Supreme Court of India
VINODCHANDRA SAKARLAL KAPADIAversusSTATE OF GUJARAT AND ORS.
- Citation
- 2020 INSC 427
- Decided
- 15 June 2020
- Disposal
- Dismissed
- Bench
- UDAY UMESH LALIT
Holding
Section 43's term "assignment" embraces testamentary disposition, and Section 63 bars the transfer of agricultural land to a non‑agriculturist even by will, rendering such disposition void and vesting the land in the State.
Summary
The case concerned agricultural land in Surat district that was held by Samubhai Budhiabhai, a tenant who became a deemed purchaser under the Bombay Tenancy and Agricultural Lands Act, 1948. Samubhai executed a will bequeathing the land to Vinodchandra Kapadia, who was not an agriculturist. The State challenged the disposition under Sections 63 and 43 of the Act, arguing that a testamentary transfer to a non‑agriculturist is prohibited. The Division Bench of the Gujarat High Court held that the term "assignment" in Section 43 includes a testamentary disposition and that Section 63 bars such transfers, declaring the land vested in the State. The Supreme Court affirmed this view, rejecting the appellants' arguments and dismissing the appeals.
Issues considered
- The scope of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 – does it bar testamentary disposition of agricultural land to a non‑agriculturist?
- Whether the expression "assignment" in Section 43(1) of the Act includes a disposition by will.
- Whether a testamentary transfer in violation of Sections 43 and 63 is void and the land vests in the State.
- The legislative competence of the Gujarat amendment to the Act and its pith‑and‑substance analysis.
- The correctness of the earlier decision in Mahadeo (Dead) v. Shakuntalabai in light of Sangappa and Jayamma.
Legislation cited
- Bombay Land Revenue Code, 1879s. 73, s. 73AA
- Bombay Tenancy and Agricultural Lands Act, 1948 (as applicable to Gujarat)s. 14, s. 27, s. 32, s. 32A, s. 32B, s. 32F, s. 32I, s. 32O, s. 32P, s. 32Q, s. 32R, s. 32U, s. 33(1), s. 43, s. 63, s. 63A, s. 64, s. 84C, s. 88B, s. 88E
- Indian Succession Act, 1925
Subjects
agricultural landtenancystatutory purchasetestamentary dispositionassignmentSection 43Section 63land reformpith and substancelegislative competencenon‑agriculturist
Judgment
[2020] 5 S.C.R. 897 897
VINODCHANDRA SAKARLAL KAPADIA A
v.
STATE OF GUJARAT AND ORS.
(Civil Appeal No. 2573 of 2020)
JUNE 15, 2020 B
[UDAY UMESH LALIT, INDU MALHOTRA
AND A. S. BOPANNA, JJ.]
Bombay Tenancy and Agricultural Lands Act, 1948 – ss.63,
43 & 14, 17, 17B, 27, 29, 32, 32A, 32B, 32F, 32H, 32I, 32O, 32P, C
32PP, 32PPP, 32QQ, 32R, 32U, 33(1), 63A, 64, 84C, 88B, 88E –
Agricultural land was in the cultivating possession of a tenant, who
became deemed purchaser under the Act as he was cultivating the
land on tiller’s day – Land bequeathed through Will in favour of
appellant – However, it was found that the appellant was not an
agriculturist and the disposal by way of Will in his favour was D
contrary to s.63 – Land was declared to be vested in the State –
Division Bench inter alia held that s.63 bars the transfer of
agricultural land to a non-agriculturist for non-agricultural
purpose unless permission is obtained from Collector/authorised
officer – Held: Provisions of the Act intend to confer the advantage E
of statutory purchase upon a cultivating tenant, and see that “the
tiller of the land” is conferred ownership w.r.t the lands cultivated
by him as well as the dwelling house occupied by him – 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 s.32P, it must come to the persons or F
entities listed in the priority list (includes agricultural labourers,
landless persons) – 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 surrendered by his
tenant, each of them is obliged to cultivate the land personally – In
G
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 – A transfer inter vivos would normally
be for consideration where the transferor may get value for the H
897
898 SUPREME COURT REPORTS [2020] 5 S.C.R.
A land but the legislation requires previous sanction of the concerned
authority so that the transferee can step into the shoes of transferor
and carry out all the obligations – 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 ss.43 & 63 do not get attracted,
the land can be bequeathed to a total stranger and a non-
B
agriculturist who may not cultivate the land himself leading to
engagement of somebody as a tenant on the land – Legislative intent
to do away with absentee landlordism; to protect the cultivating
tenants and to establish direct relationship between the cultivator
and the land would then be rendered otiose – In the context of the
C entire scheme, the term “assignment” used in s.43 must include
testamentary disposition as well – View taken by Division Bench is
correct – In pith and substance, the legislation and the concerned
provisions are completely within the competence of State Legislature
– Interpretation of Statutes – Doctrine of pith and substance – Indian
Succession Act, 1925 – Land Laws and Agricultural Tenancy.
D
Dismissing the appeals, the Court
HELD: 1.1 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
E 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
F 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
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 899
GUJARAT AND ORS.
areas within the limits of Municipal Boroughs, or within the limits A
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 B
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 C
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 D
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 E
application, can pass appropriate directions in terms of Section
32P(2). In 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 F
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. G
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.
H
900 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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,
B
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
C 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
D 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
E 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
F tenant is built and the land immediately appurtenant thereto and
necessary for the enjoyment of dwelling house.
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
G 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
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VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 901
GUJARAT AND ORS.
community. However, in terms of Section 88E, such exemption A
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 B
the land personally, and in case of failure, the land can be disposed
of in terms of Section 84C of the Act.
The aforesaid provisions 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 C
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 has stood the test of time which clearly states that a
tenancy governed by a statute which prohibits assignment, cannot D
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 which has consistently been followed, must
include testamentary disposition. There is nothing in the
provisions of the Act to suggest that the expression “assignment” E
must carry a different meaning in Sections 14 and 27 on the one
hand, and Section 43 on the other. [Paras 20, 21][977-H; 978-A-
H; 979-A-H; 980-A-E]
Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal
Intawala (1986) 1 SCC 571 : [1986] 1 SCR 1 – affirmed. F
1.2 The provisions 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 G
otherwise not beyond the ceiling limit, 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
H
902 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B
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
C personally and not to transfer it. [Para 22][981-B-E]
1.3 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
D 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 sanction, the authorities may essentially check whether the
E 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
F 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. 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
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 903
GUJARAT AND ORS.
not have the element of consideration is to be permitted, and if it A
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 absentee
B
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 C
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
D
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. In
the circumstances the view taken by the Division Bench of the E
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 and Jayamma
and the other cases referred to hereinabove and must be accepted
to be the correct exposition of law. [Paras 23-25][982-D-H;
F
983-A-E]
Sangappa Kalyanappa Bangi (Dead) through LRs. v.
Land Tribunal, Jamkhandi and Others AIR 1998 SC
3229 : (1998) 7 SCC 294 : [1998] 1 Suppl. SCR 600;
Jayamma v. Maria Bai (Dead) by proposed LRs and
Another AIR 2004 SCW 4412 : (2004) 7 SCC 459 : G
[2004] 3 Suppl. SCR 175 – affirmed.
1.4 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
H
904 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B
attain and sub-serve the purpose of protecting the holdings in
the hands of disadvantaged categories. The prohibition against
transfers of holding without the previous sanction of the
concerned authorities, is to be seen in that light as furthering the
cause of legislation. Even if by the process of construction, the
C 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”
D
to include testamentary disposition, no transgression will ensue.
The construction put by the Division Bench on the provisions
that fell for consideration is accepted. The challenge to the view
taken by the Division Bench must therefore be rejected. The
decision of this Court in Mahadeo which had failed to notice the
E earlier decisions in Sangappa and Jayamma and which is
inconsistent with the decisions referred to hereinabove and what
the Court has concluded, must be held to be incorrectly decided.
[Paras 31, 33][999-E-G; 1000-A-B]
Mahadeo (Dead through legal representatives) v.
F Shakuntalabai (2017) 13 SCC 756 – held incorrect
law.
Girnar Traders (3) v. State of Maharashtra and Others
(2011) 3 SCC 1 : [2011] 3 SCR 1 – followed.
Manchegowda v. State of Karnataka (1984) 3 SCC
G 301 : [1984] 3 SCR 502; Lingappa Pochanna Appelwar
v. State of Maharashtra and another (1985) 1 SCC 479
: [1985] 2 SCR 224; Pandey Oraon v. Ram Chander
Sahu and Others (1992) 2 Suppl. SCC 77; Amrendra
Pratap Singh v. Tej Bahadur Prajapati and Others
H (2004) 10 SCC 65 : [2003] 6 Suppl. SCR 42; State of
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 905
GUJARAT AND ORS.
Rajasthan and Others v. Aanjaney Organic Herbal A
Private Limited (2012) 10 SCC 283 : [2012] 7 SCR
1148; Rajasthan Housing Board v. New Pink City
Nirman Sahkari Samiti Limited and Another (2015) 7
SCC 601 : [2015] 5 SCR 365; Samatha v. State of A.P.
and Others (1997) 8 SCC 191 : [1997] 2 Suppl. SCR
B
305; Welfare Association, A.R.P., Maharashtra and
Another v. Ranjit P. Gohil and Others (2003) 9 SCC
358 : [2003] 2 SCR 139; State of Maharashtra v. Bharat
Shanti Lal Shah and Others (2008) 13 SCC 5 : [2008]
12 SCR 1083 – relied on.
State of Punjab (now Haryana) and Others v. Amar Singh C
and Another (1974) 2 SCC 70 : AIR 1974 SC 994 :
[1974] 3 SCR 152; Dayandeo Ganpat Jadhav v.
Madhav Vithal Bhaskar and Others (2005) 8 SCC
340 : [2005] 4 Suppl. SCR 439; Timmakka Kom
Venkanna Naik v. Land Tribunal (1987) 2 Kant LJ 337; D
State of W.B. v. Kailash Chandra Kapur (1997) 2 SCC
387 : [1996] 9 Suppl. SCR 398; S. Rathinam alias
Kappamuthu and Others v. L.S. Mariappan and Others
(2007) 6 SCC 724 : [2007] 7 SCR 568; Jaspal Singh
v. Additional District Judge, Bulandshahr & Ors. (1984)
4 SCC 434 : [1985] 1 SCR 889; Dr. Anant Trimbak E
Sabnis v. Vasant Pratap Pandi AIR 1980 Bombay 69;
Lincai Gamango and Others v. Dayanidhi Jena and
Others (2004) 7 SCC 437 : [2004] 2 Suppl. SCR 825;
Shamjibhai Keshavjibhai Kansagra (Patel) & Ors. v.
Principal Secretary, Revenue Dept. (Appeals) & Ors. F
AIR 2011 Gujarat 55 – referred to.
Case Law Reference
[1998] 1 Suppl. SCR 600 affirmed Para 6 (e)
[2004] 3 Suppl. SCR 175 affirmed Para 6 (e) G
[1974] 3 SCR 152 referred to Para 8.3
[2005] 4 Suppl. SCR 439 referred to Para 8.3
(2017) 13 SCC 756 held incorrect law Para 10
[1996] 9 Suppl. SCR 398 referred to Para 12(D) H
906 SUPREME COURT REPORTS [2020] 5 S.C.R.
A [2007] 7 SCR 568 referred to Para 12(D)
[1985] 1 SCR 889 referred to Para 12(D)
[1986] 1 SCR 1 affirmed Para 12(E)
[1984] 3 SCR 502 relied on Para 15 (A)
B [1985] 2 SCR 224 relied on Para 15 (B)
(1992) 2 Suppl. SCC 77 relied on Para 1
[2003] 6 Suppl. SCR 42 relied on Para 17
[2004] 2 Suppl. SCR 825 referred to Para 17
C
[2012] 7 SCR 1148 relied on Para 1
[2015] 5 SCR 365 relied on Para 18 (b)
[1997] 2 Suppl. SCR 305 relied on Para 22
[2003] 2 SCR 139 relied on Para 28
D
[2008] 12 SCR 1083 relied on Para 29
[2011] 3 SCR 1 followed Para 30
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2573
of 2020.
E
From the Judgment and Order dated 17.03.2009 of the High Court
of Gujarat at Ahmedabad in Special Civil Application No. 25058 of 2006.
With
Civil Appeal Nos. 2574, 2575, 2576, 2577, 2578, 2579, 2581, 2583,
F 2584 of 2020.
Sanjay Parikh, Sr. Adv., Ms. K. V. Bharathi Upadhyaya,
Raghavendra S. Srivatsa, Pai Amit, Rahat Bansal, Aniruddha P. Mayee,
A. Rajarajan, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan,
Alok Kumar, Ms. Bhavna Sarkar, Ms. Deepa Gorasia, Neerav Thakkar,
G Ms. Bina Madhavan, Katubadi Ismail, M/s. Lawyer S Knit & Co, P. S.
Sudheer, Rishi Maheshwari, Ms. Mayuri Nayyar Chawla, Ms. Anne
Mathew, Bharat Sood, Ms. Shruti Jose, Divyesh Sejpal, S. Hariharan,
Ms. Jaikriti S. Jadeja, Vikash Singh, Somesh Chandra Jha, Anand
Darshan, Rahul Narang, Mahesh Agarwal, Abhinav Agrawal, Nishant
Roa, E. C. Agrawala, Rajiv Kumar, Krishna M. Singh, Sanjeev Gupta,
H Sandeep Kumar, Rameshwar Prasad Goyal, Nikhil Goel, Dushyant Sarna
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 907
GUJARAT AND ORS.
(for A. Venayagam Balan), Ms. Hemantika Wahi, Rahul Gupta, Advs. A
for the appearing parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Leave granted. B
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 connected matters while answering the questions referred
to it by a Single Judge of the High Court. The questions that arose for C
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 D
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. E
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) F
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
G
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’
H
908 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B
disposition. Learned Judge held that Revenue Laws dealing with
agricultural lands have not made the land uninheritable and they
also do not disqualify a non-agriculturist from inheritance nor a
number of persons are disentitled from succeeding to estate of an
agriculturist as body of successors, which may result in well
C 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
D
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.
E 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
F
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
G 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.”
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 909
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
3. Sections 43 and Section 63 of the Act1 are quoted here for A
ready reference:-
“43. Restriction on transfers of land purchased or sold under
this Act:
(1) No land or any interest therein purchased by a tenant under
section 17B, 32, 32F, 32I, 32O2, 32U, 43-1D or 88E or sold to any B
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 C
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 D
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 E
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 F
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 G
Government in consideration of a loan advanced to him by the
State Government under the Land Improvement Loans Act, 1983,
1 The Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to State of
Gujarat.
2 The words ‘32O’ were deleted by Guj. Act No.10 of 2009
H
910 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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 with
B
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”
C 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
D 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;
E (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
F 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
G 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).
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 911
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
(2) Any transfer or partition, or any agreement of transfer, or any A
land or any interest therein in contravention of sub-section (1)
shall be invalid.
63. Transfers to non-agriculturists barred.
(1) Save as provided in this Act:-
B
(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 C
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, D
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 E
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 F
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 G
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, H
912 SUPREME COURT REPORTS [2020] 5 S.C.R.
A exchange or lease, of a dwelling house or the site thereof or any
land appurtenant to it in favour of an 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
B 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).”
C 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
D 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
E 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.
F
(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
G 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 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 913
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
shall be paid to the landlord. The Tribunal shall on payment of the A
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 B
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 C
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 D
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 E
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] F
(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
G
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.
(4) The Tribunal shall, after giving an opportunity to such landlord,
tenant and other person interested to be heard and after holding
H
an inquiry determine the price of the site.
914 SUPREME COURT REPORTS [2020] 5 S.C.R.
A (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
B 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
C 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
D 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.
E
(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
F 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
G any manner except by first giving option of purchasing the same
for the price determined by the Tribunal, to an 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:
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 915
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
Provided further that the provisions of section 63 shall apply A
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 B
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 C
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 D
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
E
(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 under section 29
for obtaining possession of the land:
F
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 G
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
H
916 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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,
H subject to the modification that the tenant shall be deemed to have
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 917
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
purchased such land or part thereof on the date on which such A
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 B
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 C
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 D
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) E
of section 32 P.
Explanation. - In this sub-section “successor in interest”
means a person who acquires the interest by testamentary
disposition or devolution on death.
F
(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
G
(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): H
918 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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.
B (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
C 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
D 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 within the limits of
Municipal Boroughs Act, 1925 (Bombay XVIII of 1925), or within
E 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
F 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
G
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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 919
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
shall apply thereto as if the application had been made under section A
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 B
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 – C
(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 D
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 purchased the land held by E
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,-
F
(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: G
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
H
920 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
(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-
C
(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
D to exist;
(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;
E
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
F 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.
G (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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 921
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
commenced be deemed to have been purchased the land on the A
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 B
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 C
as follows, namely:–
(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,–
D
(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 E
(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:– F
(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 G
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;
H
922 SUPREME COURT REPORTS [2020] 5 S.C.R.
A (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 failure on the part of the tenant
to pay the same.
B 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
C “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
D 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).
E (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.
F
(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
G
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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 923
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
tenants in any backward area. In fixing such minima and maxima, A
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. – B
(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 C
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.
D
(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.
E
32O3. Right of tenant whose tenancy is created after tillers’
day to purchase land. –
(1) In respect of any tenancy created after the tillers’ day
notwithstanding any agreement or usage to the contrary, a tenant
cultivating personally shall be deemed to have purchased on the
F
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 G
sub-section (1).
3 Section 32O was deleted by Guj. Act No.10 of 2009
H
924 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 32P. Power of Collector to resume and dispose of land not
purchased by tenant and appeal against Collector’s
order: -
(1) Where the purchase of any land by tenant under section 32
becomes ineffective under the foregoing provisions of this
B 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).
C (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
D
(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”) :-
E
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,
F
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
G holders or a combination of such persons;
(ii) agricultural labourers;
(iii) landless persons;
(iv) small holders;
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 925
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
(v) a co-operative farming society of agriculturists (other A
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 B
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 C
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:
D
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; E
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:-
F
(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; G
(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; H
926 SUPREME COURT REPORTS [2020] 5 S.C.R.
A (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;
B (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
C 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
D (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
E
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
F
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
G 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
H land or portion, such land or portion, as the case may be, shall vest
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 927
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
in the State Government and the Collector shall determine the A
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 B
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. C
(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.
D
(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 entitled to the use and occupation of
the land so long as he cultivates the land personally. E
(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 F
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
G
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.
H
928 SUPREME COURT REPORTS [2020] 5 S.C.R.
A (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
B 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
C 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
D 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 one year from the said
date for a declaration that the purchase has not become ineffective.
E
(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
F 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
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 929
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
admit it as if it were an application made within such specified A
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 B
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. C
(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.
D
(a) such tenant shall also be entitled to exercise the right
conferred under sub-section (1) by making an application
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
E
(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
F
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.
G
(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.
H
930 SUPREME COURT REPORTS [2020] 5 S.C.R.
A (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
B 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
C 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.
D 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
E 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
F 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—
G
(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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 931
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
(b) the tenant, if he is a specified tenant and is willing to A
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 B
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 C
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. D
(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).
E
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 F
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 G
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 H
932 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B
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.
C (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
D 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
E 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
F 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
G 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
H personally:- If at any time after the purchase of the land under
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 933
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
any of the foregoing provisions, the purchaser fails to cultivate A
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 B
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, C
the 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
D
(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 E
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 F
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.
G
(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
H
934 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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
C 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
D 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:
E 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
F 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.
G 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
H tenancies in respect of the lands held by them as tenants.
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 935
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
(2) On receipt of the application, the Mamlatdar after giving notice A
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 B
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 subject to such C
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 D
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 E
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 F
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 G
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 H
936 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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 (b) the structures and wells constructed and permanent fixtures
made and trees planted, on the land by the landlord or
tenant;
(c) the profits of agriculture of similar lands in the locality;
C (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;
D
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
E 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
F 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
G 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,
H and
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 937
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
(ii) to all persons and bodies mentioned in the propriety A
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, side or land is not used or is not
necessary to carry on agricultural operations in the B
adjoining lands-
(i) to the tenant thereof:
(ii) to the person residing in the village who is not in
possession of any dwelling house;
C
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, D
(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 E
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 F
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. G
(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
H
938 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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 reasonable from
the date of receipt of the notice by such person.
B (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
C 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
D (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.
E
(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
F
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
G 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
H house offered to him under this section, and the land or the dwelling
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 939
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
house, as the case may be, is sold to any other person under this A
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 B
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 C
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 D
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: E
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- F
(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; G
(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-
H
940 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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,
B 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
C 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
D 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.
E (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:—
F (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
G did not exceed the ceiling area then—
(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
H payment of a penalty of rupee one in each case; and
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 941
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
(ii) if the amount received by the transferor as the price of A
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
B
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 C
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.
D
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 E
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 F
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
(b) to lands which are the property of a trust for an educational
purpose a hospital, Punjarapol. or Gaushala; G
st
(c) to lands assigned or donated by any person before the 1
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: H
942 SUPREME COURT REPORTS [2020] 5 S.C.R.
A Provided that —
(i) such trust is or is deemed to be registered under the
Bombay Public Trusts Act, 1950 (Bom. XXIX of 1950),
and
B (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
C 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
D
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. –
E (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
F
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 of sections 32 to 32R (both
G 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).”
H 5. The aforesaid provisions generally deal with the right of
purchase conferred upon a tenant and process to effectuate said right of
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 943
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
purchase. Following provisions, inter alia, deal with some of the incidents A
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— B
(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 C
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
D
(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 E
be terminated.
(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. F
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:
G
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 H
944 SUPREME COURT REPORTS [2020] 5 S.C.R.
A (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 (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
C 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
D (c), the sharers shall be entitled to enjoy the income
jointly, but 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
E 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
F 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
G 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
H also be lawful for a tenant to mortgage or create a charge on his
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 945
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
interest in the land in favour of the State Government in A
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
B
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 C
proceeds to be applied in payment of such loan.”
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 D
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 E
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 F
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.
c) The Revenue Authorities however found that the Appellant
was not an agriculturist and accordingly proceedings under G
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 H
946 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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
C amount to transfer and as such, it would not be hit by 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
D No.25058 of 2006 in the High Court which came up before a
Single Judge of the High Court. Relying on the decisions of
this Court in Sangappa Kalyanappa Bangi (Dead) through
LRs. vs. Land Tribunal, Jamkhandi and others4 and in
Jayamma vs. Maria Bai (Dead) by proposed LRs and
E another5, the Single Judge referred the matter to the Division
Bench of the High Court for consideration.
7. Similar references were made in all other connected matters
raising identical issues, which were dealt with by the Division Bench of
the High Court in its judgment and order presently under Appeal.
F 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
G avowed object of safeguarding 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
4 AIR 1998 SC 3229 = (1998) 7 SCC 294
H 5 AIR 2004 SCW 4412 = (2004) 7 SCC 459
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 947
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
the economic and social conditions of peasants ensuring the full A
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
B
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 C
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
D
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 E
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
F
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 G
Chapter V of the Tenancy Act deals with restrictions on transfers
of agricultural lands, management of uncultivated lands and
acquisition of estates and lands.”
8.1 While dealing with the question whether the term ‘assignment’
used in Section 43 of the Act would include ‘testamentary disposition’, H
it was observed by the Division Bench:-
948 SUPREME COURT REPORTS [2020] 5 S.C.R.
A “Section 43 of the Tenancy Act, however, uses word ‘assignment’.
Word ‘assignment’ has been given statutory meaning by the Apex
Court while examining the scope of Section 21 of the Karnataka
Land Reforms Act in Sangappa Kalyanappa Bangi4. In that
case, one Sangappa Bangi made an application under Section 45
of the Karnataka Land Reforms Act, 1961 claiming occupancy
B
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.
C 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
D
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
E 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
F
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
G Jayamma5 case while interpreting Section 61(1) & (3), 21(1),
2(A)(12) & (17) of the Karnataka Land Reforms Act, 1961. The
question arose whether the 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 949
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
of ‘family’ as contained in Section 2(12) and ‘joint family’ as A
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 B
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 C
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, D
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 E
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 F
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 G
are recognised by law. Theobold on Wills, Fourth Edition, Pg.629,
says that a condition which 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
H
950 SUPREME COURT REPORTS [2020] 5 S.C.R.
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
B
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
C 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
D
non-agricultural purpose and that provision strengthens the
presumption that agricultural land is not to be used as per the
holders caprice or sweet-will.”
8.3 It also relied upon decision of this Court reported in State of
Punjab (now Haryana) and others vs. Amar Singh and another6
E and Dayandeo Ganpat Jadhav vs. Madhav Vithal Bhaskar and
others7 and then concluded:-
“We are, therefore, of the considered view that if the agriculturist
is permitted to dispose agricultural property through testamentary
disposition to a non-agriculturist the same will defeat the very
F 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 correct enunciation of law and stand overruled. We, therefore,
hold that Section 63 of the Bombay Tenancy Act also bars the
G 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
6 (1974) 2 SCC 70 : AIR 1974 SC 994
H 7 (2005) 8 SCC 340
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 951
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
large number of agricultural lands have already been transferred A
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
B
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 C
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 D
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 and that the expression ‘assignment’ does not even appear E
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 F
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 G
also be given. As an extension of this submission, it is contended that the
decisions of this Court in relation to the provisions of the Karnataka
Land Reforms Act, 1961 in the cases of Sangappa4 and Jayamma5 are
distinguishable as the provisions of the Karnataka Land Reforms Act,
1961 had received Presidential assent, whereas, the provisions of the H
Act have not received any such assent.
952 SUPREME COURT REPORTS [2020] 5 S.C.R.
A Reliance is also placed on the Judgment of this Court in Mahadeo
(Dead through legal representatives) vs. Shakuntalabai8 in which
similar provisions from Bombay Tenancy and Agricultural Lands Act,
1958 (as applicable to Vidarbha Region of State of Maharashtra) came
up for consideration before this Court.
B 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
C 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
D 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 testamentary
disposition which violated these basic norms ought not to be allowed
and, therefore, the view taken by the Division Bench is correct.
E
12. We may now consider the decisions of this Court which have
dealt with issues concerning testamentary disposition of agricultural
holdings-
A. In Sangappa4,the facts were noted as under:-
F “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
G 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
H 8 (2017) 13 SCC 756
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 953
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
through the said Sangappa. Respondent 2 is the wife of the said A
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
B
High Court of Karnataka in Shivanna v. Rachiah9 (CRP No.
319 of 1976 dated 29-3-1977 wherein it was stated that there was
no prohibition against a tenant disposing of his interest by
testamentary disposition. However it was stated that such
testamentary disposition must be confined to the heirs of the
deceased or an interpretation of the provision of Sections 21 and C
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
D
would be void. The High Court 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 E
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 F
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 G
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
9 (1977) 1 Kant LJ 146 (Short notes Item 160) H
954 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B
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
C 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
D
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 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
E 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
F 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
G 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
H
under a Will in which event, he would be a stranger to the family
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 955
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
and imported on the land thus to the detriment of the landlord. In A
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
B
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
Shivanna9and 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 Tribunal11.” C
B. Similar issues regarding disposition by will were dealt with by
this Court in Jayamma5, as follows:-
“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 D
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 E
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 F
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.
G
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
10 (1979) 1 Kant LJ 18
11 (1987) 2 Kant LJ 337 H
956 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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.
B
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.
C
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
D land with occupancy right in terms of the 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
E transfer or assignment under the provisions of the Karnataka Land
Reforms Act, 1961. In Mahadeo8, this Court dealt with Section 57 of
the Bombay Tenancy and Agricultural Lands Act, 1958 as applicable to
Vidarbha Region of State Maharashtra, and observed:-
“4. The High Court took the view that the provisions of Section
F 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
G
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
H as may be prescribed by the State Government.
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 957
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
(2) Any transfer of land in contravention of sub-section (1) A
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 B
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. Kailash Chandra Kapur 12 ,
devolution of property by way of a will does not amount to a C
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.
D
6. That the beneficiary of a will receives the property by way of
devolution and not by way of transfer is also made clear by the
decision of this Court in S. Rathinam alias Kappamuthu and
Others v. L.S. Mariappan and Others13 wherein this Court has
held in para 21 that: (SCC p. 732)
E
“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.” F
In coming to this conclusion, this Court referred to Beru Ram
v. Shankar Dass14.”
D. It must be stated here that the decisions in Sangappa4 and
Jayamma5 were rendered by benches of two judges and so was
G
the decision in Mahadeo8. However, the decision in Mahadeo
does not show that the attention of the bench was invited to the
earlier decisions in Sangappa4and Jayamma5.
12 (1997) 2 SCC 387
13 (2007) 6 SCC 724
14 (1977) 8 JKLR 73 H
958 SUPREME COURT REPORTS [2020] 5 S.C.R.
A E. The decision of this Court in Sangappa4 had approved the
decision of the Division Bench of the High Court of Karnataka in
Timmakka11, wherein following observations were made by the
Division Bench:-
“13. Two decisions of the Supreme Court were also referred,
B 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
C 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
D
Nathalal Intawala16 the question was whether the tenant
of a non - residential premises continuing in occupation after
the period of contract is over, can bequeath his right of
occupation by will. The Supreme Court negatived such a
contention. The Supreme Court approved the observations
E
of the Bombay High Court in Dr. Anant Trimbak Sabnis v.
Vasant Pratap Pandi17 which were extracted……..
15. Having regard to the above decisions, we are of the
opinion that the deceased Hammi could not have bequeathed
F 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
G was protest by the appellant against registering the names of
respondents 2 and 3 or any one of them as a tenant in the
15 (1984) 4 SCC 434
16 (1986) 1 SCC 571
17 AIR 1980 Bombay 69
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 959
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
record of rights. Therefore, as on 1-3-1974 neither A
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 B
set aside. In this view of the matter, the learned Single Judge
should have reversed the order of the Land Tribunal.
Therefore, the order of the learned Single Judge also cannot
be sustained.”
F. On the other hand, the decision in Mahadeo8 had placed reliance C
on the decisions of this Court in State of West Bengal vs. Kailash
Chandra Kapur12 and in S. Rathinam13. In neither of these cases any
statutory prohibition or restriction on transfer or assignment was involved.
13. The decisions in Sangappa4, Jayamma5 and Mahadeo8 had
dealt with the question whether prohibition against transfer of agricultural D
holdings applied to testamentary disposition. While dealing with the
question whether a tenant governed by Rent Act could will away his
tenancy, in Bhavarlal Labhchand Shah16 the issue was considered in
the light of prohibition against transfer or assignment in Section 15 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This E
Court relied upon the earlier decision of this Court in Jaspal Singh vs.
Additional District Judge, Bulandshahr15 and the decision of the
Division Bench of the High Court of Bombay in Dr. Anant Trimbak
Sabnis17 and observed:-
“9. In Jaspal Singh v. Additional District Judge, Bulandshahr15 F
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: G
“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—
H
960 SUPREME COURT REPORTS [2020] 5 S.C.R.
A (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
B 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
C 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)
D
“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
E 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 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
F 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.”
G
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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 961
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
in any law, (but subject to any contract to the contrary), it shall A
not be lawful after the coming into operation of this Act for
any tenant to sublet the whole or any part of the premises let
to him or to assign or transfer in any other manner his
interest therein:….”
12. In Dr. Anant Trimbak Sabnis17 the High Court of Bombay B
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: C
“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 D
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
landlords’ rights are not invaded beyond what is strictly
necessary…. E
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. F
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 G
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.
H
962 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B
(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
C 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
D
disposition of the tenancy rights. There is no 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.”
E 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
F of any Rent Act did not specifically apply, the principles laid down in
Bhavarlal14 were not applied by this Court. The decision of this Court
in State of W.B. v. Kailash Chandra Kapur12 had observed:-
“11. It was, therefore, held that in the absence of any definition
the legal heirs of the tenants who succeeded by intestate
G 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
H made by this Court between testamentary succession or intestate
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 963
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
succession. As far as testamentary succession is concerned, this A
Court had considered that question in Bhavarlal case16. In that
case, Section 5(11) of the Bombay Rent Act defines the tenant
and clause (c) defines the “restricted tenancy rights” in favour of
the family members of the tenant. In that context, the question
arose in that case whether a tenant can bequeath a Will in favour
B
of a stranger? Considering the ratio in Gian Devi case18 and the
object of the Act, this Court had held that the tenant cannot by a
Will bequeath leasehold right in favour of strangers and induct the
stranger as tenant of the demised premises against the Will of the
landlord and the landlord is not bound by such a bequest to recognise
the legatee as a tenant. It is, thus, settled law that though leasehold C
interest may be bequeathed by a testamentary 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 D
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 E
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 F
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 G
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
18
(1985) 2 SCC 683 H
964 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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,
B
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
C 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 right to residence. If
D
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
E 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
F
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
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 965
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
transfer of “granted lands” which expression is defined in Section 3(b) A
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 Section 4 and the land is to be resumed and dealt with in
accordance with the provisions of said Act. Dealing with the challenge,
B
a bench of three Judges of this Court in Manchegowda vs. State of
Karnataka19 stated:-
“15. Any person who acquires such granted land by transfer from
the original grantee in breach of the condition relating to prohibition
on such transfer must necessarily be presumed to be aware of
the prohibition imposed on the transfer of such granted land. C
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 D
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 E
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 F
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 G
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
19 (1984) 3 SCC 301 H
966 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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 recovery of possession of such granted land on the
basis of the provisions contained in Section 4 and Section 5 of the
B
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
C 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”.
D 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
E 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
F 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
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 967
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
on transfer of such granted lands for the specified period was an A
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
B
was to remain operative. 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 C
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.”
D
B) Another bench of three Judges of this Court considered the
challenge to the provisions of the Maharashtra Restoration of Lands to
Scheduled Tribes Act, 1974 in Lingappa Pochanna Appelwar vs. State
of Maharashtra and another20. While rejecting the challenge this Court
observed:-
E
“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. F
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 G
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
20 (1985) 1 SCC 479 H
968 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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 infirmity, coupled with
undue influences or pressures brought to bear on him by or for
the benefit of the other.”
B There was a challenge on the ground of legislative competence
as well, which aspect will be dealt with later.
16. A bench of three Judges of this Court placed reliance on the
decisions in Manchegowda19 and Lingappa Pochanna Appelwar v.
State of Maharashtra20 and found that even a voluntary surrender by a
C member of a Scheduled Tribe would come within the expression
“transfer” in Section 71-A of the Chhotanagpur Tenancy Act, 1908. In
Pandey Oraon vs Ram Chander Sahu and Others21, this Court held:-
“6. In Section 71-A in the absence of a definition of transfer and
considering the situation in which exercise of jurisdiction is
D 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-
E 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
F 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
G (sic) the scope. In fact, that exactly is what has been said by a
three Judge bench of this Court in almost a similar situation in
Manchegowda19 and what was said by a three Judge bench
followed by a later decision of this Court in Lingappa20. To the
same effect is the observation of this Court in Gamini Krishnayya
H 21 (1992) Supp 2 SCC 77
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 969
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
v. Guraza Seshachalam22. The House of Lords in D (a minor) A
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
B
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 C
accordingly allow the appeal and reverse the decision of the High
Court.”
17. In Amrendra Pratap Singh vs. Tej Bahadur Prajapati and
Others24, a question arose whether a plea of adverse possession by a
non-tribal with regard to land of a tribal situated in the scheduled area D
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. E
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 F
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. G
We may refer to Principles of Statutory Interpretation by Justice
G.P. Singh (8th Edn., 2001) wherein at pp. 279-280 the learned
author states-
22
AIR 1965 SC 639
23
(1987) 1 All ER 20 (HL)
24
(2004) 10 SCC 65 H
970 SUPREME COURT REPORTS [2020] 5 S.C.R.
A “. . . . .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
B
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
C its meaning.”
………
19. State of M.P. v. Babu Lal25 is an interesting case showing
how this Court dealt with an artistic device employed by a non-
tribal to deprive a tribal of his land. The M.P. Land Revenue Code,
D 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
E 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 compromise was sought to be quashed.
F 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
G 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
H 25 (1977) 2 SCC 435
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 971
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
instance of such violation of law. The High Court was in A
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 B
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 C
(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 D
immovable property”.
………
24. In Madhavrao Waman Saundalgekar v. Raghunath
Venkatesh Deshpande26 Their Lordships of the Privy Council
dealt with a case of watan lands and observed that it is somewhat E
difficult to see how a stranger to a watan can acquire a title by
adverse possession for twelve years of lands, the alienation of
which is, in the interests of the State, prohibited. The Privy
Council’s decision was noticed in Karimullakhan v.
Bhanupratapsingh27 and the High Court noted non-availability F
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 G
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
26
AIR 1923 PC 205 : 50 IA 255 : ILR 47 Bom 798
27
AIR 1949 Nag 265 : ILR 1948 Nag 978 H
972 SUPREME COURT REPORTS [2020] 5 S.C.R.
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
B
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
C 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
D
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
E 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
F
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
immovable property of tribals and is enjoined to see that the tribal
remains in possession of such property. No period of limitation is
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 973
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
his property to him. To such an action neither Article 65 of the A
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 B
non-tribal by invoking the doctrine of adverse possession over the
immovable property belonging to a tribal, is prohibited by law and
cannot be countenanced by the court.”
The law laid down in Amarendra Pratap Singh24 was followed
by this Court in Lincai Gamango and Others vs. Dayanidhi Jena C
and Others28.
18. Some of the other cases, where the legislative intent of
prohibiting transfer was taken note of and suitably extended, are as under:-
A) While dealing with the question whether prohibition against
transfer in Section 42(b) of the Rajasthan Tenancy Act, 1955 would get D
attracted as against a juristic person such as a limited company, this
Court in State of Rajasthan and Others vs. Aanjaney Organic Herbal
Private Limited29 held:-
“7. Heard the learned counsel on either side. The Act is a beneficial
legislation which takes special care to protect the interest of the E
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 F
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,
G
gift or bequest by a khatedar tenant of his interest in the whole or
part of his holding shall be void, if—
(a) * * *
28
(2004) 7 SCC 437
29
(2012) 10 SCC 283 H
974 SUPREME COURT REPORTS [2020] 5 S.C.R.
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;”
………
B 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
C 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
Caste/Scheduled Tribe and then sell it to a non-Scheduled Caste
D 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
E by a member of Scheduled Caste to a juristic person, which does
not have a caste, is not hit by Section 42 of the Act, is untenable
and gives a wrong interpretation to the abovementioned provision.”
B) Similarly, in Rajasthan Housing Board vs. New Pink City
Nirman Sahkari Samiti Limited and Another30, the effect of said
F 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
G 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.
H
30 (2015) 7 SCC 601
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 975
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
The person who enters into an agreement to purchase the same, A
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
B
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, cannot be
enforced. Any other interpretation would be defeasive of the very
intent and protection carved out under Section 42 as per the C
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) D
& 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 E
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 F
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 G
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
31 AIR 2011 Gujarat 55 H
976 SUPREME COURT REPORTS [2020] 5 S.C.R.
A or non-tribals notwithstanding anything contained in Section 73
except without previous sanction of the Collector as evident from
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
B 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.
C (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
D 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,
E 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
F 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
G 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
H a document in contravention of any law. The answer is always in
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 977
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
negative. If law do not permit and there is a prohibition to do A
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
B
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 C
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
D
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 E
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 F
that in Mahadeo8 is to construe the prohibition against transfer appearing
in various statutes in keeping with the legislative intent. As laid down in
Amarendra Pratap Singh24, where the object of the legislation is to
prevent a mischief and to confer protection on the weaker sections of
the society, the court would not hesitate in placing an extended meaning,
even a stretched one, on the word, if in doing so the statute would succeed G
in 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
H
978 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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,
C 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
D in sub-sections (1A) and (1B) of Section 32. The benefit of
statutory purchase is also made available to tenants in areas within
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
E 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 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
G
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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 979
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
Collector under Section 32P either suo motu, or on an application, A
can pass appropriate directions in terms of Section 32P(2). In
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
B
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. C
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.
D
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, mortgage, E
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 F
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 G
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 H
980 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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.
O) If the landlord intends to sell any land, he must apply to the
B 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
C 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
D 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.
E
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 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
F in clear terms that “assignment of any interest” in the land by a tenant
shall not be valid. The decision of this Court in Bhavarlal16 has stood
the test of time which clearly states that a tenancy governed by a statute
which prohibits assignment, cannot be willed away to a total stranger.
The expression “assignment” in Sections 14 and 27, if understood in
G light of the decision of this Court in Bhavarlal16 which has consistently
been followed, must include testamentary disposition.
One thought may be expressed here though that by itself may not
be determinative and that is, the meaning ascribed to the expression
“assignment” in Section 43 cannot in any way be different. There is
nothing in the provisions of the Act to suggest that the expression
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 981
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
“assignment” must carry a different meaning in Sections 14 and 27 on A
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 B
cultivating tenant, if his holding is otherwise not beyond the ceiling limit,
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 C
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 D
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 E
livelihood succour for social justice and base for dignity of person”, in
Samatha vs. State of A.P. and Others32 where this Court, inter alia,
dealt with the provisions of the Andhra Pradesh Scheduled Areas Land
Transfer Regulations, 1989 including the prohibition against transfer.
“9. Agriculture is the main part of the economy and source of F
livelihood to the rural Indians and a source and succour for social
status and a base for dignity of person. Land is a tangible product
and sustaining asset to the agriculturists. In Waman Rao v. Union
of India33 a Constitution Bench had observed that India being a
predominantly agricultural society, there is a “strong linkage G
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
32
(1997) 8 SCC 191
33
(1981) 2 SCC 362 : (1981) 2 SCR 1 H
982 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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
C 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
D 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
E obliges that he must take prior sanction from the Collector. While granting
such 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
F 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
G 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
H which does not have the element of consideration is to be permitted, and
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 983
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
if it is assumed that Sections 43 and 63 of the Act do not get attracted, A
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 absentee landlordism and to protect the cultivating
tenants, and to establish direct relationship between the cultivator and
B
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 C
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
D
render the natural heirs of the tenant without any support or sustenance,
but may also have serious impact on agricultural operations.
25. In the circumstances the view taken by the Division Bench of
the High Court in the present matter is absolutely correct and does not
call for any interference. The decision is completely consistent with the
law laid down by this Court in Sangappa4 and Jayamma5 and the other E
cases 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 F
emanating from the Central legislation namely Indian Succession Act,
1925 must be held to be void. Though, no such contention was raised
before the High Court, nor is it reflected in the pleadings, we proceed to
consider the said submission.
27. In Lingappa20, the challenge was also raised on the ground G
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
H
984 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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
C between members of Scheduled 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
D 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
E 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
F 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
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 985
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
a tribal and a non-tribal that it is an unequal bargain. As regards A
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
B
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 C
for the legal consequences that must ensue upon restoration of
such possession like repayment of the consideration that passed
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
D
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, E
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 F
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 G
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
H
986 SUPREME COURT REPORTS [2020] 5 S.C.R.
A legislative competence of the State Legislature being relatable to
Entry 18 in List II of the Seventh Schedule.”
28. The principles on the point were summed up by this Court in
Welfare Association, A.R.P., Maharashtra and Another vs. Ranjit P.
Gohil and Others34 as under:-
B “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
C 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
D 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
E operative.
26. In Charanjit Lal Chowdhury v. Union of India35 the
Constitution Bench held that the presumption is always in favour
of the constitutionality of an enactment, and the burden is upon
him who attacks it to show that there has been a clear transgression
F 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
G 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
34
(2003) 9 SCC 358
H 35
AIR 1951 SC 41 : 1950 SCR 869
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 987
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
purposely used general and comprehensive words having a wide A
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
B
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 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 C
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 D
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 E
nature and character and the pith and substance of the legislation
are to be focused at. It is a fundamental principle of constitutional
law that everything necessary to the exercise of a power is included
in the grant of the power (see the Constitution Bench decision in
Chaturbhai M. Patel v. Union of India36). F
37
30. In Diamond Sugar Mills Ltd. v. State of U.P 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 G
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
36
AIR 1960 SC 424 : (1960) 2 SCR 362
37
AIR 1961 SC 652 : (1961) 3 SCR 242 H
988 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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 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
C 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
D 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
E Constitution has the greatest claim to live. The claim ought not to
be throttled. The directive principles of State policy can serve as
a potent and useful guide for resolving the doubts and upholding
the constitutional validity of any legislation, if doubted.
32. In United Provinces v. Atiqa Begum39 Their Lordships
F 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
G and the purport of the act, both as disclosed by its language, and
(ii) the effect which it would have in its actual operation.
… … …
38
(1990) 1 SCC 109
39
H AIR 1941 FC 16 : 1940 FCR 110
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 989
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
34. The Constitution Bench decision of this Court in Indu A
Bhushan Bose v. Rama Sundari Debi40 needs a special mention.
A rent control legislation enacted by the State Legislature was
sought to be extended to the cantonment area. The High Court
held that the same was not permissible inasmuch as so far as the
cantonment area is concerned, legislation touching regulation of
B
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 Constitution Bench
held that the entry has to be liberally and widely interpreted.
Regulation of houses in private occupation would fall within the C
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,
D
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 E
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
F
in Entry 18 of List II, and that power was circumscribed by the
exclusive power of Parliament to legislate on the same subject
under Entry 3 of List I.
35. Before the Constitution Bench in Indu Bhushan Bose40
the English decisions in Prout v. Hunter41, Property Holding
Co. Ltd. v. Clark42 and Curl v. Angelo43 were cited with approval. G
In Prout v. Hunter41 the Rent Restrictions Act was held to have
40
(1969) 2 SCC 289 : (1970) 1 SCR 443
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) H
990 SUPREME COURT REPORTS [2020] 5 S.C.R.
A been passed by Parliament with the two fold object: (i) of preventing
the rent from being raised above the pre-war standard, and (ii) of
preventing tenants from being turned out of their houses even if
the term for which they had originally taken them had expired. In
Property Holding Co. Ltd. v. Clark42 the objects of policy
underlying rent restriction legislations were stated to be: (i) to
B
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
C attendance, and (c) the provisions about transfers of burdens and
liabilities from the landlord to the tenant 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
D
upon the house. In Curl v. Angelo43 Lord Greene, M.R., dealing
with the Rent Restrictions Act, held that the overriding purpose
and intention of such Acts are to protect the person residing in a
dwelling house from being turned out of his home. In the opinion
of the Constitution Bench these cases are a pointer to the principle
E 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.
… … …
F 37. There is yet another angle of looking at the issue. In
Lingappa Pochanna Appelwar v. State of Maharashtra20 the
provisions of the Maharashtra Restoration of Lands to Scheduled
Tribes Act, 1975 came up for consideration which Act related to
transfers and alienation of agricultural lands by members of
G 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
H
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 991
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
with it not only a power to make a law placing restrictions on A
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)
B
“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 C
sphere of law-making connotes, inter alia, the removal of
economic inequalities and rectifying 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 D
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 E
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 F
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 G
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
44 AIR 1967 SC 1373 : (1967) 3 SCR 65 H
992 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B
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 being beyond the legislative competence of the State Legislature.
C While upholding the validity, this Court re-stated the principles in State
of Maharashtra vs. Bharat Shanti Lal Shah and Others45 as under:-
“37. It is a well-established rule of interpretation that the entries
in the List being fields of legislation must receive liberal
construction inspired by a broad and generous spirit and not in a
D narrow pedantic sense. Each general word should extend to all
ancillary and subsidiary matters which can fairly and reasonably
be comprehended within it.
38. In Navinchandra Mafatlal v. CIT46 this Court observed as
under: (AIR p. 61, para 6)
E
“6. … As pointed out by Gwyer, C.J. in United Provinces v.
Atiqa Begum39, FCR at p. 134 none of the items in the Lists is
to be read in a narrow or restricted sense and that each general
word should be held to extend to all ancillary or subsidiary
matters which can fairly and reasonably be said to be
F 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
G 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
45
(2008) 13 SCC 5
46
H AIR 1955 SC 58
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 993
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
upon the words so that the same may have effect in their widest A
amplitude.”
39. Similar were the observations of a five-Judge Bench of this
Court in Godfrey Phillips India Ltd. v. State of U.P47, which
are as follows: (SCC p. 541, paras 49-50)
“49. … Where there is the possibility of legislative overlap, B
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 C
general word should be held to extend to ancillary or subsidiary
matters which can fairly and reasonably be said to be
comprehended in it (United Provinces v. Atiqa Begum39,
Western India Theatres Ltd. v. Cantonment Board48, SCR
at p. 69 and Elel Hotels & Investments Ltd. v. Union of D
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 E
Legislature. In Burrakur Coal Co. Ltd. v. Union of India50 this
Court held the same in the following manner: (AIR p. 963, para
25)
“25. … Where the validity of a law made by a competent
legislature is challenged in a court of law that court is bound to F
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.”
G
41. In CST v. Radhakrishan51 this Court while dealing with the
question of constitutional validity of a statute held that the
47
(2005) 2 SCC 515
48
AIR 1959 SC 582 : 1959 Supp (2) SCR 63
49
(1989) 3 SCC 698
50
AIR 1961 SC 954 : (1962) 1 SCR 44 H
51
(1979) 2 SCC 249 : 1979 SCC (Tax) 108
994 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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 consideration matters of common knowledge, reports,
Preamble, history of the times, object of the legislation and all
B
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
C 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
D 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
E of United Yarn case52): (Bihar Distillery Ltd53, SCC p. 466,
para 17)
“17. … The approach of the court, while examining the
challenge to the constitutionality of an enactment, is to start
with the presumption of constitutionality. The court should try
F 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
G 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
52
(2007) 6 SCC 236
53
H (1997) 2 SCC 453
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 995
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
must be plainly and clearly established before an enactment is A
declared as void. The same approach holds good while
ascertaining the intent and purpose of an 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
B
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 C
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 D
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 E
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 F
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.
G
44. A five-Judge Bench of this Court in A.S. Krishna v. State of
Madras54 held as under: (AIR p. 301, para 8)
54 AIR 1957 SC 297 : 1957 SCR 399 H
996 SUPREME COURT REPORTS [2020] 5 S.C.R.
A “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 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
B
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
C 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
D
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
E 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
F
competence. But where that is not the position, then the fact
of encroachment does not affect the vires of the law even as
regards the area of encroachment.”
45. Again a five-Judge Bench of this Court while discussing the
said doctrine in Kartar Singh v. State of Punjab55 observed as
G under: (SCC p. 630, para 60)
“60. This doctrine of ‘pith and substance’ is applied when the
legislative competence of a legislature with regard to a
H 55 (1994) 3 SCC 569 : 1994 SCC (Cri) 899
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 997
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
particular enactment is challenged with reference to the entries A
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
B
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 C
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 D
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 Others56, E
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: -
F
“183. We have already discussed in great detail that the State
Act being a code in itself can take within its ambit provisions of
the Central Act related to acquisition, while excluding the provisions
which offend and frustrate the object of the State Act. It will not
be necessary to create, or read into the legislations, an imaginary
conflict or repugnancy between the two legislations, particularly, G
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
56 (2011) 3 SCC 1
H
998 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 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
B 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
C 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
D 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
E 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.
F 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.
G 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
H thereof, including lapsing of acquisition proceedings, cannot be
VINODCHANDRA SAKARLAL KAPADIA v. STATE OF 999
GUJARAT AND ORS. [UDAY UMESH LALIT, J.]
read into the State Act. It is for the reason that neither have they A
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
B
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 C
eloquently co-exist 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.” D
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 E
ensure direct relationship of a tiller with the land. The provisions, though
lay down a norm which may not be fully consistent with the principles of
Indian Succession Act, are principally designed to attain and sub-serve
the purpose of protecting the holdings in the hands of disadvantaged
categories. The prohibition against transfers of holding without the
previous sanction of the concerned authorities, is to be seen in that light F
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 G
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. H
1000 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 33. In the premises, we accept the construction put by the Division
Bench on the provisions that fell for consideration. The challenge to the
view taken by the Division Bench must therefore be rejected. We must
also observe that the decision of this Court in Mahadeo8 which had
failed to notice the earlier decisions in Sangappa4 and Jayamma5 and
which is inconsistent with the decisions referred to hereinabove and
B
what we have concluded, must be held to be incorrectly decided.
34. Accordingly, all these appeals are dismissed without any order
as to costs.
C Divya Pandey Appeals dismissed.
D
E
F
G
H
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