Vinodchandra Sakarlal Kapadia v. State of Gujarat

5. The aforesaid provisions generally deal with the right of purchase conferred upon a tenant and process to effectuate said right of purchase. Following provisions, inter alia, deal with some of the incidents while the relationship as a tenant is in operation including assignment on part of the tenant:-

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 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 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 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 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 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 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 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 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 others[4] and in Jayamma vs. Maria Bai (Dead) by proposed LRs and another[5], 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.

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 avowed object of safeguarding 4 AIR 1998 SC 3229 = (1998) 7 SCC 294 5 AIR 2004 SCW 4412 = (2004) 7 SCC 459 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 the economic and social conditions of peasants ensuring the full 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 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 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 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 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 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 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’, it was observed by the Division Bench:- “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 Bangi[4]. In that case, one Sangappa Bangi made an application under Section 45 of the Karnataka Land Reforms Act, 1961 claiming occupancy 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. 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 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 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 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 Jayamma[5] 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 of ‘family’ as contained in Section 2(12) and ‘joint family’ as 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 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 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, 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 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 of any kind may be transferred by way of gift or Will, sale etc. unless nontransferability 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 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 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 nonagriculturist to be operative after his death. Such attempt 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 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 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 another[6] and Dayandeo Ganpat Jadhav vs. Madhav Vithal Bhaskar and others[7] 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 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 6 (1974) 2 SCC 70: AIR 1974 SC 994 correct enunciation of law and stand overruled. We, therefore, hold that Section 63 of the Bombay Tenancy Act also bars the 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 large number of agricultural lands have already been transferred through testamentary disposition to nonagriculturists 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 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 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 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 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 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 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 Sangappa[4] and Jayamma[5] are distinguishable as the provisions of the Karnataka Land Reforms Act, 1961 had received Presidential assent, whereas, the provisions of the Act have not received any such assent. Reliance is also placed on the Judgment of this Court in Mahadeo (Dead through legal representatives) vs. Shakuntalabai[8] 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.

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 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 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.

12. We may now consider the decisions of this Court which have dealt with issues concerning testamentary disposition of agricultural holdings-

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 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 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 under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In 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 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 Shivanna[9] and Dhareppa v. State of Karnataka10 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.”

Court in Jayamma[5], as follows:- 10 (1979) 1 Kant LJ 18 11 (1987) 2 Kant LJ 337 “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 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 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 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.

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 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 cosharers, no transfer of the property, in any manner, is permissible.

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.

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 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.”

13. The decisions in Sangappa[4], Jayamma[5] and Mahadeo[8] had dealt with the question whether prohibition against transfer of agricultural 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 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 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: “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— (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 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 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) “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 nonresidential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family 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 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.”

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:

12. In Dr. Anant Trimbak Sabnis17 the High Court of Bombay 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:

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 (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 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 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.”

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 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:-

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 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 transfer of “granted lands” which expression is defined in Section 3(b) 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, 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. 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 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 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 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 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 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 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 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”.

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 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 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 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 on transfer of such granted lands for the specified period was an 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 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 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.” 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:-

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 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:-

17. In Amrendra Pratap Singh vs. Tej Bahadur Prajapati and Others24, a question arose whether a plea of adverse possession by a nontribal with regard to land of a tribal situated in the scheduled area could be entertained. While dealing with the question, following observations were made by this Court:-

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 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 (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 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 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 26 AIR 1923 PC 205: 50 IA 255: ILR 47 Bom 798 27 AIR 1949 Nag 265: ILR 1948 Nag 978 High Court noted non-availability 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 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 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 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 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 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 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 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 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 his property to him. To such an action neither Article 65 of the 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 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 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 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:-

Caste/Scheduled Tribe and then sell it to a non-Scheduled Caste 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 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 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:-

19. The prohibition against transfer of a land of a tribal to a non-tribal was extended in Shamjibhai Keshavjibhai Kansagra (Patel) & 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 which is presently under appeal and observed as under:

14. From the aforesaid provision, it will be evident that there is a restriction on 'transfer of occupancy' of land of tribals by any 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, 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 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 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 a document in contravention of any law. The answer is always in negative. If law do not permit and there is a prohibition to do 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 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 Land Revenue Code. Similarly, a tenantowner of agricultural land cannot wish nor can show his intention to transfer his right on agricultural land to a nonagriculturist 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 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 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 that in Mahadeo[8] 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 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 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 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, 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 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 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) 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 subtenant. 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 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 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 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. 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. 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, 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 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 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 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 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 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 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.

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 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 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 “assignment” must carry a different meaning in Sections 14 and 27 on 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 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 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 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 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.

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 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 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 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 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 which does not have the element of consideration is to be permitted, and if it 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 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 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 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.

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 Sangappa[4] and the other 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 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 of legislative competence and the observations of this Court in that behalf were:-

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:-

“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 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 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 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 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 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 Constitutionmakers purposely used general and comprehensive words having a wide 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 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 35 AIR 1951 SC 41: 1950 SCR 869 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 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 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 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 ).

30. In Diamond Sugar Mills Ltd. v. State of U.P37 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 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 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 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 36 AIR 1960 SC 424: (1960) 2 SCR 362 37 AIR 1961 SC 652: (1961) 3 SCR 242 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 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 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 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 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 and the purport of the act, both as disclosed by its language, and

(ii) the effect which it would have in its actual operation. … … …

34. The Constitution Bench decision of this Court in Indu 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 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 39 AIR 1941 FC 16: 1940 FCR 110

Constitution Bench held that the entry has to be liberally and widely interpreted. Regulation of houses in private occupation would fall within the 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, 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 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 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. In Prout v. Hunter41 the Rent Restrictions Act was held to have been passed by Parliament with the twofold 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 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 attendance, and (c) the provisions about transfers of burdens and liabilities from the landlord to the tenant 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) 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 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 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. … … …

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 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 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. The legislative competence was spelt out from Entry 18 in List II of Schedule 7. The Court observed: (SCC p. 493, para 16)

38. In Maneklal Chhotalal v. M.G. Makwana44 the constitutional validity of the Bombay Town Planning Act, 1954 as 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 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 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 44 AIR 1967 SC 1373: (1967) 3 SCR 65 being beyond the legislative competence of the State Legislature. While upholding the validity, this Court re-stated the principles in State of Maharashtra vs. Bharat Shanti Lal Shah and Others45 as under:-

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 Legislature. In Burrakur Coal Co. Ltd. v. Union of India50 this Court held the same in the following manner: (AIR p. 963, para

25)

41. In CST v. Radhakrishan51 this Court while dealing with the question of constitutional validity of a statute held that the 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 48 AIR 1959 SC 582: 1959 Supp (2) SCR 63

50 AIR 1961 SC 954: (1962) 1 SCR 44 consideration matters of common knowledge, reports, Preamble, history of the times, object of the legislation and all 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 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 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 of United Yarn case52 ): (Bihar Distillery Ltd53, SCC p. 466, para 17)

43. One of the proven methods of examining the legislative 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 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 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 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.

44. A five-Judge Bench of this Court in A.S. Krishna v. State of Madras54 held as under: (AIR p. 301, para 8)

45. Again a five-Judge Bench of this Court while discussing the said doctrine in Kartar Singh v. State of Punjab55 observed as 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 particular enactment is challenged with reference to the entries 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 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 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 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, 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: -

184. Once the doctrine of pith and substance is applied to 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 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 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 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. 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.

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 thereof, including lapsing of acquisition proceedings, cannot be read into the State Act. It is for the reason that neither have they 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 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 eloquently coexist 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.”

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 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 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 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.

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 Mahadeo[8] which had failed to notice the earlier decisions in Sangappa[4] and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided.

34. Accordingly, all these appeals are dismissed without any order as to costs. …………………….J. [Uday Umesh Lalit] [Indu Malhotra] [A.S. Bopanna] New Delhi; June 15, 2020