Madhukar s/o Purshottam Patil vs State of Maharashtra & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1986 Supreme(Bom) 185

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
V.A. Mohta, H.W. Dhabe G.G. Loney, JJ.
Madhukar s/o Purshottam Patil... Petitioner.
Versus
State of Maharashtra others... Respondents.
Special Civil Application No. 2268 of 1978, decided on 10/11-7-1986.
Advocates appeared :
R.N. and S.R. Deshpande, C.G. Madkhar, J.N. Chandarkar, M.N. Ingle, A.M. Dashmukh, for petitioner.
B.P. Jaiswal and V.V. Naik Assistant Government Pleaders for respondents.

Headnote:Section 10 (1)-Scope and applicability of-The expression "Amending Act, 1972"-Connotation of.
       The object can be gathered also from the scheme of the Act. It became well known quite in advance to the rich landholders-generally a resourceful class-that land legislations fixing lower ceiling limit to the holdings are in the offing and in times to come reduction of the ceiling limit from time to time is inevitable. With a view to sabotage the expected restrictions they hurriedly started transferring their lands. In many cases non-genuine transfers in favour of near kith and kin were also effected. In practical working of the original Principal Act its functional futility occasioned on account of such transactions was noticed. Thus to make the Principal Act result oriented, presumptive Section 10 (1) and fictional concept of "Family unit" were introduced by Amending Act, 1972. Amending Act, 1975 does not make any departure from the object of Amending Act, 1972, which continues to remain the same even after amendment. Viewed from that stand point the controversy has only academic value.
       Amending Act, 1972 was passed and gazetted on 7-8-1975 and was thus in existence since before Amending Act, 1975 was passed and gazetted on 19th September, 1975. The Bill was introduced in Legislature on 9-8-1975. Quite obviously that Bill was prepared and the Act was passed with reference to the provisions of Amending Act, 1972.
       The Act of 1952 provided inter alia that the detention orders which had been confirmed previously and which were in force immediately before the commencement of the Amending Act, "shall continue to remain in force so long as the Principal Act is in force." The Principal Act was defined by the Act of 1952 as meaning the Act of 1950. The contention that detention order expired on 1-4-1952 and that the extended date did not apply to such detention was repelled on the ground that the Act of 1950 has to be understood after the amendment, the Act of 1950 as amended.
       Bombay Tenancy and Agricultural Lands Act, 1948 came up for consideration. Under the said provision, tenancy of a deemed tenant came to an end on his death and the rights were not heritable. By 1956 amendment the rights were made heritable. Question arose whether in case of a deemed tenant who had died before amendment the new right accrued or not. Answer was "no" on the ground that in the context of the whole scheme to hold otherwise would amount to giving retrospective operation to the amendment which was not given either expressly or by necessary implication.
       It may be seen in this regard that the Amending Act. 1972, as amended the Amending Act, 1975, operates prospectively from the date of the enforcement of the Amending Act, 1975, with effect from 20-9-1975. In fact it operates upon the events or transactions on and after the commencement date i.e. 2-10-1975 as per the provisions of Section 3 of the Ceiling Act. But by the nature of the provisions of Section 10 (1) of the Ceiling Act which takes into consideration antecedent facts in an enquiry for determination of surplus land the said Amending Act, 1972 as amended by the Amending Act, 1975, has to act upon the said antecedent facts which would not make it retrospective in operation.
       Therefore, on 2-10-1975 when applicability of Section 10 (1) was to be seen, the Amending Act, 1972 stood amended by Amending Act, 1975. Thus the expression "Amending Act, 1972" occurring in Section 10 (1) has to be construed as Amending Act, 1972 as amended by Amending Act, 1975 because the latter Act stood incorporated in the former Act, as a result proviso to Section 4 (1) stood deleted and it will have to be assumed for the purposes of Section 10 that the said proviso was not on the statute book on 2-10-1975 and no rights can be derived from the said proviso. Any other interpretation would render the amendment nugatory.
       Once it is held that the Amending Act, 1972 means the Act as amended by Act of 1975, it follows that on 2-10-1975 the proviso to Section 4 (1) was not in existence as a result even transfer by a member of family unit holding land separately prior to 26-9-1970 attracts presumption contemplated under Section 10 (1).
       Held, that only because a member of family unit had land less that ceiling limit at the time of transfer, Section 10 is not attracted despite family units limit exceeding the limit would introduce anomalies, make the provisions unworkable and frustrate the very object.

JUDGMENT - V.A. MOHTA, J.:---By consent of parties we have formulated the following three points for consideration in this reference :

(1) Whether the terms "the object of the Amending Act, 1972" in section 10(1) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, means the Amending Act as Amended by Act No. 47 of 1975 ?

(2) Whether section 10(1) is attracted in respect of a transfer between 26-9-1970 and 2-10-1975 by a "member of a family unit". Who separately held land prior to 26-9-1970 ?

(3) Whether in case of a family unit in existence on 2-10-1975 section 10(1) is attracted in respect of a transfer between 26-9-1970 and 2-10-1975 by a "member of a family unit" whose individual holding is below the ceiling limit but aggregate holding of the family unit is in excess of the ceiling limit on the commencement date ?

2. The basic factual backgrounds :

A. "family unit" consisted of Madhukar Patil, his wife Sau. Mandakini and a minor son Manoj. All the three members of the family unit separately held, since before 26-9-1970, near about 116 acres, 56 acres and 57 acres of land respectively. Considering the extent of Pot-Kharab land of Mandakini and Manoj they held land below the ceiling limit. Manoj transferred sometime in 1973 nearly all of his land and before 2-10-1975 purchased 16 acres of land. Mandakini transferred 39.50 acres of land between 1971 and 1972.

3. The Legislative history :

The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (The Principal Act) enacted on 16-6-1961. It provides for fixation of upper limit for holding land. On 26th September, 1970 a conference of Chief Minister was held to review the actual working of such Ceiling Acts and to evolve a uniform national policy in this respect. On 7-8-1972, a Bill No. LVI of 1972 was introduced in the State Legislature which emerged as the Maharashtra Agricultural Lands (Lowering Ceiling on Holdings) and (Amendment) Act, 1972---Maharashtra Act, No. XXI of 1975 (the Amending Act, 1972). Somehow it received the assent of the president as late as on 7-8-1975. It was published in the Government Gazette on that very date and was brought into force on 19-9-1975. It brought drastic changes in the Principal Act. Chapter II and III where wholly substituted and ceiling limit was lowered. For dry crop land it is fixed at 54 acres. An artificial new concept of a "family unit" as holder of the land was introduced by section 4 and defined under section 2(11-A). Section 4(1) was worded thus :

"Section 4(1).---All land held by each member of a family unit, whether jointly or separately, shall for the purpose of determining the ceiling area of the family unit, be deemed to be held by the family unit.

Provided that, if any person, who is a member of a family unit holds land which is possessed separately before the 26th day of September, 1970 as a result of acquisition by testamentary disposition or devolution on death or by operation of law of is acquired as a result of a transfer or partition effected prior to the 26th day of September, 1970, then for determining the surplus land in any holding which is in excess of the ceiling area on or before the commencement date, such land shall not be deemed to be held by the family unit.

"Transfer" mean transfer by act of parties (whether by sale, gift, mortgage with possession, exchange, lease or any other disposition made inter vivos) and includes transfer made under decree or order of a Court, Tribunal or Authority, and "partition" has the same meaning as in section 11.

Explanation.---A "family unit" means (a) a person and his spouse (or more than one spouse ) and their minor sons and unmarried daughters, if any, or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses.

On 9-8-1975 a Bill No. XLIII of 1975 was introduced in the State Legislature. It was

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