STATE OF GUJARAT & ANOTHER v. MANOHARSINHJI PRADYUMANSINHJI JADEJA

JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

51Copy pinpoint51. It is true that though under the Saurashtra Act XXV of A 1951, Saurashtra Act XXVI of 1951 and Saurashtra Act Ill of 1952, the purport of the enactments were to extinguish all rights held by Girasdars and Barkhalidars as well as the Rulers of the State in the State of Gujarat in respect of their estates which among other kinds of lands included 'Bid Land' also. B

52Copy pinpoint52. Here again, it will have to be stated that this Act was also enacted to provide certain measures for the abolition of the Barkhalidars tenure in Saurashtra. Therefore, while the submissions of the learned senior counsel for the respondent that the above enactm~nts were brought into effect with particular reference to the holding of certain estates by Girasdars and Barkhalidars as well as erstwhile Rulers of State, such restricted application of the Act cannot be held to mean that the definition of 'Bid land' should also be read out in a restricted fashion. As stated by us earlier, the operation of extinguishment of the rights of such specific persons viz .. Girasdars and Barkhalidars as well as the Rulers does not mean that the definition assigned to 'Bid land' should be restricted in respect of those specific persons alone and cannot be applied in general for any other purpose. After all, the attempt of the appellants in relying upon the definition of 'Bid land' in those enactments was to understand the nature and use for which the 'Bid land' is put to. It cannot be said that merely because those enactments were brought out for the purpose of extinguishment of the rights of certain class of persons viz. F Girasdars and Barkhalidars, the definition of 'Bid land' contained in those Legislations should under no circumstances be considered by any other authority functioning under other enactments. We are convinced that though Saurashtra Act Nos.Ill of 1952, XXV of 1951 and XXVI of 1951 pertain to the G estates held by Girasdars and Barkhalidars as well as the Rulers of the erstwhile Saurashtra State, the definition of 'Bid land' contained in those legislations could however be taken into account for the purpose of understanding the meaning of 'Bid land'. Therefore, the arguments of the learned senior H

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A counsel for the respondent in seeking to restrict the meaning of 'Bid land' in the Saurashtra Act Nos.XXV of 1951, Act XXVI of 1951 and Act Ill of 1952 exclusively to those specified persons viz., Girasdars, Barkhalidars and the Rulers cannot be accepted. In other words once the 'Bid land' can be defined to mean such land used for grazing of cattle or for cutting grass for the use of cattle irrespective of the nature of possession of such lands with whomsoever it may be, a 'Bid land' would be a 'Bid land' for all practical purposes. It is also to be noted that nothing was brought to our notice that a 'Bid land' is capable of being defined differently or that it was being used for different purpose by different persons.

53Copy pinpoint53. We shall deal with the object of the Amendment Act 1974, namely, for removal of doubts a little later. For the present, inasmuch as, we have to a very large extent accepted the submission of learned counsel for the respondent that the invocation of the Amendment Act of 1974 cannot be made having regard to its subsequent emergence, namely, 01.04.1976 i.e. after the coming into force of Act, 1976 as from 17 .02.1976, we confine our consideration to the position that prevailed under the unamended Act of 1960. After all our endeavour is only to find out whether the 1960 Act is applicable in respect of the lands held by the respondent for the purpose of its enforcement or otherwise against the respondent.

54Copy pinpoint54. One other submission of the learned senior counsel for the respondent was that the respondent was once a Ruler cannot be held to be an 'agriculturalist', inasmuch as, the definition of 'agriculturist' under Section 2(3) means a person who cultivate the land personally. We were not impressed by the said submission, inasmuch as, the definition of an G 'agriculturist' is not merely confined to Section 2(3) alone. The said definition has to be necessarily considered along with the definition "to cultivate" as defined under Section 2(11 ), as well as, the expression "to cultivate personally" as defined under Section 2(12) of the Act. Those expressions considered H

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFUUA, J.]

together make the position clear that even a person cultivating the lands by ones own labour or by any other member of one's family or under the personal supervision of oneself or any member of ones' family by hired labour or by servants on wages payable in cash or kind would nonetheless fall within the four corners of the expression "agriculturist". Therefore, the expression "agriculturist" used in the definition Clause 2(3) or "agriculture" under Section 2(1) is wide enough to include the respondent who though was once a 'Ruler' and was not tilling the land by himself would still fall within the definition of 'agriculturisf when such agricultural operation namely cultivation c of land is carried out with the support of any one of his family members by supervising such operation or by engaging any labour to carry out such cultivation. We are therefore of the firm view that the 'Bid land', the nomenclature of which was categorically admitted by the respondent and having regard to 0 its nature and purpose for which it was put to use would squarely fall within the definition of 'agriculture' as defined under Section 2(1) of the Act of 1960 as it originally stood unaffected by the coming into force of the Act, 1976 as well as the Amendment of 1974. In the result, its application to those 'Bid E lands' held by the respondent cannot be thwarted.

55Copy pinpoint55. We shall now deal with the question whether the amendment Act of 1974 which was notified as from 01.04.1976 does in any way affect the application of 1960 Act as it originally stood having regard to the enforcement of the Amendment Act F by drawing a clear distinction as betWeen the position which was existing prior to the specified date namely 01.04.1976 and after the said date.

56Copy pinpoint56. According to learned senior counsel for the respondent G the definition of 'land' under Section 2(17) after the amendment, namely, after 01.04.1976 seeks to differentiate between the nature of land which would be governed by the provisions of the 1960 Act i.e. one prior to the specified date and thereafter. Under sub-clause (i) of Section 2(17) of the 1960 Act while H

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A defining the 'land' it is specifically mentioned that the same would mean "in relation to any period prior to the specified date, 'land' which is used or capable of being used for agricultural purpose and includes the sites of farm buildings appurtenant to such "land". For that purpose when we refer to the definition B of 'agriculture' under Section 2(1) of the Amended Act a wider definition was brought in by including in the said definition clauses (d) to (h) which, inter alia, covered the use of any land, whether or not an appanage to rice or paddy land for the purpose of rabmanure, dairy farming, poultry farming, breeding c of live-stock, and the cutting of wood which class of lands were specifically excluded from the definition of 'agriculture' prior to the amendment. The proviso to the said sub-clause (1) of Section 2 also specifies that such inclusion in the definition of 'agriculture' was not applicable in relation to any period prior 0 to the specified date, namely, 01.04.1976. That apart, under Section 2(17)(ii) in regard to the period subsequent to _the specified date, namely, 01.04.1976 the definition of'land' would include the lands on which grass grown on its own, the 'Bid land' held by Girasdars and Barkhalidars under the Saurashtra Act E Nos.XXV of 1951, XXVI of 1951 and Ill of 1952 as well as such 'Bid lands' which were held by a person who before the commencement of the Constitution was a 'Ruler' of an Indian State comprised in the Saurashtra area of the State of Gujarat. The contention, therefore, was that but for such inclusion of 'Bid lands' in the amended definition of Section 2(17)(ii) there was no scope to proceed against such 'Bid lands' held by Girasdars and Barkhalidars as well as the 'Rulers' of erstwhile State.

57Copy pinpoint57. In this context learned senior counsel for the respondent placed reliance upon the decision of this Court in State of Kamataka Vs. Union of India & another - (1978) 2 SCR 1 and contended that when the language is clear and unambiguous one need not have to delve into the Objects and Reasons in order to find out its implication. The said contention H

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

was by way of rebuttal to the submission of learned senior counsel for the appellants that the Objects and Reasons of the 1974 Act disclose that the same was brought into effect only with a view to remove certain doubts as regards 'Bid lands' and, therefore, the amendment was not contemplated to include 'Bid lands' for the first time in addition to the other type of lands described under the unamended Act of 1960.

58Copy pinpoint58. There can be no quarrel about the proposition of law as propounded by the l~arned senior counsel for the respondent and as has been stated by the Constitution Bench of this Court C in paragraphs 38 and 39 of Pathumma (supra). In paragraph 39 this Court did say:

"39 .....We are, however, unable to agree with this argument because in view of the clear and unambiguous provisions of the Act, it is not necessary for us to delve into the statement of objects and reasons of the Act. .... "

59Copy pinpoint59. We too are not inclined to go by the argument based on the objects and reasons in relation to a 'Bid land'. We have considered the definition of 'agriculture' under Section 2(1 ), the definition of 'agriculturist' under Section 2(3) along with the expressions 'a person who cultivates land personally' and the definition of 'land' under Section 2(17) of the unamended Act. Having examined the nature of description of those expressions contained therein, we are convinced that the legislature intended and did include 'lands' held by 'agriculturist' where grass is raised or used for grazing purposes as part of agricultural land which was in the possession of agriculturist. Such lands where grass is grown or used for grazing purpose are always known as 'Bid land'. Such 'Bid land' was ultimately brought within the definition of 'land' under Section 2(17) of the G Act of 1960. Therefore, even by keeping aside the implication of the wider definition which was introduced by the Amendment Act of 1974 in regard to 'Bid lands' and going by the definition of 'agriculture' and 'land' under Section 2(1) and 2(17) of the H

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A Act of 1960, we have no difficulty in taking a definite conclusion that such definition contained in the Act as it originally stood did include 'Bid lands' which lands were exclusively meant for cutting grass for cattle or used for grazing purposes. Therefore, there was no necessity for this Court to draw any further assistance either from the Objects and Reasons or from the provisions of the Amended Act of 1974 in order to hold that 'Bid lands' were part of agricultural land governed by the provisions of the Act of 1960.

60Copy pinpoint60. In that respect when reliance was placed upon the recent decision of this Court in Nagbhai Najbhai Khackar (supra) on behalf of the appellant, we find that the said decision fully support the stand of the appellant.. Of course, in the said decision the question posed for consideration was "whether Bid lands were required to be taken into consideration for the purpose of land ceiling under the 1960 Act as amended by the Act of 1974 which came into force on 01.04.1976". This Court while examining the said question posed for its consideration however dealt with a specific submission made on behalf of the appellant herein which has been set out in paragraph 11: E "11. It was further submitted that the lands in question are in fact "agricultural" lands. They survived acquisition under the earlier three Acts only because they were "bid lands" which by definition under those Acts were lands "being F used" by Girasdars/Barkhalidars for grazing cattle. That, under the Ceiling Act, Section 2(1) defines the use of land for the purposes of grazing cattle as agricultural purpose and thus, according to the learned counsel, by their very definition "bid lands" are capable of being used for agricultural purpose, namely, grazing cattle." G

61Copy pinpoint61. In paragraphs 20 and 21 it has been held as under: "20. There is one more reason for not accepting the argument of the appellants. The subject lands survived H acquisition under the 1952 Act only because they were "bid

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.) lands" which by definition under those Acts were treated A as lands being used by the girasdars for grazing cattle (see Section 2(a) of the 1952 Act). Now, under the present Ceiling Act, Section 2(1) defines the use of land for the purpose of grazing cattle as an agricultural purpose. Thus, "bid lands" fall under Section 2(1) of the Ceiling Act. This B is one more reason for coming to the conclusion that the Ceiling Act as amended applies to "bid lands". (underline ours)

21. It is also important to note that under Section 5(1) of the 1952 Act all lands saved from acquisition had to be "bid lands" which by definition under Section 2(a) of the 1952 Act were the lands being used by a Girasdar or a Barkhalidar for grazing cattle or for cutting grass. If the lands in question were put to any other use, they were liable to acquisition under Section 5(2). Because the subject lands were used for grazing cattle, they got saved under the 1952 Act and, therefore, it is now not open to the appellants to contend that the subject lands are not capable of being used for agricultural purpose." E

62Copy pinpoint62. In fact our conclusion on this aspect in the earlier part of our judgment is in tune with what has been propounded by this Court in the said paragraph. The learned senior counsel for the respondent contended that the said decision cannot be applied to the facts of this case. The submission of the learned counsel was twofold. According to him, the said decision came to be rendered in the light of the definition of 'Bid land' which came to be introduced for the first time after the coming into force of the Amendment Act of 1974 and, therefore, whatever decided in the said decision was exclusively in the context of the Amendment Act of 1974 which cannot be applied to the case on hand. The second submission of the learned senior counsel was that in the said decision the implication of the Act, 1976 was not considered and, therefore, whatever said in the said decision was applicable only to the facts involved in that H

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A case and can have no universal application. To buttress the former argument, Mr. Soli J. Sorabjee, the learned counsel for the appellants contended that though the question posted for consideration in the said decision was in the context of the definition of 'Bid land' as described in the Amendment Act B 1974, this Court while holding that 'Bid land' would fall within the definition of 'agricultural land' under the Act of 1960 also examined the issue as to what is a 'Bid land' under the 1952 Act independent of the definition of 'Bid land' introduced in the Amendment Act 1974. The learned senior counsel by drawing c our attention to paragraph 20 of the said decision contended that the said independent consideration of what is a 'Bid land' was an added reason to hold that the said kind ofland would also fall within the definition of 'agricultural land' as defined in Section 2( 1) of the Act of 1960.

63Copy pinpoint63. Having considered the respective submissions, we find force in the submission of the learned senior counsel for the appellants. A close reading of paragraph 20 is clear to the pointer that irrespective of the definition of 'Bid land' .under the Amendment Act 1974, having regard to the definition of 'Bid E land' under Act Ill of 1952, such land would fall within the definition of 'Agricultural Land' as defined in Section 2(1) of the Act of 1960. This Court in fact made it very clear in its perception while stating the said position by holding that it was an added reason for holding that the Land Ceiling Act, as amended, applied to 'Bid land'. One more reason which this Court mentioned was that the land in question survived acquisition under the 1952 Act only because they were 'Bid lands' which, by virtue of its character was being used by Girasdars for grazing by cattle and thereby stood excluded from acquisition. Therefore, when this Court examined the character of the 'Bid land' which was used for grazing purpose as one falling within the definition of 'agriculture land' even without the implication of the Amendment Act of 1974, the reliance placed upon the said decision merits acceptance. The said submission of the learned senior counsel for the appellants is supported

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

by the decisions in London Jewellers (supra), Jacobs (supra), A Behrens (supra) and Smt.Somawanti (supra). In the decision in London Jewellers (supra), it has been held as under:

"........ /cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift J. and which 8 commended itself to me in Folkes v. King, but that view is not open to us in view of the decision of the Coult of Appeal in Folkes v King. In that case two reasons were given by all the members of the Coult of Appeal for their decision and we are not entitled to pick out the first reason C as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first: we must take both as forming the ground of the ;udgment." D (Emphasis added)

64Copy pinpoint64. The ratio of the said decision was followed in Jacobs (supra). In ths decision in Behrens (supra), it has been held as under: E "........ This question depends, I think, on the language used by Cozens-Hardy, M.R. It is well established that. if a judge gives two reasons for his decision, both are binding. It is not permissible to pick out one as being supposedly the better reason and ignore the other one: nor does it matter for this pumose which comes first and which comes second. The practice of making judicial observations obiter is a/so well established. A judge may often give additional reasons for his decision without wishing to make them palt of the ratio decidendi; he may not be sufficiently convinced of their cogency as to want them to have the full authority of precedent, and yet may wish to state them so that those who later may have the duty of investigating the same point will stalt with some H

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A guidance. This is a matter which the judge himself is alone capable of deciding and any judge who comes after him must ascertain which course has been adopted from the language used and not by consulting his own preference." B {Emphasis added)

65Copy pinpoint65. The proposition of law has thus been so lucidly expressed in the above decisions, it will have to be held that the additional reasons adduced in our decision in Nagbhai C Najbhai Khackar (supra) directly covers the issue raised before us. One more reason, which weighed with this Court for holding that 'Bid land" falls within the definition of 'Agriculture Land' as defined under Section 2(1) of the Act of 1960 is binding and thus there is no scope to exclude the said decision from its D application. Therefore, we reiterate that merely because the question posed for consideration related to the character of 'Bid lands' after the 1974 amendment what has been held in paragraphs 20 and 21 mutantis mutandis is in tune with what has now been held by us based on the definition of 'agriculture' E as well as 'land' under Sections 2(1) and 2(17) of the un- amended Act of 1960 itself.

66Copy pinpoint66. As far as the next submission is concerned, the argument raised was that the said decision never dealt with the issue which has been presently raised in this appeal, namely, the implication of the Act, 1976 which came into force on 17.02.1976 while the Amendment Act of 1974 was brought into force subsequently i.e. on and after 01.04.1976 and, therefore, the said decision can have no application to the facts of this case. In so far as the said contention is concerned, the same is liable to be rejected inasmuch as the said decision is for the simple proposition as to how a land where grass is raised or used for grazing purposes is to be included under the definition of 'agriculture' and consequently within the definition of 'land' as provided under Sections 2(1) and 2(17) of the Act of 1960. H

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Therefore, non-consideration of the implication of Act, 1976 in A the said decision does not in any way deter us from relying upon the ratio laid down in the said decision to support our conclusion.

67Copy pinpoint67. The next submission of learned counsel for the 8 respondent related to the supervening effect of the Act, 1976 in the State of Gujarat on and after 17.02.1976 which according to learned senior counsel has made the Act of 1974 a 'still born child' and also the submission that after the coming into force of the Act, 1976 there was no authority in the respondent to invoke the 1960 Act in order to acquire the lands of the respondent. As we have refrained from relying upon the Amended Act of 1974 while approving the action of the appellant in seeking to proceed against the respondent for acquiring the surplus lands of the respondent under the Act of 1960, we do not find any dire necessity to deal with the said contention in extenso. The formidable submission raised on behalf of the respondent related to the supremacy of the Act, 1976 over the 1960 Act. The learned counsel pointed out that the respondent filed its return under the provisions of the Act, 1976 on 13.08.1976, that the said return was considered by the competent authorii)' by passing its Order dated 21.05.1983 which was thereafter considered by the Tribunal in its order dated 08.09.1989 and that the appellanVState while dealing with the respondent and the Act, 1976 themselves have mentioned in the reply affidavit in paragraph 4.1 that the lands in Survey No.111 /2-3 situated in Madhopur village was reserved for site and service project meaning thereby that they were not agricultural lands. The learned counsel would, therefore, contend that while on the one hand when it came to the question of determining the surplus lands under the provisions of the Act, 1976 the appellant would contend that the lands held by the respondent were not classified as agricultural land and thereby not entitled for exclusion under the said Act, when it came to the question of applicability of 1960 Act they contend that such lands are to be treated as agricultural lands. H

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68Copy pinpoint68. We do not find any such contradiction in the stand of the appellant even in the reply affidavit. At page 5 of the reply affidavit while referring to the lands in Survey No.111/2-3 of Madhopur village it is specifically mentioned that those lands are 'Bid lands' and are located within the industrial development B industrial area. What was contended was that admittedly no agricultural operation was being carried out in respect of Survey No.111/2-3 along with Survey Nos.91/3 and 129. In this respect it will also be necessary to refer to the stand of the respondent himself in his appeal filed under Section 33 of the c Act, 1976. In paragraphs 9 and 10 the appellant claimed the character of the land in the following manner:

"9. Land admeasuring 30 acres and 30 Gunthas i.e. 1,24,412 sq. mts., of suNey No.11112 of village Madhopur is a vidi land of the Appellant and that has been brought D under the recreational zone of RUDA. That should not have been included in the holding of the Appell,1nt. Here a/so the application under section 20 is pending with the Government for exemption.

E 10. SuNev No.11113 of village Madhopur admeasuring 579 acres 27 Gunthas is falling in agricultural zone of RUDA. A certificate has been produced before the Competent Authority and this should not be included in the holding of the Appel/ant. The Competent Authority has F shown Appellant's flat in Bombay admeasuring 223 sq. mts. From the records the Bombay flat was shown as 575.06 sq. mts., being built up property it should not be declared as surplus. Of course the flat is situated in Bombay it should be calculated as 1725. 18 sq. mts." G (underlining is ours)

69Copy pinpoint69. In paragraph 9 respondent has referred to the land admeasuring 30 acres and 30 Gunthas i.e. 1,24,412 sq. mts. in survey No.11112 of village Madhopur as vidi land which was H

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.) brought under the recreational zone of RUDA and, therefore, those lands should not have been included in the holding of the appellant. As far as the land admeasuring 579 acres 27 Gunthas in the very same village Madhopur in survey No.111/ 3 is concerned, it was specifically claimed that those lands fell in the 'AGRICULTURAL ZONE' of RUDA and, therefore, it should not have been brought within the category of excess lands held by the respondent. In fact, the above submission made on behalf of the appellant far from supporting the stand of the respondent fully supports the stand of the appellant. We, therefore, do not find any conflict in the stand of the appellant c while dealing with the nature of land held by the respondent which was earlier dealt with under the Act of 1960 which came to be considered by the authorities under the Act, 1976 pursuant to the return submitted by the respondent on 13.08.1976 under Section 6(1) of the Act, 1976. D

70Copy pinpoint70. When we consider the submission of the learned senior counsel for the respondent pertaining to the implication of the Act, 1976 vis-a-vis Act of 1960, the submission was again two fold. In the first place, it was contended that as the entire lands were lying within the urban agglomeration of the scheduled area viz., Rajkot, the Act, 1976 would alone govern the subject land and thereby exclude the application of the Act of 1960. Though in the first blush, the argument appears to be appealing, on a deeper scrutiny, it will have to be held that the said submission cannot be accepted. Even according to the respondent, the subject land having been classified as 'agricultural land' stood excluded from the application of the provisions of the Act, 1976 though lying within the urban agglomeration area. It was, therefore, axiomatic that de hors the implication of the provision of the Act, 1976 by virtue of the character of the Land held by the respondent, the application of the Act of 1960, as it originally stood prior to 17.2.1976 was imperative. Such a legal consequence existed. Even accepting the arguments of the learned senior counsel for the respondent, that being agricultural land lying within the urban agglomeration, H

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A the application of the Act, 1976 stood excluded, we fail to see as to how there would be any scope at all for the respondent to contend on that score the application of the Act of 1960 should also be excluded. Therefore, taking note of the categorical stand of the respondent himself, having claimed exclusion of such of those lands which were classified as 'agricultural land', which included 'Bid land' as well, to be excluded from the application of the provisions of the Act, 1976 and thereby the authorit~s' competent under the provisions of such other enactments\vhich would govern such agricultural lands would be free to exercise their powers under these enactments. The respondent cannot be heard to contend that there would be a vacuu'rh in so far as the application of any Statute over the lands held by the respondent that have been classified as 'agricultural land'. Such a proposition, expounded on behalf of the appellants can never be countenanced. D Therefore, the legal position that would emerge would be that going by the stand of the respondent, his lands to an extent of 579 acres 27 Gunthas being 'agricultural land' if stood excluded from the application of the provisions of the Act, 1976 such lands were already governed by the provisions of the Act of E 1960 as it originally stood and applied and there can be no demur to it.

71Copy pinpoint71. On this aspect, the next submission of the learned senior counsel for the respondent was that since the Act, 1976 F having been passed by the Parliament, at the instance of the appellant State which came into effect from 17.02.1976, no other law on the said subject viz, 'land' would operate in the field. The sum and substance of the submission was that having regard to the emergence of the Act, 1976 on and from G 17 .02.1976, the application of the Act of 1960 would automatically cease to operate. To some extent, we appreciate the submission in so far as it related to the implementation of the Act of 1974 by which the amendment was introduced to the Act of 1960. In that -respect, we consider the invocation of H Article 252 of the Constitution wherein Sub-clause (2)

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

specifically stipulated that in future, amendments could be carried out only by the Parliament and not by the State. Here we are concerned with the Act of 1960 in its un-amended form which was holding the field insofar as it related to the agricultural lands. We do find some logic to accede to the contention of the learned senior counsel in regard to the application of 1974 Act after the emergence of the Act, 1976 but same is not the position in relation to the un-amended Act of 1960. In the first place, such an argument does not find support by the specific embargo contained in Article 252(2) of the Constitution. Going by the specific stipulation contained in C Article 252 (2) of the Constitution, such an extended meaning cannot be imported into the said provision in order to nullify the effect and operation of the un-amended Act of 1960 in so far as it related to 'agricultural lands' in the appellant State. We, therefore, hold that the Act of 1960 in its un-amended form o applied on its own and continue to hold the field and was in operation over the 'agricultural lands' over which the implication of the Act, 1976 had no effect. The said legal position has to be necessarily understood in the said manner and cannot be stated in any other manner, much less in the manner contended E on behalf of the respondent. Thus the said contention made on behalf of the respondent, therefore, stands rejected.

72Copy pinpoint72. In support of the said submission, reliance was placed upon a decision of this Court in Union of India & Ors. Vs. Valluri Basavaiah Chowdhary & Ors. reported in (1979) 3 SCC 324. F Having bestowed our serious consideration in the reliance placed upon the said decision, we find that the said decision has no application to the legal issues involved in the case on hand. That was a case where in regard to the passing of the Act, 1976 itself, based on the resolution passed by the Andhra G Pradesh Legislative Assembly on 08.04.1972. The challenge was made to the vires of the Act in the High Court of Andhra Pradesh. The ground raised was that the Parliament lacked legislative competence. Such lack of competence was raised on two grounds. In the first place, it was contended that the H

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A Governor of Andhra Pradesh did not participate in the process of authorization in the passing of the Act by the Parliament and the second ground was that the resolution of the State Legislature gave authorization to the imposition of ceiling on the basis of the valuation of the immovable property i.e. for B ceiling on ownership on immovable property and not on the area of land. It was contended that the ultimate act in imposing ceiling on the area of the land was not in conformity with the real intendment of the resolution of the State and therefore it lacked competence. On the first ground viz., due to the non c participation of the Governor of Andhra Pradesh, the Parliament lacked competence found favour with the High Court of Andhra Pradesh which struck down the Act on that ground itself. While dealing with the said ground, this Court dealt with the scope of Article 252 (1) & (2) of the Constitution and by relying upon the earlier decision of this Court in State of Bihar Vs. Sir 0 Kameshwar Singh reported in AIR 1952 SC 252, ruled that in the passing of the resolution of the State Legislature, the Governor nowhere comes in the picture.

73Copy pinpoint73. As far as the second contention was concerned, it was E held as under in Va/furl Basavaiah Chowdhary (supra) at paragraphs 28, 31 and 32.

"28. We are afraid, the contention cannot be accepted. It is not disputed that the subject-matter of Entry 18, List F II of the Seventh Schedule, i.e. 'land' covers 'land and building' and would, therefore, necessarily include 'vacant land'. The expression 'urban immovable property' may mean 'land and buildings'. or 'buildings' or 'land'. It would take in lands of every description, i.e., agricultural land, urban land or any other kind and it necessarily includes vacant land. • *.

31. It is bvt axiomatic that once the legislatures of two or more States, by a resolution in terms of Article 252(1),

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JADE.IA [FAKKIR MOHAMED IBRAHIM KALIFUUA, J.]

abdicate or surrender the area, i.e., their power of A legislation on a State subject, the Parliament is competent to make a law relating to the subject. It would indeed be contrary to the terms of Article 252 (1) to read the resolution passed by the State legislature subject to any restriction. The resolution, contemplated under B Article 252(1) is not hedged in with conditions. In making such a law, the Parliament was not bound to exhaust the whole field of legislation. It could make a law, like the present Act, with respect to ceiling on vacant land in an urban agglomeration, as a first step towards the eventual c imposition of ceiling on immovable property of every other description.

32. There is no need to dilate on the question any further in this judgment, as it can be better dealt with separately, It is sufficient for purposes of these appeals to say tbat 0 when Parliament was invested with the power to legislate on the subject, i.e. 'ceiling on immovable property', it was competent for the Parliament to enact the impugned Act i.e., a law relating to 'ceiling on urban land'.• E

74Copy pinpoint74. Whatever stated in Paragraph 28 can only be understood to mean that when the State Legislature authorizes · the Parliament to pass a legislation in respect of the subject matter of Entry 18, List II of the Seventh Schedule, i.e. 'land' it would cover 'land and building' and would necessarily include F 'vacant land' and would take in land of every description including 'agriculture land' or any other kind of land. It also went on to hold that the resolution passed by the State Legislature cannot be said to impose any restriction as it would be contrary to the terms of Article 252 (1) of the Constitution. It was further G held that the Parliament was empowered to enact the law pursuant to the surrender of the State to enact a law with said subject by formulating its own prescription as to the nature of urban land in different stages. Beyond that, we do not find any other statement of iaw propounded in the said decision. H

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A Applying the said legal principle, it can only be held that the Act, 1976 in having imposed a restriction by way of ceiling on urban land within the urban agglomeration by excluding agricultural land it was a valid piece of legislation. In this respect, the contention of Mr. Soli J. Sorabji that the State Legislature only B intended in its authorization to bring about a legislation only on 'urban immovable land' and not on any agriculture land is quite appealing. We can also state that in paragraph 32 of the said decision, this Court consciously decided not to dilate on the question any further in that judgment as it can be better dealt c with separately at a later point of time. We now hold that the situation has now come where the position has to be made loud and clear to state that the Act, 1976 would govern only such of those lands which would fall within its area of operation within urban agglomeration to the specific exclusion of the agriculture 0 lands and consequently the continued application of the un- amended Act of 1960 remain without any restriction.

75Copy pinpoint75. On the other hand Mr. Soli J. Sorabjee, the learned senior counsel' for the appellants placed reliance upon a Constitutional Bench decision of this Court in Thumati E Venkaiah (supra). Almost an identical situation was dealt with by this Court in the said decision. That case also arose from the State of Andhra Pradesh. To briefly refer to the facts, in the State of Andhra Pradesh a ceiling of agricultural holdings was sought to be imposed by enacting an Ac.1 called The Andhra F Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act (Act 1 of 1973 (hereinafter referred to as the 'Andhra Pradesh Act'). It was enacted by the Andhra Pradesh Legislature on 01.01.1973. The Act was challenged before the High Court of Andhra Pradesh. However a Full Bench of the High Court G negatived the challenge by its judgment dated 11.04.1973. The Act was however brought into force on and from 01.01.1975. The amendments were brought to the said Act by Amendment Act of 1977 with retrospective effect from 01.01.1975. After the amendments, again the Act was challenged on the main ground H that by reason of enactment of the Act, 1976, the Andhra

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Pradesh Act has become void and inactive. It can be validly A mentioned that the subsequent contention of the respondent herein was the focal point in the said decision. Dealing with the said contention, the Constitutional Bench has held as under in paragraph 5: B "5. Now, as we have already pointed out above, the Andhra Pradesh Legislature had, at the time when the Andhra Pradesh Act was enacted, no power to legislate with respect to ceiling on urban immovable property. That power stood transferred to Parliament and as a first step towards the eventual imposition of ceiling on immovable property of every other description, Parliament enacted the Central Act with a view to imposing ceiling on vacant land. other than land mainly used for the purpose of agriculture. in an urban agglomeration. The argument of the landholders was that the Andhra Pradesh Act sought to impose ceiling on land in the whole of Andhra Pradesh including land situate in urban agglomerations and since the concept of urban agglomeration defined in Section 2(n) of the Central Act was an expansive concept and any area with an existing or future population of more than one /akh could be notified to be an urban agglomeration, the whole of the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature. This argument, plausible though it may seem, is in our opinion, unsustainable. It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration. it would be outside the area of its legislative competence. since it cannot provide for imposition of ceiling on urban immovable property. But the only urban agglomerations in the State of Andhra Pradesh recognized in the Central Act were those referred to in Section 2(n)(A)(i) and there can be no doubt that, so far as these urban agglomerations are concerned, it was not within the H

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A legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations. It is, however, difficult to see how the Andhra Pradesh Act could be said to be outside the legislative competence of the Andhra B Pradesh Legislature insofar as land situate in the other areas of the State of Andhra Pradesh is concerned. We agree that any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under Section 2(n)(A)(ii) of c the Central Act, but until it is so notified it would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on land situate within such area. No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens, the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land in such area. It may be noted that the Andhra Pradesh Act came into force on January 1, 1975 and it was with reference to this date that the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus, it was to be surrendered to the State Government. It is therefore clear that in an area other than that comprised in the urban agglomerations referred to in Section 2(n)(A)(i), land held by a person in excess of the ceiling area would be liable to be determined as on January 1, 1975 under the Andhra Pradesh Act and only land within the ceiling area would be allowed to remain with him. It is only in respect of land remaining with a G person, whether an individual or a family unit, after the operation of the Andhra Pradesh Act, that the Central Act would apply, if and when the area in question is notified to be an urban agglomeration under Section 2(n)(a)(ii) of the Central Act. We fail to see how it can at all be H contended that merely because an area may possibly in

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JADEJA [FAKKJR MOHAMED JBRAHIM KALIFULLA, J.] the future be notified as an urban agglomeration under A Section 2(n)(A)(ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area, even though it was not an urban agglomeration at the date of enactment of the Andhra Pradesh Act. Undoubtedly, B when an area is notified as an urban agglomeration under Section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have ~pplication, but by that time the Andhra Pradesh Act would have already operated to c determine the ceiling on holding of land falling within the definition in Section 3(j) and situate within such area. It is, therefore, not possible to uphold the contention of the landholders that the Andhra Pradesh Act is ultra vires and void as being outside the legislative competence of D the Andhra Pradesh Legislature."

(Emphasis added)

76Copy pinpoint76. In the first blush, it appears as though the said decision support the contention of the respondent. But in paragraph 5, E we have highlighted cartain relevant conclusions which fully support the stand of the appellants. This Court made it clear thereunder that the Parliament enacted the Central Act with a view to impose ceiling on vacant land other than the land mainly used for the purpose of agriculture in an urban agglomeration. F The arguments of the land holders that the concept of urban agglomeration defined in Section 2(n) was an expansive concept and any area which was already notified as urban agglomeration, as well as, which can be notified in future based on: the increase in population as urban agglomeration and, G therefore, the Andhra Pradesh Act was ultra vires lacking legislative competence was held to be unsustainable. It was also held that the Andhra Pradesh Act seeks to impose ceiling on land falling within the urban agglomeration, it would be outside the area of its legislative competence as it cannot H

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A provide for imposition of ceiling on urban immovable property after the emergence of Act, 1976. It was thus made clear that after the coming into force of the Act, 1976 by virtue of Article 252 (1) and (2) of the Constitution, there would have been no scope for the State Legislature to bring about a legislation for imposing a ceiling on an urban immovable property which falls within the urbar '.gglomeration. It was also made clear that other areas which were not declared as urban agglomeration came to be subsequently declared as urban agglomeration and notified as such, the Central Act would automatically apply and in relation to such notified area also, the State Legislature would be incompetent to make any legislation by way of imposition of ceiling on and after such declaration is made. While rererring to such a situation, this Court made it clear that the Andhra Pradesh Act continue to be applicable for determining the ceiling of holding of lands in such area, prior to any such subsequent notification under the Act, 1976. It was further made clear that since the Andhra Pradesh Act came into force on and from 01.01.1975, the surplus holding of land in excess of the ceiling area were required to be determined with reference to that date and if there was any surplus, it was to be surrendered to the State Government. It was further reinforced by stating that in an area other than that comprised in the urban agglomeration, the land held by a person in excess of the ceiling area would be liable to be determined as on 01.01.1975 under the Andhra Pradesh Act and the land within the ceiling area alone would be allowed to remain with him.

77Copy pinpoint77. The crucial words in the said paragraph can be mentioned again in order to appreciate and understand the legal position noted. They are: G "It may be noted that the Andhra Pradesh Act came into force on January 1, 1975 and it was with reference to this date that the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus, it was required to be determined and if H there was any surplus, it was to be surrendered to the

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

State Government. It is, therefore, clear that in an area other than that comprised with Urban Agglomeration referred to in Section 2(n)(A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on January 1, 1975 under the Andhra Pradesh Act and only Land within the ceiling area would be allowed to remain with him. It is only in respect of Land remaining with a person, whether an individual or a family unit, after the operation of the Andhra Pradesh Act, that the Central Act would apply .... " "Undoubtedly, when an area is notified as an urban agglomeration under Section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application, but bv that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land o falling within the definition in Section 3(j) and situate within such area. It is therefore not possible to uphold the contention of the landholders that the Andhra Pradesh Act is ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature." E (Emphasis added) A close ancj careful reading of the said statement of Jaw declared by this Court makes it clear that if as on the date when the Andhra Pradesh Act was already in force i.e. as on 01.01.1975, the determination of surplus land as per the F provisions of the said Act should have been determined and only thereafter the implication of the Act, 1976 could be applied. The specific statements "It is only in respect of land remaining with a person, whether an individual or a family unit after the operation of the Andhra Pradesh Act, that the Central Act G would apply ..... " " ..... but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in Section 3(j) and situate within such area ..... " makes the above position clear without any ambiguity. H

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78Copy pinpoint78. Afortiori if the said ratio decided by the Constitution Bench of this Court is applied, there would be no difficulty in holding that as held by us earlier, since as per the un-amended Act of 1960, 'Bid land' held by the respondent fell within the definition of 'agriculture' under Section 2(1) and consequent B definition of 'land' as defined in Section 2(17) of the Act of 1960, the determination of holding of such excess agriculture land under the said Act of 1960 prior to the coming into force of the Act, 1976 should be operated upon. Having regard to the said legal position, we hold that the action of the appellants in having c passed the orders impugned before the High Court were fully justified and interfering with the same by the learned Single Judge and the Division Bench of the High Court by the impugned order in this Civil Appeal are liable to be set aside.

79Copy pinpoint79. The impugned judgment of the Division Bench of the D High Court proceeded mainly on the footing that the Amended Act of 1974 cannot form the basis for proceeding against the respondent for the purpose of acquisition under the 1960 Act in the light of the field being occupied by the Act, 1976 which came into force prior to the coming into force of the 1974 Act, E namely, on 17.02.1976 and the Amendment Act of 1974 which came to be notified only on 01.04.1976. The said conclusion was based on the implication of Article 252(2) of the Constitution ·wherein once at the instance of the "State Government even in relation to any entry in List II an enactment F came to be made by the Parliament, any subsequent amendment relating to the said subject can only be made by the Parliament and not by the State. The Division Bench referred to the claim of the appellant that even by ignoring the Amendment Act 1974 which came into effect from 01.04.1976 G having regard to the existence of the Act, f9'76 as from 17.02.1976, the ceiling with regard to the agricultural land has to be determined as it was existing prior to 17.02.1976, naniely, as agricultural land and the same being not part of urban agglomeration the 1960 Act would apply. We find that H the said argument was simply brushed aside. The submission

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JADEJA [FAKKIR MOHAMED IBRAHIM KAUFULLA, J.] was not dealt with in the proper perspective. A

80Copy pinpoint80. It was lastly contended by the learned senior counsel for the respondent that the case of the appellants was hit by the principle of res judicata. In support of the said submission, reliance was placed upon the joint affidavit filed by two Deputy Collector dated 06.10.1980, filed in a different case viz., in B Special Civil Application No.941of1980 before the High Court of Gujarat where on behalf of the State of Gujarat, it was contended that in respect of 'Bid land' only Act, 1976 would apply where such 'Bid land' lie within the agglomeration of Bhavnagar and that Act of 1960 was not applicable. Reliance C was also placed upon another affidavit dated 16.02.2000, filed by the Deputy Secretary, Revenue Department, Government of Gujarat in relation to Bhavnagar 'Bid lands' before the High Court of Gujarat in S.C.A.No.15529 of 1999, wherein a stand was taken by the State Government that possession of D Bhavnagar 'Bid land' not having been acquired and taken under the Act, 1976 prior to its repeal, there was no scope to take possession of those lands. Reliance was placed upon the decision of this Court in Palitana Sugar Mills (P) Ltd. and another Vs. State of Gujarat and others (supra)wherein, it was concluded by this Court that Bhavnagar 'Bid lands' were controlled by the provisions of Act, 1976 and not by the Act of

1960. By referring to those affidavits and the decision of this Court, the contention was that the stand taken by the appellant in regard to the Bhavnagar 'Bid lands' would apply in all force to the 'Bid lands' belonging to the respondent though they were situated in Rajkot.

81Copy pinpoint81. In reply to the said submission Mr. Soli J. Sorabjee, learned senior counsel for the appellants contended that the principle of res judicata cannot be applied as the parties were different and the subject lands were different and the respondent had nothing to do with the issue raised in the decision relied upon by the learned senior counsel for the respondent. It was also submitted that since the ingredients to support the principle of res judicata as set out under Section H

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A 11 of the Code of Civil Procedure not having been fulfilled, the submission of the learned senior counsel for the respondent cannot be considered. The learned senior counsel for the appellants brought to our notice the facts set out in the joint affidavits of the two Deputy Collectors in S.C.A. No.941 of B 1980, wherein it was specifically averred to the effect that since long time, to the knowledge of the land holders, the land in question was demonstrated as meant for residential purpose in the Master Plan which was prepared since August, 1976 and that the land in question fell within the definition of 'urban land' c under Section 2(o) of the Act, 1976 and therefore the overriding effect of Section 42 of the Act, 1976 excluded the application of the Act of 1960.

82Copy pinpoint82. When we refer to the facts mentioned in the joint affidavit of the two Deputy Collector in S.C.A.No.941of1980, D we find that the submissions of the learned senior counsel for the appellants were clearly set out therein. The lands which were originally classified as 'Bid lands' came to be specifically classified as land meant for residential purpose in the Master Plan prepared in the year August, 1976 and thereby came E within the definition of 'urban land' under Section 2(o) of the Act,

1976. Whatever decision rendered based on those facts cannot be equated to the facts involved in the case on hand, in order to apply the principle of res judicata and thereby non-suit the appellants. The principle of res judicata is governed by Section F 11 of the Code of Civil Procedure. Applying the ingredients set out in the said provision, the respondent is bound to show that the issue which was directly and substantially involved between the same parties in the former suit and was tried in the subsequent suit, in order to fall within the principles of res judicata. Applying the substantive part of Section 11 of C.P.C. we fail to see how any of the ingredients set out therein are fulfilled in order to apply the principle of res judicata. The parties are entirely different, the fact in issue as pointed out by the learned senior counsel for the appellants would disclose that they were based on entirely different set of facts and

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JADEJA [FAKKIR MOHAMED IBRAHIM KALIFUW\, J.]

circumstances and therefore we do not find any substance in the said submission raised on behalf of the respondent. The said submission, therefore, stands rejected.

83Copy pinpoint83. When we come to the submission relating to the concept of eclipse in relation to the Act of 1960, as it originally stood as well as after the Amendment Act of 1974 by virtue of the coming into force of the Act, 1976 w.e.f. 17.02.1976, we wish to only touch upon the position that occurred due to the subsequent repeal of the Act, 1976 in the year 2000. We are conscious of the fact that we are not solely concerned with the said issue of eclipse of the Act of 1960 and its revival after the repeal of the Act, 1976. However, since the said issue was argued by the respective counsel and reliance was placed upon a Constitution Bench decision of this Court on this issue in M.P. V. Sundararamier (supra) we are obliged to deal with the said submission. In the said decision among other contentions D a contention was raised on behalf of the petitioner therein which was as under: "Section 22 having been unconstitutional when it was enacted and, therefore, void, no proceedings could be taken thereunder on the basis of the Validation Act as the E effect of unconstitutionality of the law was to efface it out of the statute book." Dealing with the said contention, the Constitution Bench has held at page 1469 and 1474-75 as under: F "..... If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be G requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions. though the law would be unenforceable by reason of those prohibitions. when once they are remove<!. the law will become effective without re-enactment. H

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A The result of the authorities may thus be summed up: Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the B purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation to give c effect thereto. On this view, the contention of the petitioners with reference to the Explanation in s.22 of the Madras Act must fail.. .. " (emphasis added) In the light of the said proposition of law laid down by the D Constitution Bench decision of this Court, it will have to be held that once the Act, 1976 came to be repealed whatever constitutional embargo that was existing as against the Act of 1960 as well as the Amendment Act of 1974 ceased to exist and the Act would operate in full force. In the light of the said settled legal position, we need not dilate much on this issue and we leave it at that.

84Copy pinpoint84. Having regard to our above conclusions, the judgment impugned in this appeal is liable to be set aside. The appeal, therefore, stands allowed. The order of the learned Single Judge as well as the impugned judgment of the Division Bench are set aside. The judgment dated 08.09.1989 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.R.4/84 confirming the orders of the Deputy Collector G and Mamlatdar and A.LT in so far as Bid lands in survey No.111/2 admeasuring 30 acres 30 Gunthas and survey No.111/3 admeasuring 579 acres 27 Gunthas stands restored. In the facts and circumstances of the case where we have dealt with pure questions of law there will be no order as to costs. H R.P. Appeal allowed.