BHIKOBA SHANKAR DHUMAL (DEAD) BY LRS. & ORS. v. MOHAN LAL PUNCHAND TATHED & ORS

Citation: [1982] 3 S.C.R. 218

Court: Supreme Court of India

Bench: E.S. VENKATARAMIAH, A. VARADARAJAN

Judgment text

BHIKOBA SHANKAR DHUMAL (DEAD) BY LRS. &ORS. v. MOHAN LAL PUNCHAND TATHED & ORS. February 11, 1982 8 [E. S. VENKATARAMIAH AND A. VARDARAIAN, JJ. ] Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as it stood prior to amendment ofChapters II land III by the Mahallishtra Act 21 of/975- Locus standi offormer landlords to file an appeal under the Act-Construction of non-analogous statutes, applying the doctrine of stare decisis, explained-Scope of section 21 as to dropping ofthe proceedings if ileath occurs ofa person holding on tM appointed day land in ex •any exempted land jn ex~ess of the ceilin! J are11 on or after the appointed day, such, lllliKOBA SHANKAR v. MOHAN LAL ( Venkataramiah, J. ) 229 person has to furnish a return as stated above within the prescribed period from the date of taking possession of any land in excess of the ceiling area.

If any person whose land is converted into another class of land in the circumstances described in section 11-A (for- ( merly nJJmbered as section (l l) thereby causing his holding to exceed the ceiling area then such person has to file a return as mentioned above within the prescribed period from the date of such conversion (such date being a date to be notified in the Official Gazette by the ·• State Government in respect of any area). It is obvious from the foregoing requirements prescribed under section 12 of the Act that the crucial date with reference to which the extent of· the surplus land held by a person is to be determined is the appointed day in the case of persons holding lard in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day and in the case of those acquiring, holding o.

r coming into possession of such excess land on or after the appointed day, the day on which they acquire possession of any land in excess of the ceiling area. In the case of those who are affected by section ll-A of the Act, the crucial date is the date of conversion. If a person is found to be in possession of land in excess of the ceiling area at any time after the fourth date of August, 1959 but before the appointed day, he incurs the liability to surrender any surplus land as on the appointed day on the appointed day itself even though the actual extent of such surplus land is determined on a subsequent date. Similarly those who acquire land in excess of. the ceiling area on or after the appointed day would become liable to surrender surplus land on the date of taking possession of any land -in excess . of the ceiling area.

A person whose case falls under section 11-A of the Act becomes liable to surrender any surplus land in his possession as on the date of conversion of land into irrigable land. This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under section 21 of the Act. It is no doubt true that section 21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a·declaration regarding the surplus land is published in the Official Gazette. But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under section 12(l)(a) of the Act, tot. he date of taking possession SUPRBMR COURT REPORTS [1982] 3s. c. a.

of any land in excess of the ·ceiling area in the case of those who come under section 12(1)(b) of the Act and to the date of conversion of land into a different class in the case of those who come under section 12(2) of the Act. Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite. It is significant that section 8 of the Act prohibits transfer or partition of any land held by a person holding land in excess of the ceiling area on or after the .. appointed day until the land in excess of the ceiling is determined under the Act. Section JO provides that if any person after the 4th day of August, 1959 but before the appointed day transferred or partitfoned.

any land in anticipation of or in order to· avoid or defeat the objects of the Act or any land is transferred or partitioned in contravention of provisions of section 8 then in calculating the y ceiling area which that person is entitled to hold the area so transferred or partitioned should be taken into consideration and land exceeding the ceiling area so calculated should be deemed to be in excess of the ceiling area for that ho/ding-notwithstanding the land 0 remaining with him may not in fact be in excess of the ceiling area. The expression '. holding' used in sections 3, 5, 6 and 10 shows that the statute treats a holding as a unit for purposes of determination of surplus land which can be acquired from such holding. Section 2(14) which defines the expression to hold land' as 'to be lawfully in actual possession of land as owner · or tenant' requires that the expression 'holding' should be construed accordingly.

Section 3 of the Act expressly imposes a limit on the holding of agricultural land on the commencement of the Act. The extent of surplus land which the Government can acquire under the Act from a holder cannot therefore be made to depend upon the date on which a declaration indicating the extent of surplus land is notified in the Official Gazette under section 21 and the date on which such surplus land is taken possession of. It cannot also be made to depend upon the holder who has incurred the liability on the relevant date being alive on the date on which the declaration is made under section 21 and possession of surplus land is taken. The acceptance of the contention urged on behalf of the appellant that the proceedings initiated by a return filed by a holder have to be dropped if such holder dies before a declaration is made under section 21 and surplus land "is taken possession of would frustrate the very object and purposes of the Act. BHIKOBA SHANli:AR v.

MOHAN LAL (Venkataramiah, J. ) 23 l In Raghunath Laxman Wan( & Ors. v. State of Maharashtra & Ors. ,(') this Court had to examino the scheme of the Act while considering the question whether in the case of a family, the ceiling area would be liable to fluctuations with the subsequent increase or decrease in number of· the family members. Dealing with that question tlae Court observed thus : ' - "The scheme of the Act seems to be to determine the ceiling area of each person (including a family) with reference to the appointed day. The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed day.

Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceiling ' area for that family would be the basic ceiling are a plus I/6th thereof per member in excess of the number five. The 0 ceiling area so fixed would not. be liable to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of secs. 3 and 4, no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members. The argument that every addition or reduction in the number of the members of a family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and refixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the legislature.

The argument would also mean that where a surplus area is already determined and allotted to the landless persons such area would have to be taken back and given to a family, the number of whose members subsequently has augmented by fresh llirths. " The above view supports our conclusion that the surplus land in the case of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area has got to be determined as on the appointed day even though such person may (I) [1972] JS. C. R 48. die before the actual extent of surplus land is determined and notified under section 21 of the Act. The persons on whom his 'holding' devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not c,,me to an end on his death.

The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance than what they wonld have got if the death of the person had taken place after the publication of the notification under section 2L At this stage it is necessary to refer to another contention of · the appellants based on the second paragraph of sub-section . (2) of section 3 of the new Chapter II of the Act which is substituted in the place of the original Chapter II by the Maharashtra Act 21 of y 1975.

The relevant part of the said paragraph reads : "In determining surplus land from the holding of a , person, or as the case may be, of a· family unit, the fact that the person or any member of the family unit has died (on or after the commencement date or any date subsequent to the slate on which tfte holding exceeds the ceiling area, but before the declaration of surplus land is made in respect of that holding) shall be ignored; and accordingly, the surplus land shall be determined as if that person, or as the case may be, the member of a family unit had not died.

" It is contended that because for the first ·time the Legislature by introducing the above said paragraph directed that if a person dies after the commencement of the Act but before the declaration of surplus land is made in respect of his holding, the fact of his death should be ignored and the surplus land should be determined as if that person had not died; it should be held that before the introduction of that paragraph the proceedings needed to be dropped on the death of the person taking place before the declaration was made. It appears to us that the said· paragraph was introduced by way of abundant caution to gef over the possible objection raised on the basis of the decision in the case of Dadarao Kashirarn. The said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act.

The introduction of an express provision to the above effect does not have the effect of altering the true legal position as explained by us above even without the aid of such . express provision. This becomes BHIKOBA SHANKAR v. MOHAN LAL (Venkataramiah, J. ) 233 further clear from the observationsJound in the decision of this Court in Raghunath Laxman Wani's case (supra). It may be noticed that the said paragraph in the new section 3(2) refers to two contingencies -(i) the death of a person who was holding land in excess of the ceiling limit and (ii) the death of any member of a family unit owning land in excess of the ceiling on the appointed day. It pro· vides that the death of the person or the death of a . member of the family unit as the case may be should be ignored.

One of the contentions urged before ibis Court in that case was that the Tribunal was wrong in not taking into consideration the three children born in the family after the appointed day while determining the ceiling area to which the family of the appellants therein was entitled to. This Court rejected that plea and upheld the decision of the Tribunal observing that "the argument that every addition or reduction in the number of the members of the family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and re-fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the Legislature". This cone! usion was reached by this Court without the aid of any provision in the Act at the relevant time correspond· ing to the second paragraph of the new section 3(2) of the Act. This case was no doubt one relating to a claim based on the birth of three children.

In principle it applies to the case where the number of members of a family decreases on account of death of any of its members, as observed by the Court. On the same analogy it has to be held that the death of a person after the appointed day 'also . would make no difference so far as)he liability of his holding to part with the surplus land is concerned. Hence it has to be held that the introduction of the second pa,ragraph of the new section 3(2) does not lead to any conclusion different from the one which we have reached in this appeal. In view of the foregoing, the decision of the High Court of Bombay in Dadarao Kashiram's case (supra) cannot be considered as. a correct one and we, therefore, overrule it. The High Court was right in the present case in holding that the proceedings commencing with the return filed by Bhikoba could not be dropped merely because he died before a notification was issued under section 21 of the Act.

The proceedings have to he continued and the surplus land in the hands of Bhikoba as on the appointed day shoyl(I b~ determine~ and take~ ! 'ossession of iq A accordance with law. The heirs of Bhikoba are entitled to participate in the said proceedings representing the estate of Bhikoba. They would be entitled as heirs at law only such land that may remain after surrendering the surplus land as may be determined under the Act. B In the result, the appeal fails and is hereby dismissed. No costs. S. R. Appeal dismissed.