Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.612 OF 2002
State of Gujarat & another …Appellants
VERSUS
Manoharsinhji Pradyumansinhji Jadeja …Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. The State of Gujarat and the Mamlatdar & Agriculture are the appellants.
The appellants are aggrieved by the judgment of the Single Judge of the
High Court of Gujarat at Ahmedabad dated 11.10.2000 and the final order
of the Division Bench dated 20.10.2000 passed in Letters Patent Appeal
No.597/2000 in Special Civil Application No.4015 of 1990. By the said
impugned judgment and the final order, the Letters Patent Appeal
preferred by the appellants came to be dismissed confirming the judgment
of the learned Single Judge passed in Special Civil Application No.4015
of 1990 dated 06.05.1999.
2. The second appellant herein initiated proceedings under the provisions
of The Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter called
as ‘the Act of 1960’) and after hearing the interested party, passed an
order dated 24.08.1982 in Ceiling Case No.2 of 1976 holding that the
land to an extent of 587 acres 35 Gunthas was in excess of ceiling limit
and the respondent was entitled to retain only balance land i.e. 51
acres.
3. The respondent preferred an appeal under Section 35 of the 1960 Act to
the Deputy Collector, Rajkot.
The Deputy Collector dismissed the appeal
by an order dated 10.11.1983.
The respondent preferred a revision under
Section 38 of the Act of 1960 which was registered as TEN.B.R.4/84
before the Gujarat Revenue Tribunal.
The Gujarat Revenue Tribunal by its
judgment dated 08.09.1989 partly allowed the revision and directed that
Randarda lands admeasuring 40 acres to be included in the total holding,
that Bhomeshwar Temple admeasuring 12 acres 34 Gunthas to be excluded
from the holding of the respondent and remanded the matter back to the
second appellant for taking evidence regarding the age of the members of
the family.
4. Aggrieved by the order of the Gujarat Revenue Tribunal, the respondent
preferred the writ petition in Special Civil Application No.4015 of
1990.
Before the learned Single Judge, the respondent took the stand
that
his lands were covered by the Urban Land (Ceiling and Regulation)
Act, 1976 (hereinafter called the ‘Act, 1976’) and was not governed by
the Act of 1960. In fact, the said stand of the respondent was raised
for the first time in the writ petition. The stand of the respondent was
accepted by the learned Single Judge and by the judgment and order dated
06.05.1999 passed in Special Civil Application No.4015 of 1990, the
judgment and order of the Gujarat Revenue Tribunal dated 08.09.1989 in
Revision Application No.TEN.B.R.4/84 was set aside and the Rule was made
absolute.
5. The appellants preferred Letters Patent Appeal No.597/2000 and by the
order impugned in this civil appeal, the said LPA having been dismissed,
the appellants have come forward with this appeal.
6. We heard Mr. Soli J. Sorabjee, learned senior counsel for the appellants
and Mr. Shekhar Naphade, learned senior counsel for the respondent. Mr.
Soli J. Sorabjee, learned senior counsel for the appellants in the first
instance
traced the existence of the Act of 1960 as it originally stood
which was enforced on 15.06.1961 and, thereafter, the initiative taken
by the Gujarat State Legislative Assembly by passing a resolution on
14.08.1972 under Article 252 (1) of the Constitution of India
authorizing the Parliament to legislate with respect to ‘imposition of
ceiling on the holding of urban immovable property’.
Learned senior
counsel also referred to the amendment passed by the State Legislature
to the definition of ‘land’ in the Act of 1960 by way of ‘removal of
doubts’ to the expression ‘Bid lands’ also to be included in the
definition of ‘land’ on 23.02.1974 which amendment was notified on
01.04.1976 under the Gujarat Agricultural Lands Ceiling (Amendment) Act,
1972.
Learned senior counsel also brought to our notice the coming into
force of the Act, 1976 on and from 17.02.1976.
7. While elaborating his submissions on the various provisions contained in
the different enactments, in the foremost,
the learned senior counsel
referred to the expressions ‘agriculture’ under Section 2(1) and ‘land’
under Section 2(17) of the un-amended, Act of 1960.
Learned counsel also
referred to Section 6 which sought to fix the ceiling on holding of such
agricultural land. In that context, learned senior counsel brought to
our notice the Statement of Objects and Reasons for bringing out the
Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972 (being Gujarat
Act No.2 of 1974) (hereinafter called the Amendment Act, 1974)
wherein,
inter alia, it sought to remove doubts relating to ‘Bid lands’ of former
Princes, as well as, Girasdars and Barkhalidars in the Saurashtra area
which were duly covered under the definition of ‘land’ and submitted
that it was only with a view to remove doubts that the Amendment Act was
brought out and that it was not by virtue of the said amendment alone
‘Bid lands’ fell within the definition of ‘land’.
8. In other words, according to learned senior counsel, even as per the
definition of ‘land’ under Section 2(17) read along with the definition
of “agriculture” under Section 2(1) of the un-amended Act of 1960, ‘Bid
lands’ were duly covered within the said expression of ‘land’ and the
Amendment Act, 1974 only sought to remove any doubt in the mind of
anyone as regards the character of the ‘Bid lands’.
9. The learned senior counsel then referred to Section 2(q), namely, the
definition of ‘vacant land’ and Section 2(o), the definition of ‘urban
land’ under the provisions of the Act, 1976 to contend that even going
by the said definitions, such land within the urban agglomeration which
fall within the definition of ‘agricultural land’ stood excluded for the
purpose of application of the Act, 1976.
10. Learned senior counsel also brought to our notice the definition of
‘Bid land’ under Section 2(a) of the Saurashtra Estates Acquisition Act,
1952 (hereinafter called as the “Saurashtra Act No. III of 1952”) as
well as the definition of the very same expression, namely, ‘Bid land’
under the Saurashtra Land Reforms Act, 1951 (hereinafter called as the
“Saurashtra Act No.XXV of 1951) as well as Saurashtra Barkhali Abolition
Act (hereinafter called as the “Saurashtra Act No.XXVI of 1951) and
contended that even long prior to the Amendment Act 1974 ‘Bid land’ has
been defined to mean a land used by Girasdars or Barkhalidars for
grazing cattle or for cutting grass, for the use of cattle, meaning
thereby that such lands were nonetheless ‘agricultural lands’. In the
light of the above statutory provisions relating to the ‘Bid land’
learned counsel submitted that de hors the Amendment Act 1974 which came
to be notified on 01.04.1976 ‘Bid land’ fell within the definition of
‘land’ under the Act of 1960 and consequently there was no scope for the
respondent to fall back upon the Act, 1976 in order to challenge the
order passed by the second appellant which ultimately came to be
confirmed by the Gujarat Revenue Tribunal which was set aside by the
judgment of the Division Bench in the order impugned in this appeal.
11. The learned senior counsel further contended that this very issue was
considered by this Court in a recent decision in Nagbhai Najbhai Khackar
Vs. State of Gujarat reported in (2010) 10 SCC 594
which has taken the
view that the definition of ‘land’ under Section 2(17) read along with
Section 2(1) of the Act of 1960 ‘Bid land’ would fall within the
definition of ‘agriculture’ and consequently governed by the definition
Section 2(17) which define the expression ‘land’ and, therefore, the
ceiling limit prescribed under Section 6 of Act of 1960 would be
applicable to the ‘Bid lands’ of the respondent.
The learned senior
counsel also relied upon the decision of the Privy Council in London
Jewellers Limited Vs. Attenborough – (1934) 2 K.B. 206; the House of
Lords decision in Jacobs Vs. London County Council – (1950) 1 All E.R.
737; and the Queens Bench decision in Behrens and another Vs. Bertram
Mills Circus Ltd. – (1957) 1 All E.R. 583 for the proposition that
wherein a decision more than one reason is assigned to support the
ultimate conclusion, both the reasons will have binding effect and that
one cannot be excluded under any pretext. The learned senior counsel
also relied upon Smt. Somawanti and others Vs. State of Punjab and
others - AIR 1963 SC 151 wherein it was held that the binding effect of
a decision does not depend upon whether a particular argument was
considered therein or not, provided that the point with reference to
which an argument was subsequently advanced was actually decided. The
learned senior counsel, therefore, contended that in the recent judgment
of this Court in Nagbhai Najbhai Khackar (supra) when the ultimate
decision was reached based on two grounds, both the grounds, would be
the ratio of the decision and, therefore, the said decision will be
complete answer to the question involved in this appeal.
12. In the alternate learned senior counsel submitted that the argument of
the respondent which weighed with the learned Single Judge as well as
the Division Bench of the High Court in the impugned judgment based on
the Act, 1976 vis-à-vis the Act of 1960 read along with Amendment Act
1974 was not sustainable. According to learned senior counsel, in the
first place, there could not be any repugnancy as between the Act of
1960 and the Act, 1976, inasmuch as the amendment of the definition of
‘land’ in the Act of 1960 was amended as early as on 23.02.1974, namely,
long prior to the coming into force of the Act, 1976. According to
learned senior counsel the relevant date is the date when the Amendment
Act came to be passed in the Assembly on 23.02.1974 and the subsequent
notification dated 01.04.1976 bringing into effect the Amendment Act
1974 was not the relevant date. In other words, according to him, when
once the amending legislation was passed in the Assembly in the year
1974 the subsequent notification though was made in the year 1976 for
bringing into force the amendments, the relevant date would be the date
when the Act was passed and not the date when it was notified. The
learned counsel then contended that in any case the resolution dated
14.08.1972 was passed under Article 252(1) of the Constitution relating
to the legislation with respect to ceiling on ‘urban immovable property’
and it had nothing to do with the ‘agricultural land’. The learned
counsel, therefore, contended that the conclusion of the learned Single
Judge, as well as, that of the Division Bench in having non-suited the
appellants on the specific ground that by virtue of the provisions of
the Act, 1976 the appellants’ action in proceeding against the
respondent under the Act of 1960 was null and void was unsustainable in
law. Learned senior counsel contended that once the Act, 1976 stood
repealed, as a corollary, the Act of 1960 with all the Amendments
carried to it would automatically get revived and it will not become a
dead letter as contended on behalf of the respondent. Learned senior
counsel referred to the decision of this Court in M.P.V. Sundararamier &
Co. Vs. The State of Andhra Pradesh & another - 1958 SCR 1422 in support
of the said submission. Learned senior counsel also relied upon Thumati
Venkaiah and others Vs. State of Andhra Pradesh and others - (1980) 4
SCC 295 for the said proposition. The learned counsel, therefore,
contended that, in the light of the recent decision of this Court in
Nagbhai Najbhai Khackar (supra), which squarely covers the case on hand,
the order impugned is liable to be set aside.
13. As against the above submission, Mr. Naphade, learned senior counsel
prefaced his submission by contending that the stand of the appellants
that ‘Bid lands’ were agriculture lands under the Act was not correct.
Learned senior counsel pointed out that the appellant initiated
proceedings against the respondent both under the Act of 1960, as well
as, the Act, 1976 and that in fact they were also keen to proceed under
the Act, 1976. While referring to the submission of learned senior
counsel for the appellant Mr. Naphade contended that the argument based
on Article 252 of the Constitution and its effect was almost given up by
the appellant. The learned senior counsel after referring to the
unamended Act of 1960 and the definition of ‘agriculture’,
‘agriculturist’ and ‘to cultivate personally’ and the definition of
‘agricultural land’ and ‘Bid Land’ of Girasdar under the Saurashtra Act
No.XXV of 1951 contended that the various definitions under the Act of
1960 were more concerned with the ‘agriculturists’ and their close
proximity to the land held by them, while under the Saurashtra Reforms
Act the stress was more on the lands held by the grantees as tenure
holders in some form or the other. In that context, learned senior
counsel submitted that the definition between the ‘Bid land’ and the
‘agriculture land’ was clearly known to the Legislature as could be seen
from the definition so drawn in the provisions contained under the Act
of 1960, as well as, the Saurashtra Land Reforms Act.
According to
learned senior counsel, the reference to the description of ‘Bid lands’
under Saurashtra Act No.XXV of 1951 and the ‘Act XXVI of 1951 disclose
that the Legislature was conscious of the fact that the Act of 1960 did
not include ‘Bid lands’ in the definition of ‘land’.
14. While referring to the amendment which was brought out to the
definition of ‘land’ in the Act of 1960, in particular Sections 4, 5 and
10 of the Amendment Act by which amendment was brought into Sections
2(1) and 2(17) and introduction of Section 2(27A) in the principal Act
the learned counsel contended that the intention of the Legislature to
bring into effect certain consequences pursuant to the amendment after
the specified date, namely, 01.04.1976 was clearly spelt out. According
to learned counsel, it was not merely by way of removal of doubt that
the Amendment Act of 1974 was brought in but a significant purport was
intended in bringing out such amendments to take effect on and after
01.04.1976 which has been specifically mentioned in Section 2 (27A)
which came to be introduced by Amendment Act of 1974.
15. The learned senior counsel then contended that even assuming that the
Amendment Act of 1974 would apply to the case on hand, since the
respondent did not fall under the definition of ‘Ruler’ as stipulated in
Section 2(17)(ii)(d) of the Amended Act, the Act of 1960 cannot be
applied to the case of the respondent.
Learned senior counsel by
referring to Article 366 of the Constitution pointed out that under sub-
clause 22 of Article 366 a ‘Ruler’ has been defined to mean the Prince,
Chief or other person who at any time before the commencement of the
Constitution (26th Amendment) Act, 1971 was recognized by the President
as the ‘Ruler’ of an Indian State or any person who at any time before
such commencement was recognized by the President as the successor of
such ‘Ruler’ and a person thus fulfill the above criteria alone would
come within the definition of ‘Ruler’.
The learned senior counsel
contended that the respondent was never recognized in accordance with
such constitutional provision and, therefore, the said Section
2(17)(ii)(d) of the Amended Act can have no application to the case of
the respondent. It was further contended that the respondent would
neither fall under the category of Girasdar or Barkhalidar or in the
category of ‘Ruler’ and, therefore, even if the Amended Act of 1974 is
applied, the respondent stood excluded from the coverage of the Act.
16. The learned senior counsel, therefore, contended that the argument that
‘Bid lands’ were already governed by the definition of ‘agriculture’
(i.e.) long prior to the coming into force of the 1974 Act, namely, from
01.04.1976 cannot be accepted. A fortiori, learned senior counsel
contended that when the statute is clear in its ambit and scope and
there being no ambiguity, there was no necessity to rely upon or refer
to the Objects and Reasons to understand the purport of the enactment
and relied upon the Constitution Bench decision of this Court reported
in Pathumma & Others Vs. State of Kerala & Ors. reported in (1978) 2 SCC
1. The learned senior counsel, therefore, contended that whatever
argument now raised based on the expression ‘Bid lands’ on behalf of the
appellant may hold good only after 01.04.1976 and that the heavy
reliance placed upon Nagbhai Najbhai Khackar (supra) cannot also come to
the aid of the appellant since the various principles set out in the
said decision were solely based on the Amendment Act, 1974 as has been
specifically spelt out in various paragraphs of the said decision. The
learned senior counsel pointed out that the said decision, does not,
apply to the facts of this case, inasmuch as, there was no reference to
the implication of the Act, 1976 which came into effect as early as on
17.02.1976 vis-à-vis the Act of 1960 and the said Act being an Act of
Parliament, the appellant was bound by the provisions contained therein
which would negate the entire submission made on behalf of the
appellant.
17. According to learned senior counsel when the application of Act, 1976
was not the subject matter of consideration while deciding the scope of
the amendment Act of 1974 in the judgment reported in Nagbhai Najbhai
Khackar (supra), reliance placed upon the said decision on behalf of the
appellant is of no relevance.
18. The next submission of Mr. Naphade was that the Act, 1976 and the Act
of 1960 were operating in their respective fields, though relatable to
holding of lands. Learned counsel after making reference to Section
1(2), 2 (A), 2 (C), 2(N) and the Schedule to the Act, 1976 pointed out
that Rajkot where the disputed land situate, fell within the urban
agglomeration area, that the land in question is admittedly a land
referred to in the Master Plan as has been stipulated under Section 2(o)
of the Act, 1976 and, therefore, there is a world of difference for
considering the land classified as ‘agricultural land’ under both the
enactments. According to learned senior counsel, having regard to the
Explanations A, B & C of Section 2(q) of the Act, 1976 a conscious
departure has been made with reference to the description of
‘agricultural land’ inasmuch as under the said Act it must be shown that
the land was being ‘used’ for agricultural purposes in contradistinction
to the Act of 1960 where a land simpliciter falling under the definition
of ‘agriculture’ would alone be the relevant factor. Mr. Naphade in his
submissions contended that having regard to the emergence of Act, 1976
on and from 17.02.1976 and by virtue of the Constitutional mandate, the
Act of 1960 ceased to have any effect on any ‘agricultural land’ in the
State of Gujarat. In other words, according to learned senior counsel,
since admittedly the lands belonged to the respondent were lying within
the urban agglomeration specified under the Schedule to the Act, 1976
the application of Act of 1960 ceased to have any effect on the said
land and, therefore, the appellant had no authority to invoke the
provisions of the Act of 1960 for the purpose of acquisition.
19. Learned senior counsel contended that the 1974 Amendment to the Act of
1960 was a ‘still born child’ inasmuch as it came into effect only from
01.04.1976 whereas the Act, 1976 was brought into force on 17.02.1976
itself and was holding the field. The learned counsel stressed the point
that the date of passing of the Act was not the relevant date and what
was relevant was the date of implementation of the Act which legal
principle was well settled as per the decision reported in In the matter
of the Hindu Women’s Rights to Property Act, 1937 - AIR 1941 F.C. 72.
20. While meeting the argument of Shri Soli Sorabjee, the contention of Mr.
Naphade on Article 252 was that having regard to the invocation of the
said Article by the State of Gujarat, there was a virtual surrender of
its power to legislate and thereby it was denuded of bringing out any
legislation afresh or by way of amendment on the subject governed by
this legislation brought out pursuant to invocation of Article 252 of
the Constitution. In that context, learned senior counsel brought to
our notice Section 103 of the 1935 Act which was the comparative
provision to Article 252 of the Constitution and pointed out that under
Section 103 of the 1935 Act while the States could approach the Federal
Government for bringing out a legislation, having regard to the specific
provisions contained in the said Section, the power to deal with such
legislation for any future contingency was retained by the State
Government, while on the contrary the framers of our Constitution even
after a specific point raised in the Constituent Assembly proceedings
for retention of such a power by the State Government, Article 252 (2)
ultimately came to be framed making it clear that once the power of the
legislative competence of the State was surrendered to the Parliament,
thereafter any future legislation on the subject could only be dealt
with by the Parliament and the state was completely denuded of such
power. In support of the said submission, learned senior counsel relied
upon M/s R.M.D.C. (Mysore) Private Ltd. (supra) and State of U.P. Vs.
Nand Kumar Aggarwal and others - (1997) 11 SCC 754.
21. Learned senior counsel after referring to the orders of the Mamlatdar
dated 24.08.1982, the Deputy Collector dated 10.11.1983 and the Gujarat
Revenue Tribunal dated 08.09.1989 as compared to the return filed by the
respondent under Section 6 of the Act, 1976 dated 13.08.1976, the order
of the competent authority dated 25.05.1983 and the order of the
Tribunal under the Act, 1976 dated 18.09.1991 contended that even
according to the appellants themselves as stated in their reply
affidavit no agricultural operation was carried out in survey No.111/2-
30 and thereby virtually admitting the position that the lands in
question can never be held to be ‘agricultural lands’. The learned
counsel contended that the appellants were blowing hot and cold, that
for the purpose of coverage under the Act, 1976 they wanted to contend
that the lands were not agricultural land, while when it came to the
question of coverage under the Act of 1960, they contended that the very
same lands as ‘Bid lands’ would fall within the definition of
‘agriculture’. The learned counsel, therefore, submitted that the
impugned judgment of the High Court was well justified and does not call
for interference.
22. Lastly, it was contended by the learned senior counsel for the
respondent that the case of the appellant is also hit by the principle
of res judicata.
The learned senior counsel by referring to an order
passed by the Deputy Collector, Bhavnagar relating to Bhavnagar ‘Bid
lands’ in his order dated 09.11.1979 specifically held that the Act of
1960 was not applicable to the said lands and that only Act, 1976 would
apply. It was pointed out that when the issue went before the High Court
of Gujarat in Special Civil Application No.941 of 1980 a joint affidavit
of two Deputy Collectors dated 06.10.1980 came to be filed with
reference to Bhavnagar ‘Bid lands’ wherein it was reiterated on behalf
of the Government that only Act, 1976 would apply to ‘Bid land’ in urban
agglomeration of Bhavnagar and that the Act of 1960 was not applicable.
Learned senior counsel also referred to an affidavit dated 16.02.2000
filed by the Deputy Secretary, Revenue Department, Government of Gujarat
in relation to Bhavnagar ‘Bid lands’ before the High Court of Gujarat in
Civil Application No.15529/1999 in S.C.A. No, 10108/1994 wherein a clear
stand was taken by the State Government that possession of Bhavnagar
‘Bid land’ not having been acquired and taken under the Act, 1976 when
the Act was in force, after its repeal, there was no scope to take
possession of those lands.
23. The learned senior counsel also referred to the decision of this Court
in Palitana Sugar Mills (P) Ltd. and another Vs. State of Gujarat and
others - (2004) 12 SCC 645 and contended that in a contempt petition
filed at the instance of a purchaser of Bhavnagar ‘Bid lands’ this Court
after tracing the history of the earlier litigation wherein it was
concluded that Bhavnagar ‘Bid lands’ were controlled by the provisions
of the Act, 1976 and not by the Act of 1960 and consequently the matter
having been finally decided by the Courts and reached its finality the
authorities cannot reopen the same. The learned senior counsel,
therefore, contended that since the decision on the applicability of the
Act of 1960 vis-à-vis the Act, 1976 in relation to ‘Bid lands’ of the
‘Ruler’ of erstwhile Bhavnagar State having been examined and ultimately
concluded that in respect of such lands only the Act, 1976 would apply,
in the case on hand as the lands in question were lying within the
‘urban agglomeration’ area, the said conclusion which reached its
finality in this Court would operate as res judicata. The learned
senior counsel contended that though this contention was raised before
the High Court, the Division Bench after referring to the contention
felt it unnecessary to decide the issue since the stand of the appellant
was rejected on other grounds.
24. While meeting the last of the submission of learned senior counsel for
the respondent, Mr. Soli J. Sorabji contended that the principle of res
judicata can have no application to the case on hand since none of the
earlier proceedings relating to Bhavnagar ‘Bid lands’ had anything to do
with the lands of the respondent with reference to which alone we are
concerned and, therefore, on that score itself the said contention
should be rejected. According to learned senior counsel, the application
of the principle of res judicata, as set out in Section 11 of CPC, was
not fulfilled and, therefore, the said submission made on behalf of the
respondent cannot be considered. The learned senior counsel pointed out
to the specific facts which were referred to in the joint affidavits of
two Deputy Collectors filed in S.C.A. No.941/1980 wherein it was
specifically averred to the effect that since a long time to the
knowledge of the land holder, the land in question were demonstrated or
meant for residential purpose in the master plan which was prepared
since August 1976, that the land in question fell within the definition
of ‘urban land’ under Section 2(o) of the Act, 1976 and, therefore, the
overriding effect of Section 42 of the Act, 1976 excluded the
application of the Act of 1960. The learned senior counsel contended
that in the light of the above peculiar facts relating to Bhavnagar ‘Bid
lands’ which ceased to be a ‘Bid land’ and was classified as residential
plot in the Master Plan at the relevant point of time, the stand of the
authorities as regards the exclusive application of Act, 1976 continued
to be maintained even after the said Act came to be repealed. The
learned senior counsel contended that it will be preposterous if a
decision reached in regard to a case which was governed by its own
special facts to apply the principle of res judicata to a different case
where the fact situations are entirely different and in which case in no
prior proceedings it was admitted by the authorities concerned that Act,
1976 alone would apply to the exclusion of the Act of 1960.
25. Having heard the eloquent submissions of Shri Soli J. Sorabjee, learned
senior counsel for the appellant and the enlightening submissions of
Shri Naphade, learned senior counsel for the respondent,
we find that
while the simple case of the appellant, namely, the State of Gujarat is
that the respondents’ lands being ‘Bid lands’ are agricultural lands and
thereby governed by the provisions of Act of 1960, the whole endeavour
of the respondent was that the lands were never classified as
“agricultural lands”, that they were indisputably “urban lands” governed
by the provisions of the Act, 1976 and consequently the application of
the Act of 1960 stood excluded.
The enlightening submissions of the
respective counsel oblige us to set out various legal principles
highlighted before us in order to appreciate the respective submissions
and thereby arrive at a just conclusion.
26. In the forefront, we want to make a detailed reference to certain
relevant provisions of the Act of 1960 prior to its amendment and after
its amendment, Saurashtra Act No.III of 1952, Saurashtra Act No.XXV of
1951, Saurashtra Act No. XXVI of 1951, Section 103 of The Government of
India Act, 1935 and Article 252 of the Constitution.
The relevant
provisions under the unamended Act of 1960 are Section 2(1), Section
2(3), Section 2(11), Section 2 (12), Section 2(17) and Section 6.
Under
the amended Act of 1960, the relevant provisions are Section 2(1) (a)
(b), (c), Section 2(17) (i) (ii) (a), (b), (c), (d) and Section (27A).
Under Saurashtra Act No.III of 1952, the relevant provisions are Section
2(a), (b), (e), (f), Section 4 and Section 5(1), (2).
Under Saurashtra
Act XXV of 1951, the relevant provision are Sections 2(6), 2 (15) and
2(18). Under the Saurashtra Act No.XXVI of 1951, the relevant provision
is Section 2 (ii).
27. For easy reference, the above provisions are extracted hereunder:
The Gujarat Agricultural Lands Ceiling Act, 1960
Section 2. Definitions- In this Act, unless the context requires
otherwise-
1) “agriculture” includes horticulture, the raising of crops,
grass or garden produce, the use by an agriculturist of the
land held by him or part thereof for grazing but does not
include-
i) the use of any land, whether or not an appenage to
rice or paddy land, for the purpose of rab-mannure;
ii) the cutting of wood, only;
iii) dairy farming;
iv) poultry farming;
v) breeding of live-stock; and
vi) such other pursuits as may be prescribed.
Explanation – If any question arises as to whether any land
or part thereof is used for any of the pursuits specified
in any of the sub-clauses (i) to (vi), such question shall
be decided by the Tribunal;
(3) “agriculturist” means a person who cultivates land
personally”
(11) “to cultivate” with its grammatical variations and
cognate expressions means to till or husband the land for the
purpose of raising or improving agricultural produce, whether by
manual labour or by means of cattle or machinery or to carry on
any agricultural operation thereon;
Explanation- A person who enters into a contract only to cut
grass or to gather the fruits or other produce of trees, on any
land, shall not on that account only, be deemed to cultivate
such land;
(12) “to cultivate personally” means to cultivate land on one’s
own account-
(i) by one’s own labour, or
(ii) by the labour of any member of one’s family, or
(iii) under the personal supervision of oneself or any
member of one’s family by hired labour or by servants on wages
payable in cash or kind but not in crop share;
Explanation- I.-A widow or a minor or a person who is
subject to any physical or mental disability, or a serving
member of the armed forces shall be deemed to cultivate land
personally, if such land is cultivated by her or his servants or
hired labour;
Explanation II.- In the case of a joint family, land shall be
deemed to be cultivated personally, if it is so cultivated by
any member of such family;
(17) “land” means land which is used or capable of being used
for agricultural purposes and includes the sites of farm
buildings appurtenant to such land;
Section 6. Ceiling on holding land – (1) Notwithstanding anything
contained in any law for the time being in force or in any agreement
usage or decree or order of a Court, with effect from the appointed
day no person shall, subject to the provisions of sub-sections (2)
and (3) be entitled to hold whether as owner or tenant or partly as
owner and partly as tenant land in excess of the ceiling area.
(2) Where an individual, who holds land, is a member of a family, not
being a joint family and land is also separately held by such
individual’s spouse or minor children, then the land held by the
individual and the said members of the individual’s family shall be
grouped together for the purposes of this Act and the provisions of
this Act shall apply to the total land so grouped together as if such
land had been held by one person.
(3) Where on the appointed day a person holds exempted land along with
other land then-
(i) if the area of exempted land is equal to or more than the
ceiling area he shall not be entitled to hold other land; and
(ii) if the area of exempted land is less than the ceiling area,
he shall not be entitled to hold other land in excess of the area by
which the exempted land is less than the ceiling area.
(4) Land which under the foregoing provisions of this section a
person is not entitled to hold shall be deemed to be surplus land held
by such person.
The Gujarat Agricultural Lands Ceiling Act 1960 (After the amendment)
2. In this Act, unless the context requires otherwise-
1) “agriculture” includes-
a) horticulture,
b) the raising of crops, grass or garden produce,
c) the use by an agriculturist of the land held by him or part
thereof for grazing
17. “land” means-
i) in relation to any period prior to the specified date, land
which is used or capable of being used for agricultural
purpose and includes the sites of farm buildings
appurtenant to such land;
ii) In relation to any other period, land which is used or
capable of being used for agricultural purposes, and
includes-
a) the sites of farm buildings appurtenant to such
land;
b) the lands on which grass grows naturally;
c) the bid lands held by the Girasdars or Barkhalidars
under the Saurashtra Land Reforms Act, 1951, the
Saurashtra Barkhali Abolition Act, 1951 or the
Saurashtra Estates Acquisition Act, 1952, as the
case may be;
d) such bid lands as are held by a person who, before
the commencement of the Constitution (Twenty-Sixth
Amendment) Act, 1971 was a Ruler of an Indian State
comprised in the Saurashtra area of the State of
Gujarat, as his private property in pursuance of the
covenant entered into by the Ruler of such State:
(27A) “specified date” means the date of coming into force
of the Amending Act of 1972.
Under Saurashtra Act No.III of 1952 the relevant provisions are
Section 2(a), (b), (e), (f), Section 4 and Section 5(1), (2):
“2. In this Act, unless there is anything repugnant to the subject
or context-
(a) “Bid land” means such land as on the 17th April, 1951 was
specifically reserved and was being used by a Girasdar or
Barkhalidar for grazing cattle or for cutting grass:
(b) “cultivable waste” means cultivable land which has remained
uncultivated for a period of three years or more before the 17th
April, 1951
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) “land” means land of any description whatsoever and includes
benefits arising out of land and things attached to the earth,
or permanently fastened to anything attached to the earth.
(f) words and expressions used but not defined, in this Act, and
defined in the Saurashtra Land Reforms Act, 1951 and the
Saurashtra Barkhali Abolition Act, 1951 shall have the meanings
assigned to them in those Acts.
3. xxx xxx xxx
4. When a notification is issued by the Government in respect of an
estate or any part thereof under section 3, then, with effect from the
date specified in the notification, the following consequences shall,
in respect of that estate or part thereof, ensue, namely:-
(a) (i) all public roads, lanes, paths, bridges, ditches,
dikes and fences on, or beside the same, the bed of the sea
and/or harbours, creeks below high water mark, and of rivers
streams, nalas, lakes, public wells and tanks, all bunds and
palas, standing and flowing water and gauchars;
(ii) all cultivable and uncultivable waste lands (excluding land
used for building or other non agricultural purposes),
iii) all bid lands,
iv) all unbuilt village site lands and village site lands
on which dwelling houses of artisans and landless
labourers are situated, and
v) all schools, Dharmashalas, village choras, public
temples and such other public buildings or structures as
may be specified in the notification together with the
sites on which such buildings and structures stand,
Which are comprised in the estates so notified shall, except in so far
as any rights of any person other than the Girasdar or the Barkhalidar
may be established in and over the same, and except as may otherwise
be provided by any law, for the time being in force, vest in, and
shall be deemed to be, with all rights in or over the same or
appertaining thereto, the property of the State of Gujarat and all
rights held by a Girasdar or a Barkahalidar in such property shall be
deemed to have been extinguished and it shall be lawful for the
Collector, subject to the general or special orders of the Collector,
to dispose of them as he deems fit, subject always to the rights of
way and of other rights of the public or of individuals legally
subsisting.
(b) A Girasdar or a Barkhalidar shall, subject to the
provisions of this Act, be deemed to be an occupant in respect of all
other land held by him.
5. (1) Notwithstanding anything contained in section 3, or
section 4 –
(a) no bid land which is also uncultivable waste, wadas and
kodias shall vest in, and be the property of the State of
Gujarat
(b) no bid land comprised in the estate of a Girasdar who is
considered to be of B and C class for the purpose of making
rehabilitation grant under the Saurashtra Land Reforms Act 1951,
or of a Barkhalidar, the total area of agricultural land
comprised in whose estate does not exceed eight hundred acres,
shall vest in and be the property of the State of Gujarat] and
(c) no bid land which is also cultivable waste or no village
site land shall be acquired unless it is in excess of the
requirements of the Girasdar or Barkhalidar in accordance with
the rules to be made in this behalf; and
(d) in the case of Girasdari Majmu villages, one fourth of the
total area of bid land in the village shall not be acquired.
(2) If any bid land or village site, land is not acquired under the
provisions of sub-section (1) and such bid land or village site land
is use by the Girasdar or Barkhalidar for a different purpose, it
shall be liable to be acquired under the provision of section 4.”
Under Saurashtra Act No.XXV of 1951, the relevant provisions are
Sections 2 (6), 2(15) and 2(18). They are as follows:
“2. In this Act, unless there is anything repugnant in the subject
or context:-
(6) “bid land” means such land as has been used by the Girasdar for
grazing his cattle or for cutting grass for the use of his cattle.
(15) “Girasdar” means any talukdar, bhagdar, bhayat, cadet or
mulgirasia and includes any person whom the Government may, by
notification in the Official Gazette, declare to be a Girasdar for the
purposes of this Act.
(18) “land” means any agricultural land, bid land or cultivable
waste”
Under Saurashtra Act No.XXVI of 1951 the relevant provision is
Section 2(ii).
2. In this Act, unless there is anything repugnant to the subject
or context-
(i) xxx xxx xxx
(ii) “bid land” means such land as has been used by Barkhalidar
for grazing his cattle or for cutting grass for the use of
his cattle;”
28. In order to appreciate the contentions raised before us, we wish to
make a specific reference to the Preamble as well as the object of the
Act of 1960. The Preamble shows that the Act was contemplated and was
brought into effect since it was felt expedient in public interest to
make a uniform provision for the whole of the State of Gujarat and in
particular in respect of restrictions upon holding agricultural land in
excess of certain limits. The expediency so noted was for securing the
distribution of agricultural land to subserve the common good for the
purpose of allotment of some lands to persons who are in need of land
for agriculture and also to appreciate for other consequential and
incidental matters. As far as the object of the Act was concerned, it is
stated therein that the said enactment came to be enacted only for the
purpose of fixing the ceiling area and not with any intention directly
to interfere with the rights and liabilities of landlords and tenants.
29. Keeping the above perspective of the law makers in mind, when we
examine Section 2(17) which defines the expression ‘land’ it means the
land which is used or capable of being used for agricultural purposes
including the sites of farm, building appurtenant to such land. Section
6 of the 1960 act imposes restriction in the holding of the land which
has been defined under Section 2(17) of the Act which is in excess of
the ceiling area. The ceiling area has been set out under Section 2(5)
of the Act. The definition of ‘land’ in its cognates and expression is
specific in its tenor and mentions about its usage as well as its
capability of usage for agricultural purposes. The expression
“agriculture” has been defined under section 2(1) of the act which inter
alia includes horticulture, raising of crops, grass or garden produce
and the use by an agriculturist of the land held by him either in full
or part for grazing purposes. The definition of “agriculturist” under
Section 2(3) read along with Section 2(11) and 2(12) which define the
expression ‘to cultivate’ and ‘to cultivate personally’ make the
position clear that it would include a person who indulges in the
avocation of agriculture by way of cultivation of the land either by
himself or through other persons again under the supervision of his own
men.
30. A careful consideration of the above provisions under the Act of 1960
gives a clear idea that lands which are used as well as which are
capable of being used for the purpose of agriculture including lands
used for raising grass or either full or part of it used for grazing
purposes would come within the ambit of the Act, which in turn would be
subject to the restrictions imposed for the purpose of ascertaining the
ceiling limit. Consequently, the excess or surplus land in the holding
of a person who is an agriculturist is to be ascertained in order to
initiate and ultimately acquire such surplus land. Such acquisition as
expressed in the Preamble to the Act would be for the purpose of equal
distribution of land to other landless persons.
31. Keeping the above statutory provisions in mind, when we consider the
respective submissions, the following broad legal principles are
required to be dealt with by us.
i) Whether ‘Bid Land’ would fall within the definition ‘Land'
read along with the definition of ‘Agriculture’ as defined
under Sections 2(17) and 2(1) of the Act of 1960 ?
ii) In order to ascertain the nature of description of ‘Bid Land’
can the definition of the said expression under the earlier
statutes viz. Act No.XXV of 1951, Act No.XXVI of 1951 and Act
No.III of 1952 can be imported ?
iii) What is the implication of the Urban Land Ceiling Act, 1976
vis-à-vis the Act of 1960 in respect of ‘Bid Land’ ?
iv) Whether the Amendment Act of 1974 which came into effect from
01.04.1976 and the definition of ‘Bid Land’ under the said
Amendment Act of 1974 can be applied for the purpose of
deciding the issue involved in this litigation ?
v) Whether the ratio decidendi of this Court in Nagbhai Najbhai
Khackar (supra) can be applied to the facts of this case ?
vi) Whether the orders of the authorities under the Act of 1960
impugned before the High Court were hit by the principles of
Res Judicata ?
vii) What is the effect of the repealing of the Urban Land Ceiling
Act over the Act of 1960 ?
32. Though the definition of ‘land’ and ‘agriculture’ read together would
include a ‘land’ used for raising grass or used for grazing purposes,
the question for our consideration is whether ‘Bid lands’ can be brought
within the scope of the said expression, namely, the definition of
‘land’ read along with the definition of ‘agriculture’ under the Act of
1960 as has been so construed by the authorities constituted under the
provisions of Act of 1960 up to the level of Gujarat Revenue Tribunal.
On behalf of the appellant it was contended that the subsequent
amendment brought out under the 1974 amending Act which came to be
notified on 01.04.1976 was only by way of clarification about ‘Bid
lands’ in consonance with the definition of ‘agriculture’. According to
the respondent even such a clarification sought to be made under the
amending Act 1974 by way of removal of doubts only revealed that as on
the date when Act, 1976 which came into effect from 17.02.1976 ‘Bid
lands’ were not part of agricultural lands as defined under Section 2(1)
read along with 2(17) of the 1960 Act.
33. Mr. Soli Sorabjee, learned senior counsel, to support the submission
made on behalf of the appellant, would draw succor to the definition of
the very same expression ‘Bid land’ under Act No.XXV of 1951 as well as
Act No.XXVI of 1951 and Act No.III of 1952. Under Act XXV of 1951 in
Section 2(6) definition of ‘Bid land’ has been defined to mean such land
raised by Girasdar for grazing his cattle or for cutting grass for the
use of his cattle. Under Section 2(18) of Act No.XXV of 1951, the
definition of ‘land’ under said Act included ‘Bid land’. The purport of
the said enactment was to end Girasdar system and while doing so
regulate the relationship between the Girasdars and their tenants and to
enable the latter to become occupants of the ‘land’ held by them as
tenants and simultaneously to provide for the amount of compensation
payable to Girasdars for the extinguishment of their rights. Whatever
be the purport of the enactment, the definition of ‘land’ as defined
under Section 2(18) and ‘Bid land’ as defined under Section 2(6)
discloses that ‘Bid land’ would be a land which was treated on par with
agricultural land and such land is none other than the land which is
used for grazing by cattle as well as for cutting grass for the use of
cattle.
34. With that when we come to the nature of description of ‘Bid land’ in
the Act No.III of 1952, under Section 2(a) ‘Bid land’ has been defined
to mean such land as on 17.04.1951 specifically reserved for being used
by a Girasdar or Barkhalidar for grazing cattle or for cutting grass.
Under Section 4 the manner of vesting of such of those lands described
therein vested in the State and thereby assuming the character of the
property of the State of Gujarat and consequently all rights held by
Girasdars or Barkhalidars in such property deemed to have been
extinguished. For our limited purpose, it will be sufficient to confine
our consideration to the definition under Section 2 (a) of Act No.III of
1952 which defines ‘Bid land’. As stated earlier ‘Bid land’ is a land
used for grazing by cattle or for cutting grass in the tenure lands held
by Girasdar or Barkhalidar. When we refer to Saurashtra Abolition Act
1951 i.e. Act XXVI of 1951 the definition under section 2 (ii) which
defines ‘Bid land’ to mean such land as has been used by Barkhalidars
for grazing his cattle or for cutting grass for the use of his cattle.
The purport of the said enactment was for improvement of the land
revenue administration and agrarian reforms which necessitated abolition
of Barkhalidars tenure prevailing in certain parts of Saurashtra. Under
Section 6(1) of Act XXVI of 1951, the right of allotment of land under
the said act in favour of Barkhalidar is stipulated. The manner in which
the application for allotment is to be made is also provided therein.
Under sub-section (2) of Section 6 while making an application for
allotment the details to be furnished by Barkhalidar has been set out
wherein under clause (c) (iii) of sub clause (2) of Section 6 it is
stipulated that full particulars of a Barkhalidar’s estate containing
the area of agriculture also, ‘Bid land’ and ‘cultivable waste' in his
estate should be furnished. Apparently in order to fulfill the said
obligation by a Barkhalidar, the definition of ‘Bid land’ has been set
out in Section 2(ii) of Act No.XXVI of 1951.
35. Keeping the above statutory prescription relating to the description of
‘Bid land’ in the above enactments which were all prior to coming into
force of Act, 1976 namely, 17.02.1976 the nature of ‘Bid land’ has been
succinctly described to mean a land which was used for grazing of cattle
or for cutting grass for the use of rearing of cattle. To recapitulate
the definition of ‘agriculture’ under Section 2(1), as well as, the
definition of ‘land’ under Section 2(17) of the unamended Act of 1960,
the expression ‘agriculture’ included inter alia, the land used for
raising of grass, as well as, the land held by the agriculturist for
grazing purpose. When we consider the explanation part of sub section
(1) of Section 2 which contains as many as Clauses (i) to (vi) the lands
used for grazing purposes as well as cutting of grass for rearing of
cattle are not the lands to be excluded from the definition of
‘agriculture’. The definition of ‘land’ under Section 2(17)
categorically mentions that the land which is either used or capable of
being used for agriculture purposes would fall within the said
definition. Therefore reading the above definitions together a ‘land’
where grass is grown or used for grazing purposes fall within the
inclusive provision of the definition of ‘agriculture’. The definition
of ‘Bid land’ in the earlier enactments namely Act Nos.XXV of 1951, XXVI
of 1951 and Act No.III of 1952 make the position clear that the ‘Bid
land’ is nothing but the land used for grazing of cattle and for raising
grass for the purpose of rearing of cattle.
36. Under the amended Act of 1960 the definition of agriculture under
Section 2(1) as it existed prior to the said amendment was maintained.
In addition, some of those excluded categories, namely, the one
mentioned in sub clauses (i), (ii), (iii), (iv) and (v) were also
included as falling within the definition of the expression
‘agriculture’. Further the nature of exclusion as mentioned in sub-
clause (vi) of clause 1 of Section 2, namely, such other pursuits as may
be described was also mentioned by stating that such of those pursuits
which have been prescribed prior to the specified date would continue to
stand excluded for that period which was prior in point of time to the
specified date as mentioned in the Amendment Act which was notified on
01.04.1976. Here and now it is relevant to mention the date which was
specified under the Amendment Act which as per Section 2 (27A) meant the
date of the coming into force of the amended act of 1972, namely,
01.04.1976. Therefore, the conclusion to be drawn would be that while as
from 01.04.1976 the definition of ‘agriculture’ under the amended Act
was wider in scope which included land used whether or not as an
appendage to rice or paddy land for the purpose of rabmanure, dairy
farming, poultry farming, breeding of livestock and the cutting of woods
and such of those lands which were in the excluded category under the
unamended Act cease to have effect of such exclusion on and after
01.04.1976.
37. Having regard to the reference to the specified date, namely, the date
of notification (i.e.) 01.04.1976, the expanded definition of ‘land’
under Section 2(17) was brought to our notice wherein specific reference
to the ‘Bid lands’ held by Girasdars and Barkhalidars under Act Nos.XXV
of 1951, XXVI of 1951 and III of 1952 and also such ‘Bid lands’ held by
a person prior to the commencement of the Constitution 26th Amendment
Act 1971 as a ‘ruler’ of an Indian State comprised in the Saurashtra
Area of State of Gujarat. The endeavour of learned counsel for the
respondent while drawing our attention to the new Section 2(17), in
particular, the reference to ‘Bid lands’ in clause (c) and (d) of
Section 2 (17) (ii) was to stress upon the point that a clear
distinction was drawn as regards the land falling within the said
definition held by a person prior to the specified date and after the
specified date. Under Section 2(17) (i) after the amendment the
provision relating to the definition of ‘land’ was sought to be
distinguished as was existing prior to the specified date while under
Section 2(17)(ii) a wider scope of such definition of ‘land’ was
introduced. Having regard to such distinction shown in respect of a
‘land’ one prior to the specified date and the one in relation to any
other period, learned counsel contended that the specific reference to
‘Bid lands’ held by Girasdar and Barkhalidar under sub clause (c) and
(d) in Section 2 (17) (ii) makes a world of difference, as the scope of
inclusion of the ‘Bid lands’ within the ambit of the expression ‘land’
under Section 2(17) was introduced on and after 01.04.1976 namely the
specified date which was not the position prior to the said date.
38. The submission of leaned counsel was two fold, namely, that the
specific reference to ‘Bid lands’ under Section 2(17) sub clause (ii)
(c) and (d) came to be introduced for the first time on and after
01.04.1976 and hence the said situation requires a different
consideration in the light of the Central enactment namely the Act, 1976
which had already come into force from 17.02.1976 by the State
Legislature surrendering its legislative competence to the Union
Government by invoking Article 252 (1) of the Constitution. The further
submission is that in the light of the field being occupied by the
Central Act, having regard to the restriction contained in Article 252
(2) of the Constitution there could not have been any competence for
State Government to bring about an amendment effective from 01.04.1976
in relation to the Act and the subject with reference to which the State
Government has surrendered its legislative power that bringing any
amendment was exclusively within the competence of the Parliament and
thereby the State amendment had no effect and was void as from its
inception.
39. Before considering the said submission it is necessary to also refer to
the provisions contained in the Act, 1976 for an effective consideration
and to reach a just conclusion. Under the Act, 1976 by virtue of Section
1(2) of the Act, the Act was applied to the whole of the State of
Gujarat. Under Section 2(a) the appointed day was defined to mean in
relation to any State to which the Act applied in the first instance the
date of introduction of the Act, 1976 in the Parliament which was
admittedly 17.02.1976. Under Section 2(n) what is an ‘urban
agglomeration’ has been defined and it is not in dispute that district
Rajkot where the lands in question situate falls within the definition
of urban agglomeration mentioned in Schedule 1 of the Act. Under Section
2(o) ‘Urban Land’ has been defined to mean any land situated within the
limits of an urban agglomeration referred to as such in the Master Plan.
However, it does not include any such ‘land’ which is mainly used for
the purpose of ‘agriculture’. Under Section 2 (q) ‘vacant land’ has been
defined to mean land not being mainly used for the purpose of
agriculture in an urban agglomeration subject to other exclusions
contained in the said sub-clause (q). The expression ‘agriculture’ has
been specifically defined under the Explanation (A) to Section 2(o) by
which it is stated that agriculture would include ‘Horticulture’ but
would not include ‘raising of grass’, ‘dairy farming’, ‘poultry
farming’, ‘breeding of livestock’ and such cultivation or growing of
such plant as may be prescribed. Under Explanation (B) it is mentioned
that lands are not being used mainly for the purpose of ‘agriculture’ if
such land has not entered in the revenue or land records before the
appointed day as for the purpose of ‘agriculture’. Under Explanation (C)
it is further stipulated that notwithstanding anything contained in
Explanation (B) ‘land’ shall not be deemed mainly used for the purpose
of agriculture if the land has been specified in the Master Plan for the
purpose other than agriculture. Section 6 of the Act, 1976 prescribes
the ceiling limit of vacant land which a person can hold in an urban
agglomeration of the Act, 1976. If a person holds vacant land in excess
of the ceiling limit at the commencement of the Act, he should file the
statement before the competent authority of all vacant land to enable
the State Government to acquire such vacant land in excess of ceiling
limit under the Act.
40. In the light of the above provisions contained in the Act, 1976 Mr.
Naphade learned senior counsel contended that Amendment Act of 1974
would be a ‘still born child’ having regard to the existence of the Act,
1976 as from 17.02.1976. The learned counsel also sought to repel the
contention of the appellants that the date of passing of the Act alone
would be relevant and not the date of notification. For that purpose,
learned counsel relied upon In the matter of the Hindu Women’s Rights to
Property Act, 1937 (supra). In the said decision the Federal Court
considered the question referred to by His Excellency the Governor
General under Section 213 of the Constitution Act. The first question
is relevant for our purpose which reads as under:-
“(1) Does either the Hindu Women’s Rights to Property Act, 1937
(Central Act, 18 of 1937) which was passed by the Legislative Assembly
on 4th February, 1937, and by the Council of State on 6th April 1937,
and which received the Governor-General’s assent on 14th April 1937,
or the Hindu Women’s rights to Property (Amendment) Act, 1938 (Central
Act, 11 of 1938) which was passed in all its stages after 1st April
1937, operate to regulate (a)succession to agricultural land? (b)
devolution by survivorship of property other than agricultural land?
(underlining is ours)
41. At page 75 the Federal Court has answered the said question in the
following words:-
“………….It is not to be supposed that a legislative body will waste its
time by discussing a bill which, even if it receives the Governor-
General’s assent, would obviously be beyond the competence of the
Legislature to enact, but if it chooses to do so, that is its own
affair, and the only function of a Court is to pronounce upon the bill
after it has become an Act. In the opinion of this Court, therefore,
it is immaterial that the powers of the Legislature changed during the
passage of the bill from the Legislative Assembly to the Council of
State. The only date with which the Court is concerned is 14th April
1937, the date on which the Governor-General’s assent was given; and
the question whether the Act was or was not within the competence of
the Legislature must be determined with reference to that date and to
none other.”
(underlining is ours)
42. By relying upon the said decision, learned counsel contended that the
date of passing of the Act was irrelevant and what was relevant is the
date when the Act was notified, namely, 01.04.1976. We find force in the
said submission and without diluting much on the said contention we
proceed to consider the other contentions raised on the footing that the
amendment came into effect only from 01.04.1976 i.e. after the coming
into force of the Act, 1976, namely, 17.02.1976. We have kept ourselves
abreast of the various provisions of the unamended Act of 1960, the
definition of ‘Bid land’ under Act XXV of 1951, XXVI of 1951 and III of
1952 and keeping aside whatever amendment sought to be introduced by the
Amendment act of 1974 with effect from 01.04.1976 we proceed to examine
whether the contention of the respondent can be countenanced.
43. In this context, we are also obliged to note the definition of ‘vacant
land’ under the Act, 1976 as defined under Section 2(q) and also the
definition of ‘Urban Land’ under Section 2(o). Since the respondent
strongly relied upon the operation of the Act, 1976 as from 17.02.1976
in order to contend that the Amendment Act of 1974 will be of no
consequence being a still born child after the coming into force of the
Act, 1976 it will be appropriate to examine the said contention in the
first instance.
44. Under the Act, 1976 while defining ‘vacant land’, the said definition
specifically excludes a ‘land’ used for the purpose of ‘agriculture’.
The definition of ‘Urban Land’ again makes the position clear that any
land situated within the urban agglomeration referred to as such in the
Master Plan would exclude any such land which is mainly used for the
purpose of ‘agriculture’. Under the Explanation A to Section 2(o) such
of those lands which are used for ‘raising of grass’ stood excluded from
the use of ‘agriculture’. It is worthwhile to note that the ‘land used
for grazing’ has however not been specifically excluded from the
definition of ‘agriculture’ in the said Explanation ‘A’. The conspectus
consideration of the above provisions leads us to conclude that the
apparent purport and intent, therefore, was to exclude lands used for
agriculture from the purview of Act, 1976 which would enable the holders
of lands of such character used for agriculture to be benefited by
protecting their holdings even if such lands are within the urban
agglomeration limits and thereby depriving the competent authority from
seeking to acquire those lands as excess lands in the hands of the
holder of such lands.
45. That being the position, by the implication of the Act, 1976 in respect
of the land used for agriculture within the urban agglomeration, the
question for consideration is whether such exclusion from acquisition
having regard to the character of the land as used for agriculture would
entitle the owner of such land to contend that such exclusion would
deprive the competent authorities under the 1960 Act to restrict their
powers to be exercised under the said Act and from resorting to
acquisition by applying the provisions contained in the said Act. We are
of the considered opinion that the conspectus consideration of the
various provisions of the Act, 1976 considered again in the light of the
object and purport of the 1960 Act which was intended for equal
distribution of agricultural lands to the landless poor agriculturists,
the application of the said Act will have to be independently made and
can be so applied as it stood prior to the coming into force of the Act,
1976 as from 17.02.1976. At this juncture it will have to be noted and
stated that the subject namely, the ‘land’ being an item falling under
Entry 18 of List II of Schedule VII of the Constitution, by virtue of
the so-called surrender of power of legislation in respect of the said
entry namely ‘land’ by way of Central Legislation namely Act, 1976 to be
enacted by the Parliament pursuant to a State resolution by invoking
Article 252 (1) of the Constitution, there would be every justification
in the submission on behalf of the respondent that any subsequent
legislation by way of Amendment or otherwise with regard to the said
Entry, namely, ‘land’ will be directly hit by the specific embargo
contained in Article 252 (2) of the Constitution.
46. Once we steer clear of the said legal position and proceed to examine
the contention raised, as was highlighted by us in the initial part of
our judgment the concept of ‘Bid land’ was not a new phenomenon to the
1960 Act. The definition of ‘Bid land’ under Section 2 (6) of the
Saurashtra Act, 1951 clearly stated that it would refer to the lands
used for grazing of cattle and for cutting grass for the use of cattle.
The said definition was consistently maintained in the Saurashtra Act
No.XXVI of 1951, as well as, Saurashtra Act No.III of 1952. When we
examine the definition of the expression ‘agriculture’ under Section
2(1) of the 1960 Act uninfluenced by the Amendment Act of 1974, it
specifically define ‘agriculture’ to include the land used for raising
of grass, crops or garden produce, the use by an agriculturist of the
land held by him or part thereof for grazing. Grazing as per the
dictionary meaning “graze land suitable for pasture”. The word “pasture”
means the land covered with grass etc. suitable for grazing animals
especially cattle or sheep or herbage for animals or for animals to
graze. Therefore, the land meant for grazing has got its own intrinsic
link with the cattle for its pasturing. The apparent intention of the
legislature in including the land used for grazing or for raising grass
as per the definition of ‘agriculture’ under the 1960 Act is quite
explicit, inasmuch as, the use of cattle in farming operation was
inseparable at the relevant point of time. Therefore, when the
Legislature thought it fit to include the land for raising grass and
used for grazing as part of definition of ‘agriculture’ there is no need
to seek succour from any other definition which was sought to be
introduced at any later point of time by way of amendment under the
Amendment Act of 1974.
47. While rebutting the submission of the appellant in placing reliance
upon the definition of ‘Bid land’ under the provisions of Saurashtra Act
Nos.XXV of 1951, XXVI of 1951 and III of 1952, Mr. Naphade learned
senior counsel for the respondent contended that the definition of ‘Bid
land’ in these enactments was with particular reference to the land held
and used by Girasdars and Barkhalidars and that there was no reference
to the lands held by any Ruler of an erstwhile State. It was the further
submission of learned senior counsel that those legislations were
specifically dealing with the tenure holdings of Girasdars and
Barkhalidars and that the purport of those legislations were to denude
those large scale tenure holders of the lands held by them with a view
to entrust such lands with the cultivating tenants themselves and,
therefore import of the definition of ‘Bid land’ in those legislations
will not be appropriate while considering the implication of the
provisions contained in the 1960 Act.
48. Though, we appreciate the ingenious submissions put forth before us on
behalf of the respondent, we are not in a position to accept such an
argument for more than one reason. The said submission cannot be
accepted for the simple reason that what we are concerned with is the
definition of ‘Bid land’ de hors the ownership or in whose possession
such land remain or vest on any particular date. In other words, the
character of ‘Bid land’ cannot vary simply because it is in the hands of
Girasdars and Barkhalidars or with any other person including a former
Ruler of a State. The reference to the definition of ‘Bid land’ under
those enactments can be definitely considered in order to find out as to
what is the nature and character of a ‘land’ and not as to who was
holding it.
49. The Saurashtra Act No.XXV of 1951 was introduced for the improvement of
land revenue administration and for ultimately putting an end to the
Girasdari system. The purport of the legislation was to regulate the
relationship of Girasdars and their tenants in order to enable the
latter to become occupants of the lands held by them and to provide for
the payment of compensation to the Girasdars for the extinguishment of
their rights. Again Saurashtra Act No.XXVI of 1951 was brought in to
provide for certain measures for the abolition of Barkhalidar tenure for
Saurashtra and also for the improvement of the land revenue
administration. In other words, the said legislation was for the
improvement of land revenue administration and for agrarian reforms
which necessitated abolition of Barkhalidar tenure prevailing in certain
parts of Saurashtra. In order to ascertain the extent of lands held by
the Girasdars and Barkhalidars the definition of ‘agricultural land’,
‘agriculture’ and ‘Bid Land’ was specified in the respective statutes.
Such definition was required in order to ascertain the extent of lands
held by Girasdars and Barkhalidars. ‘Bid land’ was one type of land
held by such tenure holder by way of grant and it was in that context
the character of ‘Bid Land’ was defined for the purpose of ascertaining
the total extent of land held by each of the Girasdar and Barkhalidar.
Under Section 3 and 4 of Saurashtra Act No. III of 1952 which Act was
introduced to provide for acquisition of certain estates of Girasdars
and Barkhalidars ‘Bid Land’ was defined under Section 2(a) of the Act.
50. Section 3 of the Act empowered the Government to issue notification
from time to time in the Official Gazette and declare that with effect
from such date that may be specified in the notification, all rights,
title and interest of Girasdars or Barkhalidars in respect of any estate
or part of an estate comprised in the notification would cease and vest
in the State of Gujarat. As a sequel to such vesting, all the incidents
of the tenure attached to any land comprised in such estate or part
thereof would be deemed to have been extinguished. What are all the
consequences that would follow pursuant to issuance of notification, has
been set out in Section 4. However, under Section 5(1) which is a non-
obstante clause which makes it clear that notwithstanding anything
contained in Section 3 or Section 4 ‘Bid Land’ were exempted from such
acquisition.
51. It is true that though under the Saurashtra Act XXV of 1951, Saurashtra
Act XXVI of 1951 and Saurashtra Act III of 1952, the purport of the
enactments were to extinguish all rights held by Girasdars and
Barkhalidars as well as the Rulers of the State in the State of Gujarat
in respect of their estates which among other kinds of lands included
‘Bid Land’ also.
52. Here again, it will have to be stated that this Act was also enacted to
provide certain measures for the abolition of the Barkhalidars tenure in
Saurashtra. Therefore, while the submissions of the learned senior
counsel for the respondent that the above enactments were brought into
effect with particular reference to the holding of certain estates by
Girasdars and Barkhalidars as well as erstwhile Rulers of State, such
restricted application of the Act cannot be held to mean that the
definition of ‘Bid land’ should also be read out in a restricted
fashion. As stated by us earlier, the operation of extinguishment of
the rights of such specific persons viz., Girasdars and Barkhalidars as
well as the Rulers does not mean that the definition assigned to ‘Bid
land’ should be restricted in respect of those specific persons alone
and cannot be applied in general for any other purpose. After all, the
attempt of the appellants in relying upon the definition of ‘Bid land’
in those enactments was to understand the nature and use for which the
‘Bid land’ is put to. It cannot be said that merely because those
enactments were brought out for the purpose of extinguishment of the
rights of certain class of persons viz. Girasdars and Barkhalidars, the
definition of ‘Bid land’ contained in those Legislations should under no
circumstances be considered by any other authority functioning under
other enactments. We are convinced that though Saurashtra Act Nos.III
of 1952, XXV of 1951 and XXVI of 1951 pertain to the estates held by
Girasdars and Barkhalidars as well as the Rulers of the erstwhile
Saurashtra State, the definition of ‘Bid land’ contained in those
legislations could however be taken into account for the purpose of
understanding the meaning of ‘Bid land’. Therefore, the arguments of
the learned senior counsel for the respondent in seeking to restrict the
meaning of ‘Bid land’ in the Saurashtra Act Nos.XXV of 1951, Act XXVI of
1951 and Act III of 1952 exclusively to those specified persons viz.,
Girasdars, Barkhalidars and the Rulers cannot be accepted. In other
words once the ‘Bid land’ can be defined to mean such land used for
grazing of cattle or for cutting grass for the use of cattle
irrespective of the nature of possession of such lands with whomsoever
it may be, a ‘Bid land’ would be a ‘Bid land’ for all practical
purposes. It is also to be noted that nothing was brought to our notice
that a ‘Bid land’ is capable of being defined differently or that it was
being used for different purpose by different persons.
53. We shall deal with the object of the Amendment Act 1974, namely, for
removal of doubts a little later. For the present, inasmuch as, we have
to a very large extent accepted the submission of learned counsel for
the respondent that the invocation of the Amendment Act of 1974 cannot
be made having regard to its subsequent emergence, namely, 01.04.1976
i.e. after the coming into force of Act, 1976 as from 17.02.1976, we
confine our consideration to the position that prevailed under the
unamended Act of 1960. After all our endeavour is only to find out
whether the 1960 Act is applicable in respect of the lands held by the
respondent for the purpose of its enforcement or otherwise against the
respondent.
54. One other submission of the learned senior counsel for the respondent
was that the respondent was once a Ruler cannot be held to be an
‘agriculturalist’, inasmuch as, the definition of ‘agriculturist’ under
Section 2(3) means a person who cultivate the land personally. We were
not impressed by the said submission, inasmuch as, the definition of an
‘agriculturist’ is not merely confined to Section 2(3) alone. The said
definition has to be necessarily considered along with the definition
“to cultivate” as defined under Section 2(11), as well as, the
expression “to cultivate personally” as defined under Section 2(12) of
the Act. Those expressions considered together make the position clear
that even a person cultivating the lands by ones own labour or by any
other member of one’s family or under the personal supervision of
oneself or any member of ones’ family by hired labour or by servants on
wages payable in cash or kind would nonetheless fall within the four
corners of the expression “agriculturist”. Therefore, the expression
“agriculturist” used in the definition Clause 2(3) or “agriculture”
under Section 2(1) is wide enough to include the respondent who though
was once a ‘Ruler’ and was not tilling the land by himself would still
fall within the definition of ‘agriculturist’ when such agricultural
operation namely cultivation of land is carried out with the support of
any one of his family members by supervising such operation or by
engaging any labour to carry out such cultivation. We are therefore of
the firm view that the ‘Bid land’, the nomenclature of which was
categorically admitted by the respondent and having regard to its nature
and purpose for which it was put to use would squarely fall within the
definition of ‘agriculture’ as defined under Section 2(1) of the Act of
1960 as it originally stood unaffected by the coming into force of the
Act, 1976 as well as the Amendment of 1974. In the result, its
application to those ‘Bid lands’ held by the respondent cannot be
thwarted.
55. We shall now deal with the question whether the amendment Act of 1974
which was notified as from 01.04.1976 does in any way affect the
application of 1960 Act as it originally stood having regard to the
enforcement of the Amendment Act by drawing a clear distinction as
between the position which was existing prior to the specified date
namely 01.04.1976 and after the said date.
56. According to learned senior counsel for the respondent the definition
of ‘land’ under Section 2(17) after the amendment, namely, after
01.04.1976 seeks to differentiate between the nature of land which would
be governed by the provisions of the 1960 Act i.e. one prior to the
specified date and thereafter. Under sub-clause (i) of Section 2(17) of
the 1960 Act while defining the ‘land’ it is specifically mentioned that
the same would mean “in relation to any period prior to the specified
date, ‘land’ which is used or capable of being used for agricultural
purpose and includes the sites of farm buildings appurtenant to such
“land”. For that purpose when we refer to the definition of
‘agriculture’ under Section 2(1) of the Amended Act a wider definition
was brought in by including in the said definition clauses (d) to (h)
which, inter alia, covered the use of any land, whether or not an
appanage to rice or paddy land for the purpose of rabmanure, dairy
farming, poultry farming, breeding of live-stock, and the cutting of
wood which class of lands were specifically excluded from the definition
of ‘agriculture’ prior to the amendment. The proviso to the said sub-
clause (1) of Section 2 also specifies that such inclusion in the
definition of ‘agriculture’ was not applicable in relation to any period
prior to the specified date, namely, 01.04.1976. That apart, under
Section 2(17)(ii) in regard to the period subsequent to the specified
date, namely, 01.04.1976 the definition of ‘land’ would include the
lands on which grass grown on its own, the ‘Bid land’ held by Girasdars
and Barkhalidars under the Saurashtra Act Nos.XXV of 1951, XXVI of 1951
and III of 1952 as well as such ‘Bid lands’ which were held by a person
who before the commencement of the Constitution was a ‘Ruler’ of an
Indian State comprised in the Saurashtra area of the State of Gujarat.
The contention, therefore, was that but for such inclusion of ‘Bid
lands’ in the amended definition of Section 2(17)(ii) there was no scope
to proceed against such ‘Bid lands’ held by Girasdars and Barkhalidars
as well as the ‘Rulers’ of erstwhile State.
57. In this context learned senior counsel for the respondent placed
reliance upon the decision of this Court in State of Karnataka Vs. Union
of India & another - (1978) 2 SCR 1 and contended that when the language
is clear and unambiguous one need not have to delve into the Objects and
Reasons in order to find out its implication. The said contention was by
way of rebuttal to the submission of learned senior counsel for the
appellants that the Objects and Reasons of the 1974 Act disclose that
the same was brought into effect only with a view to remove certain
doubts as regards ‘Bid lands’ and, therefore, the amendment was not
contemplated to include ‘Bid lands’ for the first time in addition to
the other type of lands described under the unamended Act of 1960.
58. There can be no quarrel about the proposition of law as propounded by
the learned senior counsel for the respondent and as has been stated by
the Constitution Bench of this Court in paragraphs 38 and 39 of Pathumma
(supra). In paragraph 39 this Court did say:
“39.….We are, however, unable to agree with this argument because in
view of the clear and unambiguous provisions of the Act, it is not
necessary for us to delve into the statement of objects and reasons of
the Act…..”
59. We too are not inclined to go by the argument based on the objects and
reasons in relation to a ‘Bid land’. We have considered the definition
of ‘agriculture’ under Section 2(1), the definition of ‘agriculturist’
under Section 2(3) along with the expressions ‘a person who cultivates
land personally’ and the definition of ‘land’ under Section 2(17) of the
unamended Act. Having examined the nature of description of those
expressions contained therein, we are convinced that the legislature
intended and did include ‘lands’ held by ‘agriculturist’ where grass is
raised or used for grazing purposes as part of agricultural land which
was in the possession of agriculturist. Such lands where grass is grown
or used for grazing purpose are always known as ‘Bid land’. Such ‘Bid
land’ was ultimately brought within the definition of ‘land’ under
Section 2(17) of the Act of 1960. Therefore, even by keeping aside the
implication of the wider definition which was introduced by the
Amendment Act of 1974 in regard to ‘Bid lands’ and going by the
definition of ‘agriculture’ and ‘land’ under Section 2(1) and 2(17) of
the Act of 1960, we have no difficulty in taking a definite conclusion
that such definition contained in the Act as it originally stood did
include ‘Bid lands’ which lands were exclusively meant for cutting grass
for cattle or used for grazing purposes. Therefore, there was no
necessity for this Court to draw any further assistance either from the
Objects and Reasons or from the provisions of the Amended Act of 1974 in
order to hold that ‘Bid lands’ were part of agricultural land governed
by the provisions of the Act of 1960.
60. In that respect when reliance was placed upon the recent decision of
this Court in Nagbhai Najbhai Khackar (supra) on behalf of the
appellant, we find that the said decision fully support the stand of the
appellant. Of course, in the said decision the question posed for
consideration was “whether Bid lands were required to be taken into
consideration for the purpose of land ceiling under the 1960 Act as
amended by the Act of 1974 which came into force on 01.04.1976”. This
Court while examining the said question posed for its consideration
however dealt with a specific submission made on behalf of the appellant
herein which has been set out in paragraph 11:
“11. It was further submitted that the lands in question are in fact
“agricultural” lands. They survived acquisition under the earlier
three Acts only because they were “bid lands” which by definition
under those Acts were lands “being used” by Girasdars/Barkhalidars for
grazing cattle. That, under the Ceiling Act, Section 2(1) defines the
use of land for the purposes of grazing cattle as agricultural purpose
and thus, according to the learned counsel, by their very definition
“bid lands” are capable of being used for agricultural purpose,
namely, grazing cattle.”
61. In paragraphs 20 and 21 it has been held as under:
“20. There is one more reason for not accepting the argument of the
appellants. The subject lands survived acquisition under the 1952 Act
only because they were “bid lands” which by definition under those
Acts were treated as lands being used by the girasdars for grazing
cattle (see Section 2(a) of the 1952 Act). Now, under the present
Ceiling Act, Section 2(1) defines the use of land for the purpose of
grazing cattle as an agricultural purpose. Thus, “bid lands” fall
under Section 2(1) of the Ceiling Act. This is one more reason for
coming to the conclusion that the Ceiling Act as amended applies to
“bid lands”. (underline ours)
21. It is also important to note that under Section 5(1) of the 1952
Act all lands saved from acquisition had to be “bid lands” which by
definition under Section 2(a) of the 1952 Act were the lands being
used by a Girasdar or a Barkhalidar for grazing cattle or for cutting
grass. If the lands in question were put to any other use, they were
liable to acquisition under Section 5(2). Because the subject lands
were used for grazing cattle, they got saved under the 1952 Act and,
therefore, it is now not open to the appellants to contend that the
subject lands are not capable of being used for agricultural purpose.”
62. In fact our conclusion on this aspect in the earlier part of our
judgment is in tune with what has been propounded by this Court in the
said paragraph. The learned senior counsel for the respondent contended
that the said decision cannot be applied to the facts of this case. The
submission of the learned counsel was twofold. According to him, the
said decision came to be rendered in the light of the definition of ‘Bid
land’ which came to be introduced for the first time after the coming
into force of the Amendment Act of 1974 and, therefore, whatever decided
in the said decision was exclusively in the context of the Amendment Act
of 1974 which cannot be applied to the case on hand. The second
submission of the learned senior counsel was that in the said decision
the implication of the Act, 1976 was not considered and, therefore,
whatever said in the said decision was applicable only to the facts
involved in that case and can have no universal application. To buttress
the former argument, Mr. Soli J. Sorabjee, the learned counsel for the
appellants contended that though the question posted for consideration
in the said decision was in the context of the definition of ‘Bid land’
as described in the Amendment Act 1974, this Court while holding that
‘Bid land’ would fall within the definition of ‘agricultural land’ under
the Act of 1960 also examined the issue as to what is a ‘Bid land’ under
the 1952 Act independent of the definition of ‘Bid land’ introduced in
the Amendment Act 1974. The learned senior counsel by drawing our
attention to paragraph 20 of the said decision contended that the said
independent consideration of what is a ‘Bid land’ was an added reason to
hold that the said kind of land would also fall within the definition of
‘agricultural land’ as defined in Section 2(1) of the Act of 1960.
63. Having considered the respective submissions, we find force in the
submission of the learned senior counsel for the appellants. A close
reading of paragraph 20 is clear to the pointer that irrespective of the
definition of ‘Bid land’ under the Amendment Act 1974, having regard to
the definition of ‘Bid land’ under Act III of 1952, such land would fall
within the definition of ‘Agricultural Land’ as defined in Section 2(1)
of the Act of 1960. This Court in fact made it very clear in its
perception while stating the said position by holding that it was an
added reason for holding that the Land Ceiling Act, as amended, applied
to ‘Bid land’. One more reason which this Court mentioned was that the
land in question survived acquisition under the 1952 Act only because
they were ‘Bid lands’ which, by virtue of its character was being used
by Girasdars for grazing by cattle and thereby stood excluded from
acquisition. Therefore, when this Court examined the character of the
‘Bid land’ which was used for grazing purpose as one falling within the
definition of ‘agriculture land’ even without the implication of the
Amendment Act of 1974, the reliance placed upon the said decision merits
acceptance. The said submission of the learned senior counsel for the
appellants is supported by the decisions in London Jewellers (supra),
Jacobs (supra), Behrens (supra) and Smt.Somawanti (supra). In the
decision in London Jewellers (supra), it has been held as under:
“……..I cannot help feeling that if we were unhampered by authority
there is much to be said for this proposition which commended itself
to Swift J. and which commended itself to me in Folkes v. King, but
that view is not open to us in view of the decision of the Court of
Appeal in Folkes v King. In that case two reasons were given by all
the members of the Court of Appeal for their decision and we are not
entitled to pick out the first reason as the ratio decidendi and
neglect the second, or to pick out the second reason as the ratio
decidendi and neglect the first; we must take both as forming the
ground of the judgment.”
(Emphasis added)
64. The ratio of the said decision was followed in Jacobs (supra). In the
decision in Behrens (supra), it has been held as under:
“……..This question depends, I think, on the language used by Cozens-
Hardy, M.R. It is well established that, if a judge gives two reasons
for his decision, both are binding. It is not permissible to pick out
one as being supposedly the better reason and ignore the other one;
nor does it matter for this purpose which comes first and which comes
second. The practice of making judicial observations obiter is also
well established. A judge may often give additional reasons for his
decision without wishing to make them part of the ratio decidendi; he
may not be sufficiently convinced of their cogency as to want them to
have the full authority of precedent, and yet may wish to state them
so that those who later may have the duty of investigating the same
point will start with some guidance. This is a matter which the judge
himself is alone capable of deciding and any judge who comes after him
must ascertain which course has been adopted from the language used
and not by consulting his own preference.”
(Emphasis added)
65. The proposition of law has thus been so lucidly expressed in the above
decisions, it will have to be held that the additional reasons adduced
in our decision in Nagbhai Najbhai Khackar (supra) directly covers the
issue raised before us. One more reason, which weighed with this Court
for holding that ‘Bid land” falls within the definition of ‘Agriculture
Land’ as defined under Section 2(1) of the Act of 1960 is binding and
thus there is no scope to exclude the said decision from its
application. Therefore, we reiterate that merely because the question
posed for consideration related to the character of ‘Bid lands’ after
the 1974 amendment what has been held in paragraphs 20 and 21 mutantis
mutandis is in tune with what has now been held by us based on the
definition of ‘agriculture’ as well as ‘land’ under Sections 2(1) and
2(17) of the un-amended Act of 1960 itself.
66. As far as the next submission is concerned, the argument raised was
that the said decision never dealt with the issue which has been
presently raised in this appeal, namely, the implication of the Act,
1976 which came into force on 17.02.1976 while the Amendment Act of 1974
was brought into force subsequently i.e. on and after 01.04.1976 and,
therefore, the said decision can have no application to the facts of
this case. In so far as the said contention is concerned, the same is
liable to be rejected inasmuch as the said decision is for the simple
proposition as to how a land where grass is raised or used for grazing
purposes is to be included under the definition of ‘agriculture’ and
consequently within the definition of ‘land’ as provided under Sections
2(1) and 2(17) of the Act of 1960. Therefore, non-consideration of the
implication of Act, 1976 in the said decision does not in any way deter
us from relying upon the ratio laid down in the said decision to support
our conclusion.
67. The next submission of learned counsel for the respondent related to
the supervening effect of the Act, 1976 in the State of Gujarat on and
after 17.02.1976 which according to learned senior counsel has made the
Act of 1974 a ‘still born child’ and also the submission that after the
coming into force of the Act, 1976 there was no authority in the
respondent to invoke the 1960 Act in order to acquire the lands of the
respondent. As we have refrained from relying upon the Amended Act of
1974 while approving the action of the appellant in seeking to proceed
against the respondent for acquiring the surplus lands of the respondent
under the Act of 1960, we do not find any dire necessity to deal with
the said contention in extenso. The formidable submission raised on
behalf of the respondent related to the supremacy of the Act, 1976 over
the 1960 Act. The learned counsel pointed out that the respondent filed
its return under the provisions of the Act, 1976 on 13.08.1976, that the
said return was considered by the competent authority by passing its
Order dated 21.05.1983 which was thereafter considered by the Tribunal
in its order dated 08.09.1989 and that the appellant/State while dealing
with the respondent and the Act, 1976 themselves have mentioned in the
reply affidavit in paragraph 4.1 that the lands in Survey No.111/2-3
situated in Madhopur village was reserved for site and service project
meaning thereby that they were not agricultural lands. The learned
counsel would, therefore, contend that while on the one hand when it
came to the question of determining the surplus lands under the
provisions of the Act, 1976 the appellant would contend that the lands
held by the respondent were not classified as agricultural land and
thereby not entitled for exclusion under the said Act, when it came to
the question of applicability of 1960 Act they contend that such lands
are to be treated as agricultural lands.
68. We do not find any such contradiction in the stand of the appellant
even in the reply affidavit. At page 5 of the reply affidavit while
referring to the lands in Survey No.111/2-3 of Madhopur village it is
specifically mentioned that those lands are ‘Bid lands’ and are located
within the industrial development industrial area. What was contended
was that admittedly no agricultural operation was being carried out in
respect of Survey No.111/2-3 along with Survey Nos.91/3 and 129. In this
respect it will also be necessary to refer to the stand of the
respondent himself in his appeal filed under Section 33 of the Act,
1976. In paragraphs 9 and 10 the appellant claimed the character of the
land in the following manner:
“9. Land admeasuring 30 acres and 30 Gunthas i.e. 1,24,412 sq. mts.,
of survey No.111/2 of village Madhopur is a vidi land of the Appellant
and that has been brought under the recreational zone of RUDA. That
should not have been included in the holding of the Appellant. Here
also the application under section 20 is pending with the Government
for exemption.
10. Survey No.111/3 of village Madhopur admeasuring 579 acres 27
Gunthas is falling in agricultural zone of RUDA. A certificate has
been produced before the Competent Authority and this should not be
included in the holding of the Appellant. The Competent Authority has
shown Appellant’s flat in Bombay admeasuring 223 sq. mts. From the
records the Bombay flat was shown as 575.06 sq. mts., being built up
property it should not be declared as surplus. Of course the flat is
situated in Bombay it should be calculated as 1725.18 sq. mts.”
(underlining is ours)
69. In paragraph 9 respondent has referred to the land admeasuring 30 acres
and 30 Gunthas i.e. 1,24,412 sq. mts. in survey No.111/2 of village
Madhopur as vidi land which was brought under the recreational zone of
RUDA and, therefore, those lands should not have been included in the
holding of the appellant. As far as the land admeasuring 579 acres 27
Gunthas in the very same village Madhopur in survey No.111/3 is
concerned, it was specifically claimed that those lands fell in the
‘AGRICULTURAL ZONE’ of RUDA and, therefore, it should not have been
brought within the category of excess lands held by the respondent. In
fact, the above submission made on behalf of the appellant far from
supporting the stand of the respondent fully supports the stand of the
appellant. We, therefore, do not find any conflict in the stand of the
appellant while dealing with the nature of land held by the respondent
which was earlier dealt with under the Act of 1960 which came to be
considered by the authorities under the Act, 1976 pursuant to the return
submitted by the respondent on 13.08.1976 under Section 6(1) of the Act,
1976.
70. When we consider the submission of the learned senior counsel for the
respondent pertaining to the implication of the Act, 1976 vis-à-vis Act
of 1960, the submission was again two fold. In the first place, it was
contended that as the entire lands were lying within the urban
agglomeration of the scheduled area viz., Rajkot, the Act, 1976 would
alone govern the subject land and thereby exclude the application of the
Act of 1960. Though in the first blush, the argument appears to be
appealing, on a deeper scrutiny, it will have to be held that the said
submission cannot be accepted. Even according to the respondent, the
subject land having been classified as ‘agricultural land’ stood
excluded from the application of the provisions of the Act, 1976 though
lying within the urban agglomeration area. It was, therefore, axiomatic
that de hors the implication of the provision of the Act, 1976 by virtue
of the character of the Land held by the respondent, the application of
the Act of 1960, as it originally stood prior to 17.2.1976 was
imperative. Such a legal consequence existed. Even accepting the
arguments of the learned senior counsel for the respondent, that being
agricultural land lying within the urban agglomeration, the application
of the Act, 1976 stood excluded, we fail to see as to how there would be
any scope at all for the respondent to contend on that score the
application of the Act of 1960 should also be excluded. Therefore,
taking note of the categorical stand of the respondent himself, having
claimed exclusion of such of those lands which were classified as
‘agricultural land’, which included ‘Bid land’ as well, to be excluded
from the application of the provisions of the Act, 1976 and thereby the
authorities competent under the provisions of such other enactments
which would govern such agricultural lands would be free to exercise
their powers under these enactments. The respondent cannot be heard to
contend that there would be a vacuum in so far as the application of any
Statute over the lands held by the respondent that have been classified
as ‘agricultural land’. Such a proposition, expounded on behalf of the
appellants can never be countenanced. Therefore, the legal position
that would emerge would be that going by the stand of the respondent,
his lands to an extent of 579 acres 27 Gunthas being ‘agricultural land’
if stood excluded from the application of the provisions of the Act,
1976 such lands were already governed by the provisions of the Act of
1960 as it originally stood and applied and there can be no demur to it.
71. On this aspect, the next submission of the learned senior counsel for
the respondent was that since the Act, 1976 having been passed by the
Parliament, at the instance of the appellant State which came into
effect from 17.02.1976, no other law on the said subject viz, ‘land’
would operate in the field. The sum and substance of the submission was
that having regard to the emergence of the Act, 1976 on and from
17.02.1976, the application of the Act of 1960 would automatically cease
to operate. To some extent, we appreciate the submission in so far as it
related to the implementation of the Act of 1974 by which the amendment
was introduced to the Act of 1960. In that respect, we consider the
invocation of Article 252 of the Constitution wherein Sub-clause (2)
specifically stipulated that in future, amendments could be carried out
only by the Parliament and not by the State. Here we are concerned with
the Act of 1960 in its un-amended form which was holding the field
insofar as it related to the agricultural lands. We do find some logic
to accede to the contention of the learned senior counsel in regard to
the application of 1974 Act after the emergence of the Act, 1976 but
same is not the position in relation to the un-amended Act of 1960. In
the first place, such an argument does not find support by the specific
embargo contained in Article 252(2) of the Constitution. Going by the
specific stipulation contained in Article 252 (2) of the Constitution,
such an extended meaning cannot be imported into the said provision in
order to nullify the effect and operation of the un-amended Act of 1960
in so far as it related to ‘agricultural lands’ in the appellant State.
We, therefore, hold that the Act of 1960 in its un-amended form applied
on its own and continue to hold the field and was in operation over the
‘agricultural lands’ over which the implication of the Act, 1976 had no
effect. The said legal position has to be necessarily understood in the
said manner and cannot be stated in any other manner, much less in the
manner contended on behalf of the respondent. Thus the said contention
made on behalf of the respondent, therefore, stands rejected.
72. In support of the said submission, reliance was placed upon a decision
of this Court in Union of India & Ors. Vs. Valluri Basavaiah Chowdhary &
Ors. reported in (1979) 3 SCC 324. Having bestowed our serious
consideration in the reliance placed upon the said decision, we find
that the said decision has no application to the legal issues involved
in the case on hand. That was a case where in regard to the passing of
the Act, 1976 itself, based on the resolution passed by the Andhra
Pradesh Legislative Assembly on 08.04.1972. The challenge was made to
the vires of the Act in the High Court of Andhra Pradesh. The ground
raised was that the Parliament lacked legislative competence. Such lack
of competence was raised on two grounds. In the first place, it was
contended that the Governor of Andhra Pradesh did not participate in the
process of authorization in the passing of the Act by the Parliament and
the second ground was that the resolution of the State Legislature gave
authorization to the imposition of ceiling on the basis of the valuation
of the immovable property i.e. for ceiling on ownership on immovable
property and not on the area of land. It was contended that the
ultimate act in imposing ceiling on the area of the land was not in
conformity with the real intendment of the resolution of the State and
therefore it lacked competence. On the first ground viz., due to the
non participation of the Governor of Andhra Pradesh, the Parliament
lacked competence found favour with the High Court of Andhra Pradesh
which struck down the Act on that ground itself. While dealing with the
said ground, this Court dealt with the scope of Article 252 (1) & (2) of
the Constitution and by relying upon the earlier decision of this Court
in State of Bihar Vs. Sir Kameshwar Singh reported in AIR 1952 SC 252,
ruled that in the passing of the resolution of the State Legislature,
the Governor nowhere comes in the picture.
73. As far as the second contention was concerned, it was held as under in
Valluri Basavaiah Chowdhary (supra) at paragraphs 28, 31 and 32.
“28. We are afraid, the contention cannot be accepted. It is not
disputed that the subject-matter of Entry 18, List II of the Seventh
Schedule, i.e. ‘land’ covers ‘land and building’ and would, therefore,
necessarily include ‘vacant land’. The expression ‘urban immovable
property’ may mean ‘land and buildings’, or ‘buildings’ or ‘land’. It
would take in lands of every description, i.e., agricultural land,
urban land or any other kind and it necessarily includes vacant land.
* * *
31. It is but axiomatic that once the legislatures of two or more
States, by a resolution in terms of Article 252(1), abdicate or
surrender the area, i.e., their power of legislation on a State
subject, the Parliament is competent to make a law relating to the
subject. It would indeed be contrary to the terms of Article 252 (1)
to read the resolution passed by the State legislature subject to any
restriction. The resolution, contemplated under Article 252(1) is not
hedged in with conditions. In making such a law, the Parliament was
not bound to exhaust the whole field of legislation. It could make a
law, like the present Act, with respect to ceiling on vacant land in
an urban agglomeration, as a first step towards the eventual
imposition of ceiling on immovable property of every other
description.
32. There is no need to dilate on the question any further in this
judgment, as it can be better dealt with separately. It is sufficient
for purposes of these appeals to say that when Parliament was invested
with the power to legislate on the subject, i.e. ‘ceiling on immovable
property’, it was competent for the Parliament to enact the impugned
Act i.e., a law relating to ‘ceiling on urban land’.”
74. Whatever stated in Paragraph 28 can only be understood to mean that
when the State Legislature authorizes the Parliament to pass a
legislation in respect of the subject matter of Entry 18, List II of the
Seventh Schedule, i.e. ‘land’ it would cover ‘land and building’ and
would necessarily include ‘vacant land’ and would take in land of every
description including ‘agriculture land’ or any other kind of land. It
also went on to hold that the resolution passed by the State Legislature
cannot be said to impose any restriction as it would be contrary to the
terms of Article 252 (1) of the Constitution. It was further held that
the Parliament was empowered to enact the law pursuant to the surrender
of the State to enact a law with said subject by formulating its own
prescription as to the nature of urban land in different stages. Beyond
that, we do not find any other statement of law propounded in the said
decision. Applying the said legal principle, it can only be held that
the Act, 1976 in having imposed a restriction by way of ceiling on urban
land within the urban agglomeration by excluding agricultural land it
was a valid piece of legislation. In this respect, the contention of Mr.
Soli J. Sorabji that the State Legislature only intended in its
authorization to bring about a legislation only on ‘urban immovable
land’ and not on any agriculture land is quite appealing. We can also
state that in paragraph 32 of the said decision, this Court consciously
decided not to dilate on the question any further in that judgment as it
can be better dealt with separately at a later point of time. We now
hold that the situation has now come where the position has to be made
loud and clear to state that the Act, 1976 would govern only such of
those lands which would fall within its area of operation within urban
agglomeration to the specific exclusion of the agriculture lands and
consequently the continued application of the un-amended Act of 1960
remain without any restriction.
75. On the other hand Mr. Soli J. Sorabjee, the learned senior counsel for
the appellants placed reliance upon a Constitutional Bench decision of
this Court in Thumati Venkaiah (supra). Almost an identical situation
was dealt with by this Court in the said decision. That case also arose
from the State of Andhra Pradesh. To briefly refer to the facts, in the
State of Andhra Pradesh a ceiling of agricultural holdings was sought to
be imposed by enacting an Act called The Andhra Pradesh Land Reforms
(Ceiling on Agricultural Holdings) Act (Act 1 of 1973 (hereinafter
referred to as the ‘Andhra Pradesh Act’). It was enacted by the Andhra
Pradesh Legislature on 01.01.1973. The Act was challenged before the
High Court of Andhra Pradesh. However a Full Bench of the High Court
negatived the challenge by its judgment dated 11.04.1973. The Act was
however brought into force on and from 01.01.1975. The amendments were
brought to the said Act by Amendment Act of 1977 with retrospective
effect from 01.01.1975. After the amendments, again the Act was
challenged on the main ground that by reason of enactment of the Act,
1976, the Andhra Pradesh Act has become void and inactive. It can be
validly mentioned that the subsequent contention of the respondent
herein was the focal point in the said decision. Dealing with the said
contention, the Constitutional Bench has held as under in paragraph 5:
“5. Now, as we have already pointed out above, the Andhra Pradesh
Legislature had, at the time when the Andhra Pradesh Act was enacted,
no power to legislate with respect to ceiling on urban immovable
property. That power stood transferred to Parliament and as a first
step towards the eventual imposition of ceiling on immovable property
of every other description, Parliament enacted the Central Act with a
view to imposing ceiling on vacant land, other than land mainly used
for the purpose of agriculture, in an urban agglomeration. The
argument of the landholders was that the Andhra Pradesh Act sought to
impose ceiling on land in the whole of Andhra Pradesh including land
situate in urban agglomerations and since the concept of urban
agglomeration defined in Section 2(n) of the Central Act was an
expansive concept and any area with an existing or future population
of more than one lakh could be notified to be an urban agglomeration,
the whole of the Andhra Pradesh Act was ultra vires and void as being
outside the legislative competence of the Andhra Pradesh Legislature.
This argument, plausible though it may seem, is in our opinion,
unsustainable. It is no doubt true that if the Andhra Pradesh Act
seeks to impose ceiling on land falling within an urban agglomeration,
it would be outside the area of its legislative competence, since it
cannot provide for imposition of ceiling on urban immovable property.
But the only urban agglomerations in the State of Andhra Pradesh
recognized in the Central Act were those referred to in Section
2(n)(A)(i) and there can be no doubt that, so far as these urban
agglomerations are concerned, it was not within the legislative
competence of the Andhra Pradesh Legislature to provide for imposition
of ceiling on land situate within these urban agglomerations. It is,
however, difficult to see how the Andhra Pradesh Act could be said to
be outside the legislative competence of the Andhra Pradesh
Legislature insofar as land situate in the other areas of the State of
Andhra Pradesh is concerned. We agree that any other area in the State
of Andhra Pradesh with a population of more than one lakh could be
notified as an urban agglomeration under Section 2(n)(A)(ii) of the
Central Act, but until it is so notified it would not be an urban
agglomeration and the Andhra Pradesh Legislature would have
legislative competence to provide for imposition of ceiling on land
situate within such area. No sooner such area is notified to be an
urban agglomeration, the Central Act would apply in relation to land
situate within such area, but until that happens, the Andhra Pradesh
Act would continue to be applicable to determine the ceiling on
holding of land in such area. It may be noted that the Andhra Pradesh
Act came into force on January 1, 1975 and it was with reference to
this date that the surplus holding of land in excess of the ceiling
area was required to be determined and if there was any surplus, it
was to be surrendered to the State Government. It is therefore clear
that in an area other than that comprised in the urban agglomerations
referred to in Section 2(n)(A)(i), land held by a person in excess of
the ceiling area would be liable to be determined as on January 1,
1975 under the Andhra Pradesh Act and only land within the ceiling
area would be allowed to remain with him. It is only in respect of
land remaining with a person, whether an individual or a family unit,
after the operation of the Andhra Pradesh Act, that the Central Act
would apply, if and when the area in question is notified to be an
urban agglomeration under Section 2(n)(a)(ii) of the Central Act. We
fail to see how it can at all be contended that merely because an area
may possibly in the future be notified as an urban agglomeration under
Section 2(n)(A)(ii) of the Central Act, the Andhra Pradesh Legislature
would cease to have competence to legislate with respect to ceiling on
land situate in such area, even though it was not an urban
agglomeration at the date of enactment of the Andhra Pradesh Act.
Undoubtedly, when an area is notified as an urban agglomeration under
Section 2(n)(A)(ii), the Central Act would apply to land situate in
such area and the Andhra Pradesh Act would cease to have application,
but by that time the Andhra Pradesh Act would have already operated to
determine the ceiling on holding of land falling within the definition
in Section 3(j) and situate within such area. It is, therefore, not
possible to uphold the contention of the landholders that the Andhra
Pradesh Act is ultra vires and void as being outside the legislative
competence of the Andhra Pradesh Legislature.”
(Emphasis added)
76. In the first blush, it appears as though the said decision support the
contention of the respondent. But in paragraph 5, we have highlighted
certain relevant conclusions which fully support the stand of the
appellants. This Court made it clear thereunder that the Parliament
enacted the Central Act with a view to impose ceiling on vacant land
other than the land mainly used for the purpose of agriculture in an
urban agglomeration. The arguments of the land holders that the concept
of urban agglomeration defined in Section 2(n) was an expansive concept
and any area which was already notified as urban agglomeration, as well
as, which can be notified in future based on the increase in population
as urban agglomeration and, therefore, the Andhra Pradesh Act was ultra
vires lacking legislative competence was held to be unsustainable. It
was also held that the Andhra Pradesh Act seeks to impose ceiling on
land falling within the urban agglomeration, it would be outside the
area of its legislative competence as it cannot provide for imposition
of ceiling on urban immovable property after the emergence of Act, 1976.
It was thus made clear that after the coming into force of the Act, 1976
by virtue of Article 252 (1) and (2) of the Constitution, there would
have been no scope for the State Legislature to bring about a
legislation for imposing a ceiling on an urban immovable property which
falls within the urban agglomeration. It was also made clear that other
areas which were not declared as urban agglomeration came to be
subsequently declared as urban agglomeration and notified as such, the
Central Act would automatically apply and in relation to such notified
area also, the State Legislature would be incompetent to make any
legislation by way of imposition of ceiling on and after such
declaration is made. While referring to such a situation, this Court
made it clear that the Andhra Pradesh Act continue to be applicable for
determining the ceiling of holding of lands in such area, prior to any
such subsequent notification under the Act, 1976. It was further made
clear that since the Andhra Pradesh Act came into force on and from
01.01.1975, the surplus holding of land in excess of the ceiling area
were required to be determined with reference to that date and if there
was any surplus, it was to be surrendered to the State Government. It
was further reinforced by stating that in an area other than that
comprised in the urban agglomeration, the land held by a person in
excess of the ceiling area would be liable to be determined as on
01.01.1975 under the Andhra Pradesh Act and the land within the ceiling
area alone would be allowed to remain with him.
77. The crucial words in the said paragraph can be mentioned again in order
to appreciate and understand the legal position noted. They are:
“It may be noted that the Andhra Pradesh Act came into force on
January 1, 1975 and it was with reference to this date that the
surplus holding of land in excess of the ceiling area was required to
be determined and if there was any surplus, it was required to be
determined and if there was any surplus, it was to be surrendered to
the State Government. It is, therefore, clear that in an area other
than that comprised with Urban Agglomeration referred to in Section
2(n)(A) (i), land held by a person in excess of the ceiling area would
be liable to be determined as on January 1, 1975 under the Andhra
Pradesh Act and only Land within the ceiling area would be allowed to
remain with him. It is only in respect of Land remaining with a
person, whether an individual or a family unit, after the operation of
the Andhra Pradesh Act, that the Central Act would apply….”
“Undoubtedly, when an area is notified as an urban agglomeration under
Section 2(n)(A)(ii), the Central Act would apply to land situate in
such area and the Andhra Pradesh Act would cease to have application,
but by that time the Andhra Pradesh Act would have already operated to
determine the ceiling on holding of land falling within the definition
in Section 3(j) and situate within such area. It is therefore not
possible to uphold the contention of the landholders that the Andhra
Pradesh Act is ultra vires and void as being outside the legislative
competence of the Andhra Pradesh Legislature.”
(Emphasis added)
A close and careful reading of the said statement of law declared by
this Court makes it clear that if as on the date when the Andhra Pradesh
Act was already in force i.e. as on 01.01.1975, the determination of
surplus land as per the provisions of the said Act should have been
determined and only thereafter the implication of the Act, 1976 could be
applied. The specific statements “It is only in respect of land remaining
with a person, whether an individual or a family unit, after the operation
of the Andhra Pradesh Act, that the Central Act would apply…..” “…..but by
that time the Andhra Pradesh Act would have already operated to determine
the ceiling on holding of land falling within the definition in Section
3(j) and situate within such area…..” makes the above position clear
without any ambiguity.
78. Afortiori if the said ratio decided by the Constitution Bench of this
Court is applied, there would be no difficulty in holding that as held
by us earlier, since as per the un-amended Act of 1960, ‘Bid land’ held
by the respondent fell within the definition of ‘agriculture’ under
Section 2(1) and consequent definition of ‘land’ as defined in Section
2(17) of the Act of 1960, the determination of holding of such excess
agriculture land under the said Act of 1960 prior to the coming into
force of the Act, 1976 should be operated upon. Having regard to the
said legal position, we hold that the action of the appellants in having
passed the orders impugned before the High Court were fully justified
and interfering with the same by the learned Single Judge and the
Division Bench of the High Court by the impugned order in this Civil
Appeal are liable to be set aside.
79. The impugned judgment of the Division Bench of the High Court proceeded
mainly on the footing that the Amended Act of 1974 cannot form the basis
for proceeding against the respondent for the purpose of acquisition
under the 1960 Act in the light of the field being occupied by the Act,
1976 which came into force prior to the coming into force of the 1974
Act, namely, on 17.02.1976 and the Amendment Act of 1974 which came to
be notified only on 01.04.1976. The said conclusion was based on the
implication of Article 252(2) of the Constitution wherein once at the
instance of the State Government even in relation to any entry in List
II an enactment came to be made by the Parliament, any subsequent
amendment relating to the said subject can only be made by the
Parliament and not by the State. The Division Bench referred to the
claim of the appellant that even by ignoring the Amendment Act 1974
which came into effect from 01.04.1976 having regard to the existence of
the Act, 1976 as from 17.02.1976, the ceiling with regard to the
agricultural land has to be determined as it was existing prior to
17.02.1976, namely, as agricultural land and the same being not part of
urban agglomeration the 1960 Act would apply. We find that the said
argument was simply brushed aside. The submission was not dealt with in
the proper perspective.
80. It was lastly contended by the learned senior counsel for the
respondent that the case of the appellants was hit by the principle of
res judicata. In support of the said submission, reliance was placed
upon the joint affidavit filed by two Deputy Collector dated 06.10.1980,
filed in a different case viz., in Special Civil Application No.941 of
1980 before the High Court of Gujarat where on behalf of the State of
Gujarat, it was contended that in respect of ‘Bid land’ only Act, 1976
would apply where such ‘Bid land’ lie within the agglomeration of
Bhavnagar and that Act of 1960 was not applicable. Reliance was also
placed upon another affidavit dated 16.02.2000, filed by the Deputy
Secretary, Revenue Department, Government of Gujarat in relation to
Bhavnagar ‘Bid lands’ before the High Court of Gujarat in S.C.A.No.15529
of 1999, wherein a stand was taken by the State Government that
possession of Bhavnagar ‘Bid land’ not having been acquired and taken
under the Act, 1976 prior to its repeal, there was no scope to take
possession of those lands. Reliance was placed upon the decision of
this Court in Palitana Sugar Mills (P) Ltd. and another Vs. State of
Gujarat and others (supra)wherein, it was concluded by this Court that
Bhavnagar ‘Bid lands’ were controlled by the provisions of Act, 1976 and
not by the Act of 1960. By referring to those affidavits and the
decision of this Court, the contention was that the stand taken by the
appellant in regard to the Bhavnagar ‘Bid lands’ would apply in all
force to the ‘Bid lands’ belonging to the respondent though they were
situated in Rajkot.
81. In reply to the said submission Mr. Soli J. Sorabjee, learned senior
counsel for the appellants contended that the principle of res judicata
cannot be applied as the parties were different and the subject lands
were different and the respondent had nothing to do with the issue
raised in the decision relied upon by the learned senior counsel for the
respondent. It was also submitted that since the ingredients to support
the principle of res judicata as set out under Section 11 of the Code of
Civil Procedure not having been fulfilled, the submission of the learned
senior counsel for the respondent cannot be considered. The learned
senior counsel for the appellants brought to our notice the facts set
out in the joint affidavits of the two Deputy Collectors in S.C.A.
No.941 of 1980, wherein it was specifically averred to the effect that
since long time, to the knowledge of the land holders, the land in
question was demonstrated as meant for residential purpose in the Master
Plan which was prepared since August, 1976 and that the land in question
fell within the definition of ‘urban land’ under Section 2(o) of the
Act, 1976 and therefore the overriding effect of Section 42 of the Act,
1976 excluded the application of the Act of 1960.
82. When we refer to the facts mentioned in the joint affidavit of the two
Deputy Collector in S.C.A.No.941 of 1980, we find that the submissions
of the learned senior counsel for the appellants were clearly set out
therein. The lands which were originally classified as ‘Bid lands’ came
to be specifically classified as land meant for residential purpose in
the Master Plan prepared in the year August, 1976 and thereby came
within the definition of ‘urban land’ under Section 2(o) of the Act,
1976. Whatever decision rendered based on those facts cannot be equated
to the facts involved in the case on hand, in order to apply the
principle of res judicata and thereby non-suit the appellants. The
principle of res judicata is governed by Section 11 of the Code of Civil
Procedure. Applying the ingredients set out in the said provision, the
respondent is bound to show that the issue which was directly and
substantially involved between the same parties in the former suit and
was tried in the subsequent suit, in order to fall within the principles
of res judicata. Applying the substantive part of Section 11 of C.P.C.
we fail to see how any of the ingredients set out therein are fulfilled
in order to apply the principle of res judicata. The parties are
entirely different, the fact in issue as pointed out by the learned
senior counsel for the appellants would disclose that they were based on
entirely different set of facts and circumstances and therefore we do
not find any substance in the said submission raised on behalf of the
respondent. The said submission, therefore, stands rejected.
83. When we come to the submission relating to the concept of eclipse in
relation to the Act of 1960, as it originally stood as well as after the
Amendment Act of 1974 by virtue of the coming into force of the Act,
1976 w.e.f. 17.02.1976, we wish to only touch upon the position that
occurred due to the subsequent repeal of the Act, 1976 in the year 2000.
We are conscious of the fact that we are not solely concerned with the
said issue of eclipse of the Act of 1960 and its revival after the
repeal of the Act, 1976. However, since the said issue was argued by the
respective counsel and reliance was placed upon a Constitution Bench
decision of this Court on this issue in M.P.V. Sundararamier (supra) we
are obliged to deal with the said submission. In the said decision among
other contentions a contention was raised on behalf of the petitioner
therein which was as under:
“Section 22 having been unconstitutional when it was enacted and,
therefore, void, no proceedings could be taken thereunder on the basis
of the Validation Act as the effect of unconstitutionality of the law
was to efface it out of the statute book.”
Dealing with the said contention, the Constitution Bench has held at
page 1469 and 1474-75 as under:
“…..If a law is on a field not within the domain of the legislature,
it is absolutely null and void, and a subsequent cession of that field
to the legislature will not have the effect of breathing life into
what was a still-born piece of legislation and a fresh legislation on
the subject would be requisite. But if the law is in respect of a
matter assigned to the legislature but its provisions disregard
constitutional prohibitions, though the law would be unenforceable by
reason of those prohibitions, when once they are removed, the law will
become effective without re-enactment.
The result of the authorities may thus be summed up: Where an
enactment is unconstitutional in part but valid as to the rest,
assuming of course that the two portions are severable, it cannot be
held to have been wiped out of the statute book as it admittedly must
remain there for the purpose of enforcement of the valid portion
thereof, and being on the statute book, even that portion which is
unenforceable on the ground that it is unconstitutional will operate
proprio vigore when the Constitutional bar is removed, and there is no
need for a fresh legislation to give effect thereto. On this view, the
contention of the petitioners with reference to the Explanation in
s.22 of the Madras Act must fail….”
(emphasis added)
In the light of the said proposition of law laid down by the
Constitution Bench decision of this Court, it will have to be held that
once the Act, 1976 came to be repealed whatever constitutional embargo that
was existing as against the Act of 1960 as well as the Amendment Act of
1974 ceased to exist and the Act would operate in full force. In the light
of the said settled legal position, we need not dilate much on this issue
and we leave it at that.
84. Having regard to our above conclusions, the judgment impugned in this
appeal is liable to be set aside. The appeal, therefore, stands allowed.
The order of the learned Single Judge as well as the impugned judgment
of the Division Bench are set aside. The judgment dated 08.09.1989
passed by the Gujarat Revenue Tribunal in Revision Application
No.TEN.B.R.4/84 confirming the orders of the Deputy Collector and
Mamlatdar and A.L.T in so far as Bid lands in survey No.111/2
admeasuring 30 acres 30 Gunthas and survey No.111/3 admeasuring 579
acres 27 Gunthas stands restored. In the facts and circumstances of the
case where we have dealt with pure questions of law there will be no
order as to costs.
………………………….J .
[Dr. B.S. Chauhan]
……….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
December 04, 2012
