Gujarat High Court
Shri Ranpur Khoda Dhor Panjarapole vs State Of Gujarat And Ors. on 8 November, 1993
Equivalent citations: (1995)1GLR597
JUDGMENT A.N. Divecha, J.
1. The order passed by the Deputy Collector at Dholka (the first authority for convenience) on 19th November 1991 in Ceiling (Section 3) Case No. 15 of 1978 as affirmed in appeal by the order passed by the Joint Secretary, Revenue Department, Government of Gujarat at Gandhinagar (the appellate authority for convenience) is under challenge in this petition under Article 226 of the Constitution of India. By his impugned order, the first authority rejected the petitioner's application under Section 3(1-A) of the Gujarat Agricultural Lands Ceiling Act, 1960 (the Act for beief).
2. The facts giving rise to this petition move in a narrow compass. The petitioner is a Public Charitable Trust duly registered under the Bombay Public Trusts Act, 1950 under No. E-619. It owns certain parcels of land in villages Ranpur, Kinara and Bhodia, taluka Dhandhuka, district Ahmedabad (Rural) in all admeasuring 195 acres 14 gunthas. The lands held by the petitioners were granted exemption under Section 3(1)(d) of the Act from the operation thereof. The necessary certificate in that regard is part of Annexure-D to this petition at page 34 thereof. On coming into force of Gujarat Act No. 2 of 1974 (the Amending Act for brief), the petitioner was advised to make an application for exemption from the operation of the Act under Section 3(1-A) thereof. Apropos, it made the necessary application on 18th February 1977. It claimed exemption from the operation of the Act under Section 3(1)(dd) and (ddd) thereof. A copy of the said application is part of Annexure-D to this petition at page 30 thereof. It came to be registered as Ceiling (Section 3) Case No. 15 of 1978. By his order passed on 19th November 1981 in the aforesaid proceedings, the Deputy Collector at Dholka rejected it as time-barred. A copy of me aforesaid order passed by the Deputy Collector at Dholka on 19th November 1981 is part of Annexure-D to this petition at page 37 thereof. The aggrieved petitioner thereupon carried the matter in appeal before the appellate authority under Section 3(1-D) of the Act. A copy of the appeal memo is at Annexure-E to this petition. It appears that on behalf of the petitioner an affidavit was also filed showing that its appeal was within time. A copy of the said affidavit is at Annexure-F to this petition. By his order passed on 27th November 1992 in the aforesaid appeal, the appellate authority dismissed it. Its copy is at Annexure-G to this petition. The petitioner has thereupon knocked the doors of this Court by means of this petition under Article 226 of the Constitution of India for questioning the correctness of the order passed by the first authority at Annexure-D (Part) to this petition as affirmed in appeal by the appellate order at Annexure-G to this petition.
3. Kum. Shah for the petitioner has urged that, since the petitioner already enjoyed exemption in respect of the lands held by it under Section 3(1)(d) of the Act prior to coming into force of the Amending Act, it was not required to make any application under Section 3(1-A) thereof, and as such the fate of its application thereunder need not have been decided on the basis that it was time-barred. Kum. Shah for the petitioner has further urged that the fate of its aforesaid application could not have been decided till the Committee named in Section 3(1)(dd) of the Act was constituted. According to Kum. Shah for the petitioner, no such Committee has come to be constituted so far. As against this, Shri Mehta for the respondents has urged that after the Amending Act the exemption enjoyed by the petitioner came to be withdrawn and it was required to make a fresh application for exemption in view of the amended provisions contained in Section 3(1)(dd) or (ddd) of the Act, as the case may be Shri Mehta for the respondents has further urged that such application has to be made within the time-limit stipulated in Section 3(1-A) of the Act. If an application is made beyond the prescribed time-limit, runs the submission of Shri Mehta for the respondents, its fate cannot be decided on its own merits as it was made beyond the prescibed period. Shri Mehta for the respondents has further urged that the fate of an application under Section 3(1)(dd) is not dependent upon the constitution of the Committee contemplated thereunder. In the course of the submissions, Kum. Shah for the petitioner has submitted that the Amending Act does not have any retrospective effect whereas Shri Mehta for the respondents has contended to the contrary. Shri Soni as the Intervener has adopted the line of arguments drawn by Kum. Shah for the petitioner in this case.
4. The first and foremost question arising in this petition would, therefore, be whether or not the Amending Act is retrospective in operation. Ordinarily, an Amending Act is considered to be prospective in operation unless there appears a contrary intention by some express provision or by the necessary implication. The two important features of the Amending Act would ordinarily militate against retrospective operation of the Act. In the first place, there are no specific words therein to indicate that the provisions of Section 3 of the Act as amended by it are retrospective in operation. Besides, Section 1(2) provides for its enforcement on such date as the State Government may, by notification in the Official Gazette, specify. When an Amending Act is to be enforced from a future date, it would militate against its retrospective operation.
5. In this connection a reference deserves to be made to the binding ruling of the Supreme Court in the case of State of Madhya Pradesh v. Rameshwar Rathod . The question before the Apex Court was whether Section 6A of the Essential Commodities Act, 1955 as amended by Section 4 of Act No. 30 of 1974 was prospective or retrospective. It was found by the Supreme Court that there were no specific words to indicate the retrospective effect of the provisions in Act No. 30 of 1974. It was also found by the Supreme Court that it was deemed to have come in effect on a particular date. Highlighting these two important features of Act No. 30 of 1974, the Supreme Court held against retrospective opepration of Section 6A of the Essential Commodities Act, 1955 as amended by Act No. 30 of 1974.
6. Applying the aforesaid ruling of the Supreme Court, the Amending Act in the present case can also be said to be prospective in operation as those very two features are very much present in the case on hand. There are no express provisions in the Amending Act denoting retrospective operation thereof, more particularly Section 3 of the Act as amended by it. As pointed out hereinabove, the Act was to be brought into force on some future date. These two features would militate against the retrospective operation of Section 3 of the Act as amended by the Amending Act in view of the aforesaid ruling of the Supreme Court.
7. The same result is bound to ensure on examination of the scheme of Section 3 of the Act. It would be quite proper at this stage to look at the provisions of Section 3 thereof prior to its amendment and after its amendment. Section 3 of the Act prior to its amendment by the Amending Act read:
3. (1) The following lands shall be exempted from the provisions of this Act, that is to say-
(a) lands belonging to, or held on lease, by Government or land held on lease from Government for a period not exceeding twenty years;
(b) lands belonging to, or held on lease from or by, a local authority or a University established by law in the State of Gujarat;
(c) lands situtated in any area which has been specified as being reserved for non-agricultural or industrial development under the relevant tenancy law;
(d) lands which are the property of a public trust for an educational purpose, hospital, Panjrapole, Gaushala, or an institution for public religious worship, provided that the entire income of such lands is appropriated for the purposes of such trust;
Explanation.--For the purposes of clause (d) a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfied by a public trust shall be conclusive evidence in that behalf;
(e) lands assigned or donated by any person before the commencement of this Act for the purpose of rendering any of the following services useful to the community, namely-
Maintenance of water works, lighting or filling of water troughs for cattle;
(f) lands leased to or held by an industrial undertaking which in the opinion of the State Government bona fide carries on any industrial operation and which is approved by the State Government;
(g) lands leased to or held by any bodies or persons other than those mentioned in clause (f) for the growing of fruit trees and used for that purpose for a period of not less than three years immediately preceding the appointed day;
(h) lands held or leased by the Land Mortgage Banks;
(i) lands held or leased by such co-operative societies as are approved in the prescribed manner by the State Government and as have for their objects the improvement of the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture;
(j) lands held by a Bhoodan Samiti recognised by the State Government in this behalf;
(k) compact blocks of lands held by a person whose principal source of income is from the lands held by him in the compact block-
(i) where heavy investment or permanent structural improvements have been made, and
(ii) certified by the Collector as so efficiently managed that the breaking of the block is likely to lead to a fall in production, and
(iii) approved by the State Government as an efficiently managed compact blocks:
Provided that in giving its approval the State Government may impose such conditions as to the production of improved seeds, trial of new varieties of crops, maintenance of high standards of agriculture, wages of workers working on the land, subject to any law pertaining to minimum wages and adoption of improved methods of agriculture and sale of marketable surplus of agricultural produce to Government.
(2) An exempted land shall cease to be exempted land if it ceases to satisfy the requirements of the provisions of Sub-section (1) applicable thereto.
After its amendment by the Amending Act, it reads:
3(1) Subject to the provisions of Sub-sections (1A) to (ID)(both inclusive), the following lands shall be exempted from the provisions of this Act, that is to say-
(a) lands belonging to, or held on lease, by Government;
(aa) khar lands and tidal lands as defined in the Gujarat Khar Lands Act, 1963 and any other land which, being in the opinion of the State Government such as need special efforts for their reclamation for the purpose of bringing them under cultivation, are notified in this behalf by the State Government by a notification in the Official Gazette, held on lease from Government for a period not exceeding twenty years;
(b) lands belonging to, or held on lease by, a local authority and lands belonging to, or held on lease by a University established by law in the State of Gujarat or by an institution in the State of Gujarat which is declared to be a University by the Central Government under Section 3 of the University Grants Commission Act, 1956, where such lands are used by the University or such institution for the purpose of imparting education in agriculture, or are specified by the University or such institution as being reserved for being used for future expansion of the University or such institution;
(c) lands situtated in any area which has been specified as being reserved for non-agricultural or industrial development under the relevant tenancy law;
(cc) lands which are the property of a public trust for a hospital existing on the specified date, to such extent as may be decided in each case by a Committee consisting of the Collector, such officer of the Medical Department as the Director of Health and Medical Services may nominate and a representative of hospital concerned;
(d) lands which are the property of a public trust for an educational institution imparting education in agriculture, to such extent as may be prescribed:
(dd) lands held by a Panjrapole or a Gaushala for the purpose of grazing of cattle or storage of grass for cattle in the institution to such extent as may be specified from time to time in each case by a Committee consisting of the Collector, such officer of Animal Husbandry Department as the Director of Animal Husbandry may nominate and a representative of the Panjrapole, or as the case may be, the Gaushala, having regard to the number of cattle normally maintained or cared for in the institution concerned, provided the Panjrapole, or the Gaushala, as the case may be, uses such lands solely and directly for the purpose for which such lands are held and not for the propose of deriving income for the institution;
(ddd) lands being lands utilised for maintenance of Panjrapole or Gaushala, which were exempt from the provisions of this Act immediately before the specified date by reason of their being the property of an institution for public religious worship registered as a public trust under the Bombay Public Trust Act, 1956, provided such institution creates a separate trust in respect of such lands for the purposes of Panjrapole of Gaushala applies within a period of ninety days from the specified date, for the registration of such trust under the said Act, to the Deputy or Assistant Charity Commissioner having jurisdiction and endeavours to get such separate trust registered under the said Act within a period of one year from the specified date;
(e) deleted;
(f) lands leased to or held by an industrial undertaking which in the opinion of the State Government bona fide carries on any industrial operation and which is approved by the State Government to the extent necessary for the purpose of expansion or present need of the industry, as certified by the Commissioner of Industries;
(g) deleted;
(h) lands held or leased by a Land Development Bank, a bank, specified in column 2 of the first Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, or a Corporation (including a Company) owned or controlled by Government provided such lands are required and used by these institutions in connections with the discharge of their bona fide functions or achievement of their bona fide objects;
(i) lands held or leased by such co-operative societies as are approved in the prescribed manner by the State Government and as have for their objects the improvement of the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture, provided that the sum total of land held by any one member of such society as such member as well as separately as an individual does not in any case exceed the ceiling area which such member shall be entitled to hold as one person;
(j) lands held by a Bhoodan Samiti recognised by the State Government in this behalf;
(k) deleted;
(1A) Every person who holds land which is eligible to the exemption provided in Sub-section (1) shall,
(i) in a case where such land was eligible to exemption to immediately before the specified date of where such land becomes eligible to exemption on the specified date within a period of ninety days from the specified date, and
(ii) in any other case within a period of ninety days from the date on which it becomes eligible to exemption by reason of its satisfying the requirements of the provisions of sub-sec, (1), make an application in the prescribed form to the Collector within whose jurisdiction such land is situate, for a certification that the land in question is eligible to exemption from the provisions of this Act, (1B) On receipt of such application the Collector shall, after giving to the applicant an opportunity to be heard and after making such inquiry as he thinks fit, decide whether the land is eligible to exemption or not.
(1C)If the Collector decides that the land or any portion thereof is eligible to exemption, he shall issue a certificate in the prescribed form to the applicant to the effect that the land specified therein is entitled to exemption from the provisions of this Act, and no land in respect of which such certificate of exemption has not been issued shall be eligible to exemption under Sub-section (1).
(1D) The decision of the Collector under Sub-section (IB) shall, subject to the decision of the State Government in an appeal, if any, which may be filed by the applicant aggrieved by the decision of the Collector within a period of ninety days from the date of communication of the decision to the applicant the decision of the State Government in such appeal or in exercise of its powers, under Section 52, shall be final and conclusive and shall not be called in question in any suit or proceeding in any Court or before any authority.
(2) An exempted land shall cease to be exempted land if it ceases to satisfy the requirements of the provisions of Sub-section (1) applicable thereto. If at any time it appears to the Collector that any exempted land or portion thereof has ceased to satisfy any of the requirements of the provisions of Sub-section (1) and has consequently ceased to be exempted land, the Collector may, after giving to the holder of such land an opportunity to be heard and satisfying himself that the land or any portion thereof has ceased to be exempted land, by order published in the prescribed manner, direct that with effect from such date as may be specified in the order such land or portion thereof shall cease to be exempted from the provisions of this Act and thereupon the certificate granted to the holder under Sub-section (1C) shall stand revoked in respect of such land, or as the case may be, portion thereof.
(3) The Devasthan lands which immediately before the date of the commecement of the Gujarat Devasthan Inams Abolition Act, 1969 were exempted under clause (d) of Sub-section (1) shall with effect on and from the said date cease to be exempted lands.
(4) No exempted land shall be transferred by way of sale, gift, exchange, mortgage, lease, assignment or otherwise, or partitioned, without the previous permission of the Collector:
Provided that the Collector may grant such permission on such conditions as may be prescribed.
(5) Any transfer or partition of exempted land in contravention of Sub-section (4) shall be void.
(6) Notwithstanding anything contained in the Bombay Public Trusts Act, 1950 or in the instrument of trust relating to any institution referred to in clause (ddd) of Sub-section (1), for the purpose of giving effect to the provisions of the said clause (ddd) it shall be lawful:
(a) for the trustees of such institution to create and get registered a separate trust in respect of the lands utilised by such institution for maintenance of Panjrapole or Gaushala and for that purpose to make an application for the registration of such separate trust in accordance with the provisions of the said Act, to the Deputy or Assistant Charity Commissioner having jurisdiction under Section 18 of the said Act, and (b) for the Deputy or Assistant Charity Commissioner having jurisdiction to deal with such application in accordance with the provisions of the said Act, as if it were an application for registration of a new trust.
8. It becomes clear from a bare perusal of the unamended and the amended provisions of Section 3 of the Act that the Legislature has thought it fit to withdraw certain exemptions and to restrict certain exemptions. The Statement of Objects and Reasons with respect to Clause 5 of Bill No. 51 of 1972 culminating into the Amending Act speaks of practically the same thing. It has been mentioned therein that some of the exemptions have been withdrawn and some are restricted. Restrictive conditions have also been prescribed for exempted lands. Among the exemptions which have been withdrawn the important ones are relating to compact blocks or efficiently managed blocks as also lands utilised for growing of fruit trees. The aforesaid Statement must of Objects and Reasons would clearly go to show as to what would happen to the exemption already claimed or granted.
9. At this stage Sub-section (3) of Section 3 of the Act also deserves a mention. It has been provided therein that the Devasthan lands which immediately before the date of the commencement of the Gujarat Devasthan Inams Abolition Act, 1969 (the Devasthan Act for brief) were exempted under clause (d) of Sub-section (1) shall with effect on and from the said date cease to be exempted lands. It cannot be gainsaid that by virtue of the Devasthan Act the Devasthan Inams came to be abolished and the lands represented by such Devasthan Inams subject to certain exceptions vested in the State Government. By virtue of Section 3(1)(d) of the Act prior to amendment by the Amending Act, such Devasthan Inams enjoyed exemption from the operation of the Act. The Legislature wanted to make to be cleat on this aspect that such Devasthan Inam lands would no longer enjoy exemption.
10. It therefore, made it clear that such exemption granted to the Devasthan Inams was withdrawn. Section 3(3) of the Act was introduced by way of amendment by Gujarat Act No. 16 of 1969. Its operation was made retrospective from the date the Devasthan Act came into force. Despite existence of Section 3(3) on the statute book, the Legislature has not chosen to make any such provision in the Amending Act suggesting any retrospective operation of Section 3 of the Act. Absence of any such express provision in the Amending Act would militate against its retrospective operation.
11. Interpretation of Section 3(1-A) of the Act would furnish another clue as to whether or not Section 3 was to be given any retrospective effect. It contemplates an application by every holder of land which is eligible to exemption provided in Sub-section (1) thereof. It does not say that every holder of land which is exempted has to make the necessary application thereunder for claiming such exemption. It cannot be gainsaid that eligibility to exemption is different from exemption itself. A parcel of land is said to be eligible to exemption if it is found fit or suitable for claiming such exemption presumably on fulfilment of certain conditions or till exemption is granted. Once exemption from the operation of the Act is granted with respect to a parcel of land under Section 3 of the Act, it no longer remains eligible to exemption but it becomes a parcel of exempted land. What is contemplated by Section 3 (1-A) of the Act is an application for exemption of land which is eligible to exemption. If the Legislature intended to give retrospective operation to Section 3 of the Act as amended by the Amending Act, the pharaseology could have been "every person who holds land which is exempted or is eligible to the exemption provided in Sub-section (1) shall...." When the Legislature was aware of the existence of Section 3(3) of the Act on the statute book prior to the Amending Act, it would not be open to this Court to presume that omission of the words "exempted or" was unintended though it meant those words therein. It is a settled principle of law that the Court has to interpret a statutory provision as it is and not as it ought to be. It is also a settled principle of law that the Court is not empowered to add any words to the existing provisions unless without addition of words it would produce absurd results. In this connection, a reference deserves to be made to the binding ruling of the Supreme Court in the case of Union of India v. Deoki Nandan Aggarwal reported in AIR 1992 SC 96. It has been held therein:
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court, of course, adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
In view of the aforesaid dictum of law pronounced by the Apex Court, I do not think I can read the words "exempted or" between the words "which is" and "eligible to" occurring in Section 3(1-A) of the Act.
12. Once it is found that by enacting Section 3(1-A) of the Act, what the Legislature has contemplated is to make an application for exemption in respect of land or lands which is or are eligible to such exemption under Section 3(1) thereof, the inevitable conclusion would be that the exemption enjoyed by land or lands prior to the Amending Act was not withdrawn thereby.
13. There is yet another clue furnished by Section 3(1)(cc) and (dd) of the Act in this regard. Clause (cc) provides for decision by a Committee consisting of the Collector, such officer of the Medical Department as the Director of Health and Medical Services may nominate and a representative of the hospital concerned with respect to the extent of exemption in respect of the property of a public trust for a hospital existing on the specified date. Two situations are contemplated. A public trust for a hospital enjoys such exemption on the specified date with respect to its property. The decision with respect to the extent of exemption has to be taken by the aforesaid Committee consisting of the aforesaid three persons including the concerned Collector. It might sound absurd that such trust has to make an application to the Collector for claiming exemption under Section 3(1-A) of the Act. The same would be the position with respect to a Panjrapole or a Gaushala in possession of exempted lands or in occupation of certain exempted lands on the specified date. The extent of exemption has to be specified from time to time in each case by a Committee inter alia consisting of the Collector. It is obvious that a Panjrapole or a Gaushala in occupation of certain exempted lands on the specified date has not to make any application under Section 3(1-A) of the Act. It is needless to say that the authority named for the purpose of receiving and deciding the application under Section 3(1-A) of the Act is the Collector. A decision of the Committee with the Collector as its member need not be subjected to any further decision by the said Collector. It might be regarded as an application from Caesar to Caesar. That could not be the intention of the Legislature.
14. In view of my aforesaid discussion, I am of the opinion that by the Amending Act the exemptions already enjoyed or granted with respect to agricultural lands under Section 3(1) of the Act prior to coming into force of the Amending Act have not come to be withdrawn even after amendment of Section 3(1) of the Act. In other words, the Amending Act qua Section 3 of the Act has no retrospective operation.
15. In the present case, the land held by petitioner enjoyed exemption prior amendment of Section 3(1) of the Act by the Amending Act. That exemption enjoyed by the petitioner with respect to the lands held by it on 1st April 1976 (which is the specified date within the meaning of Section 3(27-A) thereof) has not come to be withdrawn by enforcement of the Amending Act. In that view of the matter, it was not necessary for the petitioner to have made any application under Section 3(1A) thereof. An erroneous application thereunder would not result into withdrawal of such exemption already enjoyed or granted with respect to the lands held by it under Section 3(1) thereof prior to its amendment by the Amending Act. In that view of the matter, the impugned order at Annexure-D (Part) to this petition as affirmed in appeal by the appellate order at Annexure-G to this petition would be of no consequence whatsoever.
16. In the result, this petition is accepted. The order passed by the Deputy Hector at Dholka on 19th November 1991 in Ceiling (Section 3) Case No. 15 of 1978 at Annexure-D (Part) to this petition as affirmed in appeal by the order passed by the Joint Secretary, Revenue Department, Government of Gujarat at Gandhinagar on 27th November 1992 at Annexure-G to this petition is quashed and set aside as of no consequence whatsoever. It is hereby declared that the petitioner continues to enjoy the exemption with respect to the lands held by it under Section 3(1)(d) of the Act prior to its amendment subject to the restrictions contained in Section 3(1)(ddd) thereof. Rule is accordingly made absolute with no order as to costs.