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.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2573 OF 2020

(Arising out of Special Leave Petition (Civil) No.18525 of 2009)

VINODCHANDRA SAKARLAL KAPADIA …Appellant

Versus

STATE OF GUJARAT AND ORS. …Respondents

WITH

CIVIL APPEAL NO.2574 OF 2020

(Arising out of Special Leave Petition (Civil)No.22867 of 2009)

(Arjunbhai Sumanlal Bhavsar vs. State of Gujarat and ors.)

WITH

CIVIL APPEAL NO.2575 OF 2020

(Arising out of Special Leave Petition (Civil)No.33708 of 2009)

(Rajenbhai Baldevbhai Shah vs. Baljiben Kabhaibhai Patanwadia and ors.)

WITH

CIVIL APPEAL NO.2576 OF 2020

(Arising out of Special Leave Petition (Civil)No.22460 of 2009)

(Rajenbhai Baldevbhai Shah vs. Laxmanbhai Fakirbhai and ors.)

WITH

CIVIL APPEAL NO.2577 OF 2020

(Arising out of Special Leave Petition (Civil)No.24357 of 2009)

(Gopiraj Dhanraj Bagmar and anr. Vs. State of Gujarat and ors.)

WITH

CIVIL APPEAL NO.2578 OF 2020

(Arising out of Special Leave Petition (Civil)No.24360 of 2009)

(Rameshbhai Bankabhai vs. State of Gujarat and ors.)

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.

2

WITH

CIVIL APPEAL NO.2579 OF 2020

(Arising out of Special Leave Petition (Civil)No.2080 of 2011)

(Babubhai Manchhabhai Bharvad vs. State of Gujarat and ors.)

WITH

CIVIL APPEAL NO.2581 OF 2020

(Arising out of Special Leave Petition (Civil)No.21688 of 2012)

(Shailadevi Pooranraj and ors. vs. State of Gujarat)

WITH

CIVIL APPEAL NO.2583 OF 2020

(Arising out of Special Leave Petition (Civil)No.32288 of 2013)

(Shri Kishan Chand Bela Ram Advani vs. State of Gujarat and ors.)

WITH

CIVIL APPEAL NO.2584 OF 2020

(Arising out of Special Leave Petition (Civil)No.16669 of 2015)

(Ghanshyambhai Narbheram vs. State of Gujarat and ors.)

J U D G M E N T

Uday Umesh Lalit, J.

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

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

3

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

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

4

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 Act

1

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.

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(1) No land or any interest therein purchased by a tenant

under section 17B, 32, 32F, 32I, 32O

2

, 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 co-

operative 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

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

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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.

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

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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 sub-

section (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.

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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 sub-

section (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

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

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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.

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

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(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 sub-

section (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

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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

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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 sub-

section (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

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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.

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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

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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 sub-

section (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

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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 sub-

section shall not apply if at least one member of the joint

family is outside the categories mentioned in this sub-

section 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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(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 sub-

section shall not apply if at least one member of the joint

family is outside the categories mentioned in this sub-

section 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 sub-

section.

(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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(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.

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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 sub-

section (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 sub-

tenant 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.

32O

3

. 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

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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 sub-

sections (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.

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(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.

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(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 sub-

section (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

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

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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

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Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. etc.

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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 sub-

section (1) by making an application at

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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 sub-

section (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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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.

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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 sub-

section (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.

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.

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 sub-

section (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 sub-

section (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 sub-

section (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

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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,

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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 sub-

section (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 sub-

section (2), or

(b) the notice given by the landlord under sub-

section (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 one-

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.

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 sub-

section (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 sub-

section (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 1

st

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.”

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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

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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 others

4

and in Jayamma vs. Maria Bai

(Dead) by proposed LRs and another

5

, 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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48

8.1While 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 Bangi

4

. 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 Bangi

4

was later

followed in Jayamma

5

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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49

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 non-

transferability 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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50

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 non-

agriculturist 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.”

8.3It also relied upon decision of this Court reported in State of

Punjab (now Haryana) and others vs. Amar Singh and another

6

and

Dayandeo Ganpat Jadhav vs. Madhav Vithal Bhaskar and others

7

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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51

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 non-

agriculturists 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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52

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 Sangappa

4

and Jayamma

5

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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53

Reliance is also placed on the Judgment of this Court in Mahadeo

(Dead through legal representatives) vs. Shakuntalabai

8

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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54

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 Sangappa

4

, 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. Rachiah

9

(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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55

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 sub-

letting 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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56

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

Shivanna

9

and Dhareppa v. State of Karnataka

10

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 Tribunal

11

.”

B. Similar issues regarding disposition by will were dealt with by this

Court in Jayamma

5

, 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 vis-

à-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 co-

sharers, 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 Mahadeo

8

, 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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59

Kailash Chandra Kapur

12

, 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 Others

13

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 Dass

14

.”

D. It must be stated here that the decisions in Sangappa

4

and

Jayamma

5

were rendered by benches of two judges and so was the

decision in Mahadeo

8

. However, the decision in Mahadeo does not show

that the attention of the bench was invited to the earlier decisions in

Sangappa

4

and Jayamma

5

.

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 Sangappa

4

had approved the decision

of the Division Bench of the High Court of Karnataka in Timmakka

11

,

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 Intawala

16

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

Pandi

17

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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61

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 Mahadeo

8

had placed reliance

on the decisions of this Court in State of West Bengal vs. Kailash

Chandra Kapur

12

and in S. Rathinam

13

. In neither of these cases any

statutory prohibition or restriction on transfer or assignment was involved.

13.The decisions in Sangappa

4

, Jayamma

5

and Mahadeo

8

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 Shah

16

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, Bulandshahr

15

and the decision of the

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62

Division Bench of the High Court of Bombay in Dr. Anant Trimbak

Sabnis

17

and observed:-

“9. In Jaspal Singh v. Additional District Judge,

Bulandshahr

15

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 non-

residential 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 Sabnis

17

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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64

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

Bhavarlal

14

were not applied by this Court. The decision of this Court in

State of W.B. v. Kailash Chandra Kapur

12

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 case

16

. 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 case

18

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 Karnataka

19

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 another

20

. 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 Manchegowda

19

and Lingappa Pochanna Appelwar v. State

of Maharashtra

20

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 Others

21

, 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 Manchegowda

19

and what was said by

a three Judge bench followed by a later decision of this

Court in Lingappa

20

. To the same effect is the observation

of this Court in Gamini Krishnayya v. Guraza

Seshachalam

22

. The House of Lords in D (a minor) v.

Bershire County Council

23

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

Others

24

, a question arose whether a plea of adverse possession by a non-

tribal 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

(8

th

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 Lal

25

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 sub-

section (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 Deshpande

26

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. Bhanupratapsingh

27

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 Singh

24

was followed by

this Court in Lincai Gamango and Others vs. Dayanidhi Jena and

Others

28

.

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

Limited

29

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

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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 Another

30

, 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,

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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 tenant-

owner of agricultural land cannot wish nor can show his

intention to transfer his right on agricultural land to a non-

agriculturist 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

Mahadeo

8

is to construe the prohibition against transfer appearing in

various statutes in keeping with the legislative intent. As laid down in

Amarendra Pratap Singh

24

, 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 sub-

tenant. 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 Bhavarlal

16

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 Bhavarlal

16

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 Others

32

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 India

33

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 Sangappa

4

and Jayamma

5

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 Lingappa

20

, 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 Others

34

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 India

35

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 Constitution-

makers 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 India

36

).

30. In Diamond Sugar Mills Ltd. v. State of U.P

37

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 Begum

39

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 Debi

40

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

Bose

40

the English decisions in Prout v. Hunter

41

,

Property Holding Co. Ltd. v. Clark

42

and Curl v. Angelo

43

were cited with approval. In Prout v. Hunter

41

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. Clark

42

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.

Angelo

43

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

Maharashtra

20

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. Makwana

44

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 Others

45

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. CIT

46

this Court

observed as under: (AIR p. 61, para 6)

“6. … As pointed out by Gwyer, C.J. in

United Provinces v. Atiqa Begum

39

, 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.P

47

,

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 Begum

39

, Western India Theatres Ltd.

v. Cantonment Board

48

, SCR at p. 69 and Elel

Hotels & Investments Ltd. v. Union of

India

49

).”

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 India

50

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. Radhakrishan

51

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 case

52

): (Bihar Distillery Ltd

53

,

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 Madras

54

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

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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

Punjab

55

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

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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

56

, 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

56 (2011) 3 SCC 1

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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.

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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

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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 Mahadeo

8

which had failed

to notice the earlier decisions in Sangappa

4

and Jayamma

5

and which is

inconsistent with the decisions referred to hereinabove and what we have

concluded, must be held to be incorrectly decided.

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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