Bombay High Court
Madhukar vs State Of Maharastra And Ors. on 11 January, 1986
Equivalent citations: AIR1986BOM436, [1985(50)FLR411]
JUDGMENT V.A. Mohta, J.
1. By consent of parties we have formulated the following three points for consideration in this reference:
(1) Whether the term "the object of the Amending Act, 1972" in S. 10(1) of the Maharashta Agricultural Lands (Ceiling on Holdings ) Act, 1961 means the Amending Act as amended by Act No. 47 fo 1975?
(2). whether s. 10(1) is attracted in resepct of a transfer between 26-9-1970 and 2-10-1975 by a "member of family unit" who separately held land prior to 26-9-1970?
(3) Whether in case of a family unit in existence on 2-10-1975, S. 10(1) is attractd in respect of a transfer between 26-9-1970 and 2-10-1975 by a "member of a family unit " whose individual holding is below the ceiling limit but aggregate holding of the family unit is in excess of the celiling limit on the commencement date?
2. The basic factual background : A "family unit" consisted of Madhukar Patil his wife Sau. Mandakini an a minor son Manoj all the three members of the family unit separately held, since before 26-9-1970. nearabout 116 acres, 56 acres and 57 acres of land respectively. considering the extent of Pot-kharab land of Mandakini and Manoj they held land below the ceiling limit. Manoj transferred somethime in 1973 nearly all of his land and before 2-10-1975 purchased 16 aces of land. mandakini tranferred 39.50. acres of alnd between 1971 nad 1972.
3. the Legislative history:
The Mahashtra Agricultural Lnads (Ceiling on Holdings) Act. 1961 (The Principlal Act ) was enacted on 16-6-1961. It provides for fixation of upper limit for holding land. On 26th September, 1970, a conference of Chief Ministers was held to review the actual working of such Ceiling Acts an to evolve a uniform national police in this respect. oN 7-8-1972, A Bill No. LVI of 1972 was introduced in the State Legislature which emerged as the Maharashtra Agricultural lands (Lowering of Ceiling on Holdings and (Amendment ) Act. 1972 - Maharashtra Agicultural Lands (Lowering of Ceiling on Holdigns ) and (Amendemtn ) Act. 1972 - Maharashtra Act No. XXI of 1975 the Amending Act, 1972). Some how it received the assent of the Preseident as late as on 7-8-1975. It was published in the Governemnt Gazette on that very date and was brought into forced on 19-9-1975. It brought drastic changes in the Priciipal Act. Chapters II an III were wholly substituted and ceiling limit was lowered. For dry crop land it is fixed out 54 acres. An artificial now concept of a family unit as holder of the land was introduced by S. 4 and defined under s. 2(11A) Section 4(1) was worded thus:
"S. 4(1): All land held by each member of a family unit, whether jointly or separately. shall for the purpose of determining the ceiling are ao the family uiit, be deemed ot be held by the family unit.
Provided that, if any person, who is a member of a family unit holds aldn which is possessed separately before the 26th day of September, 1970 as a result of acquisition by testamentary dispostion or devolution on death or by operation of law or is acquired as a result of a transfer or partition effectd prion to 26th day of September, 1970 then for determining the surplus land in any holding which is in excess of the ceiling are a on or shall not be deemed to be held by the family unit.
"Transfer" means transfer by act of parties (whether by sale gift, mortage with possession, exchange lease or any other disposition made inter vivos) and includes transfer made under decree or order of a Court, Tribunal or Authority and partition has the same meaning as in S.11.
Explanation - A family unit" Means(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any, or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unamarried daughter, or (c) where the spouses are dead, the minor sons and minor unamarried daughters of such deceased spuses. On 9-8-1975 a Bill No. XLIII of 1975 was introduced in the State Legislative. It was passed by the Assembly on 11th Augest and by the Council on 13th August 1975 and by the Council on 13th August. 1975. It received the assent of the President on 15th September 1975 was published in the Governemnt Gazette on 19th September 1975 and brought into force from 20th September 1975 . It is the Maharastra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment Amendment Act, 1975 Maharashtra Act NO. XLVII of 1975 (the Amending Act, 1975) By this Act proviso to s. 4(1) and definnition of Transfer below it was deleted and an Explanation to S. 10(1) was added Seciton 10(1) now reads:
"10(1)If-
(a) any person or a member of a family unit, after the 26th day of September 1970 but before the commencement date, tansfers anyland in aniticipation of or in order to avoid or defeat the object of the Amending Act, 1972. or.
(b) any land is ransferrred in contravention of S.8 then, in calculating the ceiling area which that person, or as the case may be the family unit, is entitled to hold, the alnd so transfer shall be taken into consideration, and the land exceeding the ceiling area so calculated shall be, deemed to be in excess of the ceiling are for that holding, not withstanding that the land remaining with him or with the family unit may bot in fact be in excess, of the ceiling area.
If by reason of such transfe, the holding of aperson, or as the case may be of the family unit is less than the area so calculated to be in excess of the ceiling area, then all the land of the person, or as the case may be the family unit shall be deemed to be surplus land; and out of the alnd so transferred and in possesion of the transferee (unlss such land is liable to forfeiture under the provison of sub-s (3)), land to the extent of such deficientcy shall, subject to rules made in that behalf, also be deemed to be surplus land, notwithstanding that the holding of the transferee may not in fact, be in excess of the ceiling area.
Explnation. - For the purposes of cl (a) transfer has the same meaning as in S. 8.
All transfers made after the 26th day of Semptember 1970 but before the commencement date, shall be deemed (unless the countrary is proved) to have been made in anitcipaiton of or in order to avoid or defeat the objct of the amending act, 1972.
Explanaiton. - For the purposes of this subsection, a tansfer shall not be regarded as made on or before 26th September 1970 if the document evidencing the transfer is not registered on or before that date or where it is registeed after that date, it is not prsented for registration on or before the said date."
Ther term "commencement date" ment under S. 2(6A) the date of commencemtn of the Amending Act, 1972 i.e 19-9-1975 but by Ordinance No. XIV of 1975 promulgated on 2nd October, 1975, it was altered to mean 2nd October 1975. the Ordinance is due course of time was replaced by Act No. II of 1976.
4. the judicial history leading to the referecne.:
In the case of Abdul Bhai v. State of Maharashtra (Special Civl Appln. No. 3343 of 1976 decided on 13th Auest 1976 by the learned single Judge Sawnat, J. ) it was held that if a family unit did not hold at any point of time between 26-9-1970 to 2-10-1975 land exceeding the ceiling limit the transfers effected during this period would not attract S. 10(1) On that very day, an important decision relating to the validity of the Pricipal Act as amended, was pronounced by a Division Bench of this Court (Masodkar & Dighe, JJ). in the cae of Vithalrao Uttarwar v. State of Maharashtra, . We woudl quote only the following lines from that Judgement as nothing else is relevant in the present case :
"129 Act No. 47 of 1975 was passed and gazetted on 19th September, 1975 i.e the day when Act No. 21 of 1975 was put into effect. That Act obviously was passed with referecne to the provison of Act No. 21 of 1975 and puported to amend the proviosn of that Act. Instead of the Legislature itself declaring that this Act upon its passing would become a party of the Act No. 21 of 1975 it provided that it shallbe come into force on such date as the State Government may be notificaiton appoint . In other words the latter Act. wich was an a mending act of earlier amending Act would not be effective unless so notified and enforced by the State Governemnt. For the purpose of putting into effect the provisons of this Act, the legislative intendt is always to keep the term of Act No. 21 of 1975 available so as to effectively amend the same from the date to be notified by the State Governemtn. Only because that date happends to be notified later on, the amendments enacted by the legislature cannot be siad to have been rendered nullity or nugatory. Simple effect of the second enforcement would be to incorpoate by pen and ink the terms of the provison in orginal Act as amended by Act NO. 21 of 1975 to the extend enacted by Act No. 147 of 1975.
130. the saltuary doctrine of referecen operates for the purpose of interpretation and construction of statutes. That emanates by the very exigencies to keep the statues available for the legislative purposes, By referecen to earlier amending Act, the second amending Act can effectively introduced further changes in the body of the orginal Act though the former has become part and parcel thereof. the power to make such amendment in this manner alwasy exists and the matter is purely one of interpretation. Once this is graned wherever there occurs a referecne to the Maharashtra Agicultural Lands (Lowering of Ceiling on Holdings) and (Amendment ) Act, 1972 in Act No. 47 of 1975 it would mean the provison as containe din that Act and to that extedn that would have tobe read out and corrected by pen and ink in the structure of the orginal Act, Act NO. 47 of 1975 refers for the purpose of amendment to the Act No 21 of 1975 as the Amending act and provides by different sections ranging from 2 to 8 how the Amending Act shall stand amended upon the enforcemnt of Act No. 47 of 1975. that term is intended to mean clearly the provison of Act No. 21 of 1975 and by referecne would operate with all force wherever Act no. 21 of 1975 is operative. No. anomaly is introduced nor any antilogy is raised. For it is perfectly permissible for the State Governemnt to notify earlier or on simultaneous dates for effectuating the provison of Act No. 47 of 1975 which would have made this Act that part of Act 21 of 1975 and therafter notificy the date of Act No. 21 of 1975 for the pupose of enforcement. For reason obvious it was left to the power of the State governemtn so to give effect to Act no. 21 of 1975 and then to make efffective Act No 47 of 1975 . The Legislature did not injuct otherwise. It is common experience that the Legislature in its wisdom alwasy follows such device of leain the matters of notifying enforcement dates to the State Governemnt. That is clearly becasue of several good rasons including administrative and edecutive exigencies and knowledge thereof which xecutive Governemt better possesses. This power undoutedly partkes in minor legislatvie funciton. The effect however of such a devie merely is that from the date of enforcemnet. the statue becomes operative and enforceable. As far as Legislature is concerend the law stands enacted reflecting the will of the legislature once the same is gazetted as an Act duly madde. Thereafter there is no such state as non-eistence of an Act enforceability of an Act of the Legislature and the existence of the Act are two independt mattes. Even before enforcement and after such enforcement it is available as an act for the purposes of amendatory legislative process."
Constitutional validty of the Principal Act was upheld by the Supreme Court in (i) Dattatraya v. State and (ii) Wamanrao v. Union of India .
5. then cosmes in orde of time the case of Narayanibai v. State of Maharashtra 1976 Mah. LJ 865 decided by the learend Single Judge V.S. Deshpande J. as he then was As major part of the controversy centres round the ratio of that case, detailed referecen to its basis facts is inevitable. since before 26-9-1970 Narayanibai the landholder separately hedl 55 acres and 245 gunthas of alnd out of which 4 acres 39 gunthas was pot-kharab. on 10-1101971 she sold 25 acres 10 gunthas. her husband Rambilas who also separately held land.
bequeathed his land to her by a Will daed 15-2-1972. Rambilas died on 10th January 1975 leaving 35 acres 04-gunthas of alnd for Narayanibai to succeed. On 2-10-1975 her total holding was 65 acres 18 gunthas, out of which 8 acres 22 gunthas were pot-kharab and thus her effective holdign was 57 acreas 36 gunthas. the couple did not have any minor son or minor unamrried daughter as a result there was no family unit in existence on 2-10-1975. the ceiling authroities included the land sold by her on 10-110-1971 in her total holding on the ground that the said transfer was hit by Section 10. She filed a writ petiton in the High Court contending that in the whole background presumptive provison of Section 10(1) were not attracted. This contention was upheld. On what ratio is a debatable point. The State throughout took the stand that ony ration of that decison is that Section 10(1) could not be pressed into servie becaue on 2-10-1975 family unit itself was not in existence whereas the landholders took the satdn that its further ratio is that seciton 10(1) is not attracted when on the date o transfer the transferor holds land below ceiling limit. We reproduced the relevant extracts.
"Can any such presumptin of transfer being i anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 ever be raised where on the date of the tansfer the transferor holds lands up to less than the ceiling area? My learned Brother Sawant J. had occasion to consider this very question in abdul Bhai v. State (Spl C.A. No. 3345 of 1976 decided on 13-8-1976) . The learend Judge answered the question in the negative. Mr. R.R. Deshpande, the learend assistant governemtn Pleader, could not dispute the proposition of law laid down in this judgement. It is thus clear that ordinarily the two sales of aldns daed 10-110-1971 could not be deemed to have been made in anticipation of or in order to avoid or defeat the object of the Amending At, 1972 and the petitiner could not have been called upon to prove to the countary as she was holding lands less than the ceiling area, namely 54 acres, on the date of the sale, namely 10-11-1971."
Whether the expression family unit referred to in seciton 10 is referable to the family unit which existed on or after 2-10-1975 i.e. the commencement date as defined under the Act No. 21 of 1975 or to such group of persons like the petitoner and her deceased husband that existedn prior to that dae and answered the descritpion of the words family unit as introduced in the Act by the Act No. 21 of 1975 but ceased to be such family unit even before 2-10-1975 because of the husabd's death. it is obvous that when seciton 10 seeks to invalidate tansfers by a person or a member of a family unit even to a limited extent, it only refers to a member of the family unit which is prohibited from holding and in excess of the eriling area under section 3 of the Act, and any person or a member of a family unit can only have referecne in the context, to holders as such person or family units who are in existence of the commencement date nemely. 2-10-1975"
"In other words, the sale of only such person will be hit by this section retrospectively who either is a holder of the aldn as such person, or who happens to be a member of a family unit which is assumed to be the surplus holder of the aldn on the commencement date. In cases where as her , the holder cannot be said to be the family unit on the commencement date, the fiction of any of its december having effected the transfer with the object of avoiding or defeating the object of the Amending Act 1972, cnanot arise, much less the quesiton of calculating the holdgns of all member so the family unit together on the date of any such sale there being no inquirty into the holding of any family unit. The conception is not made so etrospective as to permit raising the contemplated ficiton or presumption agains the sale of any person as member of the family unit. which doesnot hapen to be the holder becasue of not being in existence on 2-10-1975."
6. The following four judgments considered Narayanibai (1976 Mah LJ865).
(i) Vithalrao Karekar v. State of Maharashtra (Special Civil Appln. No. 429 of 1977 decided on 24th August 1981 by Palshikar j. as he then was)
(ii)Vasantro v. State of Mahastrashtra (Special Civil appln. No. 3709 of 1976 decided on 23rd November 1981 by D.B. Deshpande J. as he then was).
(iii) Kantabai v. The State of Maharashtra (Special Civil Appln. No. 119 fo 1977 decided on 27-7-1981 by Tulpule J. as he then was).
(iv) Shravan v. State of Maharastra (Special Civil Appln No. 2919 of 1976 decided on 25th August 1981 by R.S. Pandhye J. as he then was).
In Vithalarao Karekar it was held that if a family unit was in existence on 26-9-1970 as well as 2-10-1975 and held land below the ceiling limit, the transfers made by a member of a family cannot attract Section 10(1) It was observed that the principle laid donw in Narayanibai will apply only where a family unit is in existence on 26-9-1970 but has ceased to exist on 2-10-1975. In Vasantro also it was held that as the family unit was not in existence on 2-10-1975, the ratio of Narayanibai's case was not attracted. In Kantabai it was held that in view of proviso to Section 4(1) introduced by Amending Act, 1972 section 10(1) was not attracted as transfer by a member of family unit (which held land in excess of ceiling are was of land separately held by him since before 26-9-1970. In Shravan conclusion was:
"As I undrestand the decision in the case of Narayanibai (supra ) section 10 contemplates a family unit not as under section 4(1) as amended by Act No. 47 of 1975 after deleting proviso to the said section, but a family unit as contemplated, prior to this amendment, by earlier Act NO. 21 of 1975.
7. In the case of Pandurang Narayanrao Namade v. The State of Maharashtra (Specail Civil Appln. No. 1514 of 1977) R.S. Pandhye j. as he then was found conflict in the above four decisions and hence made a reference to a Division Bench on three points formulated by him thus:
It is apparent that the object of enacting section 10 of the Ceiling Act by Amendment Act 1972 was to set at naught all attempts to transfer lands in anticipation of or in order to avoid or defeat the object of Amending Act, 1972 the proposal for which was first mooted on 26-9-1970. Object of Ameding Act, 1972 was to lower, in the public interest, the maximum limit (or ceiling ) on the holding of agricultural land as surplus so as to secure still more quitable distribution of aldn and for the purpose of removing economic disparties, and thereby for assisting more effectively landless and other persons" While doing so concept of family unit was born and while deciding asto which land should be deemed to be land belonging to family unit. Lands separately acquired by members of a family unit prior to 26-9-1970 wre excluded. That such exclustion was to be scrapped was not known until introduction and passing of amedning Act, 1975. Therefore transfer of individulally and separately owned lands acquired before 20-9-1970 by members of a family unit between 26-9-1970 and before 2 -10-1975 on which day the exclusion of such separate lands from the holding of family unit was scrapped, could not even be imagined to have been efected for defeating the object of Amending Act, 1972. If this was true for Narayanibai (i) Whoheld landless than new ceiling area on 20-9-1975 and (ii) who individully held land less than ceiling area on the date of transfer of her separate land in 1971 through (iii) on that date the total holding of hersehfl and her husband, a group of persons which was to be later known as family unit was more than ceiling area and though (iv) who as an individual (since her husband died ) held land in excess of ceiling are on 2-10-1975, why can it not be true for another person who transfere individual of such family unit on 2-10-1975?
II Which of the four judgements which gave raise to this referecne were not decided according to rati laid donw in narayanaibai's case?
III Fundamental right to property given to every citizen of Idnia by Article 19(1)(f) of the Constitution of inida until it was abolished by Constitution (44 th Amendment ) Act, 198. included right to dispose of property. though it is true that section 10 of the Ceiling Act introduced by Amendment Act, 1972 is beyond challenge on account of the said Act having been placed at Sr. No. 157 in 9th Schedule of the Constitution of India, it is incumbent upon every Court of law to construe it reasonably because on law, if it is to stand the test of law can be unreasonable Moreover the we cannot forgot that the expression Amendment Act, 1972 used in section 10 of the Ceiling Act was left unaltered by A mendment Act, 1975. The question that arises therefore is "whether the expression "Amendemtn Act 1972 used in section 10 of the Ceiling Act should be reas as "Amndment Act 1972 as amended by amendment Act 1975"?"
8. In the case of Vithalrao Ganpatrao Warhade v. State of Maharashtra 1983 Mah LJ952 Puranik j. read the words "Amending Act 1972 is Section 10(1) to mean unamended Act 1972 and observed as under :
"This Explanation to section 10 reagarding the deeming provison only relates to assuming an intention on the part of the tansferorsof avoiding or defeating the object of the Amending act, 1972 and it does not relate to the Amending Act XLVII/1975. it is therefore, clear to my mind that such transfer effectd by membes of a family unit who were already holding lands separately and possessing them separately prior to 26th day of September, 970 were permitted to transfer such alnd and not only that at the material daes when they were tansferred they could not be constructed even by deeming provison to have been efected with intent to defeat the provisons of the Amending Act, 1972. It is to be noted that the Amending Act, 1973, which is the Maharashta Act No. XXI of 1975 has the commencement date 19th September 1975 while the next Amending Act which is the Maharastra Act NO XLVII/75 has the commencement date 20-9-1975. An individual, therefore, holding the processing land separately before 26th day of September 1970 and even though a member of the family unit, his alnd could not be computed in the family unit and if each of such members were holding alnd within the ceiling limit their transfer during the period from 26th day of September, 1970 to 19th day of September 1975 could not be said to have been effected in anticipation or in order to avoid or defeat the object of the Amending. Act, 1972 (Maharashtra Act NO. XXI of 1975) for the simple reason that such Act itself permitted such separate holdings"
In the case of Ramrao Deshkar v. State of Maharashtra (Letters Pattent Appeal no. 2 of 1981 decided on 18th April 1984 a Division Bench of this Court (Waikar & Paunikar JJ.)) relying on Narayanibai (1976 Mah LJ 865 ) held that the sale of aldn held separately by a member of family unit prior to 26-9-1970 made in 1974 did not attract Section 10(1) though the total holdigns of the family unit had exceeded the ceiling limit on that day. In the case of Purushottam Deshmukh v. State of Maharashtra, Letters Patent Appeal No. 2 of 1982 decided on 7th July 1984 another divison Bench of this Court (Quzi & Vaze JJ.) agreed with the tratio in Vithalrao Warhade (1983 Mah LJ952).
. the referecne made in Pandurang Nemade by R.S Pandhye J. was answered by a Divison Bench (Ginwala & Patel JJ) on 27th September 1984. It is apparent that the attention of that Bench was not drawn to any of the three decisiosn referred to in the above paragraph viz. Vithalrao warhade, Ramrao Deshkar and Purushottam Deshmukh. However, that Divisiion Bench did notice Vithalarao Uttarwar (supra) disscussed various aspects threadbare and in its exhaustive judgemnet arived at the following conclusions:
(a) The only ratio of Naraynibai (1976 Mah LJ865) is that Section 10(1) is not attracted when the family unit is not in existeence on 2-10-1975;
(b) Portion from para 3 in Naryanibai 9quoted earlier by us in this judgement) were mere observations with relation to Narayanibai as an individual holder of alnd and as a member of family unit holding land.
(c) Question NO. II of the referecne was not correctly worded; however, if the learedn single Judge meant was as to which of the four judgments lays down proposition of law in conflict with ration of Narayanibai, the anser was "none"
(d) The expression "the object of Amending Act 1972 used in Section 10(1) and Explanation means as amended by Amending Act, 1975.
10. On 15th November 1984 Letters Patent Appeal No. 57 of 1982 arising out of decison of single Judge in Vithalrao Karekar (supra) came to be decided by a Division Bench (Paunikar & M.S. Deshpande JJ.) This Divisions Bench approved the view taken by the Bench of Ginwala & Patel JJ. in Pandurang. Nemade Pandurang Nemade's case was finally decided on 12-12-1984 by M.S. Deshpande J. on the basis of answrs recorded. by the Division Bench in a referecne and the view taken by two other Division Bench in a reference and the view taken by two other division Benches in (i) Vithalrao Karekar and (ii) Vithal Uttarwar .
11. During the Course of hearing of the present writ petition it was pointed out that two sets of judgements have taken conflicting views without noticing each other's point of view as a result element of uncertainty and confusion was prevailing in the courts below and hence it would be in the interst of justice, that the points involved are decided by a Full Bench. The learedn Chief Justice, who was here for hearing of other Full Bench matters, was approached by the learedn counsel and this mater was eferred to a Full Bench.
12. By this time two more judgements again exhaustively dealing with the points have been deliervered by a Single Bench (Dhabe J) Smt. Nirmalabaiv. State of Maharashtra and arun Sanghai v. State of Maharastra . In these matters, agreeding with the view taken by the Division Bench of ginwala and Patel, JJ. the view taken by Puranik J. In Vithalrao Warhade, (1983 Mah LJ 952) has been dissented to.
13. Point No. 1 is a pivotal point. The question is whether referecne to the expression "the Amending Act 1972" in Section 10 of the Principal Act is to the Act as it stood amended by amending Act, 1975 or as it orginally stood. Now the said expression occurring in section 10(1) willl have to be read not in isolation but in the context of the preceding words "the object of and alwasy bearing in midn that seciton 10 aims at only drawing a presumption. the Legislature has designly used the expresion as against the expression the Provisions of as is used by similar other legislations say for example amended section 4(1) of the Madhya Pradesh Ceiling on Agricultural Holdings Act 190 Thus the Object cannot be mixed with the provisons as rightly pointd out by Shri Jaiswal, the learedn Assitant Governemtn Pleader. The object of the Amending Act, 1972 quite obvisously is to equally distribute the land to landless, to further reduce the ceiling limit so that more land is available for such distribution and also to plug the holes made by ingenious and strategical o transcations by wealthy landholders in anticipation of the expected more and more and variety of legislative restriction on total holdings. the preamble of the Act broadly serves as object. It reads:
"Whereas, in the State of Maharashtra, the Maharashtra Agricultural Lands (Ceiling on Holdings ) Act, 1961 imposed for the first time, in the public interest the maximum limit (or ceiling on the holding of agricultural land, and provided for th acquisition of and held in excess of the ceiling for dsitribution there of amongst the peasantry of the State, and in particular, among landless persons and for other pruposes therein stated;
And whereas, it is now expedient to lower, in the public interest, the maximum limit (or ceiling ) on the holding of agricultural land in the State for making available additonal land as suplus, so as to secure a still more quitable disribution of aldn, and for the purpose of removing economic disparties, and thereby for assiting more effectively alndless and other persons; and generally for the purpose of so distributing the agricultrual resources of the community as best to subserve the common good, and also to prevent the connentration of the means of agriculatural production and wealth to the comon detriment;"
The object can be gathered also from the scheme of the Act. It became well kown quite in advance to the rich landholders generally a resourceful class that land holdings are in the offing and in times to come reduction of the ceiling limit from time to time is inevitable With a view to sabotage the exected restrictoins they hurriedly started transferring their lands. In many cases non- genuine transfers in favour of near kith and kin wre also effected. In the partical working o the orginal Principal Act its function futility occasioned on account of such transactions was noticed. Thus to make the Principal Act result orinted, presumptive seciton 10(1) and fictional concept of "Family unit " were introduced by Amending Act 1972. Amending Act, 1975 doe snot make any departure from the object of Amending Act, 1972 which continues to reamin the same even after amendment. Viewed from that stand point the controversy has only academic value.
14. whole controversy relating to the point has arisen because the Amending Act, 1972 was brought into force a day earlier to the brining into force of Amending Act, 1975. We ae unable to see how this factor alone will make the difference. Ameiding Act, 1972 was passed and gazetted on 7-8-1975 and was thus in existence since before Amending Act 1975 was passed and gazetted on 19th September 1975. The Bill was introduced in the Legislature on 9-8-1975. The Bill was introduced in the Legislature on 9-8-1975. quite obviously that Bill wasprepared and the Act was passd with referecne to the provisons of Amending Act, 1972 Can then, there be any doubt about legislative intention of the Amending Act 1975? On the question what the effect of an Amendment is useful referecne to the following of quoted pasage from the case of Sharmrao V. Parulekar v. Dist, Magistate, Thana, Bombay which has been rightly noticed in Vithalrao Uttarwar and Arun Sanghai may be made.
"The rule is that when a subsequen act amends an earlier one in such a way as to incorporate itself or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (Except where that would leard to a repungnancy inconsistency or absurdity as if the altered words had been wirtten into the earlie Act with pen and ink and the holder words scorded out so that thereafter there is no need to refer to the amending Act. at all."
Shamrao relates to an order of detenction dated 15-11-1951 issued under the Preventive Detection Act, 1950 which was to expire on 1-4-1952 as per the first amendment made in 1951. By Act No. 34 of 1952. its life was further extended up to 1-10-1952. The Act of 1952 provided inter alia that the detencion orders which had been confirmed previsouslyand which were in force immediately before the commencement of the Amending Act, "shall continue to remain in force so long as the Principal Act is in force so long as the Principal Act is in force". The Principal Act was defined by the Act 1952 as meandin the Act of 1950. The contention that detention order expired on 1-4-1952 and that the exteded date did not apply to such detention was eplled on the ground that the Act of 1950 has to be understood afte the amendment, the Act of 1950 as amended.
15. Mr. Chandurkar contended that ratio of the decision would not be attracted in this mater. We fail to know how. In this connection our attnetion was drawn to the case of Shree Ram Narain v. Simla Banking & Industrial Co. Ltd. in which the ratio in Shamrao has been considered and held not applicable in the context of overridng effect of (i) the Banking comapneis Act, 1949 and (ii) the Displaced Persons (Debt Adjustment) Act, 1951. Such is not the cae here. Equally inapplicable in the ratio in the case of thakorelal v. Gujarat Reveneue Tribundal in which section 40 of the Bomaby Tenancy and Agricultrual Lands Act, 1948 came up for cosnideration. Under the said provisons, tenancy of a deemed tenant came to an end on his death and the rights wer not heritable. By 1956 amendemnt the rights were made heritable. Question arose whether in case of a deemed tenant who had died before amendment the new right accured or not answer was "no" on tehg round that otherwise would amount to given retrospective operation to the amendment which was not given either expressly or by necessary implication.
16. It was contended that to hold that expression "Amending Act 1972" means as amended by Amending Act, 975 would amount to given retrospective effect is not intended to be given either expessly or impliedly. Mr. Deshpande also brought to our ntocie in this connectoin the case of State of Kerala v. Philomina dealing with the Kerala Land reforms Act, 1963. Under section 81 of the said Act lands known as kayal lands were exempt from certain provisosn Section 84 declared as invalid all voluntary transfers of alnds covered by the Act between 15-9-1963 and 1st Janurary 1970. By amending Act No. 35 of 1969 exemption to Kayal aldn granted under section 81 was withdrawn. The said amendment was brought into force on 1st January 1970. It was held that in the absence of amendments to Section 81 transfer of exempted aldn during the relevant period was not brought in the net, In so holding the scheme of that Act was considered. It was held that Seciton 84 had neither retrospective effect nor an overrriding effect over section 81. Now the said enactment is entirely differnt and it provison and the provisosn of section 10(1) are not at all in pari materia as a result ratio o that case has no application here. It is one thinkg to say that the Act has retrospective operation and quite another to say that it operates on an tecedent facts. It maybe seen in this regard that the Amending Act, 1972 as amended by the Amending Act, 1975 operates prospecively from the date of the enforcement of the Amending Act 1975, operates prospectively from the date of the enforcement of the the Amending Act, 1975, with effect from 20-9-1975. In fact it operates upon the events or transactions on and after the commencement date i.e 2-10-1975 as pe the provisions of seciton 3 of the Ceiling Act. But by the nature of the provisons of section 10(1) of the Ceiling Act, which takes into consideration antecedent facts in an enquiry for determination of supolsu land the said Amending Act, 1972 as amended by the Amending Act, 1975 has to act upon the said antocedent facts which would not make it retrospective in operation.
17. Our conclusion, therefore, is on 2-10-1975 when applicabiltiy of section 10(1) was to be seen, the Amending Act, 1972 stood amended by Amending Act, 1975. thus the expresison Amending Act 1972" occuring in Section 1091) has to be construed as Amending Act 1972 as amended by Amending Act 1975 because the latter Act stood incorpoated in the former Act, as a result proviso to seciton 4(1) stood deleted and it will have to be assumed for the purposes of Section 10 that the said proviso was not on the statue book on 2-10-1975 and no rights can be derived form tehs aid proviso. Any othe interpretation would render the amendemtn nugatory. Canons of construction mandate to avoid interpretations leading to such absurd results. After all we ae concerned with a welfae legislation interpretation of and approach to which ha alwasy to be purpsoe oriented and keeping in view national goals enshrined in part IV of the Constitution.
18. A debate was raised by Shri Madkholkar about the real meaning fo the expression in anticipation of or in order to avoid or defeat in S. 10 From Black's law Dictonary, the meaning of the word anticipation was read over to us. Principal contention was the landholders had no idea of the incoming legislation, till Bill No. LVI of 1972 was introduced on 7-8-1972 in the State Legislature and hence even if transactions from 26-9-1970 up to that date may be construed as being in anticipation of the Amending Act 1972 the same coudl not be said about transactoins after the date as the provisons were well known and nothing was in anticpation. In our judgement all this is jugglery of words and the submsision ignores the stark realities of the situation. These realities noticed in the case of Ambika Prasad v. State of U.P are that in 1970-1971 new agraian policy for reducing the ceiling limit was announced. Many alndholders wre resouceful enough to know what the thinking of the powers that be was \. They also coudl imageine that with increasing populaiton and area of alnd available for cultivation decreasing because of their conversion to non-agriculatural use, repeated lowering of the ceiling limit was unaviodable. They very well anticipated what was in stock for them and planned their transcations with a view to paralyse the future move of the government. Thus the words in anticipation of will have to be interpreted in the whole context and not in isolation merely keeping the dictionary meaning in view. A transfer is in antifciption of an Act when it is made with a veiw to defeat or dealy the object of the Act which is likely to be passed infuture as rightly heald in the case of Narbada Prasad v. State (FB) The legislative object behaid seciton 10 was to outwit the landholders manoeuvrings to the extent possible and so viewed the language used presents no interpretative difficulty.
19. The other two points are but different shades of point No.1 We, take up point nO. 2 first. Onece it is held that the Amending Act, 1972 means the Act as amended by Act of 1975 it follows that no 2-10-1975 the proviso to section 4(1) was not in existence as a result even transfer by a member of family unit holding aldn separtely prior to 26-9-1970 attracts presumption contemplated under section 10(1) In this conneciton it may also be noticed that first Explanation to Section 10(1) creates a legal fiction about nature of tansactions between the two periods. In Arun rightly dealt with in the following manner. We have nothing new to add.
"14. The above construction of the Amending Act, 1972 is of great assitancedin properly interpreting the legal fiction created in the first Explanaiton of section 10(!) of the Ceiling Act that all transfer made after the 26th day of Sept . 1970 but befoe the commencement date, shall be deemed (unless the contrary is provded ) to have been made in anticipation of or in order to avoid of defeat the objection of Amending Act, 1972. If the expression 'Amending Act 1972' in seciton 10(1) meant the Amending Act, 1972 as amended by Act No. 47 of 1975 as it stood on or after the commencement date, then giving full effect to the legal fiction it will have to beunderstood that all transfers made after the 26th day of Sept. 1970 but before the commencement date shall be deemed to ahve been made in anticipatio of or in order to avoid or defeat the object of Amending Act, 1973 the proviso to S. 4(1) of which stood deleted by the Amending Act 47 of 1975.
15 It is well settled that full efffect must be given to the statutory fiction and it should be carried to its logical conclusion (see State of Bomaby v. Pandurang Vinayak, ) It is also necessary for giving full effect to the legal ficiton to assume all those facts on which alone the fiction can operate 9See CIT Delhi v. S. Teja Singh, Air 1959 SC 3520 The classic oft quoted passage of Lord Asquith from East End Dwelling co. Ltd. v. Finsbury Borought Council (1951) 2 All ER 587 (HL) at Page 589, can be usfully referred to in this regard :
If you are bidden to treat an imaginary state afairs as real, you must surely, unless prohibited form doing so imagine as real the consequence and incidents which, if the urtive state of affiars had in fact existed, must inevitably have flowed from or accompanied it"."
Our attention was invited to Narayanibai (1976 Mah LJ 865) and it is contended that it has accepted the submission that presumption under seciton 10 would apply to transfer of alnds which were separatelyheld by an individuals as a member of family unit. We do not agree. As rightly held by a divison Bench in Pandurang Nemade"this question was not agitated in Narayanibai's case and the Court was not called upon to answer this quesiton. As a mater of fact, such a qustion could have arisen in this cae since the aldns which was sold by Narayanibai was owned and separately possessed by her even prior to 26-9-1970. If the learedn Judge deciding Narayanibai's case was of the view that the presumptin under seciton 10 of the Act was not attracted to aldns heldand separtely possessed by member of a family unit prior to 26-9-1970, that case could have been dispossed of on this ground alone and it was not neessary to enter into the questions which we have staed above.
20.Point No. 3 now In fact this point has to be answered in the affirmative in view of what we have held earlier, To hold that only because a membe of family unit had land less than ceiling limit at the time of transfer, Section 10 is not attracted despite family unit's limit exceeding the limit would introduced anamolies, make the provisiosn unworkable and frustrate thevery object. Our atention is drawn to observations in para 3 of Narayanibai (quoted earlier). In these obsevations here in referecen to Abdul Bhai's (supra) ratio of which we have aleady explained. A Divisin Bench in Pandurang Nemade has rightly held that obvisouly this part o the decision relates to narayanibai (1976 Mah LJ 865) as an individual holder of land and not as a member of family unit holding land". Indeed various shades of Narayanibai have been exhasutively considered by that Divisoin Bench and we have respectful concourrance with the conclusins drawn therein about what Narayanibai decides and what it does not . We reiterrate that Naryanibai decides only one pointed and it is this Section 10(1) is not attracted when family unit is not in existence on 2-10-1975. We have aleady quoted relevant passaes in Narayanibai. Earlier part of para 5 in Narayanibai formulates the quesiton of consideration in the context of the submission of the State that on the date of transfer of her land by narayaniabi, she and her husband constitutated a family unit the holding of whcih exceed the ceiling limit and hence those transfers must be taken to be transfers of a member of family unit and thus atttract seciton 10. is retrospective and the conception of family unit must also be deemed to have been deliberative and the conceptin of family unit must also be deemed to have been deliberately made effective retrospectively.
21. Thus in our view Narayaniabi has not held that seciton 10(1) is not attractd in cases of a transfer by a member of family unit whose individual holding is below ceiling limit at the time of transfer. By any chance if ratio of Narayanibai is construed as being contraty to what is construed as its correct ration by a Diision Bench in Pandurang. Nemade, that would be an erroneous view of the legal position. In this connection our attention was invited to the fact that aggrieved by the decision rendered in Narayanibai the State of Maharashtra had filed Special Leave Petition in the Supreme Court being Special Leave Petiton (Civil) No 3095 of 1977 decided on 24-10-1977 in which the following order was passed.
"Special Leave Petiton is rejected because we find that on the facts of the case of respondent has proved tha the sales made on 10th November, 1971 were not in anticipation or for the purpose of defeating the object of aldn ceiling legisation."
why the Supreme court has not granted leve in clear form the order. It has not decided any point as such and hence this aspect of the mater can have no impact on our view.
22. Ramrao Deshkar has not fiven any reasons as how ratio of Narayanibai 91976 Mah LJ 865) applies. Basic facts therein indicate that ratio is erroneously applied In our view. ratio of Narayanibai is also erroneously applied in Vithalrao Warhade (1983Mah LJ 952) which even otherwise does not lay down the correct legalpossiot about proviso to seciton 4 of the Amending Act 1972 vis-a-vis section 10(1) of the Act, Purushottam Deshmukh enorses the view in vithalrao Warhade without giving any additonal reasons. Hence in our judgment the above three decisons and others taking similar views do not lay down correct legal positon True it is that Pandurang Nemade ha not noticed the above three cases through they were decided earlier, but the aspect of the matter now has only cademic value. We may mention that vithalrao Karekar, Arun Sanghai and Smt. Nirmalabai (All of which are decided after referecen in Pandurang Nemade was answered) have fully enorsed the view taken by th Divison Bench in Pandurang Nemade by giving additonal weightly reasons and we concur with them.
23. To conclude, we anser allth three points in the affirmative.
24. The writ petiton be placed before the learned single Judge for its disposal according to law Reference answered in afirmative.