Gujarat HC judgment in Sikh farmers matter

LPA/1106/2011 1/40 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

LETTERS PATENT APPEAL No. 1106 of 2011In

SPECIAL CIVIL APPLICATION No. 7312 of 2011WITH









LETTERS PATENT APPEAL No. 1111 of 2011 In

SPECIAL CIVIL APPLICATION No. 7313 of 2011With












SPECIAL CIVIL APPLICATION No. 5861 of 2012

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WITHSPECIAL CIVIL APPLICATION No. 5862 of 2012












With SPECIAL CIVIL APPLICATION No. 5875 of 2012

WITH SPECIAL CIVIL APPLICATION No. 5876 of 2012



For Approval and Signature:

HONOURABLE THE ACTING CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

ANDHONOURABLE MR.JUSTICE A.L.DAVE

AND HONOURABLE MR.JUSTICE V. M. SAHAI=========================================================

PREETHISINGH MUKANDSINGH SHIKH & ORS. Versus

STATE OF GUJARAT & OTHERS==========================================

===============

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Appearance :

LPA No. 1106/11 TO 1111/11 & 1116/11 – MR JV JAPEE for appellants.

LPA No. 2240/10 MR MIHIR THAKORE, SR. COUNSEL with MR. KB PUJARA for appellants.

LPA No. 2653 of 2010 – MR PM BHATT for appellants.

LPA No. 2782 of 2010 – MR RAJESH K SHAH for appellants.

SCA No. 4599/12, 5857/12 to 5873/12, 5875/12, 5876/12, 5878/12, 5879/12 - MR YN OZA, SR. COUNSEL with MR SP MAJMUDAR with MR VIMAL A PUROHIT for Petitioners.

MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR P.K. JANI, GOVERNMENT PLEADER with MS SANGITA VISHEN, ASST. GOVERNMENT PLEADER for Respondents.=========================================================

CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA

and

HONOURABLE MR.JUSTICE A.L.DAVE

and

HONOURABLE MR.JUSTICE V. M. SAHAI

Date : 22/06/2012

COMMON C.A.V. ORDER

(Per : HONOURABLE THE ACTING CHIEF JUSTICE

MR.BHASKAR BHATTACHARYA)

1. While admitting Letters Patent Appeals being LPA No.

1106/2011, 1107/2011, 1111/2011 and 1116 of 2011 preferred by

unsuccessful petitioners of four different Special Civil Applications, a

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Division Bench of this Court presided over by the then the Chief

Justice directed that in view of the importance of the issue involved

therein, the matters should be heard by a larger Bench.

Consequently, this Bench was constituted for hearing all those four

LPAs.

1.1 Subsequently, after taking into consideration the fact that

various Special Civil Applications were pending before the learned

Single Judge involving the selfsame point, we decided to give

opportunity of making submissions to the learned counsel for the

petitioners in those Special Civil Applications at the time of hearing of

the above four appeals.

2.2 The subject matter of the four LPAs indicated above is the

decision of the District Collector, Kutch who issued instructions to the

concerned Mamlatdar to freeze the ‘khedut khatas’ [agricultural

accounts] of the appellants until further instructions on the ground

that the appellants are agriculturists belonging to other States and,

therefore, they are illegally holding agricultural land within the State

of Gujarat. Such instructions had been issued to various agriculturists

including the appellants. In the writ-applications, the appellants had

also challenged circular No. TNC/1073/58184/J of the Revenue

Department of the Government of Gujarat dated 4th April 1973

wherein it was indicated that any sale of land made to any non-

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agriculturists in Gujarat on the strength of his status as agriculturist in

any other State outside Gujarat would attract the provisions contained

in section 63 of the Bombay Tenancy & Agricultural Lands Act, 1948

and section 54 of the Saurashtra Tenancy and Garkhed Settlement

Ordinance and section 89 of the Bombay Tenancy and Agricultural

Land [Vidarba Region and Kutch Area) Act, 1958 [hereinafter referred

to as the Act] on the strength of certificates about their status as

agriculturists in other states.

3. Learned Single Judge before whom the writ-applications were

moved dismissed those writ-applications.

4. Being dissatisfied, the appellants preferred the aforesaid four

LPAs and as indicated above, the Division Bench, being prima facie

satisfied that the interpretation so made by the State Government

was not correct, and apart from that if it is held that an agriculturist of

another State having no land in the State of Gujarat cannot purchase

land in this State, in that case, the question would arise as to the

violation of the provisions contained in part III of the Constitution of

India, ordered to place the matters before a larger Bench.

5. Therefore, the only question that arises for determination in

these matters is whether a person who does not own agricultural land

within the State of Gujarat can be treated to be a non-agriculturist

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within the meaning of the Act simply because he does not cultivate

any agricultural land within the State of Gujarat and on that ground,

the purchase of any agricultural land by such a person will be hit by

the provisions contained in section 89 of the Act.

6. In order to appreciate the aforesaid question, it will be profitable

to refer to section 2(3), 12(12), 4 and section 89 of the Act, which are

quoted below:

2. Definitions.

(3) “agriculturist” means a person who cultivates land

personally;

(12) “to cultivate personally” means to cultivate on one's own

account -

(i) by one's own labour, or

(ii) by the labour of any member of one's family, or

(iii) under the personal supervision of oneself or of any

member of one's family by hired labour or by

servants on wages payable in cash or kind but not

in crop share.

4. Determination of family holding. -

(1) The State Government shall determine for all or any class

of land in each local area the area of a family holding on the

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following basis in the prescribed manner :-

(a) The extent of land which a family of five persons including

the agriculturist himself would normally cultivate under

the existing conditions of agricultural technique and

practice with the aid of a pair of bullocks shall first be

determined for all or any class of land in each local area.

(b) The extent of land so determined may be varied having

regard to the following factors :-

(i) the situation of land;

(ii) its productive capacity;

(iii) the soil and climate characteristics;

(iv) the fact that the land is located in the scheduled

area;

(v) such minimum limit of net annual income from the

land as may be prescribed;

(vi) any other factors which may be prescribed.

(c) The area so determined shall be the family holding.

(2) The area of a family holding determined under sub-

section (1) shall be notified in the Official Gazette.

89. Transfers to non-agriculturists barred.-

(1) Save as provided in this Act, -

(a) no sale (including sales in execution of a decree of a Civil

Court or for recovery of arrears of land revenue or for

sums recoverable as arrears of land revenue), gift,

exchange or lease of any land or interest therein, or

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(b) no mortgage of any land or interest therein, in which the

possession of the mortgaged property is delivered to the

mortgagee, (or)

(c) no agreement made by an instrument in writing for the

sale, gift, exchange, lease or mortgage or any land or

interest therein.

shall be valid in favour of a person who is not an agriculturist

or who being an agriculturist cultivates personally land not less

than three family holdings whether as owner or tenant or

partly as owner or partly as tenant or who is not an agricultural

labourer.

Provided that the Collector or an officer authorised by the

State Government in this behalf may grant permission for

such sale, gift, exchange, lease or mortgage, or for such

agreement in such circumstances as may be prescribed;

Provided further that no such permission shall be granted,

where land is being sold to a person who is not an agriculturist

for agricultural purpose, if the annual income of such person

from other source exceeds five thousand rupees.

(2) Nothing in this section shall be deemed to prohibit the

sale, gift, exchange or lease or the agreement for the sale, gift,

exchange or lease, of a dwelling house or the site thereof or

any land appurtenant to it in favour of an agricultural labourer

or an artisan.

(3) Nothing in this section shall apply to a mortgage of any

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land or interest therein effected in favour of a co-operative

society as security for the loan advanced by such society.

(4) Nothing in Section 90 shall apply to any sale made under

sub-section (1).

7. At this juncture, it will also be relevant to refer to the provisions

contained in sections 2(3) and section 6 of the Gujarat Agricultural

Land Ceiling Act, 1960 which is admittedly applicable to the State of

Gujarat, which are quoted below:

2. Definitions:

(3) “agriculturist” means a person who cultivates land

personally;

6. Ceiling on holding land.-

(1) Notwithstanding anything contained in any law for the

time being in force or in any agreement, usage or decree

or order of a Court, with effect from the appointed day no

person shall, subject to the provisions of sub-sections (2),

(3), (3A0 and 3(B) be entitled to hold whether as owner

or tenant or partly as owner and partly as tenant land in

excess of the ceiling area.

(2) Where an individual, who holds land, is a member of a

family not being a joint family which consists of the

individual and his spouse (or more than one spouse) and

their minor sons and minor unmarried daughters,

irrespective of whether the family also includes any major

son and land is also separately held by the individual's

spouse or minor children, then the land held by the

individual and the said members of the individual's family

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excluding major sons, if any shall be grouped together for

the purposes of this Act and the provisions of this Act

shall apply to the total land so grouped together as if

such land has been held by one person.

(3) Where on the appointed day a person holds exempted

land alongwith other land then,

(I) if the area of exempted land is equal to or more

than the ceiling area he shall not be entitled to hold

other land, and

(ii) if the area of exempted land is less than the ceiling

area, he shall not be entitled to hold other land in

excess of the area by which the exempted land is

less than the ceiling area.

(3A) Where any person hold any land in any other part of the

India outside the State, then, the area of land so held by

him in such other part, not exceeding the maximum area

of land, which such person is entitled to hold in such

other part of India under any law, if any, relating to ceiling

on land, used or capable of being used for agricultural

purposes, shall be excluded from the ceiling area in

excess of which a person is not entitled to hold land

under this section and the extent of land determined

after so excluding such area shall in relation to such

person, be deemed to be the ceiling area, to be held by

him in this State;

Provided that where any such person disposes of, at any

time before the determination of ceiling area under this

Act, any land or part thereof so held by him in any other

part of India outside the State, in accordance with the

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provisions of law in force in such part, the area equal to

the land or part thereof so disposed of shall not be

excluded while determining the ceiling area under this

sub-section.

(3B) Where a family or a joint family consists of more than five

members comprising a person and other members

belonging to all or any of the following categories,

namely;

(i) minor son,

(ii) widow of a pre-deceased son,

(iii) minor son or unmarried daughter of a pre-deceased

son, where his or her mother is dead.

Such family shall be entitled to hold land in excess

of the ceiling area to the extent of one fifth of the ceiling

area for each member in excess of five, so however that

the total holding of the family does not exceed twice the

ceiling area; and in such a case, in relation to the

holding of such family, such area shall be deemed to be

ceiling area;

Provided that if any land is held separately also by

any member of such family, the land so held separately

by such member shall be grouped together with the land

to such family for the purpose of determining the total

holding of such family;

Provided further that where, in consequence of any

member of such family holding any land in any other part

of India outside the State, the ceiling area in relation to

the family is reduced as provided in sub-section (3A),

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one-fifth of the ceiling area as aforesaid shall be

calculated with reference to the ceiling area as would

have been applicable had no such land been held by

such member in any other part of India.

(3C) Where a family or a joint family irrespective of the

number of members includes a manor son, then such

major son shall be deemed to be a separate person for

the purposes of sub-section (1).

(3D) For the purpose of sub-section (2), (3B) or (3C), the

members comprised in a family or as the case may be, a

joint family on the specified date shall alone be taken

into consideration and any changes in the character or

number of members of the family occurring thereafter

shall be ignored.

(4) Land in this State which under the following provisions of

this section a person is not entitled to hold shall be

deemed to be surplus land held by such person.

8. Mr. Thakore, Mr. Oza, Mr. Japee and Mr. Bhatt, the learned

counsel appearing on behalf of the appellants and different

petitioners, strenuously contended before us that according to

definition of ‘agriculturist’ indicated in the Act, “agriculturist” is a

person who cultivates land personally and the expression “to cultivate

personally” means to cultivate on one's own account (i) by one's

own labour, or (ii) by the labour of any member of one's family,

or (iii) under the personal supervision of oneself or of any member of

one's family by hired labour or by servants on wages payable in cash

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or kind but not in crop share. According to those learned counsel, the

above definition does not require that in order to be an agriculturist

within the meaning of Section 89 of the Act, such a person must at

the time of purchase cultivate personally on the soil of Gujarat. The

learned counsel further contended that it appears from the provisions

contained in Gujarat Agricultural Land Ceiling Act, 1960 that for the

purpose of ceiling on holding of agricultural land in the State of

Gujarat by an agriculturist, the land held by him in other part of India

outside the State of Gujarat is also recognized as the land held by

such an individual and is included for the purpose of computing the

ceiling limit of agricultural land in the State of Gujarat. They all

contend that under the scheme of our Constitution, there is no scope

of prohibiting a citizen of India from holding land within the territory of

this State simply because in the past, he had no such land held by

him in this State. According to them, the action on the part of the

State Government in freezing the account of the recognized

agriculturist was, on the face of it, based on misinterpretation of the

above provisions of the Act and if the above interpretation is

accepted, it would amount to violation of the mandatory provisions

contained in Article 15 of the Constitution of India. The learned

counsel for the appellants, therefore, pray for setting aside the orders

passed by the respondents by which the land accounts of the

petitioners were frozen.

9. Mr. Trivedi, the learned Advocate General appearing on behalf of

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the State of Gujarat has, however, opposed the aforesaid contentions

and he developed his argument in the following way:

1. The enactment of the Bombay Tenancy Act was a step towards

a major agrarian reform, relatable to the following Entry-18 of

List-II of the seventh Schedule to the Constitution of India:

“18. Land, that is to say, right in or over land, land tenures

including the relation of landlord and tenant, and the collection

of rents; transfer and alienation of agricultural land; land

improvement and agricultural loans; colonization.”

The purposive reading of the preamble and various provisions of

the Bombay Tenancy Act, according to Mr. Trivedi, clearly

indicate that the said Bombay Tenancy Act is enacted with

reference to the agricultural land of the Province of Bombay

belonging to or occupied by the agriculturists, agricultural

labourers and artisans in the then Province of Bombay, with a

view to improving their economic and social conditions and

ensuring efficient use of the land for agriculture, by removing

intermediary landlords and by making the tillers of soil as

owners thereof. This, according to Mr. Trivedi, is the basic

philosophy of the Bombay Tenancy Act. For ready reference, Mr.

Trivedi relied upon the preamble of Bombay Tenancy Act, which

is reproduced hereunder:

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“WHEREAS it is necessary to amend the law which

governs the relations of landlords and tenants of

agricultural lands:

AND WHEREAS on account of the neglect of a landholder

or disputes between a landholder and his tenants, the

cultivation of his estate has seriously suffered, or for the

purpose of improving the economic and social conditions

of peasants or ensuring the full efficient use of lands for

agriculture, it is expedient to assume management of

estates held by landholder and to regulate and impose

restrictions on the transfer of agricultural lands, dwelling

houses, sites and lands appurtenant thereto belonging to

or occupied by agriculturists, agricultural labourers and

artisans in the Province of Bombay and to make

provisions for certain other purposes hereinafter

appearing: It is hereby enacted as follows:” (Emphasis

supplied).

1.1 According to Mr. Trivedi, in furtherance to the above, section

1[2] of the Bombay Tenancy Act, as it stood at the material

time, and as it stands at present, respectively, also need to be

examined and the same reads as under:

“1[2] It extends to the whole of the Province of Bombay.”

“2[2] It extends to the Bombay area of the State of Gujarat.”

1.2 Mr. Trivedi then relied upon Section 2[2] of the Bombay Tenancy

Act defining the term ‘agriculturist’ as under:

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“2[2] Agriculturist means a person who cultivates lands

personally.”

1.3 Mr. Trivedi also relied upon the provisions of section 2[6] of the

Bombay Tenancy Act defining the term ‘to cultivate personally’.

1.4 According to Mr. Trivedi, if the aforesaid provisions of the

Bombay Tenancy Act are read along with the provisions of the

Chapter III thereof, which contains sections 31 to 43 and more

particularly, section 32 which provides that on 1st day of April,

1957 i.e. on the tillers’ day, every tenant would be deemed to

have purchased from his landlord, free of all encumbrances

subsisting thereon, the land held by him as tenant, then in that

case, the only meaning which can be gathered is that a person

who is cultivating outside the State, is not covered under

section 2[6] of the Bombay Tenancy Act and thereby, cannot

become an agriculturist in the State, inasmuch as the

Legislature enacting the Bombay Tenancy Act was only

interested in those people who are cultivating land within its

territorial jurisdiction. Under the circumstances, the tenants who

became the deemed purchasers by virtue of the aforesaid

provisions of the Bombay Tenancy Act, members of their joint

families and their legal heirs, only can claim to be the

agriculturists, provided that they comply with the other

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provisions of the Bombay Tenancy Act. This position, according

to Mr. Trivedi, will apply even to those who are not originally the

natives of the State of Gujarat, but having come from outside

the State and become tiller as on 1st April, 1957 in the State.

Mr. Trivedi, in this connection, relied upon the following

decisions of the Supreme Court:

[i] Sri Ram Ram Narain Medhi & Others, vs. State of

Bombay, AIR 1959 SC 459-rel. paras 3, 11, 35 39;

[ii] Sriram Narain Medhi vs. State of Maharashtra, AIR

1971 SC 1992 – rel. paras 1 to 6, 10, 11, 13;

[iii] Shashikant Mohanlal Desai vs. State of Gujarat, 11

GLR 122 – rel. paras 7, 8.

2. Mr. Trivedi further contended that the title and preamble of the

enactment undoubtedly throws light on the intent and design of

the legislature and indicate the scope and purpose of the

legislation itself and when the language of the legislation is

plain and clear, external evidence like parliamentary debates or

speech of the Hon’ble Minister while introducing the Bill, would

not be admissible to construe the legislation.

Mr. Trivedi in this connection relied upon the following decisions

of the Supreme Court:

[i] Poppatlal Shah, Partner of Messrs. Indo Malayan

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Trading Co. vs. The State of Madras, reported in AIR

1953 SC 274 – relevant para 7;

[ii] State of W.B. vs. Union of India, reported in AIR

1963 SC 1241 – rel. paras 13, 14;

[iii] Anandji Haridas & Co. Pvt. Ltd. vs. Engineering

Mazdoor Sangh and Anr., reported in [1975] 3 SCC 862

– rel. para 10.

3. Mr. Trivedi contends that it is settled legal principle of

construction that ordinarily, extra territorial operation would not

be intended by the legislature and that, therefore, a legislation

enacted by the State legislature need not be all embarrassing

and merely because the same is enacted for the benefit of the

State, the same cannot be treated as violative of Article 14 of

the Constitution. In support of the above proposition, Mr. Trivedi

relied upon the following decisions of the Apex Court:

[i] Sakhawant Ali v. State of Orissa, reported in AIR

1955 SC 166 – rel. para 10;

[ii] Kishan Singh & Ors. vs. State of Rajasthan & Ors,

reported in AIR 1955 SC 795 – rel. para 4.

4. Mr. Trivedi further contended that while dealing with similar

provision relating to the definition of agricultural debtor,

cultivating agricultural land personally under the provisions of

the Bombay Agricultural Debtors’ Relief Act, 1947, the Hon’ble

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Bombay High Court inter-alia observed as under, in case of

Tukaram S. Panasare, reported in 54 BLR 88 = AIR 1952

Bombay 144:

“… … … Did the legislature intend that if a debtor cultivated

land anywhere in the world during the material period he would

satisfy this qualification laid down by the legislature? It is

difficult to hold that that was the object of the

Legislature, because when we turn to the preamble it is

clear that this Act was intended for the relief of

agricultural debtors in the Province of Bombay. Therefore,

relief was to be given not merely to a debtor in the Province of

Bombay, but to agricultural debtor in the Province of Bombay,

and only that debtor would be an agricultural debtor who

cultivated land in the Province of Bombay. Legislature was

only interested in those people who were cultivating

land within its territorial jurisdiction and to whom relief

was to be given because they were indebted ….. … The

Legislature has defined the expression ‘cultivating

personally’ looking to the conditions prevailing in the

State of Bombay…”

Mr. Trivedi points out that the aforesaid view has been

confirmed by the Apex Court in paragraph 11 of its judgment in

case of Tatoba Bhau Savagave vs. V.D. Deshpande,

reported in AIR 2001 SC 4029 – rel. para 11.

4.1 Mr. Trivedi further contends that similar observations are also

made by the Hon’ble Bombay High Court in case of

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Chhanubhai Karansing vs. Sardu Mansang, reported in 58

Bom. L.R. 463 = AIR 1957 Bombay 99, while dealing with

the provisions of the Bombay Tenancy Act, as under:

“The ordinary principle of construction is that a legislature is

dealing with the subject-matter within its own territorial

jurisdiction. The legislature is not concerned with

improving the lot of many persons outside the State of

Bombay, nor is it concerned with the conditions

prevailing outside the State. The tenant for whose benefit

the legislation is put on the Statute Book and who has been

correspondingly defined are tenant and landlord in the State of

Bombay. …”

(Emphasis supplied).

4.2 According to Mr. Trivedi, a Division Bench of this Court also

followed the aforesaid two judgments of the Hon’ble Bombay

High Court in case of Devji Meghji Gangar vs. Lalmiya

Mosammiya, reported in 1977 GLR 515 – vide. paragraphs 3

and 5, while dealing with the questions involved in the

captioned proceedings and inter-alia observed as under:

“… … … It is settled principle of construction that ordinarily,

extra territorial operation would not be intended by the

legislature and the legislature which is conversant with the

needs of the subjects of the State would be making legislation

for their benefit only, even 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 ….

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Therefore, the concept of agriculturist is not a simple

concept of a cultivator of land wherever situate but it is

implicit that the land must be within the State of

Bombay. The second ingredient is also expressly specified that

he must be personally cultivating such land.”

(Emphasis given).

4.3 All the above referred three judgments, Mr. Trivedi proceeds,

have been followed by the Division bench of this Hon’ble Court

in case of Shamalsha Girdhari Co. vs. State of Gujarat,

reported in 2001 [4] GLR 3180- vide paragraphs 9, 11, 12, 13.

5. According to Mr. Trivedi, Bombay Tenancy Act as well as 1958

Act of Kutch cannot be assailed on the touchstone of the viola-

tion of fundamental rights guaranteed under Part III of the Con-

stitution, since they are protected by the provisions of Articles

31A and 31B read with 9th Schedule to the Constitution and in

support of his contention he relied upon the following decisions

of the Supreme Court:

[i] Patel Ambalal Gokalbhai v. State of Gujarat and

others, reported in [1982] 3 SCC 316;

[ii] I.R. Coelho [dead] by LRs. vs. State of Tamil Nadu,

reported in [2007] 2 SCC 1 – rel. para 151[v].

6. Similarly, According to Mr. Trivedi, Gujarat Agricultural Lands

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Ceiling Act, 1960 is enacted for determining ceiling area of

the agricultural land that an agriculturist of the State can hold

in the State. Application of the said Act as provided under

section 5[3] of the Bombay Tenancy Act, Mr. Trivedi proceeds,

cannot lead to a situation whereby, a tiller from outside the

State of Gujarat, can also become an agriculturist in the State of

Gujarat. Mr. Trivedi points out that a Division Bench of this

Court, while dealing with the challenge against the validity of

the aforesaid Ceiling Act in case of V.K. Shroff vs. Shri

Kahan, reported in 1933 [2] GLR 1202, observed as under:

“… … … the land in respect of which ceiling area is to be

determined, are the lands situate in this State and the

declaration of the surplus land is also in respect of the lands

held in this State. The connection here is of a person holding

lands in Gujarat. If he does not hold land in Gujarat, the

question of applicability of the provisions of the Act

does not arise…”

(Emphasis given).

The aforesaid view, Mr. Trivedi points out, has been confirmed

by the Apex Court in case of Shrikant Bhalchandra Karulkar

vs. State of Gujarat, reported in [1994] 5 SCC 459 – vide

paragraph 8, wherein, it was inter-alia observed as under:

“… … … The sine qua non for the application of the provisions

of the Act is the holding of the land within the State of

Gujarat…..”

(Emphasis given).

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Thus, according to Mr. Trivedi, by application of the said Ceiling

Act, which has also been held to be a piece of legislation

without extra territorial operation, the Bombay Tenancy Act

cannot be rendered a legislation with extra territorial operation.

The object of the said Act is to fix a ceiling on holding

agricultural land in the State and to provide for acquisition and

disposal of surplus agricultural lands within the State.

7. Mr. Trivedi submits that presently, there is no provision in the

Bombay Tenancy Act or in the Rules framed there under or in

the above-referred Ceiling Act for ascertaining the factum of the

person holding agricultural land outside the State vis-à-vis

necessary details thereof. In view of this, according to Mr.

Trivedi, if a person claims to be agriculturist from outside the

State while claiming to be an agriculturist in the State, not only

the Bombay Tenancy Act would be rendered extra territorial in

operation, but it would be rather impossible for the State

authorities to ascertain and confirm the correctness of the

information supplied by such person. This will invite many evils

resulting into unreal agriculturists coming to the State, hoarding

and concentration of lands in few hands, likelihood of

agricultural lands being diverted for other purposes, which will

ultimately deprive the real agriculturists of the State from

having the benefits flowing from the Bombay Tenancy Act.

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8. According to Mr. Trivedi, because of introduction of restriction as

regards situation of the agricultural land in section 2[6] of the

Bombay Tenancy Act with effect from 16.3.1956 and

subsequent removal thereof on 30.3.2011 with retrospective

effect, the philosophy of Bombay Tenancy Act referred to above

has not been changed at all and thus, the judgment of the

Division Bench in case of Shamalsha Girdhari Co. vs. State

of Gujarat, reported in 2001 [4] GLR 3180, does not require

any reconsideration. Mr. Trivedi submits that the legal position

which has been holding the field for last more than six decades

that in order to be an agriculturist under the Bombay Tenancy

Act, a person is required to cultivate personally agricultural land

located within the State. Consequently, Mr. Trivedi continues, a

person cultivating outside the State, cannot become owner of

an agricultural land located within the State. Mr. Trivedi

contends that if the said position is reversed, the same may

invite many evils as discussed hereinabove.

10. After hearing the learned counsel for the parties and after going

through the material on record, we find that the appellants, prior to

their purchase of agricultural land from an agriculturist of the State of

Gujarat, had undisputedly no land in the State of Gujarat and

accordingly, they had no occasion to till the soil of Gujarat. The only

question before us is whether their case will come within the purview

of section 89 of the Act.

11. If we go minutely through the provisions of section 89 of the Act

quoted above, it appears that no sale, gift, exchange or lease of any

land or interest therein, or any mortgage of any land or interest

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LPA/1106/2011 25/40 ORDER

therein, in which the possession of the mortgaged property is

delivered to the mortgagee, or agreement made by an instrument in

writing for the sale, gift, exchange, lease or mortgage or any land or

interest therein, shall be valid in favour of a person who is not an

agriculturist or who being an agriculturist cultivates

personally land not less than three family holdings whether

as owner or tenant or partly as owner or partly as tenant or

who is not an agricultural labourer. There are two provisos. By

the first proviso, the Collector or an officer authorised by the State

Government in this behalf may grant permission for such sale, gift,

exchange, lease or mortgage, or for such agreement in such

circumstances as may be prescribed. The second proviso puts

restriction that no such permission shall be granted, where land is

being sold to a person who is not an agriculturist for agricultural

purpose, if the annual income of such person from other source

exceeds five thousand rupees. There are three exemptions as

indicated in sub-sections (2), (3) and (4) of section 89 but we do not

propose to discuss those provisions as those are not relevant for the

purpose of deciding the present appeals.

12. Therefore, in order to bring a case out of the rigour of section

89 of the Act, the transfer must be made to an agriculturist and

even if he is an agriculturist, such agriculturist must not hold land

more than three family holdings as indicated therein within the State

of Gujarat.

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LPA/1106/2011 26/40 ORDER

13. If we go to the definition of ‘agriculturist’ it simply means a

person who cultivates land personally and there is no restriction that

he must be a person who cultivates land personally at least some

land in the State of Gujarat.

14. We further find that according to Gujarat Land ceiling Act, 1960

which governs all agricultural lands in the State of Gujarat, there is a

similar definition of ‘agriculturist’ without any restriction of personal

cultivation of land only in the State of Gujarat, and according to

section 6 of the said Ceiling Act, which has an overriding effect over

all law for the time being in force, no person should be entitled to

hold whether as owner or tenant or partly as owner and partly as

tenant land in excess of the ceiling area and while determining such

ceiling area, any land held by an agriculturist in any other part of the

India outside the State, not exceeding the maximum area of land,

which such person is entitled to hold in such other part of India under

any law, if any, relating to ceiling on land, used or capable of being

used for agricultural purposes, shall be excluded from the ceiling area

in excess of which a person is not entitled to hold land under this

section.

15. The above provision of the Ceiling Act enacted in the year 1960

makes it abundantly clear that whatever was the intention of the

legislature in the past, from the enactment of the above provision, it

has made its intention abundantly clear that the land held by an

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LPA/1106/2011 27/40 ORDER

agriculturist in other State should also be taken into consideration as

an agricultural land held by such agriculturist while determining the

ceiling limit of land in Gujarat. In other words, according to the said

legislation, for the purpose of better management of agricultural

lands in the State of Gujarat, no agriculturist in this State will be

permitted to hold any small fraction of agricultural land if the total

agricultural land held by such agriculturist exceeds the ceiling limit,

be any part of such land is situated in the State of Gujarat or in any

other States, as according to the legislature of this State, an

agriculturist is incapable of giving due care and proper

superintendence over his agricultural land in excess of such limit.

16. We, therefore, find substance in the contention of the learned

counsel appearing for the appellants that under the terms of the Act,

the term ‘agriculturist’ is a ‘qualification’ and that can be attained by

any person in India who cultivates agricultural land personally as

indicated in the Act if such land is situated in any part of India. In the

absence of specific provisions in the Act indicating its clear intention,

it is preposterous to suggest that the legislature has recognized his

agricultural land held as agriculturist in other States but has not

recognized him as agriculturist even though he is recognized as such

by a different State.

17. We, thus, find substance in the contention of the learned

counsel for the appellants that it was never the intention of the

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LPA/1106/2011 28/40 ORDER

Gujarat legislature to prohibit the recognized agriculturist of any other

State to hold any land in the State of Gujarat unless he was holding

such land in this State and if that was the intention, in that event, the

legislature would not have included his holding as such agriculturist in

other States for the purpose of calculating the ceiling area.

18. Moreover, in the entire Act, there is no indication that a person

can acquire any agricultural land in Gujarat only if he is already

cultivating some of the lands in Gujarat. The aforesaid idea is absurd

as would appear from the fact that even under the provisions of the

Act, a person can become an ‘agriculturist’ even by way of succession

as heir of an agriculturist. Therefore, if a cultivator in Gujarat marries

a person who is not an agriculturist in a different State, on the death

of the former, the latter will definitely acquire interest in the land in

Gujarat.

19. We are also not impressed by the submissions of the learned

Advocate General that as the State has no sufficient machinery to

verify the genuineness of the certificates given by the other States as

regards the status of a person as agriculturist in those States, the

purpose of the Act will be frustrated. In our opinion, when the State

Government is prepared to accept the certificate granted by other

States as regards the quantum of agricultural land held by an

agriculturist in other States as genuine for the purpose of ceiling,

there is no reason why such certificate as regards their status as

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LPA/1106/2011 29/40 ORDER

agriculturist cannot be relied upon.

20. We now propose to deal with the decisions cited by Mr. Trivedi in

support of his contentions.

21. In the case of Sri Ram Ram Narain vs. State of Bombay

reported in AIR 1959 SC 459, the Supreme Court was dealing with

the scope of Bombay Tenancy and Agricultural Lands Act, and referred

to various provisions of the Act as indicated in paragraph 3 of the

judgment. While considering the validity of section 7 of the Bombay

Tenancy & Agricultural Land [Amendment] Act 13 of 1956, the

Supreme Court observed [in paragraph 38 of the judgment] that if

the language of an enactment is clear and unambiguous, it would not

be legitimate for the courts to add any words thereto and evolve

therefrom some sense which may be said to carry out the supposed

intentions of the legislature. The intention of the legislature is to be

gathered only from the words used by it and no such liberties can be

taken by the Courts for effectuating a supposed intention of the

legislature.

22. We fail to appreciate how the said principles can be of any help

to the State in this case. Mr. Trivedi tried to rather impress upon us

that we should read in the statute “in the State of Gujarat” in the

definition of ‘agriculturist” and “to cultivate personally”. The

aforesaid decision rather goes against his contention. On the other

hand, if we take into consideration the provisions of the Land Ceiling

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LPA/1106/2011 30/40 ORDER

Act, the intention of the legislature was apparent that it recognized

the land held by an agriculturist in other State. Therefore, the above

decision is of no avail to the State.

23. In the case of S.N. Medh vs. State of Maharashtra reported

in AIR 1971 SC 1992, all that was decided by the Supreme Court

was that the saving of land provided for acquisition by a State and the

protection is available not only to acts which come within its terms

but also to acts amending such Acts\include new items of property or

which change some detail of the scheme of the Act provided firstly

that the change is not such as would take it out of Article 31A or by

itself is not such as would not be protected by it and secondly that the

assent of the President has been given to the amending statute.

24. We are, in the present case, not concerned with the protection

under Article 31A and thus, we find that the said decision is also

irrelevant for our purpose in this case.

25. In the case of Sashikant Mohanlal vs. State reported in

[1970] 11 GLR 122, a Division Bench of this Court was dealing with

the provisions of section 43 which places an embargo on tenant

transferring the land deemed to be purchased by him and in that

context various observations on the relevant section.

25.1 In the case before us, we are not concerned with the transfer of

a land belonging to a tenant and thus, the said decision as well as the

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LPA/1106/2011 31/40 ORDER

reference to Chapter III containing Sections 31 to 43 of the Bombay

Tenancy Act by Mr. Trivedi would have no application to the facts of

the present case. Chapter III deals with special rights and privileges

of tenants and provisions for distribution of land for personal

cultivation. Therefore, the provisions contained in Chapter III cannot

help Mr. Trivedi for resolving the question involved in the present

cases.

26. In the case of Popatlal Shah vs. State of Madras reported in

AIR 1953 SC 274 the Supreme Court [in paragraph 7 of the

judgment] reiterated the settled rule of construction that to ascertain

the legislative intent, all the constituent parts of a statute are to be

taken together and each word, phrase or sentence is to be considered

in the light of the general purpose and object of the Act itself.

According to the Supreme Court, the title and preamble, whatever

their value might be as aids to the construction of a statute,

undoubtedly throw light on the intent and design of the legislature

and indicate the scope and purpose of the legislation itself. The

Supreme Court pointed out that in that case, the title or preamble of

Madras Sales Tax Act clearly show that its object is to impose taxes on

sales that take places within the province, though these words do not

necessarily mean that the property in the goods sold must pass within

the province.

27. In the case before us, we have already pointed out that if we

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LPA/1106/2011 32/40 ORDER

take into consideration the provisions of the Land Ceiling Act enacted

by the legislature, it is clear that its intention was to recognize the

agriculturists of the other State as an agriculturist and also to take

into consideration the land belonging to such agriculturist in the other

State. It was never the intention of the legislature only to take into

consideration the land of such agriculturist situated in a different

state but not to consider him as an agriculturist in this State.

Therefore, the above decision also does not help Mr. Trivedi in any

way.

28. In the case of State of West Bengal vs. Union of India

reported in AIR 1963 SC 1241, the Supreme Court pointed out [in

paragraph 13] that the statute as passed by the Parliament is an

expression of the collective intention of the legislature as a whole and

any statement made by an individual albeit a Minister, of the

intention and objects of the Act cannot be used to cut down the

generality of the words used in the statute.

29. The above decision was cited by Mr. Trivedi for the purpose of

opposing the submissions made by Mr. Oza that the address given by

the concerned Minister while moving the 1958 Act should be taken

into consideration. We have already pointed out that even if we do

not take into consideration the address of the Minister, it is quite clear

that the legislature recognized agriculturist of other state and the

land held by such agriculturist even for the purpose of consideration

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LPA/1106/2011 33/40 ORDER

of ceiling in this State. We thus do not propose to go into the above

question.

30. In the case of Anandji Haridas & Co. Pvt. Ltd.[supra], the

Supreme Court reiterated the well-settled general principle of

interpretation that , where the words of a statute are plain, precise

and unambiguous, the intention of the Legislature is to be gathered

from the language of the statute itself and no external evidence such

as parliamentary debates, reports of the committees of the

Legislature or even the statement made by the Minister on the

introduction of a measure or by the framers of the Act is admissible to

construe those words. According to the said decision, it is only where

a statute is not exhaustive or where its language is ambiguous,

uncertain, clouded or susceptible of more than one meaning or

shades of meaning, that external evidence as to the evils, if any,

which the statute was intended to remedy, or of the circumstances

which led to the passing of the statute may be looked into for the

purpose of ascertaining the object which the Legislature had in view

in using the words in question.

31. We have already pointed out that we do not propose to take

into consideration the address of the Minister introducing the Bill

while enacting the Act and in our view, on a plain meaning of the

provision contained in the Act, it is clear that the Legislature has

recognized any person who is cultivating his own land personally

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LPA/1106/2011 34/40 ORDER

anywhere in India for the purpose of the Act in question. Thus, the

said decision is of no assistance to the learned Advocate General.

32. Similarly, other two decisions in the case of Sakhawant Ali v.

State of Orissa, reported in A.I.R. 1955 S.C. 166 and in the

case of Kishan Singh and others v. State of Rajasthan and

others, reported in AIR 1955 SC 795, referred to by Mr. Trivedi lay

down the well-settled legal principal that ordinarily, the extra

territorial operation would not be intended by the Legislature and

that therefore, a legislation enacted by the State Legislature need not

be all embracing and merely because, the same is enacted for the

benefit of the State, the same cannot be treated as violative of

Article 14 of the Constitution of India.

33. We do not, for a moment, dispute the aforesaid proposition of

law but the fact remains that the State Legislature has the right to

consider whether it will consider the agriculturists of other State

within the definition of the word “agriculturist” in the State Act and

whether it will take into consideration the land held by such

agriculturist outside the State for the purpose of calculating the

ceiling limit within the State. In the case before us, Gujarat State

Legislature has taken into consideration that aspect and thus, if we

apply the principle laid down in the above two Supreme Court

decisions, the Act cannot be held to be violative of Article 14 of the

Constitution of India. Therefore, the said two decisions rather

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LPA/1106/2011 35/40 ORDER

recognize the submission made on behalf of the appellants.

34. So far as the decision of the Bombay High Court in the case of

Tukaram Savalaram Panasare v. Narayan Balkrishna Dolas,

reported in AIR 1952 Bom. 54, we are of the view that the facts of

the said case are quite different from the one involved in the present

case. In that case, it was held by Chief Justice Chagla, that Legislature

was only interested in those people who were cultivating land within

its territorial jurisdiction and to whom relief was to be given because

they were indebted by acting as such agriculturists. In the case before

us also, Gujarat State Legislature was concerned with the person who

intends to hold agricultural land and object of the Act is to see that

only agriculturist by profession whether within the State of Gujarat or

in any part of India is holding the land in the State of Gujarat. Thus,

the said decision cannot be of any help to the State respondent. We

are quite conscious that the above view of Chagla, C.J. has been

approved by the Supreme Court in the case of Tatoba Bhau

Savagave v. V.D. Deshpande, reported in AIR 2001 SC 4029,

referred to by Mr. Trivedi.

35. Similarly, while dealing with the provisions of the Bombay

Tenancy Act, the Bombay High Court, in the case of Chhanubhai

Karansing v. Sardu Mansang, reported in 58 Bom. L.R. 463 =

AIR 1957 Bom. 99, held that the Legislature is not concerned with

improving the lot of any person outside the State of Bombay nor is it

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LPA/1106/2011 36/40 ORDER

conversant with conditions prevailing outside the State. It may be

mentioned here that at that point of time, Bombay Agricultural Lands

Act was not in existence nor was there any provision for taking into

consideration the land held by agriculturist outside the State of

Bombay. Moreover, we are of the view that the State Legislature is

definitely concerned regarding the capability of the persons who for

the time being will cultivate the land in the State. Thus, the idea

propounded by Mr. Trivedi that the legislature is concerned only with

the persons who used to cultivate land in the State at one point of

time but not as regards the persons who in future will cultivate the

land is not tenable. The said decision, consequently, is of no avail in

the facts of the present case.

36. Similarly, we also do not propose to enter into the question

whether the Act in question is protected under the provisions of

Articles 31A and 31B read with 9th Schedule of the Constitution of

India and as such, we do not propose to deal with two decision of the

Supreme Court, namely, in the case of Patel Ambalal Gokalbhai v.

State of Gujarat and others, reported in [1982] 3 SCC 316 and

in the case of I.R. Coelho [dead] by LRs. v. State of Tamil

Nadu, reported in [2007] 2 SCC 1 at this stage.

37. We are also unable to approve the submission of Mr. Trivedi

that application of the Gujarat Agricultural Lands Ceiling Act, 1960 as

applied by virtue of Section 5[3] of the Bombay Tenancy Act cannot

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LPA/1106/2011 37/40 ORDER

lead to a situation whereby a tiller from outside the State of Gujarat

can also become agriculturist in the State of Gujarat. “Agriculturist” is

a qualification and the State Legislature is entitled to accept any

person, who is recognized as an agriculturist in other State of India as

an agriculturist in the State of Gujarat. There is no prohibition

contained in the Act to prohibit purchase of land at the instance of an

agriculturist having agricultural land outside the State except for the

purpose of ceiling and if such prohibition was there, it would definitely

be violative of Article 15 of the Constitution of India. We are quite

conscious that under the Gujarat Agricultural Lands Ceiling Act, 1960,

land situated in this State is the subject-matter and the fact that

agriculturist can hold land in Gujarat in addition to the land in other

State itself negatives the contention of the learned Advocate General

that Section 89 is applicable to an agriculturist simply because, he at

the time of purchase holds land outside the State of Gujarat though

complies with all the requirements of the Act.

38. We, thus, find that the decisions cited by Mr. Trivedi are of no

avail to his client.

39. We, therefore, find substance in the contention of the appellants

that a person who does not own agricultural land within the State of

Gujarat at the time of purchase cannot be treated to be a non-

agriculturist within the meaning of the Act simply because he does

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LPA/1106/2011 38/40 ORDER

not cultivate any agricultural land within the State of Gujarat and on

that ground alone, the purchase of any agricultural land by such a

person will not be hit by the provisions contained in section 89 of the

Act.

40. We, consequently, set aside the decision of the District

Collector, Kutch who issued instructions to the concerned Mamlatdar

to freeze the ‘khedut khatas’ [agricultural accounts] of the appellants

until further instructions on the ground that the appellants are

agriculturists belonging to other States. We also quash the circular

No. TNC/1073/58184/J of the Revenue Department of the Government

of Gujarat dated 4th April 1973 wherein it was indicated that any sale

of land made to any non-agriculturists in Gujarat on the strength of

his status as agriculturist in any other State outside Gujarat would

attract the provisions contained in section 63 of the Bombay Tenancy

& Agricultural Lands Act, 1948 and section 54 of the Saurashtra

Tenancy and Garkhed Settlement Ordinance and section 89 of the

Bombay Tenancy and Agricultural Land [Vidarba Region and Kutch

Area) Act, 1958 on the strength of certificates about their status as

agriculturists in other States.

41. The Letters Patent appeals are, thus, allowed to the extent

indicated above.

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LPA/1106/2011 39/40 ORDER

41.1 The other writ-applications be placed before the appropriate

court for decisions on merit in the light of our observations made

herein. We, however, make it clear that we have not gone into

the individual cases of the writ-petitioners in the above pending

matters and those should be disposed of in accordance with law by

taking into

consideration the view expressed by us on the question of

interpretation of the above provisions of law.

[BHASKAR BHATTACHARYA, ACTG. CJ.]

[A.L. DAVE, J.]

[V.M. SAHAI, J.]mathew

FURTHER ORDER:-

After pronouncement of the order, Mr. P.K. Jani, learned

Government Pleader appearing on behalf of the State respondents

prays for stay of operation of our order.

In view of what has been stated above, we find no reason to

stay our order. The prayer is rejected.

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LPA/1106/2011 40/40 ORDER

Certified copy of the order be given on the day it will be applied.

[BHASKAR BHATTACHARYA, ACTG. CJ.]

[A.L. DAVE, J.]

[V.M. SAHAI, J.]mathew

40 of 40

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