STATE OF GUJARAT Vs MANOHARSINHJI PRADYUMANSINHJI JADEJA
Bench: B.S. CHAUHAN,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: C.A. No.-000612-000612 / 2002
Diary number: 18204 / 2001
Advocates: HEMANTIKA WAHI Vs
ANIP SACHTHEY
Page 1
Reportable
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.612 OF 2002
State of Gujarat & another …Appellants
VERSUS
Manoharsinhji Pradyumansinhji Jadeja …Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. The State of Gujarat and the Mamlatdar & Agriculture are
the appellants. The appellants are aggrieved by the
judgment of the Single Judge of the High Court of Gujarat
at Ahmedabad dated 11.10.2000 and the final order of the
Division Bench dated 20.10.2000 passed in Letters Patent
Appeal No.597/2000 in Special Civil Application No.4015 of
1990. By the said impugned judgment and the final order,
the Letters Patent Appeal preferred by the appellants came
to be dismissed confirming the judgment of the learned
Civil Appeal No.612 of 2002 1 of 105
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Single Judge passed in Special Civil Application No.4015 of
1990 dated 06.05.1999.
2. The second appellant herein initiated proceedings under
the provisions of The Gujarat Agricultural Lands Ceiling
Act, 1960 (hereinafter called as ‘the Act of 1960’) and after
hearing the interested party, passed an order dated
24.08.1982 in Ceiling Case No.2 of 1976 holding that the
land to an extent of 587 acres 35 Gunthas was in excess of
ceiling limit and the respondent was entitled to retain only
balance land i.e. 51 acres.
3. The respondent preferred an appeal under Section 35 of
the 1960 Act to the Deputy Collector, Rajkot. The Deputy
Collector dismissed the appeal by an order dated
10.11.1983. The respondent preferred a revision under
Section 38 of the Act of 1960 which was registered as
TEN.B.R.4/84 before the Gujarat Revenue Tribunal. The
Gujarat Revenue Tribunal by its judgment dated
08.09.1989 partly allowed the revision and directed that
Randarda lands admeasuring 40 acres to be included in
the total holding, that Bhomeshwar Temple admeasuring
Civil Appeal No.612 of 2002 2 of 105
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12 acres 34 Gunthas to be excluded from the holding of the
respondent and remanded the matter back to the second
appellant for taking evidence regarding the age of the
members of the family.
4. Aggrieved by the order of the Gujarat Revenue Tribunal,
the respondent preferred the writ petition in Special Civil
Application No.4015 of 1990. Before the learned Single
Judge, the respondent took the stand that his lands were
covered by the Urban Land (Ceiling and Regulation) Act,
1976 (hereinafter called the ‘Act, 1976’) and was not
governed by the Act of 1960. In fact, the said stand of the
respondent was raised for the first time in the writ petition.
The stand of the respondent was accepted by the learned
Single Judge and by the judgment and order dated
06.05.1999 passed in Special Civil Application No.4015 of
1990, the judgment and order of the Gujarat Revenue
Tribunal dated 08.09.1989 in Revision Application
No.TEN.B.R.4/84 was set aside and the Rule was made
absolute.
Civil Appeal No.612 of 2002 3 of 105
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5. The appellants preferred Letters Patent Appeal
No.597/2000 and by the order impugned in this civil
appeal, the said LPA having been dismissed, the appellants
have come forward with this appeal.
6. We heard Mr. Soli J. Sorabjee, learned senior counsel for
the appellants and Mr. Shekhar Naphade, learned senior
counsel for the respondent. Mr. Soli J. Sorabjee, learned
senior counsel for the appellants in the first instance traced
the existence of the Act of 1960 as it originally stood which
was enforced on 15.06.1961 and, thereafter, the initiative
taken by the Gujarat State Legislative Assembly by passing
a resolution on 14.08.1972 under Article 252 (1) of the
Constitution of India authorizing the Parliament to legislate
with respect to ‘imposition of ceiling on the holding of
urban immovable property’. Learned senior counsel also
referred to the amendment passed by the State Legislature
to the definition of ‘land’ in the Act of 1960 by way of
‘removal of doubts’ to the expression ‘Bid lands’ also to be
included in the definition of ‘land’ on 23.02.1974 which
amendment was notified on 01.04.1976 under the Gujarat
Agricultural Lands Ceiling (Amendment) Act, 1972. Learned
Civil Appeal No.612 of 2002 4 of 105
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senior counsel also brought to our notice the coming into
force of the Act, 1976 on and from 17.02.1976.
7. While elaborating his submissions on the various
provisions contained in the different enactments, in the
foremost, the learned senior counsel referred to the
expressions ‘agriculture’ under Section 2(1) and ‘land’
under Section 2(17) of the un-amended, Act of 1960.
Learned counsel also referred to Section 6 which sought to
fix the ceiling on holding of such agricultural land. In that
context, learned senior counsel brought to our notice the
Statement of Objects and Reasons for bringing out the
Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972
(being Gujarat Act No.2 of 1974) (hereinafter called the
Amendment Act, 1974) wherein, inter alia, it sought to
remove doubts relating to ‘Bid lands’ of former Princes, as
well as, Girasdars and Barkhalidars in the Saurashtra area
which were duly covered under the definition of ‘land’ and
submitted that it was only with a view to remove doubts
that the Amendment Act was brought out and that it was
not by virtue of the said amendment alone ‘Bid lands’ fell
within the definition of ‘land’.
Civil Appeal No.612 of 2002 5 of 105
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8. In other words, according to learned senior counsel, even
as per the definition of ‘land’ under Section 2(17) read
along with the definition of “agriculture” under Section 2(1)
of the un-amended Act of 1960, ‘Bid lands’ were duly
covered within the said expression of ‘land’ and the
Amendment Act, 1974 only sought to remove any doubt in
the mind of anyone as regards the character of the ‘Bid
lands’.
9. The learned senior counsel then referred to Section 2(q),
namely, the definition of ‘vacant land’ and Section 2(o), the
definition of ‘urban land’ under the provisions of the Act,
1976 to contend that even going by the said definitions,
such land within the urban agglomeration which fall within
the definition of ‘agricultural land’ stood excluded for the
purpose of application of the Act, 1976.
10. Learned senior counsel also brought to our notice the
definition of ‘Bid land’ under Section 2(a) of the Saurashtra
Estates Acquisition Act, 1952 (hereinafter called as the
“Saurashtra Act No. III of 1952”) as well as the definition of
the very same expression, namely, ‘Bid land’ under the
Civil Appeal No.612 of 2002 6 of 105
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Saurashtra Land Reforms Act, 1951 (hereinafter called as
the “Saurashtra Act No.XXV of 1951) as well as Saurashtra
Barkhali Abolition Act (hereinafter called as the
“Saurashtra Act No.XXVI of 1951) and contended that even
long prior to the Amendment Act 1974 ‘Bid land’ has been
defined to mean a land used by Girasdars or Barkhalidars
for grazing cattle or for cutting grass, for the use of cattle,
meaning thereby that such lands were nonetheless
‘agricultural lands’. In the light of the above statutory
provisions relating to the ‘Bid land’ learned counsel
submitted that de hors the Amendment Act 1974 which
came to be notified on 01.04.1976 ‘Bid land’ fell within the
definition of ‘land’ under the Act of 1960 and consequently
there was no scope for the respondent to fall back upon the
Act, 1976 in order to challenge the order passed by the
second appellant which ultimately came to be confirmed by
the Gujarat Revenue Tribunal which was set aside by the
judgment of the Division Bench in the order impugned in
this appeal.
11. The learned senior counsel further contended that this very
issue was considered by this Court in a recent decision in
Civil Appeal No.612 of 2002 7 of 105
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Nagbhai Najbhai Khackar Vs. State of Gujarat reported in
(2010) 10 SCC 594 which has taken the view that the
definition of ‘land’ under Section 2(17) read along with
Section 2(1) of the Act of 1960 ‘Bid land’ would fall within
the definition of ‘agriculture’ and consequently governed by
the definition Section 2(17) which define the expression
‘land’ and, therefore, the ceiling limit prescribed under
Section 6 of Act of 1960 would be applicable to the ‘Bid
lands’ of the respondent. The learned senior counsel also
relied upon the decision of the Privy Council in London
Jewellers Limited Vs. Attenborough – (1934) 2 K.B. 206;
the House of Lords decision in Jacobs Vs. London County
Council – (1950) 1 All E.R. 737; and the Queens Bench
decision in Behrens and another Vs. Bertram Mills
Circus Ltd. – (1957) 1 All E.R. 583 for the proposition that
wherein a decision more than one reason is assigned to
support the ultimate conclusion, both the reasons will have
binding effect and that one cannot be excluded under any
pretext. The learned senior counsel also relied upon Smt.
Somawanti and others Vs. State of Punjab and others -
AIR 1963 SC 151 wherein it was held that the binding
Civil Appeal No.612 of 2002 8 of 105
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effect of a decision does not depend upon whether a
particular argument was considered therein or not,
provided that the point with reference to which an
argument was subsequently advanced was actually
decided. The learned senior counsel, therefore, contended
that in the recent judgment of this Court in Nagbhai
Najbhai Khackar (supra) when the ultimate decision was
reached based on two grounds, both the grounds, would be
the ratio of the decision and, therefore, the said decision
will be complete answer to the question involved in this
appeal.
12. In the alternate learned senior counsel submitted that the
argument of the respondent which weighed with the
learned Single Judge as well as the Division Bench of the
High Court in the impugned judgment based on the Act,
1976 vis-à-vis the Act of 1960 read along with Amendment
Act 1974 was not sustainable. According to learned senior
counsel, in the first place, there could not be any
repugnancy as between the Act of 1960 and the Act, 1976,
inasmuch as the amendment of the definition of ‘land’ in
the Act of 1960 was amended as early as on 23.02.1974, Civil Appeal No.612 of 2002 9 of 105
Page 10
namely, long prior to the coming into force of the Act, 1976.
According to learned senior counsel the relevant date is the
date when the Amendment Act came to be passed in the
Assembly on 23.02.1974 and the subsequent notification
dated 01.04.1976 bringing into effect the Amendment Act
1974 was not the relevant date. In other words, according
to him, when once the amending legislation was passed in
the Assembly in the year 1974 the subsequent notification
though was made in the year 1976 for bringing into force
the amendments, the relevant date would be the date when
the Act was passed and not the date when it was notified.
The learned counsel then contended that in any case the
resolution dated 14.08.1972 was passed under Article
252(1) of the Constitution relating to the legislation with
respect to ceiling on ‘urban immovable property’ and it had
nothing to do with the ‘agricultural land’. The learned
counsel, therefore, contended that the conclusion of the
learned Single Judge, as well as, that of the Division Bench
in having non-suited the appellants on the specific ground
that by virtue of the provisions of the Act, 1976 the
appellants’ action in proceeding against the respondent
Civil Appeal No.612 of 2002 10 of 105
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under the Act of 1960 was null and void was unsustainable
in law. Learned senior counsel contended that once the
Act, 1976 stood repealed, as a corollary, the Act of 1960
with all the Amendments carried to it would automatically
get revived and it will not become a dead letter as
contended on behalf of the respondent. Learned senior
counsel referred to the decision of this Court in M.P.V.
Sundararamier & Co. Vs. The State of Andhra Pradesh &
another - 1958 SCR 1422 in support of the said
submission. Learned senior counsel also relied upon
Thumati Venkaiah and others Vs. State of Andhra
Pradesh and others - (1980) 4 SCC 295 for the said
proposition. The learned counsel, therefore, contended
that, in the light of the recent decision of this Court in
Nagbhai Najbhai Khackar (supra), which squarely covers
the case on hand, the order impugned is liable to be set
aside.
13. As against the above submission, Mr. Naphade, learned
senior counsel prefaced his submission by contending that
the stand of the appellants that ‘Bid lands’ were agriculture
Civil Appeal No.612 of 2002 11 of 105
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lands under the Act was not correct. Learned senior
counsel pointed out that the appellant initiated proceedings
against the respondent both under the Act of 1960, as well
as, the Act, 1976 and that in fact they were also keen to
proceed under the Act, 1976. While referring to the
submission of learned senior counsel for the appellant Mr.
Naphade contended that the argument based on Article
252 of the Constitution and its effect was almost given up
by the appellant. The learned senior counsel after referring
to the unamended Act of 1960 and the definition of
‘agriculture’, ‘agriculturist’ and ‘to cultivate personally’ and
the definition of ‘agricultural land’ and ‘Bid Land’ of
Girasdar under the Saurashtra Act No.XXV of 1951
contended that the various definitions under the Act of
1960 were more concerned with the ‘agriculturists’ and
their close proximity to the land held by them, while under
the Saurashtra Reforms Act the stress was more on the
lands held by the grantees as tenure holders in some form
or the other. In that context, learned senior counsel
submitted that the definition between the ‘Bid land’ and the
‘agriculture land’ was clearly known to the Legislature as
Civil Appeal No.612 of 2002 12 of 105
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could be seen from the definition so drawn in the
provisions contained under the Act of 1960, as well as, the
Saurashtra Land Reforms Act. According to learned senior
counsel, the reference to the description of ‘Bid lands’
under Saurashtra Act No.XXV of 1951 and the ‘Act XXVI of
1951 disclose that the Legislature was conscious of the fact
that the Act of 1960 did not include ‘Bid lands’ in the
definition of ‘land’.
14. While referring to the amendment which was brought
out to the definition of ‘land’ in the Act of 1960, in
particular Sections 4, 5 and 10 of the Amendment Act by
which amendment was brought into Sections 2(1) and 2(17)
and introduction of Section 2(27A) in the principal Act the
learned counsel contended that the intention of the
Legislature to bring into effect certain consequences
pursuant to the amendment after the specified date,
namely, 01.04.1976 was clearly spelt out. According to
learned counsel, it was not merely by way of removal of
doubt that the Amendment Act of 1974 was brought in but
a significant purport was intended in bringing out such
amendments to take effect on and after 01.04.1976 which
Civil Appeal No.612 of 2002 13 of 105
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has been specifically mentioned in Section 2 (27A) which
came to be introduced by Amendment Act of 1974.
15. The learned senior counsel then contended that even
assuming that the Amendment Act of 1974 would apply to
the case on hand, since the respondent did not fall under
the definition of ‘Ruler’ as stipulated in Section 2(17)(ii)(d)
of the Amended Act, the Act of 1960 cannot be applied to
the case of the respondent. Learned senior counsel by
referring to Article 366 of the Constitution pointed out that
under sub-clause 22 of Article 366 a ‘Ruler’ has been
defined to mean the Prince, Chief or other person who at
any time before the commencement of the Constitution
(26th Amendment) Act, 1971 was recognized by the
President as the ‘Ruler’ of an Indian State or any person
who at any time before such commencement was
recognized by the President as the successor of such ‘Ruler’
and a person thus fulfill the above criteria alone would
come within the definition of ‘Ruler’. The learned senior
counsel contended that the respondent was never
recognized in accordance with such constitutional
provision and, therefore, the said Section 2(17)(ii)(d) of the
Civil Appeal No.612 of 2002 14 of 105
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Amended Act can have no application to the case of the
respondent. It was further contended that the respondent
would neither fall under the category of Girasdar or
Barkhalidar or in the category of ‘Ruler’ and, therefore,
even if the Amended Act of 1974 is applied, the respondent
stood excluded from the coverage of the Act.
16. The learned senior counsel, therefore, contended that the
argument that ‘Bid lands’ were already governed by the
definition of ‘agriculture’ (i.e.) long prior to the coming into
force of the 1974 Act, namely, from 01.04.1976 cannot be
accepted. A fortiori, learned senior counsel contended that
when the statute is clear in its ambit and scope and there
being no ambiguity, there was no necessity to rely upon or
refer to the Objects and Reasons to understand the purport
of the enactment and relied upon the Constitution Bench
decision of this Court reported in Pathumma & Others Vs.
State of Kerala & Ors. reported in (1978) 2 SCC 1. The
learned senior counsel, therefore, contended that whatever
argument now raised based on the expression ‘Bid lands’
on behalf of the appellant may hold good only after
01.04.1976 and that the heavy reliance placed upon Civil Appeal No.612 of 2002 15 of 105
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Nagbhai Najbhai Khackar (supra) cannot also come to the
aid of the appellant since the various principles set out in
the said decision were solely based on the Amendment Act,
1974 as has been specifically spelt out in various
paragraphs of the said decision. The learned senior
counsel pointed out that the said decision, does not, apply
to the facts of this case, inasmuch as, there was no
reference to the implication of the Act, 1976 which came
into effect as early as on 17.02.1976 vis-à-vis the Act of
1960 and the said Act being an Act of Parliament, the
appellant was bound by the provisions contained therein
which would negate the entire submission made on behalf
of the appellant.
17. According to learned senior counsel when the application of
Act, 1976 was not the subject matter of consideration while
deciding the scope of the amendment Act of 1974 in the
judgment reported in Nagbhai Najbhai Khackar (supra),
reliance placed upon the said decision on behalf of the
appellant is of no relevance.
Civil Appeal No.612 of 2002 16 of 105
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18. The next submission of Mr. Naphade was that the Act,
1976 and the Act of 1960 were operating in their respective
fields, though relatable to holding of lands. Learned
counsel after making reference to Section 1(2), 2 (A), 2 (C),
2(N) and the Schedule to the Act, 1976 pointed out that
Rajkot where the disputed land situate, fell within the
urban agglomeration area, that the land in question is
admittedly a land referred to in the Master Plan as has
been stipulated under Section 2(o) of the Act, 1976 and,
therefore, there is a world of difference for considering the
land classified as ‘agricultural land’ under both the
enactments. According to learned senior counsel, having
regard to the Explanations A, B & C of Section 2(q) of the
Act, 1976 a conscious departure has been made with
reference to the description of ‘agricultural land’ inasmuch
as under the said Act it must be shown that the land was
being ‘used’ for agricultural purposes in contradistinction
to the Act of 1960 where a land simpliciter falling under the
definition of ‘agriculture’ would alone be the relevant factor.
Mr. Naphade in his submissions contended that having
regard to the emergence of Act, 1976 on and from
Civil Appeal No.612 of 2002 17 of 105
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17.02.1976 and by virtue of the Constitutional mandate,
the Act of 1960 ceased to have any effect on any
‘agricultural land’ in the State of Gujarat. In other words,
according to learned senior counsel, since admittedly the
lands belonged to the respondent were lying within the
urban agglomeration specified under the Schedule to the
Act, 1976 the application of Act of 1960 ceased to have any
effect on the said land and, therefore, the appellant had no
authority to invoke the provisions of the Act of 1960 for the
purpose of acquisition.
19. Learned senior counsel contended that the 1974
Amendment to the Act of 1960 was a ‘still born child’
inasmuch as it came into effect only from 01.04.1976
whereas the Act, 1976 was brought into force on
17.02.1976 itself and was holding the field. The learned
counsel stressed the point that the date of passing of the
Act was not the relevant date and what was relevant was
the date of implementation of the Act which legal principle
was well settled as per the decision reported in In the
matter of the Hindu Women’s Rights to Property Act,
1937 - AIR 1941 F.C. 72. Civil Appeal No.612 of 2002 18 of 105
Page 19
20. While meeting the argument of Shri Soli Sorabjee, the
contention of Mr. Naphade on Article 252 was that having
regard to the invocation of the said Article by the State of
Gujarat, there was a virtual surrender of its power to
legislate and thereby it was denuded of bringing out any
legislation afresh or by way of amendment on the subject
governed by this legislation brought out pursuant to
invocation of Article 252 of the Constitution. In that
context, learned senior counsel brought to our notice
Section 103 of the 1935 Act which was the comparative
provision to Article 252 of the Constitution and pointed out
that under Section 103 of the 1935 Act while the States
could approach the Federal Government for bringing out a
legislation, having regard to the specific provisions
contained in the said Section, the power to deal with such
legislation for any future contingency was retained by the
State Government, while on the contrary the framers of our
Constitution even after a specific point raised in the
Constituent Assembly proceedings for retention of such a
power by the State Government, Article 252 (2) ultimately
came to be framed making it clear that once the power of
Civil Appeal No.612 of 2002 19 of 105
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the legislative competence of the State was surrendered to
the Parliament, thereafter any future legislation on the
subject could only be dealt with by the Parliament and the
state was completely denuded of such power. In support of
the said submission, learned senior counsel relied upon
M/s R.M.D.C. (Mysore) Private Ltd. (supra) and State of
U.P. Vs. Nand Kumar Aggarwal and others - (1997) 11
SCC 754.
21. Learned senior counsel after referring to the orders of
the Mamlatdar dated 24.08.1982, the Deputy Collector
dated 10.11.1983 and the Gujarat Revenue Tribunal dated
08.09.1989 as compared to the return filed by the
respondent under Section 6 of the Act, 1976 dated
13.08.1976, the order of the competent authority dated
25.05.1983 and the order of the Tribunal under the Act,
1976 dated 18.09.1991 contended that even according to
the appellants themselves as stated in their reply affidavit
no agricultural operation was carried out in survey
No.111/2-30 and thereby virtually admitting the position
that the lands in question can never be held to be
‘agricultural lands’. The learned counsel contended that Civil Appeal No.612 of 2002 20 of 105
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the appellants were blowing hot and cold, that for the
purpose of coverage under the Act, 1976 they wanted to
contend that the lands were not agricultural land, while
when it came to the question of coverage under the Act of
1960, they contended that the very same lands as ‘Bid
lands’ would fall within the definition of ‘agriculture’. The
learned counsel, therefore, submitted that the impugned
judgment of the High Court was well justified and does not
call for interference.
22. Lastly, it was contended by the learned senior counsel for
the respondent that the case of the appellant is also hit by
the principle of res judicata. The learned senior counsel by
referring to an order passed by the Deputy Collector,
Bhavnagar relating to Bhavnagar ‘Bid lands’ in his order
dated 09.11.1979 specifically held that the Act of 1960 was
not applicable to the said lands and that only Act, 1976
would apply. It was pointed out that when the issue went
before the High Court of Gujarat in Special Civil Application
No.941 of 1980 a joint affidavit of two Deputy Collectors
dated 06.10.1980 came to be filed with reference to
Bhavnagar ‘Bid lands’ wherein it was reiterated on behalf of
Civil Appeal No.612 of 2002 21 of 105
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the Government that only Act, 1976 would apply to ‘Bid
land’ in urban agglomeration of Bhavnagar and that the Act
of 1960 was not applicable. Learned senior counsel also
referred to an affidavit dated 16.02.2000 filed by the
Deputy Secretary, Revenue Department, Government of
Gujarat in relation to Bhavnagar ‘Bid lands’ before the High
Court of Gujarat in Civil Application No.15529/1999 in
S.C.A. No, 10108/1994 wherein a clear stand was taken by
the State Government that possession of Bhavnagar ‘Bid
land’ not having been acquired and taken under the Act,
1976 when the Act was in force, after its repeal, there was
no scope to take possession of those lands.
23. The learned senior counsel also referred to the decision of
this Court in Palitana Sugar Mills (P) Ltd. and another
Vs. State of Gujarat and others - (2004) 12 SCC 645 and
contended that in a contempt petition filed at the instance
of a purchaser of Bhavnagar ‘Bid lands’ this Court after
tracing the history of the earlier litigation wherein it was
concluded that Bhavnagar ‘Bid lands’ were controlled by
the provisions of the Act, 1976 and not by the Act of 1960
and consequently the matter having been finally decided by Civil Appeal No.612 of 2002 22 of 105
Page 23
the Courts and reached its finality the authorities cannot
reopen the same. The learned senior counsel, therefore,
contended that since the decision on the applicability of the
Act of 1960 vis-à-vis the Act, 1976 in relation to ‘Bid lands’
of the ‘Ruler’ of erstwhile Bhavnagar State having been
examined and ultimately concluded that in respect of such
lands only the Act, 1976 would apply, in the case on hand
as the lands in question were lying within the ‘urban
agglomeration’ area, the said conclusion which reached its
finality in this Court would operate as res judicata. The
learned senior counsel contended that though this
contention was raised before the High Court, the Division
Bench after referring to the contention felt it unnecessary
to decide the issue since the stand of the appellant was
rejected on other grounds.
24. While meeting the last of the submission of learned senior
counsel for the respondent, Mr. Soli J. Sorabji contended
that the principle of res judicata can have no application to
the case on hand since none of the earlier proceedings
relating to Bhavnagar ‘Bid lands’ had anything to do with
the lands of the respondent with reference to which alone
Civil Appeal No.612 of 2002 23 of 105
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we are concerned and, therefore, on that score itself the
said contention should be rejected. According to learned
senior counsel, the application of the principle of res
judicata, as set out in Section 11 of CPC, was not fulfilled
and, therefore, the said submission made on behalf of the
respondent cannot be considered. The learned senior
counsel pointed out to the specific facts which were
referred to in the joint affidavits of two Deputy Collectors
filed in S.C.A. No.941/1980 wherein it was specifically
averred to the effect that since a long time to the knowledge
of the land holder, the land in question were demonstrated
or meant for residential purpose in the master plan which
was prepared since August 1976, that the land in question
fell within the definition of ‘urban land’ under Section 2(o)
of the Act, 1976 and, therefore, the overriding effect of
Section 42 of the Act, 1976 excluded the application of the
Act of 1960. The learned senior counsel contended that in
the light of the above peculiar facts relating to Bhavnagar
‘Bid lands’ which ceased to be a ‘Bid land’ and was
classified as residential plot in the Master Plan at the
relevant point of time, the stand of the authorities as
Civil Appeal No.612 of 2002 24 of 105
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regards the exclusive application of Act, 1976 continued to
be maintained even after the said Act came to be repealed.
The learned senior counsel contended that it will be
preposterous if a decision reached in regard to a case
which was governed by its own special facts to apply the
principle of res judicata to a different case where the fact
situations are entirely different and in which case in no
prior proceedings it was admitted by the authorities
concerned that Act, 1976 alone would apply to the
exclusion of the Act of 1960.
25. Having heard the eloquent submissions of Shri Soli J.
Sorabjee, learned senior counsel for the appellant and the
enlightening submissions of Shri Naphade, learned senior
counsel for the respondent, we find that while the simple
case of the appellant, namely, the State of Gujarat is that
the respondents’ lands being ‘Bid lands’ are agricultural
lands and thereby governed by the provisions of Act of
1960, the whole endeavour of the respondent was that the
lands were never classified as “agricultural lands”, that
they were indisputably “urban lands” governed by the
provisions of the Act, 1976 and consequently the
Civil Appeal No.612 of 2002 25 of 105
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application of the Act of 1960 stood excluded. The
enlightening submissions of the respective counsel oblige
us to set out various legal principles highlighted before us
in order to appreciate the respective submissions and
thereby arrive at a just conclusion.
26. In the forefront, we want to make a detailed reference to
certain relevant provisions of the Act of 1960 prior to its
amendment and after its amendment, Saurashtra Act No.III
of 1952, Saurashtra Act No.XXV of 1951, Saurashtra Act
No. XXVI of 1951, Section 103 of The Government of India
Act, 1935 and Article 252 of the Constitution. The relevant
provisions under the unamended Act of 1960 are Section
2(1), Section 2(3), Section 2(11), Section 2 (12), Section
2(17) and Section 6. Under the amended Act of 1960, the
relevant provisions are Section 2(1) (a) (b), (c), Section 2(17)
(i) (ii) (a), (b), (c), (d) and Section (27A). Under Saurashtra
Act No.III of 1952, the relevant provisions are Section 2(a),
(b), (e), (f), Section 4 and Section 5(1), (2). Under
Saurashtra Act XXV of 1951, the relevant provision are
Civil Appeal No.612 of 2002 26 of 105
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Sections 2(6), 2 (15) and 2(18). Under the Saurashtra Act
No.XXVI of 1951, the relevant provision is Section 2 (ii).
27. For easy reference, the above provisions are extracted
hereunder:
The Gujarat Agricultural Lands Ceiling Act, 1960
Section 2. Definitions- In this Act, unless the context requires otherwise-
(1) “agriculture” includes horticulture, the raising of crops, grass or garden produce, the use by an agriculturist of the land held by him or part thereof for grazing but does not include-
(i) the use of any land, whether or not an appenage to rice or paddy land, for the purpose of rab-mannure;
(ii) the cutting of wood, only;
(iii) dairy farming;
(iv) poultry farming;
(v) breeding of live-stock; and
(vi) such other pursuits as may be prescribed.
Explanation – If any question arises as to whether any land or part thereof is used for any of the pursuits specified in any of the sub-clauses (i) to (vi), such question shall be decided by the Tribunal;
(3) “agriculturist” means a person who cultivates land personally”
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(11) “to cultivate” with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce, whether by manual labour or by means of cattle or machinery or to carry on any agricultural operation thereon;
Explanation- A person who enters into a contract only to cut grass or to gather the fruits or other produce of trees, on any land, shall not on that account only, be deemed to cultivate such land;
(12) “to cultivate personally” means to cultivate land 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 any member of one’s family by hired labour or by servants on wages payable in cash or kind but not in crop share;
Explanation- I.-A widow or a minor or a person who is subject to any physical or mental disability, or a serving member of the armed forces shall be deemed to cultivate land personally, if such land is cultivated by her or his servants or hired labour;
Explanation II.- In the case of a joint family, land shall be deemed to be cultivated personally, if it is so cultivated by any member of such family;
(17) “land” means land which is used or capable of being used for agricultural
Civil Appeal No.612 of 2002 28 of 105
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purposes and includes the sites of farm buildings appurtenant to such land;
Section 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 sub-sections (2) and (3) 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 and land is also separately held by such individual’s spouse or minor children, then the land held by the individual and the said members of the individual’s family 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 had been held by one person.
(3) Where on the appointed day a person holds exempted land along with 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.
(4) Land which under the foregoing provisions of this section a person is not entitled to hold shall be deemed to be surplus land held by such person.
The Gujarat Agricultural Lands Ceiling Act 1960 (After the amendment)
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2. In this Act, unless the context requires otherwise-
(1) “agriculture” includes-
(a) horticulture,
(b) the raising of crops, grass or garden produce,
(c) the use by an agriculturist of the land held by him or part thereof for grazing
17. “land” means-
(i) in relation to any period prior to the specified date, land which is used or capable of being used for agricultural purpose and includes the sites of farm buildings appurtenant to such land;
(ii) In relation to any other period, land which is used or capable of being used for agricultural purposes, and includes-
(a) the sites of farm buildings appurtenant to such land;
(b) the lands on which grass grows naturally;
(c) the bid lands held by the Girasdars or Barkhalidars under the Saurashtra Land Reforms Act, 1951, the Saurashtra Barkhali Abolition Act, 1951 or the Saurashtra Estates Acquisition Act, 1952, as the case may be;
(d) such bid lands as are held by a person who, before the commencement of the Constitution (Twenty-Sixth Amendment) Act, 1971 was a Ruler of an Indian State comprised in the Saurashtra area of the State of Gujarat, as his private property in pursuance of the covenant entered into by the Ruler of such State:
Civil Appeal No.612 of 2002 30 of 105
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(27A) “specified date” means the date of coming into force of the Amending Act of 1972.
Under Saurashtra Act No.III of 1952 the relevant
provisions are Section 2(a), (b), (e), (f), Section 4 and Section
5(1), (2):
“2. In this Act, unless there is anything repugnant to the subject or context-
(a) “Bid land” means such land as on the 17th April, 1951 was specifically reserved and was being used by a Girasdar or Barkhalidar for grazing cattle or for cutting grass:
(b) “cultivable waste” means cultivable land which has remained uncultivated for a period of three years or more before the 17th April, 1951
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) “land” means land of any description whatsoever and includes benefits arising out of land and things attached to the earth, or permanently fastened to anything attached to the earth.
(f) words and expressions used but not defined, in this Act, and defined in the Saurashtra Land Reforms Act, 1951 and the Saurashtra Barkhali Abolition Act, 1951 shall have the meanings assigned to them in those Acts.
3. xxx xxx xxx
4. When a notification is issued by the Government in respect of an estate or any part
Civil Appeal No.612 of 2002 31 of 105
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thereof under section 3, then, with effect from the date specified in the notification, the following consequences shall, in respect of that estate or part thereof, ensue, namely:-
(a) (i) all public roads, lanes, paths, bridges, ditches, dikes and fences on, or beside the same, the bed of the sea and/or harbours, creeks below high water mark, and of rivers streams, nalas, lakes, public wells and tanks, all bunds and palas, standing and flowing water and gauchars; (ii) all cultivable and uncultivable waste lands (excluding land used for building or other non agricultural purposes), (iii) all bid lands, (iv) all unbuilt village site lands and
village site lands on which dwelling houses of artisans and landless labourers are situated, and
(v) all schools, Dharmashalas, village choras, public temples and such other public buildings or structures as may be specified in the notification together with the sites on which such buildings and structures stand,
Which are comprised in the estates so notified shall, except in so far as any rights of any person other than the Girasdar or the Barkhalidar may be established in and over the same, and except as may otherwise be provided by any law, for the time being in force, vest in, and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the State of Gujarat and all rights held by a Girasdar or a Barkahalidar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the general or special orders of the Collector, to dispose of them as he deems fit, subject always to the rights of way and of other rights of the public or of individuals legally subsisting.
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(b) A Girasdar or a Barkhalidar shall, subject to the provisions of this Act, be deemed to be an occupant in respect of all other land held by him.
5. (1) Notwithstanding anything contained in section 3, or section 4 –
(a) no bid land which is also uncultivable waste, wadas and kodias shall vest in, and be the property of the State of Gujarat (b) no bid land comprised in the estate of a Girasdar who is considered to be of B and C class for the purpose of making rehabilitation grant under the Saurashtra Land Reforms Act 1951, or of a Barkhalidar, the total area of agricultural land comprised in whose estate does not exceed eight hundred acres, shall vest in and be the property of the State of Gujarat] and (c) no bid land which is also cultivable waste or no village site land shall be acquired unless it is in excess of the requirements of the Girasdar or Barkhalidar in accordance with the rules to be made in this behalf; and (d) in the case of Girasdari Majmu villages, one fourth of the total area of bid land in the village shall not be acquired.
(2) If any bid land or village site, land is not acquired under the provisions of sub-section (1) and such bid land or village site land is use by the Girasdar or Barkhalidar for a different purpose, it shall be liable to be acquired under the provision of section 4.”
Civil Appeal No.612 of 2002 33 of 105
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Under Saurashtra Act No.XXV of 1951, the relevant
provisions are Sections 2 (6), 2(15) and 2(18). They are as
follows:
“2. In this Act, unless there is anything repugnant in the subject or context:-
(6) “bid land” means such land as has been used by the Girasdar for grazing his cattle or for cutting grass for the use of his cattle.
(15) “Girasdar” means any talukdar, bhagdar, bhayat, cadet or mulgirasia and includes any person whom the Government may, by notification in the Official Gazette, declare to be a Girasdar for the purposes of this Act.
(18) “land” means any agricultural land, bid land or cultivable waste”
Under Saurashtra Act No.XXVI of 1951 the relevant
provision is Section 2(ii).
2. In this Act, unless there is anything repugnant to the subject or context-
(i) xxx xxx xxx
(ii) “bid land” means such land as has been used by Barkhalidar for grazing his cattle or for cutting grass for the use of his cattle;”
Civil Appeal No.612 of 2002 34 of 105
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28. In order to appreciate the contentions raised before us,
we wish to make a specific reference to the Preamble as
well as the object of the Act of 1960. The Preamble shows
that the Act was contemplated and was brought into effect
since it was felt expedient in public interest to make a
uniform provision for the whole of the State of Gujarat and
in particular in respect of restrictions upon holding
agricultural land in excess of certain limits. The
expediency so noted was for securing the distribution of
agricultural land to subserve the common good for the
purpose of allotment of some lands to persons who are in
need of land for agriculture and also to appreciate for other
consequential and incidental matters. As far as the object
of the Act was concerned, it is stated therein that the said
enactment came to be enacted only for the purpose of fixing
the ceiling area and not with any intention directly to
interfere with the rights and liabilities of landlords and
tenants.
29. Keeping the above perspective of the law makers in mind,
when we examine Section 2(17) which defines the
expression ‘land’ it means the land which is used or
Civil Appeal No.612 of 2002 35 of 105
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capable of being used for agricultural purposes including
the sites of farm, building appurtenant to such land.
Section 6 of the 1960 act imposes restriction in the holding
of the land which has been defined under Section 2(17) of
the Act which is in excess of the ceiling area. The ceiling
area has been set out under Section 2(5) of the Act. The
definition of ‘land’ in its cognates and expression is specific
in its tenor and mentions about its usage as well as its
capability of usage for agricultural purposes. The
expression “agriculture” has been defined under section
2(1) of the act which inter alia includes horticulture, raising
of crops, grass or garden produce and the use by an
agriculturist of the land held by him either in full or part
for grazing purposes. The definition of “agriculturist” under
Section 2(3) read along with Section 2(11) and 2(12) which
define the expression ‘to cultivate’ and ‘to cultivate
personally’ make the position clear that it would include a
person who indulges in the avocation of agriculture by way
of cultivation of the land either by himself or through other
persons again under the supervision of his own men.
Civil Appeal No.612 of 2002 36 of 105
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30. A careful consideration of the above provisions under the
Act of 1960 gives a clear idea that lands which are used as
well as which are capable of being used for the purpose of
agriculture including lands used for raising grass or either
full or part of it used for grazing purposes would come
within the ambit of the Act, which in turn would be subject
to the restrictions imposed for the purpose of ascertaining
the ceiling limit. Consequently, the excess or surplus land
in the holding of a person who is an agriculturist is to be
ascertained in order to initiate and ultimately acquire such
surplus land. Such acquisition as expressed in the
Preamble to the Act would be for the purpose of equal
distribution of land to other landless persons.
31. Keeping the above statutory provisions in mind, when we
consider the respective submissions, the following broad
legal principles are required to be dealt with by us.
(i) Whether ‘Bid Land’ would fall within the definition ‘Land' read along with the definition of ‘Agriculture’ as defined under Sections 2(17) and 2(1) of the Act of 1960 ?
(ii) In order to ascertain the nature of description of ‘Bid Land’ can the definition of the said expression under the earlier statutes viz. Act No.XXV of 1951,
Civil Appeal No.612 of 2002 37 of 105
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Act No.XXVI of 1951 and Act No.III of 1952 can be imported ?
(iii) What is the implication of the Urban Land Ceiling Act, 1976 vis-à-vis the Act of 1960 in respect of ‘Bid Land’ ?
(iv) Whether the Amendment Act of 1974 which came into effect from 01.04.1976 and the definition of ‘Bid Land’ under the said Amendment Act of 1974 can be applied for the purpose of deciding the issue involved in this litigation ?
(v) Whether the ratio decidendi of this Court in Nagbhai Najbhai Khackar (supra) can be applied to the facts of this case ?
(vi) Whether the orders of the authorities under the Act of 1960 impugned before the High Court were hit by the principles of Res Judicata ?
(vii) What is the effect of the repealing of the Urban Land Ceiling Act over the Act of 1960 ?
32. Though the definition of ‘land’ and ‘agriculture’ read
together would include a ‘land’ used for raising grass or
used for grazing purposes, the question for our
consideration is whether ‘Bid lands’ can be brought within
the scope of the said expression, namely, the definition of
‘land’ read along with the definition of ‘agriculture’ under
the Act of 1960 as has been so construed by the authorities
constituted under the provisions of Act of 1960 up to the
level of Gujarat Revenue Tribunal. On behalf of the
Civil Appeal No.612 of 2002 38 of 105
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appellant it was contended that the subsequent
amendment brought out under the 1974 amending Act
which came to be notified on 01.04.1976 was only by way
of clarification about ‘Bid lands’ in consonance with the
definition of ‘agriculture’. According to the respondent even
such a clarification sought to be made under the amending
Act 1974 by way of removal of doubts only revealed that as
on the date when Act, 1976 which came into effect from
17.02.1976 ‘Bid lands’ were not part of agricultural lands
as defined under Section 2(1) read along with 2(17) of the
1960 Act.
33. Mr. Soli Sorabjee, learned senior counsel, to support the
submission made on behalf of the appellant, would draw
succor to the definition of the very same expression ‘Bid
land’ under Act No.XXV of 1951 as well as Act No.XXVI of
1951 and Act No.III of 1952. Under Act XXV of 1951 in
Section 2(6) definition of ‘Bid land’ has been defined to
mean such land raised by Girasdar for grazing his cattle or
for cutting grass for the use of his cattle. Under Section
2(18) of Act No.XXV of 1951, the definition of ‘land’ under
said Act included ‘Bid land’. The purport of the said
Civil Appeal No.612 of 2002 39 of 105
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enactment was to end Girasdar system and while doing so
regulate the relationship between the Girasdars and their
tenants and to enable the latter to become occupants of the
‘land’ held by them as tenants and simultaneously to
provide for the amount of compensation payable to
Girasdars for the extinguishment of their rights. Whatever
be the purport of the enactment, the definition of ‘land’ as
defined under Section 2(18) and ‘Bid land’ as defined under
Section 2(6) discloses that ‘Bid land’ would be a land which
was treated on par with agricultural land and such land is
none other than the land which is used for grazing by cattle
as well as for cutting grass for the use of cattle.
34. With that when we come to the nature of description of
‘Bid land’ in the Act No.III of 1952, under Section 2(a) ‘Bid
land’ has been defined to mean such land as on
17.04.1951 specifically reserved for being used by a
Girasdar or Barkhalidar for grazing cattle or for cutting
grass. Under Section 4 the manner of vesting of such of
those lands described therein vested in the State and
thereby assuming the character of the property of the State
of Gujarat and consequently all rights held by Girasdars or
Civil Appeal No.612 of 2002 40 of 105
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Barkhalidars in such property deemed to have been
extinguished. For our limited purpose, it will be sufficient
to confine our consideration to the definition under Section
2 (a) of Act No.III of 1952 which defines ‘Bid land’. As
stated earlier ‘Bid land’ is a land used for grazing by cattle
or for cutting grass in the tenure lands held by Girasdar or
Barkhalidar. When we refer to Saurashtra Abolition Act
1951 i.e. Act XXVI of 1951 the definition under section 2 (ii)
which defines ‘Bid land’ to mean such land as has been
used by Barkhalidars for grazing his cattle or for cutting
grass for the use of his cattle. The purport of the said
enactment was for improvement of the land revenue
administration and agrarian reforms which necessitated
abolition of Barkhalidars tenure prevailing in certain parts
of Saurashtra. Under Section 6(1) of Act XXVI of 1951, the
right of allotment of land under the said act in favour of
Barkhalidar is stipulated. The manner in which the
application for allotment is to be made is also provided
therein. Under sub-section (2) of Section 6 while making an
application for allotment the details to be furnished by
Barkhalidar has been set out wherein under clause (c) (iii)
Civil Appeal No.612 of 2002 41 of 105
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of sub clause (2) of Section 6 it is stipulated that full
particulars of a Barkhalidar’s estate containing the area of
agriculture also, ‘Bid land’ and ‘cultivable waste' in his
estate should be furnished. Apparently in order to fulfill
the said obligation by a Barkhalidar, the definition of ‘Bid
land’ has been set out in Section 2(ii) of Act No.XXVI of
1951.
35. Keeping the above statutory prescription relating to the
description of ‘Bid land’ in the above enactments which
were all prior to coming into force of Act, 1976 namely,
17.02.1976 the nature of ‘Bid land’ has been succinctly
described to mean a land which was used for grazing of
cattle or for cutting grass for the use of rearing of cattle. To
recapitulate the definition of ‘agriculture’ under Section
2(1), as well as, the definition of ‘land’ under Section 2(17)
of the unamended Act of 1960, the expression ‘agriculture’
included inter alia, the land used for raising of grass, as
well as, the land held by the agriculturist for grazing
purpose. When we consider the explanation part of sub
section (1) of Section 2 which contains as many as Clauses
(i) to (vi) the lands used for grazing purposes as well as
Civil Appeal No.612 of 2002 42 of 105
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cutting of grass for rearing of cattle are not the lands to be
excluded from the definition of ‘agriculture’. The definition
of ‘land’ under Section 2(17) categorically mentions that the
land which is either used or capable of being used for
agriculture purposes would fall within the said definition.
Therefore reading the above definitions together a ‘land’
where grass is grown or used for grazing purposes fall
within the inclusive provision of the definition of
‘agriculture’. The definition of ‘Bid land’ in the earlier
enactments namely Act Nos.XXV of 1951, XXVI of 1951
and Act No.III of 1952 make the position clear that the ‘Bid
land’ is nothing but the land used for grazing of cattle and
for raising grass for the purpose of rearing of cattle.
36. Under the amended Act of 1960 the definition of
agriculture under Section 2(1) as it existed prior to the said
amendment was maintained. In addition, some of those
excluded categories, namely, the one mentioned in sub
clauses (i), (ii), (iii), (iv) and (v) were also included as falling
within the definition of the expression ‘agriculture’. Further
the nature of exclusion as mentioned in sub-clause (vi) of
clause 1 of Section 2, namely, such other pursuits as may
Civil Appeal No.612 of 2002 43 of 105
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be described was also mentioned by stating that such of
those pursuits which have been prescribed prior to the
specified date would continue to stand excluded for that
period which was prior in point of time to the specified date
as mentioned in the Amendment Act which was notified on
01.04.1976. Here and now it is relevant to mention the
date which was specified under the Amendment Act which
as per Section 2 (27A) meant the date of the coming into
force of the amended act of 1972, namely, 01.04.1976.
Therefore, the conclusion to be drawn would be that while
as from 01.04.1976 the definition of ‘agriculture’ under the
amended Act was wider in scope which included land used
whether or not as an appendage to rice or paddy land for
the purpose of rabmanure, dairy farming, poultry farming,
breeding of livestock and the cutting of woods and such of
those lands which were in the excluded category under the
unamended Act cease to have effect of such exclusion on
and after 01.04.1976.
37. Having regard to the reference to the specified date,
namely, the date of notification (i.e.) 01.04.1976, the
expanded definition of ‘land’ under Section 2(17) was
Civil Appeal No.612 of 2002 44 of 105
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brought to our notice wherein specific reference to the ‘Bid
lands’ held by Girasdars and Barkhalidars under Act
Nos.XXV of 1951, XXVI of 1951 and III of 1952 and also
such ‘Bid lands’ held by a person prior to the
commencement of the Constitution 26th Amendment Act
1971 as a ‘ruler’ of an Indian State comprised in the
Saurashtra Area of State of Gujarat. The endeavour of
learned counsel for the respondent while drawing our
attention to the new Section 2(17), in particular, the
reference to ‘Bid lands’ in clause (c) and (d) of Section 2 (17)
(ii) was to stress upon the point that a clear distinction was
drawn as regards the land falling within the said definition
held by a person prior to the specified date and after the
specified date. Under Section 2(17) (i) after the amendment
the provision relating to the definition of ‘land’ was sought
to be distinguished as was existing prior to the specified
date while under Section 2(17)(ii) a wider scope of such
definition of ‘land’ was introduced. Having regard to such
distinction shown in respect of a ‘land’ one prior to the
specified date and the one in relation to any other period,
learned counsel contended that the specific reference to
Civil Appeal No.612 of 2002 45 of 105
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‘Bid lands’ held by Girasdar and Barkhalidar under sub
clause (c) and (d) in Section 2 (17) (ii) makes a world of
difference, as the scope of inclusion of the ‘Bid lands’
within the ambit of the expression ‘land’ under Section
2(17) was introduced on and after 01.04.1976 namely the
specified date which was not the position prior to the said
date.
38. The submission of leaned counsel was two fold, namely,
that the specific reference to ‘Bid lands’ under Section 2(17)
sub clause (ii) (c) and (d) came to be introduced for the first
time on and after 01.04.1976 and hence the said situation
requires a different consideration in the light of the Central
enactment namely the Act, 1976 which had already come
into force from 17.02.1976 by the State Legislature
surrendering its legislative competence to the Union
Government by invoking Article 252 (1) of the Constitution.
The further submission is that in the light of the field being
occupied by the Central Act, having regard to the
restriction contained in Article 252 (2) of the Constitution
there could not have been any competence for State
Government to bring about an amendment effective from
Civil Appeal No.612 of 2002 46 of 105
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01.04.1976 in relation to the Act and the subject with
reference to which the State Government has surrendered
its legislative power that bringing any amendment was
exclusively within the competence of the Parliament and
thereby the State amendment had no effect and was void as
from its inception.
39. Before considering the said submission it is necessary to
also refer to the provisions contained in the Act, 1976 for
an effective consideration and to reach a just conclusion.
Under the Act, 1976 by virtue of Section 1(2) of the Act, the
Act was applied to the whole of the State of Gujarat. Under
Section 2(a) the appointed day was defined to mean in
relation to any State to which the Act applied in the first
instance the date of introduction of the Act, 1976 in the
Parliament which was admittedly 17.02.1976. Under
Section 2(n) what is an ‘urban agglomeration’ has been
defined and it is not in dispute that district Rajkot where
the lands in question situate falls within the definition of
urban agglomeration mentioned in Schedule 1 of the Act.
Under Section 2(o) ‘Urban Land’ has been defined to mean
any land situated within the limits of an urban
Civil Appeal No.612 of 2002 47 of 105
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agglomeration referred to as such in the Master Plan.
However, it does not include any such ‘land’ which is
mainly used for the purpose of ‘agriculture’. Under Section
2 (q) ‘vacant land’ has been defined to mean land not being
mainly used for the purpose of agriculture in an urban
agglomeration subject to other exclusions contained in the
said sub-clause (q). The expression ‘agriculture’ has been
specifically defined under the Explanation (A) to Section
2(o) by which it is stated that agriculture would include
‘Horticulture’ but would not include ‘raising of grass’, ‘dairy
farming’, ‘poultry farming’, ‘breeding of livestock’ and such
cultivation or growing of such plant as may be prescribed.
Under Explanation (B) it is mentioned that lands are not
being used mainly for the purpose of ‘agriculture’ if such
land has not entered in the revenue or land records before
the appointed day as for the purpose of ‘agriculture’. Under
Explanation (C) it is further stipulated that notwithstanding
anything contained in Explanation (B) ‘land’ shall not be
deemed mainly used for the purpose of agriculture if the
land has been specified in the Master Plan for the purpose
other than agriculture. Section 6 of the Act, 1976
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prescribes the ceiling limit of vacant land which a person
can hold in an urban agglomeration of the Act, 1976. If a
person holds vacant land in excess of the ceiling limit at
the commencement of the Act, he should file the statement
before the competent authority of all vacant land to enable
the State Government to acquire such vacant land in
excess of ceiling limit under the Act.
40. In the light of the above provisions contained in the Act,
1976 Mr. Naphade learned senior counsel contended that
Amendment Act of 1974 would be a ‘still born child’ having
regard to the existence of the Act, 1976 as from
17.02.1976. The learned counsel also sought to repel the
contention of the appellants that the date of passing of the
Act alone would be relevant and not the date of notification.
For that purpose, learned counsel relied upon In the
matter of the Hindu Women’s Rights to Property Act,
1937 (supra). In the said decision the Federal Court
considered the question referred to by His Excellency the
Governor General under Section 213 of the Constitution
Act. The first question is relevant for our purpose which
reads as under:- Civil Appeal No.612 of 2002 49 of 105
Page 50
“(1) Does either the Hindu Women’s Rights to Property Act, 1937 (Central Act, 18 of 1937) which was passed by the Legislative Assembly on 4 th February, 1937, and by the Council of State on 6 th April 1937, and which received the Governor- General ’ s assent on 14 th April 1937 , or the Hindu Women’s rights to Property (Amendment) Act, 1938 (Central Act, 11 of 1938) which was passed in all its stages after 1st April 1937, operate to regulate (a)succession to agricultural land? (b) devolution by survivorship of property other than agricultural land?
(underlining is ours)
41. At page 75 the Federal Court has answered the said
question in the following words:-
“………….It is not to be supposed that a legislative body will waste its time by discussing a bill which, even if it receives the Governor-General’s assent, would obviously be beyond the competence of the Legislature to enact, but if it chooses to do so, that is its own affair, and the only function of a Court is to pronounce upon the bill after it has become an Act. In the opinion of this Court, therefore, it is immaterial that the powers of the Legislature changed during the passage of the bill from the Legislative Assembly to the Council of State. The only date with which the Court is concerned is 14 th April 1937, the date on which the Governor- General ’ s assent was given; and the question whether the Act was or was not within the competence of the Legislature must be determined with reference to that date and to none other .”
(underlining is ours)
Civil Appeal No.612 of 2002 50 of 105
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42. By relying upon the said decision, learned counsel
contended that the date of passing of the Act was irrelevant
and what was relevant is the date when the Act was
notified, namely, 01.04.1976. We find force in the said
submission and without diluting much on the said
contention we proceed to consider the other contentions
raised on the footing that the amendment came into effect
only from 01.04.1976 i.e. after the coming into force of the
Act, 1976, namely, 17.02.1976. We have kept ourselves
abreast of the various provisions of the unamended Act of
1960, the definition of ‘Bid land’ under Act XXV of 1951,
XXVI of 1951 and III of 1952 and keeping aside whatever
amendment sought to be introduced by the Amendment act
of 1974 with effect from 01.04.1976 we proceed to examine
whether the contention of the respondent can be
countenanced.
43. In this context, we are also obliged to note the definition
of ‘vacant land’ under the Act, 1976 as defined under
Section 2(q) and also the definition of ‘Urban Land’ under
Section 2(o). Since the respondent strongly relied upon the
operation of the Act, 1976 as from 17.02.1976 in order to
Civil Appeal No.612 of 2002 51 of 105
Page 52
contend that the Amendment Act of 1974 will be of no
consequence being a still born child after the coming into
force of the Act, 1976 it will be appropriate to examine the
said contention in the first instance.
44. Under the Act, 1976 while defining ‘vacant land’, the
said definition specifically excludes a ‘land’ used for the
purpose of ‘agriculture’. The definition of ‘Urban Land’
again makes the position clear that any land situated
within the urban agglomeration referred to as such in the
Master Plan would exclude any such land which is mainly
used for the purpose of ‘agriculture’. Under the Explanation
A to Section 2(o) such of those lands which are used for
‘raising of grass’ stood excluded from the use of
‘agriculture’. It is worthwhile to note that the ‘land used for
grazing’ has however not been specifically excluded from
the definition of ‘agriculture’ in the said Explanation ‘A’.
The conspectus consideration of the above provisions leads
us to conclude that the apparent purport and intent,
therefore, was to exclude lands used for agriculture from
the purview of Act, 1976 which would enable the holders of
lands of such character used for agriculture to be benefited
Civil Appeal No.612 of 2002 52 of 105
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by protecting their holdings even if such lands are within
the urban agglomeration limits and thereby depriving the
competent authority from seeking to acquire those lands as
excess lands in the hands of the holder of such lands.
45. That being the position, by the implication of the Act,
1976 in respect of the land used for agriculture within the
urban agglomeration, the question for consideration is
whether such exclusion from acquisition having regard to
the character of the land as used for agriculture would
entitle the owner of such land to contend that such
exclusion would deprive the competent authorities under
the 1960 Act to restrict their powers to be exercised under
the said Act and from resorting to acquisition by applying
the provisions contained in the said Act. We are of the
considered opinion that the conspectus consideration of
the various provisions of the Act, 1976 considered again in
the light of the object and purport of the 1960 Act which
was intended for equal distribution of agricultural lands to
the landless poor agriculturists, the application of the said
Act will have to be independently made and can be so
applied as it stood prior to the coming into force of the Act,
Civil Appeal No.612 of 2002 53 of 105
Page 54
1976 as from 17.02.1976. At this juncture it will have to be
noted and stated that the subject namely, the ‘land’ being
an item falling under Entry 18 of List II of Schedule VII of
the Constitution, by virtue of the so-called surrender of
power of legislation in respect of the said entry namely
‘land’ by way of Central Legislation namely Act, 1976 to be
enacted by the Parliament pursuant to a State resolution
by invoking Article 252 (1) of the Constitution, there would
be every justification in the submission on behalf of the
respondent that any subsequent legislation by way of
Amendment or otherwise with regard to the said Entry,
namely, ‘land’ will be directly hit by the specific embargo
contained in Article 252 (2) of the Constitution.
46. Once we steer clear of the said legal position and
proceed to examine the contention raised, as was
highlighted by us in the initial part of our judgment the
concept of ‘Bid land’ was not a new phenomenon to the
1960 Act. The definition of ‘Bid land’ under Section 2 (6) of
the Saurashtra Act, 1951 clearly stated that it would refer
to the lands used for grazing of cattle and for cutting grass
for the use of cattle. The said definition was consistently
Civil Appeal No.612 of 2002 54 of 105
Page 55
maintained in the Saurashtra Act No.XXVI of 1951, as well
as, Saurashtra Act No.III of 1952. When we examine the
definition of the expression ‘agriculture’ under Section 2(1)
of the 1960 Act uninfluenced by the Amendment Act of
1974, it specifically define ‘agriculture’ to include the land
used for raising of grass, crops or garden produce, the use
by an agriculturist of the land held by him or part thereof
for grazing. Grazing as per the dictionary meaning “graze
land suitable for pasture”. The word “pasture” means the
land covered with grass etc. suitable for grazing animals
especially cattle or sheep or herbage for animals or for
animals to graze. Therefore, the land meant for grazing has
got its own intrinsic link with the cattle for its pasturing.
The apparent intention of the legislature in including the
land used for grazing or for raising grass as per the
definition of ‘agriculture’ under the 1960 Act is quite
explicit, inasmuch as, the use of cattle in farming operation
was inseparable at the relevant point of time. Therefore,
when the Legislature thought it fit to include the land for
raising grass and used for grazing as part of definition of
‘agriculture’ there is no need to seek succour from any
Civil Appeal No.612 of 2002 55 of 105
Page 56
other definition which was sought to be introduced at any
later point of time by way of amendment under the
Amendment Act of 1974.
47. While rebutting the submission of the appellant in
placing reliance upon the definition of ‘Bid land’ under the
provisions of Saurashtra Act Nos.XXV of 1951, XXVI of
1951 and III of 1952, Mr. Naphade learned senior counsel
for the respondent contended that the definition of ‘Bid
land’ in these enactments was with particular reference to
the land held and used by Girasdars and Barkhalidars and
that there was no reference to the lands held by any Ruler
of an erstwhile State. It was the further submission of
learned senior counsel that those legislations were
specifically dealing with the tenure holdings of Girasdars
and Barkhalidars and that the purport of those legislations
were to denude those large scale tenure holders of the
lands held by them with a view to entrust such lands with
the cultivating tenants themselves and, therefore import of
the definition of ‘Bid land’ in those legislations will not be
appropriate while considering the implication of the
provisions contained in the 1960 Act.
Civil Appeal No.612 of 2002 56 of 105
Page 57
48. Though, we appreciate the ingenious submissions put
forth before us on behalf of the respondent, we are not in a
position to accept such an argument for more than one
reason. The said submission cannot be accepted for the
simple reason that what we are concerned with is the
definition of ‘Bid land’ de hors the ownership or in whose
possession such land remain or vest on any particular
date. In other words, the character of ‘Bid land’ cannot vary
simply because it is in the hands of Girasdars and
Barkhalidars or with any other person including a former
Ruler of a State. The reference to the definition of ‘Bid land’
under those enactments can be definitely considered in
order to find out as to what is the nature and character of a
‘land’ and not as to who was holding it.
49. The Saurashtra Act No.XXV of 1951 was introduced for
the improvement of land revenue administration and for
ultimately putting an end to the Girasdari system. The
purport of the legislation was to regulate the relationship of
Girasdars and their tenants in order to enable the latter to
become occupants of the lands held by them and to provide
for the payment of compensation to the Girasdars for the
Civil Appeal No.612 of 2002 57 of 105
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extinguishment of their rights. Again Saurashtra Act
No.XXVI of 1951 was brought in to provide for certain
measures for the abolition of Barkhalidar tenure for
Saurashtra and also for the improvement of the land
revenue administration. In other words, the said
legislation was for the improvement of land revenue
administration and for agrarian reforms which necessitated
abolition of Barkhalidar tenure prevailing in certain parts of
Saurashtra. In order to ascertain the extent of lands held
by the Girasdars and Barkhalidars the definition of
‘agricultural land’, ‘agriculture’ and ‘Bid Land’ was specified
in the respective statutes. Such definition was required in
order to ascertain the extent of lands held by Girasdars and
Barkhalidars. ‘Bid land’ was one type of land held by such
tenure holder by way of grant and it was in that context the
character of ‘Bid Land’ was defined for the purpose of
ascertaining the total extent of land held by each of the
Girasdar and Barkhalidar. Under Section 3 and 4 of
Saurashtra Act No. III of 1952 which Act was introduced to
provide for acquisition of certain estates of Girasdars and
Civil Appeal No.612 of 2002 58 of 105
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Barkhalidars ‘Bid Land’ was defined under Section 2(a) of
the Act.
50. Section 3 of the Act empowered the Government to issue
notification from time to time in the Official Gazette and
declare that with effect from such date that may be
specified in the notification, all rights, title and interest of
Girasdars or Barkhalidars in respect of any estate or part of
an estate comprised in the notification would cease and
vest in the State of Gujarat. As a sequel to such vesting, all
the incidents of the tenure attached to any land comprised
in such estate or part thereof would be deemed to have
been extinguished. What are all the consequences that
would follow pursuant to issuance of notification, has been
set out in Section 4. However, under Section 5(1) which is a
non-obstante clause which makes it clear that
notwithstanding anything contained in Section 3 or Section
4 ‘Bid Land’ were exempted from such acquisition.
51. It is true that though under the Saurashtra Act XXV of
1951, Saurashtra Act XXVI of 1951 and Saurashtra Act III
of 1952, the purport of the enactments were to extinguish
Civil Appeal No.612 of 2002 59 of 105
Page 60
all rights held by Girasdars and Barkhalidars as well as the
Rulers of the State in the State of Gujarat in respect of their
estates which among other kinds of lands included ‘Bid
Land’ also.
52. Here again, it will have to be stated that this Act was
also enacted to provide certain measures for the abolition
of the Barkhalidars tenure in Saurashtra. Therefore, while
the submissions of the learned senior counsel for the
respondent that the above enactments were brought into
effect with particular reference to the holding of certain
estates by Girasdars and Barkhalidars as well as erstwhile
Rulers of State, such restricted application of the Act
cannot be held to mean that the definition of ‘Bid land’
should also be read out in a restricted fashion. As stated
by us earlier, the operation of extinguishment of the rights
of such specific persons viz., Girasdars and Barkhalidars
as well as the Rulers does not mean that the definition
assigned to ‘Bid land’ should be restricted in respect of
those specific persons alone and cannot be applied in
general for any other purpose. After all, the attempt of the
appellants in relying upon the definition of ‘Bid land’ in
Civil Appeal No.612 of 2002 60 of 105
Page 61
those enactments was to understand the nature and use
for which the ‘Bid land’ is put to. It cannot be said that
merely because those enactments were brought out for the
purpose of extinguishment of the rights of certain class of
persons viz. Girasdars and Barkhalidars, the definition of
‘Bid land’ contained in those Legislations should under no
circumstances be considered by any other authority
functioning under other enactments. We are convinced
that though Saurashtra Act Nos.III of 1952, XXV of 1951
and XXVI of 1951 pertain to the estates held by Girasdars
and Barkhalidars as well as the Rulers of the erstwhile
Saurashtra State, the definition of ‘Bid land’ contained in
those legislations could however be taken into account for
the purpose of understanding the meaning of ‘Bid land’.
Therefore, the arguments of the learned senior counsel for
the respondent in seeking to restrict the meaning of ‘Bid
land’ in the Saurashtra Act Nos.XXV of 1951, Act XXVI of
1951 and Act III of 1952 exclusively to those specified
persons viz., Girasdars, Barkhalidars and the Rulers
cannot be accepted. In other words once the ‘Bid land’ can
be defined to mean such land used for grazing of cattle or
Civil Appeal No.612 of 2002 61 of 105
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for cutting grass for the use of cattle irrespective of the
nature of possession of such lands with whomsoever it may
be, a ‘Bid land’ would be a ‘Bid land’ for all practical
purposes. It is also to be noted that nothing was brought to
our notice that a ‘Bid land’ is capable of being defined
differently or that it was being used for different purpose by
different persons.
53. We shall deal with the object of the Amendment Act
1974, namely, for removal of doubts a little later. For the
present, inasmuch as, we have to a very large extent
accepted the submission of learned counsel for the
respondent that the invocation of the Amendment Act of
1974 cannot be made having regard to its subsequent
emergence, namely, 01.04.1976 i.e. after the coming into
force of Act, 1976 as from 17.02.1976, we confine our
consideration to the position that prevailed under the
unamended Act of 1960. After all our endeavour is only to
find out whether the 1960 Act is applicable in respect of
the lands held by the respondent for the purpose of its
enforcement or otherwise against the respondent.
Civil Appeal No.612 of 2002 62 of 105
Page 63
54. One other submission of the learned senior counsel for
the respondent was that the respondent was once a Ruler
cannot be held to be an ‘agriculturalist’, inasmuch as, the
definition of ‘agriculturist’ under Section 2(3) means a
person who cultivate the land personally. We were not
impressed by the said submission, inasmuch as, the
definition of an ‘agriculturist’ is not merely confined to
Section 2(3) alone. The said definition has to be necessarily
considered along with the definition “to cultivate” as
defined under Section 2(11), as well as, the expression “to
cultivate personally” as defined under Section 2(12) of the
Act. Those expressions considered together make the
position clear that even a person cultivating the lands by
ones own labour or by any other member of one’s family or
under the personal supervision of oneself or any member of
ones’ family by hired labour or by servants on wages
payable in cash or kind would nonetheless fall within the
four corners of the expression “agriculturist”. Therefore, the
expression “agriculturist” used in the definition Clause 2(3)
or “agriculture” under Section 2(1) is wide enough to
include the respondent who though was once a ‘Ruler’ and
Civil Appeal No.612 of 2002 63 of 105
Page 64
was not tilling the land by himself would still fall within the
definition of ‘agriculturist’ when such agricultural operation
namely cultivation of land is carried out with the support of
any one of his family members by supervising such
operation or by engaging any labour to carry out such
cultivation. We are therefore of the firm view that the ‘Bid
land’, the nomenclature of which was categorically
admitted by the respondent and having regard to its nature
and purpose for which it was put to use would squarely fall
within the definition of ‘agriculture’ as defined under
Section 2(1) of the Act of 1960 as it originally stood
unaffected by the coming into force of the Act, 1976 as well
as the Amendment of 1974. In the result, its application to
those ‘Bid lands’ held by the respondent cannot be
thwarted.
55. We shall now deal with the question whether the
amendment Act of 1974 which was notified as from
01.04.1976 does in any way affect the application of 1960
Act as it originally stood having regard to the enforcement
of the Amendment Act by drawing a clear distinction as
Civil Appeal No.612 of 2002 64 of 105
Page 65
between the position which was existing prior to the
specified date namely 01.04.1976 and after the said date.
56. According to learned senior counsel for the respondent
the definition of ‘land’ under Section 2(17) after the
amendment, namely, after 01.04.1976 seeks to differentiate
between the nature of land which would be governed by the
provisions of the 1960 Act i.e. one prior to the specified
date and thereafter. Under sub-clause (i) of Section 2(17) of
the 1960 Act while defining the ‘land’ it is specifically
mentioned that the same would mean “in relation to any
period prior to the specified date, ‘land’ which is used or
capable of being used for agricultural purpose and includes
the sites of farm buildings appurtenant to such “land”. For
that purpose when we refer to the definition of ‘agriculture’
under Section 2(1) of the Amended Act a wider definition
was brought in by including in the said definition clauses
(d) to (h) which, inter alia, covered the use of any land,
whether or not an appanage to rice or paddy land for the
purpose of rabmanure, dairy farming, poultry farming,
breeding of live-stock, and the cutting of wood which class
of lands were specifically excluded from the definition of
Civil Appeal No.612 of 2002 65 of 105
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‘agriculture’ prior to the amendment. The proviso to the
said sub-clause (1) of Section 2 also specifies that such
inclusion in the definition of ‘agriculture’ was not
applicable in relation to any period prior to the specified
date, namely, 01.04.1976. That apart, under Section 2(17)
(ii) in regard to the period subsequent to the specified date,
namely, 01.04.1976 the definition of ‘land’ would include
the lands on which grass grown on its own, the ‘Bid land’
held by Girasdars and Barkhalidars under the Saurashtra
Act Nos.XXV of 1951, XXVI of 1951 and III of 1952 as well
as such ‘Bid lands’ which were held by a person who before
the commencement of the Constitution was a ‘Ruler’ of an
Indian State comprised in the Saurashtra area of the State
of Gujarat. The contention, therefore, was that but for such
inclusion of ‘Bid lands’ in the amended definition of Section
2(17)(ii) there was no scope to proceed against such ‘Bid
lands’ held by Girasdars and Barkhalidars as well as the
‘Rulers’ of erstwhile State.
57. In this context learned senior counsel for the respondent
placed reliance upon the decision of this Court in State of
Karnataka Vs. Union of India & another - (1978) 2 SCR 1 Civil Appeal No.612 of 2002 66 of 105
Page 67
and contended that when the language is clear and
unambiguous one need not have to delve into the Objects
and Reasons in order to find out its implication. The said
contention was by way of rebuttal to the submission of
learned senior counsel for the appellants that the Objects
and Reasons of the 1974 Act disclose that the same was
brought into effect only with a view to remove certain
doubts as regards ‘Bid lands’ and, therefore, the
amendment was not contemplated to include ‘Bid lands’ for
the first time in addition to the other type of lands
described under the unamended Act of 1960.
58. There can be no quarrel about the proposition of law as
propounded by the learned senior counsel for the
respondent and as has been stated by the Constitution
Bench of this Court in paragraphs 38 and 39 of Pathumma
(supra). In paragraph 39 this Court did say:
“39.….We are, however, unable to agree with this argument because in view of the clear and unambiguous provisions of the Act, it is not necessary for us to delve into the statement of objects and reasons of the Act…..”
Civil Appeal No.612 of 2002 67 of 105
Page 68
59. We too are not inclined to go by the argument based on
the objects and reasons in relation to a ‘Bid land’. We have
considered the definition of ‘agriculture’ under Section 2(1),
the definition of ‘agriculturist’ under Section 2(3) along with
the expressions ‘a person who cultivates land personally’
and the definition of ‘land’ under Section 2(17) of the
unamended Act. Having examined the nature of description
of those expressions contained therein, we are convinced
that the legislature intended and did include ‘lands’ held by
‘agriculturist’ where grass is raised or used for grazing
purposes as part of agricultural land which was in the
possession of agriculturist. Such lands where grass is
grown or used for grazing purpose are always known as
‘Bid land’. Such ‘Bid land’ was ultimately brought within
the definition of ‘land’ under Section 2(17) of the Act of
1960. Therefore, even by keeping aside the implication of
the wider definition which was introduced by the
Amendment Act of 1974 in regard to ‘Bid lands’ and going
by the definition of ‘agriculture’ and ‘land’ under Section
2(1) and 2(17) of the Act of 1960, we have no difficulty in
taking a definite conclusion that such definition contained
Civil Appeal No.612 of 2002 68 of 105
Page 69
in the Act as it originally stood did include ‘Bid lands’
which lands were exclusively meant for cutting grass for
cattle or used for grazing purposes. Therefore, there was no
necessity for this Court to draw any further assistance
either from the Objects and Reasons or from the provisions
of the Amended Act of 1974 in order to hold that ‘Bid lands’
were part of agricultural land governed by the provisions of
the Act of 1960.
60. In that respect when reliance was placed upon the recent
decision of this Court in Nagbhai Najbhai Khackar (supra)
on behalf of the appellant, we find that the said decision
fully support the stand of the appellant. Of course, in the
said decision the question posed for consideration was
“whether Bid lands were required to be taken into
consideration for the purpose of land ceiling under the
1960 Act as amended by the Act of 1974 which came into
force on 01.04.1976”. This Court while examining the said
question posed for its consideration however dealt with a
specific submission made on behalf of the appellant herein
which has been set out in paragraph 11:
Civil Appeal No.612 of 2002 69 of 105
Page 70
“11. It was further submitted that the lands in question are in fact “agricultural” lands. They survived acquisition under the earlier three Acts only because they were “bid lands” which by definition under those Acts were lands “being used” by Girasdars/Barkhalidars for grazing cattle. That, under the Ceiling Act, Section 2(1) defines the use of land for the purposes of grazing cattle as agricultural purpose and thus, according to the learned counsel, by their very definition “bid lands” are capable of being used for agricultural purpose, namely, grazing cattle.”
61. In paragraphs 20 and 21 it has been held as under:
“20. There is one more reason for not accepting the argument of the appellants. The subject lands survived acquisition under the 1952 Act only because they were “bid lands” which by definition under those Acts were treated as lands being used by the girasdars for grazing cattle (see Section 2(a) of the 1952 Act). Now, under the present Ceiling Act, Section 2(1) defines the use of land for the purpose of grazing cattle as an agricultural purpose. Thus, “bid lands” fall under Section 2(1) of the Ceiling Act. This is one more reason for coming to the conclusion that the Ceiling Act as amended applies to “bid lands”. (underline ours)
21. It is also important to note that under Section 5(1) of the 1952 Act all lands saved from acquisition had to be “bid lands” which by definition under Section 2(a) of the 1952 Act were the lands being used by a Girasdar or a Barkhalidar for grazing cattle or for cutting grass. If the lands in question were put to any other use, they were liable to acquisition under Section 5(2). Because the subject lands were used for grazing cattle, they got saved under the 1952 Act and, therefore, it is now not open to the appellants to contend that the subject
Civil Appeal No.612 of 2002 70 of 105
Page 71
lands are not capable of being used for agricultural purpose.”
62. In fact our conclusion on this aspect in the earlier part of
our judgment is in tune with what has been propounded by
this Court in the said paragraph. The learned senior
counsel for the respondent contended that the said
decision cannot be applied to the facts of this case. The
submission of the learned counsel was twofold. According
to him, the said decision came to be rendered in the light of
the definition of ‘Bid land’ which came to be introduced for
the first time after the coming into force of the Amendment
Act of 1974 and, therefore, whatever decided in the said
decision was exclusively in the context of the Amendment
Act of 1974 which cannot be applied to the case on hand.
The second submission of the learned senior counsel was
that in the said decision the implication of the Act, 1976
was not considered and, therefore, whatever said in the
said decision was applicable only to the facts involved in
that case and can have no universal application. To
buttress the former argument, Mr. Soli J. Sorabjee, the
learned counsel for the appellants contended that though
Civil Appeal No.612 of 2002 71 of 105
Page 72
the question posted for consideration in the said decision
was in the context of the definition of ‘Bid land’ as
described in the Amendment Act 1974, this Court while
holding that ‘Bid land’ would fall within the definition of
‘agricultural land’ under the Act of 1960 also examined the
issue as to what is a ‘Bid land’ under the 1952 Act
independent of the definition of ‘Bid land’ introduced in the
Amendment Act 1974. The learned senior counsel by
drawing our attention to paragraph 20 of the said decision
contended that the said independent consideration of what
is a ‘Bid land’ was an added reason to hold that the said
kind of land would also fall within the definition of
‘agricultural land’ as defined in Section 2(1) of the Act of
1960.
63. Having considered the respective submissions, we find
force in the submission of the learned senior counsel for
the appellants. A close reading of paragraph 20 is clear to
the pointer that irrespective of the definition of ‘Bid land’
under the Amendment Act 1974, having regard to the
definition of ‘Bid land’ under Act III of 1952, such land
would fall within the definition of ‘Agricultural Land’ as
Civil Appeal No.612 of 2002 72 of 105
Page 73
defined in Section 2(1) of the Act of 1960. This Court in
fact made it very clear in its perception while stating the
said position by holding that it was an added reason for
holding that the Land Ceiling Act, as amended, applied to
‘Bid land’. One more reason which this Court mentioned
was that the land in question survived acquisition under
the 1952 Act only because they were ‘Bid lands’ which, by
virtue of its character was being used by Girasdars for
grazing by cattle and thereby stood excluded from
acquisition. Therefore, when this Court examined the
character of the ‘Bid land’ which was used for grazing
purpose as one falling within the definition of ‘agriculture
land’ even without the implication of the Amendment Act of
1974, the reliance placed upon the said decision merits
acceptance. The said submission of the learned senior
counsel for the appellants is supported by the decisions in
London Jewellers (supra), Jacobs (supra), Behrens
(supra) and Smt.Somawanti (supra). In the decision in
London Jewellers (supra), it has been held as under:
“……..I cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift
Civil Appeal No.612 of 2002 73 of 105
Page 74
J. and which commended itself to me in Folkes v. King, but that view is not open to us in view of the decision of the Court of Appeal in Folkes v King. In that case two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment .”
(Emphasis added)
64. The ratio of the said decision was followed in Jacobs
(supra). In the decision in Behrens (supra), it has been
held as under:
“……..This question depends, I think, on the language used by Cozens-Hardy, M.R. It is well established that, if a judge gives two reasons for his decision, both are binding. It is not permissible to pick out one as being supposedly the better reason and ignore the other one; nor does it matter for this purpose which comes first and which comes second . The practice of making judicial observations obiter is also well established. A judge may often give additional reasons for his decision without wishing to make them part of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will start with some guidance. This is a matter which the judge himself is alone capable of deciding and any judge who comes after him must ascertain which course has been adopted from the language used and not by consulting his own preference.”
(Emphasis added) Civil Appeal No.612 of 2002 74 of 105
Page 75
65. The proposition of law has thus been so lucidly expressed
in the above decisions, it will have to be held that the
additional reasons adduced in our decision in Nagbhai
Najbhai Khackar (supra) directly covers the issue raised
before us. One more reason, which weighed with this
Court for holding that ‘Bid land” falls within the definition
of ‘Agriculture Land’ as defined under Section 2(1) of the
Act of 1960 is binding and thus there is no scope to
exclude the said decision from its application. Therefore,
we reiterate that merely because the question posed for
consideration related to the character of ‘Bid lands’ after
the 1974 amendment what has been held in paragraphs 20
and 21 mutantis mutandis is in tune with what has now
been held by us based on the definition of ‘agriculture’ as
well as ‘land’ under Sections 2(1) and 2(17) of the un-
amended Act of 1960 itself.
66. As far as the next submission is concerned, the
argument raised was that the said decision never dealt with
the issue which has been presently raised in this appeal,
namely, the implication of the Act, 1976 which came into
Civil Appeal No.612 of 2002 75 of 105
Page 76
force on 17.02.1976 while the Amendment Act of 1974 was
brought into force subsequently i.e. on and after
01.04.1976 and, therefore, the said decision can have no
application to the facts of this case. In so far as the said
contention is concerned, the same is liable to be rejected
inasmuch as the said decision is for the simple proposition
as to how a land where grass is raised or used for grazing
purposes is to be included under the definition of
‘agriculture’ and consequently within the definition of ‘land’
as provided under Sections 2(1) and 2(17) of the Act of
1960. Therefore, non-consideration of the implication of
Act, 1976 in the said decision does not in any way deter us
from relying upon the ratio laid down in the said decision to
support our conclusion.
67. The next submission of learned counsel for the respondent
related to the supervening effect of the Act, 1976 in the
State of Gujarat on and after 17.02.1976 which according
to learned senior counsel has made the Act of 1974 a ‘still
born child’ and also the submission that after the coming
into force of the Act, 1976 there was no authority in the
respondent to invoke the 1960 Act in order to acquire the
Civil Appeal No.612 of 2002 76 of 105
Page 77
lands of the respondent. As we have refrained from relying
upon the Amended Act of 1974 while approving the action
of the appellant in seeking to proceed against the
respondent for acquiring the surplus lands of the
respondent under the Act of 1960, we do not find any dire
necessity to deal with the said contention in extenso. The
formidable submission raised on behalf of the respondent
related to the supremacy of the Act, 1976 over the 1960
Act. The learned counsel pointed out that the respondent
filed its return under the provisions of the Act, 1976 on
13.08.1976, that the said return was considered by the
competent authority by passing its Order dated 21.05.1983
which was thereafter considered by the Tribunal in its
order dated 08.09.1989 and that the appellant/State while
dealing with the respondent and the Act, 1976 themselves
have mentioned in the reply affidavit in paragraph 4.1 that
the lands in Survey No.111/2-3 situated in Madhopur
village was reserved for site and service project meaning
thereby that they were not agricultural lands. The learned
counsel would, therefore, contend that while on the one
hand when it came to the question of determining the
Civil Appeal No.612 of 2002 77 of 105
Page 78
surplus lands under the provisions of the Act, 1976 the
appellant would contend that the lands held by the
respondent were not classified as agricultural land and
thereby not entitled for exclusion under the said Act, when
it came to the question of applicability of 1960 Act they
contend that such lands are to be treated as agricultural
lands.
68. We do not find any such contradiction in the stand of the
appellant even in the reply affidavit. At page 5 of the reply
affidavit while referring to the lands in Survey No.111/2-3
of Madhopur village it is specifically mentioned that those
lands are ‘Bid lands’ and are located within the industrial
development industrial area. What was contended was that
admittedly no agricultural operation was being carried out
in respect of Survey No.111/2-3 along with Survey
Nos.91/3 and 129. In this respect it will also be necessary
to refer to the stand of the respondent himself in his appeal
filed under Section 33 of the Act, 1976. In paragraphs 9
and 10 the appellant claimed the character of the land in
the following manner:
Civil Appeal No.612 of 2002 78 of 105
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“9. Land admeasuring 30 acres and 30 Gunthas i.e. 1,24,412 sq. mts., of survey No.111/2 of village Madhopur is a vidi land of the Appellant and that has been brought under the recreational zone of RUDA. That should not have been included in the holding of the Appellant. Here also the application under section 20 is pending with the Government for exemption.
10. Survey No.111/3 of village Madhopur admeasuring 579 acres 27 Gunthas is falling in agricultural zone of RUDA. A certificate has been produced before the Competent Authority and this should not be included in the holding of the Appellant. The Competent Authority has shown Appellant’s flat in Bombay admeasuring 223 sq. mts. From the records the Bombay flat was shown as 575.06 sq. mts., being built up property it should not be declared as surplus. Of course the flat is situated in Bombay it should be calculated as 1725.18 sq. mts.” (underlining is ours)
69. In paragraph 9 respondent has referred to the land
admeasuring 30 acres and 30 Gunthas i.e. 1,24,412 sq.
mts. in survey No.111/2 of village Madhopur as vidi land
which was brought under the recreational zone of RUDA
and, therefore, those lands should not have been included
in the holding of the appellant. As far as the land
admeasuring 579 acres 27 Gunthas in the very same
village Madhopur in survey No.111/3 is concerned, it was
specifically claimed that those lands fell in the
‘AGRICULTURAL ZONE’ of RUDA and, therefore, it should
Civil Appeal No.612 of 2002 79 of 105
Page 80
not have been brought within the category of excess lands
held by the respondent. In fact, the above submission
made on behalf of the appellant far from supporting the
stand of the respondent fully supports the stand of the
appellant. We, therefore, do not find any conflict in the
stand of the appellant while dealing with the nature of land
held by the respondent which was earlier dealt with under
the Act of 1960 which came to be considered by the
authorities under the Act, 1976 pursuant to the return
submitted by the respondent on 13.08.1976 under Section
6(1) of the Act, 1976.
70. When we consider the submission of the learned senior
counsel for the respondent pertaining to the implication of
the Act, 1976 vis-à-vis Act of 1960, the submission was
again two fold. In the first place, it was contended that as
the entire lands were lying within the urban agglomeration
of the scheduled area viz., Rajkot, the Act, 1976 would
alone govern the subject land and thereby exclude the
application of the Act of 1960. Though in the first blush,
the argument appears to be appealing, on a deeper
scrutiny, it will have to be held that the said submission
Civil Appeal No.612 of 2002 80 of 105
Page 81
cannot be accepted. Even according to the respondent, the
subject land having been classified as ‘agricultural land’
stood excluded from the application of the provisions of the
Act, 1976 though lying within the urban agglomeration
area. It was, therefore, axiomatic that de hors the
implication of the provision of the Act, 1976 by virtue of the
character of the Land held by the respondent, the
application of the Act of 1960, as it originally stood prior to
17.2.1976 was imperative. Such a legal consequence
existed. Even accepting the arguments of the learned senior
counsel for the respondent, that being agricultural land
lying within the urban agglomeration, the application of the
Act, 1976 stood excluded, we fail to see as to how there
would be any scope at all for the respondent to contend on
that score the application of the Act of 1960 should also be
excluded. Therefore, taking note of the categorical stand of
the respondent himself, having claimed exclusion of such
of those lands which were classified as ‘agricultural land’,
which included ‘Bid land’ as well, to be excluded from the
application of the provisions of the Act, 1976 and thereby
the authorities competent under the provisions of such
Civil Appeal No.612 of 2002 81 of 105
Page 82
other enactments which would govern such agricultural
lands would be free to exercise their powers under these
enactments. The respondent cannot be heard to contend
that there would be a vacuum in so far as the application of
any Statute over the lands held by the respondent that
have been classified as ‘agricultural land’. Such a
proposition, expounded on behalf of the appellants can
never be countenanced. Therefore, the legal position that
would emerge would be that going by the stand of the
respondent, his lands to an extent of 579 acres 27 Gunthas
being ‘agricultural land’ if stood excluded from the
application of the provisions of the Act, 1976 such lands
were already governed by the provisions of the Act of 1960
as it originally stood and applied and there can be no
demur to it.
71. On this aspect, the next submission of the learned
senior counsel for the respondent was that since the Act,
1976 having been passed by the Parliament, at the
instance of the appellant State which came into effect from
17.02.1976, no other law on the said subject viz, ‘land’
would operate in the field. The sum and substance of the
Civil Appeal No.612 of 2002 82 of 105
Page 83
submission was that having regard to the emergence of the
Act, 1976 on and from 17.02.1976, the application of the
Act of 1960 would automatically cease to operate. To some
extent, we appreciate the submission in so far as it related
to the implementation of the Act of 1974 by which the
amendment was introduced to the Act of 1960. In that
respect, we consider the invocation of Article 252 of the
Constitution wherein Sub-clause (2) specifically stipulated
that in future, amendments could be carried out only by
the Parliament and not by the State. Here we are
concerned with the Act of 1960 in its un-amended form
which was holding the field insofar as it related to the
agricultural lands. We do find some logic to accede to the
contention of the learned senior counsel in regard to the
application of 1974 Act after the emergence of the Act,
1976 but same is not the position in relation to the un-
amended Act of 1960. In the first place, such an argument
does not find support by the specific embargo contained in
Article 252(2) of the Constitution. Going by the specific
stipulation contained in Article 252 (2) of the Constitution,
such an extended meaning cannot be imported into the
Civil Appeal No.612 of 2002 83 of 105
Page 84
said provision in order to nullify the effect and operation of
the un-amended Act of 1960 in so far as it related to
‘agricultural lands’ in the appellant State. We, therefore,
hold that the Act of 1960 in its un-amended form applied
on its own and continue to hold the field and was in
operation over the ‘agricultural lands’ over which the
implication of the Act, 1976 had no effect. The said legal
position has to be necessarily understood in the said
manner and cannot be stated in any other manner, much
less in the manner contended on behalf of the respondent.
Thus the said contention made on behalf of the respondent,
therefore, stands rejected.
72. In support of the said submission, reliance was placed
upon a decision of this Court in Union of India & Ors. Vs.
Valluri Basavaiah Chowdhary & Ors. reported in (1979) 3
SCC 324. Having bestowed our serious consideration in
the reliance placed upon the said decision, we find that the
said decision has no application to the legal issues involved
in the case on hand. That was a case where in regard to
the passing of the Act, 1976 itself, based on the resolution
passed by the Andhra Pradesh Legislative Assembly on Civil Appeal No.612 of 2002 84 of 105
Page 85
08.04.1972. The challenge was made to the vires of the Act
in the High Court of Andhra Pradesh. The ground raised
was that the Parliament lacked legislative competence.
Such lack of competence was raised on two grounds. In
the first place, it was contended that the Governor of
Andhra Pradesh did not participate in the process of
authorization in the passing of the Act by the Parliament
and the second ground was that the resolution of the State
Legislature gave authorization to the imposition of ceiling
on the basis of the valuation of the immovable property i.e.
for ceiling on ownership on immovable property and not on
the area of land. It was contended that the ultimate act in
imposing ceiling on the area of the land was not in
conformity with the real intendment of the resolution of the
State and therefore it lacked competence. On the first
ground viz., due to the non participation of the Governor of
Andhra Pradesh, the Parliament lacked competence found
favour with the High Court of Andhra Pradesh which struck
down the Act on that ground itself. While dealing with the
said ground, this Court dealt with the scope of Article 252
(1) & (2) of the Constitution and by relying upon the earlier
Civil Appeal No.612 of 2002 85 of 105
Page 86
decision of this Court in State of Bihar Vs. Sir
Kameshwar Singh reported in AIR 1952 SC 252, ruled that
in the passing of the resolution of the State Legislature, the
Governor nowhere comes in the picture.
73. As far as the second contention was concerned, it was held
as under in Valluri Basavaiah Chowdhary (supra) at
paragraphs 28, 31 and 32.
“28. We are afraid, the contention cannot be accepted. It is not disputed that the subject-matter of Entry 18, List II of the Seventh Schedule, i.e. ‘land’ covers ‘land and building’ and would, therefore, necessarily include ‘vacant land’. The expression ‘urban immovable property’ may mean ‘land and buildings’, or ‘buildings’ or ‘land’. It would take in lands of every description, i.e., agricultural land, urban land or any other kind and it necessarily includes vacant land.
* * *
31. It is but axiomatic that once the legislatures of two or more States, by a resolution in terms of Article 252(1), abdicate or surrender the area, i.e., their power of legislation on a State subject, the Parliament is competent to make a law relating to the subject. It would indeed be contrary to the terms of Article 252 (1) to read the resolution passed by the State legislature subject to any restriction. The resolution, contemplated under Article 252(1) is not hedged in with conditions. In making such a law, the Parliament was not bound to exhaust the whole field of legislation. It could make a law, like the present Act, with respect to ceiling on vacant land in an urban
Civil Appeal No.612 of 2002 86 of 105
Page 87
agglomeration, as a first step towards the eventual imposition of ceiling on immovable property of every other description.
32. There is no need to dilate on the question any further in this judgment, as it can be better dealt with separately. It is sufficient for purposes of these appeals to say that when Parliament was invested with the power to legislate on the subject, i.e. ‘ceiling on immovable property’, it was competent for the Parliament to enact the impugned Act i.e., a law relating to ‘ceiling on urban land’.”
74. Whatever stated in Paragraph 28 can only be understood
to mean that when the State Legislature authorizes the
Parliament to pass a legislation in respect of the subject
matter of Entry 18, List II of the Seventh Schedule, i.e.
‘land’ it would cover ‘land and building’ and would
necessarily include ‘vacant land’ and would take in land of
every description including ‘agriculture land’ or any other
kind of land. It also went on to hold that the resolution
passed by the State Legislature cannot be said to impose
any restriction as it would be contrary to the terms of
Article 252 (1) of the Constitution. It was further held that
the Parliament was empowered to enact the law pursuant
to the surrender of the State to enact a law with said
Civil Appeal No.612 of 2002 87 of 105
Page 88
subject by formulating its own prescription as to the nature
of urban land in different stages. Beyond that, we do not
find any other statement of law propounded in the said
decision. Applying the said legal principle, it can only be
held that the Act, 1976 in having imposed a restriction by
way of ceiling on urban land within the urban
agglomeration by excluding agricultural land it was a valid
piece of legislation. In this respect, the contention of Mr.
Soli J. Sorabji that the State Legislature only intended in
its authorization to bring about a legislation only on ‘urban
immovable land’ and not on any agriculture land is quite
appealing. We can also state that in paragraph 32 of the
said decision, this Court consciously decided not to dilate
on the question any further in that judgment as it can be
better dealt with separately at a later point of time. We now
hold that the situation has now come where the position
has to be made loud and clear to state that the Act, 1976
would govern only such of those lands which would fall
within its area of operation within urban agglomeration to
the specific exclusion of the agriculture lands and
Civil Appeal No.612 of 2002 88 of 105
Page 89
consequently the continued application of the un-amended
Act of 1960 remain without any restriction.
75. On the other hand Mr. Soli J. Sorabjee, the learned senior
counsel for the appellants placed reliance upon a
Constitutional Bench decision of this Court in Thumati
Venkaiah (supra). Almost an identical situation was dealt
with by this Court in the said decision. That case also arose
from the State of Andhra Pradesh. To briefly refer to the
facts, in the State of Andhra Pradesh a ceiling of
agricultural holdings was sought to be imposed by enacting
an Act called The Andhra Pradesh Land Reforms (Ceiling
on Agricultural Holdings) Act (Act 1 of 1973 (hereinafter
referred to as the ‘Andhra Pradesh Act’). It was enacted by
the Andhra Pradesh Legislature on 01.01.1973. The Act
was challenged before the High Court of Andhra Pradesh.
However a Full Bench of the High Court negatived the
challenge by its judgment dated 11.04.1973. The Act was
however brought into force on and from 01.01.1975. The
amendments were brought to the said Act by Amendment
Act of 1977 with retrospective effect from 01.01.1975. After
the amendments, again the Act was challenged on the main Civil Appeal No.612 of 2002 89 of 105
Page 90
ground that by reason of enactment of the Act, 1976, the
Andhra Pradesh Act has become void and inactive. It can
be validly mentioned that the subsequent contention of the
respondent herein was the focal point in the said decision.
Dealing with the said contention, the Constitutional Bench
has held as under in paragraph 5:
“5. Now, as we have already pointed out above, the Andhra Pradesh Legislature had, at the time when the Andhra Pradesh Act was enacted, no power to legislate with respect to ceiling on urban immovable property. That power stood transferred to Parliament and as a first step towards the eventual imposition of ceiling on immovable property of every other description, Parliament enacted the Central Act with a view to imposing ceiling on vacant land, other than land mainly used for the purpose of agriculture, in an urban agglomeration . The argument of the landholders was that the Andhra Pradesh Act sought to impose ceiling on land in the whole of Andhra Pradesh including land situate in urban agglomerations and since the concept of urban agglomeration defined in Section 2(n) of the Central Act was an expansive concept and any area with an existing or future population of more than one lakh could be notified to be an urban agglomeration, the whole of the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature. This argument, plausible though it may seem, is in our opinion, unsustainable. It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside the area of its legislative competence, since it cannot provide for imposition of ceiling on urban immovable property. But the only urban agglomerations in the
Civil Appeal No.612 of 2002 90 of 105
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State of Andhra Pradesh recognized in the Central Act were those referred to in Section 2(n)(A)(i) and there can be no doubt that, so far as these urban agglomerations are concerned, it was not within the legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations. It is, however, difficult to see how the Andhra Pradesh Act could be said to be outside the legislative competence of the Andhra Pradesh Legislature insofar as land situate in the other areas of the State of Andhra Pradesh is concerned . We agree that any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under Section 2(n)(A)(ii) of the Central Act, but until it is so notified it would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on land situate within such area . No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens, the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land in such area . It may be noted that the Andhra Pradesh Act came into force on January 1, 1975 and it was with reference to this date that the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus, it was to be surrendered to the State Government. It is therefore clear that in an area other than that comprised in the urban agglomerations referred to in Section 2(n)(A)(i), land held by a person in excess of the ceiling area would be liable to be determined as on January 1, 1975 under the Andhra Pradesh Act and only land within the ceiling area would be allowed to remain with him. It is only in respect of land remaining with a person, whether an individual or a family unit, after the operation of the Andhra Pradesh Act, that the Central Act would apply, if and when the area in question is notified to be an urban agglomeration under Section 2(n)(a)(ii) of
Civil Appeal No.612 of 2002 91 of 105
Page 92
the Central Act. We fail to see how it can at all be contended that merely because an area may possibly in the future be notified as an urban agglomeration under Section 2(n)(A)(ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area, even though it was not an urban agglomeration at the date of enactment of the Andhra Pradesh Act . Undoubtedly, when an area is notified as an urban agglomeration under Section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application, but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in Section 3(j) and situate within such area. It is, therefore, not possible to uphold the contention of the landholders that the Andhra Pradesh Act is ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.”
(Emphasis added)
76. In the first blush, it appears as though the said decision
support the contention of the respondent. But in paragraph
5, we have highlighted certain relevant conclusions which
fully support the stand of the appellants. This Court made
it clear thereunder that the Parliament enacted the Central
Act with a view to impose ceiling on vacant land other than
the land mainly used for the purpose of agriculture in an
urban agglomeration. The arguments of the land holders
that the concept of urban agglomeration defined in Section
Civil Appeal No.612 of 2002 92 of 105
Page 93
2(n) was an expansive concept and any area which was
already notified as urban agglomeration, as well as, which
can be notified in future based on the increase in
population as urban agglomeration and, therefore, the
Andhra Pradesh Act was ultra vires lacking legislative
competence was held to be unsustainable. It was also held
that the Andhra Pradesh Act seeks to impose ceiling on
land falling within the urban agglomeration, it would be
outside the area of its legislative competence as it cannot
provide for imposition of ceiling on urban immovable
property after the emergence of Act, 1976. It was thus
made clear that after the coming into force of the Act, 1976
by virtue of Article 252 (1) and (2) of the Constitution, there
would have been no scope for the State Legislature to bring
about a legislation for imposing a ceiling on an urban
immovable property which falls within the urban
agglomeration. It was also made clear that other areas
which were not declared as urban agglomeration came to
be subsequently declared as urban agglomeration and
notified as such, the Central Act would automatically apply
and in relation to such notified area also, the State
Civil Appeal No.612 of 2002 93 of 105
Page 94
Legislature would be incompetent to make any legislation
by way of imposition of ceiling on and after such
declaration is made. While referring to such a situation,
this Court made it clear that the Andhra Pradesh Act
continue to be applicable for determining the ceiling of
holding of lands in such area, prior to any such
subsequent notification under the Act, 1976. It was
further made clear that since the Andhra Pradesh Act came
into force on and from 01.01.1975, the surplus holding of
land in excess of the ceiling area were required to be
determined with reference to that date and if there was any
surplus, it was to be surrendered to the State Government.
It was further reinforced by stating that in an area other
than that comprised in the urban agglomeration, the land
held by a person in excess of the ceiling area would be
liable to be determined as on 01.01.1975 under the Andhra
Pradesh Act and the land within the ceiling area alone
would be allowed to remain with him.
77. The crucial words in the said paragraph can be
mentioned again in order to appreciate and understand the
legal position noted. They are:
Civil Appeal No.612 of 2002 94 of 105
Page 95
“It may be noted that the Andhra Pradesh Act came into force on January 1, 1975 and it was with reference to this date that the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus, it was required to be determined and if there was any surplus, it was to be surrendered to the State Government. It is, therefore, clear that in an area other than that comprised with Urban Agglomeration referred to in Section 2(n)(A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on January 1, 1975 under the Andhra Pradesh Act and only Land within the ceiling area would be allowed to remain with him. It is only in respect of Land remaining with a person, whether an individual or a family unit, after the operation of the Andhra Pradesh Act, that the Central Act would apply….”
“Undoubtedly, when an area is notified as an urban agglomeration under Section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application, but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in Section 3(j) and situate within such area . It is therefore not possible to uphold the contention of the landholders that the Andhra Pradesh Act is ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.”
(Emphasis added)
A close and careful reading of the said statement of law
declared by this Court makes it clear that if as on the date
when the Andhra Pradesh Act was already in force i.e. as on
01.01.1975, the determination of surplus land as per the
Civil Appeal No.612 of 2002 95 of 105
Page 96
provisions of the said Act should have been determined and
only thereafter the implication of the Act, 1976 could be
applied. The specific statements “It is only in respect of land
remaining with a person, whether an individual or a family unit,
after the operation of the Andhra Pradesh Act, that the Central
Act would apply…..” “…..but by that time the Andhra Pradesh
Act would have already operated to determine the ceiling on
holding of land falling within the definition in Section 3(j) and
situate within such area…..” makes the above position clear
without any ambiguity.
78. Afortiori if the said ratio decided by the Constitution
Bench of this Court is applied, there would be no difficulty
in holding that as held by us earlier, since as per the un-
amended Act of 1960, ‘Bid land’ held by the respondent fell
within the definition of ‘agriculture’ under Section 2(1) and
consequent definition of ‘land’ as defined in Section 2(17) of
the Act of 1960, the determination of holding of such
excess agriculture land under the said Act of 1960 prior to
the coming into force of the Act, 1976 should be operated
upon. Having regard to the said legal position, we hold that
the action of the appellants in having passed the orders
Civil Appeal No.612 of 2002 96 of 105
Page 97
impugned before the High Court were fully justified and
interfering with the same by the learned Single Judge and
the Division Bench of the High Court by the impugned
order in this Civil Appeal are liable to be set aside.
79. The impugned judgment of the Division Bench of the
High Court proceeded mainly on the footing that the
Amended Act of 1974 cannot form the basis for proceeding
against the respondent for the purpose of acquisition under
the 1960 Act in the light of the field being occupied by the
Act, 1976 which came into force prior to the coming into
force of the 1974 Act, namely, on 17.02.1976 and the
Amendment Act of 1974 which came to be notified only on
01.04.1976. The said conclusion was based on the
implication of Article 252(2) of the Constitution wherein
once at the instance of the State Government even in
relation to any entry in List II an enactment came to be
made by the Parliament, any subsequent amendment
relating to the said subject can only be made by the
Parliament and not by the State. The Division Bench
referred to the claim of the appellant that even by ignoring
the Amendment Act 1974 which came into effect from
Civil Appeal No.612 of 2002 97 of 105
Page 98
01.04.1976 having regard to the existence of the Act, 1976
as from 17.02.1976, the ceiling with regard to the
agricultural land has to be determined as it was existing
prior to 17.02.1976, namely, as agricultural land and the
same being not part of urban agglomeration the 1960 Act
would apply. We find that the said argument was simply
brushed aside. The submission was not dealt with in the
proper perspective.
80. It was lastly contended by the learned senior counsel for
the respondent that the case of the appellants was hit by
the principle of res judicata. In support of the said
submission, reliance was placed upon the joint affidavit
filed by two Deputy Collector dated 06.10.1980, filed in a
different case viz., in Special Civil Application No.941 of
1980 before the High Court of Gujarat where on behalf of
the State of Gujarat, it was contended that in respect of
‘Bid land’ only Act, 1976 would apply where such ‘Bid land’
lie within the agglomeration of Bhavnagar and that Act of
1960 was not applicable. Reliance was also placed upon
another affidavit dated 16.02.2000, filed by the Deputy
Secretary, Revenue Department, Government of Gujarat in
Civil Appeal No.612 of 2002 98 of 105
Page 99
relation to Bhavnagar ‘Bid lands’ before the High Court of
Gujarat in S.C.A.No.15529 of 1999, wherein a stand was
taken by the State Government that possession of
Bhavnagar ‘Bid land’ not having been acquired and taken
under the Act, 1976 prior to its repeal, there was no scope
to take possession of those lands. Reliance was placed
upon the decision of this Court in Palitana Sugar Mills (P)
Ltd. and another Vs. State of Gujarat and others
(supra)wherein, it was concluded by this Court that
Bhavnagar ‘Bid lands’ were controlled by the provisions of
Act, 1976 and not by the Act of 1960. By referring to those
affidavits and the decision of this Court, the contention was
that the stand taken by the appellant in regard to the
Bhavnagar ‘Bid lands’ would apply in all force to the ‘Bid
lands’ belonging to the respondent though they were
situated in Rajkot.
81. In reply to the said submission Mr. Soli J. Sorabjee,
learned senior counsel for the appellants contended that
the principle of res judicata cannot be applied as the parties
were different and the subject lands were different and the
respondent had nothing to do with the issue raised in the Civil Appeal No.612 of 2002 99 of 105
Page 100
decision relied upon by the learned senior counsel for the
respondent. It was also submitted that since the
ingredients to support the principle of res judicata as set
out under Section 11 of the Code of Civil Procedure not
having been fulfilled, the submission of the learned senior
counsel for the respondent cannot be considered. The
learned senior counsel for the appellants brought to our
notice the facts set out in the joint affidavits of the two
Deputy Collectors in S.C.A. No.941 of 1980, wherein it was
specifically averred to the effect that since long time, to the
knowledge of the land holders, the land in question was
demonstrated as meant for residential purpose in the
Master Plan which was prepared since August, 1976 and
that the land in question fell within the definition of ‘urban
land’ under Section 2(o) of the Act, 1976 and therefore the
overriding effect of Section 42 of the Act, 1976 excluded the
application of the Act of 1960.
82. When we refer to the facts mentioned in the joint affidavit
of the two Deputy Collector in S.C.A.No.941 of 1980, we
find that the submissions of the learned senior counsel for
the appellants were clearly set out therein. The lands which
Civil Appeal No.612 of 2002 100 of 105
Page 101
were originally classified as ‘Bid lands’ came to be
specifically classified as land meant for residential purpose
in the Master Plan prepared in the year August, 1976 and
thereby came within the definition of ‘urban land’ under
Section 2(o) of the Act, 1976. Whatever decision rendered
based on those facts cannot be equated to the facts
involved in the case on hand, in order to apply the principle
of res judicata and thereby non-suit the appellants. The
principle of res judicata is governed by Section 11 of the
Code of Civil Procedure. Applying the ingredients set out in
the said provision, the respondent is bound to show that
the issue which was directly and substantially involved
between the same parties in the former suit and was tried
in the subsequent suit, in order to fall within the principles
of res judicata. Applying the substantive part of Section 11
of C.P.C. we fail to see how any of the ingredients set out
therein are fulfilled in order to apply the principle of res
judicata. The parties are entirely different, the fact in issue
as pointed out by the learned senior counsel for the
appellants would disclose that they were based on entirely
different set of facts and circumstances and therefore we do
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not find any substance in the said submission raised on
behalf of the respondent. The said submission, therefore,
stands rejected.
83. When we come to the submission relating to the concept of
eclipse in relation to the Act of 1960, as it originally stood
as well as after the Amendment Act of 1974 by virtue of the
coming into force of the Act, 1976 w.e.f. 17.02.1976, we
wish to only touch upon the position that occurred due to
the subsequent repeal of the Act, 1976 in the year 2000.
We are conscious of the fact that we are not solely
concerned with the said issue of eclipse of the Act of 1960
and its revival after the repeal of the Act, 1976. However,
since the said issue was argued by the respective counsel
and reliance was placed upon a Constitution Bench
decision of this Court on this issue in M.P.V.
Sundararamier (supra) we are obliged to deal with the said
submission. In the said decision among other contentions a
contention was raised on behalf of the petitioner therein
which was as under:
“Section 22 having been unconstitutional when it was enacted and, therefore, void, no proceedings
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could be taken thereunder on the basis of the Validation Act as the effect of unconstitutionality of the law was to efface it out of the statute book.”
Dealing with the said contention, the Constitution Bench
has held at page 1469 and 1474-75 as under:
“…..If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment .
The result of the authorities may thus be summed up: Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto. On this view, the contention of the petitioners with reference to the Explanation in s.22 of the Madras Act must fail….”
(emphasis added)
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In the light of the said proposition of law laid down by
the Constitution Bench decision of this Court, it will have to
be held that once the Act, 1976 came to be repealed whatever
constitutional embargo that was existing as against the Act of
1960 as well as the Amendment Act of 1974 ceased to exist
and the Act would operate in full force. In the light of the said
settled legal position, we need not dilate much on this issue
and we leave it at that.
84. Having regard to our above conclusions, the judgment
impugned in this appeal is liable to be set aside. The
appeal, therefore, stands allowed. The order of the learned
Single Judge as well as the impugned judgment of the
Division Bench are set aside. The judgment dated
08.09.1989 passed by the Gujarat Revenue Tribunal in
Revision Application No.TEN.B.R.4/84 confirming the
orders of the Deputy Collector and Mamlatdar and A.L.T in
so far as Bid lands in survey No.111/2 admeasuring 30
acres 30 Gunthas and survey No.111/3 admeasuring 579
acres 27 Gunthas stands restored. In the facts and
circumstances of the case where we have dealt with pure
questions of law there will be no order as to costs.
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Page 105
………………………….J .
[Dr. B.S. Chauhan]
……….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi; December 04, 2012
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