Thursday, 18 June 2020

Whether Bar On Transfer/Assignment Of Agricultural Land To Non-Agriculturist is Applicable To Testamentary Disposition Also?

The questions that arose for consideration and
the circumstances in which the matters were referred to it were set out by
the Division Bench as under:-.
“We are called upon to decide as to whether Section 63 of
the Bombay Tenancy and Agricultural Lands, Act, 1948
(for short ‘the Bombay Tenancy Act’) debars an
agriculturist from parting with his agricultural land to a
non-agriculturist through a “Will” so also, whether Section
43(1) of the Tenancy Act restricts transfer of any land or
interest purchased by the tenant under Sections 17B, 32,
32F. 321. 320, 32U, 33(1) or 88E or sold to any person
under Section 32P or 64 of the Tenancy Act through the
execution of a Will by way of testamentary disposition.
Learned Single Judges of this Court have taken a
consistent view that such transfer of property through
testamentary disposition would not violate Section 43 or
63 of the Tenancy Act.

31. If the provisions referred to in Section 43 of the Act and allied
provisions are considered in light of the settled principles extracted earlier,
it emerges that the primary concern of those provisions is to see that the
legislative scheme of granting protection to persons from disadvantaged
categories and conferring the right of purchase upon them, and thereby
ensure direct relationship of a tiller with the land. The provisions, though
lay down a norm which may not be fully consistent with the principles of
Indian Succession Act, are principally designed to attain and sub-serve the

purpose of protecting the holdings in the hands of disadvantaged
categories. The prohibition against transfers of holding without the
previous sanction of the concerned authorities, is to be seen in that light as
furthering the cause of legislation. Even if by the process of construction,
the expression “assignment” is construed to include testamentary
disposition, in keeping with the settled principles, the incidental
encroachment cannot render the said provisions invalid. In pith and
substance, the legislation and the concerned provisions are completely
within the competence of the State Legislature and by placing the
construction upon the expression “assignment” to include testamentary
disposition, no transgression will ensue.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2573 OF 2020

VINODCHANDRA SAKARLAL KAPADIA Vs  STATE OF GUJARAT 

Uday Umesh Lalit, J.
Dated:June 15, 2020.

1. Leave granted.
2. These Appeals arise out of the common judgment and order dated
17.03.2009 passed by the Division Bench of the High Court of Gujarat at
Ahmedabad in Special Civil Application No.25058 of 2006 and all other
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

connected matters while answering the questions referred to it by a Single
Judge of the High Court. The questions that arose for consideration and
the circumstances in which the matters were referred to it were set out by
the Division Bench as under:-.
“We are called upon to decide as to whether Section 63 of
the Bombay Tenancy and Agricultural Lands, Act, 1948
(for short ‘the Bombay Tenancy Act’) debars an
agriculturist from parting with his agricultural land to a
non-agriculturist through a “Will” so also, whether Section
43(1) of the Tenancy Act restricts transfer of any land or
interest purchased by the tenant under Sections 17B, 32,
32F. 321. 320, 32U, 33(1) or 88E or sold to any person
under Section 32P or 64 of the Tenancy Act through the
execution of a Will by way of testamentary disposition.
Learned Single Judges of this Court have taken a
consistent view that such transfer of property through
testamentary disposition would not violate Section 43 or
63 of the Tenancy Act, Justice J.B. Mehta in the case of
Manharlal Ratanlal @ Radmansinh Chausinh v.
Taiyabali Jaji Mohamed & others (1967-68 (Vol.5) GLT
199) while interpreting Section 43(1) of the Tenancy Act
took the view that the expression ‘transfer’ which is used
in Section 43(1) of the Tenancy Act must be interpreted in
light of the Transfer of Property Act viz. the transfer by
way of act of parties. Learned Judge took the view that, if
the Legislature wanted to include a transfer by operation
of law as to include succession, insolvency, inheritance,
etc. or sales by public auction, specific provision would
have been made to that effect. Learned Judge held all the
specific categories which are mentioned are all of transfers
by act of parties, bequest by Will cannot be included in the
scope of the term ‘gift’ or ‘assignment’. Justice Rajesh
Balia in Ghanshyambhai Nabheram v. State of Gujarat
and others (1999 (2) GLR 1061) while interpreting
Section 63 of the Tenancy Act took a view that just like, a
non-agriculturist be not deprived of his inheritance, a
legatee under a Will, can also be a non-agriculturist,
hence, there is no bar in succeeding the property through
testamentary disposition. Learned Judge held that
Revenue Laws dealing with agricultural lands have not
made the land uninheritable and they also do not
disqualify a non-agriculturist from inheritance nor a
number of persons are disentitled from succeeding to
estate of an agriculturist as body of successors, which
may result in well defined share of the estate of deceased
vesting in them individually. Justice Rajesh Balia again
in Pravinbhai Bhailalbhai Gor v. Rajkumar Gupta,
collector, Vadodara (1999(1) GLR 440) while interpreting
Section 43 and 63 of the Tenancy Act took the view that
both provisions clearly go to show that they refer only to
transaction or transfer or agreement to transfer of land or
any interest therein which are inter vivos and not to
vesting of such rights in anyone as a result of transmission
or as a result of succession on death of holder and the
provisions do not affect the operation of law of
inheritance. Appeal filed against the above judgment was,
however, dismissed in State of Gujarat v. P.B. Gor (2000
(3) GLR 2168). Justice K.A. Puj also took identical view
in Gasfulbhai Mohmadbhai Bilakhia v. State of Gujarat
(2005 (1) GLR 575) and Gopiraj Dedraj Agrawal
(Gopiram tudraj Agrawal) v. State of Gujarat (2004 (1)
GLR 237). Learned Judge also made reference to the
Circular dated 13.02.1989 issued by the State Government
and took a view that that Section 43 as well as Section 63
of the Tenancy Act would not debar transfer of property by
testamentary disposition. Justice R.K. Abichandani also
took the same view in Babubhai Mervanbhai Patel v.
State of Gujarat 2005 (1) GLH (UJ) 3. Learned Single
Judge Justice Jayant Patel expressed some doubts about
the views expressed in the above-referred judgments and
felt that the matter requires re-consideration in light of the
decisions rendered by the Apex Court in Sangappa
Kalyanappa Bangi (dead) through LR (AIR 1998 SC
3229 = (1998) 7 SCC 294 Rajendra Babu J. and
Jayamma v. Maria Bai and another (2004) 7 SCC 459
Sinha, J.) and hence these matters have been placed before
us.”
3. Sections 43 and Section 63 of the Act1 are quoted here for ready
reference:-
“43. Restriction on transfers of land purchased or sold
under this Act:
1The Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to State of
Gujarat.

(1) No land or any interest therein purchased by a tenant
under section 17B, 32, 32F, 32I, 32O2, 32U, 43-1D or 88E
or sold to any person under Section 32P or 64 shall be
transferred or shall be agreed by an instrument in writing
to be transferred, by sale, gift, exchange, mortgage, lease
or assignment, without the previous sanction of the
Collector and except in consideration of payment of such
amount as the State Government may by general or special
order determine; and no such land or any interest, therein
shall be partitioned without the previous sanction of the
Collector.
Provided that no previous sanction of the Collector
shall be required, if the partition of the land is among the
members of the family who have direct blood relation or
among the legal heirs of the tenant:
Provided further that the partition of the land as
aforesaid shall not be valid if it is made in contravention
of the provisions of any other law for the time being in
force:
Provided also that such members of the family
or the legal heirs shall hold the land, after the
partition, on the same terms, conditions and
restrictions as were applicable to such land or
interest therein purchased by the tenant or the
person.
(1A)The sanction under sub-section (1) shall be given by
the Collector in such circumstances and subject to such
conditions, as may be prescribed by the State Government.
(1AA) Notwithstanding anything contained in sub-section
(1), it shall be lawful for such tenant or a person to
mortgage or create a charge on his interests in the land in
favour of the State Government in consideration of a loan
advanced to him by the State Government under the Land
Improvement Loans Act, 1983, the Agriculturists’ Loans
Act, 1984, or the Bombay Non-agriculturists’ Loans Act,
1928, as in force in the State of Gujarat, or in favour of a
bank or co-operative society, and without prejudice to any
other remedy open to the State Government, bank or cooperative
society, as the case may be, in the event of his
making default in payment of such loan in accordance
2 The words ‘32O’ were deleted by Guj. Act No.10 of 2009

with the terms on which such loan was granted, it shall be
lawful for the State Government, bank or co-operative
society, as the case may be, to cause his interest in the land
to be attached and sold and the proceeds to be applied in
payment of such loan.
Explanation. – For the purposes of this sub-section,
“bank” means –
(a) the State Bank of India constituted
under the State Bank of India
Act,1955;
(b) any subsidiary bank as defined in
clause (k) of Section 2 of the State
Bank of India (Subsidiary Banks) Act,
1959;
(c) any correspondent new bank as defined
in clause (d) of Section 2 of the
Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970;
(d) the Agricultural Refinance and
Development corporation, established
under the Agricultural Refinance and
Development Corporation Act, 1963.
(1B) Nothing in sub-section (1) or (1AA) shall apply to
land purchased under Section 32, 32F, or 64 by a
permanent tenant thereof, if prior to the purchase, the
permanent tenant, by usage, custom, agreement or decree
or order of a court, held a transferable right in the tenancy
of the land.
(1C) The land to which sub-section (1) applies and for
which no permission is required under sub-section (1) of
section 65B of the Bombay Land Revenue Code, 1879 for
use of such land for a bonafide industrial purpose may,
notwithstanding anything contained in sub-section (1) of
this section, be sold without the previous sanction of the
Collector under sub-section (1) but subject to payment of
such amount as may be determined by the State
Government under sub-section (1).
(2) Any transfer or partition, or any agreement of
transfer, or any land or any interest therein in
contravention of sub-section (1) shall be invalid.
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
7
63. 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
(b) no mortgage of any land or interest
therein, in which the possession of the
mortgaged property is delivered to the
mortgage, or
(c) no agreement made by an instrument in
writing for the sale, gift, exchange, lese
or mortgage of any land or interest
therein,
shall be valid in favour of a person who is not an
agriculturist or who being an agriculturist cultivates
personally land not less than the ceiling area whether as an
owner or tenant or partly as owner and partly as tenant or
who is not an agricultural labourer:
Provided that the Collector or an officer authorised by the
State government in this behalf may grant permission for
such sale, gift, exchange, lease or mortgage, or for such
agreement on such conditions 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 sources exceeds five thousand
rupees.
(1A) The State Government may, by notification in the
Official Gazette, exempt from the provisions of subsection
(1), for the transfer of any agricultural land to any
public trust established for the charitable purpose and
which is non-profitable in nature, for the use of such land
in the field of health and education, subject to such
conditions as may be specified therein.
(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
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
8
agricultural labourer or an artisan or a person carrying on
any allied pursuit.
(3) Nothing in this section shall apply or be deemed to
have applied to a mortgage of any land or interest therein
effected in favour of a co-operative society as security for
the loan advanced by such society or any transfer declared
to be a mortgage by a court under section 24 of the
Bombay Agricultural Debtors’ Relief Act, 1947.
(4) Nothing in Section 63A shall apply to any sale made
under sub-section (1).”
4. The Sections of the Act which are referred to in said Section 43
and in the light of which the reference was answered by the Division
Bench as well as some other Sections having bearing on the matters in
issue, are extracted hereunder:
“17. Tenant to be given first option of purchasing site
on which he has built dwelling house.-
(1) If a landlord to whom the site referred to in section 16
belongs, intends to sell such site, the tenant at the expense
of whom or whose predecessor-in-title, a dwelling house is
built thereon shall be given in the manner provided in subsection
(2) of the first option of purchasing the site at a
value determined by the Tribunal.
(2) The landlord intending to sell such site shall give
notice in writing to the tenant requiring him to state within
three months from the date of service of such notice
whether he is willing to purchase the site.
(3) If within the period of three months so specified the
tenant intimates in writing to the landlord that he is willing
to purchase the site, the landlord shall make an application
to the Tribunal for the determination of the value of the
site. On receipt of such application the Tribunal after
giving notice to the tenant and after holding an inquiry
shall determine the value of the site [which shall not
exceed 20 times the annual rent thereof]. The Tribunal
may, by an order in writing require the tenant to deposit
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
9
the amount of value of such site [within one year] from the
date of such order. On the deposit of such amount the site
shall be deemed to have been transferred to the tenant and
the amount deposited shall be paid to the landlord. The
Tribunal shall on payment of the prescribed fees grant a
certificate in the prescribed form to such tenant specifying
therein the site so transferred and the name of such tenant.
(4) If the tenant fails to intimate his willingness to
purchase the site within the time specified in sub-section
(2) or fails to deposit the amount of the value within the
time specified in sub-section (3) the tenant shall be
deemed to have relinquished his right of first option to
purchase the site and the landlord shall then be entitled to
evict the tenant either on payment of such compensation
for the value of the structure of such dwelling house as
may be determined by the Tribunal or allow the tenant at
his option to remove the materials of the structure.
(5) Any sale of a site held in contravention of this section
shall be null and void.
17B. Tenant to be deemed to have purchased sites
referred to in section 16 from specified date. –
(1) On and with effect from such date as the State
Government may, by notification in the Official Gazette,
specify, every tenant referred to in section 16 shall be
deemed to have purchased from his landlord the site on
which the dwelling house occupied by such tenant, was
built, and the land immediately appurtenant thereto and
necessary for enjoyment of the dwelling house free from
all encumbrances at the price to the fixed by the Tribunal,
being a price not exceeding twenty times the annual rent
for the site.
(2) [Deleted by Guj. Act No.5 of 1973]
(3) As soon as may be thereafter, the Tribunal shall
publish or cause to be published a notice in such village
within its jurisdiction in which all such sites are situate
and shall, as far as practicable, issue notice to each such
landlord and tenant and to any other person interested in
such site to appear before it on the date specified in the
notice. The notice published in a village shall be affixed in
the Chavdi or at such public place as the Tribunal may
direct.
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
10
(4) The Tribunal shall, after giving an opportunity to such
landlord, tenant and other person interested to be heard
and after holding an inquiry determine the price of the site.
(5) On the determination of the price of the site under subsection
(4), the tenant shall deposit the amount of such
price with Tribunal-
(a) either in lump sum within one year from such
date, or
(b) in such instalments not exceeding three with
simple interest at the rate of 4½ per cent per
annum, and at such intervals during the period
not exceeding three years and on or before
such dates.
as may be fixed by the Tribunal and the Tribunal shall
direct that the amount deposited in lump sum or the
amount of the instalments deposited at each interval shall
be paid in accordance with the provisions of section 32Q
so far as they are applicable.
(6) On the deposit the amount of the price in lump sum or
of the last instalment of such price, the Tribunal shall, on
payment of a prescribed fee, grant a certificate in the
prescribed form to the tenant declaring him to be the
purchaser to the site. Such certificate shall be conclusive
evidence of the sale.
(7) If the tenant fails to pay any instalment on or before
the date fixed by the Tribunal under sub-section (5), the
amount of such instalment and the interest thereon shall be
recovered as an arrear of land revenue.
(8) If after holding an inquiry under sub-section (4), the
Tribunal is satisfied that the tenant is not willing to
purchase the site, the Tribunal shall issue a certificate to
the landlord to that effect. On the issue of such certificate
the landlord shall be entitled to evict the tenant and
dispose of the site in such manner as he may think fit
either on payment of such compensation for the value of
the structure of such dwelling house as may be determined
by the Tribunal, or after allowing the tenant, at his option,
to remove the materials of the structure;
Provided that the landlord shall not dispose of the site
in any manner except by first giving option of purchasing
the same for the price determined by the Tribunal, to an
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
11
agricultural labourer, landless person, small holder or a
village artisan, who owns no house site, in the said order
of priority and where any site is disposed of without
giving such option such disposal shall be void:
Provided further that the provisions of section 63
shall apply to the disposal of the site in any manner in a
case where the option of purchase is not exercised by any
of the persons mentioned in the first proviso.
32. Tenants deemed to have purchased land on tillers'
day.-
(1) On the first day of April 1957 (hereinafter referred to
as "the tillers' day") every tenant shall, subject to the other
provisions of the next succeeding sections, be deemed to
have purchased from his landlord, free of all
encumbrances subsisting thereon on the said day, the land
held by him as tenant, if-
(a) such tenant is a permanent tenant
thereof and cultivates land personally;
(b) such tenant is not a permanent tenant
but cultivates the land leased personally;
and
(i) the landlord has not given
notice of termination of his
tenancy under section 31; or
(ii) notice has been given under
section 31, but the landlord
has not applied to the
Mamlatdar, on or before the
31st day of March 1957
under section 29 for
obtaining possession of the
land ; or
(iii) the landlord has not
terminated his tenancy on
any of the grounds specified
in section 14, or has so
terminated the tenancy but
has not applied to the
Mamlatdar on or before the
31st day of March, 1957
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
12
under section 29 for
obtaining possession of the
land:
Provided that if an application made by the landlord
under section 29 for obtaining possession of the land has
been rejected by the Mamlatdar or by the Collector in
appeal or in revision by the Gujarat Revenue
Tribunal under the provision of this Act, the tenant shall be
deemed to have purchased the land on the date on which
the final order of rejection is passed. The date on which
the final order of rejection is passed is hereinafter referred
to as "the postponed date":
Provided further that the tenant of a landlord who is
entitled to the benefit of the proviso to sub-section (3) of
section 31 shall be deemed to have purchased the land on
the 1st day of April, 1958, if no separation of his share has
been effected before the date mentioned in that proviso.
(1A) (a) Where a tenant, on account of his eviction from
the land by the landlord, before the 1st April, 1957, is not
in possession of the land on the said date but has made or
makes an application for possession of the land under subsection
(1) of section 29 within the period specified in that
sub-section, then if the application is allowed by the
Mamlatdar, or as the case may be, in appeal by the
Collector or in revision by the Gujarat Revenue Tribunal,
he shall be deemed to have purchased the land on the date
on which the final order allowing the application is passed.
(b) Where such tenant has not made an application for
possession within the period specified in sub-section (1) of
section 29 or the application made by him is finally
rejected under this Act, and the land is held by any other
person as tenant on the expiry of the said period or on the
date of the final rejection of the application, such other
person shall be deemed to have purchased the land on the
date of the expiry of the said period or as the case may be,
on the date of the final rejection of the application.
(1B) Where a tenant who was in possession of land on the
appointed day and who, on account of his being
dispossessed of such land or any part thereof by the
landlord at any time before the specified date otherwise
than in the manner provided in section 29 or any other
provision of this Act, is not in possession of such and or
any part thereof and such land or part thereof is in the
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
13
possession of the landlord or his successor-in-interest on
the said date and such land or part thereof is not put to a
non-agricultural use on or before the said date, then the
Mamlatdar shall, notwithstanding anything contained in
the said section 29 or any other provision of this Act either
suo motu or on an application of the tenant made within
the prescribed period hold an inquiry and direct that such
land or as the case may be, part thereof shall be taken from
the possession of the landlord or, as the case may be, his
successor in interest, and shall be restored, to the tenant;
and thereafter, the provisions of this section and sections
32A to 32R (both inclusive) shall, so far as they may be
applicable, apply thereto, subject to the modification that
the tenant shall be deemed to have purchased such land or
part thereof on the date on which such land or, as the case
may be, part thereof is restored to him:
Provided that the tenant shale be entitled to
restoration of land or part thereof, as the case may be,
under this sub-section only if he gives an undertaking in
writing within such period as may be prescribed to
cultivate it personally and of so much thereof as together
with the other land held by him as owner or tenant shall
not exceed the ceiling area:
Provided further that -
(i) if the tenant fails to give such
undertaking within such prescribed
period, or if the tenant, after giving such
undertaking, refuses to accept the
tenancy or possession of the lands, the
land the possession of which the
landlord or as the case may be, his
successor-in-interests is not entitled to
retain under this sub-section; or
(ii) if the tenant gives such undertaking and
accepts such tenancy or possession of
the land, such portion of the land
referred to in clause (i) to the restoration
of which the tenant would not be entitled
under the first proviso,
shall vest in the State Government free from all
encumbrances, and shall be disposed of in the manner
provided in sub-section (2) of section 32 P.
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
14
Explanation. - In this sub-section "successor in
interest" means a person who acquires the interest by
testamentary disposition or devolution on death.
(2) Where by custom, usage or agreement or order of a
Court, any warkas land belonging to the landlord is used
by the tenant for the purpose of rab manure in connection
with rice cultivation in the land held by him as tenant-
(a) the whole of such warkas land, or
(b) as the case may be, such part thereof as
the Tribunal may determine in cases
where such warkas land, is jointly used
by more persons than one for the
purposes of rab manure,
shall be included in the land to be deemed to have
been purchased by the tenant under sub-section (1):
Provided that in cases referred to in clause (b) the
Tribunal may determine that such warkas land shall be
jointly held by persons entitled to use the same, if in the
opinion of the Tribunal, the partition of such warkas land
by metes and bounds is neither practicable nor expedient
in the interest of such persons.
(3) In respect of the land deemed to have been purchased
by a tenant under subsection (1),-
(a) the tenant shall continue to be liable to
pay to the landlord the rent of such land,
and
(b) the landlord shall continue to be liable to
pay to the State Government the dues, if
any, referred to in clauses (a), (b), (c)
and (d) of sub-section (1) of section
10A, where the tenant is not liable to pay
such dues under subsection (3) of that
section.
until the amount of the purchase price payable by the
tenant to the landlord is determined under section 32H.
(4) On the date of the commencement of the Bombay
Tenancy and Agricultural Lands (Gujarat Amendment)
Act, 1960 (Gujarat XVI of 1960), every tenant in the areas
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
15
within the limits of Municipal Boroughs Act, 1925
(Bombay XVIII of 1925), or within the limits of municipal
districts constituted under the Bombay District Municipal
Act, 1901 (Bombay III of 1901), shall, subject to the other
provisions of this Act, be deemed to have purchased from
a landlord free from all encumbrances subsisting thereon
on the said date the land held by him as tenant, as if the
said date were the tillers' day:
Provided that nothing in this sub-section shall apply
to land leased by a landlord and situated within the limits
of, any such Municipal borough or municipal district, if
such land does not exceed an economic holding and the
total annual income of the landlord including the rent of
such land does not exceed Rs. 1,500 and such land is not
held under a permanent tenancy.
(5) A person eligible to the exemption as provided in the
proviso to sub-section (4), shall make an application
before the 1st day of July 1961 to the Mamlatdar for a
certificate as provided in section 88C, and the provisions
of sub-sections (2) to (4) of that section shall apply thereto
as if the application had been made under section 88C.
(6) The provisions of sections 32S, 32T and 32U
shall mutatis mutandis apply to the termination of tenancy
of such land by a landlord holding a certificate under subsection
(5) and purchase of such land by the tenant thereof
as if such landlord were a certified landlord and such
tenant were an excluded tenant within the meaning of
those sections.
32A. Tenants deemed to have purchased up to ceiling
area:- A tenant shall be deemed to have purchased land
under section 32 –
(1) in the case of a tenant who does not hold any land as
owner but holds land as tenant in excess of the ceiling
area, up to the ceiling area;
(2) in the case of a tenant who holds land as owner below
the ceiling area, such part of the land only as will raise his
holding to the extent of the ceiling area.
32B. When tenants not deemed to have purchased
lands:- If a tenant holds land partly as owner and partly
as tenant but the area of the land held as owner is equal to
or exceeds the ceiling area, he shall not be deemed to have
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
16
purchased the land held by him as a tenant under section
32.
32F. Right of tenant to purchase where landlord is
minor etc. –
(1) Notwithstanding anything contained in the preceding
sections,-
(a) where the landlord is a minor or a
widow, or a person subject to any mental
or physical disability the tenant shall
have the right to purchase such land
under section 32 within one year from
the expiry of the period during which
such landlord is entitled to terminate the
tenancy under section 31:
Provided that were a person of such category is a
member of a joint family, the provisions of this subsection
shall not apply if at least one member of the joint
family is outside the categories mentioned in this subsection
unless before the 31st day of March 1958 the share
of such person in the joint family has been separated by
metes and bounds and the Mamlatdar on inquiry is
satisfied that the share of such person in the land is
separated, having regard to the area, assessment,
classification and value of the land, in the same
proportion, as the share of that person in the entire joint
family property, and not in a larger proportion.
(b) where the tenant is a minor, or a widow
or a person subject to any mental or
physical disability or a serving member
of the armed forces, then subject to the
provisions of clause (a), the right to
purchase land under section 32 may be
exercised-
(i) by the minor within one year from
the date on which he attains
majority;
(ii) by the successor-in-title of the
widow within one year from the
date on which her interest in the
land ceases to exist;
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
17
(iii) within one year from the date on
which the mental or physical
disability of the tenant ceases to
exist;
(iv) within one year from the date on
which the tenant ceases to be
serving member of the armed
forces;
Provided that where a person of such category is a
member of a joint family, the provisions of this subsection
shall not apply if at least one member of the joint
family is outside the categories mentioned in this subsection
unless before the 31st day of March, 1958 the
share of such person in the joint family has been separated
by metes and bounds and the Mamlatdar on inquiry is
satisfied that the share of such person in the land is
separated, having regard to the area, assessment,
classification and value of the land, in the same proportion
as the share of that person in the entire joint family
property, and not in a larger proportion.
(1A) On and after the date of commencement of the
Bombay Tenancy and Agricultural Lands (Gujarat
Amendment) Act, 1960 (Gujarat XVI of 1960) (hereinafter
referred to in this sub-section as "the said date"), every
tenant who has not exercised his right of purchase within
the period of one year within which it may be exercised
under sub-section (1) shall, if the said period has
commenced be deemed to have been purchased the land
on the said date, whether the period has expired or not;
and if the period has not commenced, he shall be deemed
to have purchased the land on the date on which the period
would have commenced but for the provisions of this subsection.
(2) The provisions of sections 32 to 32E (both inclusive)
and sections 32G, to 32R. (both inclusive), shall, so far as
may be applicable, apply to such purchase.
32H. Purchase price and its maxima:-
(1) Subject to the additions and deductions as provided in
sub-sections (1A) and 1(B), the purchase price shall be
reckoned as follows, namely:–
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
18
(i) in the case of a permanent tenant who is
cultivating the land personally the purchase
price shall be the aggregate of the following
amounts, that is to say,–
(a) an amount equal to six times the
rent of the land;
(b) the amount of the arrears of rent,
if any, lawfully due on the tillers’
day or the postponed date;
(c) the amounts, if any, paid by or
recovered from the landlord as
land revenue and cesses referred
to in clauses (a), (b), (c) and (d)
of sub-section (1) of section
10A, in the event of the failure
on the part of the tenant to pay
the same;
(ii) in the case of other tenants, the purchase
price shall be the aggregate of the following
amounts, that is to say:–
(a) such amount as the Tribunal may
determine not being less than 20
times the assessment and not
more than 200 times the
assessment.
(b) the value of any structures, wells
and embankments constructed
and other permanent fixtures
made and trees planted by the
landlord on the land;
(c) the amount of the arrears of rent,
if any, lawfully due on the tillers’
day or the postponed date;
(d) the amounts, if any, paid by or
recovered from the landlord as
land revenue and other cesses
referred to in clauses (a), (b), (c)
and (d) of sub-section (1) of
section 10A, in the event of the
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
19
failure on the part of the tenant
to pay the same.
Explanation 1.– For the purposes of calculating the price
under this subsection, the amount of water rate, if any,
levied under section 55 of the Bombay Land Revenue
Code, 1879, and included in such assessment, shall be
excluded.
Explanation 2.– For the purposes of this sub-section, the
expression "assessment" shall have the meaning assigned
to it in section 8.
(1A) Where a tenant to whom sub-sections (1) and (2) of
section 10A do not apply, has, after the commencement of
the Bombay Tenancy and Agricultural Lands
(Amendment) Act, 1955, paid in respect of the land held
by him as tenant land revenue and other cesses referred to
in sub-section (1) of that section, on account of the failure
of the landlord to pay the same, a sum equal to the total
amount so paid by the tenant until the date of the
determination of the purchase price shall be deducted from
the aggregate of the amounts determined under subsection
(1).
(1B) (a) On the amount arrived at in accordance with the
provisions of sub-sections (1) and (1A), there shall be
calculated interest at 4½ per cent. per annum for the period
between the date on which the tenant is deemed to have
purchased the land under section 32 and the date of the
determination of the purchase price.
(b) (i) The amount of interest so calculated shall be
added to, and
(ii) the amount of rent, if any, paid by the tenant
to the landlord and the value of any products
of trees planted by the landlord if such
products are removed by the landlord during
the said period shall be deducted from, the
amount so arrived at.
(2) The State Government may, by general or special
order, fix different minima and maxima for the purpose of
sub-clause (a) of clause (ii) of sub-section (1) in respect of
any kind of land held by tenants in any backward area. In
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
20
fixing such minima and maxima, the State Government
shall have regard to the rent payable for the land and the
factors specified in sub-section (3) of Section 63A.
32I. Sub-tenant of permanent tenant to be deemed to
have purchased land. –
(1) Where a permanent tenant has sub-let the land held by
him, the sub-tenant shall, to the extent and subject to the
conditions specified in sections 32 to 32E (both inclusive),
be deemed to have purchased the land on the tillers' day.
(2) The purchase price thereof shall be determined in the
manner provided in clause (ii) of sub-section (1) of section
32H.
(3) Out of the purchase price of the payable by such subtenant
the amount equal to six times the rent shall, in lump
sum, be payable to the owner and the balance shall be paid
to the permanent tenant.
(4) The provisions of sections 32 to 32H (both inclusive)
and sections 32J to 32R (both inclusive), in so far as they
may be applicable, shall apply to the purchase of the land
by such sub-tenant and the payment to be made, to and on
behalf, of the permanent tenant.
32O3. Right of tenant whose tenancy is created after
tillers’ day to purchase land. –
(1) In respect of any tenancy created after the tillers' day
notwithstanding any agreement or usage to the contrary, a
tenant cultivating personally shall be deemed to have
purchased on the date of expiry of one year from the
commencement of such tenancy from the landlord the
land held by him or such part thereof as will raise the
holding of the tenant to the ceiling area.
(2) The provisions of sections 32 to 32N (both inclusive)
and of sections 32P, 32Q and 32R in so far as they may be
applicable shall apply to the purchase of the land by a
tenant under sub-section (1).
32P. Power of Collector to resume and dispose of land
not purchased by tenant and appeal against Collector's
order: -
3 Section 32O was deleted by Guj. Act No.10 of 2009
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
21
(1) Where the purchase of any land by tenant under
section 32 becomes ineffective under the foregoing
provisions of this sub-chapter or where the tenant fails to
exercise the right to purchase land under section 43-1D
within the period specified in that section the Collector
may suo motu or on an application made in this behalf and
after holding a formal inquiry direct that the land shall be
disposed of in the manner provided in sub-section (2).
(2) Such direction shall, subject to the provisions of subsections
(2AA) and (2A) provide
(a) that the tenancy in respect of the shall be
terminated and the tenant be summarily
evicted:
(b) Clause (b) deleted by Guj. Act No.5 of
1973
(c) that the entire land or such portion
thereof, as the case may be,
notwithstanding that it is a
fragment, shall subject to the terms and
conditions as may be specified in the
direction be disposed of by sale to
person in the following order of priority
(hereinafter called "the priority list") :-
and conditions as may be specified in the direction be
disposed of by sale to person in the following order of
priority (hereinafter called "the priority list"):-
(a-i) the tenant whose tenancy in respect of
that land is terminated if such tenant is willing
to accept the offer of sale, provided the
occasion for the issue of such direction has not
arisen by reason of an act of collusion between
such tenant and the landlord
(i) a co-operative farming society, the
members of which are agricultural
labourers, landless persons or small
holders or a combination of such
persons;
(ii) agricultural labourers;
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
22
(iii) landless persons;
(iv) small holders;
(v) a co-operative farming society of
agriculturists (other than small
holders) who hold either as owner or
tenant or partly as owner and partly as
tenant, land less in area than an
economic holding and who are
artisans:
(vi) an agriculturist (other than a small
holder) who holds either as owner or
tenant or partly owner and partly as
tenant, land les in area than an
economic holding and who is an
artisan;
(vii) an other co-operative farming
society;
(viii) any agriculturist who holds either as
owner or tenant or partly as owner
and partly as tenant land larger in area
than an economic holding but less in
area than the ceiling area;
(ix) any person not being an agriculturist,
who intends to take to the profession
of agriculture:
Provided that the State Government may, by
notification in the Official Gazette, give, in relation to
such local areas as it may specify, such priority in the
above order as it thinks fit to any class of persons who, by
reason of the acquisition of their land for any development
project approved for the purpose by the State Government,
have been displaced, and require to be re-settled;
Provided further that-
(a) where there are two or more co-operative
farming societies falling under item, (i), (v)
or (vii), preference amongst them shall be
given in the following order, namely:-
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
23
(1) a co-operative farming society each of the
members of which belongs to a Scheduled
Tribe;
(2) a co-operative farming society the
membership of which is held partly by persons
belonging to a Schedule Tribal and partly by
persons belonging to a Schedule Caste;
(3) a co-operative farming society each of the
members of which belongs to a Scheduled
caste;
(4) a co-operative farming society the
membership of which is not solely held by
persons belonging to a Schedule Tribe or
Schedule Caste;
(b) in the case of persons falling under items
(ii), (iii) and (iv) preference shall be given
in the following order, namely:-
(1) a person belonging to a Schedule Tribe;
(2) a person belonging to a Schedule Caste;
(3) other persons
(2AA) Where in any case the direction under sub-section
(2) provides that the land in respect of which the tenancy
is terminated shall be disposed of by sale to the tenant
referred to in sub-clause (a-I) of clause (c) of sub-section
(2), the tenant shall be liable to be evicted only if the land
or, as the case may be, the portion thereof could not be
disposed of by sale to him.
(2A) Where the tenancy in respect of any land is
terminated under clause (a) of sub-section (2) but the
tenant of such land is a co-operative farming society of the
type referred to in sub-clause (i) of clause (c) of subsection
(2), the direction under sub-section, the direction
under sub-section (2) shall further provide-
(i) that the entire land or such portion thereof, as
the case may be, shall be disposed of by sale to
the co-operative farming society which was
the tenant of the land or as the case may be,
portion thereof immediately before the
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
24
termination of the tenancy under clause (a) of
sub-section (2).
Provided that the total acreage of the land to be so
disposed of shall not exceed an area arrived at by
multiplying the ceiling area by the total number of the
members of the co-operative farming society;
(ii) that on the termination of the tenancy under
clause (a) of sub-section (2), the co-operative
farming society shall be liable to be evicted
only from such portion of the land as could not
be disposed of by sale to it under a direction
issued under sub-section (2).
(3) [Omitted by Gujarat Act No.5 of 1973]
(4) Where the land or portion thereof is offered for
sale under sub-section (2) but no person comes forward to
purchase such land or portion, such land or portion, as the
case may be, shall vest in the State Government and the
Collector shall determine the price of such land or portion
in accordance with the provisions of section 63A and the
amount of the price so determined shall, subject to the
provisions of section 32Q, be paid to the owner thereof.
(5) Where any land is sold under sub-section (2), the
Collector shall determine the price of the land in
accordance with the provisions of section 63A and the
price so determined shall be payable by annual instalments
not exceeding six with simple interest at the rate of 4½ per
cent, per annum as the Collector may determine and the
price of the land recovered from the purchaser shall,
subject to the provisions of section 32Q, be paid to the
owner thereof.
(6) On the payment of the last instalment of the price,
together with the interest due, the Collector shall issue a
certificate of purchase in the prescribed form to the
purchaser in respect of the land. Such certificate shall be
conclusive evidence of purchase.
(7) (a) Where before the specified date, any land has been
surrendered to a landlord under sub-section (2) of this
section as in force immediately before such date; and the
landlord has taken possession of the land, the landlord
shall be liable to cultivate the land personally and shall be
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
25
entitled to the use and occupation of the land so long as he
cultivates the land personally.
(b) If he fails to so cultivate the land he shall be
evicted from the land and the land shall be disposed of in
accordance with the provisions of section 84C.
(8) No land of the description referred to in sub-section
(7) shall be transferred by sale, gift, exchange, mortgage,
lease, or assignment or partitioned without the previous
sanction of the Collector and except on payment of such
amount as the State Government may by general or special
order determine.
(9) Any person aggrieved by any order made by the
Collector under the foregoing provisions of this section
may appeal to the State Government against such order.
(10) The State Government shall after giving an
opportunity to the parties to be heard, decide the appeal.
(11) The order of the Collector, subject to such appeal and
decision of the State Government on appeal, shall be final.
32PP. Further opportunity to tenant to purchase land.-
(1) Notwithstanding anything contained in section 32G
and 32P where before the date of the coming into force of
the Bombay Tenancy and Agricultural Lands (Gujarat
Amendment) Act, 1965 (Guj. 36 of 1965), (hereinafter
referred to in this section as "the said date")–
(i) any land has been at the disposal of the
Collector under section 32P on account
of the purchase of the land by the tenant
thereof having become ineffective under
sub-section (3) of section 32G by reason
of the tenant failing to appear before the
Tribunal or making a statement
expressing his unwillingness to purchase
the land, and
(ii) the land so at the disposal of the
Collector has not been disposed of in the
manner provided in sub-section (2) of
section 32P.
the tenant, if he is willing to purchase the land may an
application in writing to the Tribunal within a period of
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
26
one year from the said date for a declaration that the
purchase has not become ineffective.
(1A) Notwithstanding the expiry of the period specified in
sub-section (1), the right conferred under that sub-section,
may be exercised as if in that sub-section, for the words,
brackets and figures "the Bombay Tenancy and
Agricultural Lands (Gujarat Amendment) Act, 1965" (Guj.
36 of 1965), the words, brackets and figures "the Bombay
Tenancy and Agricultural Lands (Gujarat Amendment)
Act, 1970" were substituted.
(1B) Where an application for a declaration that the
purchase has not become ineffective made by a tenant
under sub-section (1) before the commencement of the
Bombay Tenancy and Agricultural Lands (Gujarat
Amendment) Act, 1970 (Guj. 2 of 1971), was not admitted
by the Tribunal on the ground that the period for making it
had expired, such tenant shall also be entitled to exercise
the right conferred under sub-section (1) by making an
application within the period specified in that sub-section
(1) by making an application from any such tenant the
Tribunal shall admit it as if it were an application made
within such specified period.
(1C) Notwithstanding the expiry of the period specified in
sub-section (1) read with sub-section (1A), the right
conferred under sub-section (1) may be exercised.
(a) by a tenant at any time before two
months after the commencement of the
Bombay Tenancy and Agricultural Lands
(Gujarat Amendment) Act, 1981 (Guj.13
of 1981); or
(b) by a specified tenant at any time before
the date specified under clause (b) of
sub-section (5) of section 32M.
(1D) Where an application for a declaration that the
purchase has not become ineffective made by a tenant
under sub-section (1) before the specified date was not
admitted by the Tribunal on the ground that the period for
making it had expired.
(a) such tenant shall also be entitled to
exercise the right conferred under subsection
(1) by making an application at
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
27
any time before two months after the
commencement of the Bombay Tenancy
and Agricultural Lands (Gujarat
Amendment) Act, 1981 (Guj. 13 of
1981); or
(b) such tenant being a specified tenant shall
also be entitled to exercise the right
conferred in sub-section (1) by making
an application at any time before the date
specified under clause (b) of sub-section
(5) of section 32M
and on receipt of an application from any such tenant or
specified tenant the Tribunal shall admit it as if it were an
application made within the period specified for making it.
(2) On receipt of an application under sub-section (1) the
Tribunal shall issue a notice to the tenant and the landlord
calling upon them to appear before it on the date specified
in the notice.
(3) If the tenant appears and makes a statement that he is
willing to purchase the land, the land shall cease to be at
the disposal of the Collector under section 32P and the
Tribunal shall determine the purchase price of the land in
the manner provided in section 32G as if the purchase had
not been ineffective.
(4) The provisions of section 32 to 32P and sections 32-Q
and 32R shall so far as may be applicable apply to the
purchase of the land by a tenant under this section.
(5) In the case of land to which this section applies no
action shall be taken under section 32P unless the tenant
entitled to make an application under this section fails to
make such application within the period specified in subsection
(1).
Explanation.—Notwithstanding anything contained in
any judgment, decree or order of any court, tribunal or
other authority, for the purpose of clause (ii) of sub-section
(1), the land shall not be deemed to have been disposed of
till the person entitled to take possession of the land in
pursuance of any direction the person entitled to take
possession of the land in pursuance of any direction issued
under sub-section (2) of section 32P takes actual
possession of such land in accordance with law.
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
28
32PPP. Further opportunity to purchase land to
tenants whose purchase become ineffective after
commencement of Guj.36 of 1965.-
(1) Notwithstanding anything contained in sections 32G
and 32P where on or after the date of the coming into force
of the Bombay Tenancy and Agricultural Lands (Gujarat
Amendment) Act, 1965 (Guj. 36 of 1965),—
(i) any land has been at the disposal of the
Collector under section 32P on account
of the purchase of the land by the tenant
thereof having become ineffective under
sub-section (2) of section-32G by reason
of the tenant failing to appear before the
Tribunal or making a statement
expressing his unwillingness to purchase
the land, and
(ii) the land so at the disposal of the
Collector has not been disposed of in the
manner provided in sub-section (2) of
section 32P—
(a) the tenant, if he is willing to
purchase the land may make an
application in writing to the
Tribunal before two months after
the commencement of the Bombay
Tenancy and Agricultural Lands
(Gujarat Amendment) Act, 1981;
or
(b) the tenant, if he is a specified
tenant and is willing to purchase
the land, may make an application
in writing to the Tribunal before
the data specified under clause (b)
of sub-section (5) of section 32M
for a declaration that the purchase has not been ineffective.
(2) On receipt of an application under sub-section (1) the
Tribunal shall issue a notice to the tenant and the landlord
calling upon them to appear before it on the date specified
in the notice.
(3) If the tenant appears and makes a statement that he is
willing to purchase the land, the land shall cease to be at
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
29
the disposal of the Collector under section 32P and the
Tribunal shall determine the purchase price of the land in
the manner provided in section 32G as if the purchase has
not been ineffective.
(4) The provisions of sections 32 to 32P and sections 32Q
and 32R shall so far as may be applicable apply to the
purchase of the land by a tenant under this section.
(5) In the case of land to which this section applies no
action shall be taken under section 32P unless the tenant
entitled to make an application under this section fails to
make such application within the period specified in subsection
(1).
Explanation.—Notwithstanding anything contained
in any judgement, decree or order of any court, tribunal or
other authority for the purpose of clause (ii) of sub-section
(1), the land shall not be deemed to have been disposed of
till the person entitled to take possession of the land in
pursuance of any direction issued under sub-section (2) of
section 32P takes actual possession of such land in
accordance with law.
32QQ. Deposit or payment of purchase price by State
Government on behalf of specified tenant.-
(1) (a) Where a specified tenant permitted under clause
(b) of subsection (5) of section 32M to deposit with the
Tribunal at any time before the date specified under clause
(b) of sub-section (5) of section 32M the entire amount of
the price of the land or, as the case may be, the unpaid
portion of the price, together with the interest, as specified
in sub-section (3) and (4) of section 32M, has failed to
deposit with the Tribunal such amount before the date of
the commencement of the Bombay Tenancy and
Agricultural Lands (Gujarat Second Amendment)
Ordinance, 1986 (Guj. Ord. 14 of 1986), (hereinafter
referred to as "the said date"), the State Government shall,
notwithstanding the expiry of the period specified in
clause (b) of sub-section (5) of section 32M, deposit on
behalf of such specified tenant, with the Tribunal within a
period of twelve months from the said date such amount,
and on depositing such amount with the Tribunal, the
purchase of land shall be deemed not to have become
ineffective and the Tribunal shall issue a certificate of
purchase to the specified tenant under sub-section (1) of
section 32M.
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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
30
(b) Where a specified tenant permitted under clause
(b) of sub-section (1C) or clause (b) of sub-section (1D) of
section 32PP or under sub-clause (b) of clause (ii) of subsection
(1) of section 32PPP to make at any time before
the date specified under clause (b) of sub-section (5) of
section 32M an application under sub-section (1) of
section 32PP for a declaration that purchase has not
become ineffective, fails to make such application before
the date specified under clause (b) of sub-section (5) of
Section 32M, and the Collector directs under sub-section
(2) of section 32P that the land in respect of which the
tenancy is terminated shall be disposed of by sale to the
specified tenant who is a tenant referred to in sub-clause
(a-i) of clause (c) of the said sub-section (2) and the land is
disposed of by sale to such specified tenant, the Collector
shall issue a certificate of purchase in the form prescribed
under sub-section (1) of section 32M to such specified
tenant who shall be liable to pay to the Collector the price
of such land determined by the Collector under subsection
(5) of section 32P.
(2) The amount deposited with the Tribunal under clause
(a) of sub-section (1) or, as the case may be, the amount of
price of land which the specified tenant is liable to pay to
the Collector under clause (b) of sub-section (1)shall be
deemed to be the amount of loan granted to the specified
tenant by the State Government on such terms and
conditions as may be prescribed and the amount of loan
and interest or any portion thereof shall be recoverable
from such specified tenant as arrears of land revenue.
32R. Purchaser to be evicted if he fails to cultivate
personally:- If at any time after the purchase of the land
under any of the foregoing provisions, the purchaser fails
to cultivate the land personally, he shall unless the
Collector condones such failure for sufficient reasons, be
evicted and the land shall be disposed of in accordance
with the provisions of section 84C.
32U. Tenants of lands mentioned in section 88C to be
deemed to have purchased land and other incidental
provisions. - (1) Notwithstanding anything contained in
sub-section (1) of section 88C, but subject to the
provisions of this section every excluded tenant holding
land from a certified landlord shall, except as otherwise
provided in sub-section (3), be deemed to have purchased
from the landlord on the first day of April 1962, free from
all encumbrances subsisting thereon on the said day, the
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
31
land hold by him as tenant, if such land is cultivated by
him personally; and
(i) the landlord has not given notice of
termination of tenancy in accordance
with sub-section (3) of section 32T, or
(ii) the landlord has given such notice but
has not made an application thereafter
under section 29 for possession as
required by the said sub-section (3), or
(iii) the landlord not being a person of any of
the categories specified in sub-section
(4) of section 32T has not terminated the
tenancy on any of the grounds specified
in section 14 or has so terminated the
tenancy but has not applied to the
Mamlatdar on or before the 31st day of
March 1962 under section 29 for
possession of the land;
Provided that where the landlord has made such
application for possession but it is rejected by the
Mamlatdar or in appeal by the Collector or in revision by
the Gujarat Revenue Tribunal under the provisions of this
Act the tenant shall be deemed to have purchased the land
on the date on which the final order of rejection is passed.
(2) (a) Where a tenant, on account of his eviction from
the land by the landlord, before the 1st April, 1962, is not
in possession of the land on the said date but has made or
makes an application for possession of the land under subsection
(1) of section 29 within the period specified in that
sub-section, then if the application is allowed by the
Mamlatdar, or as the case may be, in appeal by the
Collector or in revision by the Gujarat Revenue Tribunal,
he shall be deemed to have purchased the land on the date
on which the final order allowing the application is passed.
(b) Where such tenant has not made an application for
possession within the period specified in sub-section (1) of
section 29 or the application made by him is finally
rejected under this Act, and the land is held by any other
person as tenant on the expiry of the said period or on the
date of the final rejection of the application, such other
person shall be deemed to have purchased the land on the
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
32
date of the expiry of the said period or, as the case may be,
on the date of the final rejection of the application.
(3) Where the certified landlord being a person of any of
the categories specified in sub-section (4) of section 32T
has not given notice of termination of the tenancy of an
excluded tenant in accordance with sub-section (3) of that
section or has give such notice but has not made an
application thereafter under section 29 for possession as
required by the said sub-section (3) such excluded tenant
shall be deemed to have purchased the land held by him as
tenant on the expiry of the period specified in sub-section
(4) of section 32T:
Provided that where the tenancy is terminated and
application for possession is made in accordance with the
provisions of sub-section (4) of section 32T but the
application is rejected by the Mamlatdar or in appeal by
the Collector or in revision by the Gujarat Revenue
Tribunal, the tenant shall be deemed to have purchased the
land on the date on which the final order of rejection is
passed.
(4) The provisions of section 32 to 32R shall so far as may
be applicable apply to the purchase of land under this
section by an excluded tenant.
33. Right of tenants to exchange land. –
(1) Notwithstanding anything contained in this Act or any
other law or any agreement or usage, the tenants holding
lands as such tenants may agree and may make an
application to the Mamlatdar in the prescribed form for the
exchange of their tenancies in respect of the lands held by
them as tenants.
(2) On receipt of the application, the Mamlatdar after
giving notice to the landlords concerned and after making
an inquiry may sanction the exchange on such terms and
conditions as may be prescribed and may issue certificate
in the prescribed form to the applications.
(3) The certificate so issued shall be conclusive of the
fact of such exchange against the landlords and all persons
interested in the lands exchanged
(4) Each of the two tenants shall on exchange hold the
land on same terms and conditions on which it was held
by the original tenant immediately before the exchange
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
33
subject to such modifications as may have been sanctioned
by the Mamlatdar.
63A. Reasonable price of land for the purpose of its
sale and purchase.-
(1) Except as otherwise expressly provided in this Act, the
price of any land sold or purchased under the provisions of
this Act shall consist of the following amounts, namely :–
(a) an amount not being less than 20 times
the assessment levied or leviable in
respect of the land and not being more
than 200 times such assessment
excluding, however, for the purpose of
calculation, the amount of water rate, if
any, levied under section 55 of the
Bombay Land Revenue Code, 1879
(Bom. V of 1879), and included in such
assessment;
(b) the value of any structures, wells and
embankments constructed, permanent
fixtures made and trees planted on the
land.
(2) Where under the provisions of this Act any land is sold
or purchased by mutual agreement, such agreement shall
be registered before the Mamlatdar, and the price of the
land shall, subject to the limits specified in sub-section (1),
be such as may be mutually agreed upon by the parties. In
the case of disagreement between the parties, the price
shall be determined by the Tribunal having regard to the
factors mentioned in this section.
(3) Where in the case of a sale or purchase of any land
under this Act, the Tribunal or the Mamlatdar has to fix the
price of such land under this Act, the Tribunal or the
Mamlatdar, as the case may be, shall, subject to the
quantum specified in sub-section (1), fix the price having
regard to the following factors,
(a) the rental values of lands used for similar
purposes in the locality;
(b) the structures and wells constructed and
permanent fixtures made and trees
planted, on the land by the landlord or
tenant;
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
34
(c) the profits of agriculture of similar lands in the
locality;
(d) the prices of crops and commodities in the
locality;
(e) the improvements made in the land by the
landlord or the tenant;
(f) the assessment payable in respect of the land;
(g) such other factors as may be prescribed;
Explanation.– For the purposes of this section the
expression "assessment" shall have the meaning assigned
to it in section 8.
64. Sale of agricultural land to particular person. –
(1) Where a landlord intends to sell any land, he shall
apply to the Tribunal for determining the reasonable price
thereof. The Tribunal shall thereupon determine
reasonable price of the land in accordance with the
provisions of section 63A. The Tribunal shall also direct
that the price shall be payable either in lump sum, or in
annual instalments not exceeding six carrying simple
interest at 4½ per cent per annum:
Provided that in the case of sale of the land in favour
of a permanent tenant when he is in possession thereof, the
price shall be at six times the annual rent.
(2) After the Tribunal has determined the reasonable price,
the landlord shall simultaneously in the prescribed manner
make a offer:-
(a) in the case of agricultural land-
(i) to the tenant in actual
possession thereof,
notwithstanding the fact that
such land is a fragment, and
(ii) to all persons and bodies
mentioned in the propriety
list;
(b) in the case of a dwelling house, or a site
of a dwelling house or land appurtenant
to such house when such dwelling house,
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
35
side or land is not used or is not
necessary to carry on agricultural
operations in the adjoining lands-
(i) to the tenant thereof:
(ii) to the person residing in the
village who is not in possession
of any dwelling house;
Provided that if there are more than one such person the
offer shall be made to such person or persons and in such
order of priority as the Collector may determine in this
behalf having regard to the needs of the following persons,
namely:-
(i) an agricultural labourer,
(ii) an artisan,
(iii) a person carrying on an allied pursuit,
(iv) any other person in the village.
(3) The persons to whom such offers are made shall
intimate to the landlord within one month from the date of
receipt of the offer whether they are willing to purchase
the land at the price fixed by the Tribunal.
(4) (a) If only one person intimates to the landlord under
sub-section (3) his willingness to accept the offer made to
him by the landlord under sub-section (2), the landlord
shall call upon such person by a notice in writing in the
prescribed form to pay him the amount of the reasonable
price determined by the Tribunal or to deposit the same
with Tribunal within one month or such further period as
the landlord may consider reasonable from the date of
receipt of the notice by such person.
(b) If more than one person intimates to the landlord
under sub-section (3) their willingness to accept the offers
made to them by the landlord under sub-section (2), the
landlord shall call upon by a notice in writing in the
prescribed form and the person having the highest priority
in the order of priority given in sub-section (2) to pay him
the amount of the reasonable price determined by the
Tribunal or to deposit the same with Tribunal within one
month or such further period as the landlord may consider
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
36
reasonable from the date of receipt of the notice by such
person.
(5) If the person to whom a notice is given by the landlord
under sub-section (4) fails to pay the amount of the
reasonable price to the landlord or to deposit the same
with the Tribunal within the period referred to in subsection
(4) such person shall be deemed to be not willing
to purchase the land and the landlord shall call upon in the
manner provided in sub-section (4) the person who stands
next highest in the order of priority and who has intimated
his willingness to the landlord under sub-section (3).
(6) If any dispute arises under this section regarding-
(a) the offer made by the landlord under subsection
(2), or
(b) the notice given by the landlord under subsection
(4) or (5), or
(c) the payment or deposit of the reasonable
price, or
(d) the execution of the sale deed, such dispute
shall be decided by the Tribunal.
(7) (a) Notwithstanding anything contained in the
foregoing provisions of this section a landlord may after
obtaining the previous permission of the Tribunal as
provided in the next succeeding clause (b) sell any land
notwithstanding the fact that such land is a fragment to the
tenant in actual possession thereof at a price mutually
agreed upon between him and the tenant subject to the
provisions of section 63A.
(b) The landlord shall make an application in writing
to the Tribunal for permission to sell the land at such price.
On receipt of the application, the Tribunal shall grant the
permission if, on holding an inquiry, it is satisfied that the
price has been agreed to voluntarily by the tenant.
(8) Any sale made in contravention of this section shall be
invalid.
(9) If a tenant refuses or fails to purchase the land or a
dwelling house offered to him under this section, and the
land or the dwelling house, as the case may be, is sold to
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
37
any other person under this section, the landlord shall be
entitled to evict such tenant and put the purchaser in
possession.
84C. Disposal of land, transfer or acquisition of which
is invalid.-
(1) Where in respect of the transfer or acquisition of any
land made on or after the commencement of the Amending
Act, 1955, the Mamlatdar suo motu or on the application
of any person interested in such land has reason to believe
that such transfer or acquisition is or becomes invalid
under any of the provisions of this Act, the Mamlatdar
shall issue a notice and hold any inquiry as provided for in
section 84B and decide whether the transfer or acquisition
is or is not invalid.
(2) If after holding such inquiry, the Mamlatdar comes to a
conclusion that the transfer or acquisition of land to be
invalid, he shall make an order declaring the transfer or
acquisition to be invalid, unless the parties to such transfer
or acquisition give an undertaking in writing that within a
period of three months from such date as the Mamlatdar
may fix, they shall restore the land alongwith the rights
and interest therein to the position in which it was
immediately before the transfer or acquisition, and the
land is so restored within that period:
Provided that where the transfer of land was made by
the landlord to the tenant of the land and the area of the
land so transferred together with the area of other land, if
any, cultivated personally by the tenant did not exceed the
ceiling area, the Mamlatdar shall not declare such transfer
to be invalid-
(i) if the amount received by the landlord as the
price of the land is equal to or less than the
reasonable price determined undersection 63A
and the transferee pays to the State
Government a penalty equal to Re.1 within
such period not exceeding three months as the
Mamlatdar may fix;
(ii) if the amount received by the landlord as the
price of the land is in excess of the reasonable
price determined under section 63A and the
transferor as well as the transferee pays to the
State Government each a penalty equal to oneCivil
Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
38
tenth of the reasonable price within such
period as may be fixed by the Mamlatdar.
(3) On the declaration made by the Mamlatdar under subsection
(2),—
(a) the land shall be deemed to vest in the State
Government, free from all encumbrances
lawfully subsisting thereon on the date of such
vesting and shall be disposed of in the manner
provided in sub-section (4); the encumbrances
shall be paid out of the occupancy price in the
manner provided in section 32Q for the
payment of encumbrances out of the purchase
price of the sale of land but the right of the
holder of such encumbrances to proceed
against the person liable, for the enforcement
of his right in any other manner, shall not be
affected;
(b) the amount which was received by transferor
as the price of the land shall be deemed to
have been forfeited to the State Government
and it shall be recoverable as an arrear of land
revenue; and
(c) the Mamlatdar shall, in accordance with the
provisions of section 63A determine the
reasonable price of the land.
(4) After determining the reasonable price, the Mamlatdar
shall grant the land on new and impartible tenure and on
payment of occupancy price equal to the reasonable price
determined under sub-section (3) in the prescribed manner
in the following order of priority:—
(i) the tenant in actual possession of the land;
(ii) the persons or bodies in the order given in the
priority list:
Provided that where the transfer of land was made by the
landlord to the tenant of the land and area of the land so
transferred together with the area of the land, if any,
cultivated personally by the tenant did not exceed the
ceiling area then—
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
39
(i) if the amount received by the transferor as the
price of the land is equal to or less than the
reasonable price, the amount forfeited under
sub-section (3) shall be returned to the
transferor and the land restored to the
transferee on payment of a penalty of rupee
one in each case; and
(ii) if the amount received by the transferor as the
price of the land is in excess of the reasonable
price, the Mamlatdar shall grant the land to
the transferee on new and impartible tenure
and on payment of occupancy price equal to
one-tenth of the reasonable price and out of
the amount forfeited under sub-section (3), the
transferor shall be paid back an amount equal
to nine-tenths of the reasonable price.
(5) The amount of the occupancy price realised under subsection
(4) shall subject to the payment as aforesaid of any
encumbrances subsisting on the land, be credited to the
State Government:
Provided that where the acquisition of any excess
land was on account of a gift or bequest, the amount of the
occupancy price realised under sub-section (4) in respect
of such land shall, subject to the payment of any
encumbrances subsisting thereon, be paid to the done or
legatee in whose possession the land had passed on
account of such acquisition.
Explanation.—For any purposes of this section "new
and impartible tenure" means the tenure of occupancy
which is non-transferable and non-partible without the
previous sanction of the Collector.
88B. Exemption from certain provisions to and of local
authorizes, universities and trusts.-
(1) Nothing in the foregoing provisions, except sections 3,
4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the
provisions of Chapters VI and VIII in so far as the
provisions of the said Chapters are applicable to any of the
matters referred to in the sections mentioned above, shall
apply—
(a) to lands held or leased by a University
established by law in the [Bombay area of the
state of Gujarat; and
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
40
(b) to lands which are the property of a trust for an
educational purpose a hospital, Punjarapol. or
Gaushala;
(c) to lands assigned or donated by any person
before the 1st day of August, 1956, for the
purpose of rendering any of the following
services useful to the community, namely:—
maintenance of water works, lighting or filling of water
throughs for cattle:
Provided that —
(i) such trust is or is deemed to be registered
under the Bombay Public Trusts Act, 1950
(Bom. XXIX of 1950), and
(ii) the entire income of such land is appropriated
for the purposes of such trust.
(2) For the purposes of this section a certificate granted by
the Collector, after holding an inquiry, that the conditions
in the proviso to sub-section (1) are satisfied by any trust
shall be conclusive evidence in that behalf.
(3) Notwithstanding anything contained in sub-section (1),
nothing in the foregoing provisions of this Act shall apply
to lands leased for cultivation with the help of sewage,
whether before or after the commencement of the
Amending Act, 1955 by a local authority in discharge of
its duties and functions relating to the establishment and
maintenance of a farm for the disposal of sewage under
the law under which such local authority is constituted.
88E. Cessor of exemption in respect of certain public
trust lands. –
(1) Notwithstanding anything contained in section 88B,
with effect on and from the specified date, lands which are
the property of an institution for public religious worship
shall cease to be exempted from those provisions of the
Act except sections 31 to 31D (both inclusive) from which
they were exempted under section 88B and all certificates
granted under that section in respect of such lands shall
stand revoked.
(2) Where any such land ceases to be so exempted, then in
the case of a tenancy subsisting immediately before the
specified date the tenant shall be deemed to have
purchased the land on the specified date and the provisions
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
41
of sections 32 to 32R (both inclusive) shall so as far may
be applicable, apply.
Exemption. - In this section "specified date" means
the date of the commencement of the Gujarat Devasthan
Inams Abolition Act, 1969 (Gujarat 16 of 1969).”
5. The aforesaid provisions generally deal with the right of purchase
conferred upon a tenant and process to effectuate said right of purchase.
Following provisions, inter alia, deal with some of the incidents while
the relationship as a tenant is in operation including assignment on part
of the tenant:-
“14. Termination of tenancy for default of tenant :- (1)
Notwithstanding any law, agreement or usage or the
decree or order of a court, the tenancy of any land shall
not be terminated—
(a) unless the tenant—
(i) has failed to pay the rent for any revenue
year before the 31st day of May thereof;
(ii) has done any act which is destructive or
permanently injurious to the land;
(iii) has sub-divided, sub-let or assigned, the
land in contravention of section 27;
(iv) has failed to cultivate it personally; or
(v) has used such land for a purpose other than
agriculture or allied pursuits; and
(b) unless the landlord has given three months' notice in
writing informing the tenant of his decision to terminate
the tenancy and the ground for such termination, and
within that period the tenant has failed to remedy the
breach for which the tenancy is liable to be terminated.
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
42
(2) Nothing in sub-section (1) shall apply to the tenancy of
any land held by a permanent tenant unless by the
conditions of such tenancy the tenancy is liable to be
terminated on any of the grounds mentioned in the said
sub-section.
27. Sub-division, sub-letting and assignment
prohibited:- (1) Save as otherwise provided in section
32F no sub-division or sub-letting of the land held by a
tenant or assignment of any interest therein shall be valid:
Provided that nothing in this sub-section shall
prejudicially affect the rights of a permanent tenant:
Provided further that if the tenant dies:−
(i) if he is a member of a joint family, the
surviving members of the said family, and
(ii) if he is not a member of a joint family, his
heirs,
shall be entitled to partition and sub-divide the
land leased subject to the following
conditions:-
(a) each sharer shall hold his share as a
separate tenant.
(b) the rent payable in respect of the land
leased shall be apportioned among the
shares, as the case may be, according to
the share allotted to them.
(c) the area allotted to each sharer shall not
be less than the unit which the State
Government may, by general or special
order, specify in this behalf having
regard to the productive capacity and
other circumstances relevant to the full
and efficient use of the land for
agriculture.
(d) if such area is less than the unit referred
to in clause (c), the sharers shall be
entitled to enjoy the income jointly, but
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
43
the land shall not be divided by metes
and bounds.
(e) if any question arises regarding the
apportionment of the rent payable by the
sharers, it shall be decided by the
Mamlatdar, whose decision shall be
final.
(2) Notwithstanding anything contained in sub-section (1),
it shall be lawful for a tenant:-
(a) who is a widow, minor or a person subject to
any physical or mental disability, or a serving
member of the armed forces, to sub-let such
land held by her or him as a, tenant; or
(b) Who is a member of a co-operative farming
society and as such member to sub-let, assign
mortgage or to create a charge on his interest
in the land in favour of such society, or in
consideration of a loan advanced by any
person authorised under section 54 of the
Bombay Agricultural Debtors Relief Act,
1947.
(3) Notwithstanding anything contained in sub-section (1),
it shall also be lawful for a tenant to mortgage or create a
charge on his interest in the land in favour of the State
Government in consideration of a loan advanced to him by
the State Government under the Land Improvement Loans
Act, 1883, the Agriculturists, Loans Act, 1884, or the
Bombay Non-Agriculturists, Lands Act, 1928, or in favour
of a co-operative society in consideration of a loan
advanced to him by such co-operative society, and without
prejudice to any other remedy open to the State
Government or the co-operative society, as the case may
be, in the event of his making default in payment of such
loan in accordance with the terms on which such loan was
granted, it shall be lawful for the State Government or the
co-operative society, as the case may be, to cause his
interest in the land to be attached and sold and the
proceeds to be applied in payment of such loan.”
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
44
6. The facts leading to the filing of Appeal arising out of Special
Leave Petition (Civil) No.18525 of 2009, by way of illustration, are set
out in detail as under:-
a) Agricultural land bearing Survey No.102 admeasuring 0.88
hectares situated within the revenue limits of village
Gabheni, Taluka Chorayasi, District Surat (‘said land’ for
short) was in the cultivating possession of one Samubhai
Budhiabhai as tenant. As part of agrarian reforms and in
terms of the provisions of the Act conferring right of
statutory purchase upon the tiller of the land, Samubhai
became Deemed Purchaser as he was cultivating the land on
the tillers’ day.
b) Samubhai executed a registered Will on 24.01.1991 in
favour of Vinodchandra Sakarlal Kapadia, the Appellant
herein purporting to bequeath the said land to the Appellant.
Upon the demise of Samubhai on 02.02.1991, vide mutation
No.2141 certified on 20.06.1991, the name of the Appellant
came to be recorded in the revenue records as owner of the
said land.
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
45
c) The Revenue Authorities however found that the Appellant
was not an agriculturist and accordingly proceedings under
Section 84C of the Act were registered and notice was
issued to the Appellant. All the concerned parties appeared
in the proceedings and the legal heirs of deceased Samubhai
submitted that they had no objection if the land was given to
the Appellant in terms of the Will. After hearing the
Appellant, the Additional Mamlatdar by his order dated
04.03.1996 in Tenancy Case No. 78/95 found that the
disposal by way of a Will in favour of the Appellant was
invalid and contrary to the principles of Section 63 of the
Act and therefore declared that the said land vested in the
State without any encumbrances.
d) The order passed by the Additional Mamlatdar was affirmed
in Tenancy Appeal No.20/1996 by Deputy Collector, Land
Development, Surat, vide his order dated 15.07.1996. The
matter was carried further by way of Revision Application
No.TEN.B.S.94 of 1996 before Gujarat Revenue Tribunal.
Relying on certain decisions rendered by the High Court,
the Tribunal observed that disposal by way of a Will would
not amount to transfer and as such, it would not be hit by
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
46
Section 63 of the Act. The Tribunal thus allowed the
Revision and quashed the orders passed by the Additional
Mamlatdar and the Deputy Collector.
e) The State, being aggrieved, preferred Special Civil
Application No.25058 of 2006 in the High Court which
came up before a Single Judge of the High Court. Relying
on the decisions of this Court in Sangappa Kalyanappa
Bangi (Dead) through LRs. vs. Land Tribunal,
Jamkhandi and others4 and in Jayamma vs. Maria Bai
(Dead) by proposed LRs and another5, the Single Judge
referred the matter to the Division Bench of the High Court
for consideration.
7. Similar references were made in all other connected matters
raising identical issues, which were dealt with by the Division Bench of
the High Court in its judgment and order presently under Appeal.
8. The Division Bench considered the scope and ambit of Sections
43 and 63 of the Act as under:-
“We may, before examining the scope and ambit of
Section 43 and 63 of the Tenancy Act, examine the object
and purpose of the Tenancy Act. The Bombay Tenancy
Act was enacted with an avowed object of safeguarding
4 AIR 1998 SC 3229 = (1998) 7 SCC 294
5 AIR 2004 SCW 4412 = (2004) 7 SCC 459
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47
interest of the tenants who held the land for over a number
of years, on principle that the land tilled to the tillers of the
soil and also to preserve agricultural lands to safeguard
interest of the agriculturists. Object is also to improve the
economic and social conditions of peasants ensuring the
full and efficient use of land for agriculture, and to assume
management of estates held by landholders and to regulate
and impose restrictions on the transfer of agricultural
lands, dwelling houses, sites and lands appurtenant thereto
belonging to or occupied by agriculturists, agricultural
labourers and artisans. Chapters II and III of the Act deal
with tenancies in general and ‘protected tenants’ and their
special rights, and privileges, in particular. Legislature
also thought it necessary to confer on ‘protected tenants’
the right to purchase their holdings from their landlords, to
prevent uneconomic cultivation and to create and
encourage peasant proprietorship in respect of holdings of
suitable sizes. The Act is covered by Entry 18 in List II of
the Seventh Schedule to the Constitution of India and was
enacted for the protection of tenants and to organise
agriculture by maintaining agricultural lands so as to be in
tune with the directive principles of the State Policy.
Article 48 of the Constitution of India state that the State
shall endeavour to organize agriculture and animal
husbandry on modern and scientific lines, and shall, in
particular, take steps for preserving and improving the
breeds, and prohibiting the slaughter of cows, calves and
other milch and drought cattle. The necessity of meeting
agricultural production and to preserve agricultural land is
clearly discernible in the above constitutional provisions.
Further, by enacting clause (g) in Article 51(A),
Parliament has given the status of fundamental duties to
Article 48 and honoured the spirit and message of Article
48 as a fundamental duty of the citizens. The Bombay
Tenancy Act not only takes a positive step towards
achieving the goal of transferring the land tilled to the
tillers, but also wanted to preserve and protect agricultural
lands and for improving the economic and social
conditions of persons and to ensure the full and efficient
use of land for agriculture. Section 43, which appears in
Chapter III of the Tenancy Act, deals with special rights
and privileges of tenants and provisions for distribution of
land for personal cultivation. Section 63 appears in
Chapter V of the Tenancy Act deals with restrictions on
transfers of agricultural lands, management of
uncultivated lands and acquisition of estates and lands.”
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8.1 While dealing with the question whether the term ‘assignment’
used in Section 43 of the Act would include ‘testamentary disposition’, it
was observed by the Division Bench:-
“Section 43 of the Tenancy Act, however, uses word
‘assignment’. Word ‘assignment’ has been given statutory
meaning by the Apex Court while examining the scope of
Section 21 of the Karnataka Land Reforms Act in
Sangappa Kalyanappa Bangi4. In that case, one
Sangappa Bangi made an application under Section 45 of
the Karnataka Land Reforms Act, 1961 claiming
occupancy rights in respect of the land in question.
During the pendency of the proceedings, he made a Will
on 8.4.1975 bequeathing his tenancy rights in respect of
the land in favour of one Ameerjan who claims to be the
legal representative of the appellant-Sangappa who died
during pendency of the proceedings before the Tribunal.
She in turn executed another Will under which Husensab
is making a claim to the land through the said Sangappa.
Land Tribunal as well as Appellate Tribunal examined
whether rights to tenancy could have been the subject
matter of a bequest under a Will. Apex Court took the
view that assignment of any interest in the tenanted land
will not be valid. A devise or a bequest under a Will
cannot be stated to fall outside the scope of the said
provision inasmuch as such assignment disposes of or
deals with the lease. Apex Court also held that when there
is a disposition of rights under a Will though operates
posthumously is nevertheless recognition of the right of
the legatee thereunder as to his rights of the tenanted land.
In that event, there is an assignment of the tenanted land,
but that right will come into effect after the death of the
testator. The purpose behind Section 21 is not to allow
strangers to the family of the tenant to come upon the land.
The Apex Court held that tenanted land is not allowed to
be sub-let i.e. to pass to the hands of a stranger nor any
kind of assignment taking place in respect of the lease
held. If the tenant could assign his interest, strangers can
come upon the land, and therefore, the expression
‘assignment’ in Section 21 will have to be given such
meaning as to promote the object of the enactment. Above
decision in Sangappa Kalyanappa Bangi4 was later
followed in Jayamma5 case while interpreting Section
61(1) & (3), 21(1), 2(A)(12) & (17) of the Karnataka Land
Reforms Act, 1961. The question arose whether the
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expression ‘assignment’ would take in a Will. The Court
held that on a fair construction of Section 61, a transfer of
agricultural land with occupancy right is permissible only
in favour of one of the heirs, having regard to the
definition of ‘family’ as contained in Section 2(12) and
‘joint family’ as contained in Section 2(17) of the said Act.
The Court felt that the purpose and object of the
Legislature sought to be achieved by enacting Section 61
of the KLR Act is such that ‘assignment’ would include
‘assignment by a Will’.”
8.2 Similarly, while construing the provisions of Section 63 of the
Act, the Division Bench stated as under:-
“Section 63 unlike Section 43 of the Act does not contain
the word ‘assignment’. Contention was raised that since
no such word ‘assignment’ occurs in Section 63, there is
no restriction in the matter of transfer of agricultural lands
to non-agriculturist through a testamentary disposition.
Before examining the contention, it may be mentioned the
word ‘Will’ as such is not defined under the Bombay
Tenancy Act, but Section 2(h) of the Indian Succession
Act defines the word ‘Will’ to mean a legal declaration of
the intention of the testator with respect to his property
which he desires to be carried into effect after his death. A
Will, therefore, is dependent upon the testator’s death for
its vigour and effect and is liable to be revoked or altered
during his life time. Question is while he is alive, can he
make an illegal declaration through a ‘Will’ so as to defeat
the object and purpose of the legislation. Will not such a
declaration be opposed to public policy being repugnant to
the public interest. Policy of the Act is discernible from
the preamble, marginal note, title and Section 43 and 63
and other related provisions and the Directive Principles of
State Policy. Where the legislature deem it expedient to
fetter the privilege of free alienation, the prohibition
founded upon conditions of public interest, must be treated
as obsolete. General rule is that property of any kind may
be transferred by way of gift or Will, sale etc. unless nontransferability
is barred due to existence of any law.
Willian’s law relating to Will, Sixth Edition, Volume I,
page 60 states that the power of disposition by Will is not
at the testators caprice, but extends only to the creation of
those interests, which are recognised by law. Theobold on
Wills, Fourth Edition, Pg.629, says that a condition which
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is illegal or contrary to the policy of the law is void.
Tenancy Act has not authorised parting of agricultural land
to a non-agriculturist without the permission of the
authorised officer, therefore, if it is permitted through a
testamentary disposition, it will be defeating the very soul
of the legislation, which cannot be permitted. We wonder
when testator statutorily debarred from transferring the
agricultural lands to a non-agriculturist during his life
time, then how he can be permitted to make a declaration
of his intention to transfer agricultural land to a nonagriculturist
to be operative after his death. Such attempt
of testator, in our view, is clearly against the public policy
and would defeat the object and purpose of the Tenancy
Act. Section 30 of the Hindu Succession Act
acknowledges testamentary succession as a mode of
succession, but not, by defeating the purpose and object of
any legislation, like Tenancy Law. The legislative intent
that an agricultural land shall not go into the hands of a
non-agriculturist is manifest in Section 63 of the Bombay
Tenancy Act. In a country like ours where agriculture is
the main source of livelihood, the restriction imposed in
Section 63, cannot be given a go-by, by a devise. Obvious
purpose of Section 63, is to prevent indiscriminate
conversion of agricultural lands for non-agricultural
purpose and that provision strengthens the presumption
that agricultural land is not to be used as per the holders
caprice or sweet-will.”
8.3 It also relied upon decision of this Court reported in State of
Punjab (now Haryana) and others vs. Amar Singh and another6 and
Dayandeo Ganpat Jadhav vs. Madhav Vithal Bhaskar and others7 and
then concluded:-
“We are, therefore, of the considered view that if the
agriculturist is permitted to dispose agricultural property
through testamentary disposition to a non-agriculturist the
same will defeat the very purpose and object of the
Tenancy Act which cannot be permitted by a Court of law,
therefore, we hold that decision rendered by the learned
Single Judges referred above earlier, otherwise, are not
6 (1974) 2 SCC 70 : AIR 1974 SC 994
7 (2005) 8 SCC 340
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correct enunciation of law and stand overruled. We,
therefore, hold that Section 63 of the Bombay Tenancy Act
also bars the transfer of agricultural land by an
agriculturist to a non-agriculturist for non-agricultural
purpose unless permission is obtained from the Collector
or any authorised officer as provided in that Section. We
are informed by the learned counsel for the petitioner that
large number of agricultural lands have already been
transferred through testamentary disposition to nonagriculturists
and are in use and if the settled position is
unsettled the same will cause considerable prejudice and
inconvenience to the parties. We are of the view that there
are matters to be considered by the learned Single Judge
depending upon facts of each case and equities can be
worked out accordingly, on which, we express no opinion.
We are only called upon to answer the scope of Section 43
and 63 of the Tenancy Act, which we have already
answered.”
9. In these appeals challenging the correctness of the decision of the
Division Bench of the High Court, we have heard Mr. Sanjay Parikh,
learned Senior Advocate and Mr. Raghavendra S. Srivatsa, learned
Advocate for the Appellants and Mr. Aniruddha P. Mayee, learned
Advocate for the State.
10. It is submitted by learned counsel for the Appellants that what is
prohibited under Sections 43 and 63 of the Act is transfer inter vivos, and
not any ‘testamentary disposition’ by the holder of the land. In their
submission, the expressions used in Sections 43 and 63 like ‘sale’, ‘gift’,
‘exchange’, and ‘mortgage’ are suggestive of transfers by a living person
and the expression ‘assignment’ in Section 43(1) of the Act must be read
ejusdem generis with the preceding expressions appearing in that Section
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and that the expression ‘assignment’ does not even appear in Section 63.
It is, therefore, submitted that both these provisions do not deal with any
‘testamentary disposition’.
It is also submitted by Mr. Srivatsa that the concept of succession,
whether testamentary or intestate, being part of Entry 5 of List III of
Seventh Schedule to the Constitution and a concurrent subject, the Central
legislation namely Indian Succession Act, 1925 must hold the field and
any prohibition in the State enactment inconsistent with the general
principles of the Central Legislation, in the absence of any assent of the
President, would be void. It is further submitted that the State Legislature
must be taken to be fully aware of this legal position and, therefore, while
construing the term ‘assignment’ due regard to this aspect must also be
given. As an extension of this submission, it is contended that the
decisions of this Court in relation to the provisions of the Karnataka Land
Reforms Act, 1961 in the cases of Sangappa4 and Jayamma5 are
distinguishable as the provisions of the Karnataka Land Reforms Act,
1961 had received Presidential assent, whereas, the provisions of the Act
have not received any such assent.
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Reliance is also placed on the Judgment of this Court in Mahadeo
(Dead through legal representatives) vs. Shakuntalabai8 in which
similar provisions from Bombay Tenancy and Agricultural Lands Act,
1958 (as applicable to Vidarbha Region of State of Maharashtra) came up
for consideration before this Court.
11. On the other hand, Mr. Mayee, learned Advocate for the State has
submitted that the basic intent behind the conferral of ownership rights
upon a cultivating tenant was to see that the actual tillers and cultivators
must be protected and given the ownership rights upon payment of
nominal charges. The avowed objective of the Act, is to preserve
agricultural lands in the hands of actual tillers, and not to let concentration
of holdings in a few hands. It is further submitted that Section 63 of the
Act gives indications that a transfer to a non-agriculturist is not
permissible and so also any transfer which results in taking the holding of
the transferee beyond ceiling limits, or if the income of the transferee was
in excess of Rs.5,000/-, would be impermissible. He submitted that these
conditions disclose the legislative intent which lays down the relevant
criteria on the basis of which the applications for transfer inter vivos could
be considered and granted; and that any disposition by way of a testament
must also be subject to similar conditions. In his submission, a
8 (2017) 13 SCC 756
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testamentary disposition which violated these basic norms ought not to be
allowed and, therefore, the view taken by the Division Bench is correct.
12. We may now consider the decisions of this Court which have dealt
with issues concerning testamentary disposition of agricultural holdings-
A. In Sangappa4, the facts were noted as under:-
“2. The facts leading to this appeal are as follows:
Sangappa Bangi made an application under Section 45 of
the Karnataka Land Reforms Act, 1961 (hereinafter
referred to as “the Act”) in Form 7 claiming occupancy
rights in respect of the land in question. During the
pendency of the proceedings, he made a Will on 8-4-1975
bequeathing his tenancy rights in respect of the land in
favour of one Ameerjan who claims to be the legal
representative of the appellant Sangappa who died during
the pendency of proceedings before the Tribunal. She in
turn executed another Will under which Husensab is
making a claim to the land through the said Sangappa.
Respondent 2 is the wife of the said Sangappa while
Respondents 3 to 5 are the children of Sangappa. The
Land Tribunal as well as the Appellate Authority examined
the question whether right to tenancy could have been the
subject-matter of a bequest under a Will. In answering that
question, the Appellate Authority referred to a decision of
the High Court of Karnataka in Shivanna v. Rachiah9
(CRP No. 319 of 1976 dated 29-3-1977 wherein it was
stated that there was no prohibition against a tenant
disposing of his interest by testamentary disposition.
However it was stated that such testamentary disposition
must be confined to the heirs of the deceased or an
interpretation of the provision of Sections 21 and 24 of the
Karnataka Land Reforms Act that the tenancy rights are
inherited only by legal representatives and not by anybody
else; that tenancy could be deemed to have been continued
in favour of the heirs of the tenant. It is also made clear
that transfer of tenancy rights made in violation of the
provisions of Section 21 would be void. The High Court
9 (1977) 1 Kant LJ 146 (Short notes Item 160)
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did not give any detailed reasons, but taking the view that
the Appellate Authority and the Land Tribunal having
concurrently held that Respondents 2 to 5 are entitled to
grant of occupancy rights, found no reasons to interfere
with the order made by them.”
The question that arose for consideration was dealt with by this
Court as under:-
“5. This case gives rise to a difficult and doubtful
question, whether a devise under a Will would amount to
an assignment of interest in the lands and, therefore,
would be invalid under the provisions of Section 21 of the
Land Reforms Act. What is prohibited under Section 21 of
the Act is that there cannot be any sub-division or subletting
of the land held by a tenant or assignment of any
interest thereunder. Exceptions thereto are when the tenant
dies, the surviving members of the joint family and if he is
not a member of the joint family, his heirs shall be entitled
to partition and sub-divide the land leased subject to
certain conditions. Section 24 of the Act declares that
when a tenant dies, the landlord is deemed to continue the
tenancy to the heirs of such tenant on the same terms and
conditions on which the tenant was holding at the time of
his death. We have to read Section 21 with Section 24 to
understand the full purport of the provisions. Section 24 is
enacted only for the purpose of making it clear that the
tenancy continues notwithstanding the death of the tenant
and such tenancy is held by the heirs of such tenant on the
same terms and conditions on which he had held prior to
his death. The heirs who can take the property are those
who are referable to in Section 21. If he is a member of the
joint family, then the surviving members of the joint
family and if he is not such a member of a joint family, his
heirs would be entitled to partition. Again, as to who his
heirs are will have to be determined not with reference to
the Act, but with reference to the personal law on the
matter. The assignment of any interest in the tenanted land
will not be valid. A devise or a bequest under a Will
cannot be stated to fall outside the scope of the said
provisions inasmuch as such assignment disposes of or
deals with the lease. When there is a disposition of rights
under a Will, though it operates posthumously is
nevertheless a recognition of the right of the legatee
thereunder as to his rights of the tenanted land. In that
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event, there is an assignment of the tenanted land, but that
right will come into effect after the death of the testator.
Therefore, though it can be said in general terms that the
devise simpliciter will not amount to an assignment, in a
special case of this nature, interpretation will have to be
otherwise.
6. If we bear in mind the purpose behind Section 21, it
becomes clear that the object of the law is not to allow
strangers to the family of the tenant to come upon the land.
The tenanted land is not allowed to be sub-let, i.e., to pass
to the hands of a stranger nor any kind of assignment
taking place in respect of the lease held. If the tenant could
assign his interest, strangers can come upon the land, and
therefore, the expression “assignment” will have to be
given such meaning as to promote the object of the
enactment. Therefore, the deceased tenant can assign his
rights only to the heirs noticed in the provision and such
heirs could only be the spouse or any descendants or one
who is related to the deceased tenant by legitimate kinship.
We must take into consideration that when it is possible
for the tenant to pass the property to those who may not
necessarily be the heirs under the ordinary law and who
become heirs only by reason of a bequest under a Will in
which event, he would be a stranger to the family and
imported on the land thus to the detriment of the landlord.
In that event, it must be taken that a devise under a Will
will also amount to an assignment and, therefore, be not
valid for the purpose of Section 21 of the Act. If Section
24 is read along with Section 21, it would only mean that
the land can pass by succession to the heirs of a deceased
tenant, but subject to the conditions prescribed in Section
21 of the Act. Therefore, we are of the view that the broad
statement made by the High Court in the two decisions in
Shivanna9 and Dhareppa v. State of Karnataka10 would
not promote the object and purpose of the law. Therefore,
the better view appears to us is as stated by the High Court
in Timmakka Kom Venkanna Naik v. Land Tribunal11.”
B. Similar issues regarding disposition by will were dealt with by this
Court in Jayamma5, as follows:-
10 (1979) 1 Kant LJ 18
11 (1987) 2 Kant LJ 337
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“16. We would discuss the construction of the provision of
Section 61 of the said Act, a little later, but we have no
hesitation in holding that in the event if it be held that the
testator could not have executed the Will in favour of a
person who could not be declared to be a tenant having
occupancy right, such a Will would be void ab initio and,
therefore, non est in the eye of the law. The court in such
an event would not be determining a disputed question of
title but would be considering the effect of the statute visà-
vis the Will in question.
… … …
18. As we have noticed hereinbefore, that the statutory
embargo on transfer of land is stricter in a case where the
tenant has become occupant than a land held by a tenant
simpliciter. We have also noticed that the embargo on
transfer is not only by way of sale, gift, exchange,
mortgage, lease but also by assignment. What is permitted
under the law is partition of the land amongst the members
of the family. Section 61 of the Act is to be read in its
entirety.
19. Sub-section (3) of Section 61 lays down that any
transfer of land in contravention of sub-section (1) shall be
invalid whereupon the same shall vest in the State
Government free from all encumbrances. The legislative
intent that the land should not be allowed to go into the
hands of a stranger to the family is, therefore, manifest.
Whereas in terms of Section 21, strangers to the family of
the tenant to come upon the land is not allowed, the tenor
of Section 61 is that except partition amongst the cosharers,
no transfer of the property, in any manner, is
permissible.
20. When an assignment or transfer is made in
contravention of statutory provisions, the consequence
whereof would be that the same is invalid, and thus, being
opposed to public policy the same shall attract the
provisions of Section 23 of the Indian Contract Act.
21. It is not disputed that in view of the purport and object
the legislature sought to achieve by enacting the said
provision the expression “assignment” would include a
Will.
22. In this case, there is also no dispute that grant of
agricultural land with occupancy right in terms of the
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provisions of the said Act was made on 14-10-1981. The
Will in question having been executed on 20-2-1984; the
transfer has been made within a period of fifteen years
from the date of grant which is prohibited in law.”
C. Both these decisions were in the context of prohibition against
transfer or assignment under the provisions of the Karnataka Land Reforms
Act, 1961. In Mahadeo8, this Court dealt with Section 57 of the Bombay
Tenancy and Agricultural Lands Act, 1958 as applicable to Vidarbha
Region of State Maharashtra, and observed:-
“4. The High Court took the view that the provisions of
Section 57 of the Bombay Tenancy and Agricultural Lands
Act, 1958 pertaining to Vidarbha Region do not permit the
transfer of land by way of a will. Section 57 of the Act
which is relevant reads as follows:
“57. Restriction on transfers of land purchased or
sold under this Act.—(1) No land purchased by a
tenant under Section 41 or 46 or 49-A or 57-D or 130 or
sold to any person under Section 91 or 122 shall be
transferred by sale, gift, exchange, mortgage, lease or
assignment without the previous sanction of the
Collector. Such sanction shall be given by the Collector
in such circumstances and subject to such conditions as
may be prescribed by the State Government.
(2) Any transfer of land in contravention of sub-section
(1) shall be invalid:
Provided that nothing in this section shall apply to the
lands purchased by an occupancy tenant.”
5. On a plain reading of the aforesaid provision, it is clear
that transfer without the previous sanction of the Collector
is impermissible by way of sale, gift, exchange, mortgage,
lease or assignment. There is no prohibition insofar as the
transfer of land by way of a will is concerned. In fact, in
view of the decision of this Court in State of W.B. v.
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Kailash Chandra Kapur12, devolution of property by way
of a will does not amount to a transfer of the property. This
is clear from para 12 of the aforesaid decision wherein it
has been observed that transfer connotes, normally,
between two living persons during life. However, a will
takes effect after demise of the testator and transfer in that
perspective becomes incongruous.
6. That the beneficiary of a will receives the property by
way of devolution and not by way of transfer is also made
clear by the decision of this Court in S. Rathinam alias
Kappamuthu and Others v. L.S. Mariappan and Others13
wherein this Court has held in para 21 that: (SCC p. 732)
“21. A testator by his will, may make any disposition
of his property subject to the condition that the same
should not be inconsistent with the laws or contrary to
the policy of the State. A will of a man is the
aggregate of his testamentary intentions so far as they
are manifested in writing. It is not a transfer but a
mode of devolution.”
In coming to this conclusion, this Court referred to
Beru Ram v. Shankar Dass14.”
D. It must be stated here that the decisions in Sangappa4 and
Jayamma5 were rendered by benches of two judges and so was the
decision in Mahadeo8. However, the decision in Mahadeo does not show
that the attention of the bench was invited to the earlier decisions in
Sangappa4 and Jayamma5.
12 (1997) 2 SCC 387
13 (2007) 6 SCC 724
14 (1977) 8 JKLR 73
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E. The decision of this Court in Sangappa4 had approved the decision
of the Division Bench of the High Court of Karnataka in Timmakka11,
wherein following observations were made by the Division Bench:-
“13. Two decisions of the Supreme Court were also
referred, in support of his contention by the learned
Counsel. In Jaspal Singh v. The Additional District
Judge, Bulandshahr & Ors.15, a question arose
under U.P. Act 13/1972. There was a bar against
transfer of the tenant's interest during his life time.
Similarly, if a tenant sub leases the premises, he was
liable to be ejected. Therefore, is was held that the
scheme of the Act did not warrant the transfer of the
tenancy right, to be effective after the life time of the
tenant, Thus the claim of the nephew of the tenant
who claimed the right under a Will executed by the
deceased tenant was rejected.
14. In Bhavarlal Labhchand Shah v. Kanaiyalal
Nathalal Intawala16 the question was whether the
tenant of a non - residential premises continuing in
occupation after the period of contract is over, can
bequeath his right of occupation by will. The Supreme
Court negatived such a contention. The Supreme
Court approved the observations of the Bombay High
Court in Dr. Anant Trimbak Sabnis v. Vasant Pratap
Pandi17 which were extracted…….
15. Having regard to the above decisions, we are of
the opinion that the deceased Hammi could not have
bequeathed the tenancy right in favour of respondents
2 and 3 or to any one of them. If so, any possession
and cultivation by respondents 2 and 3, after the death
of the original tenant Hammi, cannot be termed as
lawful and they cannot be termed as tenants. It has
also come on record that throughout there was protest
by the appellant against registering the names of
respondents 2 and 3 or any one of them as a tenant in
15 (1984) 4 SCC 434
16 (1986) 1 SCC 571
17 AIR 1980 Bombay 69
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the record of rights. Therefore, as on 1-3-1974 neither
respondent-2 nor respondent-3 was cultivating the
lands in question as a tenant and hence Sections
44, 45 or 48-A of the Act cannot govern their claim.
The Land Tribunal erred in granting occupancy right
in favour of respondents 2 and 3 on the basis of the
alleged will and hence the same is liable to be set
aside. In this view of the matter, the learned Single
Judge should have reversed the order of the Land
Tribunal. Therefore, the order of the learned Single
Judge also cannot be sustained.”
F. On the other hand, the decision in Mahadeo8 had placed reliance
on the decisions of this Court in State of West Bengal vs. Kailash
Chandra Kapur12 and in S. Rathinam13. In neither of these cases any
statutory prohibition or restriction on transfer or assignment was involved.
13. The decisions in Sangappa4, Jayamma5 and Mahadeo8 had dealt
with the question whether prohibition against transfer of agricultural
holdings applied to testamentary disposition. While dealing with the
question whether a tenant governed by Rent Act could will away his
tenancy, in Bhavarlal Labhchand Shah16 the issue was considered in the
light of prohibition against transfer or assignment in Section 15 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This
Court relied upon the earlier decision of this Court in Jaspal Singh vs.
Additional District Judge, Bulandshahr15 and the decision of the
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Division Bench of the High Court of Bombay in Dr. Anant Trimbak
Sabnis17 and observed:-
“9. In Jaspal Singh v. Additional District Judge,
Bulandshahr15 this Court had occasion to consider the
validity of a bequest of the right of a tenant to continue to
occupy the premises after the determination of the tenancy
under U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 under a will. Section 3(a) of the
U.P. Act referred to above defined the expression “tenant”
thus:
“3. In this Act, unless the context otherwise requires—
(a) ‘tenant’, in relation to a building, means a person
by whom its rent is payable, and on the tenant’s
death—
(1) in the case of a residential building, such
only of his heirs as normally resided with
him in the building at the time of his death;
(2) in the case of a non-residential building, his
heirs;”
10. The appellant in that case claimed the right to tenancy
held by one Naubat Singh under the will of Naubat Singh.
This Court held that the appellant would be a tenant within
the meaning of Section 3(a) of that Act only when he was
an heir but the appellant was not a son but only nephew of
Naubat Singh. The said U.P. Act also contained a
provision in Section 12(2) thereof which stated that in the
case of non-residential building where a tenant carrying on
a business in the building admitted a person who was not a
member of his family as a partner or a new partner, as the
case may be, the tenant should be deemed to have ceased
to occupy the building. Under those circumstances this
Court held at p. 1885 thus: (SCC pp. 440-41, para 10)
“From a survey of these provisions it will be
clear that if a tenant parts with possession of
the premises in his possession, the same would
be treated as vacant.... In the case of a nonresidential
building, when a tenant is carrying
on business in the building, admits a person
who is not a member of his family as a partner
or a new partner, as the case may be, the tenant
shall be deemed to have ceased to occupy the
building. If a tenant sublets the premises, he is
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liable to ejectment. Obviously, therefore, there
are restrictions placed by the Act on the right
of the tenant to transfer or sublet the tenancy
rights and he can keep possession of the
building or premises for himself and for the
purpose of his family, for his business and for
the business of his family members. He
obviously cannot be allowed to transfer a
tenancy right. A fortiori, the scheme of the Act
does not warrant the transfer of the tenancy
right to be effective after his lifetime.”
11. In the Act under consideration in the present case also
there is a provision similar to the provision contained in
Section 12(2) of the U.P. Act. Section 15(1) of the Act
reads thus:
“15. In absence of contract to the contrary
tenant not to sublet or transfer.— (1)
Notwithstanding anything contained in any
law, (but subject to any contract to the
contrary), it shall not be lawful after the
coming into operation of this Act for any
tenant to sublet the whole or any part of the
premises let to him or to assign or transfer in
any other manner his interest therein:….”
12. In Dr. Anant Trimbak Sabnis17 the High Court of
Bombay has in the light of Section 15(1) of the Act taken
the view and in our opinion rightly that the words “to
assign or transfer in any other manner his interest therein”
in Section 15(1) of the Act had the effect of prohibiting the
deposition of the tenancy right by a will in the absence of
a contract to the contrary. The High Court of Bombay
observed at pp. 72 and 73 thus:
“12. Prohibition against transfer of tenancy
rights by the tenants is just a corollary to the
restrictions on the landlords and is aimed at
protecting them, in turn, by preventing the
tenants from abusing these protections by
thrusting uncontemplated strangers as tenants
on the landlords, willy nilly, for monetary gain
or favouring any friend or relative of theirs, and
thus ensuring, that the immunity against
eviction is not expanded into licence to dispose
of premises as if it were their own and
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landlords’ rights are not invaded beyond what is
strictly necessary….
13. Bequest of tenancy rights in this context
stands on the same footing as any other transfer
by sub-lease, sale, assignment, gift, volition of
the tenant in inducting uncontemplated
strangers in the premises and thrusting them on
the landlord, being the common element of
these dispositions. It makes little difference to
the invasion on the landlord’s right whether
such uncontemplated stranger is so inducted by
the tenant for gain or just as a favour —
invasion in either case having no nexus with the
object underlying these protections. It is
difficult to imagine why the legislature could
have intended to exclude such bequests from
the sweep of the prohibited assignments and
transfers under Section 15, when bequest is
pregnant with the same evils as other transfers.
The words “transfer in any manner” in this
context only go to signify inclusion of ‘bequest’
also therein.
14. It is not without significance that legatee is
not included in the definition of the word
‘tenant’. Section 5(11) of the Act defines it to
mean “a person who is liable to pay the rent or
on whose account the rent is payable for any
premises”. Under sub-clauses (a) to (c) it is
enlarged to include some others whom
legislature considered it necessary to protect.
Clause (c) provides for the succession to
tenancy rights on the death of the tenant. Thus,
this sub-clause (c) by providing for the mode of
succession, impliedly excludes successors from
the purview of the width of the main clause.
Secondly, it restricts the succession even by
operation of law of inheritance to the persons
and situations indicated therein and impliedly
excluding all other heirs. In fact, all the heirs
are liable to be excluded if any other member of
the family was staying with the tenant at the
time of his death. Thirdly and more importantly,
legatee is not included either in this sub-clause
or any other sub-clauses. This demonstrates
legislative intent to prohibit testamentary
disposition of the tenancy rights. There is no
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other express provision to this effect in the Rent
Act. It shall have to be traced only in Section 15
thereof by interpreting the words ‘assign’ and
‘transfer’ in their generic sense. This also
fortifies our interpretation of these words.”
13. The above reasons given by the Bombay High Court in
support of its decision are perfectly justified in the context
of the object and the scheme of the Act. The language of
the statute also lends itself to the same construction.”
14. On the other hand, in respect of leases to which the provisions of
any Rent Act did not specifically apply, the principles laid down in
Bhavarlal14 were not applied by this Court. The decision of this Court in
State of W.B. v. Kailash Chandra Kapur12 had observed:-
“11. It was, therefore, held that in the absence of any
definition the legal heirs of the tenants who succeeded by
intestate succession became the tenants under the Rent Act
for the purpose of continuance of tenancy rights had by the
tenant even if it is after the determination of the
contractual tenancy. The statutory tenancy steps in and
gives protection to the legal heirs of the deceased tenant. It
is true that in that case no distinction was made by this
Court between testamentary succession or intestate
succession. As far as testamentary succession is
concerned, this Court had considered that question in
Bhavarlal case16. In that case, Section 5(11) of the
Bombay Rent Act defines the tenant and clause (c) defines
the “restricted tenancy rights” in favour of the family
members of the tenant. In that context, the question arose
in that case whether a tenant can bequeath a Will in favour
of a stranger? Considering the ratio in Gian Devi case18
and the object of the Act, this Court had held that the
tenant cannot by a Will bequeath leasehold right in favour
of strangers and induct the stranger as tenant of the
demised premises against the Will of the landlord and the
landlord is not bound by such a bequest to recognise the
legatee as a tenant. It is, thus, settled law that though
leasehold interest may be bequeathed by a testamentary
18 (1985) 2 SCC 683
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disposition, the landlord is not bound by it nor a stranger
be trusted as tenant against the unwilling landlord.
12. In view of the above-settled legal position, the
question is whether the bequest made by Mullick in favour
of the respondent is valid in law and whether the Governor
is bound to recognise him. It is seen that clauses (7), (8)
and (12) are independent and each deals with separate
situation. Clause (7) prohibits sub-lease of the demised
land or the building erected thereon without prior consent
in writing of the Government. Similarly, clause (8) deals
with transfer of the demised premises or the building
erected thereon without prior permission in writing of the
Government. Thereunder, the restricted covenants have
been incorporated by granting or refusing to grant
permission with right of pre-emption. Similarly, clause
(12) deals with the case of lessee dying after executing a
Will. Thereunder, there is no such restrictive covenant
contained for bequeath in favour of a stranger. The word
“person” has not been expressly specified whether it
relates to the heirs of the lessee. On the other hand, it
postulates that if the bequest is in favour of more than one
person, then such persons to whom the leasehold right has
been bequeathed or the heirs of the deceased lessee, as the
case may be, shall hold the said property jointly without
having any right to have a partition of the same and one
among them should alone be answerable to and the
Government would recognise only one such person. In the
light of the language used therein, it is difficult to accept
the contention of Shri V.R. Reddy, that the word “person”
should be construed with reference to the heirs or bequest
should be considered to be a transfer. Transfer connotes,
normally, between two living persons during life; Will
takes effect after demise of the testator and transfer in that
perspective becomes incongruous. Though, as indicated
earlier, the assignment may be prohibited and the
Government intended to be so, a bequest in favour of a
stranger by way of testamentary disposition does not
appear to be intended, in view of the permissive language
used in clause (12) of the covenants. We find no express
prohibition as at present under the terms of the lease.
Unless the Government amends the rules or imposes
appropriate restrictive covenants prohibiting the bequest in
favour of the strangers or by enacting appropriate law,
there would be no statutory power to impose such
restrictions prohibiting such bequest in favour of the
strangers. It is seen that the object of assignment of the
government land in favour of the lessee is to provide him
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right to residence. If any such transfer is made contrary to
the policy, obviously, it would be defeating the public
purpose. But it would be open to the Government to
regulate by appropriate covenants in the lease deed or
appropriate statutory orders as per law or to make a law in
this behalf. But so long as that is not done and in the light
of the permissive language used in clause (12) of the lease
deed, it cannot be said that the bequest in favour of
strangers inducting a stranger into the demised premises or
the building erected thereon is not governed by the
provisions of the regulation or that prior permission should
be required in that behalf. However, the stranger legatee
should be bound by all the covenants or any new
covenants or statutory base so as to bind all the existing
lessees.”
15. Various States have enacted legislations seeking to invalidate
transfers of agricultural lands made by tribals or socially disadvantaged
persons to non-tribals or transferees from non-backward communities
which legislations have gone to the extent of nullifying transactions entered
into even before the legislations had come into effect. Validity of these
legislations have been sustained by this Court. Two such cases are as
follows:-
A) Section 4 of the Karnataka Scheduled Castes and Scheduled
Tribes (Prohibition of Transfer of Certain Lands) Act, 1974 prohibits
transfer of “granted lands” which expression is defined in Section 3(b) to
mean any land granted by the Government to a person belonging to any of
the Scheduled Castes or the Scheduled Tribes. Any transfer made either
before or after the commencement of said Act is rendered null and void by
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Section 4 and the land is to be resumed and dealt with in accordance with
the provisions of said Act. Dealing with the challenge, a bench of three
Judges of this Court in Manchegowda vs. State of Karnataka19 stated:-
“15. Any person who acquires such granted land by
transfer from the original grantee in breach of the
condition relating to prohibition on such transfer must
necessarily be presumed to be aware of the prohibition
imposed on the transfer of such granted land. Anybody
who acquires such granted land in contravention of the
prohibition relating to transfer of such granted land cannot
be considered to be a bona fide purchaser for value; and
every such transferee acquires to his knowledge only a
voidable title to the granted land. The title acquired by
such transfer is defeasible and is liable to be defeated by
an appropriate action taken in this regard. If the
Legislature under such circumstances seek to intervene in
the interests of these weaker sections of the community
and choose to substitute a speedier and cheaper method of
recovery of these granted lands which were otherwise
liable to be resumed through legal process, it cannot, in
our opinion, be said that any vested rights of the
transferees are affected. Transferees of granted lands with
full knowledge of the legal position that the transfers made
in their favour in contravention of the terms of grant or
any law, rule or regulation governing such grant are liable
to be defeated in law, cannot and do not have in law or
equity, a genuine or real grievance that their defeasible
title in such granted lands so transferred is, in fact, being
defeated and they are being dispossessed of such lands
from which they were in law liable to be dispossessed by
process of law. The position will, however, be somewhat
different where the transferees have acquired such granted
lands not in violation of any term of the grant or any law
regulating such grant as also where any transferee who
may have acquired a defeasible title in such granted lands
by the transfer thereof in contravention of the terms of the
grant or any law regulating such grant has perfected his
title by prescription of time or otherwise. We shall
consider such cases later on. But where the transferee
acquires only a defeasible title liable to be defeated in
accordance with law, avoidance of such defeasible title
which still remains liable to be defeated in accordance
with law at the date of commencement of the Act and
19 (1984) 3 SCC 301
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recovery of possession of such granted land on the basis of
the provisions contained in Section 4 and Section 5 of the
Act cannot be said to be constitutionally invalid and such a
provision cannot be termed as unconscionable, unjust and
arbitrary. The first two contentions raised on behalf of the
petitioners are, therefore, overruled.
16. The next contention that Sections 4 and 5 of the Act
empowering the authority to take possession of the granted
lands without payment of any compensation are violative
of Article 19(1)(f) of the Constitution is without any merit.
Article 19(1)(f) which was in force at the relevant time
provided that all citizens shall have the right “to acquire,
hold and dispose of property”.
17. Granted lands were intended for the benefit and
enjoyment of the original grantees who happen to belong
to the Scheduled Castes and Scheduled Tribes. At the time
of the grant, a condition had been imposed for protecting
the interests of the original grantees in the granted lands
by restricting the transfer of the same. The condition
regarding the prohibition on transfer of such granted lands
for a specified period, was imposed by virtue of the
specific term in the grant itself or by reason of any law,
rule or regulation governing such grant. It was
undoubtedly open to the grantor at the time of granting
lands to the original grantees to stipulate such a condition,
the condition being a term of the grant itself, and the
condition was imposed in the interests of the grantee.
Except on the basis of such a condition the grantor might
not have made any such grant at all. The condition
imposed against the transfer for a particular period of such
granted lands which were granted essentially for the
benefit of the grantees cannot be said to constitute any
unreasonable restriction. The granted lands were not in the
nature of properties acquired and held by the grantees in
the sense of acquisition, or holding of property within the
meaning of Article 19(1)(f) of the Constitution. It was a
case of a grant by the owner of the land to the grantee for
the possession and enjoyment of the granted lands by the
grantees and the prohibition on transfer of such granted
lands for the specified period was an essential term or
condition on the basis of which the grant was made. It has
to be pointed out that the prohibition on transfer was not
for an indefinite period or perpetual. It was only for a
particular period, the object being that the grantees should
enjoy the granted lands themselves at least for the period
during which the prohibition was to remain operative.
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Experience had shown that persons belonging to the
Scheduled Castes and Scheduled Tribes to whom the lands
were granted were, because of their poverty, lack of
education and general backwardness, exploited by various
persons who could and would take advantage of the sad
plight of these poor persons for depriving them of their
lands. The imposition of the condition of prohibition on
transfer for a particular period could not, therefore, be
considered to constitute any unreasonable restriction on
the right of the grantees to dispose of the granted lands.
The imposition of such a condition on prohibition in the
very nature of the grant was perfectly valid and legal.”
B) Another bench of three Judges of this Court considered the
challenge to the provisions of the Maharashtra Restoration of Lands to
Scheduled Tribes Act, 1974 in Lingappa Pochanna Appelwar vs. State of
Maharashtra and another20. While rejecting the challenge this Court
observed:-
“18. The impugned Act is nothing but a remedial measure
in keeping with the policy of the State for rendering social
and economic justice to this weaker section of the society.
The taking of their lands may have been done by way of
transfer under the ordinary, laws in various ways. The
processes and forms of law were apparently followed. But
the result has been devastating. As a result of such unequal
transactions which were grossly unconscionable and
unjust, the tribals lost their lands to non-tribals and were
rendered landless. It is implicit in the nature of the
legislation that the law regards such transactions as
unconscionable and oppressive, and directs restoration of
the property to the tribal transferor treating the transfer to
be non est. It is axiomatic that a contract is liable to be set
aside due to inequality of bargaining power, if someone
without independent advice, enters into a contract on
terms which are very unfair or transfers property for a
consideration which is grossly inadequate when his
bargaining power is grievously impaired by reason of his
own need or circumstances, or by his own ignorance or
20 (1985) 1 SCC 479
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infirmity, coupled with undue influences or pressures
brought to bear on him by or for the benefit of the other.”
There was a challenge on the ground of legislative competence as
well, which aspect will be dealt with later.
16. A bench of three Judges of this Court placed reliance on the
decisions in Manchegowda19 and Lingappa Pochanna Appelwar v. State
of Maharashtra20 and found that even a voluntary surrender by a member
of a Scheduled Tribe would come within the expression “transfer” in
Section 71-A of the Chhotanagpur Tenancy Act, 1908. In Pandey Oraon vs
Ram Chander Sahu and Others21, this Court held:-
“6. In Section 71-A in the absence of a definition of
transfer and considering the situation in which exercise of
jurisdiction is contemplated, it would not be proper to
confine the meaning of transfer to transfer under the
Transfer of Property Act or a situation where transfer has a
statutory definition. What exactly is contemplated in the
provision is where possession has passed from one to
another and as a physical fact the member of the
Scheduled Tribe who is entitled to hold possession has lost
it and a non-member has come into possession would be
covered by transfer and a situation of that type would be
amenable to exercise of jurisdiction within the ambit of
Section 71-A of the Act.
7. The provision is beneficial and the legislative intention
is to extend protection to a class of citizens who are not in
a position to keep their property to themselves in the
absence of protection. Therefore, when the legislature is
extending special protection to the named category, the
court has to give a liberal construction to the protective
mechanism which would work out the protection and
enable the sphere of protection to be effective than limit
by (sic) the scope. In fact, that exactly is what has been
21 (1992) Supp 2 SCC 77
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said by a three Judge bench of this Court in almost a
similar situation in Manchegowda19 and what was said by
a three Judge bench followed by a later decision of this
Court in Lingappa20. To the same effect is the observation
of this Court in Gamini Krishnayya v. Guraza
Seshachalam22. The House of Lords in D (a minor) v.
Bershire County Council23 said that broad and liberal
construction should be given to give full effect to the
legislative purpose. We would, therefore, in the facts and
circumstances appearing in this case, hold that the
authorities under the Act were justified in extending the
provision of Section 71-A of the Chotanagpur Tenancy Act
to the situation which emerged and the High Court took a
wrong view in limiting the concept of transfer to the
statutory definition in the T.P. Act and holding that Section
71-A was not applicable in a case of this type. On this
basis, it must follow that the action of the statutory
authority was justified and the conclusion of the Full
Bench must not be sustained. We accordingly allow the
appeal and reverse the decision of the High Court.”
17. In Amrendra Pratap Singh vs. Tej Bahadur Prajapati and
Others24, a question arose whether a plea of adverse possession by a nontribal
with regard to land of a tribal situated in the scheduled area could be
entertained. While dealing with the question, following observations were
made by this Court:-
“14. …… Dictionaries can be taken as safe guides for
finding out meanings of such words as are not defined in
the statute. However, dictionaries are not the final words
on interpretation. The words take colour from the context
and the setting in which they have been used. It is
permissible to assign a meaning or a sense, restricted or
wider than the one given in dictionaries, depending on the
scheme of the legislation wherein the word has been used.
The court would place such construction on the meaning
of the words as would enable the legislative intent being
22 AIR 1965 SC 639
23 (1987) 1 All ER 20 (HL)
24 (2004) 10 SCC 65
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effectuated. Where the object of the legislation is to
prevent a mischief and to confer protection on the weaker
sections of the society the court would not hesitate in
placing an extended meaning, even a stretched one. on the
word, if in doing so the statute would succeed in attaining
the object sought to be achieved. We may refer to
Principles of Statutory Interpretation by Justice G.P. Singh
(8th Edn., 2001) wherein at pp. 279-280 the learned author
states-
". . . . .in selecting one out of the various
meaning of a word, regard must always be had
to the context as it is a fundamental rule that
'the meanings of words and expressions used
in an Act must take their colour from the
context in which they appear'. Therefore,
'when the context makes the meaning of a
word quite clear, it becomes unnecessary to
search for and select a particular meaning out
of the diverse meanings a word is capable of,
according to lexicographers'. . .... Judge
Learned Hand cautioned 'not to make a
fortress out of the dictionary' but to pay more
attention to 'the sympathetic and imaginative
discovery' of the purpose or object of the
statute as a guide to its meaning."
… … …
19. State of M.P. v. Babu Lal25 is an interesting case
showing how this Court dealt with an artistic device
employed by a non-tribal to deprive a tribal of his land.
The M.P. Land Revenue Code, 1959 imposed restrictions
on the transfer of land by members of a Scheduled Tribe.
Babu Lal, a non-tribal, filed a suit for declaration against
Baddiya, a Bheel, notified Scheduled Tribe, for declaration
that his name be recorded in the revenue record as
bhumiswami over the land of Baddiya. Baddiya did not
contest the suit and the parties filed a compromise
conceding to the claim of Babu Lal. The State
Government intervened and filed a petition in the High
Court seeking a writ of certiorari, submitting that the
entire proceedings in the suit were in contravention of subsection
(6) of Section 165 of the M.P. Land Revenue
Code, 1959. The judgment of the civil court based on
25 (1977) 2 SCC 435
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compromise was sought to be quashed. The High Court
dismissed the petition holding that the State could pursue
the alternative remedy of filing a suit for declaration that
the decree was null and void. In appeal by special leave,
this Court set aside the judgment of the High Court and
issued a writ of certiorari to quash the judgment and
decree passed in the civil suit. It was held: (SCC p. 436,
para 5)
“5. One of the principles on which certiorari is issued
is where the Court acts illegally and there is error on
the face of record. If the Court usurps the
jurisdiction, the record is corrected by certiorari.
This case is a glaring instance of such violation of
law. The High Court was in error in not issuing writ
of certiorari.”
20. The law laid down by this Court is an authority for the
proposition that the court shall step in and annul any such
transaction as would have the effect of violating a
provision of law, more so when it is a beneficial piece of
social legislation. A simple declaratory decree passed by a
civil court which had the effect of extinguishing the title of
a member of a Scheduled Tribe and vesting the same in a
non-member, was construed as “transfer” within the
meaning of Section 165(6) of the M.P. Land Revenue
Code, 1959. Thus, we are very clear in our minds that the
expression “transfer of immovable property” as defined in
clause (f) of para 2 of the 1956 Regulations has to be
assigned a very wide meaning. Any transaction or dealing
with immovable property which would have the effect of
extinguishing title, possession or right to possess such
property in a tribal and vesting the same in a non-tribal,
would be included within the meaning of “transfer of
immovable property”.
… … …
24. In Madhavrao Waman Saundalgekar v. Raghunath
Venkatesh Deshpande26 Their Lordships of the Privy
Council dealt with a case of watan lands and observed that
it is somewhat difficult to see how a stranger to a watan
can acquire a title by adverse possession for twelve years
of lands, the alienation of which is, in the interests of the
State, prohibited. The Privy Council’s decision was
noticed in Karimullakhan v. Bhanupratapsingh27 and the
26 AIR 1923 PC 205 : 50 IA 255 : ILR 47 Bom 798
27 AIR 1949 Nag 265 : ILR 1948 Nag 978
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High Court noted non-availability of any direct decision
on the point and resorted to borrowing from analogy. It
was held that title by adverse possession on inam lands,
watan lands and debutter, was incapable of acquisition.
25. Reverting back to the facts of the case at hand, we find
that in the land, the ultimate ownership vests in the State
on the principle of eminent domain. Tribals are conferred
with a right to hold land, which right is inalienable in
favour of non-tribals. It is clear that the law does not
permit a right in immovable property vesting in a tribal to
be transferred in favour of or acquired by a non-tribal,
unless permitted by the previous sanction of a competent
authority. The definition of “transfer of immovable
property” has been coined in the widest-possible terms.
The definition makes a reference to all known modes of
transferring right, title and interest in immovable property
and to make the definition exhaustive, conspicuously
employs the expression “any other dealing with such
property”, which would embrace within its sweep any
other mode having an impact on right, title or interest of
the holder, causing it to cease in one and vest or accrue in
another. The use of the word “dealing” is suggestive of the
legislative intent that not only a transfer as such but any
dealing with such property (though such dealing may not,
in law, amount to transfer), is sought to be included within
the meaning of the expression. Such “dealing” may be a
voluntary act on the part of the tribal or may amount to a
“dealing” because of the default or inaction of the tribal as
a result of his ignorance, poverty or backwardness, which
shall be presumed to have existed when the property of the
tribal is taken possession of or otherwise appropriated or
sought to be appropriated by a non-tribal. In other words, a
default or inaction on the part of a tribal which results in
deprivation or deterioration of his rights over immovable
property would amount to “dealing” by him with such
property, and hence a transfer of immovable property. It is
so because a tribal is considered by the legislature not to
be capable of protecting his own immovable property. A
provision has been made by para 3-A of the 1956
Regulations for evicting any unauthorised occupant, by
way of trespass or otherwise, of any immovable property
of a member of a Scheduled Tribe, the steps in regard to
which may be taken by the tribal or by any person
interested therein or even suo motu by the competent
authority. The concept of locus standi loses its
significance. The State is the custodian and trustee of the
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immovable property of tribals and is enjoined to see that
the tribal remains in possession of such property. No
period of limitation is prescribed by para 3-A. The
prescription of the period of twelve years in Article 65 of
the Limitation Act becomes irrelevant so far as the
immovable property of a tribal is concerned. The tribal
need not file a civil suit which will be governed by the law
of limitation; it is enough if he or anyone on his behalf
moves the State or the State itself moves into action to
protect him and restores his property to him. To such an
action neither Article 65 of the Limitation Act nor Section
27 thereof would be attracted.
26. In our opinion, the abovesaid shall be the position of
law under the 1956 Regulations where “transfer of
immovable property” has been defined and also under the
1950 Act where “transfer of holding” has not been
defined. Acquisition of title in favour of a non-tribal by
invoking the doctrine of adverse possession over the
immovable property belonging to a tribal, is prohibited by
law and cannot be countenanced by the court.”
The law laid down in Amarendra Pratap Singh24 was followed by
this Court in Lincai Gamango and Others vs. Dayanidhi Jena and
Others28.
18. Some of the other cases, where the legislative intent of prohibiting
transfer was taken note of and suitably extended, are as under:-
A) While dealing with the question whether prohibition against
transfer in Section 42(b) of the Rajasthan Tenancy Act, 1955 would get
attracted as against a juristic person such as a limited company, this Court
28 (2004) 7 SCC 437
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in State of Rajasthan and Others vs. Aanjaney Organic Herbal Private
Limited29 held:-
“7. Heard the learned counsel on either side. The Act is a
beneficial legislation which takes special care to protect
the interest of the members of Scheduled Castes and
Scheduled Tribes. Section 42 provides some general
restrictions on sale, gift and bequest of the interest of
Scheduled Castes and Scheduled Tribes, in the whole or
part of their holding. The reason for such general
restrictions is not only to safeguard the interest of the
members of Scheduled Castes and Scheduled Tribes, but
also to see that they are not exploited by the members of
non-Scheduled Castes and Scheduled Tribes. The relevant
provisions of Section 42(b) are extracted below for easy
reference:
“42. General restrictions on sale, gift & bequest.—The
sale, gift or bequest by a khatedar tenant of his interest in
the whole or part of his holding shall be void, if—
(a) * * *
(b) such sale, gift or bequest is by a member of a
Scheduled Caste in favour of a person who is not a
member of the Scheduled Caste, or by a member of a
Scheduled Tribe in favour of a person who is not a
member of the Scheduled Tribe;”
… … …
12. The expressions “Scheduled Castes” and “Scheduled
Tribes”, we find in Section 42(b) of the Act have to be
read along with the constitutional provisions and, if so
read, the expression “who is not a member of the
Scheduled Caste or Scheduled Tribe” would mean a
person other than those who have been included in the
public notification as per Articles 341 and 342 of the
Constitution. The expression “person” used in Section
42(b) of the Act therefore can only be a natural person and
not a juristic person, otherwise, the entire purpose of that
section will be defeated. If the contention of the Company
is accepted, it can purchase land from Scheduled
29 (2012) 10 SCC 283
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Caste/Scheduled Tribe and then sell it to a non-Scheduled
Caste and Scheduled Tribe, a situation the legislature
wanted to avoid. A thing which cannot be done directly
cannot be done indirectly overreaching the statutory
restriction.
13. We are, therefore, of the view that the reasoning of the
High Court that the respondent being a juristic person, the
sale effected by a member of Scheduled Caste to a juristic
person, which does not have a caste, is not hit by Section
42 of the Act, is untenable and gives a wrong
interpretation to the abovementioned provision.”
B) Similarly, in Rajasthan Housing Board vs. New Pink City
Nirman Sahkari Samiti Limited and Another30, the effect of said Section
42(b) in the context where the land was acquired from members of
Scheduled Castes and Scheduled Tribes by a Society, was considered by a
bench of three Judges as under:-
“26. In the instant case, the transaction is ab initio void,
that is, right from its inception and is not voidable at
volition by virtue of the specific language used in Section
42 of the Rajasthan Tenancy Act. There is declaration that
such transaction of sale of holding “shall be void”. As the
provision is declaratory, no further declaration is required
to declare prohibited transaction a nullity. No right accrues
to a person on the basis of such a transaction. The person
who enters into an agreement to purchase the same, is
aware of the consequences of the provision carved out in
order to protect weaker sections of the Scheduled Castes
and Scheduled Tribes. The right to claim compensation
accrues from right, title or interest in the land. When such
right, title or interest in land is inalienable to non-SC/ST,
obviously the agreements entered into by the Society with
the khatedars are clearly void and decrees obtained on the
basis of the agreement are violative of the mandate of
Section 42 of the Rajasthan Tenancy Act and are a nullity.
Such a prohibited transaction opposed to public policy,
30 (2015) 7 SCC 601
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cannot be enforced. Any other interpretation would be
defeasive of the very intent and protection carved out
under Section 42 as per the mandate of Article 46 of the
Constitution, in favour of the poor castes and downtrodden
persons, included in the Schedules to Articles 341 and 342
of the Constitution of India.”
19. The prohibition against transfer of a land of a tribal to a non-tribal
was extended in Shamjibhai Keshavjibhai Kansagra (Patel) & Ors. V.
Principal Secretary, Revenue Dept. (Appeals) & Ors.31 by the Division
Bench of the High Court of Gujarat to testamentary disposition in favour
of a non-tribal. Section 73AA of the Bombay Land Revenue Code, 1879
(as applicable to State of Gujarat) restricts “transfer of occupancy” from
tribals to non-tribals, without the previous sanction of the Collector. The
Division Bench considered, inter alia, the judgment which is presently
under appeal and observed as under:
“13. Chapter VI of the Code relates to 'grant, use and
relinquishment of unalienated land'. Under Section 68
occupants' rights are conditional. An occupant is entitled
to the use and occupation of his land for the period, if any,
to which his tenure is limited or if the period is unlimited
or a survey settlement has been extended to the land in
perpetuity conditionally on the payment of the amounts
due on account of the land revenue for the same. Under
the proviso thereto, the Collector may grant permission to
any person to occupy any unalienated unoccupied land for
certain period. Under Section 73 occupancy is transferable
and inheritable subject to Section 56 of the Act. Section
73A empowers the State Government to restrict the right
of transfer. Under Section 73AA, there is restriction on
transfer of occupancies of tribals to tribals or non-tribals
notwithstanding anything contained in Section 73 except
without previous sanction of the Collector as evident from
31AIR 2011 Gujarat 55
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the said provision, relevant portion of which is quoted
hereunder:
“73AA. Restriction on transfer of occupancies of
tribals to tribals or non-tribals.-(1)
Notwithstanding anything contained in Section
73, an occupancy of a person belonging to any of
the Schedule Tribes hereafter in this section and
in Section 73AB referred to as 'the tribal' shall not
be transferred to any person without the previous
sanction of the Collector.
(2) The previous sanction of the Collector under
Sub-section (1) may be given in such
circumstances and subject to such conditions as
may be prescribed.”
14. From the aforesaid provision, it will be evident that
there is a restriction on 'transfer of occupancy' of land of
tribals by any mode, whether sale, gift, exchange,
mortgage, lease or assignment or even under a will.
… … …
19. It is true that there is a difference between a transfer of
property and a bequest under will. Transfer of Property
Act, 1882, deals with transfers inter vivos, that is, by a
living person who conveys the property to one or more
living persons. The provisions of Transfer of Property Act
are inapplicable to testamentary successions, which are
governed by Indian Succession Act, 1925. Whereas a
transfer is a conveyance of an existing property by one
living person to another. On the other hand, a will is a
legal expression of a wish and intention of a person in
regard to his properties. When a person makes a will, he
provides for testamentary succession. A will is revocable
and comes into operation only after the death of the
testator. Thus, on demise of the testator, the will cannot be
treated to be a document of transfer of an existing
property. By execution of a will, no right or title or interest
is created in favour of anyone during the lifetime of the
deceased. Right only flows after the death of testator.
… … …
22. The question arises as to whether any living person can
execute a document in contravention of any law. The
answer is always in negative. If law do not permit and
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there is a prohibition to do certain thing, or there is a
prohibition to do certain act except in certain manner, any
document or agreement or anything in contravention to
such provision of law, is illegal and invalid. During the
lifetime of a living person, if the person is under
restriction to execute certain document and thereby has no
right to transfer his occupancy or no right to transfer his
interest under one or other Act, he cannot execute any
document, including a will showing his wish and intention
in regard to such property in contravention of such law.
Therefore, a tribal even cannot wish nor can show his
intention to transfer his right of occupancy to a tribal or
non-tribal, there being restriction Under Section 73AA of
the Bombay Land Revenue Code. Similarly, a tenantowner
of agricultural land cannot wish nor can show his
intention to transfer his right on agricultural land to a nonagriculturist
by executing a will in contravention of
Section 63 of the Bombay Tenancy Act, except in the
manner prescribed thereunder. Any such wish and
intention shown by testator during his lifetime, being in
contravention of law, as noticed above, is invalid and can
be ignored.
… … …
24. Therefore, even if it is accepted that the transfer under
the Transfer of Property Act is a conveyance of an existing
property by one living person to another, and will does not
involve any transfer, but if a will is executed in
contravention of law, it is always open to the authority to
ignore such will and may refuse to mutate the name on the
basis of such will.”
20. The common thread running through these decisions except that in
Mahadeo8 is to construe the prohibition against transfer appearing in
various statutes in keeping with the legislative intent. As laid down in
Amarendra Pratap Singh24, where the object of the legislation is to prevent
a mischief and to confer protection on the weaker sections of the society,
the court would not hesitate in placing an extended meaning, even a
stretched one, on the word, if in doing so the statute would succeed in
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attaining the object sought to be achieved. We must therefore examine the
provisions of the Act to consider the legislative scheme.
A) In terms of Section 32, on the tillers’ day every tenant
satisfying the requirements spelt out in Section 32(1), and upto the
ceiling limit as laid down in Section 32A, is deemed to have
purchased from his landlord, free from all encumbrances, the land
held by him as tenant.
B) The purchase price payable by the tenant for such deemed
purchase is to be determined in terms of Section 32H, according
to which, in case of a permanent tenant the purchase price has to
be equal to six times the rent, while in case of other tenants, the
purchase price would not be less than 20 times the assessment,
and not more than 200 times the assessment.
C) In case the proceedings for eviction of the tenant are
pending, the deemed date of purchase will stand postponed in
terms of the first proviso to Section 32.
D) Even if the tenant had lost the possession before the tillers’
day, in certain cases the possession can be restored to him and the
benefit of statutory purchase can be enjoyed by him as stipulated
in sub-sections (1A) and (1B) of Section 32. The benefit of
statutory purchase is also made available to tenants in areas within
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the limits of Municipal Boroughs, or within the limits of
Municipal Districts as contemplated by Section 32(4) of the Act.
E) If the landlord is under a disability, as stated in Section 32F,
the right to purchase the land can be exercised after cessation of
disability. In such cases, the period within which the right to
purchase could be exercised was initially a fixed period, but
facility is given in Section 32F(1A) that even if the period had
expired, the tenant is still deemed to have purchased the land.
F) Even a sub-tenant of a permanent tenant is entitled to the
right of deemed purchase in terms of Section 32I and all the
provisions concerning deemed purchase are to apply to such subtenant.
The shares of purchase price are then to be allocated in
terms of Section 32I (3).
G) If the tenancy is created after the tillers’ day, in terms of
Section 32O, as it stood before its deletion (vide Gujarat Act
No.10 of 2009), a tenant could exercise the right of purchase
within one year from the commencement of his tenancy.
H) If the purchase has become ineffective or there was failure
on the part of the tenant to exercise the right of purchase, the
Collector under Section 32P either suo motu, or on an application,
can pass appropriate directions in terms of Section 32P(2). In
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such cases, the land is to be disposed of to the persons in the
priority list. At the top of the priority list is the tenant himself, in
case he is willing to accept the offer of sale, followed by various
entities and persons including agricultural labourers, land-less
persons, small holders and persons belonging to Scheduled Castes
and Scheduled Tribes.
I) If none of those persons in the priority list come forward to
purchase the land, the land is to vest in the State Government,
whereupon in terms of Section 32P(4) the purchase price can be
determined, which will then be paid to the owner of the land.
J) Where the purchase in favour of persons from the priority
list in terms of Section 32 is effected, the price will be determined
in terms of Section 32P(5) read with other provisions, to be paid
in annual instalments not exceeding six.
K) If any land was surrendered to the landlord before the
specified date and the possession of the land was taken by the
landlord, in terms of Section 32P(7), the landlord will be entitled
to the use and occupation of the land so long as he cultivates the
land personally. In such cases, by virtue of Section 32P(8) no
land as described in Section 32P(7) can be transferred by sale,
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mortgage, lease or assignment without the previous sanction of
the Collector.
L) Even in cases where the land is at the disposal of the
Collector under Section 32P, by virtue of Sections 32PP, 32PPP
additional opportunities are granted to the tenant to avail of the
benefit of statutory purchase. Even where the tenant had failed to
deposit the purchase price, in cases covered by Section 32QQ the
amount will be deposited on his behalf by the State Government.
M) Upon payment of the last instalment, a certificate of
purchase is issued to the tenant or sub-tenant or such other
person(s)/ entities in the priority list, as the case may be. The
certificate of purchase is conclusive evidence of the ownership of
such purchaser.
N) A right was conferred upon the tenant with respect to a
dwelling house under Section 17 whereunder the tenant was given
the first option of purchasing the site at a value, to be determined
by the tribunal. However, by virtue of the newly incorporated
Section 17B, every tenant is deemed to have purchased from his
landlord the site on which the dwelling house occupied by such
tenant is built and the land immediately appurtenant thereto and
necessary for the enjoyment of dwelling house.
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O) If the landlord intends to sell any land, he must apply to the
tribunal in terms of Section 64 which may thereafter determine the
reasonable price, and the offer has to be made in terms of Section
32P to the concerned persons.
P) Section 88B had granted exemption from the provisions
pertaining to statutory purchase and determination of price in
respect of lands held by a University or a trust for an educational
purpose, a hospital, punjarapol or Gaushala and to lands donated
by any person for the purposes of rendering any services to the
community. However, in terms of Section 88E, such exemption
ceased to operate from the specified date, and the tenants of such
lands are also deemed to have purchased the land on the specified
date, and all the relevant provisions regarding statutory purchase
would then apply to such land.
Q) Section 32R obliges the purchaser of land to cultivate the
land personally, and in case of failure, the land can be disposed of
in terms of Section 84C of the Act.
21. The provisions considered in the preceding paragraph deal with
matters pertaining to and arising out of proceedings related to statutory
purchase. Sections 14 and 29 do not belong to that category. In terms of
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Section 14, if the land “is assigned” in contravention of Section 27, the
tenancy of the tenant is liable to be terminated. Section 27 states in clear
terms that “assignment of any interest” in the land by a tenant shall not be
valid. The decision of this Court in Bhavarlal16 has stood the test of time
which clearly states that a tenancy governed by a statute which prohibits
assignment, cannot be willed away to a total stranger. The expression
“assignment” in Sections 14 and 27, if understood in light of the decision
of this Court in Bhavarlal16 which has consistently been followed, must
include testamentary disposition.
One thought may be expressed here though that by itself may not be
determinative and that is, the meaning ascribed to the expression
“assignment” in Section 43 cannot in any way be different. There is
nothing in the provisions of the Act to suggest that the expression
“assignment” must carry a different meaning in Sections 14 and 27 on the
one hand, and Section 43 on the other.
22. The provisions analysed hereinabove intend to confer the
advantage of statutory purchase upon a cultivating tenant, and see that “the
tiller of the land” is conferred ownership with respect to the lands
cultivated by him as well as the dwelling house occupied by him. Thus, a
cultivating tenant, if his holding is otherwise not beyond the ceiling limit,
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would be given the right to own the land cultivated by him. In cases where
no purchase could be effected either on account of inability of the tenant to
pay the purchase price, or on account of other situations, more than one
attempt and opportunities are afforded to him. The statute goes to the
extent of obliging the State Government to deposit the purchase price on
his behalf. Even in cases where the tenant is unable to exercise the right of
purchase because his holding would go beyond ceiling limit, the land
would not revert to the landlord, but in terms of Section 32P, it must come
to the persons or entities listed in the priority list. The priority list includes
persons such as agricultural labourers and landless persons. The scheme
is, therefore, to effectuate distribution of agricultural lands in such a way
that the persons who are disadvantaged, would be conferred the ownership.
After such purchase, the law obliges the purchaser to cultivate the land
personally and not to transfer it. We may at this stage notice the
observations in the majority opinion authored by K. Ramaswamy, J. under
the caption “Agriculture – a means of livelihood succour for social justice
and base for dignity of person”, in Samatha vs. State of A.P. and Others32
where this Court, inter alia, dealt with the provisions of the Andhra
Pradesh Scheduled Areas Land Transfer Regulations, 1989 including the
prohibition against transfer.
32 (1997) 8 SCC 191
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“9. Agriculture is the main part of the economy and source
of livelihood to the rural Indians and a source and succour
for social status and a base for dignity of person. Land is a
tangible product and sustaining asset to the agriculturists.
In Waman Rao v. Union of India33 a Constitution Bench
had observed that India being a predominantly agricultural
society, there is a “strong linkage between the land and the
person’s status in social system”. The strip of land on
which they till and live assures them equal justice and
“dignity of their person by providing to them a near decent
means of livelihood”. Agricultural land is the foundation
for a sense of security and freedom from fear. Assured
possession is a lasting source for peace and prosperity.
10. Agriculture is the only source of livelihood for
Scheduled Tribes, apart from collection and sale of minor
forest produce to supplement their income. Land is their
most important natural and valuable asset and
imperishable endowment from which the tribals derive
their sustenance, social status, economic and social
equality, permanent place of abode and work and living. It
is a security and source of economic empowerment.
Therefore, the tribes too have great emotional attachment
to their lands. The land on which they live and till, assures
them equality of status and dignity of person and means to
economic and social justice and is a potent weapon of
economic empowerment in social democracy.”
23. If a tenant or any other person from the priority list is conferred
ownership in respect of the agricultural land or when a landlord is allowed
to retain the land which was surrendered by his tenant, each one of them is
obliged to cultivate the land personally. In case any of them is unwilling,
the land must be given to those who principally depend upon agricultural
operations for their sustenance. If a person is a beneficiary of such
statutory purchase and wishes to transfer his holding the law obliges that
he must take prior sanction from the Collector. While granting such
33 (1981) 2 SCC 362 : (1981) 2 SCR 1
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sanction, the authorities may essentially check whether the transferee is an
agriculturist or an agricultural labour who otherwise fulfils the
requirements and would carry out the obligation of cultivating the land
personally; and that his holding would not go beyond the ceiling limit.
Since the ownership itself was conferred as a result of the legislative
scheme as discussed hereinabove, these conditions are inherent in the very
conferral of ownership and, therefore, specifically incorporated in Section
43 with direct reference to the provisions named therein.
24. A transfer inter vivos would normally be for consideration where
the transferor may get value for the land but the legislation requires
previous sanction of the concerned authority so that the transferee can step
into the shoes of the transferor, and carry out all the obligations as a part of
legislative scheme must be discharged. Thus, the screening whether a
transferee is eligible or not, can be undertaken even before the actual
transfer is effected. As against this, if a testamentary disposition which
does not have the element of consideration is to be permitted, and if it is
assumed that Sections 43 and 63 of the Act do not get attracted, the land
can be bequeathed to a total stranger and a non-agriculturist who may not
cultivate the land himself; which in turn may then lead to engagement of
somebody as a tenant on the land. The legislative intent to do away with
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absentee landlordism and to protect the cultivating tenants, and to establish
direct relationship between the cultivator and the land would then be
rendered otiose. The construction put on the expression “assignment”
appearing in Section 43, therefore, has to be consistent with the legislative
scheme. In the context of the entire scheme, the term “assignment” used in
Section 43 of the Act must include testamentary disposition as well. By
adopting such construction, in keeping with the law laid down by this
Court, the statute would succeed in attaining the object sought to be
achieved. On the other hand, if it is held that the testamentary disposition
would not get covered by the provisions of Section 43, a gullible person
can be made to execute a testament in favour of a person who may not
fulfil the requirements and be eligible to be a transferee in accordance with
law. This may not only render the natural heirs of the tenant without any
support or sustenance, but may also have serious impact on agricultural
operations.
25. In the circumstances the view taken by the Division Bench of the
High Court in the present matter is absolutely correct and does not call for
any interference. The decision is completely consistent with the law laid
down by this Court in Sangappa4 and Jayamma5 and the other cases
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referred to hereinabove and must be accepted to be the correct exposition
of law.
26. This brings us to the last question which was raised by Mr.
Srivatsa, learned counsel for some of the Appellants. In his submission,
any prohibition in the State enactment inconsistent with the principles
emanating from the Central legislation namely Indian Succession Act,
1925 must be held to be void. Though, no such contention was raised
before the High Court, nor is it reflected in the pleadings, we proceed to
consider the said submission.
27. In Lingappa20, the challenge was also raised on the ground of
legislative competence and the observations of this Court in that behalf
were:-
“25. The submission as regards lack of legislative
competence of the State to enact the impugned Act which
provides by Sections 3(1) and 4 for annulment of transfers
by tribals to non-tribals effected during the period from
April 1, 1957 to July 6, 1974 stems on a misconception of
the nature and content of the legislative power of the State
under Entry 18 in List II which reads:
“18. Land, that is to say, rights 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 contention advanced fails to take note that the
impugned Act strikes at transactions relating to
agricultural lands effected between members of Scheduled
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Tribes who admittedly belong to the weaker section of the
society and persons not belonging to Scheduled Tribes.
Experience in the past showed that members of the
Scheduled Tribes had been exploited due to their
ignorance and poverty by members belonging to the
affluent and powerful sections of the society to obtain
transfer of their lands by way of sale, gift, mortgage,
exchange etc. for a nominal consideration or for no
consideration at all rendering them practically landless. It
was also realized that due to their multifarious duties the
Sub-Divisional Officers and the Collectors had accorded
sanction to such transfers without application of mind to
the prevalent circumstances. It was further felt that the
members of Scheduled Tribes had become victims of
circumstances by reason of their lands being sold for
realization of arrears of land revenue or otherwise under
the Maharashtra Co-operative Societies Act, 1960 or any
other law for the time being in force. Much of the lands
had been transferred by members of Scheduled Tribes
under compulsion due to their indebtedness and their lands
had passed into the hands of creditors lending money at an
unusually high rate of interest and were thus in a position
to dominate the will of the borrowers. The Committee
appointed by the State Government pointed out in its
report that the provisions of the Maharashtra Land
Revenue Code, 1966 and the relevant tenancy laws had
not been effective in giving protection to persons
belonging to the Scheduled Tribes. It recommended inter
alia that provision should be made for restoring to
possession members of Scheduled Tribes the lands which
had been duly transferred by them to other persons. There
is always a presumption when there is a transfer between a
tribal and a non-tribal that it is an unequal bargain. As
regards the weak and the helpless, the law guards them
with a special protective care. The Legislature therefore
stepped in and reopened such transactions by directing that
lands be restored to the tribal transferors free from all
encumbrances on payment by them to the non-tribal
transferees the amounts determined by the Collector under
sub-section (4) of Section 3. The restoration of possession
by Sections 3(1) and 4 does not involve any deprivation of
the property in the sense that there is unsettling of title
without consideration. It makes detailed provisions setting
out the conditions subject to which a transfer by a tribal of
his agricultural lands to a non-tribal may be nullified and
possession restored. It also provides for the legal
consequences that must ensue upon restoration of such
possession like repayment of the consideration that passed
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by such tribal transferor to the non-tribal transferee
together with his liability to pay for the costs of
improvements, if any, effected and the giving of an
undertaking by the tribal transferor that he needs the lands
for his personal cultivation. It further prescribes the mode
of payment of the amount so determined. The object of the
legislation is restitution of the property to the persons to
whom the lands originally belonged, subject to the
adjustment of equities between the parties.”
This Court then went on to observe that the Act under challenge, in
true nature and character, was a law relating to transfers and alienations of
agricultural lands by members of Scheduled Tribes in the State to persons
not belonging to Scheduled Tribes and must necessarily fall within Entry
18 in List II. This Court observed:-
“26. …..The power to legislate cannot be denied to the
State on the ground that the provisions of Sections 3(1)
and 4 which provide for annulment of transfers by tribals
incidentally trench upon the existing law, namely, the
Transfer of Property Act, 1882 or a law made by
Parliament viz. the Specific Relief Act, 1963. The power
of the State Legislature to make a law with respect to
transfer and alienation of agricultural land under Entry 18
in List II carries with it not only a power to make a law
placing restrictions on transfers and alienations of such
lands including a prohibition thereof, but also the power to
make a law to reopen such transfers and alienations. Such
a law was clearly within the legislative competence of the
State Legislature being relatable to Entry 18 in List II of
the Seventh Schedule.”
28. The principles on the point were summed up by this Court in
Welfare Association, A.R.P., Maharashtra and Another vs. Ranjit P.
Gohil and Others34 as under:-
34 (2003) 9 SCC 358
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“25. What should be the approach of the Court dealing
with a challenge to the constitutionality of a legislation has
been succinctly set out in Principles of Statutory
Interpretation by Justice G.P. Singh (8th Edn., 2001 at pp.
453-54 and 36). A statute is construed so as to make it
effective and operative on the principle expressed in the
maxim “ut res magis valeat quam pereat”. (It is better to
validate a thing than to invalidate it.) There is a
presumption that the legislature does not exceed its
jurisdiction. The burden of establishing that the Act is not
within the competence of the legislature, or that it has
transgressed other constitutional mandates, such as those
relating to fundamental rights, is always on the person
who challenges its vires. If a case of violation of a
constitutional provision is made out then the State must
justify that the law can still be protected under a saving
provision. The courts strongly lean against reducing a
statute to a futility. As far as possible, the courts shall act
to make a legislation effective and operative.
26. In Charanjit Lal Chowdhury v. Union of India35
the Constitution Bench held that the presumption is always
in favour of the constitutionality of an enactment, and the
burden is upon him who attacks it to show that there has
been a clear transgression of the constitutional principles.
… … …
28. The fountain source of legislative power exercised
by Parliament or the State Legislatures is not Schedule 7;
the fountain source is Article 246 and other provisions of
the Constitution. The function of the three lists in the
Seventh Schedule is merely to demarcate legislative fields
between Parliament and States and not to confer any
legislative power. The several entries mentioned in the
three lists are fields of legislation. The Constitutionmakers
purposely used general and comprehensive words
having a wide import without trying to particularize. Such
construction should be placed on the entries in the lists as
makes them effective; any construction which will result
in any of the entries being rendered futile or otiose must
be avoided. That interpretation has invariably been
countenanced by the constitutional jurists, which gives the
words used in every entry the widest-possible amplitude.
Each general word employed in the entries has been held
to carry an extended meaning so as to comprehend all
ancillary and subsidiary matters within the meaning of the
35 AIR 1951 SC 41 : 1950 SCR 869
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entry so long as it can be fairly accommodated subject to
an overall limitation that the courts cannot extend the field
of an entry to such an extent as to result in inclusion of
such matters as the framers of the Constitution never
intended to be included within the scope of the entry or so
as to transgress into the field of another entry placed in
another list.
29. In every case where the legislative competence of a
legislature in regard to a particular enactment is
challenged with reference to the entries in the various lists,
it is necessary to examine the pith and substance of the Act
and to find out if the matter comes substantially within an
item in the list. The express words employed in an entry
would necessarily include incidental and ancillary matters
so as to make the legislation effective. The scheme of the
Act under scrutiny, its object and purpose, its true nature
and character and the pith and substance of the legislation
are to be focused at. It is a fundamental principle of
constitutional law that everything necessary to the exercise
of a power is included in the grant of the power (see the
Constitution Bench decision in Chaturbhai M. Patel v.
Union of India36).
30. In Diamond Sugar Mills Ltd. v. State of U.P37 the
Constitution Bench defined the two bounds between
which the stream of interpretative process dealing with
entries in the Seventh Schedule must confine itself and
flow. One bank is the salutary rule that the words
conferring the right of the legislation should be interpreted
liberally and the powers conferred should be given the
widest amplitude; the other bank is guarding against
extending the meaning of the words beyond their
reasonable connotation in an anxiety to preserve the power
to legislate. The working rule of the game is to resolve, as
far as possible, in favour of the legislative body any
difficulty or doubt in ascertaining the limits.
31. A note of caution was sounded by the Constitution
Bench in Synthetics & Chemicals Ltd. v. State of U.P.38.
The Constitution must not be construed in any narrow or
pedantic sense and that construction which is most
beneficial to the widest-possible amplitude of its power
36 AIR 1960 SC 424 : (1960) 2 SCR 362
37 AIR 1961 SC 652 : (1961) 3 SCR 242
38 (1990) 1 SCC 109
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must be adopted. An exclusionary clause in any of the
entries should be strictly and, therefore, narrowly
construed. No entry should be so read as to rob it of its
entire content. A broad and liberal spirit should inspire
those whose duty it is to interpret the Constitution. The
Constitution is a living and organic thing and must adapt
itself to the changing situations and pattern in which it has
to be interpreted. To bring any particular enactment within
the purview of any legislative power, it is the pith and
substance of the legislation in question that has to be
looked into by giving the widest amplitude to the language
of the entries. The Constitution must be interpreted in the
light of the experience gathered. It has to be flexible and
dynamic so that it adapts itself to the changing conditions
in a pragmatic way. The undisputed constitutional goals
should be permitted to be achieved by placing an
appropriate interpretation on the entries. The Constitution
has the greatest claim to live. The claim ought not to be
throttled. The directive principles of State policy can serve
as a potent and useful guide for resolving the doubts and
upholding the constitutional validity of any legislation, if
doubted.
32. In United Provinces v. Atiqa Begum39 Their
Lordships upheld the principle that the question whether
any impugned Act is within any of the three lists, or in
none at all, is to be answered by considering the Act as a
whole and deciding whether in pith and substance the Act
is with respect to particular categories or not and held that
in doing so the relevant factors are: (i) the design and the
purport of the act, both as disclosed by its language, and
(ii) the effect which it would have in its actual operation.
… … …
34. The Constitution Bench decision of this Court in
Indu Bhushan Bose v. Rama Sundari Debi40 needs a
special mention. A rent control legislation enacted by the
State Legislature was sought to be extended to the
cantonment area. The High Court held that the same was
not permissible inasmuch as so far as the cantonment area
is concerned, legislation touching regulation of house
accommodation is governed by Entry 3 of List I which
reads, inter alia, “the regulation of house accommodation
(including the control of rents) in such areas” i.e.
cantonment areas. During the course of its judgment, the
39 AIR 1941 FC 16 : 1940 FCR 110
40 (1969) 2 SCC 289 : (1970) 1 SCR 443
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Constitution Bench held that the entry has to be liberally
and widely interpreted. Regulation of houses in private
occupation would fall within the entry. The word
“regulation” includes power to direct or control all
housing accommodation in cantonment areas, which in its
turn, will include within it all aspects as to who is to make
the construction, under what conditions the constructions
can be altered, who is to occupy the accommodation and
for how long, on what terms it is to be occupied, when and
under what circumstances the occupant is to cease to
occupy it, and the manner in which the accommodation is
to be utilized. All these are ingredients of regulation of
house accommodation in its wide sense. Parliament could
legislate in respect of house accommodations in
cantonment areas in all its aspects, including regulation of
grant of leases, ejectment of lessees and ensuring that the
accommodation is available on proper terms as to rents.
The power of the State Legislature to legislate in respect
of landlord and tenant of buildings is to be found in
Entries 6, 7 and 13 of List III of the Seventh Schedule to
the Constitution and not in Entry 18 of List II, and that
power was circumscribed by the exclusive power of
Parliament to legislate on the same subject under Entry 3
of List I.
35. Before the Constitution Bench in Indu Bhushan
Bose40 the English decisions in Prout v. Hunter41,
Property Holding Co. Ltd. v. Clark42 and Curl v. Angelo43
were cited with approval. In Prout v. Hunter41 the Rent
Restrictions Act was held to have been passed by
Parliament with the twofold object: (i) of preventing the
rent from being raised above the pre-war standard, and (ii)
of preventing tenants from being turned out of their houses
even if the term for which they had originally taken them
had expired. In Property Holding Co. Ltd. v. Clark42 the
objects of policy underlying rent restriction legislations
were stated to be: (i) to protect the tenant from eviction
from the house where he is living, except for defined
reasons and on defined conditions; and (ii) to protect him
from having to pay more than a fair rent. The latter object
is achieved by the provisions for standard rent with (a)
only permitted increases, (b) the provisions about furniture
and attendance, and (c) the provisions about transfers of
burdens and liabilities from the landlord to the tenant
41 (1924) 2 KB 736 : 1924 AII ER Rep 53 : 132 LT 193 (CA)
42 (1948) 1 KB 630 : (1948) 1 AII ER 165 (CA)
43 (1948) 2 AII ER 189 (CA)
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which would undermine or nullify the standard rent
provisions. Such acts operate in rem upon the house and
confer on the house itself the quality of ensuring to the
tenant a status of irremovability. Tenants’ security of
tenure is one of the distinguishing characteristics
conferred by the statute upon the house. In Curl v.
Angelo43 Lord Greene, M.R., dealing with the Rent
Restrictions Act, held that the overriding purpose and
intention of such Acts are to protect the person residing in
a dwelling house from being turned out of his home. In the
opinion of the Constitution Bench these cases are a pointer
to the principle that rent control legislations can be
effective and purposeful only if they also regulate eviction
of tenants. Regulation of house accommodation, therefore,
includes within its sweep the power to regulate eviction of
tenants.
… … …
37. There is yet another angle of looking at the issue.
In Lingappa Pochanna Appelwar v. State of
Maharashtra20 the provisions of the Maharashtra
Restoration of Lands to Scheduled Tribes Act, 1975 came
up for consideration which Act related to transfers and
alienation of agricultural lands by members of Scheduled
Tribes in the State to persons not belonging to Scheduled
Tribes. The legislation fell in Entry 18 in List II. Certain
provisions of the Act trenched upon the existing law,
namely, the Transfer of Property Act and the Specific
Relief Act, both made by Parliament. It was held that the
power of the State Legislature to make a law with respect
to transfer and alienation of agricultural land carries with
it not only a power to make a law placing restrictions on
transfers and alienations of such lands including a
prohibition thereof, but also the power to make a law to
reopen such transfers and alienations. The legislative
competence was spelt out from Entry 18 in List II of
Schedule 7. The Court observed: (SCC p. 493, para 16)
“16. The present legislation is a typical
illustration of the concept of distributive justice,
as modern jurisprudents know it. Legislators,
Judges and administrators are now familiar with
the concept of distributive justice. Our
Constitution permits and even directs the State to
administer what may be termed ‘distributive
justice’. The concept of distributive justice in the
sphere of law-making connotes, inter alia, the
removal of economic inequalities and rectifying
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the injustice resulting from dealings or
transactions between unequals in society. Law
should be used as an instrument of distributive
justice to achieve a fair division of wealth among
the members of society based upon the principle:
‘From each according to his capacity, to each
according to his needs.’ Distributive justice
comprehends more than achieving lessening of
inequalities by differential taxation, giving debt
relief or distribution of property owned by one to
many who have none by imposing ceiling on
holdings, both agricultural and urban, or by direct
regulation of contractual transactions by
forbidding certain transactions and, perhaps, by
requiring others. It also means that those who
have been deprived of their properties by
unconscionable bargains should be restored their
property. All such laws may take the form of
forced redistribution of wealth as a means of
achieving a fair division of material resources
among the members of society or there may be
legislative control of unfair agreements.”
38. In Maneklal Chhotalal v. M.G. Makwana44 the
constitutional validity of the Bombay Town Planning Act,
1954 as amended by Gujarat Act 52 of 1963 was put in
issue. The legislation fell within Entry 18 of List II. The
Court also held after elaborately referring to the various
provisions contained in the Act that it was passed with a
view to regulate the development of certain areas with the
general object of framing proper schemes for the healthy
and orderly development of the area in question and it is
with a view to achieve this purpose that a very elaborate
procedure and machinery have been prescribed under the
Act. For this reason it was held that the competency of the
State legislation aimed at equitable distribution of landed
property resulting in partial deprivation of proprietary
rights can also be rested under Entry 20 of List III which is
“economic and social planning”.
29. The validity of Sections 13 to 16 of the Maharashtra Control of
Organised Crime Act, 1999 was struck down by the Bombay High Court as
44 AIR 1967 SC 1373 : (1967) 3 SCR 65
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being beyond the legislative competence of the State Legislature. While
upholding the validity, this Court re-stated the principles in State of
Maharashtra vs. Bharat Shanti Lal Shah and Others45 as under:-
“37. It is a well-established rule of interpretation that the
entries in the List being fields of legislation must receive
liberal construction inspired by a broad and generous spirit
and not in a narrow pedantic sense. Each general word
should extend to all ancillary and subsidiary matters which
can fairly and reasonably be comprehended within it.
38. In Navinchandra Mafatlal v. CIT46 this Court
observed as under: (AIR p. 61, para 6)
“6. … As pointed out by Gwyer, C.J. in
United Provinces v. Atiqa Begum39, FCR at p.
134 none of the items in the Lists is to be read
in a narrow or restricted sense and that each
general word should be held to extend to all
ancillary or subsidiary matters which can fairly
and reasonably be said to be comprehended in
it. It is, therefore, clear—and it is
acknowledged by Chief Justice Chagla—that
in construing an entry in a List conferring
legislative powers the widest possible
construction according to their ordinary
meaning must be put upon the words used
therein … The cardinal rule of interpretation,
however, is that words should be read in their
ordinary, natural and grammatical meaning
subject to this rider that in construing words in
a constitutional enactment conferring
legislative power the most liberal construction
should be put upon the words so that the same
may have effect in their widest amplitude.”
39. Similar were the observations of a five-Judge Bench of
this Court in Godfrey Phillips India Ltd. v. State of U.P47,
which are as follows: (SCC p. 541, paras 49-50)
45 (2008) 13 SCC 5
46 AIR 1955 SC 58
47 (2005) 2 SCC 515
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“49. … Where there is the possibility of
legislative overlap, courts have resolved the
issue according to settled principles of
construction of entries in the Legislative Lists.
50. The first of such settled principles is that
legislative entries should be liberally
interpreted, that none of the items in the List is
to be read in a narrow or restricted sense and
that each general word should be held to
extend to ancillary or subsidiary matters which
can fairly and reasonably be said to be
comprehended in it (United Provinces v.
Atiqa Begum39, Western India Theatres Ltd.
v. Cantonment Board48, SCR at p. 69 and Elel
Hotels & Investments Ltd. v. Union of
India49).”
40. It is also a cardinal rule of interpretation that there
shall always be a presumption of constitutionality in
favour of a statute and while construing such statute every
legally permissible effort should be made to keep the
statute within the competence of the State Legislature. In
Burrakur Coal Co. Ltd. v. Union of India50 this Court
held the same in the following manner: (AIR p. 963, para
25)
“25. … Where the validity of a law made by a
competent legislature is challenged in a court
of law that court is bound to presume in favour
of its validity. Further while considering the
validity of the law the court will not consider
itself restricted to the pleadings of the State
and would be free to satisfy itself whether
under any provision of the Constitution the
law can be sustained.”
41. In CST v. Radhakrishan51 this Court while dealing
with the question of constitutional validity of a statute held
that the presumption is always on the constitutionality and
the burden is upon the person who attacks it to show that
there has been transgression of constitutional principles. It
was held in that decision that for sustaining the
constitutionality of an Act, a court may take into
48 AIR 1959 SC 582 : 1959 Supp (2) SCR 63
49 (1989) 3 SCC 698
50 AIR 1961 SC 954 : (1962) 1 SCR 44
51 (1979) 2 SCC 249 : 1979 SCC (Tax) 108
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consideration matters of common knowledge, reports,
Preamble, history of the times, object of the legislation
and all other facts which are relevant and that it must
always be presumed that the legislature understands and
correctly appreciates the need of its own people and that
discrimination, if any, is based on adequate grounds and
considerations.
42. In this regard we may also refer to a three-Judge
Bench decision of this Court titled Greater Bombay Coop.
Bank Ltd. v. United Yarn Tex (P) Ltd.52 In the said
decision one of the issues that was raised was “whether the
State Legislature is competent to enact legislation in
respect of cooperative societies incidentally transacting
business of banking, in the light of Entry 32, List II of the
Seventh Schedule of the Constitution”. While deciding the
said issue reference was made and reliance was placed on
the following passage contained in the earlier decision of
this Court in State of Bihar v. Bihar Distillery Ltd.53 about
the nature of approach which the court should adopt while
examining the constitutional validity of a provision (vide
para 85 of United Yarn case52): (Bihar Distillery Ltd53,
SCC p. 466, para 17)
“17. … The approach of the court, while
examining the challenge to the
constitutionality of an enactment, is to start
with the presumption of constitutionality. The
court should try to sustain its validity to the
extent possible. It should strike down the
enactment only when it is not possible to
sustain it. The court should not approach the
enactment with a view to pick holes or to
search for defects of drafting, much less
inexactitude of language employed. Indeed,
any such defects of drafting should be ignored
out as part of the attempt to sustain the
validity/constitutionality of the enactment.
After all, an Act made by the legislature
represents the will of the people and that
cannot be lightly interfered with. The
unconstitutionality must be plainly and clearly
established before an enactment is declared as
void. The same approach holds good while
ascertaining the intent and purpose of an
52 (2007) 6 SCC 236
53 (1997) 2 SCC 453
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enactment or its scope and application. … The
court must recognise the fundamental nature
and importance of legislative process and
accord due regard and deference to it, just as
the legislature and the executive are expected
to show due regard and deference to the
judiciary. It cannot also be forgotten that our
Constitution recognises and gives effect to the
concept of equality between the three wings of
the State and the concept of ‘checks and
balances’ inherent in such scheme.”
43. One of the proven methods of examining the
legislative competence of an enactment is by the
application of doctrine of pith and substance. This doctrine
is applied when the legislative competence of the
legislature with regard to a particular enactment is
challenged with reference to the entries in various lists. If
there is a challenge to the legislative competence the
courts will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question. In this
process, it is necessary for the courts to go into and
examine the true character of the enactment, its object, its
scope and effect to find out whether the enactment in
question is genuinely referable to the field of legislation
allotted to the respective legislature under the
constitutional scheme. The said doctrine has come to be
established in India and is recognised in various
pronouncements of this Court as also of the High Courts.
Where a challenge is made to the constitutional validity of
a particular State Act with reference to a subject
mentioned in any entry in List I, the court has to look to
the substance of the State Act and on such analysis and
examination, if it is found that in the pith and substance, it
falls under an entry in the State List but there is only an
incidental encroachment on topics in the Union List, the
State Act would not become invalid merely because there
is incidental encroachment on any of the topics in the
Union List.
44. A five-Judge Bench of this Court in A.S. Krishna v.
State of Madras54 held as under: (AIR p. 301, para 8)
“8. … But then, it must be remembered that
we are construing a federal Constitution. It is
of the essence of such a Constitution that there
54 AIR 1957 SC 297 : 1957 SCR 399
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
105
should be a distribution of the legislative
powers of the Federation between the Centre
and the Provinces. The scheme of distribution
has varied with different Constitutions, but
even when the Constitution enumerates
elaborately the topics on which the Centre and
the States could legislate, some overlapping of
the fields of legislation is inevitable. The
British North America Act, 1867, which
established a federal Constitution for Canada,
enumerated in Sections 91 and 92 the topics on
which the Dominion and the Provinces could
respectively legislate. Notwithstanding that the
lists were framed so as to be fairly full and
comprehensive, it was not long before it was
found that the topics enumerated in the two
sections overlapped, and the Privy Council had
time and again to pass on the constitutionality
of laws made by the Dominion and Provincial
Legislatures. It was in this situation that the
Privy Council evolved the doctrine, that for
deciding whether an impugned legislation was
intra vires, regard must be had to its pith and
substance. That is to say, if a statute is found in
substance to relate to a topic within the
competence of the legislature, it should be held
to be intra vires, even though it might
incidentally trench on topics not within its
legislative competence. The extent of the
encroachment on matters beyond its
competence may be an element in determining
whether the legislation is colourable, that is,
whether in the guise of making a law on a
matter within it competence, the legislature is,
in truth, making a law on a subject beyond its
competence. But where that is not the position,
then the fact of encroachment does not affect
the vires of the law even as regards the area of
encroachment.”
45. Again a five-Judge Bench of this Court while
discussing the said doctrine in Kartar Singh v. State of
Punjab55 observed as under: (SCC p. 630, para 60)
“60. This doctrine of ‘pith and substance’ is
applied when the legislative competence of a
55 (1994) 3 SCC 569 : 1994 SCC (Cri) 899
Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.)
Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.
106
legislature with regard to a particular
enactment is challenged with reference to the
entries in the various lists i.e. a law dealing
with the subject in one list is also touching on
a subject in another list. In such a case, what
has to be ascertained is the pith and substance
of the enactment. On a scrutiny of the Act in
question, if found, that the legislation is in
substance one on a matter assigned to the
legislature enacting that statute, then that Act
as a whole must be held to be valid
notwithstanding any incidental trenching upon
matters beyond its competence i.e. on a matter
included in the list belonging to the other
legislature. To say differently, incidental
encroachment is not altogether forbidden.”
46. Though it is true that the State Legislature would not
have power to legislate upon any of the matters
enumerated in the Union List but as per the doctrine of
pith and substance there could not be any dispute with
regard to the fact that if it could be shown that the area and
subject of the legislation is also covered within the
purview of the entry of the State List and the Concurrent
List, in that event incidental encroachment to an entry in
the Union List will not make a law invalid and such an
incidental encroachment will not make the legislation ultra
vires the Constitution.”
30. In Girnar Traders (3) vs State of Maharashtra and Others (2011) 3 SCC 1, the Constitution Bench of this Court was called upon to consider, inter alia,
the competence of the State Legislature to enact certain provisions of the
Maharashtra Regional and Town Planning Act, 1966, stated to be in
conflict with Section 11A of the Land Acquisition Act, 1894, a Central
Legislation. While rejecting the submission, this Court observed: -
“183. We have already discussed in great detail that the
State Act being a code in itself can take within its ambit
provisions of the Central Act related to acquisition, while
excluding the provisions which offend and frustrate the
object of the State Act. It will not be necessary to create,
or read into the legislations, an imaginary conflict or
repugnancy between the two legislations, particularly,
when they can be enforced in their respective fields
without conflict. Even if they are examined from the point
of view that repugnancy is implied between Section 11-A
of the Land Acquisition Act and Sections 126 and 127 of
the MRTP Act, then in our considered view, they would
fall within the permissible limits of doctrine of “incidental
encroachment” without rendering any part of the State law
invalid.
184. Once the doctrine of pith and substance is applied
to the facts of the present case, it is more than clear that in
substance the State Act is aimed at planned development
unlike the Central Act where the object is to acquire land
and disburse compensation in accordance with law.
Paramount purpose and object of the State Act being
planned development and acquisition being incidental
thereto, the question of repugnancy does not arise. The
State, in terms of Entry 5 of List II of Schedule VII, is
competent to enact such a law. It is a settled canon of law
that courts normally would make every effort to save the
legislation and resolve the conflict/repugnancy, if any,
rather than invalidating the statute. Therefore, it will be the
purposive approach to permit both the enactments to
operate in their own fields by applying them
harmoniously. Thus, in our view, the ground of
repugnancy raised by the appellants, in the present
appeals, merits rejection.
185. A self-contained code is an exception to the rule
of referential legislation. The various legal concepts
covering the relevant issues have been discussed by us in
detail above. The schemes of the MRTP Act and the Land
Acquisition Act do not admit any conflict or repugnancy
in their implementation. The slight overlapping would not
take the colour of repugnancy. In such cases, the doctrine
of pith and substance would squarely be applicable and
rigours of Article 254(1) would not be attracted. Besides
that, the reference is limited to specific provisions of the
Land Acquisition Act, in the State Act. Unambiguous
language of the provisions of the MRTP Act and the
legislative intent clearly mandates that it is a case of
legislation by incorporation in contradistinction to
legislation by reference.

186. Only those provisions of the Central Act which
precisely apply to acquisition of land, determination and
disbursement of compensation in accordance with law, can
be read into the State Act. But with the specific exceptions
that the provisions of the Central Act relating to default
and consequences thereof, including lapsing of acquisition
proceedings, cannot be read into the State Act. It is for the
reason that neither have they been specifically
incorporated into the State law nor can they be absorbed
objectively into that statute. If such provisions (Section
11-A being one of such sections) are read as part of the
State enactment, they are bound to produce undesirable
results as they would destroy the very essence, object and
purpose of the MRTP Act.
187. Even if fractional overlapping is accepted
between the two statutes, then it will be saved by the
doctrine of incidental encroachment, and it shall also be
inconsequential as both the constituents have enacted the
respective laws within their legislative competence and,
moreover, both the statutes can eloquently coexist and
operate with compatibility. It will be in consonance with
the established canons of law to tilt the balance in favour
of the legislation rather than invalidating the same,
particularly, when the Central and State law can be
enforced symbiotically to achieve the ultimate goal of
planned development.”
31. If the provisions referred to in Section 43 of the Act and allied
provisions are considered in light of the settled principles extracted earlier,
it emerges that the primary concern of those provisions is to see that the
legislative scheme of granting protection to persons from disadvantaged
categories and conferring the right of purchase upon them, and thereby
ensure direct relationship of a tiller with the land. The provisions, though
lay down a norm which may not be fully consistent with the principles of
Indian Succession Act, are principally designed to attain and sub-serve the

purpose of protecting the holdings in the hands of disadvantaged
categories. The prohibition against transfers of holding without the
previous sanction of the concerned authorities, is to be seen in that light as
furthering the cause of legislation. Even if by the process of construction,
the expression “assignment” is construed to include testamentary
disposition, in keeping with the settled principles, the incidental
encroachment cannot render the said provisions invalid. In pith and
substance, the legislation and the concerned provisions are completely
within the competence of the State Legislature and by placing the
construction upon the expression “assignment” to include testamentary
disposition, no transgression will ensue.
32. We, therefore, reject the submissions advanced by Mr. Srivatsa,
learned Counsel.
33. In the premises, we accept the construction put by the Division
Bench on the provisions that fell for consideration. The challenge to the
view taken by the Division Bench must therefore be rejected. We must
also observe that the decision of this Court in Mahadeo8 which had failed
to notice the earlier decisions in Sangappa4 and Jayamma5 and which is
inconsistent with the decisions referred to hereinabove and what we have
concluded, must be held to be incorrectly decided.

34. Accordingly, all these appeals are dismissed without any order as
to costs.
…………………….J.
[Uday Umesh Lalit]
…………………….J.
[Indu Malhotra]
…………………….J.
[A.S. Bopanna]
New Delhi;
June 15, 2020
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