Bhaurao Khanderao Patil vs State of Maharashtra and others

D.B. Deshpande, J.—Petitioner filed his return u/s 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (hereinafter it is referred to as "the Ceiling Act"). In his return he showed 57 Acres and 27 Gunthas as his total holding after excluding the Pot Kharab land. The Surplus Land Determination Tribunal (hereinafter it is referred to as "S. L. D. T.") declared that the petitioner was a surplus-holder to the extent of 3 Acres and 27 Gunthas. The petitioner was asked to make a choice in respect of the delimitation of the land and he delimited that land from Survey No. 109. Tire land was allotted to a person known as "Sampat Kishan" and after obtaining the possession of the delimited land the possession of the said land was given to the said allottee Sampat Kishan on 30th May, 1976.

On 1-6-1976, the Additional Commissioner, Aurangabad, called for the record and proceedings and he held an enquiry and ultimately, on 13-12-1977 he set aside the order of the S. L. D. T. and remanded the matter to the S. L. D. T. This order is being challenged on behalf of the petitioner in this petition under Article 227 of the Constitution of India.

It is an admitted fact that the possession of the delimited land was obtained by the State and was delivered to the allottee and hence, in this context Mr. U. B. Binwade, for the petitioner, relied upon an unreported decision of this Court in Bhagwandas Fattechand Lodha v. State of Maharashtra and two others Special Civil Application No. 440 of 1978 decided on 24-2-1982. A similar question arose for decision in that case and Kanade, J., observed as follows:

If there is a bar of exercise of jurisdiction by the Commissioner u/s 45 (2), in cases where the possession of such lands has been taken over under sub-section (4) of section 21, the impugned order passed by the Commissioner would be without jurisdiction and the same cannot be sustained.

Relying upon this decision, Mr. Binwade urged that the State having taken possession of the delimited land from the petitioner and having allotted the land the exercise of revisional jurisdiction by the Commissioner is barred.

It will be seen that section 45 (2) of the Ceiling Act is amended and the amended section came into force on 17th April, 1977. By virtue of this amendment the words "the possession of such land has not been taken under Sub-section (4) of section 21 have been deleted by this Amending Act. It is apparent that Kanade, J., has also referred to the fact that the amendment was effected from 17th April, 1977 and in spite of this fact it was held by Kanade, J., that the Commissioner has no jurisdiction. It was urged by Mr. B. B. Jadhav, appearing on behalf of the State, that the learned Judge who decided the earlier case has decided it without referring to the details of the amending provision and, therefore, according to him, this decision is per incuriam and, therefore, it should not be followed by this Court. For this purpose Mr. Jadhav referred me to the original section 45 (2) of the Ceiling Act at the time when the Act was enacted. For the first time sub-section (2) of section 45 was amended in the year 1965 and this was introduced by section 4 of the Amending Act No. 32/1965 and the proviso was added to the sub-section (2) of section 45 for the first time in 1965. The proviso, as it was added by section 4 of the Amending Act, runs as follows:

"(2) The State Government may, suo motu or on an application made to it by the aggrieved person, at any time, call for the record of any inquiry or proceedings under sections 17 to 21 (both inclusive) for the purpose of satisfying itself as to the legality or propriety of any inquiry or proceedings for any part thereof under those sections and may pass such order thereon as it deems fit, after giving the party a reasonable opportunity of being heard:

Provided that, nothing in this sub-section shall entitle the State Government to call for the record of any inquiry or proceedings of a declaration or part thereof u/s 21 in relation to any land, unless an appeal against any such declaration'' or part thereof has not been filed within the period provided for it the possession of such land has not been taken under sub-section (4) of section 21 and a period of three years from the date of such declaration or part thereof has not elapsed.

Mr. Jadhav further invited my attention to section 5 of the Amending Act No. 32/65 and it runs as follows:

The amendments made to the Principal Act by sections 2, 3 and 4 of this Act, shall be deemed to have been made and to have come into force on the date on which the Principal Act came into force.

Mr. Jadhav, therefore, invited my attention to the fact that by deeming provision this Amendment was given retrospective effect. In this background, Mr. Jadhav invited my attention to the further amendment in the proviso to sub-section (2) of section 45 of the Ceiling Act. Now, the words "the possession of such land has not been taken under sub-section (4) of section 21" have been deleted and these are deleted by the Amending Act No. 26/1976. The Amendment is carried out by virtue of section 2 of the Amending Act No. 26/76 and it is clearly mentioned in this section 2 of the Amending Act No. 26/76 as follows:

Shall be deemed always to have been deleted.

These words are very important and they have a considerable effect on the situation. Unfortunately, the attention of Kanade J., was not invited to these words in the Amending section of Amending Act No. 26/76 and that is why Kanade J., has probably given the aforesaid decision.

Now, it is clear from these words "shall be deemed always to have been deleted" that the Legislature has made a deeming provision. In this respect, Mr. Binwade invited my attention to the Statement of Objects and Reasons of the Amending Act No. 26/1976. There is nothing in this Statement of Objects and Reasons which goes to show that the repealing of these lines is not given any retrospective effect. Now, the question before me is whether the repealing of these lines from the proviso has a retrospective effect or not. Mr. Binwade relied upon three rulings in this respect. One is in The Colonial Sugar Refining Company, Limited and Irving 1905 A C 369 of the Privy Council. In that ruling it was held by the Privy Council that in spite of the amendment made by the Australian Commonwealth Judiciary Act, 1903, the Act is not retrospective and a right of appeal to the King in Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away. This has no application to the facts of the instant case. Then he relied upon a decision of the Privy Council in AIR 1927 242 (Privy Council) . Mr. Binwade placed strong reliance on the following lines from Head Note (b):

Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights.

The aforesaid earlier decision of the Privy Council is relied upon in this ruling by the Privy Council. Mr. Binwade''s argument will hold good if the Commissioner had taken earlier cognizance by way of suo motu revision and had decided the matter, before coming into force of the Amending Act, holding that he has no jurisdiction to revise by virtue of the fact that the possession was taken prior to the invoking of jurisdiction by way of revision. Only in such a case it could be said that the matter was finally decided. Now, apparently in this case the revision was pending when the Amending Act came into force on 17th April, 1977. Mr. Binwade further relied upon a decision of the Supreme Court in Keshavlal Jethalal Shah Vs. Mohanlal Bhagwandas and Another, , it appears that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as applicable to the State of Gujarat, was amended by the Gujarat Act No. 18/1965. A revision u/s 115 of the CPC was pending before the Gujarat High Court on the date on which this amending Act came into force. The Supreme Court held that the revision has to be decided in accordance with the limitations prescribed by section 115 of the Civil Procedure Code. If the aforesaid lines "shall be deemed always to have been deleted" were not inserted in the repealing section all these cases would have been good and would have supported the submission made by Mr. Binwade. This makes a lot of difference in the situation.

As against this, Mr. B. B. Jadhav, appearing for the State, placed reliance upon some rulings. First is The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, Head Note (b), Head Note (b) runs as follows :

When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.

Then the next is East End Dwellings Co. Ltd. and Finsbury Borough Council 1952 A C 109, of the house of Lords and he placed particular reliance upon the observations of Lord Asquith on page 132 and these lines are as follows :

If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.

Then he placed reliance upon T.S. Baliah Vs. T.S. Rengachari, Head Note (c). It appears that the proceedings under the income tax, Act, 1922, were pending at the commencement of the income tax Act, 1961. It was held that the right to prosecute in respect of such proceedings was not taken away by the new Act of 1961. Mr. Jadhav placed particular reliance upon the following observations in Head Note (C):

Whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act, (which is equivalent to Section 7 of the Bombay General Clauses Act), will follow unless, as the section itself says, a different intention appears in the repealing statute. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion.

He then placed reliance upon Dharangaon Municipality v. Chintaman Madhavsa Khatri I L R (1959) Bom. 735, and he placed strong reliance upon the following observations on page 739:

In this connection, the important words in the sub-section are: "Shall be deemed to have been sufficiently given or served." These words would clearly show that the Legislature did not intend to lay down that the framing of a by-law and compliance with the provisions of the said by-law were the only way in which sufficient publication could be given to the notice and the rules. It is clear that the Legislature intended that even if no by-law was framed by the Municipality, it was still open to the Municipality to prove sufficient publication in other ways. When something is deemed to have been done, it means that in fact it may not have been done or is not done. (emphasis supplied).

and lastly, he placed reliance upon a decision of this Court in Anandrao Dinkarrao Shinde and Another Vs. P.G. Patil and Others, . The question before the Division Bench of this Court was whether the prohibition against holding of the office of Dean for two consecutive terms applied to the Deans elected under the repealed Act and whether holding of such offices at the commencement of new Act prohibits the holding of such offices of Deans for two consecutive terms. It was held by the Division Bench that it applied to those Deans elected earlier for holding the offices on the date of the Amendment.

Thus, considering all this, in my opinion, the line "shall be deemed always to have been deleted" makes a lot of difference and it makes the provision retrospective. Hence, the earlier decision with respects, will not be a correct decision on this point. The relevant deeming provision has not been brought to the notice of the learned Judge who decided the earlier case. This line clearly gives the retrospective effect and Courts are bound to interpret this line holding that the repealed portion shall always be deemed to have been repealed from the statute. In such a case it will be deemed that right from the Amendment made in 1965 this line will have to be deemed as deleted and, therefore, the Commissioner will have the jurisdiction to decide the revision before him.

I, therefore, do not find any force in this Special Civil Application and it deserves to be dismissed. Accordingly, it is dismissed. Rule discharged but with no order as to costs.