Gujarat High Court
Bhajansingh Gopalsingh Sardar vs State Of Gujarat & 3 on 2 August, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8265/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8265 of 2012
TO
SPECIAL CIVIL APPLICATION NO. 8271 of 2012
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BHAJANSINGH GOPALSINGH SARDAR....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR VIMAL A PUROHIT, ADVOCATE for the Petitioner(s) No. 1
MS NISHA THAKORE, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 02/08/2017
COMMON ORAL ORDER
1. Since the issues raised in all the captioned petitions are the same, those petitions were heard analogously and are being disposed of by common order at the admission stage itself.
2. For the sake of convenience, Special Civil Application No.8265 of 2012 is treated as the lead matter. By this writ application, the writ applicant has prayed for the following reliefs:
"38(a) YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned instructions issued by the respondent no.1 - District Collector, Kutch at Annexure C to the petition.Page 1 of 23
HC-NIC Page 1 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER
(b) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS be further pleased to stay the implementation, execution and operation of the impugned instructions issued by the Respondent No.1 at AnnexureC to the petition and be further pleased to direct the respondents to defreeze the Khata of the petitioners being Khata No.808 and revenue records relating to land bearing Survey No.313 paiki 2 of Village: Loriya, Taluka: Bhuj, District: Kutch of the present petitioner;
(c) YOUR LORDSHIPS be pleased to quash and setaside the govt. circular dated 4.4.1973 and further be pleased to declare the same as unconstitutional; and further be pleased to declare that the petitioner is an agriculturist within the meaning and provisions of the Gujarat Tenancy and Agricultural Land Act (Vidarbh Region and Kutch) Area Act, 1958; and be pleased to hold that the actions of the Collector with respect to issuing instructions for freezing the accounts of the petitioner is unconstitutional and in contravention to the provisions of the Gujarat Tenancy and Agricultural Land Act (Vidarbh Region and Kutch) Area Act, 1958;"
3. The writ applicant is originally a native of Village: Mesanpur, Taluka: Baba Akala, District:
Amritsar, State of Punjab. The writ applicant was earning his livelihood by doing agricultural work at his native place in the State of Punjab. He was a farmer by professional. The father of the petitioner herein purchased a parcel of agricultural land at Village: Sumarsar (Shaikh), Taluka: Bhuj, District:
Kutch by way of registered sale deed. The entries in the Record of Rights also came to be mutated in favour of the writ applicant herein so far as the land bearing Survey No.313 paiki 2 of Village: Loriya, District: Kutch is concerned. Later, the account (khata) with respect to the land of the writ applicant came to be freezed, pursuant to the order passed by the Collector. Such action taken on the premise that the writ applicant being a native of Punjab could not Page 2 of 23 HC-NIC Page 2 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER have purchased agricultural land within the State of Gujarat. The authorities relied upon a circular dated 4th April, 1973, by which a prohibition was created. I need not further into the details as all the issues raised in this writ application are now set at rest by Full Bench decision of this Court in the case of Preetsingh Mukandsingh Shikh & others vs. State of Gujarat & others in Letters Patent Appeal No.1106 of 2011 and allied matters. For the sake of convenience, I may quote the entire judgment rendered by the Full Bench of this Court:
"1. While admitting Letters Patent Appeals being LPA No.1106/2011, 1107/2011 to 1111/2011 and 1116 of 2011 preferred by unsuccessful petitioners of seven 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 be heard by a larger Bench. Subsequently, by different orders, LPAs No. 2653 of 2010 and 2782 of 2010 were also ordered to be heard with this bunch of matters. Consequently, this Bench was constituted for hearing all those nine 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 nine appeals.
2.2 The subject matter of the nine 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 writapplications, the appellants had also challenged circular No. TNC/1073/58184/J of the Revenue Department of the Government of Gujarat dated 4th April 1973 wherein it was indicated that any sale of land made to any nonagriculturists 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 Page 3 of 23 HC-NIC Page 3 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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] on the strength of certificates about their status as agriculturists in other states.
3. Learned Single Judge before whom the writapplications were moved dismissed those writapplications.
4. Being dissatisfied, the appellants preferred the aforesaid nine 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 nonagriculturist 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 Page 4 of 23 HC-NIC Page 4 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER shall 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 area;
(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 nonagriculturists 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 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.
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 agriculturist for agricultural purpose, if the annual income of 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.
Page 5 of 23HC-NIC Page 5 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER (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 Section 90 shall apply to any sale made under subsection (1).
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 subsections (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, (I) 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
(ii) 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 Page 6 of 23 HC-NIC Page 6 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 section.
(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 predeceased son,
(iii) minor son or unmarried daughter of a predeceased 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 subsection (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 subsection (1).
(3D) For the purpose of subsection (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 shall 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.
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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 family 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 cultivate personally 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 accepted, it would amount to violation of the mandatory provisions contained in Article 15 of the Constitution of India. The learned counsel for the appellants, therefore, pray for 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 following Entry18 of ListII 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 Page 8 of 23 HC-NIC Page 8 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 management 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 1st day of April, 1957 i.e. on the tillers' day, every tenant would be deemed to have purchased from his landlord, free of all encumbrances subsisting 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 Page 9 of 23 HC-NIC Page 9 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 1st 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 459rel. 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] Poppatlal 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 Page 10 of 23 HC-NIC Page 10 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER agricultural debtor, cultivating agricultural land personally under the provisions of the Bombay Agricultural Debtors' Relief Act, 1947, the Hon'ble Bombay High Court interalia observed as under, in case of Tukaram S. Panasare, reported in 54 BLR 88 = AIR 1952 Bombay 144:
"... ... ... 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 'cultivating 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 subjectmatter 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 interalia observed as under:
"... ... ... It is settled principle of construction that ordinarily, extra territorial operation would not be intended by 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 Page 11 of 23 HC-NIC Page 11 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 in 2001 [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 9th 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] I.R. 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 5[3] 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:
"... ... ... 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 held in 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 interalia observed as under:
"... ... ... The sine qua non for the application of the provisions of the Act is the holding of the land within the State of Gujarat....."
(Emphasis given).
Page 12 of 23HC-NIC Page 12 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 abovereferred Ceiling Act for ascertaining the factum of the person holding agricultural land outside the State visàvis 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 Shamalsha 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 Page 13 of 23 HC-NIC Page 13 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER mortgagee, or 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 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 subsections (2), (3) and (4) of section 89 but we do not propose to discuss those 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 Page 14 of 23 HC-NIC Page 14 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 ceiling limit, 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 aforesaid idea 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.
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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 legitimate for 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 assent 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 Page 16 of 23 HC-NIC Page 16 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 purpose and 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 agriculturist situated in a different state but not to consider him 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 cannot be 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 wellsettled general principle of interpretation that , where the words of a statute are plain, precise and unambiguous, the intention Page 17 of 23 HC-NIC Page 17 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 ascertaining 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 wellsettled 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 before 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 of Tukaram 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 Page 18 of 23 HC-NIC Page 18 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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.
35. 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 9th 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 I.R. 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 Page 19 of 23 HC-NIC Page 19 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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 subjectmatter 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.
39. 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 nonagriculturist 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 4th 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.
41.1 The other writapplications 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 writpetitioners 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.
FURTHER ORDER: Page 20 of 23 HC-NIC Page 20 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER 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."
4. Mr.Utkarsh Sharma, learned AGP appearing for the respondent State submits that the judgment rendered by the Full Bench of this Court is now subject matter of challenge before the Supreme Court in Civil Appeal Nos.2268 to 2298 of 2013.
5. On 17th March, 2015, the Supreme Court passed following order:
"We have heard learned counsel for the parties. The final hearing could not be concluded.
Let the matters be placed on the next date.
In the meanwhile, the appellants shall not proceed with the matter under Section 122 of the Bombay Tenancy and Agricultural Lands (Vidarbha region and Kutch) Area Act, 1958.
It further goes without say that the parties shall maintain status quo.
We have heard Mr.R.P. Bhatt, learned senior counsel appearing on behalf of the applicants in the impleadment applications.
Mr.R.P. Bhatt, learned senior counsel is permitted to assist the Court and make written submissions."
6. The law has been settled as such by the Full Bench decision of this Court. The Supreme Court has not stayed the operation, implementation and execution of the judgment rendered by the Full Bench of this Court. The Supreme Court has directed the parties to maintain status quo.
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7. In view of the decision of the Full Bench of this Court, all the writ applications succeed and are hereby allowed. The reliefs prayed for in the petitions are granted, subject to the final outcome of the Civil Appeals which are pending before the Supreme Court. The authorities are directed to act accordingly.
8. The accounts (Khata) which have been freezed, shall be opened. All the writ applicants shall be treated as agriculturists within the State of Gujarat. However, since the issue is at large before the Supreme Court, all the writ applicants are directed to maintain status quo as regards the nature, character and possession of the lands.
9. So far as the grant of benefits of scheme of the Government is concerned, such benefits shall be extended to all the writ applicants.
10. These petitions are disposed of on the basis of the reference which came to be answered by the Larger Bench. However, if the authority concerned deems it necessary, then it shall be open for it to examine the individual matter on its own facts. In case of any difficulty, it shall be open for the petitioners to come back to this Court.
(J.B.PARDIWALA, J.) Page 22 of 23 HC-NIC Page 22 of 23 Created On Thu Aug 03 00:46:32 IST 2017 C/SCA/8265/2012 ORDER Bharat Page 23 of 23 HC-NIC Page 23 of 23 Created On Thu Aug 03 00:46:32 IST 2017