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Madhukar Purushottam Patil v. State Of Maharashtra And Others
Structured Summary of the Opinion (Full Bench)
Factual and Procedural Background
This Full Bench reference arose by consent on three specific legal questions concerning the operation of Section 10(1) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 as affected by subsequent amending Acts of 1972 and 1975.
The immediate factual matrix involves a family unit comprising Madhukar Patil, his wife Sau. Mandakini and their minor son Manoj. Prior to 26-9-1970 the three members separately held nearabout 116 acres (Madhukar), 56 acres (Mandakini) and 57 acres (Manoj). Considering pot-kharab land, Mandakini and Manoj held land below the ceiling limit individually. Manoj transferred nearly all his land sometime in 1973 and before 2-10-1975 purchased 16 acres. Mandakini transferred 39.50 acres between 1971 and 1972.
Procedurally, divergent Single Bench and Division Bench decisions on related questions produced conflicting views on how Section 10(1) should be applied to transfers made between 26-9-1970 and the commencement date. Following conflict in authorities, a reference to a larger Bench (Full Bench) was made. The Court formulated three points for consideration by consent of the parties and heard extensive argument and reviewed legislative history and numerous precedents before answering the three points.
Legal Issues Presented
- Whether the term “the object of the Amending Act, 1972” in Section 10(1) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 means the Amending Act as amended by Act No. 47 of 1975 (i.e. whether the 1972 Act must be read as amended by the 1975 Act for purposes of Section 10(1))?
- Whether Section 10(1) is attracted in respect of a transfer between 26-9-1970 and 2-10-1975 by a “member of family unit” who separately held land prior to 26-9-1970?
- Whether, in case of a family unit in existence on 2-10-1975, Section 10(1) is attracted in respect of transfer between 26-9-1970 and 2-10-1975 by a “member of a family unit” whose individual holding is below the ceiling limit but aggregate holding of the family unit is in excess of the ceiling limit on the commencement date?
Arguments of the Parties
State / Government's Position (as reflected in the record)
- In earlier litigation (as represented in some Single Judge decisions), the State maintained that the ratio of Narayanibai should be read narrowly: Section 10(1) could not be pressed into service if the relevant family unit was not in existence on the commencement date (2-10-1975).
- The State sought to rely on decisions that limited retrospective effect and to argue that later amendments (Amending Act, 1975) should not be read as changing the legal status of transfers made earlier unless clearly intended.
- On appeal to the Supreme Court in Narayanibai the State sought leave, but the Special Leave Petition was rejected on the factual ground that, on those facts, the sales were not shown to be in anticipation of or to defeat the object of ceiling legislation.
Landholders / Petitioners' Position (as reflected in the record)
- Some landholders (and certain Single Bench decisions cited) read Narayanibai as laying down a wider principle: that Section 10(1) is not attracted when, on the date of the transfer, the transferor individually held land less than the ceiling area (i.e. personal holdings below ceiling at time of transfer should avoid the presumption).
- Counsel for landholders also argued that transfers made after the Bill for the Amending Act, 1972 was introduced could not be said to be “in anticipation of” that Act because the provisions were known only after introduction — hence certain transfers could not be presumed anticipatory.
Specific Counsel Contentions Noted by the Court
- Shri Madkholkar argued that transactions after introduction of Bill No. LVI of 1972 (7-8-1972) could not be in "anticipation" of the Amending Act, 1972, because the provisions were not then unknown.
- Mr. Chandurkar contended that the principle in Shamrao v. Parulekar should not be applied to permit reading the 1975 amendments into the 1972 Act for present purposes.
- Mr. Deshpande relied on State of Kerala v. Philomina and similar authority to argue against reading the 1975 amendment as affecting antecedent transfers (i.e., he argued against an interpretation that would give retrospective effect to the 1975 Act).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Bhai v. State of Maharashtra (Spl. C.A. No. 3345 of 1976) | Held that if a family unit did not hold at any point between 26-9-1970 and 2-10-1975 land exceeding the ceiling limit, transfers effected during that period would not attract Section 10(1). | Used to explain a line of authority which narrowly applied Section 10(1). The Court examined and limited the ratio of Abdul Bhai when considered with other authorities. |
| Vithalrao Uttarwar v. State of Maharashtra (AIR 1977 Bombay 99) | Explained that a later amending Act (No. 47 of 1975) can be read into an earlier amending Act (Act No. 21 of 1975) by reference and that enforcement dates do not negate legislative intent; an amending Act may be incorporated into the earlier Act when enforced. | Relied on extensively for the proposition that Act No. 47 of 1975 could and should be read as effectively amending the Amending Act, 1972 when enforcement occurred, supporting the Court's conclusion that "Amending Act, 1972" meant the Act as amended by 1975. |
| Dattatraya v. State ((1977) 2 SCC 548 : AIR 1977 SC 915) | Upheld constitutional validity of the Principal Act (Maharashtra Ceiling Act). | Noted to show that the Principal Act (as amended into the Ninth Schedule) was constitutionally sustainable; supports that Section 10 must be construed reasonably within a valid statutory framework. |
| Wamanrao v. Union of India ((1981) 2 SCC 362 : AIR 1981 SC 271) | Also upheld constitutional validity of land ceiling legislation. | Used with Dattatraya to affirm the validity of the statutory scheme that the Court is construing. |
| Narayanibai v. State of Maharashtra (1976 Mah L.J. 865) | Single Judge held Section 10(1) was not attracted because the family unit did not exist on 2-10-1975; contained observations about transfers where transferor held land below ceiling at date of transfer (which later benches treated as obiter on that point). | The Court analyzed Narayanibai closely and concluded its true ratio is limited to the point that Section 10(1) is not attracted when the family unit was not in existence on 2-10-1975. The Full Bench rejected reading Narayanibai as immunizing individual transfers where the family unit existed on the commencement date. |
| Vithalrao Karekar v. State of Maharashtra (Spl. C.A. No. 429 of 1977) | Applied Narayanibai to hold that where a family unit existed on both 26-9-1970 and 2-10-1975 and held below ceiling, transfers by a member would not attract Section 10(1). | Considered among other decisions; Full Bench found some decisions applying Narayanibai more broadly to be incorrectly applying its ratio. |
| Vasantrao v. State of Maharashtra (Spl. C.A. No. 3709 of 1976) | Held Narayanibai applied where family unit was not in existence on 2-10-1975; thus Section 10(1) not attracted. | Noted as part of the conflicting authorities; Court analyzed the consistency of these views with the correct ratio of Narayanibai. |
| Kantabai v. The State of Maharashtra (Spl. C.A. No. 119 of 1977) | Held that transfers by a member of a family unit of land separately held since before 26-9-1970 were not caught by Section 10(1) in view of proviso to Section 4(1) (as introduced by Amending Act, 1972). | Discussed as taking a view later treated as inconsistent with the Full Bench's conclusion that the proviso was deleted by the 1975 amendment for purposes of Section 10(1) on the commencement date. |
| Shravan v. State of Maharashtra (Spl. C.A. No. 2919 of 1976) | Interpreted Section 10 with reference to the family unit as contemplated prior to deletion of the proviso by Act No. 47 of 1975. | Noted as one of several Single Bench or Division Bench decisions that treated the earlier (pre-1975) conception of family unit as operative; Full Bench found some such applications erroneous in light of incorporation of the 1975 amendment for purposes of Section 10 on the commencement date. |
| Pandurang Narayanrao Nemade v. State of Maharashtra (Spl. C.A. No. 1514 of 1977) | Reference to Division Bench (Ginwala & Patel JJ.) which concluded (inter alia) that: (a) Narayanibai's sole ratio was that Section 10(1) is not attracted where family unit did not exist on 2-10-1975; (b) "Amending Act, 1972" in Section 10(1) must be read as amended by Amending Act, 1975. | The Full Bench accepted Pandurang Nemade's interpretation as authoritative on several questions and relied on it in concluding that the 1972 Act must be read as amended by the 1975 Act for purposes of Section 10(1). |
| Vithalrao Ganpatrao Warhade v. State of Maharashtra (1983 Mah Law Journal 952) | Single Judge (Puranik J.) read “Amending Act, 1972” to mean the unamended 1972 Act (i.e. not as amended by 1975) and held that transfers by members holding separately before 26-9-1970 could not be deemed anticipatory in the period up to 19-9-1975. | Recognized as an alternate line of authority; the Full Bench reviewed and disagreed with Warhade's conclusion, distinguishing it and preferring the approach that reads the 1975 amendment into the 1972 Act for purposes of Section 10(1) on the commencement date. |
| Ramrao Deshkar v. State of Maharashtra (Letters Patent Appeal No. 2 of 1981) | Division Bench relied on Narayanibai to hold that sales of land held separately by a member prior to 26-9-1970 and sold in 1974 did not attract Section 10(1) though total family holdings exceeded ceiling. | Full Bench found the application of Narayanibai in Ramrao Deshkar to be erroneous on the broader point and rejected its reasoning insofar as it conflicts with the Full Bench's interpretation. |
| Purushottam Deshmukh v. State of Maharashtra (Letters Patent Appeal No. 2 of 1982) | Division Bench agreed with the reasoning in Vithalrao Warhade (i.e., narrower reading). | Noted as part of the conflicting authorities; Full Bench did not accept those decisions' broader conclusions. |
| Smt. Nirmalabai v. State of Maharashtra (AIR 1985 Bombay 260) | Single Bench decision that agreed with Pandurang Nemade (i.e. that the 1972 Act is to be read as amended by 1975 for Section 10(1)). | Noted as subsequent Single Bench authority endorsing the view the Full Bench ultimately adopted. |
| Arun Sanghai v. State of Maharashtra (AIR 1986 Bombay 236) | Single Bench decision agreeing with Pandurang Nemade and construing Section 10(1) and its explanation consistently with reading the 1975 amendment into the 1972 Act. | Quoted and relied on by the Full Bench (particularly on the effect of the statutory fiction in the first Explanation to Section 10(1)). |
| Ambika Prasad v. State of U.P. ((1980) 3 SCC 719 : AIR 1980 SC 1762) | Used to illustrate factual reality that landholders anticipated reductions in ceilings and therefore planned transactions to frustrate future restrictions; supports broad meaning of “anticipation”. | Relied on to interpret “in anticipation of” in Section 10(1) contextually — i.e. transfers made to defeat likely future legislation can be treated as anticipatory. |
| Narbada Prasad v. State (A.I.R. 1981 Madhya Pradesh 101) | Held that a transfer is in anticipation of an Act when made with a view to defeat or delay the object of the Act likely to be passed. | Used to support a purposive, contextual interpretation of the phrase “in anticipation of” in Section 10(1). |
| Shamrao v. Parulekar (AIR 1952 SC 324) | Sets out the rule that where a subsequent Act amends an earlier one by incorporation, the earlier Act must be read as if the altered words were written into it (subject to absence of repugnancy), i.e. the “pen and ink” doctrine. | Cited as a controlling interpretive principle supporting the reading of the 1975 amendment into the 1972 Act for the purposes of determining applicability of Section 10(1). |
| Shri Ram Narain v. Simla Banking & Industrial Co. Ltd. (AIR 1956 SC 614) | Considered and distinguished: held Shamrao not applicable in a context where overriding effect and other statutory structures made the Shamrao approach inapposite. | Cited and distinguished by the Court as not analogous to the present statutory scheme; the Full Bench explained why Shamrao applies here but may not apply in other statutory contexts. |
| Thakorelal v. Gujarat Revenue Tribunal (AIR 1964 Guj. 183) | Held that an amendment making rights heritable did not operate in favor of persons who had died before the amendment where scheme did not permit such retrospective operation. | Distinguished by the Full Bench: different statutory scheme and not in pari materia with Section 10(1) issues; thus not applicable to defeat the Full Bench's reading. |
| State of Bombay v. Pandurang Vinayak (AIR 1953 SC 244) | Authority on giving full effect to statutory fictions; supports treating legal fictions as to be carried to logical conclusion. | Relied on to justify giving full operative effect to the statutory fiction in the Explanation to Section 10(1) (i.e. treating transfers between dates as deemed anticipatory unless contrary proved). |
| CIT, Delhi v. S. Teja Singh (AIR 1959 SC 352) | Principle that, when applying a statutory fiction, courts must assume the facts necessary for the fiction to operate. | Quoted to support the approach that the Explanation to Section 10(1) must be carried through logically, assuming the legal incidents upon which the fiction operates. |
| East End Dwelling Co. Ltd. v. Finsbury Borough Council ((1951) 2 All ER 587 (HL)) | Classic statement (Lord Asquith) on treating an imaginary state of affairs as real when a statute so directs (supporting full effect of statutory fiction). | Quoted to reinforce the principle that a statutory fiction must be carried to its logical consequences for interpretation of Section 10(1)'s Explanation. |
| State of Kerala v. Philomina ((1976) 4 SCC 314 : AIR 1976 SC 2363) | Held that an amendment to withdraw exemption did not validate voluntary transfers in a prior period where section-exemptions were not altered; example of limits on retrospective or overriding effect of later amendments. | Distinguished by the Full Bench as not being in pari materia with Section 10(1); Court explained why Philomina's reasoning does not control the present interpretation. |
Court's Reasoning and Analysis
The Court undertook a layered, textually-rooted and purposive analysis. The principal steps in its reasoning were:
- Contextual textual reading: The Court emphasized that the phrase "the object of the Amending Act, 1972" in Section 10(1) must be read in context ("the object of ...") and not in isolation; the statute uses "object" rather than "provisions", indicating a purposive intent to capture legislative purpose.
- Legislative history and dates: The Court reviewed the sequence: Principal Act (1961); conference 26-9-1970; Bill introduced 7-8-1972 which emerged as Amending Act, 1972 (Maharashtra Act No. XXI of 1975) — gazetted and brought into force on 19-9-1975; Amending Act, 1975 (Maharashtra Act No. XLVII of 1975) passed in August 1975 and brought into force on 20-9-1975; subsequently the "commencement date" was altered by Ordinance to 2-10-1975. The Court stressed that the 1972 Act existed as an enacted text before the 1975 Act and that the 1975 Act was enacted with reference to the 1972 Act.
- Application of the "pen-and-ink" principle (Shamrao): The Court relied on the established principle that where a later Act amends an earlier Act by incorporating itself, the earlier Act should be read as if the amendments had been written into it (subject to avoiding repugnancy). The Court found this principle applicable: Act No. 47 of 1975 must be read as having incorporated certain changes into the Amending Act, 1972 for purposes of enforcement.
- Treatment of the statutory fiction in Section 10(1): The Court accepted the view that the first Explanation to Section 10(1) creates a legal fiction deeming transfers made after 26-9-1970 but before the commencement date to be in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 (as amended). Drawing on authorities on statutory fictions (Pandurang Vinayak; Teja Singh; East End Dwelling), the Court held that the fiction must be given full effect and carried to its logical conclusion — which requires assuming the facts necessary for the fiction to operate (including that the proviso to Section 4(1) was not on the statute book for purposes of Section 10(1) on 2-10-1975).
- On retrospective operation and antecedent facts: The Court distinguished between giving a statute retrospective operation and applying an enacted provision to antecedent facts in an inquiry about surplus land — holding that applying the Amending Act, 1972 as amended by 1975 to antecedent transfers (for purposes of the statutory fiction and determining surplus) does not amount to impermissible retrospective legislation in the sense criticized in other cases (e.g., Thakorelal; Philomina), because Section 10(1) is prospective in operation from the commencement date but necessarily enquires into antecedent facts.
-
Resolution of conflicting authorities: The Court analyzed earlier Single Bench and Division Bench decisions (notably Narayanibai, Vithalrao Uttarwar, Vithalrao Warhade, Ramrao Deshkar, Pandurang Nemade and others). It concluded:
- Narayanibai's true ratio is limited: it decides only that Section 10(1) is not attracted when the family unit was not in existence on the commencement date (2-10-1975); other passages were obiter as to transfers by members who held individually below ceiling at transfer date.
- Decisions that read Narayanibai as broadly immunizing individually-held transfers (even where the family unit existed on the commencement date and exceeded the ceiling) were erroneously applying Narayanibai.
- Pandurang Nemade (Division Bench) correctly concluded that "Amending Act, 1972" in Section 10(1) must be read as amended by Act No. 47 of 1975; the Full Bench endorsed this analysis and the reasoning in later Single Bench decisions (e.g., Arun Sanghai, Nirmalabai) that followed that approach.
- On the meaning of "in anticipation of or in order to avoid or defeat": The Court rejected a narrow dictionary-only view and adopted a contextual purposive meaning: transfers made with a view to defeat or delay the object of impending legislation are captured; contemporary public knowledge and realistic expectations of responsible landholders (as recognized in Ambika Prasad) matter.
- Synthesis and conclusion: Because Act No. 47 of 1975 must be regarded as incorporated for the purpose of Section 10(1) on 2-10-1975, the proviso to Section 4(1) (which had protected separately held land acquired before 26-9-1970) stood deleted for purposes of Section 10(1) on the commencement date. Therefore transfers by members of family units of land separately held prior to 26-9-1970 can attract the presumption in Section 10(1) if other statutory conditions are met; similarly, transfers by a member whose individual holding was below ceiling at time of transfer but where the aggregate family holding exceeded the ceiling on commencement date are subject to Section 10(1)'s presumption.
Holding and Implications
Holding: The Full Bench answered all three referred points in the affirmative.
Concretely, the Court held:
- “Amending Act, 1972” in Section 10(1 must be construed as the Amending Act, 1972 as amended by the Amending Act, 1975 for purposes of application on the commencement date (2-10-1975), because the 1975 Act was intended to and does operate as an incorporation/amendment of the 1972 Act when enforced.
- Accordingly, Section 10(1) can be attracted in respect of transfers made between 26-9-1970 and 2-10-1975 by a member of a family unit who had held land separately prior to 26-9-1970; the protective proviso to Section 4(1) (which had excluded separately acquired pre-26-9-1970 lands from family computation) had been deleted by the 1975 amendment for purposes of Section 10(1) on the commencement date.
- Where a family unit existed on 2-10-1975 and the aggregate family holding exceeded the ceiling limit on that date, transfers by a member whose individual holding was below the ceiling at the time of transfer (between 26-9-1970 and 2-10-1975) are also capable of attracting the presumption under Section 10(1); to hold otherwise would frustrate the statutory scheme and make it unworkable.
Direct effect on the parties: Transfers described in the factual matrix (e.g., the transfers by Manoj and Mandakini in the stated periods) fall within the ambit of the questions decided and are subject to the interpretive rule above; the writ petition was ordered to be placed before the Single Judge for disposal according to law consistent with these answers.
Broader implications: The Court framed its conclusion on established interpretive principles (incorporation of amending Acts where appropriate; full effect to statutory fictions; purposive construction of phrases like "in anticipation of"). The opinion resolves conflicting lines of authority in the courts below by endorsing the view that the Amending Act, 1972 must be read as amended by Act No. 47 of 1975 for determining applicability of Section 10(1) on the commencement date. The Court did not purport to lay down new constitutional doctrine beyond applying established principles to the facts and legislation considered.
Order: The writ petition was directed to be placed before the learned Single Judge for disposal according to law in the light of the Full Bench's answers. "Order accordingly."
V.A Mohta, J.:— By consent of parties we have formulated the following three points for consideration in this reference:—
1. Whether the term “the object of the Amending Act, 1972” in Section 10(1) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 means the Amending Act as amended by Act No. 47 of 1975?
2. Whether Section 10(1) is attracted in respect of a transfer between 26-9-1970 and 2-10-1975 by a “member of family unit” who separately held land prior to 26-9-1970?
3. Whether in case of a family unit in existence on 2-10-1975, Section 10(1) is attracted in respect of transfer between 26-9-1970 and 2-10-1975 by a “member of a family unit” whose individual holding is below the ceiling limit but aggregate holding of the family unit is in excess of the ceiling limit on the commencement date?
2. The basic factual backgrounds : A “family unit” consistd of Madhukar Patil, his wife Sau. Mandakini and a minor son Manoj. All the three members of the family unit separately held, since before 26-9-1970, nearabout 116 acres, 56 acres and 57 acres of land respectively. Considering the extent of Pot Kharab land of Mandakini and Manoj they held land below, the ceiling limit. Manoj transferred sometime in 1973 nearly all of his land and before 2-10-1975 purchased 16 acres of land. Mandakini transferred 39.50 acres of land between 1971 and 1972.
3. The Legislative history:
The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (The Principal Act) was enacted on 16-6-1961. It provides for fixation of upper limit for holding land. On 26th September, 1970, a conference of Chief Ministers was held to review the actual working of such Ceiling Acts and to evolve a uniform national policy in this respect. On 7-8-1972, a Bill No. LVI of 1972 was introduced in the State Legislature which emerged as the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972, Maharashtra Act. No. XXI of 1975 (the Amending Act; 1972). Somehow it received the assent of the President as late as on 7-8-1975. It was published in the Government Gazette on that very date and was brought into force on 19-9-1975. It brought drastic changes in the Principal Act. Chapters II and III were wholly substituted and ceiling limit was lowered. For dry crop land it is fixed at 54 acres. An artificial new concept of a “family unit” as holder of the land was introduced by Section 4 and defined under Section 2(11-A). section 4(1) was worded thus;
“section 4(1): All land held by each member of a family unit, whether jointly or separately shall for the purpose of determining the ceiling area of the family unit, be deemed to be held by the family unit:
Provided that, if any person, who is a member of family unit holds land which is possessed separately before the 26th day of September, 1970, as a result of acquisition by testamentary disposition or devolution on death or by operation of law or is acquired as a result of a transfer or partition effected prior to the 26th day of September, 1970, then for determining the surplus land in any holding which is in excess of the ceiling area on or before the commencement date, such land shall not be deemed to be held by the family unit.
“Transfer” means transfer by act of parties (whether by sale, gift, mortgage with possession, exchange, lease or any other disposition made inter vivos) and includes transfer made under decree or order of a Court, Tribunal or Authority, and “Partition” has the Same meaning as in Section 11.
Explanation. : A “family unit” means (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any, or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses.”
On 9-8-1975 a Bill No. XLIII of 1975 was introduced in the State Legislature. It was passed by the Assembly on 11th August and by the Council on 13th August, 1975. It received the assent of the President on 15th September, 1975, was published in the Government Gazette on 19th September, 1975 and brought into force from 20th September, 1975. It is the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Amendment Act, 19???5, Maharashtra Act. No. XLVII of 1975 (the Amending Act, 1975). By this Act proviso to section 4(1) and definition of “Transfer” below it was deleted and an Explanation to Section 10(1) was added. Section 10(1) now reads:—
“10(1) if—
(a) any person or a member of a family unit, after the 26th day of September, 1970 but before the commencement date, transfers any land in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, or
(b) any land is transferred in contravention of Section 8 then, in calculating the ceiling area which that person, or as the case may be the family unit, is entitled to hold, the land so transferred shall be taken into consideration, and to land exceeding the ceiling area so calculated shall be, deemed to be in excess of the ceiling area for that holding notwithstanding that the land remaining with him or with the family unit may not in fact be in excess, of the ceiling area. If by reason of such transfer, the holding of a person or as the case may be, of the family unit is less than the area so calculated to be in excess of the ceiling area, then all the land of the person, or as the case may be, the family unit shall be deemed to be surplus land and out of the land so transferred and in possession of the transferee (unless such land is liable to forfeiture under the provisions of sub-section (3), land to the extent of such deficiency shall, subject to rules made in that behalf, also be deemed to be surplus land, notwithstanding that the holding of the transferee may not in fact be in excess of the ceiling area.
Explanation:— For the purposes of clause (a) “Transfer” has the same meaning as in Section 8.
All transfers made after the 26th day of September, 1970 but before the commencement date, shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972.
Explanation:— For the purposes of this sub-section, a transfer shall not be regarded as made on or before 26th September, 1970 if the document evidencing the transfer is not registered on or before that date or where it is registered after that date, it is not presented for registration on or before the said date”.
The term “commencement date” meant under section 2(6-a) the date of commencement of the Amending Act, 1972, i.e 19-9-1975, but by Ordinance No. XIV of 1975 promulgated on 2nd October, 1975, it was altered to mean 2nd October, 1975. The Ordinance in due course of time was replaced by Act No. II of 1976.
4. The judicial history leading to the reference:—
In the case of Abdul Bhai v. State of Maharashtra (Special Civil Application No. 3345 of 1976 decided on 13th August, 1976 by the learned Single Judge Sawant, J.) it was held that if a family unit did not hold at any point of time between 26-9-1970 to 2-10-1975 land exceeding the ceiling limit, the transfers effected during this period would not attract Section 10(1). On that very day, an important decision relating to the validity of the Principal Act as amended, was pronounced by a Division Bench of this Court (Masodkar & Dighe, JJ) in the case of Vithalrao Uttarwar v. The State of Maharashtra (AIR 1977 Bombay 99). We would quote only the following lines from that judgment as nothing else is relevant in the present case:
“129. Act No. 47 of 1975 was passed and gazetted on 19th September, 1975 i.e the day when Act No. 21 of 1975 was put into effect. That Act obviously was passed with reference to the provisions of Act No. 21 of 1975 and purported to amend the provisions of that Act. Instead of the Legislature itself declaring that that Act upon its passing would become a part of the Act No. 21 of 1975, it provided that it shall come into force on such date as the State Government may by notification appoint. In other words the latter Act which was an amending Act of earlier amending Act would not be effective unless so notified and enforced by the State Government. For the purpose of putting into effect the provisions of this Act, the legislative intent is always to keep the terms of Act No. 21 of 1975 available so as to effectively amend the same from the date to be notified by the State Government. Only because that date happens to be notified later on, the amendments enacted by the Legislature cannot be said to have been rendered nullity or nugatory. Simple effect of the second enforcement would be to incorporate by pen and ink the terms of the provisions in original Act as amended by Act No. 21 of 1975 to the extent enacted by Act No. 47 of 1975.
130. The salutary doctrine of reference operates for the purpose of interpretation and construction of statutes. That emanates by the very exigencies to keep the statutes available for the legislative purposes. By referance to earlier amending Act, the second amending Act can effectively introduce further changes in the body of the original Act though the former has become part and parcel thereof. The power to make such amendment in this manner always exists and the matter is purely one of interpretation. Once this granted, whether there occurs a reference to the Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972 in Act No. 47 of 1975 it would mean the provisions as contained in that Act and to that extent that would have to be read out and corrected by pen and ink in the structure of the original act. act no. 47 of 1975 refers for the purpose of amendment to the Act No. 21 of 1975 as ‘the Amending Act’ and provides by different sections ranging from 2 to 8 how the Amending Act shall stand amended upon the enforcement of Act No. 47 of 1975. That term is intended to mean clearly the provisions of Act No. 21 of 1975 and by reference would operate with all force wherever Act No. 21 of 1975 is operative. No anomaly is introduced nor any antilogy is raised. For, it is perfectly permissible for the State Government to notify earlier or on simultaneous dates for effectuating the provisions of act no. 47 of 1975 which would have made this act that part of act 21 of 1975 and thereafter notify the date of Act No. 21 of 1975 for the purpose of enforcement. For reasons obvious it was left to the power of the State Government so to give effect to Act No. 21 of 1975 and then to make effective Act No. 47 of 1975. The Legislature did not injunct otherwise. It is common experience that the Legislature in its wisdom always follows such device of leaving the matters of notifying enforcement dates to the State Government. That is clearly because of several good reasons including administrative and executive exigencies and knowledge therefor which Executive Government better possesses. This power undoubtedly partakes in minor legislative function. The effect however of such a device merely is that from that date of enforcement the statute becomes operative and enforceable. As far as Legislature is concerned, the law stands enacted reflecting the will of the Legislature once the same is gazetted as an Act duly made. Thereafter there is no such stage as “non-existence of an Act”. Enforceability of an act of the Legislature and the existence of the Act are two independent matters. Even before enforcement and after such enforcement, it is available as an act for the purposes of amendatory legislative process.”
Constitutional validity of the Principal Act was upheld by the Supreme Court in (i) Dattatraya v. State ((1977) 2 SCC 548 : A.I.R 1977 Supreme Court 915) and (ii) Wamanrao v. Union of India ((1981) 2 SCC 362 : A.I.R 1981 Supreme Court 271).
5. Then comes in order of time the case of Narayanibai v. State of Maharashtra (1976 Maharashtra Law Journal 865) decided by the larned Single Judge V.S Deshpande J. as he then was. As major part of the controversy centers round the ratio of that case, detailed reference to its basic facts is inevitable. Since before 26-9-1970 Narayanibai the landholder separately held 55 acres and 24 gunthas of land out of which 4 acres 39 gunthas was pot kharab. On 10-11-1971 she sold 25 acres 10 gunthas. Her husband Rambilas who also separately held land, bequeathed his land to her by a Will dated 15-2-1972. Rambilas died on 10th January, 1975 leaving 35 acres 04 gunthas of land for Narayanibai to succeed. On 2-10-1975 her total holding was 65 acres 18 gunthas, out of which 8 acres 22 gunthas were pot Kharab and thus her effective holding was 57 acres 36 gunthas. The couple did not have any minor son or minor unmarried daughter as a result there was no family unit in existence on 2-10-1975. The ceiling authorities included the land sold by her on 10-11-1971 in her total holding on the ground that the said transfer was hit by section 10. She filed a writ petition in the High Court contending that in the whole background presumptive provisions of Section 10(1) were not attracted. This contention was upheld. On that ratio, is a debatable point. The State throughout took the stand that only ratio of that decision is that section 10(1) could not be pressed into service because on 2-10-1975 family unit itself was not in existence; whereas the landholders took the stand that its further ratio is that section 10(1) is not attracted when on the date of transfer the transferor holds land below ceiling limit. We reproduce the relevant extracts:—
“Can any such presumption of transfer being in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, ever be raised where on the date of the transfer the transferor holds lands upto less than the ceiling area? My learned Brother Sawant J. had occasion to consider this very question in Abdul Bhai v. State (Spl. C.A No. 3345 of 1976 decided on 13-8-1976) The learned Judge answered the question in the negative. Mr. R.R Deshpande, the learned Assistant Government Pleader, could not dispute the proposition of law laid down in this judgment. It is thus clear that ordinarily the two sales of lands dated 10-11-1971 could not be deemed to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 and the petitioner could not have been called upon to prove to the contrary as she was holding lands less than the ceiling area, namely 54 acres, on the date of the sale, namely 10-11-1971.” (para 3)
“Whether the expression ‘family unit’ referred to in section 10 is referable to the family unit which existed on or after 2-10-1975 i.e the commencement date as defined under the Act No. 21 of 1975, or to such group of persons like the petitioner and her deceased husband that existed prior to that date and answered the description of the words ‘family unit’ as introduced in the Act by the Act No. 21 of 1975 but ceased to be such family unit even before 2-10-75 because of the husband's death.
It is obvious that when section 10 seeks to invalidate transfers by a person or a member of a family unit even to a limited extent, it only refers to a member of the family unit which is prohibited from holding land in excess of the ceiling area under Section 3 of the Act, and “any person or a member of family unit” can only have reference in the context, to holders as such persons or family units who are in existence on the commencement date, namely, 2-10-1975.” (para 5).
“In other words, the sale of only such person will be hit by this section retrospectively who either is a holder of the land as such person, or who happens to be a member of a family unit which is assumed to be the surplus holder of the land on the commencement date. In cases where, as here, the holder cannot be said to be the family unit on the commencement date, the fiction of any of its members having effected the transfer with the object of avoiding or defeating the object of the Amending Act, 1972, cannot arise, much less the question of calculating the holdings of all members of the family unit together on the date of any such sale, there being no inquiry into the holding of any family unit. The conception is not made so retrospective as to permit raising the contemplated fiction or presumption against the sale of any person as member of the family unit, which does not happen to be the holder because of not being in existence on 2-10-75 (para 6).
6. The following four judgments considered Narayanibai.
i) Vithalrao Karekar v. The State of Maharashtra (Special Civil Application No. 429 of 1977 decided on 24th August, 1981 by Palshikar J. as he then was.)
ii) Vasantrao v. State of Maharashtra (Special Civil Application No. 3709 of 1976 decided on 23rd November, 1981 by D.B Deshpande J. as he then was).
iii) Kantabai v. The State of Maharashtra (Special Civil Application No. 119 of 1977 decided on 7-7-1981 by Tulpule J. as he then was).
iv) Shravan v. State of Maharashtra (Special Civil Application No. 2919 of 1976 decided on 25th August, 1981 by R.S Padhye J. as he then was.)
In Vithalrao Karekar it was held that if a family unit was in existence on 26-9-1970 as well as on 2-10-1975 and held land below the ceiling limit, the transfers made by a member of a family cannot attract Section 10(1). It was observed that the principle laid down in Narayanibai will apply only where a family unit is in existence on 26-9-70 but has ceased to exist on 2-10-1975. In Vasantrao also it was held that as the family unit was not in existence on 2-10-75, the ratio of Narayanibai's case was not attracted. In Kantabai it was held that in view of proviso to section 4(1) introduced by Amending Act, 1972, section 10(1) was not attracted as transfer by a member of family unit (which held land in excess of ceiling area) was of land separately held by him since before 26-9-1970. In Shravan conclusion was:—
“As I understand the decision in the case of Narayanibai (supra) section 10 contemplates a family unit not as under section 4(1) as amended by Act No. 47 of 1975 after deleting proviso to the said section, but a family unit as contemplated, prior to this amendment by earlier Act No. 21 of 1975.”
7. In the case of Pandurang Narayanrao Nemade v. The State of Maharashtra (Special Civil Application No. 1514 of 1977) R.S Padhye J. as he then was, found conflict in the above four decisions and hence made a reference to a Division Bench on three points formulated by him thus : —.
It is apparent that the object of enacting Section 10 of the Ceiling Act by Amendment Act, 1972 was to set at naught all attempts to transfer lands in anticipation of or in order to avoid or defeat the object of Amending Act, 1972, the proposal for which was first mooted on 26-9-70. Object of Amending Act, 1972, was “to lower, in the public interest, the maximum limit (or ceiling), on the holding of agricultural land as surplus so as to secure still more equitable distribution of land and for the purpose of removing economic disparities, and thereby for assisting more effectively landless and other persons”. While doing so, concept of “family Unit” was born and while deciding as to which land should be deemed to be land belonging to family unit, lands separately acquired by members of a family unit prior to 26-9-1970 were excluded. That such exclusion was to be scrapped was not known until introduction and passing of Amending Act, 1975. Therefore, transfer of individually and separately owned lands acquired before 20-9-70 by members of a family unit between 26-9-70 and before 2-10-75 on which day the exclusion of such separate lands from the holding of family unit was scrapped, could not even be imagined to have been affected for defeating the object of Amending Act, 1972. If this was true for Narayanibai (i) who held land less than new ceiling area on 20-9-1975 and (ii) who individually held land less than ceiling area on the date of transfer of her separate land in 1971 though (iii) on that date the total holding of herself and her husband, a group of persons which was to be later known as “family unit” was more than ceiling area and though (iv) who as an individual (since her husband died) held land in excess of ceiling area on 2-10-75 why can it not be true for any other person who transferred individual land in similar circumstances but who was not as unfortunate as Narayanibai to cease to be a member of a family unit by remaining the only surviving individual of such family unit on 2-10-75?
Which of the four judgments which gave rise to this reference were not decided according to ratio laid down in Narayanibai's case?
Fundamental right to property given to every citizen of India by Article 19(1)(f) of the Constitution of India until it was abolished by Constitution (44th Amendment) Act, 1978, included right to dispose of property. Though it is true that section 10 of the Ceiling Act introduced by Amendment Act, 1972 is beyond challenge on account of the said Act having been placed at Sr. No. 157 in 9th Schedule of the Constitution of India, it is incumbent upon every Court of law to construe it reasonably because no law, if it is to stand the test of law can be unreasonable. Moreover, we cannot forget that the expression “Amendment Act, 1972” used in section 10 of the Ceiling. Act was left unaltered by Amendment Act, 1975. The question that arises therefore is whether the expression “Amendment Act, 1972” used in section 10 of the Ceiling Act should be read as “Amendment Act, 1972 as amended by Amendment Act, 1975”?
8. In the case of Vithalrao Ganpatrao Warhade v. State of Maharashtra (1983 Mah. Law Journal 952) Puranik J. read the words “Amending Act, 1972” in section 10(1) to mean unamended Act, 1972, and observed as under:—
“This Explanation to section 10 regarding the deeming provision only relates to assuming an intention on the part of the transferors of avoiding or defeating the object of the Amending Act, 1972 and it does not relate to the amending Act XLVII/1975. It is, therefore, clear to my mind that such transfers effected by members of family unit who were already holding lands separately and possessing them separately prior to 26th day of September, 1970, were permitted to transfer such land and not only that at the material dates when they were transferred, they could not be construed even by deeming provision to have been effected with intent to defeat the provisions of the Amending Act, 1972. It is to be noted that the amendment Act, 1972, which is the maharashtra act no. xxi of 1975 has the commencement date 19th September, 1975 while the next amending Act which is Maharashtra Act No. XLVII/75 has the commencement date 20-9-1975. An individual, therefore, holding and possessing land separately before 26th day of September, 1970 and even though a member of the family unit, his land could not be computed in the family unit and if each of such members were holding land within the ceiling limit their transfers during the period from 26th day of September, 1970 to 19th day of September, 1975 could not be said to have been effected in anticipation or in order to avoid or defeat the object of the Amending Act, 1972 (Maharashtra Acts No. XXI of 1975) for the simple reason that such Act itself permitted such separate holdings.”
In the case of Ramrao Deshkar v. State of Maharashtra (Letters Patent Appeal No. 2 of 1981 decided on 18th April, 1984 a Division Bench of this Court (Waikar & Paunikar JJ.) relying on Narayanibai held that the sale of land held separately by a member of family unit prior to 26-9-1970 made in 1974, did not attract Section 10(1) though the total holdings of the family unit had exceeded the ceiling limit on that day. In the case of Purushottam Deshmukh v. State of Maharashtra, Letters Patent Appeal No 2 of 1982 decided on 7th July, 1984 another Division Bench of this Court (Qazi & Vaze JJ.) agreed with the ratio in Vithalrao Warhade.
9. The reference made in Pandurang Nemade by R.S Padhye J. was answered by a Division Bench (Ginwala & Patel JJ.) on 27th September, 1984. It is apparent that the attention of that Bench was not drawn to any of the three decisions referred to in the above paragraph viz. Vithalrao Warhade, Ramrao Deshkar and Purushottam Deshmukh. However, that Division Bench did notice Vithalrao Uttarwar (supra) discussed various aspects threadbare and in its exhaustive judgment arrived at the following conclusions:—
(a) The only ratio of Narayanibai is that Section 10(1) is not attracted when the family unit is not in existence on 2-10-1975;
(b) Portion from para 3 in Narayanibai (quoted earlier by us in this judgment) were mere observations with relation to Narayanibai as an individual holder of land and as a member of family unit holding land;
(c) Question No. II of the reference was not correctly worded; however, if the learned Single Judge meant was as to which of the four judgments lays down proposition of law in conflict with ratio of Narayanibai, the answer was “none”;
(d) The expression “the object of Amending Act, 1972” used in Section 10(1) and Explanation means as amended by Amending Act, 1975.
10. On 15th November, 1984 Letters Patent Appeal No. 57 of 1982 arising out of decision of Single Judge in Vithalrao Karekar (supra) came to be decided by a Division Bench (Paunikar and M.S Deshpande, JJ.). This Division Bench approved the view taken by the Bench of Ginwala and Patel, JJ. in Pandurang Nemade. Pandurang Nemade's case was finally decided on 12-12-1984 by M.S Deshpande, J. on the basis of answers recorded by the Division Bench in a reference and the view taken by two other Division Benches in (i) Vithalrao Karekar and (ii) Vithal Uttarwar (AIR 1977 Bombay 99).
11. During the course of hearing of the present writ petition it was pointed out that two sets of judgments have taken conflicting views without noticing each other's point of view as a result element of uncertainty and confusion was prevailing in the Courts below and hence it would be in the interest of justice that the points involved are decided by a Full Bench. The learned Chief Justice, who was here for hearing of other Full Bench matters, was approached by the learned counsel and this matter was referred to a Full Bench.
12. By this time two more judgments again exhaustively dealing with the points have been delivered by a Single Bench (Dhabe, J.) (i) Smt. Nirmalabai v. State of Maharashtra (AIR 1985 Bombay 260) and (ii) Arun Sanghai v. State of Maharashtra (AIR 1986 Bombay 236). In these matters, agreeing with the view taken by the Division Bench of Ginwala and Patel, JJ. the view taken by Puranik, J. in Vithalrao Warhade has been dissented to.
13. Point No. 1 is a pivotal point. The question is whether reference to the expression “the Amending Act, 1972” in section 10 of the Principal Act is to that Act as it stood amended by Amending Act, 1975 or as it originally stood. Now the said expression occurring in section 10(1) will have to be read not in isolation but in the context of the preceding words “the object of and always bearing in mind that section 10 aims at only drawing a presumption. The Legislature has designedly used tins expression as against the expression “the provisions of as is used by similar other legislations — say for example amended section 4(1) of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960. Thus the “object” cannot be mixed with the “provisions” as rightly pointed out by Shri Jaiswal, the learned Assistant Government Pleader. The object of the Amending Act, 1972 quite obviously is to equally distribute the land to landless, to further reduce the ceiling limit so that more land is available for such distribution and also to plug the holes made by ingenious and strategical manoeuvring of transactions by wealthy landholders in anticipation of the expected more and more and variety of legislative restrictions on total holdings — The preamble of the Act broadly serves as object. It reads:
“WHEREAS in the State of Maharashtra, the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 imposed for the first time, in the public interest the maximum limit (or ceiling) on the holding of agricultural land, and provided for the acquisition of land held in excess of the ceiling for distribution thereof amongst the peasantry of the State, and in particular, among landless persons; and for other purposes therein stated:
AND WHEREAS it is now expedient to lower in the public interest, the maximum limit (or ceiling) on the holding of agricultural land in the State for making available additional land as surplus, so as to secure a still more equitable distribution of land, and for the purpose of removing economic disparities, and thereby for assisting more effectively landless and other persons; and generally for the purpose of so distributing the agricultural resources of the community as best to subserve the common good, and also to prevent the concentration of the means of agricultural production and wealth to the common detriment”:
The object can be gathered also from the scheme of the Act. It became well known quite in advance to the rich landholders — generally a resourceful class — that land legislations fixing lower ceiling limit to the holdings are in the offing and in times to come reduction of the ceiling limit from time to time is inevitable. With a view to sabotage the expected restrictions they hurriedly started transferring their lands. In many cases non-genuine transfers in favour of near kith and kin were also effected. In the practical working of the original Principal Act its functional futility occasioned on account of such transactions was noticed. Thus to make the Principal Act result oriented, presumptive section 10(1) and frictional concept of “Family unit” were introduced by Amending Act, 1972. Amending Act, 1975 does not make any departure from the object of Amending Act, 1972, which continues to remain the same even after amendment, viewed from that stand point the controversy has only academic value.
14. Whole controversy relating to the point has arisen because the Amending Act, 1972 was brought into force a day earlier to the bringing into force of Amending Act, 1975. We are unable to see how this factor alone will make the difference. Amending Act, 1972 was passed and gazetted on 7-8-1975 and was thus in existence since before Amending Act, 1975 was passed and gazetted on 19th September, 1975. The bill was introduced in the Legislature on 9-8-1975. Quite obviously that Bill was prepared and the Act was passed with reference to the provisions of Amending Act, 1972. Can then, there be any doubt about legislative intention of the Amending Act, 1975 ? On the question what the effect of an Amendment is useful reference to the following oft quoted passage from the case of Shamrao v. Parulekar (AIR 1952 SC 324) which has been rightly noticed in Vithalrao Uttarwar and Arun Sanghai, may be made:
“The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the Amending Act at all”.
Shamrao relates to an order of detention dated 15-11-1951 issued under the Preventive Detention Act, 1950 which was to expire on 1-4-1952 as per the first amendment made in 1951. By Act No. 34 of 1952 its life was further extended upto 1-10-1952. The Act of 1952 provided inter alia that the detention orders which had been confirmed previously and which were in force immediately before the commencement of the Amending Act, “shall continue to remain in force so long as the Principal Act is in force.” The Principal Act was defined by the Act of 1952 as meaning the Act of 1950. The contention that detention order expired on 1-4-1952 and that the extended date did not apply to such detention was repelled on the ground that the Act of 1950 has to be understood after the amendment, the Act of 1950 as amended.
15. Mr. Chandurkar contended that ratio of that decision would not be attracted in this matter. We fail to know how. In this connection our attention was drawn to the case of Shri Ram Narain v. Simla Banking & Industrial Co. Limited : (AIR 1956 SC 614) in which the ratio in Shamrao has been considered and held not applicable in the context of overriding effect of (i) the Banking Companies Act, 1949 and (ii) the Displaced Persons (Debt Adjustment) Act, 1951. Such is not the case here. Equally inapplicable is the ratio in the case of Thakorelal v. Gujrat Revenue Tribunal (AIR 1964 Guj. 183) in which section 40 of the Bombay Tenancy and Agricultural Lands Act, 1948 came up for consideration. Under the said provision, tenancy of a deemed tenant came to an end on his death and the rights were not heritable. By 1956 amendment the rights were made heritable. Question arose whether in case of a deemed tenant who had died before amendment the new right accrued or not. Answer was “no” on the ground that in the context of the whole scheme to hold otherwise would amount to giving retrospective operation to the amendment which was not given either expressly or by necessary implication.
16. It was contended that to hold that expression “Amending Act, 1972” means as amended by Amending Act, 1975 would amount to giving retrospective effect to the Amending Act, 1975, when such effect is not intended to be given either expressly or impliedly. Mr. Deshpande also brought to our notice in this connection the case of State of Kerala v. Philomina ((1976) 4 SCC 314 : AIR 1976 SC 2363) dealing with the Kerala Land Reforms Act, 1963. Under section 81 of the said Act lands known as Kayal lands were exempt from certain provisions. Section 84 declared as invalid all voluntary transfers of lands covered by the Act between 15-9-1963 and 1st January, 1970. By Amending Act No. 35 of 1969 exemption to Kayal land granted under section 81 was withdrawn. The said amendment was brought into force on 1st January, 1970. It was held that in the absence of amendment to section 81, transfer of exempted land during the relevant period was not brought in the net. In so holding the scheme of that Act was considered. It was held that section 84 had neither retrospective effect nor an overriding effect over section 81. Now the said enactment is entirely different and its provisions and the provisions of Section 10(1) are not at all in pari materia as a result ratio of that case has no application here. It is one thing to say that the Act has retrospective operation and quite another to say that it operates on antecedent facts. It may be seen in this regard that the Amending Act, 1972, as amended by the Amending Act, 1975, operates prospectively from the date of the enforcement of the Amending Act, 1975, with effect from 20-9-1975. In fact it operates upon the events or transactions on and after the commencement date i.e 2-10-1975 as per the provisions of section 3 of the Ceiling Act. But by the nature of the provisions of Section 10(1) of the Ceiling Act, which takes into consideration antecedent facts in an enquiry for determination of surplus land the said Amending Act, 1972 as amended by the Amending Act, 1975 has to act upon the said antecedent facts which would not make it retrospective in operation.
17. Our conclusion, therefore, is on 2-10-1975 when applicability of section 10(1) was to be seen, the Amending Act, 1972 stood amended by Amending Act, 1975. Thus the expression “Amending Act, 1972” occuring in section 10(1) has to be construed as Amending Act, 1972 as amended by Amending Act, 1975 because the latter Act stood incorporated in the former Act, as a result proviso to section 4(1) stood deleted and it will have to be assumed for the purposes of section 10 that the said proviso was not on the statute book on 2-10-1975 and no rights can be derived from the said proviso. Any other interpretation would render the amendment nugatory. Canons of construction mandate to avoid interpretations leading to such absurd results. After all we are concerned with a welfare legislation interpretation of and approach to which has always to be purpose-oriented and keeping in view national goals enshrined in Part IV of the Constitution.
18. A debate was raised by Shri Madkholkar about the real meaning of the expression “in anticipation of or in order to avoid or defeat” in Section 10. From Black's Law Dictionary, the meaning of the word “anticipation” was read over to us. Principal contention was that landholders had no idea of the incoming legislation, till Bill No. LVI of 1972 was introduced on 7-8-1972 in the State Legislature and hence even if transactions from 26-9-70 upto that date may be construed as being in anticipation of the Amending Act, 1972 the same could not be said about transactions after that date as the provisions were well known and nothing was in anticipation. In our judgment all this is jugglery of words and the submission ignores the stark realities of the situation. These realities noticed in the case of Ambika Prasad v. State of U.P ((1980) 3 SCC 719 : A.I.R 1980 Supreme Court 1762) are that in 1970–1971 new agrarian policy for reducing the ceiling limit was announced. Many landholders were resourceful enough to know what the thinking of the powers that be was. They also could imagine that with increasing population and area of land available for cultivation decreasing because of their conversion to non-agricultural use, repeated lowering of the ceiling limit was unavoidable. They very well anticipated what was in stock for them and planned their transactions with a view to paralyse the future move of the government. Thus the words “in anticipation of” will have to be interpreted in the whole context and not in isolation merely keeping the dictionary meaning in view. A transfer is in anticipation of an Act when it is made with a view to defeat or delay the object of the Act which is likely to be passed in future as rightly held in the case of Narbada Prasad v. State (A.I.R 1981 Madhya Pradesh 101). The legislative object behind section 10 was to outwit the landholders' manoeuvrings to the extent possible and so viewed the language used presents no interpretative difficulty.
19. The other two points are but different shades of point No. 1. We take up point No. 2 first. Once it is held that the Amending Act, 1972, means the Act as amended by Act of 1975, it follows that on 2-10-75 the proviso to section 4(1) was not in existence as a result even transfer by a member of family unit holding land separately prior to 26-9-70 attracts presumption contemplated under section 10(1). In this connection it may also be noticed that first Explanation to Section 10(1) creates a legal fiction about nature of transactions between the two periods. In Arun Sanghai this aspect is rightly dealt with in the following manner. We have nothing new to add.
“14. The above construction of the Amending Act, 1972, is of great assistance in properly interpreting the legal fiction created in the first explanation to section 10(1) of the Ceiling Act that all transfers made after the 26th day of Sept, 1970 but before the commencement date, shall edemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972. If the expression
“Amending Act, 1972” in section 10(1) the Amending Act, 1972 as amended by Act No. 47 of 1975 as it stood on or after the commencemen date, then giving full effect to the legal fiction it will have to be understood that all transfers made after the 26th day of Sept. 1970 but before the commencement date shall be deemed to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 the proviso to S. 4(1) of which stood deleted by the Amending Act, 47 of 1975.
15. It is well settled that full effect must be given to the statutory fiction and it should be carried to its logical conclusion (see State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244). It is also necessary for giving full effect to the legal fiction to assume all those facts on which alone the fiction can operate (see CIT, Delhi v. S. Teja Singh, AIR 1959 SC 352). The classic of quoted passage of Lord Asquith from East End Dwelling Co., Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587 (HL) at page 589 can be usefully referred to in this regard:
“If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.”
Our attention was invited to Narayanibai and it is contended that it has accepted the submission that presumption under Section 10 would apply to transfer of lands which were separately held by an individual as a member of family unit. We do not agree. As rightly held by a Division Bench in Pandurang Nemade “this question was not agitated in Narayanibai's case and the Court was not called upon to answer this question. As a matter of fact, such a question could have arisen in that case since the land which was sold by Narayanibai was owned and separately possessed by her even prior to 26-9-1970. If the learned judge deciding Narayanibai's ease was of the view that the presumption under section 10 of the Act was not attracted to lands held and separately possessed by a member of a family unit prior to 26-9-1970 that case could have been disposed of on this ground alone and it was not necessary to enter into the questions which we have stated above.”
20. Point No. 3 now. In fact this point has to be answered in the affirmative in view of what we have held earlier. To hold that only because a member of family unit had land less than ceiling limit at the time of transfer, Section 10 is not attracted despite family unit's limit exceeding the limit would introduce anomalies, make the provisions unworkable and frustrate the very object. Our attention is drawn to observations in para 3 of Narayanibai (quoted earlier). In these observations there is reference to Abdul Bhai's (supra) ratio which we have already explained. A Division Bench in Pandurang Nemade had rightly held that “obviously this part of the decision relates to Narayanibai as an individual holder of land and not as a member of family unit holding land”. Indeed various shades of Narayanibai have been exhaustively considered by that Division Bench and we have respectful concurrence with the conclusions drawn therein about what Narayanibai decides and what it does not. We reiterate that Narayanibai decides only one point and it is this — section 10(1) is not attracted when family unit is not in existence on 2-10-75. We have already quoted relevant passages in Narayanibai. Earlier part of para 5 in Narayanibai formulates the question for consideration in the context of the submission of the State that on the date of transfer of her lands by Narayanibai, she and her husband constituted a family unit the holding of which exceeded the ceiling limit and hence those transfers must be taken to be transfers of a member of family unit and thus attract section 10. The latter part of that para provides an answer. Para 6 merely repels the additional submission of the State that section 10 is retrospective and the conception of family unit must also be deemed to have been deliberately made effective retrospectively.
21. Thus in our view Narayanibai has not held that section 10(1) is not attracted in case of a transfer by a member of a family unit whose individual holding is below ceiling limit at the time of transfer. By any chance if ratio of Narayanibai is construed as being contrary to what is construed as its correct ratio by a Division Bench in Pandurang Nemade, that would be an erroneous view of the legal position. In this connection our attention was invited to the fact that aggrieved by the decision rendered in Narayanibai, the State of Maharashtra had filed Special Leave Petition in the Supreme Court being Special Leave Petition (Civil) No. 3095 of 1977 decided on 24-10-77 in which the following order was paseed passed:—
“Special Leave Petition is rejected because we find that on the facts of the case the respondent has proved that the sales made on 10th November, 1971 were not in anticipation or for the purpose of defeating the object of land ceiling legislation”.
Why the Supreme Court has not granted leave is clear from the order. It has not decided any point as such and hence this aspect of the matter can have no impact on our view.
20. Ramrao Deshkar has not given any reasons as how ratio of Narayanibai applies. Basic facts therein indicate that ratio is erroneously applied. In our view, ratio of Narayanibai is also erroneously applied in Vithalrao Warhade, which even otherwise does not lay down the correct legal position about proviso to section 4 of the Amending Act, 1972, vis-a-vis Section 10(1) of the Act. Purushottam Deshmukh endorses the view in Vithalrao Warhade without giving any additional reasons. Hence in our judgment the above three decisions and others taking similar views do not lay down correct legal position. True it is that Pandurang Nemade has not noticed the above three cases though they were decided earlier, but that aspect of the matter now has only academic value. We may mention that Vithalrao Karekar, Arun Sanghai and Smt. Nirmalabai (all of which are decided after reference in Pandurang Nemade was answered) have fully endorsed the view taken by the Division Bench in Pandurang Nemade by giving additional weighty reasons and we concur with them.
23. To conclude, we answer all the three points in the affirmative.
The writ petition be placed before the learned Single Judge for its disposal according to law.
Order accordingly.
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