Devji Meghji Gangar ... v. Lalmiya Mosammiya Si...

B. Mehta, J.

1. These are two cross petitions against the order of the Revenue Tribunal, dated October 28, 1970, as the Revenue Tribunal has held that out of the three purchasers in the first petition, only Devji Meghji, petitioner No. 1, was an agriculturist; while the other two petitioners who had no land in this State and were not personally cultivating any land in the Gujarat State were not agriculturists. Both the parties have challenged the said decision in these two cross petitions.

2. The respondents-holders in the first petition held four lands in question. The agreement of sale dated May 8, 1963, was entered into with these three purchasers for Rs. 73,551/- of which admittedly the total price of Rs. 26000 has been paid on or before May 25, 1964. The possession was given to these three purchasers on the very next day i.e. on May 9, 1963. As under Section 63 of the Bombay Tenancy and Agricultural lands Act, 1948, hereinafter referred to as 'the Act', permission was thought to be necessary, the purchasers had applied as per the implied obligation under this agreement to get such permission on July 2, 1964 in the form of no objection certificate of the Collector. There is no dispute that the proceeding had ended by the order of the Tribunal, dated November 6, 1965, by the application being rejected as purchasers had proceeded on the footing that they were agriculturists and so no such permission could be granted. Thereafter the respondent-landholder in the first petition took proceeding under Section 84 for eviction of these purchasers but even this proceeding had ended by the order of the Tribunal because under the agreement of sale this possession had been taken away from these landholders. Therefore, they have filed the present suit as plaintiffs in the Civil Court for getting possession from the purchasers-defendants on the ground that the salutary prohibition under Section 63 had been violated as possessory interest had been transferred without any permission of the Collector to these three non-agriculturists. That is why the Civil Court had made a reference of the issue about these three defendants-purchasers being agriculturists on the date of the suit agreement dated May 8, 1963. The Mamlatdar-A.L.T. answered this Reference by the order, dated May 15; 1967 that all the purchasers were not agriculturists for the simple reason that the statutory definition as to personal cultivation was not satisfied because so far as the suit lands were concerned even in respect of the purchaser Devji Meghji they were far away from the alleged lands which he held in Kutch area, and, therefore, the relevant condition under Section 2(6)(b) could not be fulfilled. The other two purchasers could never fulfill the said condition because they were not cultivating any land in this State. Therefore, all the three purchasers-defendants were held to be not agriculturists by the Mamlatdar and ,.L.T. Against that order, in appeal, the Prant officer by the order, dated November 14, 1968 held that all these respondents were agriculturists without keeping any legal perspective of this statutory definition in mind. This finding having been set aside as contrary to law by the Tribunal so far as the other two purchasers are concerned, they have raised their grievance in this petition and so far as the first purchaser Devji Meghji was held to be an agriculturist, landholders have raised their grievance in the other petition. As common questions are raised in the cross petitions, they are disposed of by this common order.

3. The preamble of the Act in terms recites that it is an Act to amend the law relating to tenancy of the agricultural land and to make certain other provisions in regard to these lands. The preamble recites as under:

Whereas it is necessary to amend the law which governs the relations of landlords and tenants of agricultural lands:

And whereas on account of the neglect of a holder or dispute between a landholder and his tenants, the cultivation of his estate has seriously suffered, or for the purpose of improving the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture, it is expedient to assume management of estates held by landholders and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the Province of Bombay and to make provisions for certain other purposes hereinafter appearing; it is hereby enacted as follows:

Therefore, the preamble itself makes it clear that the whole object was to impose restrictions on the transfer of agricultural land, dwelling houses and sites and lands appurtenant thereto, belonging or occupied by agriculturists, agricultural labourers, artisans in the province of Bombay, and to make provisions for certain other purposes, because the State Legislature which was legally competent to enact this legislation in the matter of such agricultural land within the State wanted to place these restrictions to help these unprotected agriculturists, agricultural labourers and artisans who were personally cultivating land in this State of Bombay. It is settled legal principle of construction that ordinarily extra territorial operation would not be intended by the legislature and the legislature which is conversant with the needs of the subjects of the State would be making legislation for their benefit only. Even though language of the statute as such may be silent, in such cases preamble would always be the key which would unravel the meaning behind the statute. The legislature has enacted the definition of agriculturist in Section 2(2) as meaning any person who cultivates land personally. This concept of personal cultivation is also defined in Section 2(6) as to cultivate lard 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; being land, the entire area of which--

(a) is situate within the limits of a single village, or

(b) is so situate that no piece of land is separated from another by a distance of more than five miles, or

(c) forms one compact block.

Therefore, the concept of agriculturist is not a simple concept of a cultivator of land wherever situate but it is implicit that the land must be within the Slate of Bombay. The second ingredient is also expressly specified that he must be personally cultivating such land. Personal cultivation concept is defined in Section 2(6) as the cultivation on one's own account, by one's own labourer by labour of member of one's family or under personal supervision of oneself or any member or one's family by hired labour or by servants on wages payable in cash or kind but not on crop share. Therefore, a further limitation is obviously introduced to narrow down this concept of personal cultivation by taking within ambit only such land, the entire area of which:

(a) is situate within the limits of a single village, or

(b) is so situate that no piece of land is separated from another by a distance of more than five miles, or

(c) forms one compact block.

Therefore, the personal cultivation as envisaged in this narrow concept is actual personal cultivation not of lands howsoever separated, but lands which are situate within the limits of one single village or which are so situate that no piece of land is separated from one another by more than five miles distance or when they forms one compact block. If the lands are situate beyond such limits of the single village or five miles limit distance or when they did not form any compact block, such lands could never be said to be satisfying the definition of personal cultivation of the entire area so as to give the person concerned status of agriculturist within the narrow definition of Section 2(2) of the Act. Therefore, when this special definition of an agriculturist has to be examined qua any land it would have to be examined from this narrow test of land being situate within the State of Bombay and the land being personally cultivated by such agriculturist so that all these lands of which he claims this status agriculturist must form the entire area, whether situate within the limits of one single village or not separated from one another by more than five miles distance or which has Formed one compact block. It is in the light of this settled scheme of an agriculturist that we will have to densified restrictions placed by this statute for transfer of land Under Section 63. Section 63 envisages a prohibition by enacting in Clause (1) - save as provided in this Act.

(a) no sale including sales in execution of a decree of a Civil Court for recovery the arrears of land revenue or for sums recoverable as arrears of land revenue, gift, exchange or lease of any land or interest therein,....

shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer, provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed. It is further provided that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual, income of such person from other sources exceeds five thousand rupees. Even when a landlord intends to sell a land under Section 64, restrictions are placed that he shall apply to the Tribunal for determination of reasonable price and under the provision the first offer has to be made to the tenant in actual possession and thereafter also only to persons and bodies mentioned in the priority list. Thereafter Section 84 provides for summary eviction of person unauthorisedly occupying or wrongfully in possession of any land--

(a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the provisions of the Act;

(b) the management of which has been assumed under the said provisions, or

(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons.

Therefore, this scheme of the relevant restrictions in the shape of such mandatory prohibition would show that such sale can be valid only when these restrictions are scrupulously observed, otherwise sale to a person who is not an agriculturist or who being agriculturist/cultivates personally land not less than the ceiling area or who is not at agricultural labourer would not be valid, unless the Collector grants permission for such sale on prescribed conditions. Even the permission could not be granted where the land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees. Therefore, the whole object of this benevolent provision is to Section that the land remains with the tiller or person personally cultivating land, and personal cultivation even has very narrow meaning under the restrictive scheme of Section 63 read with Section 2(6) of the Act, as such agriculturist to whom the sale is proposed of any land must satisfy this concept of personal cultivation of the entire land by fulfilling this unnecessary ingredient that the entire area which he would thereby get by such purchase would be situated within the limits of the same village or would not be separated by a distance of more than five miles or would form one compact block with his land. If this relevant test is not fulfilled, the person would not be agriculturist qua that particular land and such land could not be sold to such a person who is not an agriculturist in view of bar of Section 63(1). That is why Section 63(1) has advisedly used this categorical prohibitory phraseology that no sals shall be valid in favour of the person who is not an agriculturist or who being agriculturist cultivates personally land not less than the ceiling area. Therefore, even if the definition of agriculturist personally cultivating land is satisfied, Section 63 still puts a further fetter that even for such an agriculturist who was cultivating land personally, the limit of his holding should not exceed the ceiling area, because if the/limit exceeded, the prohibition would again come in, If the interpretation put by Mr. Shah is accepted, the whole purpose of this benevolent provision would be totally frustrated as any man any where throughout the country could come in for purchase of this land and claim this special status of agriculturist so as to get out of the statutory bar of Section 63. The said view of such benevolent provision is supported by sufficient authority. In Tukaram Savalram v. Narayan Balkrishna 54 Bom. L.R. 88, Chagla C.J. had to interpret term 'land' in the context of the benevolent provision of the Bombay Agricultural Debtors' Relief Act, 1947, Section 5(a)(ii) and he held that the land referred to in that provision was land only within the Province of Bombay and not land anywhere in the world. The learned Chief Justice pointed out that if the language of a section was clear, it was not permissible to look at the preamble; but when the language was not clear and was ambiguous, it was open to the Court to construe a section in the light of the preamble, because the preamble supplied a clear guide as to what was the object of the Legislature in placing a certain law on the statute book, to which in that case the relief of agricultural debtors in the province of Bombay. The relief was not to be given merely to a debtor in the Province of Bombay but to agricultural debtor in the Province of Bombay, and to only that debtor in the Province of Bombay. The Legislature was interested in those people who were cultivating land within its territorial jurisdiction and to whom relief was to be given because they were indebted. It was, therefore, impossible to believe that the Legislature wanted to give relief to agriculturists from other parts of India merely because they might have become indebted in the Province of Bombay. Therefore, the relevant provision was construed in the light of the preamble by holding that the land was not intended as land anywhere in the world but covered land only within the province of Bombay. The same view is reiterated in Chinubhai Karansang v. Serdul Mansang 58 Bom. L.R. 463, which has been relied upon by the Revenue Tribunal. Their Lordships construed the expression "other land" in section 34(2)(a) of the Act, in the light of this concept 'personal cultivation' in Section 2(6) and held that the other laud referred to in Section 34(2) of the Act must be restricted to land in the State of Bombay. It was pointed out at page 464 by the learn/d Chief Justice, Chagla C.J. speaking for the Division Bench, that the ordinary principle of construction was (hat the Legislature was dealing with the subject matter situated within its own territorial jurisdiction. The Legislature was not concerned with improving the lot of any person outside the State of Bombay; nor was it conversant with the conditions prevailing outside the State. The tenant for whose benefit the legislation is put on the statute book and who has been defined and the landlord who has been correspondingly defined were tenant and landlord in the State of Bombay. Therefore, the limit of 50 Acres in section 34(2) (a) was held to have been laid down from the point of view of conditions prevailing in the State of Bombay. Therefore, it was held that the Legislature was indifferent to what was the landlord's holding outside the State of Bombay. It was further in terms observed that the Legislature had defined the expression "cultivating personally", in Section 2(6) also looking to the conditions prevailing in the State of Bombay. The conditions in other existing area of Saurashtra or any other parts of the world might be entirely different. Therefore, the expression 'land' in section 34(2)(a) was restricted to land in the State of Bombay.

4. Mr. Shah, however, vehemently relied upon the decision of Bhasme J. in Special Civil Application No. 601 of 1966 decided on April 24, 1970 in the Maharashtra High Court, where the learned Judge has rightly followed both these decisions as an authority for the settled proposition that there would be no extra territorial application of laws because the Legislature would have to consider the local conditions while making benevolent provision and therefore the relevant expression in this provision would have to be interpreted accordingly. The learned Judge only however sought to distinguish this binding ratio on the facts of that particular case because, admittedly, the person concerned was personally cultivating land within the State of Maharashtra and, therefore, the State Legislature had complete jurisdiction and must be intended to have given relief. Even if, in different local areas there were different local laws, so long as the same Legislature was legislating for the whole of Maharashtra, it was held that the Ceiling Act, 1961, applied to the whole of the State of Maharashtra and, therefore, the expression 'agriculturist' used in Section 63 must cover all persons who were carrying on agricultural operations within the entire State of Maharashtra, even within the different local areas. Therefore, the land being situate within the limits in Maharashtra State, the person was held to satisfy the definition of 'agriculturist' in Section 63. This decision could never aid Mr. Shah for the proposition propounded by him that even persons cultivating land outside the Gujarat State or who are landholders outside the Gujarat State were intended to be covered or could claim status of agriculturist. This decision also does not covered the other ground which is raised in the present petition that the definition of 'personal cultivation' has been sufficiently restricted to Section 2(6) by the concept as to how the entire area must all the additional conditions laid down in Clauses (a),(b) and (c). Therefore, Mr. Shah relied upon the decision in Special Civil Application No. 2211 of 1956 decided on November 11, 1956, where Gajendragadkar J. (as he then was) had merely made an observation that while judging bonafide requirement of a landlord of land for personal cultivation the land in Saurashtra should have been taken into consideration. This decision is hardly helpful in the present context especially when the relevant definitions have not been perused at all and the contention which we had to answer was never raised and the matter was looked at from the wider context of bom fide personal requirement.

5. Therefore, there is no substance in the contention of Mr. Shah that the definition of the term 'agriculturist' in Section 2(2) should be read in the abstract to cover agriculturist cultivating land wherever situate or that the definition of 'personal cultivation' of the entire area under Section 2(6) should not be satisfied qua the land proposed to be purchased when the question arose as to whether Section 63 restriction has been complied with or not. In that view of the matter, the Revenue Tribunal was obviously right so far as other two purchasers Nos. 2 and 3 were concerned who had no land and no personal cultivation whatever in the Gujarat State. The Revenue Tribunal was, however, obviously in error so far as petitioner No. 1 Devji Meghji was concerned who could not satisfy the definition of agriculturist by fulfilling the relevant test of personal cultivation of the entire area under Section 2(6). The definition of 'personal cultivation' could not be examined in abstract but only with reference to the land which was sold or purchased when the question arose of compliance with the mandatory restriction in Section 63(1). The agriculturist in that context would have to show that he was personally cultivating land in neighbourhood so that the land which he proposed to purchase would be the entire area which would satisfy the ingredient of Section 2(6) (a),(b) or (c). If these ingredients were not satisfied, the person concerned would not be agriculturist qua this land and would have to be treated as a non-agriculturist where the sale could only take place with the permission of the Collector which has been refused in the present case. Therefore, that finding of the Revenue Tribunal that Devji Meghji, purchaser, petitioner No. 1 in the first petition was an agriculturist must also be reversed and in respect of all the three purchasers the Mamlatdar's finding that all of them were not agriculturists must be restored.

6. Mr. Shah had also raised a preliminary objection that the Mamlatdar could not answer the question referred to him because Section 70(a) enables Mamlatdar to decide whether a person is an agriculturist. It hardly lies in the mouth of Mr. Shah to raise this technical objection when as defendants they have succeeded in getting this reference made by the Civil Court. They are driving these unfortunate victims from pillar to post by raising this frivolous technical contention. The purchasers defendants had participated in the present reference and before the authorities this point was not raised and oily before the Tribunal this contention was sought to be raised by getting inspiration from the decision in Mussa-miya v. Govindrao 10 G.L.R. 421, where in the context of Section 70(b) their Lordships held that the Mamlatdar could decide whether a person is a tenant but could not decide the issue about his past tenancy. That is why the Legislature has now retrospectively made amendment even in Section 70(b) by enabling the Mamlatdar to decide whether a person is or is not a tenant or protected tenant or permanent talent to overreach the effect of that decision. That decision was in the spodal context because the tenancy issue was to arise in the context of a deemed purchase on the tiller's day April 1, 1957.

7. That decision would not have any bearing so far as the present context is 'Concerned. This issue had to be referred to these revenue authorities to find out whether the relevant prohibition created under the scheme of this act in section 63 for the benefit of these landholders was duly complied with or not. Even the Legislature wanted the effect of the transfer to be completely obliterated by enacting the mandatory provision in section 84 J. that the possession could be restored to the unfortunate victims. In such context when for resolving such dispute about this statutory issue this special forum under Section 70(a) is created in supersession of the ordinary Courts of law, that this expert today "Heaver Tribunal", could finally resolve this question, the intention of the Legislature must be given full effect to by giving the proper interpretation that the Mamlatdar should decide whether a person is an agriculturist at the date when he claims to have such status. The present purchasers claim such status only at the date of the present agreement of sale so that they could protect their possessory interest because of transfer of possession in their favour, by escaping (his mandatory bar of Section 63. It has, therefore, to be determined whether he is an agriculturist at the relevant date and that question can be decided only by the Mamlatdar under Section 70(a) and the Civil Court would have no jurisdiction to determine this statutory issue which is left to this exclusive forum by the Legislature in its wisdom. Therefore, no such technical objection could avail Mr. Shah. I would of-course mention that Mr. Shah had made a futile attempt to raise a contention that after the agreement in any event the purchasers were cultivating this land in question and so they were agriculturists. This is putting cart before the horse. When it has to be examined whether this purchase was violating terms of this mandatory restriction under Section 63, the status of agriculturist has to be examined before the possessory interest was sought to be transferred under the device of this agreement of sale. Therefore, there is no substance in any of the contentions raised by Mr. Shah.

8. In the result, Special C.A. No. 1670/70 must fail and the rule must be discharged with costs while the other Special C.A. No. 271/71 must be allowed by making the rule absolute by setting aside the binding of the Tribunal and by substituting the finding that even the first purchaser Devji Meghji was not an agriculturist on this relevant date i.e. May 8, 1963, and accordingly the findings in respect of all the three purchasers arrived at by the Mamlatdar must be restored. The Mamlatdar shall, therefore, accordingly send his answer immediately to the Civil Court and the Civil Court shall now expeditiously dispose of this suit which is long since pending within a period of three month from the receipt of this finding. Rule is accordingly made absolute in Special C.A. No. 271 of 1971 with costs.