Alladi Kuppuswami, J.
1. The petitioners are two firms carrying on the business of salt production at Polekurru. Kakinada taluk, East Godavari District. The first petitioner was granted a licence to manufacture salt in en extent of Ac. 607-52 and the second petitioner in an extent of Ac. 572-41. The licences were issued from year to year pending alignment of the salt pans as per the plan to be approved by the Salt Department. Accordingly, realignment plans were submitted and applications were made for the grant of permanent licences. Approval of the re-alignment plan was communicated and the firms were directed to take up the work of realignment as per the approved plans.
2. As large sums of money were required for undertaking the various works in accordance with the approved realignment plans and due to shortage of funds the petitioners decided to sell some of the lands covered by the licences in order to raise the required funds. The firms therefore, entered into negotiations with buyers and having entered into contracts with them were considering the execution of the sale deeds in respect of those lands. They were however, informed that under the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972 (referred to in this judgment as 'the Act'), the lands could not be alienated as the petitioners owned lands in excess of the limit specified in the Act, namely 4 hectares of wet land and 10 hectares of dry land and any document of sale could not be registered.
3. The petitioners therefore, filed this writ petition praying that this court may declare that the Act does not apply to the petitioners' lands and that a direction may be given that the sale-deeds in respect of those Lands may be registered. The case of the petitioners is that the Act applies only to lend which is used or is capable of being used for the purpose of agriculture, including horticulture. The lands which the petitioners intend to sell are lands in which salt is being produced and are neither used for the 'purpose of agriculture nor are they capable of being used for that purpose. Hence, they are free to alienate those lands and the sale deeds in respect of those lands have to be registered. Subsequently, a petition to amend the writ petition by adding paragraphs 6 (a) to 6 (e) was filed and was ordered as it was not opposed. In the amended writ petition it was contended that as the lands were actually under use for manufacture of salt they cannot be treated as agricultural lands or capable of being used for agricultural purpose, nor can they be so treated on the ground that sometime ago some of these lands were used for agriculture. Conversion of the petitioners' lands into salt lands became inescapable due to the tidal wave in the year 1963 which completely submerged these lands with sea water. It was further contended that in case the petitioners' salt lands are to be treated as agricultural lands, the definition of 'land' in the Act so as to bring within its fold 'salt lands' licenced as a salt factory under the Central Excises and Salt Act, which provides that such salt lands shall be held only for the purpose of manufacturing salt and for no other purpose, is ultra vires the State Legislature as the subject of manufacture, regulation and control of manufacture of salt is a union subject falling under Entry 52 of List I of the Constitution. The definition of 'Land' in such manner is repugnant to the Central Excises and Salt Act, 1944. The State Legislature has enacted the Act by virtue of Entry 18, List II, but as the Central Excises and Salt Act is a law enacted by Parliament under Entry 58, the State Act would be wholly repugnant to the Central Act if it should be applicable to salt lands. The definition of 'land' in the Act, in so far as it seeks to include 'salt lands' is wider and different from the expression 'agricultural land' which is the subject of Entry 18, List II and it is not open to the State Legislature to legislate with respect to lands which are not agricultural lands by merely enlarging the definition of 'agricultural land'.
4. In view of the allegations in the writ petition as subsequently amended, the following questions fall for consideration:
(1) Whether the impugned Act is within the powers of the State Legislature?
(2) If the expression 'land' is interpreted so as to include lands used for the manufacture of salt, whether the Act is to that extent repugnant to the Central Excises and Salt Act and is therefore ultra vires?
(3) Whether the lands belonging to the petitioners are lands to which the provisions of the impugned Act are applicable?
5. Before dealing with these contentions it is necessary to briefly set out the relevant provisions of the impugned Act. The impugned Act, namely. Act 13/72 was enacted with a view to prohibit alienation of agricultural lands by certain persons in the State of Andhra Pradesh.
6. Section 5 (1) is as follows:--
'No person whose holding as on the date of commencement of this Act or at any time thereafter exceeded the specified limit shall alienate such holding or any part thereof by way of sale, lease for a period exceeding six years gift, exchange, usufructuary mortgage or otherwise or effect a partition or create a trust of such holding or any part thereof and any alienation made or partition effected or trust created in contravention of this section shall be null and void.'
Section 5 (2) is in similar terms and deals with alienation by a member of a family. 'Holding' is defined in Section 3 (b) as the entire land held by a person as owner. Section 3 (c) defines 'land' as land which is used or is capable of being used for the purpose of agriculture including horticulture. Section 3 (e) defines 'specified limit' as the extent of land spec'fied in Section 4 as the specified limit. Section 4 prescribes the specified limit for the purposes of Section 5 as 4 hectares in the case of wet land and 10 hectares in the case of dry land. From a reading of these provisions together it is seen that no person whose holding exceeds 4 hectares in the case of wet land or 10 hectares in the case of dry land shall alienate such holding. The 'land' referred to is the land which is used or is capable of being used for the purpose of agriculture including horticulture. It is only such type of land that cannot be alienated. Section 6 prohibits the registration of any document relating to alienation of land contrary to the provisions of the Act. It is admitted that the petitioners' holding exceeds the specified limit referred to inSection 4. But it is contended that the land is not land which is used or is capable of being used for the purpose of agriculture including horticulture within the meaning of Section 3 (c) and hence the provisions of Section 5 do not apply to such land.
7. Dealing now with the first contention regarding the powers of the legislature to pass the impugned Act, it is seen that the Act is passed in exercise of the powers conferred under Article 246(2) of the Constitution read with List II. Entry 18. Entry 18 of List II, which is in the State List, is as follows:
'Land, that is to say, rights in or over land, Land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land, land improvement and agricultural loans colonisation,'
It is clear from this entry that the State Legislature is entitled to enact a legislation dealing with the transfer and alienation of agricultural land. The impugned Act is one prohibiting alienation of land which is defined under the Act as land used or is capable of being used for the purpose of agriculture including horticulture, if land which is defined under the Act is agricultural land within the meaning of Entry 18 there can be no doubt that it is within the competence of the State Legislature to enact the legislation in question.
8. Though the expression 'agricultural land' is not defined in the Constitution or the Government of India Act, the expression 'agricultural land' in Entry 18, List II. Schedule VII of the Constitution and the corresponding entry in the Government of India Act, 1935 have been the subject-matter of interpretation in a number of decisions. In Sarojini, Devi v. Sri Krishna, AIR 1944 Mad 401 it was held that the expression 'agricultural lands' in Lists II and III of Schedule 7 of the Government of India Act must receive the widest meaning and the expression 'agricultural lands' must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. In this connection it may be noticed that Entry 18 of List II of the Constitution corresponds to Entry 21 of List II of the Government of India Act which was the subject-matter of consideration in AIR 1944 Mad 401 (supra). In Nil Govinda Misra v. Rukmini Deby, AIR 1944 Cal 421 also it was held that the phrase 'agricultural land' in Item 21 of List II of the Government of India Act would include not only lands actually used for raising by cultivation, foodgrains and other crops, but wouldalso include Lands not being actually used and are lying waste. A piece of fallow land in the middle of agricultural fields would have to be taken as agricultural land, for it is capable of being brought under tillage and would in all probability be brought under tillage. Land so used or land though lying unused, but capable of being used; having regard to its general nature and character, for raising food for men and beasts, foodgrains and vegetables and fodder etc. Should be regarded as agricultural lands. In Court of Wards Paigah v. Commr. of Wealth Tax, : 72ITR552(AP) (FB) a Full Bench of this court had to consider the meaning of the words 'agricultural Land' in the Wealth Tax Act. It held that it should be given the same meaning as the said expression bears in Entry 86 of List II of the Constitution and given the widest meaning. Approving the decision in AIR 1944 Mad 401 (supra) it was held that land which is left barren but which is capable of being cultivated can also be 'agricultural land'. It was observed that every land which is presently or prospectively capable of cultivation, can be said to be 'agricultural land.'
9. It is clear from the aforesaid decisions that the expression 'agricultural land' as used in the Constitution and in the Government of India Act of 1935 has been interpreted as including land not only used for agriculture, but also land capable of being used for agriculture. The definition of 'land' in the impugned Act is in consonance with the interpretation given to 'agricultural land' by the above decisions.
10. It is true that when a legislature is empowered to enact legislation with respect to a particular subject mentioned in the list it cannot enlarge its powers by giving its own definition. It was held in State of Madras v. Gannon Dunkerley & Co. Ltd,, : 1SCR379 that in Entry 48, List II, Schedule 7 of the Government of India Act, 1935, the State Legislature had power to legislate with respect to tax on sale of goods and the legislature cannot enlarge its power by denning 'sale' so as to include 'a works contract' which does not amount to a sale and hence the Madras General Sales Tax (Amendment) Act. 1947 defining a sale to include 'a works contract' was ultra vires. Similarly, it was held in Diamond Sugar Mills Ltd. v. State of Uttar Pradesh, : 3SCR242 that the U. P-Sugarcane Cess Act, 1956 which authorised the State Government to impose a cess on the entry of cane into the premises of a factory for use, was beyond the competence of the legislature as the premises of the factory was not a local area with-in the meaning of Entry 52, List II, Schedule 7. Again, in Gulabbhai v. Union of India, : 1SCR602 it was held that the definition of 'land' in Section 2 (a) of the Daman (Abolition of Proprietorship of Villages) Regulation (7 of 19&2), was wider than definition of 'estate' in Article 31A and hence, being at variance with definition of 'estate' cannot stand with it. If, therefore, the definition of 'land' in the impugned Act is at variance with the meaning of 'Agricultural Land' in Entry 18 of List II. Schedule VII it would no doubt follow that such a definition would be ultra vires the powers of the State Legislature. But in this case, it is seen that the definition of 'land' in the impugned Act is in consonance with the meaning given to the expression 'agricultural land' in Entry 18 in the decisions of the various courts referred to above. We are therefore, of the view that the contention that the Act is ultra vires the State Legislature cannot be accepted.
11. The next submission is that the provisions of the impugned Act are repugnant to the Central Excises and Salt Act if the expression 'land' is construed so as to include lands in which salt is being manufactured.
12. It was argued that in such an event prohibition of alienation of such land would seriously interfere with the manufacture and production of salt. As the Central Legislature has already legislated on the subject, regulation and control of manufacture, supply and distribution of salt under Item 58 of List I, it is not open to the State Legislature to legislate so as to interfere with the powers of the Central Legislature. Reference is also made to certain rules in the Central Excise Rules, 1944. Under Rule 102 no salt shall be manufactured and no natural salt and except under the provisions of Rule 106, no salt-earth shall be excavated or collected or removed, otherwise than by the authority and subject to the terms and conditions of a licence to be granted by the Collector, Under Rule 112 salt works for which licences have been cancelled or relinquished shall be at the disposal of the Collector who shall determine whether the salt works shall be retained with the factory or not. If the Collector directs that the salt works shall be retained within the factory, the proprietary right of other persons therein, if any, shall thereupon vest in the Government and the Collector shall pay the value of such proprietary right to the licensee. Under Rule 130, if the licensee fails to execute the works or whenever it appears desirable that any such work should be undertaken by the Central Excise Department, the Collector may cause such works to be executed. Itwas therefore., argued that if the petitioners are prevented from alienating the lands, it will not only interfere with their right to manufacture salt but also with the right of the Central Government under the Act. We are unable to see how the impugned Act in any way impinges on the Central Government's power to regulate and control the manufacture and production of salt. It merely prohibits the owner from alienating the lands. The power of the Central Government to regulate and control the manufacture of salt is untouched. Even assuming that the prohibition of alienation has to some extent the effect of interfering with the production, and manufacture of salt or the Central Government's power to regulate and control such manufacture and production, we do not agree that the definition of 'land' in the impugned Act is ultra vires for that reason.
13. The pith and substance of the impugned legislation is to prohibit transfer of agricultural lands. This falls squarely within Item 18 of List II, Schedule VII and hence the State Legislature is entitled to enact that legislation. Even assuming in some respects it affects the Central Legislation namely the Salt Act, it cannot in any way render the State Act ultra vires. Once a law 'in pith and substance' falls within a legislative entry, an incidental encroachment on an entry in another List does not affect its validity. In Prafulla Kumar v. Bank of Commerce Ltd., Khulna, (1947) 74 Ind App 23 = 1947 FCR 28 = (AIR 1947 PC 60), the Privy Council held that the Bengal Money Lenders Act, 1940 was in pith and substance a law in respect of 'money lending and money lenders' (Entry 27, List II of the Government of India Act) and was valid even though it trenched incidentally on 'promissory notes' and 'banking' (Entries 28 and 38 respectively of List I). In the recent decision of the Supreme Court in K. D. H. P. Co. v State of Kerala, : 1SCR356 dealing with Kannan Devan Hills (Resumption of Lands) Act it was held by the Supreme Court that the State had legislative competence to legislate on Entry 18, List II, and Entry 42, List III. This power cannot be denied on the ground that it has some effect on an industry controlled under Entry 52, List I. It was observed that effect is not the same thing as 'subject-matter'. If a State Act otherwise valid, has effect on a matter in List I it does not cease to be a legislation with respect to an entry in List n or List III. This decision, in our view, applies to the facts of this case. The mere fact that the impugned legislation would have the effect of preventing the persons carryingon business of manufacture of salt, fromalienating their lands and thus affect to some extent the regulation, manufacture and control of salt under the Salt Act passed by the Central Legislation, would not make the State Legislation ultra vires. This contention is also therefore, negatived.
14. Lastly it is contended that the petitioners' lands are not lands used or capable of being used for agriculture and therefore the act is not applicable to them. It is seen that the land in question was not used for the purpose of agriculture on the date when the Act came into force, namely 2nd May, 1972. By that time, the lands had been converted into salt pans and salt was being manufactured on the said lands. Licences had been obtained for the purpose of manufacture and the provisions of the Salt Act prevented the petitioners from using the lands for any purpose other than the purpose of manufacture of salt. It is therefore clear that the land cannot be said to be land used for the purpose of agriculture within the meaning of the first part of Section 3 (c). It was however, contended on behalf of the respondents that it is capable of being used for the purpose of agriculture. It is submitted that though the land was inundated by sea water and was therefore converted into salt pans, it can still be used for purpose of agriculture at any time when the petitioners desire to do so. It may be that during the time when they hold a licence for the purpose of manufacture of salt they are prevented from using it for any purpose other than manufacture of salt. But it is always open to the petitioners to desist from manufacturing salt and use the land for the purpose of agriculture. The petitioners on the other hand contend that the land is not capable of being used for the purpose of agriculture. They rely upon condition 4 of the conditions of licence which says that the licensee shall not use the land for any purpose unconnected with the manufacture and storage of salt. It is further submitted that after the land is used for the purpose of manufacture of salt it would require enormous amount of money and effort to bring the land to cultivation.
15. It is therefore, necessary to consider what is the meaning of the expression 'capable of being used' for the purpose of agriculture. In : 72ITR552(AP) (FB) fsupra) it was observed as follows:
'Every land which is presently or prospectively capable of cultivation can be said to be 'agricultural land'. If it is shown that the land is actually cultivated either presently or in the immediate past or if it is shown that it is lying fallow, but is capable of being cultivated,so long as the land has not been actually diverted to purposes other than agricultural purposes by construction of buildings thereon and other operations which render the land itself incapable of being cultivated without undertaking some other operations for making it fit for carrying on agricultural operations, it can be said to answer the description, of agricultural land in its widest significance,'
Again at page 355 summarising the position it is said:
'(1) The words 'agricultural land' occurring in Section 2(3)(i) of the Wealth Tax Act should be given the same meaning as the said expression bears in Entry 86 of List I and given the widest meaning;
(2) The said expression not having been denned in the Constitution, it must be given the meaning which it ordinarily bears in the English language and as understood in ordinary parlance;
(3) The actual user of the land for agriculture is one of the indicia for determining the character of the land, as agricultural land;
(4) Land which is left barren but which is capable of being cultivated can also be 'agricultural land' unless the said land is actually out to some other non-agricultural purpose, like construction of buildings or an aerodrome runway etc. thereon, which alters the physical character of the land rendering it unfit for immediate cultivation;
(5) If land is assessed to land revenue as agricultural land under the State Revenue Law, it is a strong piece of evidence of its character as agricultural land;'
(Nos. 6, 7 and I are omitted as they are unnecessary.)
Though some of the considerations which should weigh in deciding whether a land is capable of being used for the purpose of agriculture are set out in the above decision it is difficult to lay down precisely the various circumstances in which it can be held that a land is one which is capable of being used for the purpose of agriculture. That would depend upon the facts and circumstances of each case. It was sought to be argued by the learned counsel for the petitioners that it is only in case where the land is kept fallow it can be said to be capable of being used for the purpose of agriculture. If it is already converted for use other than agriculture it ceases to be a land which is, capable of being used for the purpose of agriculture. We are unable to agree withthis contention. Even if a land is being used for purposes other than agriculture it is possible that it can again be usedfor the purpose of agriculture. In our view 'capable of being used' means reasonably capable of being used. If it is capable of being used without incurring large expenditure out of proportion to the value of the land, taking into account the purpose to which it has to be put to use, or without much effort on the part of the petitioners it can be said to be a land which is capable of being used. On the other hand, if it involves enormous expenditure or effort, though in theory it may be possible to put it to agriculture use it cannot be said by any' reasonable person that it is capable of being put to Agricultural use. Bearing these principles in mind it has to be decided in each case whether a land is capable of being used for the purpose of agriculture. We are not inclined to agree with the petitioners' contention that merely because one of the conditions of the licence that the land should not be used for any purpose other than manufacture and storage of salt it must be held that the land is not capable of being used for agriculture. That condition subsists only during the period of the licence. In this particular case it may be noted that the licence is only from year to year though, of course, it was intended that the permanent licence would be granted after the approval of the realignment plans. But on the date on which the Act came into force there was no permanent licence in favour of the petitioners. It was contended on behalf of the Government even if there was a permanent licence the land is still capable of being used for the purpose of agriculture in future. For instance, if the licence is cancelled or if the licensee gives up manufacture of salt under the licence. It is however, unnecessary for us to go into that question in this writ petition. We may also point out that the learned Advocate-General sought to contend that as the land was registered as agricultural land in the revenue records, it must be deemed to be a land which is capable of being used for the purpose of agriculture. We do not agree with this contention. The mere fact that a land is entered in the Revenue Record as agricultural land is not determinative of the question whether it is capable of being used. It may be one of the factors in considering the question whether it can be treated as 'capable of being used for agriculture'. But it is not difficult to imagine cases where lands though entered in Revenue Records as agriculture lands have keen diverted for other purposes like building purposes and thereafter they have become incapable of being used for agricultural purposes. Ittherefore, depends upon the facts of each case as to whether a land is capable of being used for agricultural purpose or not. This is a question of fact which cannot be properly decided in a writ petition. The proper remedy for the petitioner is to institute a suit in a civil court for a declaration that the Act is not applicable to his lands as the lands are not capable of being used for agricultural purposes. There was a discussion as to whether the burden of proof lies upon the petitioners to show that the lands are not capable of being used for agricultural purposes and hence the provisions of the Act are not attracted or whether the burden of proof lies upon the parties who seek to apply the provisions of the Act to the petitioners to show that the lands are capable of being used for agricultural purpose and thus fall within the net of the enactment. It is unnecessary for us to express any opinion on this question at this stage.
16. The writ petition is dismissed for the reasons above stated with costs.