ORDER
1. This petition by the tenants involves a neat question of law as to the interpretation of the provisions of S. 43-1B of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'the Tenancy Act'). In particular, the question involved is whether for calculating the ceiling area for the purpose of clause (a) of sub-s. (1) of S. 43-1B of the Tenancy Act, any land in actual possession of the landlord outside the State of Maharashtra can be taken into account, The contention of the petitioners tenants is that the land in actual possession of the landlord, though such land may be situated outside the State of Maharashtra should be considered while calculating the ceiling area. The contention of the contesting respondent No. 1-landlord, obviously, is that such a land in his possession outside the State of Maharashtra should not be calculated in his holding for the purpose of determining the ceiling area under clause (a) of sub-sec. (1) of S. 43-1B of the Tenancy Act. A few facts may be stated as under :
2. The first was the member of the Armed Forces from 1941 to 1970. His father Dhundiraj Deshpande was the original landlord of two lands, survey No. 98 measuring 18 acres 27 gunthas and survey No. 99 measuring 17 Acres and 17 gunthas both situated at Rajapur, Taluka Shirol, District Kolhapur. The original landlord died in 1936 leaving three sons --Respondent No. 1 -- Vasantrao, original respondent No. 7 Chandrashekhar and respondent No. 8 -- Suryakant. It appears that in the year 1944, there was a partition in the family and as far as survey No. 99 was concerned, each of the three sons was given 1/3rd share. As far as other land bearing survey No. 98 is concerned, it was equallydivided between Chandrashekhar and Suryakant. In the year 1964, the share of the present respondent No. 1 Vasantrao, who is the member of the armed forces, was sought to be enlarged by transfer of 1/2 share of Chandrashekhar in survey No. 98 and 1/3rd share of Chandrashekhar in survey No. 99. Thereafter Vasantrao filed an application u/S. 43-1B of the Tenancy Act for possession of his 1/2 share in survey No. 98 and 2/3rd share in survey No.99. (Vasantrao's lands which included the share which was transferred by Chandrashekhar to Vasantrao). This was on the basis that the first respondent Vasantrao had acquired the share of Chandrashekhar in both surveys Nos. 98 and 99. This application was tried as tenancy case No. 1 of 1968. The Collector, Kolhapur dismissed the said application by his order dated 22nd September 1970. While dismissing the application, the Collector held that in view of the provisions contained in S. 32F of the Tenancy Act and in f view of the fact that share of respondent No. 1 who was the member of the joint family, had not been separated by metes and bounds, the tenant had become deemed purchaser of the suit land. This order of the Collector was challenged by respondent No. 1 Vasantrao in Revision before the Commissioner, Pune Division, Pune. The Additional Commissioner partly allowed the Revision Application by his judgment and order dated 30th November 1974. He took the view that the partition had already taken place prior to the insertion of S. 32F in the Tenancy Act and hence the question of applicability of that section to the facts of the case did not arise at all. He, however, held that the transfer of the share of Chandrashekhar in both the lands in favour of the present respondent No. 1 Vasantrao could not be given effect to because the land standing to the share of Chandrashekhar had already been subject matter of the statutory purchase in favour of the tenant. The Additional Commissioner therefore, allowed the claim of respondent No. 1 Vasantrao only to the extent of his 1/3rd share in survey No. 99 which was his holding prior to the purported transfer of 1964 by Chandrashekhar.
3. This order passed by the AdditionalCommissioner granting the application of respondent No. 1 Vasantrao to the extent of his 1/3rd share in survey No. 99 was challenged by the tenants in this Court in Writ Petition No. 744 of 1975 which was finally disposed of on 3rd July 1979. This Court took the view that the finding of the Additional Commissioner regarding the total holding of respondent No. 1 Vasantrao was unsatisfactory. In order that the landlord who is the member of the Armed Forces succeeds in obtaining the possession of the land, it is necessary to show that the total land in his actual possession is less than the ceiling area. The extent of the land which such a landlord can obtain u/S. 43-1B is only so much as would make up the total land in his actual possession equal to the ceiling area. This is clear from the perusal of S. 43-1B of the Tenancy Act, which reads as under :
43-1B:
(1) Notwithstanding anything contained inthe foregoing provisions of this Act, butsubject to the provisions of this section, itshall be lawful to a landlord at any time afterthe commencement of the Tenancy andAgricultural Lands Laws (Amendment) Act,1964, to terminate the tenancy of any Sand andobtain possession thereof, but
(a) of so much of such land as will be sufficient to make up the total land in this actual possession equal to the ceiling area; and
(b) where the landlord is a member of a joint family, only to the extent of his share in the land (not exceeding the ceiling area) held by the joint family provided that, the Mamlatdar on inquiry is satisfied that such share has (regard being had to the area, assessment, classification and value of land), been separated by metes and bounds in the same proportion as his share in the entire joint family property and not in a larger proportion.
(2) No tenancy of any land shall be terminated under sub-sec. (1), unless a notice in writing is given to the tenant, and an application for possession under sub-sec. (3-A) of S. 29 is made to the Collector :
Provided that in the case of a landlord who has ceased to be a serving member of the armed forces, such notice shall be given and application made within two years from the date of such cesser; and if he dies before the expiry of these two years without giving such notice or making such application, then within two years from the date of his death.
(3) Nothing in this Chapter shall -
(a) apply to a tenancy of land created (after obtaining possession thereof under the provisions of this Chapter) by a landlord who has ceased to be a serving member of the armed forces; but the provisions of S. 32-0 shall apply to such tenancy as they apply in relation to a tenancy created after the tillers day;
(b) entitle a landlord who has ceased to be a serving member of the armed forces (as a result of his being duly dismissed or discharged after a court martial or on account of bad character or as a result of desertion) or who has not been attested, to terminate the tenancy of his land under this section.
(4) Nothing in the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947, shall affect the termination of any tenancy under this Chapter.
In view of this lacuna in the decision of the Additional Commissioner, this Court thought it necessary to remand the matter back to the Court of the first instance for deciding the question of the extent of the land held by the first respondent in his actual possession and consequently the extent of the land which he is entitled to resume from the tenants namely the petitioners and to what extent. In the result this Court partly allowed the Writ Petition and held that the first respondent-Vasantrao was entitled to apply u/S. 43-1B of the Tenancy Act for possession of his 1/3rd share in survey No. 99 subject to the finding as to his holding on which issue the matter was remanded.
4. Pursuant to the remand, the Collector held an inquiry and came to the conclusion that as far as the State of Maharashtra is concerned, the only other land held by the first respondent-Vasantrao was the landbearing block No. 654 admeasuring 3 H.22 R.(8 acres 2 gunthas) assessed at Rs. 21.44 situated at village Rajapur, Taluka Shirol, District Kolhapur. Out of this land the area of 2 H.10 R. was being used for sugarcane cultivation for the relevant period. Applying the conversion formula the Collector Held that the extent of the land held by the first respondent in his actual possession would thus be 13 Acres 12 gunthas. Since the ceiling area at the relevant time was 48 acres, the Collector held that the first respondent would be entitled to resume his entire portion of 5 acres 27 gunthas which was his 1/3rd share in survey No. 99. It may be stated that the original first petitioner Tatoba's branch was holding 5 acres 28 gunthas as tenant in survey No. 99 whereas the branch of the original second petitioner Parisa was holding 5 acres 27 gunthas as tenant in the said survey No. 99. In this view of the matter, Collector came to the conclusion that each of the two branches of tenants would be liable to lose half of the land held by them so as to make up the area of 5 acres 27 gunthas to be resumed by the first respondent-landlord. This order was passed on 6th April 1981.
5. Being aggrieved by the said order, the heirs of the two tenants Tatoba and Parisa preferred a Revision Application to the Commissioner which has been dismissed on 29th August 1981. Being aggrieved by the concurrent finding, the present Writ Petition has been filed under Art. 227 of the Constitution of India.
6. I have heard both the learned Counsel, namely, Shri Nitin Jamdar for the petitioner and Shri H. D. Gole for the respondents. Shri Jamdar, the learned Counsel appearing for the petitioner-tenants contended that on a true construction of the provisions of S. 43-1B of the Tenancy Act the holding of the first respondent even outside the State of Maharashtra was liable to be included for the purpose of calculating the total land in his actual possession equal to the ceiling area as contemplated by clause (a) of sub-sec. (1) of S.43-1B of the Tenancy Act. Shri Jamdar contended that the first respondent-landlord has extensive lands, perhaps as many as 70acres, in Karnataka State which is a neighbouring State and hence if that land was taken into account, the petitioners-tenants would not be liable to lose any land in the present proceedings. Shri Jamdar's contention is that the first respondent wants to avail of the special remedy provided for him as a member of the Armed Forces of the Union u/S. 43-1B of the Tenancy Act and viewed in a proper perspective, in such a situation, the holding of the first respondent landlord anywhere in the country ought to be taken into account for the purpose of making up of a total and in his actual possession equal to the ceiling area as contemplated by clause (a) of the said sub-sec. (1) of S.43-1B of the Tenancy Act. Shri Jamdar also urged that at any rate on an equitable consideration of the rival claim of the petitioners-tenants on the one hand and respondent No. 1 landlord on the other, such a construction would meet the ends of justice in the scheme of the provisions of S. 43-1B of the Tenancy Act. Shri Jamdar further contended that bearing in mind the directive principles of State policy enshrined in sub-article (2) of Art. 38 and clause (c) of Art. 39 of the Constitution, it would be necessary to put such a construction on the provisions of S. 43-1B of the Tenancy Act.
7. On the other hand Shri Gole, thelearned Counsel for the first respondent-landlord contends that in the scheme of the provisions of the Bombay Tenancy Act it would be totally impermissible to look to the holding, if any, of the first respondent outside the State of Maharashtra. He also disputes Shri Jamdar's contention that the first respondent held as many as 70 acres of land in Karnataka State, though Shri Gole concedes that the first respondent does hold some land in Karnataka State.
8. For appreciating the rival contentions of the learned Counsel, it is necessary to consider the scheme of the provisions of S. 43-1B reproduced above. Clause (a) of sub-sec. (1) of S. 43-1B permits the landlord who is the member of the armed forces to resume so much of land as would be sufficient to make up the total land in his actual possession equal to the ceiling area. The ceiling area hasbeen defined in clause 2-D of the Tenancy Act which reads as under :
2. In this Act.....
(1) to (2C) .....
(2D) 'ceiling area' means in relation toland held by a person whether as an owner ortenant or partly as owner and partly as tenantthe area of land fixed as ceiling area u/S. 5 or7;
9. Section 5 defines the ceiling area as under :
Sec. 5 : (1) For the purpose of this Act, the ceiling area of lands shall be,--
(a) 48 acres of jirayat land, or
(b) 24 acres of seasonally irrigated land or paddy or rice land, or
(c) 12 acres of perennially irrigated land.
(2) Whether the land held by a person consists of two or more kinds of land specified in sub-sec. (1), the ceiling area of such holding shall be determined on the basis of one acre of perennially irrigated land being equal to two acres of seasonally irrigated land or paddy or rice land, or four acres of jirayat land.
(Explanation : In calculating the ceiling area, warkas land shall be excluded.)
10. The word 'land' has been defined by cl. 8 of S. 2 as under :--
2(8) 'land' means -
(a) land which is used for agricultural purposes (or which is so used but is left fallow, and includes the sites of farm buildings) appurtenant to such land; and (b) for the purpose of Ss. 11, 16, 17, 17A, 17B, 18, 19, 20, 26, 28, 29, 29A, 30, 41, 63, 64, 64A, 84A, 84B and 84C -
(i) the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses;
(ii) the sites of structures used by agriculturists for allied pursuits;
11. In this behalf it must be remembered that admittedly the Bombay Tenancy Act is restricted in its operation to the Bombay area of the State of Maharashtra. This is clear from sub-sec. (2) of S. 1 of the Act. The Act cannot have any extra-territorial operation. A Division Bench of this Court had occasion to consider a somewhat similar provision appearing in the unamended S. 34 of the Bombay Tenancy Act. In the case of Chhanubhai Karansang y. Sardul Mansang reported in : AIR1957Bom99 , S. 34(2) of the Bombay Tenancy Act, as it then stood, fell for interpretation. The said section read as under :
'34.(1) Notwithstanding anything contained in S. 14, a landlord may terminate the tenancy of a protected tenant by giving him one year's notice in writing, stating therein the reasons for such termination, if the landlord bona fide requires the land for any of the following purposes, namely :--
(1) for cultivating personally, or
(2) for any non-agricultural use for his own purpose.
(2) Nothing in sub-sec. (1) shall entitle the landlord -
(a) to terminate the tenancy of a protected tenant, if the landlord at the date (on which the notice is given or at the date on which the notice expires) has been cultivating personally other land fifty acres or more in area;
Provided that if the land which is being cultivated personally is less than fifty acres, the right of the landlord to terminate the tenancy of the protected tenant and to take possession of the land leased to him shall be limited to such area as will be sufficient to make up the area of the land which he has been cultivating personally to the extent of fifty acres.'
11A. The question arose in Chhanubhai Karansang's case : AIR1957Bom99 as to whether the land held by the landlord in Saurashtra outside the State of Bombay was liable to be included in the words 'other land fifty acres or more in area' appearing at the end of clause (a) of sub-sec. (2) of S. 34.
12. Chief Justice Chagla who spoke for the Court in Chhanubhai's case pointed out several reasons and difficulties in the way of accepting the argument of the tenant that the holding in Saurashtra could also be taken into account for calculating the area of 'other land fifty acres or more in area'. The learned Chief Justice pointed out that the ordinary principle of construction is that a Legislature is dealing with the subject matter situated within its own territorial jurisdiction. The legislature was not concerned with improving the lot of any person outside the State of Bombay nor was it conversant with the conditions prevailing outside the State. The tenant for whose benefit the legislation was put on the statute book and who had been defined and the landlord who had been correspondingly defined were tenant and landlord in the State of Bombay. The learned Chief Justice further observed that it cannot be gainsaid that the legislature was only dealing with the tenant and landlord within the State of Bombay and not with the tenant and landlord outside the State of Bombay and when the legislature in S. 34(2)(a) laid down the limit of fifty acres it laid down that limit from the point of view of conditions prevailing in the State of Bombay. Chief Justice Chagla further observed that S. 36(1), as it then stood, permitted the Government to reduce the limit of fifty acres and this reduction could not be from the point of view of conditions prevailing outside the State of Bombay but it could only be from the point of view of conditions prevailing in the State of Bombay. I may refer here to the provisions of S. 7 of the Tenancy Act which now permit the State Government to vary the acreage of the ceiling area. The learned Chief Justice further observed that the legislature was indifferent to what the landlord's holding was outside the State of Bombay. On a consideration of alt the relevant factors, the Division Bench in Chhanubhai Karansang v. Sardul Mansang reported in : AIR1957Bom99 came to the conclusion that the words 'other land fifty acres of more in area' referred to in S. 34(2)(a) must be restricted to the land in the State of Bombay. It is true that as contendedby Shri Jamdar, the provisions of S. 43-1B are not exactly pan materia with the provisions of the unamended S. 34 reproduced above. However, in my view, having regard to the scheme of the provisions of S. 34, as it then stood, and the scheme of the provisions of S.43-1B, with which 1 am concerned, what has been observed by the Division Bench would hold equally good for deciding the question as to whether the lands which are in actual possession of the first respondent in the State of Karnataka could be taken into account for making up the total land in his actual possession equal to the ceiling area.
13. Another decision to which a reference could be made is the Full Bench decision of this Court in the case of Shankarrao v. State of Maharashtra reported In 1980 MLJ 888. The question before the Full Bench was whether some of the provisions of sub-sec. (2) of S. 3 of the Maharashtra Agricultural Lands_(Ceiling on Holding) Act, 1961 were ultra vires the powers of the State Legislature. S. 3 of the said Agricultural Land (Ceiling on Holding) Act, 1961 dealt with the question of the restrictions on the person or family unit holding the land in excess of the ceiling area as determined in the manner prescribed in the said Ceiling Act. Under sub-sec. (2) of S. 3 of the said Agricultural Lands (Ceiling on Holding) Act, 1961 all lands held by a person or as the case may be a family unit whether in his State or in other part of India in excess of the ceiling area shall, notwithstanding anything contained in any law for the time being in force or usage, be deemed to be surplus land, and shall be dealt with in the manner provided in the said Act. On consideration of the relevant provisions and in the light of the several decisions of the Supreme Court, the Full Bench of this Court held that 'the provisions of S. 3(2) of the Maharashtra Agricultural Lands (Ceiling on Holding) Act, 1961 as amended by Maharashtra Act 21 of 1975 and 6 of 1976 in so far as the word 'whether' in the first line and the words 'or any other pan of India' occurring in the second line are beyond the competence of the State Legislature and consequently struck them down as having extra-territorial operation. As a consequence, the entire explanationto sub-sec. (2) of S. 3 was held to be unlawful and inoperative and beyond the competence of the State Legislature.
14. Shri Gole for the first respondent has placed strong reliance on both these rulings referred to above and particularly on the decision of the Division Bench in Chhanubhai Karansang's case : AIR1957Bom99 (supra). I find great substance in the contention of Shri Gole and in view of the reasoning of the Division Bench in Chhanubhai Karansang's case, 1 am of the view that it would not be permissible to take into account the land alleged to be in actual possession of the first respondent in the State of Karnataka for the purpose of calculating the total land in his actual possession, equal to the ceiling area, for the purpose of clause (a) of sub-sec. (1) of S.43-1B of the Bombay Tenancy Act.
15. Shri Jamdar for the petitioner has invited my attention to the decision of a learned single Judge of this Court in the caseof Abdul Karim Pirsaheb Sheikh v. Laxman Bapu Bhosale reported in : AIR1981Bom168 . The question in Abdul Karim's case was whether the fact that the intending purchaser was agriculturist within the State of Karnataka was sufficient for the purpose of recording a finding that he is an agriculturist within the meaning of S. 63 of the Bombay Tenancy Act. It was held that S. 63 prohibited and/or barred sales of agricultural lands to non-agriculturists. The said provision did not bar or prohibit a sale of the land to a person residing outside the State of Maharashtra. If a person was an agriculturist from outside the State of Maharashtra and intended to purchase the land within the State of Maharashtra he should comply with the requirement of the provisions of S. 63 of the Bombay Tenancy Act. In the facts of the case before the learned single Judge, it was, therefore, held that the person who was agriculturist within the State of Karnataka would be entitled to purchase the land in the State of Maharashtra. However, I find that the ratio in Abdul Karim's case can have no bearing to the question involved in the present case. In my view, the decision of the Division Bench in Chhanubhai's case : AIR1957Bom99 ismore apt to the controversy involved in the present petition. I have already reproduced above the provisions of S. 34(2) as they then stood, which fell for interpretation before the Division Bench in Chhanubhai's case. In my opinion, in view of the reasons expressed by the Division Bench in Chhanubhai's case, it would not be permissible to consider the land held by the first respondent in the State of Karnataka to make up the total land in his actual possession equal to the ceiling area for the purpose of clause (a) of sub-sec. (1) of S. 43-1B of the Bombay Tenancy Act.
16. In view of the above, it is not possible to accept the contentions raised by Shri Jamdar. On a true construction of the provisions of S. 43-1B of the Act, it must be held that the land alleged to be in possession of the first respondent in the State of Karnataka cannot be taken into account to make up the total land in his actual possession equal to the ceiling area for the purpose of cl. (a) of sub-sec. (1) of S. 43-1B of the Bombay Tenancy Act. In my view, it would not be permissible to do so merely relying upon the directive principles of State policy contained in sub-article (2) of Art. 38 and clause (c) of the Art. 39. Sub-Article (2) of Art. 38 reads as under :
38(1):--.....
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.'
Clause (c) of Art. 39 reads as under :
39. The State shall, in particular, direct its policy towards securing -
(a) & (b) .....
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.'
While no one can question the laudable objects behind these provisions which are intune with the preamble of the Constitution, in my view, it is not possible to fall back upon the above provisions of Articles 38 and 39 for the purpose of holding that in calculating the area in the actual possession of the first respondent for the purpose of making up his ceiling area under clause (a) of sub-sec. (1) of S. 43-1B of the Act, the holding of the first respondent in the State of Karnataka should also be considered. Such a construction would be far-fetched and would not be permissible in law.
17. In view of the above, there is no merit in this petition. The findings recorded by both the authorities below are in accordance with law and need no interference in this petition under Art. 227 of the Constitution of India. In the result, the petition is liable to be dismissed. Accordingly, the rule is discharged. There shall, however, be no order as to costs.
18. Rule discharged.