1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7519 OF 2010

(Arising out of SLP(C) No. 14245 of 2004)

Nagbhai Najbhai Khackar …. Appellant(s)

Versus

State of Gujarat ….Respondent(s)

with

CIVIL APPEAL No.7520 of 2010 (@ S.L.P. (C) No.14182 of

2004),

CIVIL APPEAL No.7521 of 2010 (@ S.L.P. (C) No.14248 of

2004),

CIVIL APPEAL No.7522 of 2010 ((@ S.L.P. (C) No.14249 of

2004),

C.A. No.7523 of 2010 (@ S.L.P. (C) No.26879 of 2004),

CIVIL APPEAL No.7524 of 2010 (@ S.L.P. (C) No.14947 of

2004),

CIVIL APPEAL No.7525 of 2010 (@ S.L.P. (C) No.26880 of

2004),

CIVIL APPEAL No.7526 of 2010 (@ S.L.P. (C) No.26881 of

2004),

CIVIL APPEAL No.7527 of 2010 (@ S.L.P. (C) No.14949 of

2004),

CIVIL APPEAL No.7528 of 2010 (@ S.L.P. (C) No.26882 of

2004),

CIVIL APPEAL No.7529 of 2010 (@ S.L.P. (C) No.15022 of

2004),

CIVIL APPEAL No.7530 of 2010 (@ S.L.P. (C) No.26883 of

2004),

CIVIL APPEAL No.7531 of 2010 (@ S.L.P. (C) No.26884 of

2004),

CIVIL APPEAL No.7532 of 2010 (@ S.L.P. (C) No.15020 of

2004),

CIVIL APPEAL No.7533 of 2010 (@ S.L.P. (C) No.26885 of

2004),

CIVIL APPEAL No.7534 of 2010 (@ S.L.P. (C) No.14940 of

2004),

CIVIL APPEAL No.7535 of 2010 (@ S.L.P. (C) No.26886 of

2004),

CIVIL APPEAL No.7536 of 2010 (@ S.L.P. (C) No.14946 of

2004),

CIVIL APPEAL No.7537 of 2010 (@ S.L.P. (C) No.14950 of

2

2004),

CIVIL APPEAL No.7538 of 2010 (@ S.L.P. (C) No.14965 of

2004),

CIVIL APPEAL No.7539 of 2010 (@ S.L.P. (C) No.14993 of

2004),

CIVIL APPEAL No.7540 of 2010 (@ S.L.P. (C) No.15029 of

2004).

J U D G M E N T

S. H. KAPADIA, CJI

Leave granted.

2. A short question which arises for determination in

this batch of cases is whether bid lands were required to

be taken into consideration for the purpose of land

ceiling under the Gujarat Agricultural Lands Ceiling Act,

1960, as amended vide Act 2 of 1974, which came into force

from 1.4.1976.

3. At the outset, we may state that writ petitions were

filed in the High Court inter alia challenging the

provisions of the Gujarat Agricultural Lands Ceiling

Amendment Act 2 of 1974 as violative of Articles 14 and 19

of the Constitution. We may state that Amending Act 2 of

1974 has been included as Item No. 71 in the Ninth

Schedule to the Constitution of India by the Constitution

Thirty-fourth Amendment Act. That inclusion was challenged

before the Constitution Bench of this Court on the ground

that Thirty-fourth Amendment to the Constitution violated

3

the basic structure of the Constitution which challenge

has now been given up in view of the judgment of this

Court in the case of I.R. Coelho (Dead) by Lrs. v.

State of Tamil Nadu reported in 2007 (2) SCC 1.

4. As regards the question of includability of the bid

lands in the lands ceiling is concerned, the case of the

appellant(s) before us was, that bid lands held by the

appellant(s) being uncultivable waste lands; being rocky

and stony were not included in the definition of “land” in

the 1960 Act as originally enacted; that “bid lands” held

by the appellant(s) were sought to be included in the

total holding of the appellant(s) to determine the ceiling

under the 1960 Act only by reason of Amendment Act 2 of

1974. At this stage, it may be noted that the said

Amendment Act 2 of 1974, which came into force from

1.4.1976, was challenged only for the reason that under

Section 5(1)(a) of Saurashtra Estates Acquisition Act,

1952 (“1952 Act” for short) no bid lands which were

uncultivable waste vested in the State Government, which

bid lands are now sought to be covered by 1960 Act on

account of the impugned Amendment Act 2 of 1974. According

to the appellant(s), once such “bid lands” stood excluded

from vesting under the 1952 Act, the same could not be

4

included for calculating the total holding to determine

the ceiling limit under the 1960 Act, as amended. It was

contended on behalf of the appellant(s) that bid lands

which were also uncultivable waste lands cannot be

included for computing the total holding under the 1960

Act, as amended, as the object of the Ceiling Act was to

impose ceiling on lands held for cultivation or

agricultural purposes. It was further submitted on behalf

of the appellant(s) that bid lands cannot fall within the

definition of dry crop land in clause (e) of Explanation I

to Section 2(6) as only “grass lands” which abound in

grass grown naturally and which are capable of being used

for agricultural purposes could be included in such

definition of “dry crop” land and since the “bid lands”

did not fall in any “class of land” under Section 2(6),

such land could not be included for calculating the

ceiling limit under Section 6 of the 1960 Act, as amended.

In this connection, Shri R.F. Nariman, learned senior

counsel appearing on behalf of the appellant(s), submitted

that the Act of 1960 (Unamended) was a useful guide in

interpreting the definition of “dry crop land” under the

Act. According to the learned counsel, the simple meaning

of the said definition made it clear that “dry crop land”

5

has been defined to include “grass land”, that is to say,

land which abounds in grass grown naturally and which is

capable of being used for agricultural purposes. According

to the learned counsel, unwittingly, the word “includes”

occurring in the unamended definition of ‘dry crop land’

was left out of the amended definition. Such omission,

according to the learned counsel, can always be supplied

by the Court. Since, the lands specified in paras (a) to

(c), to wit, perennially irrigated land, seasonally

irrigated land and superior dry crop land are all lands on

which agricultural operations are capable of being

performed the expression “other than the land specified in

paras (a) to (c)” obviously refers to lands other than

those stated in paras (a) to (c) but which are capable of

being used for agricultural purposes. According to the

learned counsel, the appellant(s) had specifically pleaded

that their lands were barren, rocky and uncultivable but

the Authorities proceeded on the basis that the said fact

was irrelevant in view of the definition of the word

“land” under Section 2(17) of the 1960 Act. According to

the learned counsel, even as per the revenue records, the

subject lands have been described as “Pot Kharaba” i.e.

waste lands, barren lands or uncultivable lands and,

6

consequently, the same cannot fall within the definition

of dry crop land under Section 2(6)(iv). According to the

learned counsel, the said Act had to be interpreted in the

context of agricultural land ceiling and in the context of

the said 1960 Act being part of agrarian reforms and

unless lands were capable of being used for agricultural

purposes, the bid lands which were also uncultivable waste

lands cannot fall within the ambit of the 1960 Act.

According to the learned counsel, the impugned judgment of

the High Court was erroneous as it has placed

interpretation on the proviso to Section 5(1) and so read

the High Court has held that even desert and hilly areas

where no cultivation is possible can be subjected to

ceiling. According to the learned counsel, Section 5

states that lands in deserts or hilly areas must first be

dry crop lands as defined under Explanation I(e) after

which such lands falling in a desert or hill may be

accorded a larger ceiling area by the State Government. In

any event, according to the learned counsel, Section 5(1)

proviso has no bearing on the definition of dry crop land

except to the extent that the dry crop land may also fall

in hilly or desert areas; example, hilly or desert areas

which abounds in grass and which are capable of being used

7

for agricultural purposes. Consequently, hilly or desert

areas which do not abound in grass or which are incapable

of being used for agricultural purposes are not covered by

the Ceiling Act, 1960. Thus, according to the learned

counsel, bid lands are excluded from the definition of dry

crop land and they do not fall within any of the

categories of classes of land under the Act and,

therefore, cannot be subjected to ceiling under the 1960

Act.

5. Shri Preetesh Kapur, learned counsel appearing on

behalf of the State of Gujarat, submitted that it has been

the admitted case of the appellant(s) all through the

proceedings that the lands in question were in fact bid

lands; that, only argument raised before the Tribunal as

well as the High Court, besides the constitutional

challenge, was two-fold; (i) that the subject lands were

not fit for “agriculture” and since the 1960 Act is an

agricultural ceiling Act, the subject lands had to be

excluded from the purview of the Act; (ii) that,

the definition of “dry crop land” did not specifically

cover bid lands and must be construed to cover only such

bid lands as “abound in grass” and, therefore, the lands

in question stood outside the Ceiling Act. According to

8

the learned counsel, the definition of “land” stood

specifically amended by the Amendment Act (No. 2 of 1974)

to include “bid lands” of Girasdars and Barkhalidars in

Section 2(17)(ii)(c). According to the learned counsel,

the Statement of Objects and Reasons for enacting the

Amending Act also made it clear that the Amendment Act

stood enacted for including the bid lands of Girasdars and

Barkhalidars within the definition of “land”. Therefore,

according to the learned counsel once the definition of

“land” stood specifically amended to include “bid lands”,

without limiting the same to cultivable bid lands, the

specific intention of the Legislature must be given its

full meaning. By the said Amending Act No. 2 of 1974,

according to the learned counsel, a proviso was also

inserted after Section 5 which increased the ceiling limit

in respect of “desert” and hilly areas by 12 ½ per cent

which indicates that even deserts and hilly areas have

been sought to be brought within the ambit of the

Agricultural Ceiling Act. Therefore, the said proviso

negates the contentions of the appellant(s) that only such

bid lands which were “capable of agriculture” or which

abound in grass alone were meant to be covered under the

Act. It was further submitted that the lands in question

9

are in fact “agricultural” lands. They survived

acquisition under the earlier three Acts only because they

were “bid lands” which by definition under those Acts were

lands “being used” by Girasdars/Barkhalidars for grazing

cattle. That, under the Ceiling Act, Section 2(1) defines

the use of land for the purposes of grazing cattle as

agricultural purpose and thus, according to the learned

counsel, by their very definition “bid lands” are capable

of being used for agricultural purpose, namely, grazing

cattle. On the question of classification of lands,

learned counsel submitted that Sections 4 and 5 of the

1960 Act expressly made two-fold division by dividing the

State into local areas as well as classes of lands. For

the ceiling area in Schedule I, the land had to fall under

one of the classes, namely, perennially irrigated land,

seasonally irrigated land, superior dry crop land and dry

crop land which have been defined in Explanation I to

Section 2(6) of the Act. Learned counsel submitted that

there is no merit in the argument of the appellant(s) that

“bid land” is not specified in the class of lands under

Section 2(6) and that even if bid lands were included in

“dry crop land” it must be only such bid lands which

“abound in grass” which would fall under the 1960 Act.

10

According to the learned counsel the argument of the

appellant(s) is fallacious as it overlooks the specific

legislative intent. In this connection, learned counsel

submitted that from a bare reading of the definition of

“dry crop lands” in Explanation I(e) it was clear that the

said definition stood in two parts, namely, (i) “land

other than the land specified in paragraphs (a) to (c)

and” (ii) “grass land”. Thus, according to the learned

counsel, the first part of the definition included all

lands other than those specified in paragraphs (a) to (c)

provided they fall under the definition of land under

Section 2(17). According to the learned counsel, the

reason why “grass land” had to be separately defined in

clause (e) was because under the proviso to Section 5 a

further distinction was made between grass land included

within “dry crop land” and other barren/desert/drought-

prone areas which also fell within “dry crop land”.

Further, according to the learned counsel, under clause

(f) to the said Explanation under Section 2(6), “grass

land” and not all “dry crop lands” were deemed to be rice

lands in certain situations which also necessitated a

separate definition of grass lands. Finally, learned

counsel submitted that once bid lands fall within the

11

ambit of the Agricultural Ceiling Act by virtue of the

specific inclusion of all bid lands in Section 2(17), the

ambit of inclusion should not be read down by reference to

the classification under Section 2(6) of the 1960 Act.

6. For deciding this matter, we quote hereinbelow

Section 2(6) of 1960 Act (unamended) in juxtaposition with

the 1960 Act (as amended by the Amending Act 2 of 1974):

“Gujarat Agricultural Lands Ceiling Act, 1960

Unamended Act (Pre – 1974)

2. Definitions- In this Act, unless the context

requires otherwise-

(6) "class of land" means any of the following

classes of land, that is to say :-

(i) perennially irrigated land;

(ii) seasonally irrigated land;

(iii) dry crop land;

(iv) rice land;

Explanation—For the purpose of this Act-

(d) rice land means rice land situated in a local area

where the average rainfall is not less than 35 inches

a year, such average being calculated on the basis of

the rainfall in that area during the five years

immediately preceding the year 1959 but does not

include perennially or seasonally irrigated land used

for the cultivation of rice;

(e) "dry crop land" means land other than

perennially or seasonally irrigated or rice land and

includes grass land, that is to say, land which

abounds in grass grown naturally and which is

capable of being used for agricultural purposes;

(f) grass land referred to in paragraph (e) shall,

notwithstanding anything contained in that

paragraph, be deemed to be rice land, if, is it

situated in a local area referred to in clause (d) and

in the opinion of the State Government it is fit for

the cultivation of rice.”

Amended Act (Post – 1974)

(Inserted by Guj. 2 of 1974)

2. Definitions- In this Act, unless the context

requires otherwise-

(6)“class of land” means any

of the following classes of

land, that is to say:-

(i) perennially irrigated

land;

(ii) seasonally irrigated

land;

(iii) superior dry crop land;

(iv) dry crop land;

Explanation I–For the purpose

of this Act –

(d) “rice land” means land

which is situated in a local

area where the average

rainfall is not less than 89

centimeters a year such

average being calculated on

the basis of rainfall in that

area during the five years

immediately preceding the

year 1959 and which is used

for the cultivation of rice

or which, in the opinion of

the State Government, is fit

for the cultivation of rice

but does not include

perennial or seasonally

irrigated land used for the

12

cultivation of rice;

(e) “dry crop land” means

land other than the land

specified in paragraphs (a)

to (c) and grass land, that

is to say, land which abounds

in grass grown naturally and

which is capable of being

used for agricultural

purposes;

(f) “grass land” referred to

in paragraph (e) shall,

notwithstanding anything

contained in that paragraph,

be deemed to be rice land if

it is situated in a local

area referred to in paragraph

(d) and in the opinion of the

State Government it is fit

for the cultivation of rice;”

7. We also quote hereinbelow the relevant provisions of

Section 2(17) of the 1960 Act (Post-1974) which reads as

follows:

“2(17) “land” means-

(i) in relation to any period prior to the

specified date, land which is used or capable of

being used for agricultural purpose and includes

the sites of farm buildings appurtenant to such

land;

(ii)in relation to any other period, land which

is used or capable of being used for agricultural

purposes, and includes –

(b) the lands on which grass grows

naturally;

(c) the bid lands held by the Girasdars

or Barkhalidars under the Saurashtra Land

13

Reforms Act, 1951 (Sau. Act XXV of 1951),

the Saurashtra Barkhali Abolition Act,

1951 (Sau. Act XXVI of 1951), or the

Saurashtra Estates Acquisition Act, 1952

(Sau. Act III of 1952), as the case may

be.”

8. We also quote hereinbelow Section 5 of the 1960 Act

(Post-1974) with the proviso which was not there prior to

the amendment:

“5. - Ceiling areas

(1) Subject to the provisions of sub-sections (2) and (3), in relation to each

class of local area as specified in Schedule I, the ceiling area with

reference to each class of land shall be as specified in the said schedule

against the respective class of local area;

Provided that in areas which in the opinion of the State

Government are desert or hill areas of drought-prone areas and which

are specified by the State Government from time to time, by

notification in the Official Gazette, as such areas, the ceiling area with

reference to dry crop land shall be such area as is twelve and a half

percent more than the ceiling area as specified with reference to dry

crops land against the class of local area in which the said areas fall,

provided however that such ceiling area shall in no case exceed an

area of 21.85 hectares (54 acres), and for the purpose of determining

whether any area is a desert or hill area or a drought-prone area,

regard shall be had to the soil classification of the land, the climate

and rainfall of the area, the extent of irrigation facilities in the area,

the average yield of crop and the agricultural resources of the area,

the general economic conditions prevalent therein and such other

factors.

(2) Where a person holds land consisting of different classes in the same

class of local area, then for determining the question whether the total land

held by him is less than, equal to, or more than, the ceiling area, the

acreage of each class of land held by such person shall be converted into

the acreage of dry crop land on the basis of the proportion which the

ceiling area for the class of land to be so converted bears to the ceiling area

for dry crop land.

14

(3) Where a person holds, lands, whether consisting of different classes of

land or not, in different classes of local areas, the question whether the

total land held by him is less than, equal to, or more than, the ceiling area,

shall be determined as follows, that is to say--

(i) the acreage of each class of land held by the person in each class

of local area shall be first converted into the acreage of dry crop land

in that local area in accordance with sub-section (2) and the total

acreage so arrived at shall be expressed in terms of a multiple or, as

the case may be, fraction of such ceiling area;

(ii) the multiple or fraction so expressed in the case of each of the

local areas shall be added together:

(iii) the person shall be deemed to hold land

less than equal to, or more than, the ceiling

area according as the sum total of the

multiples and fractions under clause (ii) is

less than equal to, or more than one”

(emphasis supplied)

9. The short question which is inborn in this batch of

cases concerns applicability of the Gujarat Agricultural

Lands Ceiling Amendment Act, 1972 which came into force

w.e.f. 1.4.1976 to the “bid lands”. It is the case of the

appellants before us that the “bid lands” of the

appellants do not fall within the definition of “dry crop

land” under Explanation I(e) to Section 2(6) of the 1960

Act principally because the said definition under the

unamended Act included grass lands, that is to say, lands

which “abounds in grass grown naturally and which is

capable of being used for agricultural purposes”.

According to the appellants, in the amended Act, through

15

over-sight, the word “includes” in Explanation I(e), which

defines “dry crop land” stood omitted and, therefore, this

Court could always fill in the omission by reading the

word “includes” in the said clause. According to the

appellants, the legislative intent behind enacting clause

(e) of Explanation I was to include only cultivable lands

in the definition of “dry crop lands” as the ultimate

object of the 1960 Act is to fix a ceiling on lands held

for agricultural purpose and consequently “bid lands”

which are uncultivable waste lands cannot be included in

Explanation I(e). We find no merit in this argument. The

definition of “land” is specifically amended by the

Amendment Act 2 of 1974 to include “bid lands” of

Girasdars or Barkhalidars in Section 2(17)(ii)(c). The

Statement of Objects and Reasons of the Amending Act also

makes it clear that there was a specific legislative

intent of including “bid lands” of Girasdars or

Barkhalidars within the definition of “land”. This

inclusion does not make any distinction between cultivable

and uncultivable bid lands. The insertion of bid lands in

Section 2(17) is without any such qualification.

Therefore, this specific intent of the Legislature must be

given its full meaning. If the argument of the appellants

16

is to be accepted, it would defeat the very purpose of the

1960 Act because in that event a holder could hold lands

to an unlimited extent by including waste lands in

drought-prone areas, hill areas and waste lands within

their holdings. There is one more reason for not

accepting the argument of the appellants. The subject

lands survived acquisition under the 1952 Act only because

they were “bid lands” which by definition under those Acts

were treated as lands being used by the Girasdars for

grazing cattle (see Section 2(a) of the 1952 Act). Now,

under the present Ceiling Act, Section 2(1) defines the

use of land for the purpose of grazing cattle as an

agricultural purpose. Thus, “bid lands” fall under

Section 2(1) of the Ceiling Act. This is one more reason

for coming to the conclusion that the Ceiling Act as

amended applies to “bid lands”. It is also important to

note that under Section 5(1) of the 1952 Act all lands

saved from acquisition had to be “bid lands” which by

definition under Section 2(a) of the 1952 Act were the

lands being used by a Girasdar or a Barkhalidar for

grazing cattle or for cutting grass. If the lands in

question were put to any other use, they were liable to

acquisition under Section 5(2). Because the subject lands

17

were used for grazing cattle, they got saved under the

1952 Act and, therefore, it is now not open to the

appellants to contend that the subject lands are not

capable of being used for agricultural purpose.

10. Now, coming to the question of interpretation of the

definition of the words “dry crop land” in Explanation

I(e), one finds that the definition has two parts, namely,

(i) “land other than the land specified in paragraphs (a)

to (c)” and (ii) “grass land”. Thus, the first part

includes all lands other than those specified in

paragraphs (a) to (c). Therefore, once the subject land

falls in the first part of definition of the word “dry

crop land” which land comes under Section 2(17) and which

falls outside paragraphs (a) to (c) then such lands would

fall within the definition of the words “dry crop land”.

Further, there are two reasons why “grass land” stood

separately defined in Explanation I(e). Firstly, under

the proviso to Section 5, which is also inserted by the

Amending Act, a distinction is made between “grass lands”

included within “dry crop land” and “grass lands” falling

in the desert or hill areas of drought-prone areas for

fixing the ceiling of dry crop land in those areas.

Secondly, under clause (f) to Explanation I, “grass land”

18

and not all “dry crop land” is deemed to be rice land in

certain situations. The proviso to Section 5 itself makes

it clear that by the Amending Act of 1974 the Legislature

was placing a ceiling even on desert and hill areas. The

proviso inter alia states that the ceiling limit with

reference to “dry crop land” shall be 12 ½ per cent more

than that specified in the Schedule which makes it clear

that the Legislature intended to include even desert and

hills in drought-prone areas within the definition of “dry

crop land”. Once such lands are used for grazing of

cattle, Section 2(1) of the Ceiling Act would kick in and

consequently the “bid lands” would stand covered by the

Ceiling Act. The definition of “dry crop land” under

Section 2(6) is relevant for the purpose of ascertaining

the extent of ceiling limit under Schedule I. It is

important to note that the subject lands got saved from

acquisition under the 1952 Act only because the appellants

were the holders of “bid lands” which were put to use for

grazing of cattle or cutting of grass. It is these very

lands which are now sought to be covered by the 1960 Act,

as amended.

11. We also do not find any merit in the argument

advanced on behalf of the appellants that the Legislature

19

unwittingly through over-sight left out the word

“includes” in the definition of “dry crop land” in

Explanation I(e). If one looks at the Pre-1974 Act under

Section 2(6) which defined “class of land”, it covered

four items, namely, perennially irrigated land, seasonally

irrigated land, dry crop land and rice land, whereas under

the Post-1974 Act, rice land has been deleted from the

“class of land”. Under the Pre-1974 Act, “dry crop land”

was defined by clause (e) of Explanation to mean “land

other than perennially or seasonally irrigated or dry crop

land or rice land” and it included “grass land”, whereas

under Post-1974 Act, not only the word “includes” but even

the words “rice land” do not find place in the definition

of “dry crop land” in clause (e) of Explanation I. One of

the reasons for this structural change is indicated by the

judgment of the Gujarat High Court in the case of

Krishnadas Vithaldas Sanjanwala v. The State of Gujarat

and Ors. [(1966) 7 GLR 244] in which it has been laid down

that ordinarily “grass lands” would be “dry crop lands”

within the meaning of clause (e) of Explanation to Section

2(6) of Pre-1974 Act as the definition of “dry crop land”

included “grass land”, however, in a given case the

Tribunal could promote the grass land by declaring it to

20

be a rice land falling under Section 2(6)(iv) (see

Explanation I(f) to Section 2(6) of the Pre-1974 Act).

According to the said decision, which has been

consistently followed thereafter, “grass land” of the kind

mentioned in clause (e) could be promoted to the category

of rice land if the Tribunal found that such grass land

was situated in a local area referred to in clause (d) and

if in the opinion of the State Government such land was

found fit for cultivation of rice. Therefore, the

promotion of the grass land to the category of rice land,

according to the said decision of the High Court, was

dependent upon an objective fact which was justiciable and

the determination of a subjective fact by the State

Government. Consequently, clause (d) and clause (e) of

the Post-1974 Act are drastically different from the

structure of the said clauses in the Pre-1974 Act. There

is no merit, therefore, in the contention advanced on

behalf of the appellants that the Legislature had through

over-sight omitted the word “includes” from Explanation

I(e).

12. For the afore-stated reasons, we find no merit in

this batch of cases. Accordingly, the same are dismissed

with no order as to costs.

21

…………………….CJI

(S. H. Kapadia)

………………………..J.

(K.S. Radhakrishnan)

………………………..J.

(Swatanter Kumar)

New Delhi;

September 9, 2010