Supreme Court of India

STATE OF MAHARASHTRAversusVITHALRAO GANPATRAO WARHADE

Citation: 1998 INSC 396
Decided: 15 October 1998
Disposal: Appeal(s) allowed
Bench: S P KURDUKAR

Holding

The proviso to Section 4(1) ceased to apply for declarations filed on or after 2 Oct 1975, and “Amending Act of 1972” in Section 10(1) must be read as amended by the 1975 amendment, so the tribunals were right to apply Section 10(1) and its explanation.

Summary

Vithalrao Ganpatrao Warhade filed a declaration under the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 as amended by the 1972 and 1975 amendments. The Surplus Land Determination Tribunal and the Appellate Tribunal declared part of his land surplus and ordered its surrender. The Bombay High Court set aside those orders, holding that lands transferred between 26 September 1970 and 19 September 1975 were excluded from the family‑unit ceiling under the proviso to Section 4(1) and therefore not subject to the bonafide test of Section 10(1). The Supreme Court examined whether the one‑day gap between the commencement of the 1972 amendment (19 Sept 1975) and the 1975 amendment (20 Sept 1975) affected the applicability of the proviso, and whether “Amending Act of 1972” in Section 10(1) meant the Act as originally enacted or as later amended. It held that the proviso ceased to apply for declarations filed on or after 2 Oct 1975 because the 1972 amendment’s commencement was postponed to that date, and that the phrase “Amending Act of 1972” must be read as including the 1975 amendment. Consequently, the tribunals were correct to apply Section 10(1) and its explanation, and the High Court’s decision was reversed.

Issues considered

Whether the one‑day difference between the commencement dates of the 1972 and 1975 amendments renders lands transferred before 19 Sept 1975 excluded from the family‑unit ceiling and thereby outside the scope of Section 10(1).
Whether the expression “Amending Act of 1972” in Section 10(1) refers to the Act as it stood on 19 Sept 1975 or includes the amendments made by the 1975 Act.
Effect of the postponement of the 1972 amendment’s commencement to 2 Oct 1975 on the applicability of the proviso to Section 4(1) and the bonafide test under Section 10(1).

Legislation cited

Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961s. 10(1), s. 4(1)

Subjects

Land ceilingFamily unitSection 4(1) provisoSection 10(1) bonafide testStatutory interpretationAmendment effectSurplus land determinationTribunal orderHigh Court reversal

Judgment

STATE OF MAHARASHTRA A
v.
VITHALRAO GANPATRAO WARHADE

OCTOBER 15, 1998

[S.P. KURDUKAR AND M. JAGANNADHA RAO, JJ.] B

Tenancy and Land Laws :

Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961:

Section 4(1) proviso (as amended by Amending Acts, 1972 and 1975)-
c
Surplus /and-Difference of one day in the commencement ofthe two amending
Acts-Determination-Effect-Held, difference of one day does not affect the
declaration filed by the dec/arant on or after 2-10-1975-Therefore, in regard
to all declarations filed by owners on or after 2-10-1975, the proviso to S.
4(1) ceased to apply-Hence, Tribunals entitled to go into the question D
whether the transfer of lands made between 26-9-1970 and 2-10-1975 is bona
fide or not and apply S. 10(1) and the new Explanation thereto.

Interpretation of Statutes:

Amendment-Earlier legislation amended by subsequent legislation- E
Effect of-Held: The amendment is deemed to have been incorporated in the
earlier legislation so that it is not necessary to refer to the Amending Act at
all.

The appellant - landowner gave a list of various lands owned by his
'family unit' upon a public notice given under the Maharashtra Agricultural F
Land (Ceiling on Holdings) Act, 1961 as amended by the Amending Act,
1972 and further amended by the Amending Act, 1975 which came into force
on 19-9-1975 and 20-9-1975 respectively. The Surplus Land Determination
Tribunal held a certain extent of the appellant's land as surplus and ordered
the appellant to surrender it. The Appellate Tribunal upheld this order. G
However, the High Court set aside these orders and held that the various
alienation made by the appellant during the period 26-9-1970 and 19-9-1975
were to be excluded from the appellant's holding under the proviso to Section
4(1) of the Act. Hence this appeal.

In this appeal the following questions arose before this Court:-
H
323
324 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A (1) Whether the fact that initially the Amending Act of 1972 was
brought into force w.e.f.. 19-9-1975 and the Amending Act of
1975 was brought into force w.e.f. 20-9-1975 would result in
the disputed extent being excluded from the holding by 19-9- .....
1975 so as not to attract Section 10(1), for considering whether
the transfers of these lands in the crucial period was intended
B to avoid or defeat the object of the Amending Act, 1972?

(2) Whether the words 'Amending Act of 1972' in Section 10(1)
mean the said Act as it stood on 19-9-1975 or as it stood further
amended on 20-9-1975 by the Amending Act of 1975?

C Allowing the appeal, this Court

HELD: 1. The contention of the respondent based on the difference of
one day between the initial commencement of the Amer.ding Act 1972 and
the commencement of the Amending Act 1975 is liable to be rejected for two
reasons-Firstly, no exclusion by way of orders was passed by any Tribunal
D between the parties-based on the proviso to Section 4(1) of the Maharashtra
Agricultural Land (Ceiling on Holdings) Act, 1961-on the solitary day
19-9-1975-nor did any such exclusion become final on 19-9-1975 before
the latter amendment became effective from 20-9-1975. Even before any such
thing happened, the proviso to Section 4(1) stood deleted w. e. f. 20-9-1975
E when the Amending Act, 1975 came into force. Hence in regard to all
declarations filed by the owners on or after 2-10-1975, the proviso to the
Section 4(1) ceased to apply. Once the lands of the description in the said
proviso did not stand excluded w. e. f. 20-9-1985, the Tribunals were entitled
to go into the question whether the transfers ofsuch land between 26-9-1970
and 2-10-1975 were bona fide o'r not and apply Section 10(1) of the Act and
F the Explanation added in Section 10(1) by the Amending Act, 1972. Secondly,
the very date 19-9-1975 of commencement of the 1972 Amending Act stood
postponed to 2-10-1975 by an Ordinance and hence even before the Amending
Act could be applied, the proviso to Section 4(1) stood deleted w. e. f.
20-9-1975. Hence, in regard to all orders passed by the Tribunals on or after
G 2-10-1975, it was obligatory for the Tribunals to apply Section 10 to all lands
even ifsuch lands had earlier stood excluded by the proviso to Section 4(1)
and apply the new Explanation added in Section 10(1).
[333-F-G-H; 334-A-B-C)

2. In the present case, the Tribunals passed the orders in 1976 by
H which time under the 1972 Amending Act the concept of'family unit' came
STATE v. V.G. WARHADE [M. JAGANNADHA RAO, J.] 325
in and, therefore, Section 10(1) required the bona fides of the transfers A
between 26-9-1970 and 2-10-1975 to be tested and the ll'.xplanation to Section

-- 10(1) altered the onus of proof. Under the Amending Act, 1975 the proviso
to Section 4(1) stood dropped. All these provisions were, therefore, rightly
applied by the Tribunals when they passed the orders in 1976. The High
Court was in error in holding that the proviso to section 4(1) was still B
applicable and that the land which fell into the category mentioned in the said
proviso had to be exclude and that the bona jides of their transfers need not
be gone into. [334-F-G-H; 335-A)

3.1. The rule is that when a subsequent Act amends an earlier one in
such a way as to incorporate itself, or a part ofitself, into the earlier, then C
the earlier Act must thereafter be read and construed (except where that
would lead to a repugnancy, inconsistency or absurdity) as if the altered
words had been written into the earlier Act with pen and ink and the old
words scored out so that thereafter there is no need to refer to the Amending
Act at all. [336-A-B)

Shamrao V. Parulekar v. District Magistrate, Thane, Bombay, AIR
D
(1952) SC 324, relied on.

Madhukar v. State of Maharashtra, (1986) MLJ 781 (Bom) (FB),
approved.

Rambilas v. State ofMaharashtra, (1976) MLJ 865 (Bom), referred to. E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1915 of
1991.

From the Judgment and Order dated 12-1-1982 of the Bombay High
Court in Second Civil Application No. 4026of1976. F
D.M. Nargolkar and S. M. Jadhav for the Appellant.

U. U. La lit for the Respondent.

The Judgment of the Court was delivered by
G
M. JAGANNADHA RAO, J. The State of the Maharashtra has filed this
appeal against the judgment of the High Court of Bombay dated 12.1.1982 in
Special Civil Application No. 4026 of 1976. By that judgment, the learned
Single Judge allowed the respondent's application filed under Article 227 of
the Constitution of India and set aside the order of the Maharashtra Revenue
Tribunal, Nagpur dated 15.7.1976 and the earlier order of the Surplus Land H
326 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A Determination Tribunal dated 27.5.1976 and held that land covered by several
alienations made by the declarant, Sri Vithalrao Ganpatrao Warhade during the
period 26.9.1970 and 19.9.1975 was to be excluded from the holding of the ...
declarant in view of the proviso to section 4(1) of the Maharashtra Agricultural
Land (Ceiling on Holdings) Act, 1961 (as amended by Maharashtra Act, 1972
B (Act XXI of 1975) and as amended by Maharashtra Act, 1975. (Maharashtra
Act XLVII of 1975). We shall be referring to the amending Act, 1972 (Act XXI
of 1975) as. the Amending Act, 1972 and the amending Act XL VII of 1975 as
the Amending Act, 1975.

We shall now refer to a few facts. Upon public notice being given on
C 12.3.1976, the land holder gave a list of various lands owned by his 'family
unit'. The primary Tribunal in its order dated 27.5.76 came to the conclusion
that the landlord owned Ac. 90.38 and was entitled to retain Ac. 54.00 plus
Ac. 5.38 potkharab and Ac. 2.26 of non-agricultural land and that Ac. 3.80
sold for compelling necessity was not liable to be included in his holding.
Other sales were not liable to be excluded. The balance of Ac. 29.94 were held
D surplus and were to be surrendered. The appellate Tribunal, in its order dated
15.7.76 held that the plea regarding a partition dated 15.1.1970 between the
declarant, his wife and son was not seriously contended but in any event,.
the land held by the wife had to be clubbed with that held by the husband
in view of the section 4 of the principal Act of 1961, as amended. Further, the
E partition was unregistered and the declarants' s son was a minor at that time.
The appellate Tribunal held that there was no case made out for excluding
the land covered by other sales inasmuch as there was no proof that the sale
of lands for Rs. 50,000 was spent for purchasing better quality of land. Only
Rs. 15,000 was spent for purchasing other land and the bulk of the consideration
was spent for construction of a house at Nagpur and that could not, according
F to the appellate Tribunal, be considered as a sufficient reason for claiming
exclusion of the other lands also,- inasmuch as no compelling necessity was
proved. The appeal was, therefore, dismissed.

In the High Court, the declarant claimed exclusion of lands sold by him
G and also lands sold by his wife between 26.9.70 and 19.9.75. He contended
that the extent so sold was liable for exclusion under the proviso to section
4( 1) of the Act. The partition dated 15 .1.1970 was also relied upon and it was
also contended that the extent of land got by the declarant's wife from her
parents before 26.9.70 was also liable to be excluded. It was contended for
the declarant that the 'family unit' concept was brought into force initially
H w.e.f. 19.9.1975 when the ceiling area was also reduced by the Amending Act
STATE v. V.G. WARHADE [M. JAGANNADHA RAO, J.] 327
of 1972, but as on 19.9.1975 the proviso to section 4 pennitted exclusion of A
lands acquired before 26.9.70 by the members of the family unit-by testamentary
disposition or devolution on death or by operation of law or by partition
effected before 26.9.1970 and that, therefore, the extent ofland transferred by
the declarant and his wife out of such lands which fell within these categories,
stood excluded as on 19.9.1975. When the lands so held stood altogether
excluded from the holding as on 19.9.1975, then even if by the Amending Act B
of 1975 which came into force on 20.9.1975, the proviso to section 4 pennitting
such exclusion was deleted, those lands do not get included in the holding
again since the latter Amending Act of 1975 (Act XLVII/75) was effective from
20.9.1975 only and not from 19.9.1975. Hence, there was no question of testing
the validity of those transfers of excluded land, on the anvil of section 10(1 ), C
i.e. Whether they were intended to defeat the provisions of the "Amending
Act of 1972". Further the words in section 10( I) "in order to avoid or defeat
the object of the Amending Act, 1972," - would mean the object of the 1961
Act as amended by the 1972 Amendment (w.e.f. 19.9.1975) when the proviso
to section 4(1) was intact, those words could not be taken as referable to the D
Act of 1961 as further amended by the 1975 Act (w.e.f. 20.9.1975) which
deleted the proviso to section 4( 1). In other words, if the lands were acquired
in the manner stated in the proviso to section 4(1) and then stood excluded
as on 19.9.1975, the bonafides of the transfers of those lands could not be
considered in the context of section I 0 any longer, merely because the proviso
to section 4(1) was dropped by Amending Act (XLVII of 1975), w.e.f. 20.9.1975. E
The High Court accepted this contention of the respondent and held
. that it was not necessary to go into the bona fides of the sales under section
I 0( l) inasmuch as the land covered by the sales stood excluded as they fell
in the category of lands referred to in the proviso to Section 4( I), and hence
there was no question of deciding if they were intended to defeat the F
provisions of the "Amending Act, 1972 as amended by the 1975 Amendment".
According to the High Court.

"the Amending Act, 1972 enabled a person to hold land separately if
he owned and possessed the same since prior to 26th September, 1970
and the said lands were not to be computed in the assessment of the G
family unit."

The High Court, stated that it therefore, followed that if such a member
of the family unit transferred land falling within the proviso to section 4, there
could be no question of any intention to avoid or defeat the object of the
Amending Act, 1972, (before the further amendment by Amending Act of H
328 SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.

A 197 5) in as much as the 1972 Amending Act itself provided that such separate
land could not be computed in the family unit. The High Court further held:

"This Explanation to section 10 regarding the deeming provision only
relates to assuming an intention on the date of the transfers of
avoiding or defeating the object of the Amending Act, 1972 and it
B does not relate to the Amending Act XLVII of 1975."

The High Court further observed:

'It is to be noted that the Amending Act 1972, which is the
Maharashtra Act No. XXI of 1975 has the commencement date 19th

c September, 1975 while the next Amending Act which is the Maharashtra
Act No. XLVII of 1975 has the commencement date 20.9.1975."

An individual, therefore, holding and possessing land separately before 26th
day of September, 1970 and even though he was a member of the family unit,
his land could not be commuted in the 'family unit, and if each of such
D members were holding lands within the ceiling limit-the Amending Act, 1975
being not relevant for purposes of Section 18(1 )- then transfers during the
period from 26th day of September, 1970 to 19th day of September, 1975 could
not be said to have been effected in anticipation or in order to avoid or defeat
the object of the Amending Act, 1972 (Act XXI of 1975) inasmuch as that Act
itself permitted such separate holding. The High Court distinguished the
E decision in Rambi/as v. State of Maharashtra, (1976) Mah. L.J. 865. In the
result, the application was allowed and the orders of both Tribunals were
quashed.

In this appeal, it is contended by the learned counsel for the State of
Maharashtra, Sri D.M. Nargolkar that the view taken by the High Court is
F erroneous and that the fact that there was gap of one day between the
commencement of the two Amending Acts was irrelevant and that the words
in Section 10(1)- "defeating the objects of the Amending Act, 1972", mean the
provisions of the Amending Act, 1972 as further amended by the Amending
Act, 1975. Thr properties held by the husband and wife (and other members.
G of the family .mit) have to be clubbed together and the bona fides of the
sales made between 26.9.70 and the 'commencement date' had been rightly
gone into by the lower Tribunals and theses transfers were not accepted as
bonafide.

On the other hand, learned counsel for the respondents Sri U.U. Lalit
H contended that the view taken by the High Court was correct. Learned
STATEv. V.G. WARHADEfM.JAGANNADHARAO,J.] 329
counsel pointed out that the Amending Act 1972 (Act XXI/1975) was brought A
into force on 19.9.1975 while the Amending Act. 1975 (Act XLVII/75) was
brought into force on 20.9.75. By the time the proviso to section 4(1) was
deleted with effect from 20.9.75 by Act XLVII of 1975, the exclusion of other
lands held by each member of the family unit,-of the category mentioned in
the proviso to section 4-became an accomplished fact. The lands sold after
26.9.70 being of the category mentioned in the proviso to Section 4, and B
having stood excluded by 19.9. 75, the question of the transfer of such lands
defeating the object of the Amending Act 1972 did not arise and there was
no need to go into the question of bonafides of these transfers. He also
contended that the words in section 10(1) "Amending Act, 1972" did not
mean the said Act as further amended by the Amending Act of 1975. Learned C
counsel, however, fairly brought to our notice that the above contention
which was accepted by the High Court in the impugned Judgment was not
accepted in a latter Full Bench of Bombay High Court in Madhukar v. State
of Maharashtra, (1986) Mah LJ 781 FB. Learned Counsel also fairly pointed
out that the judgment of the Learned Single Judge now in appeal before us D
was squarely overruled by the Full Bench in Madhukar's, case. He, however,
contended that the view expressed in the impugned Judgment is the correct
one and the Full Bench Judgment is not correct.

The following points arise for consideration: (1) Whether the fact that
initially the Amending Act of 1972 (Act XXI of 1975) was brought into force E
w.e.f. 19.9.1975 and the Amending Act of 1975 (Act XLVII of 1975) was
brought into force w.e.f. 20.9.1975 would result in the disputed extent being
excluded from the holding by 19.9.1975 so as not to attract Section 10(1), for
considering whether the transfers of these lands in the crucial period was
intended to avoid or defeat the object of the Amending Act, 1972?
F
(2) Whether the words 'Amending Act of 1972' in Section 10(1) mean
the said Act as it stood on 19.9.75 or as it stood further amended on 20.9.75
by Amending Act of 1975 (Act XLVII of 1975)?

Point 1:
G
The Principal Act of 1961 was enacted on 16.6.61. It fixed a higher
ceiling for the land-holding than the ceiling area in force when the respondent's
case was decided by the Tribunals. It appears that on 26.9.70, a conference
of Chief Ministers was held and it was decic;ted to evolve a national policy
on the subject. As a consequence, the Maharashtra Amending Bill LVI of
1972 was introduced in the State Legislature on 7.8.1972 and was passed. But H
330 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A the said Act of 1972 received the President's assent only on 7.8.75 and it
thereafter became Act XXI of 1975. It was published in the Gazette on 7.8.75
and was brought into force initially on 19.9.75. This Amendment of 1972
reduced the ceiling area and also brought in the concept of 'family unit'.

One other important fact is that the 'date of commencement' of the
B Amending Act 1972, was 19.9.1975 as stated above, but it was postponed to
2.10.~5 by Ordinance XIV of 1975 promulgated on 2.10.75. That Ordinance was
replaced by Act II of 1976 w.e.f. 2.10.1975. Therefore, Amending Act 1972 (Act
XXI of 1975) become effective not from 19.9.1975 but from 2.10.75. By that
date, i.e. 2.10.75, the latter Amending Act, 1975 (Act XLVII of 1975) had come
C into force on 20.9.1975, which deleted the proviso to section 4(1). The public
notice in question in the present case was issued by the competent authority
on 12.3.76 and declaration came to be filed later and the Tribunals computed
the ceiling area by orders dated 27.5.76 and 15.7.76. In other words, as on the
date when the declaration was filed by the owners, the Amending Act of 1972
(Act XXI of 1975) was applicable as it was brought into force w.e.f. 2.10.75
D (instead ofw.e.f. 19.9.75) and the Amending Act (Act XLVII of 1975) was also
applicable, having already been brought into force from 20.9.75. We shall now
refer to some details in the provisions of the Act.

The Act defines 'family' in Section 2(11) and 'family unit' in Section
2(1 lA). The definition in Section 2(1 lA) says that a 'family unit' means a
E family unit as defined in section 4. Section 2(22) defines 'person' as including
a 'family'.

Chapter II and III were substituted by the Amending Act of 1972 (Act
XXI of 1975) w.e.f. 19.9.1975 (postponed to 2.10.1975).
F
Chapter II deals with 'Lowering of ceiling on Holdings'. It states that
subject to the provisions of chapter II and III, no person or 'family unit· can,
after the commencement date (i.e. 2.10.1975) hold land in excess of the ceiling
area, as determined in the manner hereinafter provided in that section. Section
4 deals with 'Land held by family unit'. Section 4(1) states that all land held
G by each member of a family unit, whether jointly or 'separately will for the
purposes of determining the ceiling area of the family unit be clubbed. The
Explanation to Section 4(1) reads as follows:

"Explanation :- A 'family unit' means-

H (a) a person and his spouse (or more than one spouse) and their minor
STATE v. V.G. WARHADE [M. JAGANNADHA RAO, J.) 331
sons and minor unmarried daughters, if any; or A
(b) Where any spouse is dead, the surviving spouse or spouses, and
at the minor sons and minor unmarried daughters; or

(c) Where the spouses are dead, the minor sons and minor unmarried
daughters of such deceased spouses". B
Sub-section (2) of section 4 is not relevant for the purpose of the case before
us. Section 5 refers to the 'Ceiling area'. As stated earlier, by this Act of 1972
the ceiling area was very much reduced and it was applicable to the lands held
by the members of the 'family unit'. Section 6 deals with extra area permitted
in respect of a family unit consisting of more than 5 persons. Section 7 is not C
relevant for the present case.

Chapter III deals with 'Restrictions on Transfers and Acquisition-
consequences of contraventions'. Section 8 deals with restriction on transfer
by persons or a family unit holding land in excess of the ceiling area on or
after the date of "commencement of the Amending Act 1972" i.e. initially D
19.9.1975 and later 2.10.1975. Section 9 deals with restriction on acquisition
of land in excess of the ceiling area. Section 10(1) deals with 'consequences
of contraventions and acquisition of land'. As we are dealing with transfers
between 26.9.70 and the date of commencement of the Amending Act, 1972,
we are concerned here with Section 10(1) (a). The said section 10(1) reads as E
follows:

"Section 10(1) : If

(a) any person or member of a family unit, after the 26th day of
September, 1970 but before the Commencement date, transfers any
land in anticipation or in order to avoid or defeat the object of the F
Amending Act, 1972: or

(b) ..............................................."

An Explanation was added to section 10(1) by the same amendment i.e.
Amending Act of 1972 (Act XXI of 1975) w.e.f. 19.9.1975 as follows and this G
provision altered the burden of proof.

Explanation : For the purpose of clause (a), 'transfer' has the same
meaning as in section 8.

All transfers made after the 26th day of September, 1970 but H
332 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A before the commencement date, shall be deemed (unless the contrary
is proved) to have been made in anticipation of or in order to avoid
or defeat the object of the Amending Act, 1972".

As on 19.9.75, the principal Act, as amended by Amending Act, 1972
(Act XXI of 1975) contained a proviso to Section 4(1) which, according to the
B respondent, excluded the lands in question from the holding as these lands
were acquired in the manner mentioned in that proviso. Section 4(1) with the
proviso read as follows as on 19.9.75 :

"4.(1). All land held by each member of a family unit, whether jointly
or separately shall for the purpose of determining the ceiling area of
c the family unit, be deemed to be held by the family unit:

Provided that, if any person, who is a member of a family unit
holds land which is possessed separately before the 26th day of
September 1970, as a result of acquisition by testamentary disposition
or devolution on death or by operation of law or is acquired as a
D result of a transfer or partition effected prior to the 26th day of
September 1970, then of determining the surplus land in any holdings
which is in excess of the ceiling area on or before the commencement
date, such land shall not be deemed to be held by the family unit".

E It was argued for the respondent that the land in the present case-which
had not been excluded by the tribunals- fell into the category mentioned in
the said proviso, having been so held or acquired by members of the family
unit before 26.9.70, and the same was, therefore, liable to be excluded "for
determining the surplus land in any holding which is in excess of the ceiling
area on or before the commencement date". Once the land stood so excluded
F when Act XXI of 1972 initially came into force on 19.9.75, then section 10(1)
could not be applied for such land and there was, therefore, no question of
going into the bonafides of the transfer of such lands. It might be that the
proviso to section 4(1) came to be omitted w.e.f. 20.9.75 by the Amending Act
(XIVII of 1975) but that was irrelevant inasmuch as the exclusion of these
G lands on 19.9.75 became an accomplished fact. Further the words "Amending
Act, 1972" in Section I 0( I) meant the said Act as it stood before its amendment
by Amending Act XLVII of 197 5 i.e. before the proviso to Section 4( 1) was
dropped. In other words, the contention was that such an effect, as stated
above, was produced on the facts of the case because the Amending Act of
1972 (Act XXI of 1975) came into force initially on 19.9.1975 while Amending
H Act of 1975 (Act XLVII of 1975) came into force one day later, i.e. on 20.9.1975.
STATE v. V.G. WARHADE [M. JAGANNADHA RAO, J.] 333
The fact that, by Act of Legislature 19.9.1975 stood postponed to 2.10.1075 A
did not matter. That is the contention for the respondent .

We are of the view that the above contention as to the effect of the two
Amending Acts raised by respondents is not correct and the said contention
has been rightly rejected by the Full Bench in Madhukar 's case.
B
It is true the Amending Act of 1972 (Act XXL of 1975) was brought into
force initially on 19.9.1975 and as per the proviso to Section 4(1) which was
very much there on that day, these lands individually belonging to the
declarant or his wife might have stood excluded from the holding of the family
unit if the same were acquired in tbe manner stated in the proviso to section C
4(1). It is also true that Amending Act of 1975 (Act XL VII of 1975) which
deleted the proviso to Section 4(1) came into force only w.e.f. 20.9.1975.

But, the difference of one day in the commencement of these Amending
Acts, in our opinion, would have had some significance if in that one day,
declaration was filed, extents of land were computed and such computation D
had also become final on the same day. But no such thing happened on
19.9.1975. In fact the owners filed declarations only in 1976. By the date the
owners filed their declarations, the Amending Act, 1975 (Act XL VII of 1975)
deleting the proviso to Section 4(1) had already come into force on 20.9.75.
"
Assuming that the difference of one day between the commencement E
of these two Amending Acts could have some bearing on the case, the fact
remains that by Ordinance XIV of 1975 promulgated on 2.10.1975, the date of
commencement of the Amending Act of 1972 i.e. 19.9.1975 was postponed to
2.10.1975. That would mean that the Amending Act of 1975 (Act XL VII of
1975) which dropped the proviso to section 4(1) came into force on 20.9.1975
earlier to the Amending Act of 1972 (Act XX! of 1975), which came into force F
on2.I0.1975.

The result is that the contention for the respondents based on the
difference of one day between the initial commencement of Amending Act
1972 (Act XXI of 1975) and the commencement of Amending Act 1975 (Act G
XL VII of 1975) is liable to be rejected for two reasons, -Firstly no exclusion
by way of orders was passed by any Tribunal between the parties-based on
the proviso to section 4(1)-on the solitary day 19.9.75 nor did any such
exclusion become final on 19.9.1975 before the latter amendment become
effective from 20.9.1975. Even before any such thing happened, the proviso
to section 4(1) stood deleted w.e.f. 20.9.1975 when Amending Act, 1975 (Act H
334 SUPREME COURT REPORTS [1998] SUPP; 2 S.C.R.

A XLVII of 197 5) came into force. Hence in regard to all declarations filed by
owners on or after 2.10.75, the proviso to section 4(1) ceased to apply. Once
the lands of the description in the said proviso did not stand excluded w.e.f.
20.9.75, the Tribunals were entitled to go into the question whether the
transfers of such lands between 26.9.70, and 2.10.75 were bonajide ornot and
B apply Section I 0(1) of the Act and the Explanation added in section I 0(1) by
Amending Act, 1972 (Act XXI of 1975). Secondly, the very date 19.9.75 of
commencement of the 1972 Amending Act stood postponed to 2.10.75 by an
Ordinance and hence even before Amending Act (Act XXI of 1972) could be
applied, the proviso to section 4(1) stood deleted w.e.f. 20.9.75. Hence in
regard to all orders passed by the Tribunals on or after 2.10.75, it was
C obligatory for the Tribunals to apply section I 0 to all lands even if such lands
had earlier stood excluded by the proviso to Section 4(1) and apply the new
explanation added in section I 0( I).

It is argued for the respondent that the latter Amending Act (Act XL VII
of 1975) was effective from 20.9.1975 and was not retrospective from 19.9.1975.
D But, in our view, the same result was achieved by postponing the date of
commencement of the first Amending Act, 1972 (Act XXI of 1975) from
19.9.1975 to 2.10.1975, i.e. to a date after the date of the Commencement of
the second Amending Act, 1975 (Act XL VII of 1975) i.e. 20.9.1975.

E Again, it may be that previously i.e. on 19.9.75, in regard to transfers
of lands other than those mentioned in the proviso to section 4(1) above, if
such transfers were between the crucial dates- they had to be tested on the
anvil of section 10( 1) as to their bonafides and also by applying the Explanation
which changed the burden of proof. But w.e.f. 20.9.75, even the lands which
were earlier liable to be so excluded under the proviso to section 4( 1) became
F liable to pass the test of section 10(1) if they were transferred between 26.9.70
and 2.10.75 because the proviso to section 4(1) stood dropped w.e.f. 20.9.1975.

In the present case, the Tribunals passed orders in 1976 by which time
under the 1972 amending act (XXI of 1975) the concept of 'family unit' came
G in, section 10(1) required the bonafides of the transfers between the 26.9.70
and 2.10.75 to be tested and the Explanation to section 10(1) alterec. the onus
of proof. Under Amending Act, 1975 (Act XLVJI of 1975) the proviso to
section 4(1) stood dropped. All these provisions were, therefore, rightly
applied by the Tribunals when they passed orders in 1976. The High Court
was in error in holding that the proviso to section 4(1) was still applicable and
H that these lands which fell into the category mentioned in the said proviso
STATEv. V.G. WARHADE[M.JAGANNADHARAO,J.] 335
had to be excluded and that the bonafides of their transfers need not be gone A
into. Point I is, therefore, decided in favour of the appellant and against the
respondent.

Point 2:

The next question is as to the meaning of the words " in anticipation B
of or in order to avoid or defeat the object of the Amending Act, 1972", in
section 10(1) and its Explanation. Question is whether these words mean the
Amending Act, 1972 as it stood originally as on 19.9.1975 when proviso to
section 4(1) was in existence or are also referable to the Amending Act, 1975,
which came into force on 20.9.1975?
c
It is true that initially section I0(1) and its Explanation merely referred
to the proof of and intention to avoid or defeat the provisions of the Amending
Act, 1972 i.e. the Act XXI of 1975 which came into force on 19.9.1975 and
which date stood postponed to 2.10.1975.

But by 2.10.1975, the Amending Act, 1975 (Act XLVII of 1975) had also
D
come into force from 20.9.75 and therefore, in our view, the words ' in
anticipation of or in order to avoid or defeat the object of the Amending Act
1972' would have to be read as "in anticipation of or in order to avoid or
defeat the object of the Amending Act 1972 as further amended by the
Amending Act, 1975 (Act XLVII of 1975 )". It would, therefore, become E
necessary to go into the bonafides of the transfers of lands even if the lands
were previously liable to be excluded from the holding if they were of the
category falling within the proviso to section 4(1 ). Further, the change in the
mode of proof as brought about by Act XXI of 1975 by virtue of the
Explanation to section 10 would also become applicable to these transfers. F
The holdings of the members of the family unit had also to be clubbed
together as stated in the Act, as amended. In other words, once the Amending
Act, 1972 stood further amended w.e.f. 20.9.75, there could be no question of
still going by the Act as it stood before 20.9.75 and the Tribunals were bound
to apply section 4( I) without the proviso and section 1O( I) as also together
with the new explanation to section 10(1 ). G
Further, we agree with the reasoning of the full Bench in Madhuker 's
case (1986 Mah. L.J. 781) in this behalf. The Full Bench, in our view, rightly
applied the principle enunciated by this court in Shamrao V. Parulekar and
Ors. v. District Magistrate, Thana. Bombay and Ors., AIR (1952) SC 324. The
relevant passage from the decision of this Court reads as follows: H
336 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A "The rule is that when a subsequent Act amends an earlier one in
such a way as to incorporate itself, or a part of itself, into the earlier,
then the earlier Act must thereafter be read and construed (except
where that would lead to a repugnancy, inconsistency or absurdity)
as if the altered words had been written into the earlier Act with pen
and ink and the old words scored out so that thereafter there is no
B need to refer to the Amending Act at all".

Applied to the present situation, the words 'Amending Act, 1972' in
section 10(1) must in our view be read 'Amending Act, 1972 as amended
by Amending Act, 1975. This disposes of the second contention raised by
C the respondent.

For the aforesaid conclusions, the reasons given by the High Court are
not correct and the reasons in Madhukar 's case decided by the Full Bench
in 1986 are correct. The appeal is allowed and the judgment of the primary
tribunal as affirmed by the appellate tribunal is restored. No costs.
D
v.s.s. Appeal allowed.

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