IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No. 1106 of 2011
In
SPECIAL CIVIL APPLICATION No, 7312 of 2011
WITH
LETTERS PATENT APPEAL No. 1107 of 2011
In
SPECIAL CIVIL APPLICATION No. 7317 of 2011
WITH
LETTERS PATENT APPEAL No. 1108 of 2011
In
SPECIAL CIVIL APPLICATION No. 7316 of 2011
WITH
LETTERS PATENT APPEAL No. 1109 of 2011
In
SPECIAL CIVIL APPLICATION No. 7311 of 2011
WITH
LETTERS PATENT APPEAL No. 1110 of 2011
In
SPECIAL CIVIL APPLICATION No. 7315 of 2011
WITH
LETTERS PATENT APPEAL No, 1111 of 2011
In
SPECIAL CIVIL APPLICATION No. 7313 of 2011
With
LETTERS PATENT APPEAL No. 1116 of 2011
In
SPECIAL CIVIL APPLICATION No, 7314 of 2011
With
LETTERS PATENT APPEAL No. 2653 of 2010
In
SPECIAL CIVIL APPLICATION No. 1932 of 2008
With
LETTERS PATENT APPEAL No. 2782 of 2010
In
SPECIAL CIVIL APPLICATION No. 2087 of 2010
WITH
SPECIAL CIVIL APPLICATION No. 4599 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5857 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5858 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5859 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5860 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5861 of 2012WITH
SPECIAL CIVIL APPLICATION No. 5862 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5863 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5864 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5865 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5866 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5867 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5868 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5869 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5870 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5871 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5872 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5873 of 2012
With
SPECIAL CIVIL APPLICATION No. 5875 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5876 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5878 of 2012
WITH
SPECIAL CIVIL APPLICATION No. 5879 of 2012
For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR. BHASKAR
BHATTACHARYA AND
HONOURABLE MR.JUSTICE A.L.DAVE AND
HONOURABLE MR.JUSTICE V. M. SAHAI
“THISINGH MUKANDSINGH SHIKH & ORS.
Versus
STATE OF GUJARAT & OTHERS.Appearance :
LPA No. 1106/11 TO 1111/11 & 1116/11 —-MR JV JAPEE for
appellants.
LPA No. 2240/10 MR MIHIR THAKORE, SR. COUNSEL with
MR. KB PUJARA for appellants.
LPA No. 2653 of 2010 - MR PM BHATT for appellants.
LPA No. 2782 of 2010 - MR RAJESH K SHAH for appellants.
SCA No. 4599/12, 5857/12 to 5873/12, 5875/12, 5876/12,
5878/12, 5879/12 - MR YN OZA, SR. COUNSEL with MR SP
MAJMUDAR with MR VIMAL A PUROHIT for Petitioners.
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR P.K.
JANI, GOVERNMENT PLEADER with MS SANGITA VISHEN,
ASST. GOVERNMENT PLEADER for Respondents.
HONOURABLE THE ACTING CHIE]
Col MR.BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE A.L.DAVE
and
HONOURABLE MR.JUSTICE V. M. SAHAL
Date : 22/06/2012
COMMON C.A.V. ORDER
(Per : HONOURABLE THE ACTING CHIEF JUSTICE
MR.BHASKAR BHATTACHARYA)
1. While admitting Letters Patent Appeals being LPA No.
1106/2011, 1107/2011, 1111/2011 and 1116 of 2011
preferred by unsuccessful petitioners of four different Special
Civil Applications, a Division Bench of this Court presided over
by the then the Chief Justice directed that in view of the
importance of the issue involved therein, the matters should beheard by a larger Bench. Consequently, this Bench was
constituted for hearing all those four LPAs.
1.1 Subsequently, after taking into consideration the fact that
various Special Civil Applications were pending before the
learned Single Judge involving the selfsame point, we decided to
give opportunity of making submissions to the learned counsel
for the petitioners in those Special Civil Applications at the time
of hearing of the above four appeals.
2.2 The subject matter of the four LPAs indicated above is the
decision of the District Collector, Kutch who issued instructions
to the concerned Mamlatdar to freeze the ‘khedut
khatas’ [agricultural accounts] of the appellants until further
instructions on the ground that the appellants are agriculturists
belonging to other States and, therefore, they are illegally
holding agricultural land within the State of Gujarat. Such
instructions had been issued to various agriculturists including
the appellants. In the writ-applications, the appellants had also
challenged circular No. TNC/1073/58184/J of the Revenue
Department of the Government of Gujarat dated 4!» April 1973
wherein it was indicated that any sale of land made to any non-
agriculturists in Gujarat on the strength of his status as
agriculturist in any other State outside Gujarat would attract
the provisions contained in section 63 of the Bombay Tenancy &
Agricultural Lands Act, 1948 and section 54 of the Saurashtra
‘Tenancy and Garkhed Settlement Ordinance and section 89 of
the Bombay Tenancy and Agricultural Land [Vidarba Region
and Kutch Area) Act, 1958 [hereinafter referred to as the Act] onthe strength of certificates about their status as agriculturists in
other states.
3. Learned Single Judge before whom the writ-applications were
moved dismissed those w
applications.
4. Being dissatisfied, the appellants preferred the aforesaid four
LPAs and as indicated above, the Division Bench, being prima
facie satisfied that the interpretation so made by the State
Government was not correct, and apart from that if it is held
that an agriculturist of another State having no land in the
State of Gujarat cannot purchase land in this State, in that
case, the question would arise as to the violation of the
provisions contained in part III of the Constitution of India,
ordered to place the matters before a larger Bench.
5. Therefore, the only question that arises for determination in
these matters is whether a person who does not own
agricultural land within the State of Gujarat can be treated to
be a non-agriculturist within the meaning of the Act simply
because he does not cultivate any agricultural land within the
State of Gujarat and on that ground, the purchase of any
agricultural land by such a person will be hit by the provisions
contained in section 89 of the Act.
6. In order to appreciate the aforesaid question, it will be
profitable to refer to section 2(3), 12(12}, 4 and section 89 of the
Act, which are quoted below:
2. Definitions.(3) “agriculturist” means a person who cultivates land
personally;
(12) “to cultivate personally” means to cultivate 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 of any
member of one’s family by hired labour or by servants on
wages payable in cash or kind but not in crop share.
4, Determination of family holding. -
(1) The State Government shall determine for all or any
class of land in each local area the area of a family
holding on the following basis in the prescribed manner :-
(a) The extent of land which a family of five persons
including the agriculturist himself would normally
cultivate under the existing conditions of agricultural
technique and practice with the aid of a pair of
bullocks shail first be determined for all or any class
of land in each local area.
(b) The extent of land so determined may be varied having
regard to the following factors :-
(i) the situation of land;
(ii) its productive capacity;
(iii) the soil and climate characteristics;
(iv) the fact that the land is located in the scheduled
are
(v) such minimum limit of net annual income from the
land as may be prescribed;(vi) any other factors which may be prescribed.
(c) The area so determined shall be the family holding.
(2) The area of a family holding determined under sub-
section (1) shall be notified in the Official Gazette.
89, Transfers to non-agriculturists barred.-
(1) Save as provided in this Act, -
(a) no sale (including sales in execution of a decree of a
Civil Court or for recovery of arrears of land revenue
or for sums recoverable as arrears of land revenue),
gift, exchange or lease of any land or interest therein,
or
(b) no mortgage of any land or interest therein, in which the
possession of the mortgaged property is delivered to
the mortgagee, (or)
(c) no agreement made by an instrument in writing for the
sale, gift, exchange, lease or mortgage or any land or
interest therein.
shall be valid in favour of a person who is not an
agricutturist or who being an agriculturist cultivates
personally land not less than three family holdings
whether as owner or tenant or partly as owner or partly as
tenant or who is not an agricultural labourer.
Provided that the Collector or an officer authorised by the
State Government in this behalf may grant permission for
such sale, gift, exchange, lease or mortgage, or for such
agreement in such circumstances as may be prescribed;
Provided further that no such permission shall be granted,
where land is being sold to a person who is not an
agricutturist for agricultural purpose, if the annual incomeof such person from other source exceeds five thousand
rupees.
(2) Nothing in this section shall be deemed to prohibit the
sale, gift, exchange or lease or the agreement for the sale,
gift, exchange or lease, of a dwelling house or the site
thereof or any land appurtenant to it in favour of an
agricultural labourer or an artisan.
(3) Nothing in this section shall apply to a mortgage of any
land or interest therein effected in favour of a co-operative
society as security for the loan advanced by such society.
(4) Nothing in S
under sub-section (1).
tion 90 shall apply to any sale made
7. At this juncture, it will also be relevant to refer to the
provisions contained in sections 2(3) and section 6 of the
Gujarat Agricultural Land Ceiling Act, 1960 which is admittedly
applicable to the State of Gujarat, which are quoted below:
2. Definitions:
(3) “agriculturist” means a person who cultivates land
personally;
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), (3), (3A0 and 3(B) 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 which consists of the
individual and his spouse (or more than one spouse)
and their minor sons and minor unmarried
daughters, irrespective of whether the family also
includes any major son and land is also separately
held by the individual's spouse or minor children,
then the land held by the individual and the said
members of the individual's family excluding major
sons, if any 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 has been held by one person.
(3) Where on the appointed day a person holds exempted
land alongwith other land then,
() 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
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.
(3A) Where any person hold any land in any other part of
the India outside the State, then, the area of land so
held by him in such other part, not exceeding the
maximum area of land, which such person is entitled
to hold in such other part of India under any law, if
any, relating to ceiling on land, used or capable of
being used for agricultural purposes, shall be
excluded from the ceiling area in excess of which a
person is not entitled to hold land under this section
and the extent of land determined after so excluding
such area shall in relation to such person, be deemed
to be the ceiling area, to be held by him in this State;Provided that where any such person disposes of, at any
time before the determination of ceiling area under
this Act, any land or part thereof so held by him in
any other part of India outside the State, in
accordance with the provisions of law in force in such
part, the area equal to the land or part thereof so
disposed of shall not be excluded while determining
the ceiling area under this sub-s
ction.
(3B) Where a family or a joint family consists of more than
five members comprising a person and other
members belonging to all or any of the following
categories, namely;
(i) minor son,
(ii) widow of a pre-deceased son,
(iii) minor son or unmarried daughter of a_pre-
deceased son, where his or her mother is
dead.
Such family shall be entitled to hold land in excess
of the ceiling area to the extent of one fifth of the
ceiling area for each member in excess of five, so
however that the total holding of the family does not
exceed twice the ceiling area; and in such a case, in
relation to the holding of such family, such area shall
be deemed to be ceiling area;
Provided that if any land is held separately also by
any member of such family, the land so held
separately by such member shall be grouped
together with the land to such family for the purpose
of determining the total holding of such family;
Provided further that where, in consequence of any
member of such family holding any land in any other
part of India outside the State, the ceiling area in
relation to the family is reduced as provided in sub-
10section (3A), one-fifth of the ceiling area as aforesaid
shall be calculated with reference to the ceiling area
as would have been applicable had no such land
been held by such member in any other part of India.
(3C) Where a family or a joint family irrespective of the
number of members includes a manor son, then such
major son shall be deemed to be a separate person
for the purposes of sub-section (1).
(3D) For the purpose of sub-si
ction (2), (3B) or (3C), the
members comprised in a family or as the case may
be, a joint family on the specified date shall alone be
taken into consideration and any changes in the
character or number of members of the family
occurring thereafter shail be ignored.
(4) Land in this State which under the following provisions
of this section a person is not entitled to hold shall be
deemed to be surplus land held by such person.
8. Mr. Thakore, Mr. Oza, Mr. Japee and Mr. Bhatt, the learned
counsel appearing on behalf of the appellants and different
petitioners, strenuously contended before us that according to
definition of ‘agriculturist’ indicated in the Act, “agriculturist” is
a person who cultivates land personally and the expression “to
cultivate personally” means to cultivate 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 of any
member of one's famil
by hired labour or by servants on wages
payable in cash or kind but not in crop share. According to
those learned counsel, the above definition does not require that
in order to be an agriculturist within the meaning of Section 89
of the Act, such a person must at the time of purchase cultivatepersonally on the soil of Gujarat. The learned counsel further
contended that it appears from the provisions contained in
Gujarat Agricultural Land Ceiling Act, 1960 that for the purpose
of ceiling on holding of agricultural land in the State of Gujarat
by an agriculturist, the land held by him in other part of India
outside the State of Gujarat is also recognized as the land held
by such an individual and is included for the purpose of
computing the ceiling limit of agricultural land in the State of
Gujarat. They all contend that under the scheme of our
Constitution, there is no scope of prohibiting a citizen of India
from holding land within the territory of this State simply
because in the past, he had no such land held by him in this
State. According to them, the action on the part of the State
Government in freezing the account of the recognized
agriculturist was, on the face of it, based on misinterpretation of
the above provisions of the Act and if the above interpretation is
act
epted, it would amount to violation of the mandatory
provisions contained in Article 15 of the Constitution of India.
for
The learned counsel for the appellants, therefore, pray
setting aside the orders passed by the respondents by which the
land accounts of the petitioners were frozen.
9. Mr. Trivedi, the learned Advocate General appearing on behalf
of the State of Gujarat has, however, opposed the aforesaid
contentions and he developed his argument in the following
way:
1. The enactment of the Bombay Tenancy Act was a step
towards a major agrarian reform, relatable to the followingEntry-18 of List-Il of the seventh Schedule to the
Constitution of India:
“18. Land, that is to say, right in or over land, land tenures
including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural
land; land improvement and agricultural _ loans;
colonization.”
‘The purposive reading of the preamble and various
provisions of the Bombay Tenancy Act, according to Mr,
‘Trivedi, clearly indicate that the said Bombay Tenancy Act
is enacted with reference to the agricultural land of the
Province of Bombay belonging to or occupied by the
agriculturists, agricultural labourers and artisans in the
then Province of Bombay, with a view to improving their
economic and social conditions and ensuring efficient use
of the land for agriculture, by removing intermediary
landlords and by making the tillers of soil as owners
thereof. This, according to Mr. Trivedi, is the basic
philosophy of the Bombay Tenancy Act. For ready
reference, Mr. Trivedi relied upon the preamble of Bombay
‘Tenancy Act, which is reproduced hereunder:
“WHEREAS it is necessary to amend the law which
governs the relations of landlords and tenants of
agricultural lands:
AND WHEREAS on account of the neglect of a landholder or
disputes between a landholder and his tenants, the
cultivation of his estate has seriously suffered, or for
the purpose of improving the economic and social
conditions of peasants or ensuring the full efficient
use of lands for agriculture, it is expedient to assume
1Bmanagement of estates held by landholder and to
regulate and impose restrictions on the transfer of
agricultural lands, dwelling houses, sites and lands
appurtenant thereto belonging to or occupied by
agriculturists, agricultural labourers and artisans
in the Province of Bombay and to make provisions
{for certain other purposes hereinafter appearing: It is
hereby enacted as follows:” (Emphasis supplied).
1.1 According to Mr. Trivedi, in furtherance to the above,
section 1[2] of the Bombay Tenancy Act, as it stood at the
material time, and as it stands at present, respectively,
also need to be examined and the same reads as under:
“1[2] It extends to the whole of the Province of Bombay.”
“2[2] It extends to the Bombay area of the State of Gujarat.”
1.2 Mr. Trivedi then relied upon Section 2[2| of the Bombay
‘Tenancy Act defining the term ‘agriculturist’ as under:
“2[2] Agriculturist means a person who cultivates lands
personally.”
1.3 Mr. Trivedi also relied upon the provisions of section 2[6] of
the Bombay Tenancy Act defining the term ‘to cultivate
personally’.
1.4 According to Mr. Trivedi, if the aforesaid provisions of the
Bombay Tenancy Act are read along with the provisions of the
Chapter III thereof, which contains sections 31 to 43 and more
particularly, section 32 which provides that on 1* day of April,
1957 i.e. on the tillers’ day, every tenant would be deemed to
have purchased from his landlord, free of all encumbrancessubsisting thereon, the land held by him as tenant, then in that
case, the only meaning which can be gathered is that a person
who is cultivating outside the State, is not covered under
section 2[6] of the Bombay Tenancy Act and thereby, cannot
become an agriculturist in the State, inasmuch as the
Legislature enacting the Bombay Tenancy Act was only
interested in those people who are cultivating land within its
territorial jurisdiction. Under the circumstances, the tenants
who became the deemed purchasers by virtue of the aforesaid
provisions of the Bombay Tenancy Act, members of their joint
families and their legal heirs, only can claim to be the
agriculturists, provided that they comply with the other
provisions of the Bombay Tenancy Act. This position, according
to Mr. Trivedi, will apply even to those who are not originally
the natives of the State of Gujarat, but having come from
outside the State and become tiller as on 1% April, 1957 in the
State.
Mr. Trivedi, in this connection, relied upon the following
decisions of the Supreme Court:
[i] Sri Ram Ram Narain Medhi & Others, vs. State of
Bombay, AIR 1959 SC 459-rel. paras 3, 11, 35 39;
[ii] Sriram Narain Medhi vs. State of Maharashtra, AIR
1971 SC 1992 - rel. paras 1 to 6, 10, 11, 13;
[iii] Shashikant Mohanlal Desai vs. State of Gujarat, 11
GLR 122 - rel. paras 7, 8.2. Mr. Trivedi further contended that the title and preamble of
the enactment undoubtedly throws light on the intent and
design of the legislature and indicate the scope and purpose of
the legislation itself and when the language of the legislation is
plain and clear, external evidence like parliamentary debates or
speech of the Hon’ble Minister while introducing the Bill, would
not be admissible to construe the legislation, Mr, Trivedi in this
connection relied upon the following decisions of the Supreme
Court:
[i] Poppatial Shah, Partner of Messrs. Indo Malayan
‘Trading Co. vs. The State of Madras, reported in AIR
1953 SC 274 - relevant para 7;
[ii] State of W.B. vs. Union of India, reported in AIR
1963 SC 1241 - rel. paras 13, 14;
[iii] Anandji Haridas & Co. Pvt. Ltd. vs. Engineering
Mazdoor Sangh and Anr., reported in [1975] 3 SCC 862
- rel. para 10.
3. Mr. Trivedi contends that it is settled legal principle of
construction that ordinarily, extra territorial operation would
not be intended by the legislature and that, therefore, a
legislation enacted by the State legislature need not be all
embarrassing and merely because the same is enacted for the
benefit of the State, the same cannot be treated as violative of
Article 14 of the Constitution, In support of the above
proposition, Mr. Trivedi relied upon the following decisions of
the Apex Court:[i] Sakhawant Ali v. State of Orissa, reported in AIR
1955 SC 166 - rel. para 10;
[ii] Kishan Singh & Ors. vs. State of Rajasthan & Ors,
reported in AIR 1955 SC 795 - rel. para 4.
4. Mr. Trivedi further contended that while dealing with similar
provision relating to the definition of agricultural debtor,
cultivating agricultural land personally under the provisions of
the Bombay Agricultural Debtors’ Relief Act, 1947, the Hon’ble
Bombay High Court inter-alia observed as under, in case
offukaram §. Panasare, reported in 54 BLR 88 = AIR 1952
Bombay 144:
“2. ss Did the legislature intend that if a debtor
cultivated land anywhere in the world during the material
period he would satisfy this qualification laid down by the
legislature? It is difficult to hold that that was the
object of the Legislature, because when we turn to the
Preamble it is clear that this Act was intended for
the relief of agricultural debtors in the Province of
Bombay. Therefore, relief was to be given not merely to a
debtor in the Province of Bombay, but to agricultural debtor
in the Province of Bombay, and only that debtor would be
an agricultural debtor who cultivated land in the Province of
Bombay. Legislature was only interested in those
people who were cultivating land within its
territorial jurisdiction and to whom relief was to be
given because they were indebted The Legislature
has defined —the_~—expression _—‘eultivating
personally’ looking to the conditions prevailing in the
State of Bombay...”Mr. Trivedi points out that the aforesaid view has been
confirmed by the Apex Court in paragraph 11 of its judgment in
case of Tatoba Bhau Savagave vs. V.D. Deshpande, reported
in AIR 2001 SC 4029 - rel. para 11.
4.1 Mr. Trivedi further contends that similar observations are
also made by the Hon’ble Bombay High Court in case
of Chhanubhai Karansing vs. Sardu Mansang, reported
in 58 Bom. L.R. 463 = AIR 1957 Bombay 99, while dealing
with the provisions of the Bombay Tenancy Act, as under:
“The ordinary principle of construction is that a legislature
is dealing with the subject-matter within its own territorial
jurisdiction. The legislature is not concerned with
improving the lot of many persons outside the State
of Bombay, nor is it concerned with the conditions
prevailing outside the State. The tenant for whose
benefit the legislation is put on the Statute Book and who
has been correspondingly defined are tenant and landlord
in the State of Bombay. ...”
(Emphasis supplied).
4.2 According to Mr. Trivedi, a Division Bench of this Court also
followed the aforesaid two judgments of the Hon’ble Bombay
High Court in case of Devji Meghji Gangar vs. Lalmiya
Mosammiya,reported in 1977 GLR 515 - vide. paragraphs 3
and 5, while dealing with the questions involved in the
captioned proceedings and inter-alia observed as under:
“20. as It is settled principle of construction that
ordinarily, extra territorial operation would not be intendedby the legislature and the legislature which is conversant
with the needs of the subjects of the State would be making
legislation for their benefit only, even though language of
the statute as such may be silent, in such cases preamble
would always be the key which would unravel the meaning
behind the statute .... Therefore, the concept of
agriculturist is not a simple concept of a cultivator of
land wherever situate but it is implicit that the land
must be within the State of Bombay. The second
ingredient is also expressly specified that he must be
personally cultivating such land.”
(Emphasis given).
4.3 All the above referred three judgments, Mr. Trivedi
proceeds, have been followed by the Division bench of this
Hon’ble Court in case of Shamalsha Girdhari Co. vs. State of
Gujarat, reported in2001 [4] GLR 3180- vide paragraphs 9,
11, 12, 13.
5. According to Mr. Trivedi, Bombay Tenancy Act as well as
1958 Act of Kutch cannot be assailed on the touchstone of the
violation of fundamental rights guaranteed under Part III of the
Constitution, since they are protected by the provisions of
Articles 31A and 31B read with 9" Schedule to the Constitution
and in support of his contention he relied upon the following
decisions of the Supreme Court:
[i] Patel Ambalal Gokalbhai v. State of Gujarat and
others, reported in [1982] 3 SCC 316;
[ii] LR. Coelho [dead] by LRs. vs. State of Tamil Nadu,
reported in [2007] 2 SCC 1 - rel. para 151[v].6. Similarly, According to Mr. Trivedi, Gujarat Agricultural
Lands Ceiling Act, 1960 is enacted for determining ceiling
area of the agricultural land that an agriculturist of the State
can hold in the State. Application of the said Act as provided
under section 53] of the Bombay Tenancy Act, Mr. Trivedi
proceeds, cannot lead to a situation whereby, a tiller from
outside the State of Gujarat, can also become an agriculturist
in the State of Gujarat. Mr. Trivedi points out that a Division
Bench of this Court, while dealing with the challenge against
the validity of the aforesaid Ceiling Act in case of V.K. Shroff
vs. Shri Kahan, reported in 1933 [2] GLR 1202, observed as
under:
ce the land in respect of which ceiling area is to be
determined, are the lands situate in this State and the
declaration of the surplus land is also in respect of the
lands heldin this State. The connection here is of a
person holding lands in Gujarat. If he does not hold land
in Gujarat, the question of applicability of the
provisions of the Act does not arise...”
(Emphasis given).
The aforesaid view, Mr. Trivedi points out, has been confirmed
by the Apex Court in case of Shrikant Bhalchandra
Karulkar vs. State of Gujarat, reported in [1994] 5 SCC
459- vide paragraph 8, wherein, it was inter-alia observed as
under:vss The sine qua non for the application of the
provisions of the Act is the holding of the land within
the State of Gujarat...”
(Emphas
s given).
Thus, according to Mr. Trivedi, by application of the said Ceiling
Act, which has also been held to be a piece of legislation
without extra territorial operation, the Bombay Tenancy Act
cannot be rendered a legislation with extra territorial operation.
The object of the said Act is to fix a ceiling on holding
agricultural land in the State and to provide for acquisition
and disposal of surplus agricultural lands within the State.
7. Mr. Trivedi submits that presently, there is no provision in
the Bombay Tenancy Act or in the Rules framed there under or
in the above-referred Ceiling Act for ascertaining the factum of
the person holding agricultural land outside the State vis-a-vis
necessary details thereof. In view of this, according to Mr.
Trivedi, if a person claims to be agriculturist from outside the
State while claiming to be an agriculturist in the State, not only
the Bombay Tenancy Act would be rendered extra territorial in
operation, but it would be rather impossible for the State
authorities to ascertain and confirm the correctness of the
information supplied by such person. This will invite many evils
resulting into unreal agriculturists coming to the State,
hoarding and concentration of lands in few hands, likelihood of
agricultural lands being diverted for other purposes, which will
ultimately deprive the real agriculturists of the State from
having the benefits flowing from the Bombay Tenancy Act.8. According to Mr. Trivedi, because of introduction of
restriction as regards situation of the agricultural land in
section 2[6] of the Bombay Tenancy Act with effect from
16.3.1956 and subsequent removal thereof on 30.3.2011 with
retrospective effect, the philosophy of Bombay Tenancy Act
referred to above has not been changed at all and thus, the
judgment of the Division Bench in case of Shamatsha
Girdhari Co. vs. State of Gujarat, reported in 2001 [4] GLR
3180, does not require any reconsideration. Mr. Trivedi
submits that the legal position which has been holding the field
for last more than six decades that in order to be an
agriculturist under the Bombay Tenancy Act, a person is
required to cultivate personally agricultural land located within
the State. Consequently, Mr. Trivedi continues, a person
cultivating outside the State, cannot become owner of an
agricultural land located within the State. Mr. Trivedi contends
that if the said position is reversed, the same may invite many
evils as discussed hereinabove.
10. After hearing the learned counsel for the parties and after
going through the material on record, we find that the
appellants, prior to their purchase of agricultural land from an
agriculturist of the State of Gujarat, had undisputedly no land
in the State of Gujarat and accordingly, they had no occasion to
till the soil of Gujarat. The only question before us is whether
their case will come within the purview of section 89 of the Act.
11. If we go minutely through the provisions of section 89 of the
Act quoted above, it appears that no sale, gift, exchange or lease
of any land or interest therein, or any mortgage of any land or
interest therein, in which the possession of the mortgaged
property is delivered to the mortgagee, or agreement made by aninstrument in writing for the sale, gift, exchange, lease or
mortgage or any land or interest therein, shall be valid in favour
ofa person who is not an agriculturist or who being an
agriculturist cultivates personally land not less than three
family holdings whether as owner or tenant or partly as
owner or partly as tenant or who is not an agricultural
labourer. There are two provisos. By the first proviso, the
Collector or an officer authorised by the State Government in
this behalf may grant permission for such sale, gift, exchange,
lease or mortgage, or for such agreement in such circumstances
as may be prescribed. The second proviso puts restriction that
no such permission shall be granted, where land is being sold to
a person who is not an agriculturist for agricultural purpose, if
the annual income of such person from other source exceeds
five thousand rupees. There are three exemptions as indicated
in sub-sections (2), (3) and (4) of section 89 but we do not
propose to discuss thos
provisions as those are not relevant for
the purpose of deciding the present appeals.
12. Therefore, in order to bring a case out of the rigour of
section 89 of the Act, the transfer must be made to
an agriculturist and even if he is an agriculturist, such
agriculturist. must not hold land more than three family
holdings as indicated therein within the State of Gujarat.
13. If we go to the definition of ‘agriculturist’ it simply means a
person who cultivates land personally and there is no restriction
that he must be a person who cultivates land personally at
least some land in the State of Gujarat.14, We further find that according to Gujarat Land ceiling Act,
1960 which governs all agricultural lands in the State of
Gujarat, there is a similar definition of ‘agriculturist’ without
any restriction of personal cultivation of land only in the State of
Gujarat, and according to section 6 of the said Ceiling Act,
which has an overriding effect over all law for the time being in
force, no person should be entitled to hold whether as owner or
tenant or partly as owner and partly as tenant land in excess of
the ceiling area and while determining such ceiling area, any
land held by an agriculturist in any other part of the India
outside the State, not exceeding the maximum area of land,
which such person is entitled to hold in such other part of India
under any law, if any, relating to ceiling on land, used or
capable of being used for agricultural purposes, shall be
excluded from the ceiling area in excess of which a person is not
entitled to hold land under this section.
15. The above provision of the Ceiling Act enacted in the year
1960 makes it abundantly clear that whatever was the intention
of the legislature in the past, from the enactment of the above
provision, it has made its intention abundantly clear that the
land held by an agriculturist in other State should also be taken
into consideration as an agricultural land held by such
agriculturist while determining the ceiling limit of land in
Gujarat. In other words, according to the said legislation, for the
purpose of better management of agricultural lands in the State
of Gujarat, no agriculturist in this State will be permitted to
hold any small fraction of agricultural land if the total
agricultural land held by such agriculturist exceeds the ceilinglimit, be any part of such land is situated in the State of Gujarat
or in any other States, as according to the legislature of this
State, an agriculturist is incapable of giving due care and proper
superintendence over his agricultural land in excess of such
limit.
16. We, therefore, find substance in the contention of the
learned counsel appearing for the appellants that under the
terms of the Act, the term ‘agriculturist’ is a ‘qualification’ and
that can be attained by any person in India who cultivates
agricultural land personally as indicated in the Act if such land
is situated in any part of India. In the absence of specific
provisions in the Act indicating its clear intention, it is
preposterous to suggest that the legislature has recognized his
agricultural land held as agriculturist in other States but has
not recognized him as agriculturist even though he is recognized
as such by a different State.
17. We, thus, find substance in the contention of the learned
counsel for the appellants that it was never the intention of the
Gujarat legislature to prohibit the recognized agriculturist of
any other State to hold any land in the State of Gujarat unless
he was holding such land in this State and if that was the
intention, in that event, the legislature would not have included
his holding as such agriculturist in other States for the purpose
of calculating the ceiling area.
18. Moreover, in the entire Act, there is no indication that a
person can acquire any agricultural land in Gujarat only if he is
already cultivating some of the lands in Gujarat. The aforesaididea is absurd as would appear from the fact that even under
the provisions of the Act, a person can become an ‘agriculturist’
even by way of succession as heir of an agriculturist. Therefore,
if a cultivator in Gujarat marries a person who is not an
agriculturist in a different State, on the death of the former, the
latter will definitely acquire interest in the land in Gujarat.
19. We are also not impressed by the submissions of the learned
Advocate General that as the State has no sufficient machinery
to verify the genuineness of the certificates given by the other
States as regards the status of a person as agriculturist in those
States, the purpose of the Act will be frustrated. In our opinion,
when the State Government is prepared to accept the certificate
granted by other States as regards the quantum of agricultural
land held by an agriculturist in other States as genuine for the
purpose of ceiling, there is no reason why such certificate as
regards their status as agriculturist cannot be relied upon.
20. We now propose to deal with the decisions cited by Mr.
Trivedi in support of his contentions.
21. In the case of Sri Ram Ram Narain vs. State of
Bombay reported in AIR 1959 SC 459, the Supreme Court was
dealing with the scope of Bombay Tenancy and Agricultural
Lands Act, and referred to various provisions of the Act as
indicated in paragraph 3 of the judgment. While considering the
validity of section 7 of the Bombay Tenancy & Agricultural Land
[Amendment] Act 13 of 1956, the Supreme Court observed [in
paragraph 38 of the judgment] that if the language of an
enactment is clear and unambiguous, it would not be legitimatefor the courts to add any words thereto and evolve therefrom
some sense which may be said to carry out the supposed
intentions of the legislature. The intention of the legislature is to
be gathered only from the words used by it and no such liberties
can be taken by the Courts for effectuating a supposed intention
of the legislature.
22. We fail to appreciate how the said principles can be of any
help to the State in this case. Mr. Trivedi tried to rather impress
upon us that we should read in the statute ‘in the State of
Gujarat” in the definition of ‘agriculturist” and “to cultivate
personally’. The aforesaid decision rather goes against his
contention. On the other hand, if we take into consideration the
provisions of the Land Ceiling Act, the intention of the
legislature was apparent that it recognized the land held by an
agriculturist in other State. Therefore, the above decision is of
no avail to the State.
23. %In the case of S.N. Medh vs. State of
Maharashtra reported in AIR 1971 SC 1992, all that was
decided by the Supreme Court was that the saving of land
provided for acquisition by a State and the protection is
available not only to acts which come within its terms but also
to acts amending such Acts\include new items of property or
which change some detail of the scheme of the Act provided
firstly that the change is not such as would take it out of Article
31A or by itself is not such as would not be protected by it and
secondly that the a
ent of the President has been given to the
amending statute.24, We are, in the present case, not concerned with the
protection under Article 31A and thus, we find that the said
decision is also irrelevant for our purpose in this case.
25. In the case of Sashikant Mohanlal vs. State reported
in [1970] 11 GLR 122, a Division Bench of this Court was
dealing with the provisions of section 43 which places an
embargo on tenant transferring the land deemed to be
purchased by him and in that context various observations on
the relevant section.
25.1 In the case before us, we are not concerned with the
transfer of a land belonging to a tenant and thus, the said
decision as well as the reference to Chapter III containing
Sections 31 to 43 of the Bombay Tenancy Act by Mr. Trivedi
would have no application to the facts of the present case.
Chapter III deals with special rights and privileges of tenants
and provisions for distribution of land for personal cultivation.
‘Therefore, the provisions contained in Chapter III cannot help
Mr, Trivedi for resolving the question involved in the present
cases.
26. In the case of Popatlal Shah vs. State of Madras reported
in AIR 1953 SC 274 the Supreme Court [in paragraph 7 of the
judgment] reiterated the settled rule of construction that to
ascertain the legislative intent, all the constituent parts of a
statute are to be taken together and each word, phrase or
sentence is to be considered in the light of the general purposeand object of the Act itself. According to the Supreme Court, the
title and preamble, whatever their value might be as aids to the
construction of a statute, undoubtedly throw light on the intent
and design of the legislature and indicate the scope and purpose
of the legislation itself. The Supreme Court pointed out that in
that case, the title or preamble of Madras Sales Tax Act clearly
show that its object is to impose taxes on sales that take places
within the province, though these words do not necessarily
mean that the property in the goods sold must pass within the
province.
27. In the case before us, we have already pointed out that if we
take into consideration the provisions of the Land Ceiling Act
enacted by the legislature, it is clear that its intention was to
recognize the agriculturists of the other State as an agriculturist
and also to take into consideration the land belonging to such
agriculturist in the other State. It was never the intention of the
legislature only to take into consideration the land of such
ituated in a different state but not to consider him
agriculturist
as an agriculturist in this State. Therefore, the above decision
also does not help Mr. Trivedi in any way.
28, In the case of State of West Bengal vs. Union of
India reported in AIR 1963 SC 1241, the Supreme Court
pointed out [in paragraph 13] that the statute as passed by the
Parliament is an expression of the collective intention of the
legislature as a whole and any statement made by an individual
albeit a Minister, of the intention and objects of the Act cannotbe used to cut down the generality of the words used in the
statute.
29, The above decision was cited by Mr. Trivedi for the purpose
of opposing the submissions made by Mr. Oza that the address
given by the concerned Minister while moving the 1958 Act
should be taken into consideration, We have already pointed out
that even if we do not take into consideration the address of the
Minister, it is quite clear that the legislature recognized
agriculturist of other state and the land held by such
agriculturist even for the purpose of consideration of ceiling in
this State. We thus do not propose to go into the above
question.
30. In the case of Anandji Haridas & Co. Pvt. Ltd.[supra], the
Supreme Court reiterated the well-settled general principle of
interpretation that , where the words of a statute are plain,
precise and unambiguous, the intention of the Legislature is to
be gathered from the language of the statute itself and no
external evidence such as parliamentary debates, reports of the
committees of the Legislature or even the statement made by
the Minister on the introduction of a measure or by the framers
of the Act is admissible to construe those words. According to
the said decision, it is only where a statute is not exhaustive or
where its language is ambiguous, uncertain, clouded or
susceptible of more than one meaning or shades of meaning,
that external evidence as to the evils, if any, which the statute
was intended to remedy, or of the circumstances which led to
the passing of the statute may be looked into for the purpose of
30ascertaining the object which the Legislature had in view in
using the words in question.
31. We have already pointed out that we do not propose to take
into consideration the address of the Minister introducing the
Bill while enacting the Act and in our view, on a plain meaning
of the provision contained in the Act, it is clear that the
Legislature has recognized any person who is cultivating his
own land personally anywhere in India for the purpose of the
Act in question. Thus, the said decision is of no assistance to
the learned Advocate General.
32. Similarly, other two decisions in the case of Sakhawant Ali
v. State of Orissa, reported in A.I.R. 1955 S.C. 166 and in
the case of Kishan Singh and others v. State of Rajasthan
and others, reported in AIR 1955 SC 795, referred to by Mr.
Trivedi lay down the well-settled legal principal that ordinarily,
the extra territorial operation would not be intended by the
Legislature and that therefore, a legislation enacted by the State
Legislature need not be all embracing and merely because, the
same is enacted for the benefit of the State, the same cannot be
treated as violative of Article 14 of the Constitution of India.
33. We do not, for a moment, dispute the aforesaid proposition
of law but the fact remains that the State Legislature has the
right to consider whether it will consider the agriculturists of
other State within the definition of the word “agriculturist” in
the State Act and whether it will take into consideration the
land held by such agriculturist outside the State for the purpose
of calculating the ceiling limit within the State. In the case
31before us, Gujarat State Legislature has taken into
consideration that aspect and thus, if we apply the principle laid
down in the above two Supreme Court decisions, the Act cannot
be held to be violative of Article 14 of the Constitution of India.
Therefore, the said two decisions rather recognize the
submission made on behalf of the appellants.
34, So far as the decision of the Bombay High Court in the case
ofTukaram Savalaram Panasare v. Narayan Balkrishna
Dolas, reported in AIR 1952 Bom. 54, we are of the view that
the facts of the said case are quite different from the one
involved in the present case. In that case, it was held by Chief
Justice Chagla, that Legislature was only interested in those
people who were cultivating land within its territorial
jurisdiction and to whom relief was to be given because they
were indebted by acting as such agriculturists. In the case
before us also, Gujarat State Legislature was concerned with the
person who intends to hold agricultural land and object of the
Act is to see that only agriculturist by profession whether within
the State of Gujarat or in any part of India is holding the land in
the State of Gujarat. Thus, the said decision cannot be of any
help to the State respondent. We are quite conscious that the
above view of Chagla, C.J. has been approved by the Supreme
Court in the case of Tatoba Bhau Savagave v. V.D.
Deshpande, reported in AIR 2001 SC 4029, referred to by
Mr. Trivedi
3235. Similarly, while dealing with the provisions of the Bombay
Tenancy Act, the Bombay High Court, in the case
of Chhanubhai Karansing v. Sardu Mansang, reported in
58 Bom. L.R. 463 = AIR 1957 Bom. 99,held that the
Legislature is not concerned with improving the lot of any
person outside the State of Bombay nor is it conversant with
conditions prevailing outside the State. It may be mentioned
here that at that point of time, Bombay Agricultural Lands Act
was not in existence nor was there any provision for taking into
consideration the land held by agriculturist outside the State of
Bombay. Moreover, we are of the view that the State Legislature
is definitely concerned regarding the capability of the persons
who for the time being will cultivate the land in the State. Thus,
the idea propounded by Mr. Trivedi that the legislature is
concerned only with the persons who used to cultivate land in
the State at one point of time but not as regards the persons
who in future will cultivate the land is not tenable. The said
decision, consequently, is of no avail in the facts of the present
case.
36. Similarly, we also do not propose to enter into the question
whether the Act in question is protected under the provisions of
Articles 31A and 31B read with 9" Schedule of the Constitution
of India and as such, we do not propose to deal with two
decision of the Supreme Court, namely,in the case of Patel
Ambalal Gokalbhai v. State of Gujarat and others, reported
in [1982] 3 SCC 316 and in the case of LR. Coelho [dead] by
LRs. v. State of Tamil Nadu, reported in [2007] 2 SCC 1 at
this stage.37. We are also unable to approve the submission of Mr. Trivedi
that application of the Gujarat Agricultural Lands Ceiling Act,
1960 as applied by virtue of Section 5[3] of the Bombay Tenancy
Act cannot lead to a situation whereby a tiller from outside the
State of Gujarat can also become agriculturist in the State of
Gujarat. ‘“Agriculturist? is a qualification and the State
Legislature is entitled to accept any person, who is recognized
as an agriculturist in other State of India as an agriculturist in
the State of Gujarat. There is no prohibition contained in the
Act to prohibit purchase of land at the instance of an
agriculturist having agricultural land outside the State except
for the purpose of ceiling and if such prohibition was there, it
would definitely be violative of Article 15 of the Constitution of
India. We are quite conscious that under the Gujarat
Agricultural Lands Ceiling Act, 1960, land situated in this State
is the subject-matter and the fact that agriculturist can hold
land in Gujarat in addition to the land in other State itself
negatives the contention of the learned Advocate General that
Section 89 is applicable to an agriculturist simply because, he
at the time of purchase holds land outside the State of Gujarat
though complies with all the requirements of the Act.
38. We, thus, find that the decisions cited by Mr. Trivedi are of
no avail to his client.
3439. We, therefore, find substance in the contention of the
appellants that a person who does not own agricultural land
within the State of Gujarat at the time of purchase cannot be
treated to be a non-agriculturist within the meaning of the Act
simply because he does not cultivate any agricultural land
within the State of Gujarat and on that ground alone, the
purchase of any agricultural land by such a person will not be
hit by the provisions contained in section 89 of the Act.
40. We, consequently, set aside the decision of the District
Collector, Kutch who issued instructions to the concerned
Mamlatdar to freeze the ‘khedut khatas’ [agricultural accounts|
of the appellants until further instructions on the ground that
the appellants are agriculturists belonging to other States. We
also quash the circular No. TNC/1073/58184/J of the Revenue
Department of the Government of Gujarat dated 4" April 1973
wherein it was indicated that any sale of land made to any non-
agriculturists in Gujarat on the strength of his status as
agriculturist in any other State outside Gujarat would attract
the provisions contained in section 63 of the Bombay Tenancy &
Agricultural Lands Act, 1948 and section 54 of the Saurashtra
Tenancy and Garkhed Settlement Ordinance and section 89 of
the Bombay Tenancy and Agricultural Land [Vidarba Region
and Kutch Area) Act, 1958 on the strength of certificates about
their status as agriculturists in other States.
41. The Letters Patent appeals are, thus, allowed to the extent
indicated above
3541.1 The other writ-applications be placed before the
appropriate court for decisions on merit in the light of our
observations made herein. We, however, make it clear that we
have not gone into the individual cases of the writ-petitioners in
the above pending matters and those should be disposed of in
accordance with law by taking into
consideration the view expressed by us on the question of
interpretation of the above provisions of law.
[BHASKAR BHATTACHARYA, ACTG. CJ.]
[A-L. DAVE, J.]
[V.M. SAHAI, J.]
FURTHER ORDEI
After pronouncement of the order, Mr. P.K. Jani, learned
Government Pleader appearing on behalf of the State
respondents prays for stay of operation of our order.
In view of what has been stated above, we find no reason to stay
our order. The prayer is rejected.
Certified copy of the order be given on the day it will be applied.
[BHASKAR BHATTACHARYA, ACTG. CJ.]
[A.L. DAVE, J.]
[V.M. SAHAI, J.]
36