Gujarat High Court
State Of Gujarat & vs Gujarat Revenue Tribunal & on 14 October, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
STATE OF GUJARATV/SGUJARAT REVENUE TRIBUNAL C/SCA/7337/1997 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7337 of 1997 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ STATE OF GUJARAT & 1....Petitioners Versus GUJARAT REVENUE TRIBUNAL & 1....Respondents ================================================================ Appearance: MR RAKESH R PATEL ASST GOVERNMENT PLEADER for the Petitioners MR DHIRENDRA MEHTA, ADVOCATE for the Respondent. RULE SERVED for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 14/10/2013 ORAL JUDGMENT
1. The State, under Articles 226 and 227 of the Constitution of India has approached this Court by way of this petition with the following prayers:
(A) Your Lordships may be pleased to issue a writ of certiorari and/or such other appropriate writ in the nature of the Writ of Certiorari and/or such other appropriate directions and/or orders as this Hon ble Court may deem, fit, calling for the records of the case No.TEN.BS-251/91 from the Respondent No.1 Tribunal and on a perusal whereof be further pleased to quash and set aside the impugned judgment and order dt. 29.6.1993 passed by the Learned Tribunal in Revision Application No.TEN.S.-251/91.
(B) Pending admission, hearing and final disposal of this petition, your Lordships be further pleased to grant interim relief staying the operation and implementation of the impugned order at Annexure C hereto.
(C) grant ex parte ad interim relief in terms of the prayer in sub para (B) hereinabove;
(D) grant such other and further relief/s as may be deemed fit and appropriate in the facts and circumstances of the case;
Thus, essentially what is under challenge is the decision of the Gujarat Revenue Tribunal in Revision Application No.TEN.BS-251/91 dated 29/06/1993, whereunder the Tribunal while reversing the orders impugned therein declared that the respondent No.2 did not have excess land as on 01/04/1976 and hence notice issued against him ordered to be dropped.
2. The facts, in brief, leading to filing this petition, as could be gathered from the petition, deserve to be set out as under:
2.1 The petitioner was given notice on 06/07/1997 in respect of the agricultural holding, as in view of the competent authority the agricultural land holding was in excess of the ceiling area described after due procedure of law. The Mamlatdar and competent authority recorded that the family of the respondent No.2 was holding total 86 Acre and .02 Gunthas land and thus declaring 50 Acre and .02 Gunthas land to be an excess land vide its order dated 11/08/1989, which came to be carried out in appeal by the respondent No.2 being Ceiling Appeal No.18 of 1989 in the Court of Deputy Collector, Vyara. The appellate authority under its order dated 30/06/1990 rejected the appeal of respondent No.2 and confirmed the order of Mamlatdar and competent authority passed on 11/08/1989. In other words, excess land declared by the competent authority was upheld by the Collector, hence the respondent No.2 preferred Revision Application being Revision Application No.TEN.BS-251/91, wherein the Tribunal after relying upon decision of this Court held that there was no excess land and vide order dated 29/06/1993 allowed the revision application resulting into withdrawal of the notice against the respondent No.2. Being aggrieved and dissatisfied with the order passed by GRT, the present petition is preferred on the grounds mentioned in the memo of petition.
3. Learned Assistant Government Pleader submitted that the GRT could not have arrived at a conclusion that there existed no excess land on incorrect calculation of the holding and on mis-conception of the provisions of law.
3.1 Learned AGP further submitted that the Full Bench judgment of GRT which has been relied upon, was the subject matter of examination by this Court in case of The State of Gujarat & Anr. Vs. K S Patel & Ors., reported in 1994 (1) GLR 341, wherein this Court has in unequivocal terms held that how and in what manner the excess land is to be reckoned.
3.2 Learned AGP further submitted that the respondent No.2 could not have been given benefit of both the Sections viz., 6(3B) and 6(3C) of the Gujarat Agricultural Lands Ceiling Act, 1960, as the record and proceedings, as discussed by the Tribunal, would clearly indicate that the holding of the family was merely entitling the respondent No.2 to hold one unit for himself and one more unit for his mother, except that no other unit in respect of the minor requires to be considered. The Tribunal is therefore patently erred and exercised jurisdiction which did not vest in it and hence the order impugned deserves to be quashed. Learned AGP therefore submitted that this petition may be allowed.
4. Learned Advocate appearing for the respondent No.2 contended that the decision of this Court in case of State of Gujarat & Anr. Vs. K S Patel & Ors. (Supra) would clearly indicate that minor sons existence cannot be overlooked by the authority while reckoning the holding of the family. The holding of the family also cannot be overlooked in ignorance of existence of mother. When the family is consisting of mother and a major son and his minor children then the minor male members and minor son s of that major son coupled with the existence of mother would indicate in the present case that the Tribunal s decision is just and proper and does not call for any interference. Learned Advocate for the respondent No.2 is thereafter heavily relied upon the observations made by this Court in case of State of Gujarat & Anr.Vs. K S Patel & Ors.
(Supra) particularly paragraph Nos.5, 32 and 60.
4.1 Learned Advocate for the respondent No.2 further contended that the benefit of Section 6(3C) could not have been denied and therefore the State cannot assail successfully the judgment rendered by the Tribunal which is based upon the decision of its own Full Bench which was the subject matter of scrutiny and wherein the Court observed in paragraph No.32, which has been sought to be relied upon by learned Counsel for the respondent No.1.
5. This Court is of the considered view that this petition is required to be partly allowed, as the plain reading of Section 6 and it s sub-sections would clearly indicate as to how and in what manner the agricultural land holding is to be reckoned for the purpose of calculating the excess land. The decision cited at the bar unfortunately is misconceived by learned Counsel for respondent No.2 in canvassing proposition that the land is to be counted further after exercising the power and reckoning the land under Section 6(3B). This misconception is clear from the following observations made in paragraph Nos.25 to 31.
25. It is true that the provisions contained in sub-Sections (3A), (3B) and (3C) are introduced with a view to avoiding undue hardship on account of lowering of the ceiling limit effected by the Amending Act. The Legislature appears to have kept in mind the patriarchal form of society in that context. It has taken care for a major son in the family or the joint family for the purpose of giving an extra ceiling unit for holding the land. Even for a minor son some extra care is taken to see that the holding is suitably added. In a given case, it might prove beneficial even to a small family consisting of only two members, the father and the major son. Both of them would be entitled to have a separate ceiling unit qua their holding for the purposes of the Act. A family consisting of two parents and their female children, irrespective of the number, would not get more than one ceiling unit for holding agricultural lands. Largeness of the family is not the dominant consideration in introducing more particularly sub-Section (3C) of Section 6 of the Act. It may be the dominant consideration for bringing on the statute book sub-Section (3B) thereof. In that case also what has been envisaged by the Legislature is, as aforesaid, the patriarchal form of society. A family consisting of minor sons in excess of five in number will stand to benefit as against a family consisting only of female children irrespective of the number of persons in the family beyond five. This hardship created by the operation of the law is no ground to construe plain words occurring in a statutory provision differently from their accepted meanings.
As pointed out hereinabove, a family consisting of the father and his four major sons might get five ceiling units for the purpose of the holding of agricultural lands. As against that, a joint family of major brothers might get only one ceiling unit for holding of agricultural lands. It would also be so in the case of a joint family of an uncle and his major nephews or uncles and their major nephews. As ordained by the Supreme Court in its aforesaid ruling in the case of Nasiruddin (supra), plain and unambiguous words occurring in a statute need not be construed differently irrespective of such harsh consequences flowing from its operation.
27. It would be quite proper at this stage to look at the provision on acceptance of the interpretation of sub-Section (3C) of Section 6 of the Act canvassed by and on behalf of the landholders. It has been urged that the word "son" occurring therein should be read as a male member. So read, the provision will have to be read as "where a family or a joint family, irrespective of the number of members, includes a major male member, each male member shall be deemed to be a separate person for the purposes of sub-Section (1)". Such interpretation might fit in qua a joint family but certainly not qua a family. As pointed out hereinabove, a family is understood in the context of the scheme of Section 6 of the Act as a unit of parents and their children. If the family has a major son, the plain meaning given to the word "son" will take care of the holding of that family for the purposes of the Act. It will not envisage existence of a brother as a male member in that family. In that view of the matter, the word "son" occurring in the statutory provision will have to be understood differently in the context of a family and a joint family. It will have to be understood as connoting a son in the context of a family and a male member in the context of a joint family. I am afraid, the same word cannot be understood to convey different meanings in different contexts.
28. It is true that the same word occurring differently in a statutory provision may be construed differently in different contexts. The same word may mean one thing in one context and another in a different context if occurring differently in the same provision or in different provisions in the same statute. The word "evidence" occurring differently in Section 207AC6) of the Criminal Procedure Code, 1898 has been construed differently as found occurring in different contexts by the Supreme Court in its ruling in the case of Ramnarayan Mor and Another v. The State of Maharashtra reported in AIR 1964 Supreme Court 949. In the same way, the word "term" occurring at two places in Section 7(3) of the Bengal Non-agricultural Tenancy Act, 1949 has been construed differently in different contexts by the Supreme Court in its ruling in the case of Indian Iron and Steel Co. Ltd. v. Biswanath Sonar reported in ADR 1967 Supreme Court 77. The same was the case with the word "regulating" occurring in Section 3(1) and (2) of the Essential Commoditial Act in the ruling of the Supreme Court in the case of K. Ramnathan v. State of Tamil Nadu and Another reported in AIR 1985 Supreme Court 660.
29. The position obtainable in the present case is however different. The word "son" occurs twice in Section 6(3C) of the Act in the same context. The context does not change with its second occurrences. That very word cannot be construed differently in the context of a family and a joint family as suggested by and on behalf of the landholders. The same word cannot mean a son in the context of a family and a major male member in the context of a joint family. This can be done only by violating the plain meaning assigned to that word.
30. In fact, the submission urged on behalf of the landholders would require me to rewrite sub-Section (3C) of Section 6 of the Act as "where a family or a joint family, irrespective of the number of members, includes a major son or a major male member, as the case may be, shall be deemed to be a separate person for the purposes of sub-Section (1)". I do not think I possess a power to rewrite any statutory provision. That is the legislative function except when the literal construction results into absolute absurdity. The substance of the submission urged on behalf of the landholder, to put it differently, wants me to add some of kind of Explanation to Section 6 (3C) of the Act reading as "The word major son occurring in sub-Section (3C) hereinabove shall mean a major male member in the context of a joint family." No such addition in statutory provision can be made in this fashion. It is admittedly a forbidden fruit.
31. In this connection, my attention has rightly been invited by the learned Advocate-General to the binding ruling of the Supreme Court in the case of Union of India and Another v. Deoki Nandan Aggarwal reported in AIR 1992 Supreme Court 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.'' The aforesaid ruling of the Supreme Court in the case of Deoki Nandan Aggarwal (supra) is obviously binding to this Court. It would not be possible for me to accept the aforesaid submissions urged by and on behalf of the landholders for the purpose of interpretation of Section 6(3C) of the Act so as to read something more therein.
6. In light of these observations, observation made in paragraph No.32 which has been relied upon by learned Counsel for respondent No.2 is required to be seen.
32. It is obvious that a family or a joint family consisting of the mother and her major son or sons would definitely get the benefit of sub-Section (3C) of Section 6 of the Act. As aforesaid, the word "son" has to be understood in the context of a living parent. Such a living parent could either be such son's mother or father. If either parent is living, a major son in the family will be regarded as a son and nothing else. The family unit, though the mother may not be the head of the family for all purposes, will be headed by the mother and none else. In that context, a son will have to be recognised as a son of that mother who is found living. It thus becomes clear that the existence of the male parent alone is not necessary for the purpose of giving benefit of Section 6(3C) of the Act to a major son in the family. A family consisting of the mother and her major son or major sons, irrespective of the size of the family, would be entitled to the benefits flowing from Section 6(3C) of the Act.
6.1 Thus, plain and simple reading of the aforesaid observations in juxtaposition with Section 6(3B) and 6(3C) would make it abundantly clear that the family is to be counted for determining the holding and when the mother is said to be alive or one of the parents, then the major male member is to be counted as major entitled for one unit only then there is no further need to resort to existence of minor sons also of that major son as that major son s holding would not be amenable for any scrutiny as by virtue of the provisions of Act itself his holding is one unit which is well within the ceiling area. It is therefore not required to be said that any other consideration would render entire provision defeating the purpose of the Act. Section 6(3C) is pressed into service which pre-supposes that the holding is to be counted by considering other than that major son to be head of the family and when such provision is applied, there remains no scope for that major son to seek benefit under 6(3B) as he is not required to seek any other benefit as 6(3B) for his minor son would not be available. The observations in paragraph Nos.25 to 31 would clearly indicate that when the family s holding is considered then it is only an individual s holding which is required to be considered and by purpose of provisions of 6(3C) when one major son is getting one unit then his minor son cannot be taken any consideration for further benefit under Section 6(3B) also. Therefore, the decision of the Tribunal is required to be quashed and is accordingly quashed and the matter is remanded back to the Mamlatdar and competent authority to decide the unit available which would be two unit as per the discussion made herein above one for mother and one for son i.e. respondent No.2 and accordingly after affording an opportunity to select the area or unit of the land which is thus required to be surrendered on account of reckoning permissible unit to be held by respondent No.2 as on 01/04/1976. Rule is made absolute to the aforesaid extent. No costs.
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