LAXMANRAO MADHAVRAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This case, referred to the Division Bench, raises an important question as to the interpretation of Section 6 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as amended up to date, hereinafter referred to as 'the Act'. The family unit of which the petitioner is a member, is declared to be a surplus holder to the extent of 11 acres 3 gun-thas. It consisted of five members including the petitioner on the appointed date, i.e., 2nd October, 1975. Twin daughters were born to him thereafter on 20th June 1976, The daughters can be said to have been conceived in the womb, on the appointed day, in view of their birth within nine months therefrom. The unit is so declared surplus holder without counting the daughters, as its members in which case, the unit is entitled to retain an enlarged ceiling area under Sec. 6 of the Act.

(2.) Mr. A.V. Savant, the learned Advocate for the petitioner, submits that, enlarging of ceiling area, under Section 6 of the Act is aimed at, providing means of sustenance for larger families of more than five. A child in the womb, so pregnant on the appointed day with veritable possibility of an addition to the strength of dependants, so contends Mr. Savant, cannot be excluded from the membership of the unit contemplated under this section. With the inclusion of daughters, the family unit would become seven member strong and would not be liable to be declared as surplus. It would be entitled to a larger ceiling area of 18 acres more. Mr. C.J. Sawant, the learned Additional Government Pleader for the State, on the other hand, contends that only living and existing persons on the appointed day can be said to be members of the unit under this provision, and not the conceived unborn children. The family unit of the petitioner, says Mr. C.J. Sawant, cannot claim larger ceiling area. The question is: Can the unborn but conceived child still in the womb, be considered to be member of the unit under Section 6 of the Act? Section 6 reads as follows:--

(3.) Now, family can ordinarily be said to consist of members who are physically in existence. The same is true of the family unit which is just a scion of the family under the scheme of the Act. It cannot be said to consist of any one not in existence. A child in the womb can never be considered to be in existence. It is impossible to think of the actual physical existence of any unborn child even if conceived in the womb. The legislature does at time create legal fictions as to existence of things or facts which do not physically and actually exist. Every one including the Court then has to take notice of it and recognise it for all practical purposes. The language of Section 6 does not admit of any such legal fiction. But, contends Mr. Sawant, such legislative intent is implicit in the object with which enlargement of the ceiling area is conceived thereunder.