STATE OF MAHARASHTRA Vs. VITHALRAO GANPATRAO WARHADE

JUDGEMENT

(1.) The State of Maharashtra has filed this appeal against the judgment of the High Court of Bombay dated 12-1-1982 in Special Civil Application No. 4026 of 1976. By that judgement, the learned single Judge allowed the respondent's application filed under Article 227 of the Constitution of India and set aside the order of the Maharashtra Revenue Tribunal, Nagpur dated 15-7-1976 and the earlier order of the Surplus Land Determination Tribunal dated 27-5-1976 and held that land covered by several alienations made by the declarant, Sri Vithalrao Ganpatrao Warhade during the period 26-9-1970 and 19-9-1975 was to be excluded from the holding of the declarant in view of the proviso to Section 4(1) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 as amended by Maharashtra Act, 1972 (Act XXI of 1975) and as amended by Maharashtra Act, 1975, (Maharashtra Act XLVII of 1975). We shall be referring to the amending Act, 1972 (Act XXI of 1975) as the Amending Act, 1972 and the amending Act XLVII of 1975 as the Amending Act, 1975.

(2.) We shall now refer to a few facts. Upon public notice being given on 12-3-1976, the landholder gave a list of various lands owned by his 'family unit'. The primary Tribunal in its order dated 27-5-76 came to the conclusion that the landlord owned Ac. 90.38 and was entitled to retain Ac. 54.00 plus Ac. 5.38 potkharab and Ac. 2.26 of non-agricultural land and that Ac. 3.80 sold for compelling necessity was not liable to be included in his holding. Other sales were not liable to be excluded. The balance of Ac. 29.94 were held surplus and were to be surrendered. The appellate Tribunal, in its order dated 15-7-76 held that the plea regarding a partition dated 15-1-1970 between the declarant, his wife and son was not seriously contended but in any event, the land held by the wife had to be clubbed with that held by the husband in view of Section 4 of the Principal Act of 1961, as amended. Further, the partition was unregistered and the declarants's son was a minor at that time. The appellate Tribunal held that there was no case made out for excluding the land covered by other sales inasmuch as there was no proof that the sale of lands for Rs. 50,000/- was spent for purchasing better quality of land. Only Rs. 15,000/- was spent for purchasing other land and the bulk of the consideration was spent for construction of a house at Nagpur and that could not, according to the appellate Tribunal, be considered as a sufficient reason for claiming exclusion of the other lands also, - inasmuch as no compelling necessity was proved. The appeal was, therefore, dismissed.

(3.) In the High Court, the declarant claimed exclusion of lands sold by him and also lands sold by his wife between 26-9-70 and 19-9-75. He contended that the extent so sold was liable for exclusion under the proviso to Section 4(1) of the Act. The partition dated 15-1-1970 was also relied upon and it was also contended that the extent of land got by the declarant's wife from her parents before 26-9-70 was also liable to be excluded. It was contended for the declarant that the 'family unit' concept was brought into force initially w.e.f. 19-9-1975 when the ceiling area was also reduced by the Amending Act of 1972, but as on 19-9-1975 the proviso to Section 4 permitted exclusion of lands acquired before 26-9-70 by the members of the family unit - by testamentary disposition or devolution on death or by operation of law or by partition effected before 26-9-1970 and that, therefore, the extent of land transferred by the declarant and his wife out of such lands which fell within these categories, stood excluded as on 19-9-1975. When the lands so held stood altogether excluded from the holding as on 19-9-1975, then even if by the Amending Act of 1975 which came into force on 20-9-1975, the proviso to Section 4 permitting such exclusion was deleted, those lands do not get included in the holding again since the latter Amending Act of 1975 (Act XLVII/75) was effective from 20-9-1975 only and not from 19-9-1975. Hence, there was no question of testing the validity of those transfers of excluded land, on the anvil of Section 10(1), i.e. whether they were intended to defeat the provisions of the "Amending Act of 1972". Further the words in Section 10(1) "in order to avoid or defeat the object of the Amending Act, 1972 - would mean the object of the 1961 Act as amended by the 1972 Amendment (w.e.f. 19-9-1975) when the proviso to Section 4(1) was intact. Those words could not be taken as referable to the Act of 1961 as further amended by the 1975 Act (w.e.f. 20-9-1975) which deleted the proviso to Section 4(1). In other words, if the lands were acquired in the manner stated in the proviso to Section 4(1) and then stood excluded as on 19-9-1975, the bona fides of the transfers of those lands could not be considered in the context of Section 10 any longer, merely because the proviso to Section 4(1) was dropped by Amending Act (XLVII of 1975), w.e.f. 20-9-1975.