Important Points
1. With effect from 20.9.1975 even lands which were earlier liable to b excluded under proviso to Section 4(1) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act became liable to pass the test of Section 10(1) if they were transferred between 26.9.1970 and 2.10.1975 because the proviso to Section 4(1) stood dropped with effect from 20.9.1975.
2. The words ‘Amending Act 1972’ in Section 10(1) of the Maharashtra Agricultural land (Ceiling on Holdings) Act must be read as ‘Amending Act, 1972 as amended by Amending Act, 1975’.

Headnote:(i) Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961-Section 4(1) read with Section 10(1)-Clubbing of land held by family members-Transfer to defeat object of 1972 Amendment-With effect from 20.9.1975 even lands which were earlier liable to be excluded under proviso to Section 4(1) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act became liable to pass the test of Section 10(1) if they were transferred between 26.9.1970 and 2.10.1975 because the proviso to Section 4(1) stood dropped with effect from 20.9.1975.
       Held : The ‘date of commencement’ of the Amending Act 1972, was 19.9.1975 as stated above, but it was postponed to 2.10.75 by Ordinance XIV of 1975 promulgated on 2.10.75. That Ordinance was replaced by Act II of 1976 w.e.f. 2.10.1975. Therefore, Amending Act 1972 (Act XXI of 1975) become effective not from 19.9.1975 but from 2.10.75. By that date, i.e. 2.10.75, the latter Amending Act, 1975 (Act XLVII of 1975) had come into force on 20.9.1975, which deleted the proviso to Section 4(1). The public notice in question in the present case was issued by the competent authority on 12.3.76 and declaration came to be filed later and the Tribunals computed the ceiling area by orders dated 27.5.76 and 15.7.76. In other words, as on the date when the declaration was filed by the owners, the Amending Act of 1972 (Act XXI of 1975) was applicable as it was brought into force w.e.f. 2.10.75 (instead of w.e.f. 19.9.75) and the Amending Act (Act XLVII of 1975) was also applicable, having already been brought into force from 20.9.75. (Para 10)
       As on 19.9.75, the principal Act, as amended by Amending Act, 1972 (Act XXI of 1975) contained a proviso to Section 4(1) which, according to the respondent, excluded the lands in question from the holding as these lands were acquired in the manner mentioned in that proviso. It was argued for the respondent that the land in the present case-which had not been excluded by the tribunals-fell into the category mentioned in the said proviso, having been so held or acquired by members of the family unit before 26.9.70, and the same was, therefore, liable to be excluded “for determining the surplus land in any holding which is in excess of the ceiling area on or before the commencement date”. Once the land stood so excluded when Act XXI of 1972 initially came into forcee on 19.9.75, then Section 10(1) could not be applied for such land and there was, therefore, no question of going into the bona fides of the transfer of such lands. It might be that the proviso to Section 4(1) came to be omitted w.e.f. 20.9.75 by the Amending Act (XLVII of 1975) but that was irrelevant inasmuch as the exclusion of these lands on 19.9.75 became an accomplished fact. Further the words “Amending Act, 1972” in Section 10(1) meant the said Act as it stood before its amendment by Amending Act XLVII of 1975 i.e. before the proviso to Section 4(1) was dropped. In other words, the contention was that such an effect, as stated above, was produced on the facts of the case because the Amending Act of 1972 (Act XXI of 1975) came into force initially on 19.9.1975 while Amending Act of 1975 (Act XLVII of 1975) came into force one day later, i.e., on 20.9.1975. The fact that, by Act of Legislature 19.9.1975 stood postponed to 2.10.1975 did not matter. That is the contention for the respondent. (Paras 15 & 16)
       It is true the Amending Act of 1972 (Act XXL of 1975) was brought into force initially on 19.9.1975 and as per the proviso to Section 4(1) which was very much there on that day, these lands individually belonging to the declarant or his wife might have stood excluded from the holding of the family unit if the same were acquired in the manner stated in the proviso to Section 4(1). It is also true that Amending Act of 1975 (Act XLVII of 1975) which deleted the proviso to Section 4(1) came into force only w.e.f. 20.9.1975. But, the difference of one day in the commencement of these Amending Acts, in our opinion, would have had some significance if in that one day, declaration was filed, extents of land were computed and such computation had also become final on the same day. But no such thing happened on 19.9.1975. In fact the owners filed declarations only in 1976. By the date the owners filed their declarations, the Amending Act, 1975 (Act XLVII of 1975) deleting the proviso to Section 4(1) had already come into force on 20.9.75. Assuming that the difference of one day between the commencement of these two Amending Acts could have some bearing on the case, the fact remains that by Ordinance XIV of 1975 promulgated on 2.10.1975, the date of commencement of the Amending Act of 1972 i.e. 19.9.1975 was postponed to 2.10.1975. That would mean that the Amending Act of 1975 (Act XLVII of 1975) which dropped the proviso to Section 4(1) came into force on 20.9.1975 earlier to the Amending Act of 1972 (Act XXI of 1975), which came into force on 2.10.1975. The result is that the contention for the respondents based on the difference of one day, between the initial commencement of Amending Act 1972 (Act XXI of 1975) and the commencement of Amending Act 1975 (Act XLVII of 1975) is liable to be rejected for two reasons,-Firstly, no exclusion by way of orders was passed by any Tribunal between the parties-based on the proviso to Section 4(1)-on the solitary day 19.9.75-nor did any such exclusion become final on 19.9.1975 before the latter amendment become effective from 20.9.1975. Even before any such thing happened, the proviso to Section 4(1) stood deleted w.e.f. 20.9.1975 when Amending Act, 1975 (Act XLVII of 1975) came into force. Hence in regard to all declaration filed by owners on or after 2.10.1975, the proviso to Section 4(1) ceased to apply. Once the lands of the descriptions in the said proviso did not stated excluded w.e.f. 20.9.75, the Tribunals were entitled to go into the question whether the transfers of such lands between 26.9.70 and 2.10.75 were bona fide or not and apply Section 10(1) of the Act and the Explanation added in Section 10(1) by Amending Act, 1972 (Act XXI of 1975). Secondly, the very date 19.9.75 of commencement of the 1972 Amending Act stood postponed to 2.10.75 by an Ordinance and hence even before Amending Act (Act XXI of 1972) could be applied, the proviso to Section 4(1) stood deleted w.e.f 20.9.75. Hence in regard to all orders passed by the Tribunals on or after 2.10.75, it was obligatory for the Tribunals to apply the proviso to Section 4(1) to all lands even if such lands had earlier stood excluded by the said proviso and also apply the new Explanation added in Section 10(1). It is argued for the respondent that the latter Amending Act (Act XLVII of 1975) was effective from 20.9.1975 and was not retrospective from 19.9.1975. But, in our view, the same result was achieved by postponing the date of commencement of the first Amending Act, 1972 (Act XXI of 1975) from 19.9.1975 to 2.10.1975 i.e. to a date after the date of the commencement of the second Amending Act, 1975 (Act XLVII of 1975) i.e. 20.9.1975. Again, it may be that previously i.e. on 19.9.75, in regard to transfers of lands other than those mentioned in the proviso to Section 4(1) above, if such transfers were between the crucial dates-they had to be tested on the anvil of Section 10(1) as to their bona fides and also by applying the Explanation which changed the burden of proof. But w.e.f. 20.9.75, even the lands which were earlier liable to be so excluded under the proviso to Section 4(1) became liable to pass the test of Section 10(1) if they were transferred between 26.9.70 and 2.10.75 because the proviso to Section 4(1) stood dropped w.e.f. 20.9.1975. In the present case, the Tribunals passed orders in 1976 by which time under the 1972 Amending Act (XXI of 1975) the concept of ‘family unit’ came in, Section 10(1) required the bona fides of the transfers between the 26.9.70 and 2.10.75 to be tested and the Explanation to Section 10(1) altered the onus of proof. Under Amending Act, 1975 (Act XLVII of 1975) the proviso to Section 4(1) stood dropped. All these provisions were, therefore, rightly applied by the Tribunals when they passed orders in 1976. The High Court was in error in holding that the proviso to Section 4(1) was still applicable and that these lands which fell into the category mentioned in the said proviso had to be excluded and that the bona fides of their transfers need not be gone into. (Paras 18 to 24)
       (ii) Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 as amended by 1972 Amending Act and as amended by 1975 Act-Section 10(1)-Scope of section-Words ‘Amending Act, 1972’ -Meaning of-Words ‘Amending Act, 1972’ in Section 10(1) must be read as ‘Amending Act, 1972 as amended by Amending Act 1975’-Once Amending Act 1972 stood further amended w.e.f. 20.9.1975 there could be no question of still going by the Act as it stood before 20.9.1975 and Tribunals are bound to apply Section 4(1) without the proviso and Section 10(1) as also together with the new Explanation to Section 10(1).
       Held : The next question is as to the meaning of the words “in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972”. in Section 10(1) and its Explanation. Question is whether these words mean the Amending Act, 1972 as it stood originally as on 19.9.1975 when proviso to Section 4(1) was in existence or are also referable to the Amending Act, 1975, which came into force on 20.9.1975? It is true that initially Section 10(1) and its Explanation merely referred to the proof of an intention to avoid or defeat the provisions of the Amending Act, 1972 i.e. the Act XXI of 1975 which came into force on 19.9.1975 and which date stood postponed to 2.10.1975. But by 2.10.1975, the Amending Act, 1975 (Act XLVII of 1975) had also come into force from 20.9.75 and therefore, in our view, the words ‘in anticipation of or in order to avoid or defeat the object of the Amending Act 1972’ would have to be read as “in anticipation of or in order to avoid or defeat the object of the Amending Act 1972 as further amended by the Amending Act, 1975 (Act XLVII of 1975)”. It would, therefore, become necessary to go into the bona fides of the transfers of lands even if the lands were previously liable to be excluded from the holding if they were of the category falling within the proviso to Section 4(1). Further, the change in the mode of proof as brought about by Act XXI of 1975 by virtue of the Explanation to Section 10 would also become applicable to these transfers. The holdings of the members of the family unit had also to be clubbed together as stated in the Act, as amended. In other words, once the Amending Act, 1972 stood further amended w.e.f. 20.9.1975, there could be no question of still going by the Act as it stood before 20.9.1975 and the Tribunals were bound to apply Section 4(1) without the proviso and Section 10(1) as also together with the new Explanation to Section 10(1). The words ‘Amending Act, 1972’ in Section 10(1) must in our view be read as ‘Amending Act, 1972 as amended by Amending Act, 1975’. (Paras 25 to 28)

Judgment

M. Jagannadha Rao, J.-The State of Maharashtra has filed this appeal against the judgment of the High Court of Bombay dated 12.1.1982 in Special Civil Application No. 4026 of 1976. By that judgment, the learned Single Judge allowed the respondent’s application filed under Article 227 of the Constitution of India and set aside the order of the Maharashtra Revenue Tribunal, Nagpur dated 15.7.1976 and the earlier order of the Surplus Land Determination Tribunal dated 27.5.1976 and held that land covered by several alienations made by the declarant, Sri Vithalrao Ganpatrao Warhade during the period 26.9.1970 and 19.9.1975 was to be excluded from the holding of the declarant in view of the proviso to Section 4(1) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 (as amended by Maharashtra Act, 1972 (Act XXI of 1975) and as amended by Maharashtra Act, 1975. (Maharashtra Act XLVII of 1975). We shall be referring to the amending Act, 1972 (Act XXI of 1975) as the Amending Act, 1972 and the amending Act XLVII of 1975 as the Amending Act, 1975.

2. We shall now refer to a few facts. Upon public notice being given on 12.3.1976, the landholder gave a list of various lands owned by his ‘family unit’. The primary Tribunal in its order dated 27.5.76 came to the conclusion that the landlord owned Ac. 90.38 and was entitled to retain Ac. 54.00 plus Ac. 5.38 potkharab and Ac. 2.26 of non-agricultural land and that Ac. 3.80 sold for compelling necessity was not liable to be included in his holding. Other sales were not liable to be excluded. The balance of Ac. 29.94 were held surplus and were to be surrendered. The appellate Tribunal, in its order dated 15.7.76 held that the plea regarding a partition dated 15.1.1970 between the declarant, his wife and son was not seriously contended but in any event, the land held by the wife had to be clubbed with that held by the husband in view of Section 4 of the Principal Act of 1961, as amended. Further, the partition was unregistered and the declarant’s son was a minor at that time. The appellate Tribunal held that there was no case made out for excluding the land covered by other sales inasmuch as there was no proof that the sale of lands for Rs. 50,000 was spent for purchasing better quality of land. Only Rs. 15,000/- was spent for purchasing other land and the bulk of the consideration was spent for construction of a house at Nagpur and that could not, according to the appellate Tribunal, be considered as a sufficient reason for claiming exclusion of the other lands also,-inasmuch as no compelling necessity was proved. The appeal was, therefore, dismissed.

3. In the High Court, the declarant claimed exclusion of lands sold by him and also lands sold by his wife between 26.9.70 and 19.9.75. He contended that the extent so sold was liable for exclusion under the proviso to Section 4(1) of the Act. The partition dated 15.1.1970 was also relied upon and it was also contended that the extent of land got by the declarant’s wife from her parents before 26.9.70 was also liable to be excluded. It was contended for the declarant that the ‘family unit’ concept was brought into force initially w.e.f. 19.9.1975 when the ceiling area was also reduced by the Amending Act of 1972, but as on 19.9.1975 the proviso to Section 4 permitted exclusion of lands acquired before 26.9.70 by the members of the family unit-by testamentary disposition or devolution on death or by operation of law or by partition effected before 26.9.1970 and that, therefore, the extent of land transferred by the declarant and his wife out of such lands which fell within these categories, stood excluded as on 19.9.1975. When the lands so held stood altogether excluded from the holding as on 19.9.1975, then even if by the Amending Act of 1975 which came into force on 20.9.1975, the proviso to Section 4 permitting such exclusion was deleted, those lands do not get included in the holding again since the latter Amendi

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1998 Supreme(SC) 1073

Cases Referred (1)