a landholder “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his cultivation”. There has been subsequent amendment to the Act by which the words “in distress or” has been omitted.


Background of the Case


A deed of conveyance executed on April 26, 1968 and the transferors of the land forming subject-matter of that deed applied for restoration thereof on August 9, 1974. At that point of time, the 1973 Act, as originally framed was applicable. The land forming the subject of the sale transaction included parts of a pond (tank) and garden. It was urged that the subject land was sold in distress. The deed of conveyance showed that the first vendor was effecting transfer for buying other property whereas the second vendor wanted the sale proceeds to be applied for repaying loan obtained for marriage of her sister. The third vendor, also representing her two minor sons and daughter, declared in the deed that the sale was being effected for meeting the educational costs of her two minor sons and also for repaying loans obtained for (i) marriage of her daughter (ii) obtained by her husband and (iii) for buying “some paddy land for our food, cash is required”. The purchaser of the land argued that the land in question was homestead non­agricultural land and hence the said Act would not be applicable so far as the subject­transaction was concerned.


Calcutta High Court’s judgment in Prosad Kumar Dhara v. Kamala Kanta Dikshit, 1982 SCC OnLine Cal 82


The High Court held that the 1973 Act did not profess to reopen all transfers of all properties and it was intended to give relief to agriculturists in respect of distress sales or the likes and in the definition clause land has been defined to be limited to agricultural land. Referring to homestead land, the Division Bench took the view that homestead land when included within the meaning of the term “land” in 1973 Act means homestead of an agriculturist and not any and every structure on non-agricultural land. [Read the full text of the judgment here]


Supreme Court’s Ruling


Bose, J, for himself and Kaul and Murari, JJ, said that mere fact that part of the sale proceeds has been utilised for purchasing  another agricultural land would not per se disentitle a transferor from invoking the restoration provision contained in the 1973 Act, provided of course, the transaction sought to be repudiated otherwise attracts the provisions of the said statute.

Under Section 4 (1)(a) of the Act three situations have been contemplated as alternative conditions to enable a land holder to seek restoration of land already conveyed by him. These are “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his cultivation”. The Court noticed that these are interconnected situations and in the case at hand, the vendors’ reasons for transfer, spelt out in the conveyance deed itself comes within the broad terms expressed in the statute.

The Court said that the substantial part of the sale proceeds was to be applied to meet the maintenance need of the vendors and their family. Fresh purchase of land, covering little over half of the consideration sum received from sale of the subject¬land was also for the purpose of maintaining the necessities of the vendors. Hence, it cannot be held the said transaction per se did not constitute distress sale. The reasons cited by the vendors for selling the land definitely show that they were in need of money.

However, on a reading of the orders of the Special Officer, Appellate Authority, and the Tribunal, the Court found that the issue relating to the character of the land conveyed was not raised before any of these three fora. It noticed,

“… this question goes to the root of the matter in controversy. But because of this lacuna, we do not think the applicants ought to have been altogether nonsuited from the restoration proceeding, particularly since this point does not appear to have had been raised before the statutory fora by the original purchaser. There is no reflection of such argument in the said three orders. In our opinion, this is a crucial point which should have been determined before foreclosing the applicants’ restoration plea.”

It, hence, remanded the matter to the Tribunal with a direction to undertake the exercise of determining the nature of the land with the object of finding out if the same came within the purview of the 1973 Act or not. The Court directed the Tribunal to complete the process of adjudication on this point within a period of four months.

[Renuka Dey v. Naresh Chandra Gope,  2020 SCC OnLine SC 895, decided on 02.11.2020]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary J., upheld the findings of the impugned judgment and modified the sentence to meet the ends of justice.

The facts of the case are that the complainant was a sole owner of a piece of land acquired by the complainant from its erstwhile owner namely, Sokra Gope by virtue of a registered deed of sale dated 29-03-1972 becoming the absolute owner of the land. It was further alleged that the petitioner started dumping iron ore, boulders, etc. on a portion of the said piece of land and had diminished the value of cultivable land and caused a loss of more than Rs 10,000. It was also alleged that the complainant was deprived from using the agricultural land for cultivation.  A complaint under Section 427 and 447 IPC was made and Court of Judicial Magistrate Ist class convicted the petitioner and Sessions Judge affirmed the said judgment dated 18.07.2013. Hence instant revision petition has been filed challenging the judgment dated 18.07.2013.

Counsel for the petitioner, Gouri Debi submitted that the court of the impugned judgment has failed to properly consider the sale-deed. It was further contended that the present case is a civil dispute and not a criminal dispute as it relates to the title of land.

Counsel for the respondents, Ravi Prakash submitted that the learned courts have duly considered both the sale-deeds of the complainant as well as the defense. It was also submitted that there is no scope of re-appreciation of the evidence and hence there is no illegality or perversity in the impugned judgments.

The Court observed

“The act i.e. dumping of iron ore over the complainant’s land certainly intimidate him and would cause annoyance so the basic ingredients of the criminal trespass is present in this facts and circumstances of the case so accused is also liable to be convicted for the offence committed under Section 447 IPC.”

After hearing the arguments and witnesses being cross-examined thoroughly, Court held that both the sale-deeds were in connection with the same property. It was further held that the basic ingredients of Sections 427 and 447 were satisfied and the petitioner’s actions caused wrongful loss to the complainant and the land became infertile and was not useful for cultivation. It was further held that as the basic ingredients of offence were present in the case, hence merely because there is a dispute in connection with land, it will not be a civil dispute.

In view of the above, the petition was disposed off and sentence modified.[Md. Kausar Ali v. State of Jharkhand, 2020 SCC OnLine Jhar 742, decided on 20-08-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Indu Malhotra and AS Bopanna, JJ has held that an agriculturist cannot part with his agricultural land to a non-agriculturist though a ‘Will’ as per Sections 43 and 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (the Tenancy Act).

Section 43 lays down the restrictions on transfer of land sold or purchased under the Tenancy Act and Section 63 bars the transfer of agricultural lands to non-agriculturists.

The Court said,

“if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance but may also have serious impact on agricultural operations.”

Explaining the scheme of the Act and the provisions in question, the Court said that the primary concern of provisions referred to in Section 43 of the Tenancy Act is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land.

If a tenant or any other person from the priority list is conferred ownership in respect of the agricultural land or when a landlord is allowed to retain the land which was surrendered by his tenant, each one of them is obliged to cultivate the land personally. In case any of them is unwilling, the land must be given to those who principally depend upon agricultural operations for their sustenance. If a person is a beneficiary of such statutory purchase and wishes to transfer his holding the law obliges that he must take prior sanction from the Collector.

The Court, further,explained that a transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the concerned authority so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. Hence,

“if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose.”

The Court concluded by saying that the provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation.

[Vinodchandra Sakarlal Kapadia v. State of Gujarat, 2020 SCC OnLine SC 545 , decided on 15.06.2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: This writ was filed before a Single Judge Bench of Sheel Nagu, J., in nature of mandamus. 

The grievance of petitioner was that their names were removed from the revenue record of certain agricultural lands which they claimed to be belonging to them by virtue of the operation of law. Petitioner contended that by virtue of The Kanoon Maal Gwalior, Samvat 1983, The United State of Gwalior, Indore & Malwa (Madhya Bharat) Revenue Administration & Ryotwari Land Revenue & Tenancy Act, Samvat 2007 and Madhya Bharat Zamindari Abolition Act, Samvat, 2008, the land belonged to them and they were Bhumiswami of the same. 

High Court viewed that claims of the petitioner had already been raised before the competent court under MPLRC and the revenue Court of SDO which is seized of the matter. Thus, the Court was of the view that it should not exercise its extraordinary writ jurisdiction as the same was filed without any grounds. Therefore, this petition was dismissed. [Bachchu  Singh v. State of M.P.,2018 SCC OnLine MP 919, decided on 13-12-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Siddhartha Varma, J., allowed a writ petition which was in respect to Section 82 of the U.P. Revenue Code, 2006.

Facts of the case are that petitioner’s agricultural land was declared as non-agricultural. Aggrieved by the same, petitioner filed an application under Section 82 of the Code for cancellation of the above declaration. The aforementioned application was dismissed stating that by canceling the declaration, petitioner was trying to save stamp duty. Later, a revision petition filed by petitioner on the dismissal of above application was also dismissed and for the same, this writ petition was filed.

It was submitted by the petitioner that in accordance with Khasras in the revenue records for the land, agricultural work was going on and prayed for the withdrawal of declaration. It was found on a spot inspection conducted by Revenue Inspector that the plot was vacant and no agricultural work was being done. While responding to the above inspection data, petitioner contended that just because a plot is vacant does not necessarily imply that it is being used for other purposes than agricultural. Whereas the respondent alleged that petitioner was trying to sell the plot and save stamp duty by declaring it as an agricultural land.

The High Court after hearing both the parties quashed the order passed by Additional Commissioner and Sub-divisional Magistrate, Sadar stating that just because a land is vacant, it cannot be concluded that it can never be used for agricultural purposes unless a building is constructed to stop the agricultural scope of the plot. [Sunita Agarwal v. State of U.P., 2018 SCC OnLine All 1326, order dated 11-09-2018]

Case BriefsHigh Courts

Kerala High Court: A 2-Judge Bench comprising of K.Vinod Chandran and Ashok Menon, JJ. dealt with an appeal against the order of Income Tax Appellate Tribunal, where order of first appellate authority was affirmed. It was found that sale of assessee’s land comes under exception of capital gains under Section 45 of the Income Tax Act, 1961 and hence was not taxable.

Assessee is alleged with not declaring capital gain in the income return filed when he sold his property to the owners of a newspaper. Assessee contended that the land in question is an agricultural land and thus is not taxable. Assessee only showed a certificate issued by Village Officer as an evidence to show land as agricultural. Court found that this certificate could not have been relied on as it was issued after sale. Assessee submitted that under Section 2(14) of the Act according to which only those land come under the category of capital asset which comes under (a), (b) of clause (iii).

The High Court stated that merely the fact that land does not come under above provision does not exclude property from the definition of capital asset. High Court viewed that assessee had failed to show that the land in question was an agricultural land thus sale of this land would be taxable under the Act. Therefore, orders of first appellate authority and the Tribunal were set aside. [Principal Commissioner of Income Tax v. Kalathingal Faizal Rahman, 2018 SCC OnLine Ker 3239, decided on 02-07-2018]