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Krishnadas Vithaldas Sanjanwala Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR244
AppellantKrishnadas Vithaldas Sanjanwala
RespondentThe State of Gujarat and ors.
Cases ReferredSwadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal
Excerpt:
- - the preamble also states that it is expedient for securing the distribution of agricultural lands as best to sub-serve the common good to provide for the acquisition of surplus agricultural lands for allotment thereof to persons who are in need of land for agriculture and to provide for other consequential and incidental matters. section 11, and 16 provide penalties for failure, without reasonable cause, to furnish a statement or for furnishing an incorrect statement and direct the tribunal to take proceedings in the matter. 'that section confers power upon the tribunal to so hold if it is satisfied that there has been a breach of section 9. chapter iv contains provisions regarding the acquisition of land in certain special cases. 6. from the aforesaid provisions, it is quite clear.....n.m. miabhoy, j.1. this is a group of twenty-three writ petitions in which a common question of law arises for decision. these petitions challenge the declarations made by the state of gujarat in exercise of the power conferred upon it by clause (f) of explanation to sub-section (6) of section 2 of the gujarat agricultural lands ceiling act, 1960, (hereafter called 'the act') in regard to certain lands belonging to petitioners. the lands with which the writ petitions are concerned are situated in three talukas of the state. four of the writ petitions relate to lands situated in pardi taluka, nine relate to lands situated in umbergaon taluka and the remaining ten relate to lands situated in bulsar taluka. the landholders in two writ petitions had filed statements under section 10 of the.....
Judgment:

N.M. Miabhoy, J.

1. This is a group of twenty-three writ petitions in which a common question of law arises for decision. These petitions challenge the declarations made by the State of Gujarat in exercise of the power conferred upon it by Clause (f) of Explanation to Sub-section (6) of Section 2 of the Gujarat Agricultural Lands Ceiling Act, 1960, (hereafter called 'the Act') in regard to certain lands belonging to petitioners. The lands with which the writ petitions are concerned are situated in three talukas of the State. Four of the writ petitions relate to lands situated in Pardi taluka, nine relate to lands situated in Umbergaon taluka and the remaining ten relate to lands situated in Bulsar taluka. The landholders in two writ petitions had filed statements under Section 10 of the Act and their cases were decided under the provisions of the Act. In regard to the other land-holders, no statements were filed by the land-holders under that section of the Act. This was not done by those land-holders on the ground that the lands possessed by them were all below the ceiling areas. Section 2(6), Clause (f) of Explanation of the Act empowers the Government to express an opinion that grass land of the kind referred to in that Explanation is land fit for cultivation of rice and on the expression of such an opinion, grass land would be of the category of rice land and the ceiling area correspondingly would change. In regard to some of the lands held by petitioners, such opinions were expressed by the State Government on different dates ranging between 2nd December 1964 and 15th March 1965. By those declarations, the Government expressed the opinion that the lands referred to in the declarations were fit for rice cultivation. On these declarations being made, proceedings for determination of the surplus lands in the hands of twenty-one petitioners were started and the orders already passed in regard to the land-holders in the other two petitions were set aside by the revising authority and fresh proceedings were started against those two land-holders. All the landholders contested the proceedings urging that they were not holders of surplus lands. The Agricultural Lands Tribunal (hereafter called 'the Tribunal') held in all the aforesaid cases that petitioners herein were holders of surplus lands in regard to certain areas. This was done mainly on the basis that the grass lands which they held at the date of the commencement of the Act became rice lands in their hands on the issue of the aforesaid declarations of the Government that they were fit for rice cultivation. It is common ground that the orders that petitioners were holders of surplus lands were all based on the aforesaid declarations of the Government under Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act and that, but for the latter declarations, none of the petitioners holders of surplus lands or holders of such lands to the extent mentioned in the final orders passed by the Tribunal. Against these orders, land-holders preferred appeals to the Collector. Whilst these appeals were pending, petitioners filed the present petitions. As already stated, all these petitions are directed against the aforesaid declarations of the Government made under Clause (f) of the Explanation to Section 2(6) of the Act. Therefore, the question which arises for decision in these twenty-three petitioners relates to the validity of the declarations made by the State Government.

2. Mr. Nanavati with Mr. B.J. Shelat and Mr. S.H. Sanjanwala appears in two of the petitions and Mr. B.J. Shelat appears with Mr. S.H. Sanjanwala in the rest of the petitions-all on behalf of petitioners. The petitions in which Mr. Nanavati appears were argued at length and Mr. B.J. Shelat adopted all the arguments of Mr. Nanavati in the other petitions.

3. It will be convenient, at first, to state the submissions which were made by Mr. Nanavati on the basis of which he prayed for the issuance of the writs prayed for. At the commencement of his arguments, Mr. Nanavati formulated the following three submissions:

(i) The opinion formed by the State Government under Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act should have been formed before or on the appointed day, that is, the day on which the Act came into operation or at least before the expiry of the period of ninety days laid down in Section 10 of the Act for submitting particulars by owners of lands and any opinion formed by the State Government after the aforesaid period or periods is totally ineffective.

(ii) Before making the impugned declarations, the State Government-the first respondent-has not applied its mind to determine for itself the question whether grass lands are or are not fit for cultivation of rice, and,

(iii) the provision contained in Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act, which leaves the State Government to determine subjectively an objective fact is ultra vires the power of the State Legislature and, therefore, void.

We may at once state that, in the course of the arguments, the third submission was given up and two new versions alleged to be alterations of that submission were put forward but ultimately, after the learned Advocate General had commenced his arguments, even the changed versions of the third submission were finally given up by Mr. Nanavati. In the course of his arguments on the third submission, Mr. Nanavati did not justify the third submission as formulated by him. Instead, he formulated the following new submissions:

On a true construction of Clause (6) of Explanation to Sub-section (6) of Section 2 of the Act, power conferred on the State-Government was in the nature of delegated legislation and as the scheme of the Act centres round the 'appointed day', the power could only be exercised on the 'appointed day'.

After so formulating the third submission, Mr. Nanavati went on to formulate the same over again in the following manner:

The provision contained in Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act being in the nature of a piece of delegated legislation, the same can be upheld only if the Legislature lays down the legislative policy and that, as the same was not done, the provision was, in law, ineffective.

When the learned Advocate-General commenced his arguments, he started on the basis of the admission made by Mr. Nanavati in the above submissions that the power given to the State Government under Clause (f) of Explanation to Section 2(6) of the Act was in the nature of delegated legislation and he contended that, on that admission, he was entitled to argue that the power so conferred could be exercised by the State Government at any time and had to be given effect to by the authorities appointed under the Act as a piece of delegated legislation. The moment the learned Advocate-General adopted this line of argument, Mr. Nanavati stood up and stated that he had formulated the last two altered submissions under a misapprehension and that he wished to withdraw the implication in the aforesaid altered submissions, viz., that the provision was a piece of delegated legislation. As a result, Mr. Nanavati conceded that he did not wish to pursue the last two altered submissions as they were based on the assumption that the aforesaid provision was a piece of delegated legislation. Under the circumstances, the main third submission and the two alterations thereof do not arise at all for our consideration. We may mention that Mr. Nanavati whilst arguing the second altered submission also had conceded that petitioners had not taken up that contention in their petitions and that as the law permits the State Government to prove by evidence aliunde that the Legislature had formulated a legislative policy, the respondent would be prejudiced inasmuch as they would not have an opportunity to show that such a legislative policy was formulated and, therefore, on that ground also, he did not pursue the second altered submission formulated by him. In view of the aforesaid course which the arguments of Mr. Nanavati took, it is not necessary for us to consider the third submission or its two alterations any further. Therefore, -there are only two submissions as formulated above, which require the decision of this Court.

4. Now, as we shall presently point out, the main dispute which is raised in the present petitions is about the time when the State Government can express the opinion that grass lands are rice lands under Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act so as to promote grass land from the category of dry crop land to the category of rice land for the purposes of the Act. It is this central question which is raised for our decision and which requires our consideration. All the various contentions of the parties were urged either for or against the aforesaid proposition. In the submission of Mr. Nanavati, the power under Section 2(6), Explanation (f) of the Act can be exercised by the State Government before corning into operation of the Act and not thereafter. Alternatively, he submits that that power, if at all it could be exercised after the coming into operation of the Act, could be exercised only on the 'appointed day'. Still alternatively, he submits that even if the 'appointed day' is not the last day on which the power could be exercised, the power, at the most, can be exercised only upto the expiration of the period of ninety days prescribed by Section 10 of the Act for submission of particulars by holders of lands. On the other hand, the contention of the learned Advocate-General on behalf of the respondents is that the aforesaid power can be exercised by the State Government at any time and that the utmost that can be said as a result of reading of all the provisions of the Act is that that power cannot reach those cases which had come to be decided by the Tribunals concerned and which cases could not be reopened by the higher authorities competent to revise the orders of the Tribunal under the provisions of the Act. The learned Advocate-General submits that, in regard to twenty-one cases, power had been exercised by the State Government before any orders were passed by the Tribunals concerned and in regard to two cases, power was exercised after re-opening the cases which had been decided, the re-opening having been done by competent authorities.

5. In order to understand and appreciate the various arguments which were advanced at the bar, it is, first of all, necessary to read a few provisions of the Act and to understand the object and the scheme of the Act in regard to the determination of surplus lands. Therefore, at first, we propose to read a few sections from the Act. The preamble implies that, in the State of Gujarat, there were already areas in which restrictions had already been imposed upon holding of agricultural lands in excess of certain limits and says that it is expedient to make a uniform provision for the whole of the State of Gujarat in regard thereto. The preamble also states that it is expedient for securing the distribution of agricultural lands as best to sub-serve the common good to provide for the acquisition of surplus agricultural lands for allotment thereof to persons who are in need of land for agriculture and to provide for other consequential and incidental matters. The Act was passed on 15th June 1961. It was, however, to come into operation on such date as the State Government might by notification in the Official Gazette, appoint. Such a notification was issued by the State Government on 18th August 1961 and the date which was fixed by the State Government for the coming into -operation of the Act was 1st September 1961. Therefore, it is common ground that the Act, though passed on 15th June 1961, came into operation only on 1st September 1961. In Section 2, Sub-section (4) of the Act, this is described as the 'appointed day'. Section 2(5) defines a 'ceiling area' as meaning the extent of land determined under Section 5 to be the ceiling area Section 2, Sub-section (6) defines the 'class of land' as meaning any one of four classes of lands and these four classes are (i) perennially irrigated land; (ii) seasonally irrigated land; (iii) dry crop land; land (iv) rice land. There is an Explanation attached to this Sub-section (a) and the Explanation contains Clauses (a) to (f). The Explanation says that the Explanation in regard to each one of these clauses is given for the purposes of the Act. Clauses (a), (b), (c) and (d) give explanations in regard to irrigated land, perennially irrigated land, seasonally irrigated land and rice land respectively. Then there is an explanation regarding the dry crop land and that explanation is in following terms:

(e) dry crop land means land other than perennially or seasonally irrigated or rice land and includes grass land, that is to say, land which abounds in grass grown naturally and which is capable of being used for agricultural purposes.

Thereafter conies Clause (f) of the Explanation which calls for our construction and that clause is as follows:

(f) grass land referred to in paragraph (e) shall, notwithstanding anything contained in that paragraph, be deemed to be rice land, if it is situated in a local area referred to in Clause (d) and in the opinion of the State Government it is fit for the cultivation of rice.

The local area which is referred to in Clause (d) is an area 'where the average rainfall is not less than 35 inches a year, such average being calculated on the basis of the rainfall in that area during the five years immediately preceding the year 1959'. Section 2, Sub-section (13) defines an 'exempted land' as meaning land exempt from the provisions of the Act under Section 3. Section 2(15) defines the expression 'to hold land' as meaning, with its grammatical variations and cognate expressions, to be lawfully in actual possession of land as owner or tenant, as the case may be. 'Land' is defined in Section 2(17) as meaning land which is used or capable of being used for agricultural purposes and includes the sites of farm buildings appurtenant to such land. Then comes the definition of the expression 'surplus land' in Section 2(28) and the definition is that 'surplus land' means land which is deemed to be or declared to be surplus land under the provisions of the Act. As already indicated, Section 3 enumerates the kinds of lands which are exempt from the provisions of the Act. It is not necessary for the purposes of the present petitions to go into the details of those exempted lands. Then comes two sections in Chapter II under the heading 'Ceiling Area'. They are Sections 4 and 5. Section 4 says that there shall be classes of local areas in the State as specified in Schedule I and the local areas falling in each such class shall be as respectively specified in Schedule II. Schedule I divides classes of local areas in the State into nine classes designated as Classes 'A' to T and Schedule II contains an exhaustive list of local areas which fall within those classes. Section 5, sub-section (1) says that 'Subject to the provisions of Sub-sections (2) and (3), in relation to each class of local area as specified in Schedule I, the ceiling area with reference to each class of land shall be as specified in the said Schedule against the respective class of local area. 'For example, in regard to class 'A' of local area, the ceiling area in regard to dry crop land is mentioned as 56 acres that in regard to rice or paddy land is mentioned as 38 acres, that in regard to sesonally irrigated land is mentioned as 38 acres, and in regrd to perennially irrigated land is mentioned as 19 acres. In regard to class 'I' the celing area in regard to the aforesaid classes of lands is mentioned respectively as 132, 88, 88 and 44 acres. Broadly speaking, the ceiling area in regard to each class of local area is the same in regard to rice and seasonally irrigated lands and the proportion of each class of land in each class of local area is 1 : 2 : 3 in regard to perennially irrigated lands, seasonally irrigated and rice lands, and dry crop lands respectively. Sub-section (2) of Section 5 of the Act makes a provision for fixing the ceiling area in regard to a person who holds land consisting of different classes, but in the same local area. It directs that the acreage of each class of land held by such person shall be converted into the acreage of dry crop land and the ceiling area in regard to land of such a person shall be determined on that basis. Sub-section (3) of Section 5 deals with a person who holds land, whether consisting of different classes of land or not, in different classes of local areas. It says that the acreage of each class of land held by the person in each class of local area shall be first converted into the acreage of dry crop land in that local area in accordance with sub-section (2) and the total acreage so arrived at shall be expressed in terms of a multiple or as the case may be, a fraction of such ceiling area. It further directs that the multiple or fraction so expressed in the case of each of the local areas shall be added together, and such a person shall be deemed to hold land less than, equal to, or more than, the ceiling area according as the sum total of the multiples and fractions is less than, equal to, or more than, one. Then comes Chapter III which deals with the fixation of ceiling on holding land, determination of surplus land and acquisition thereof. Sections 6 to 9 are general sections. Section 6 provides that no person shall be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area. Sub-section (2) of Section 6 provides that when a person is a member of a family, not being a joint family, then the lands held by his or her spouse or his or her minor children shall be grouped together for the purposes of the Act and that the provisions of the Act shall apply to the total lands grouped together as if such lands had been held by one person. Sub-section (3) of Section 6 provides that where on the appointed day, a person holds exempted land along with other land, then, if the area of exempted land is equal to or more than the ceiling area, he shall not be entitled to hold other land; and if the area of exempted land is less than the ceiling area, he shall not be entitled to hold other land in excess of the area by which the exempted land falls short of the ceiling area. Then comes Sub-section (4) of Section 6. It says that 'Land which under the foregoing provisions of this section a person is not entitled to hold shall be deemed to be surplus land held by such person.' Section 7 prohibits land from being transferred or sub-divided after the appointed day except with the permission in writing of the Collector. Sub-section (2) of Section 7 directs Collector to refuse permission if in his opinion the transfer or sub-division of land is likely to defeat the object of the Act. Sub-section (3) states that in computing the area of surplus land, if any, held by a person, the transfer, or sub-division of land made by or on behalf of, such person in contravention of Sub-section (1) shall be ignored. Sub-section (4), however, states that the aforesaid provisions of the section shall not apply 'to a person who holds land not exceeding the ceiling area'. Section 8 deals with transfers and partitions effected between 15th January 1959 and the commencement of the Act. It says that all such transfers and partitions 'shall be deemed to have been made in anticipation in order to defeat the object of this Act'. The section also provides for getting an order from the Collector that the transfer or partition was not made to defeat the object of the Act and confers powers on the Collector to make an order to that effect. Sub-section (4) of Section 8 says that where a transfer or a partition is not held by the Collector as not defeating the object of the Act, then, such a transfer or partition 'shall be ignored in computing under this Act the area of surplus land, if any, held by such person.' Section 9 deals with also transfers after the appointed day. It also deals with acquisition of land by succession or partition after the appointed day. It also deals with cases where exempted lands become non-exempted after the appointed day. The section says that if, as a result of the acquisition of lands or conversion of exempted lands into non-exempted lands, the total land held by a person exceeds the area which he is entitled to hold under Section 6, then, if the acquisition of such excess land was otherwise than by succession or partition, it shall be invalid and the excess land shall be forfeited to the State Government, and if the acquisition was by succession or partition or the excess was due to the land ceasing to be exempted land, the excess land shall be deemed to be surplus land held by such person. It is not disputed that Sections 6 to 9 are more or less of permanent duration and operate after the appointed day. Then there are Sections 10 to 22 which, broadly speaking, deal with the mode of the fixation of the ceiling area and the determination of the surplus land and land which the land-holder is entitled to retain as a result of the determination of the surplus land. Section 10 casts a duty upon every land-holder possessing land in excess of the ceiling area to file a true statement specifying certain particulars within ninety days from the appointed day. Sub-section (2) of Section 10 casts a duty upon the Mamlatdar to forward such statements to the Tribunal which is defined in the Act as meaning the Agricultural Lands Tribunal constituted for any area under the relevant tenancy law and, where there is no such tenancy law, such officer, not below the rank of a Mamlatdar, as the State Government may appoint. Rule 7 of the Gujarat Agricultural Lands Ceiling Rules, 1961, (hereafter called 'the Rules'), framed under Section 53 of the Act, enjoins on the Mamlatdar the duty of furnishing to the Tribunal along with the aforesaid statements information in Forms III-A and HI-B. Form III-A prescribes information relating to the land holding of a land-holder either as an owner or as a tenant or as a member of a family, not being a joint family, and enjoins on the Mamlatdar to state the ceiling area in his jurisdiction and the area of land deemed to be surplus land under Section 13. This Form is to be used when the lands of a land-holder are situated in one class of local area. Form III-B prescribes for furnishing of information in regard to a land-holder who holds land in different classes of local areas and enjoins on the Mamlatdar to mention the multi-pie of fraction of the ceiling area to be calculated in accordance with Section 5 of the Act in respect of each class of local area. Section 13 of the Act enjoins on the Tribunal to prepare a list of persons holding surplus land on the basis of the statements of the land-holders and the other records supplied by the Mamlatdar. The Tribunal is required to specify in the list (a) the total land held by each person, (b) the maximum area of land which such person is entitled to hold, and (c) the extent of land to be deemed to be surplus land held by such person. Section 15 of the Act provides for the compulation of total and surplus lands on the appointed day. It provides that, in computing the total land, the share of a land-holder in land belonging to a joint family of which he is a member shall be included. It also says that a land transferred or sub-divided in contravention of Section 7 or a land transferred between 15th January 1959 and the commencement of the Act and in regard to which a declaration has not been made under Section 8, shall also be included in the total area of land to be computed for a land-holder. Section 17 provides for the mode of allocating surplus land in a case wherein transfers have taken place in contravention of Sections 7 and 8. It enjoins that, in such a case, the surplus land shall be allocated in a certain way. It says that if the total land excluding the land transferred in contravention of the aforesaid two sections is more than or equal to the extent of the surplus land, then, the surplus land shall come out of the total land, and if the total land is not in excess of the surplus land, then the surplus land shall come out of the whole of such total land, and the remainder shall come out of the land transferred in contravention of Section 7 and the balance, if any, shall lastly come out of the land transferred in contravention of Section 8. Section 20 enjoins on the Tribunal to publish a general notice of the list and to serve an individual notice in regard to each holder of surplus land. The latter is required within thirty days from the service of the notice to make a selection of the land which he intends to retain in accordance with the priorities laid down in Sub-section (3) of Section 20. Lastly comes the important Section 21. That section directs that the Tribunal, after taking into consideration the objections and suggestions, if any, received and the particulars, if any, furnished under Section 20, and making such further inquiry, if any, as it thinks fit, shall make in respect of each holder of surplus land an order declaring in particular - (i) the total land held by him on the appointed day, (ii) which land out of the total land is surplus land, and (iii) which land out of the total land he is entitled to hold, and directs that order shall be communicated to the land-holder. Section 12 provides that all surplus lands shall be deemed to be needed for a public purpose and may be acquired by the State Government in accordance with the provisions of the Act. Sub-section (2) of Section 21 of the Act. provides that an order made under sub-section (1) shall be conclusive evidence that the surplus land specified therein is needed for a public purpose and such surplus land shall, subject to the provisions of Section 19 and of Chapter VI, vest in the State Government free from all encumbrances with effect from the date of the order. Sections 19 provides for the restoration of surplus land held by a tenant to his landlord, and Chapter VI provides for, inter alia, appeals and revision. Section 22 provides for the publication of a public notice to be given to each village calling upon persons to lay claim for consideration under Section 19 and to claim compensation for all interests in land. Section 11, and 16 provide penalties for failure, without reasonable cause, to furnish a statement or for furnishing an incorrect statement and direct the Tribunal to take proceedings in the matter. Section 14 determines, in, cases where the lands held by a person happen to fall in different areas, the authority who shall decide as to which Tribunal shall deal with the case of the land-holder. Then conies Sections 23 to 25. These sections provide for the determination of the quantum of compensation for the surplus lands and its distribution and payment of the compensation amount. In Section 24, Sub-section (6), it is provided that if the surplus land has to come out of lands hit by provisions contained in Sections 7 and 8, 'the transferee shall be entitled, out of the amount of compensation, to the amount of the consideration paid by him to the transferor and if the amount of compensation is less than the amount of such consideration, the transferee shall be entitled to recover the remaining sum from the transferor.' Section 26 provides for institution of enquiries in respect of lands held in contravention of Section 9. It directs that the Tribunal, suo motu or on an application made to it by any person, shall issue a notice in case a breach under Section 9 is brought to its notice, calling upon the person concerned to show cause within one month from the date of the service of the notice 'why the acquisition of such excess land should not be declared to be invalid or, as the case may be, why the excess land should not be declared to be surplus land. 'That section confers power upon the Tribunal to so hold if it is satisfied that there has been a breach of Section 9. Chapter IV contains provisions regarding the acquisition of land in certain special cases. It is not necessary to notice these provisions in detail as they do not throw any light on the question to be decided in these petitions. For similar reasons, it is also not necessary to notice the provisions contained in Chapter V which deal with the allotment of lands which vest in the State Government under the provisions of the Act. Broadly speaking, that Chapter provides for the allotment of surplus lands and other lands acquired by Government under the provisions of the Act in certain order of priorities and confers power upon the Mamlatdar to grant temporary leases in connection with surplus lands before they come to be allotted to the persons concerned. Section 30 places restrictions upon transferees from Government which would avoid contravention of the provisions of the Act. Then comes Chapter VI which deals with procedure, appeals and revision. Sections 32, 34 and 35 are procedural sections. Section 35 confers a right of appeal to the Collector against the orders of the Mamlatdar of the Tribunal other than orders awarding compensation. Sub-section (5) of Section 35 deals with the powers of the appellate authority and says that the Collector may confirm, vary or reverse orders appealed against or may direct such further investigation to be made, or such additional evidence to be taken, as he may think necessary; or may himself take such additional evidence or may remand the case for disposal with such directions as he may think fit. Section 37 deals with Collector's power of revision. It provides that, where no appeal has been filed within the prescribed period, the Collector may suo motu or on a reference made in this behalf by the Commissioner or the State Government, call for, the record, inter alia, of the Tribunal other than the proceedings for an award for the purpose of satisfying himself 'as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be', and pass such order thereon as, he deems fit. The proviso to Section 37 says that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. Section 38 confers revisional jurisdiction upon the Gujarat Revenue Tribunal in regard to orders passed by the Collector and provides for the grounds on which such orders can be revised. Section 47 bars the jurisdiction of civil courts to settle, decide or deal with any question which is, by or under the Act, required to be settled, decided or dealt with, by the Mamlatdar, Tribunal, Collector, Commissioner, the Gujarat Revenue Tribunal or the State Government. Section 48 provides that all inquiries and proceedings before the aforesaid officers shall be deemed to be judicial proceedings within the meaning of certain sections of the Indian Penal Code. Section 52 enacts that in all matters connected with the Act, the State Government shall have the same authority and control over the aforesaid authorities acting under the Act as they do in the general and revenue administration. Section 53 confers power upon the State Government to make rules for the purposes of the Act. 6. From the aforesaid provisions, it is quite clear that the object of the Act is primarily to determine the surplus lands in the hands of landholders and to provide for the acquisition and distribution of these surplus lands so as to subserve the common good of the community. It is also quite clear from the aforesaid provisions that, in order that the surplus lands may be determined, Legislature has provided for a ceiling area. Though the ceiling area differs in different regions, Legislature itself has provided as to what that ceiling area shall be in respect of each region. The ceiling area differs from region to region. The ceiling area is also made dependent upon the class or the category of land which a landholder possesses, and, for the purposes of the Act, the land in the State has been divided into four classes or categories. These categories are (i) perennially irrigated land, (ii) seasonally irrigated land, (iii) rice land, and (iv) dry crop land. The Act further provides for the conversion of each of the aforesaid categories of land in terms of the dry crop land for the purpose of determination of the surplus land in the hands of each land-holder. From the above provisions, therefore, it is quite clear that in regard to the first two categories of lands mentioned above, the Legislature itself has made fullest provision as to what should be the ceiling area in different regions of the State and a Tribunal entrusted with the duty of determining surplus land will find no difficulty whatsoever in performing its duty. In regard to lands belonging to the categories of dry crop lands and rice lands also, ordinarily, there will be no difficulty in that regard. However, in regard to grass land, the Tribunal will have to decide whether it should be retained in the category of dry crop land or that of rice land. Now the definition of dry crop land in Explanation (e) to Section 2(6) of the Act shows that it is residuary land, i.e. it is land other than perennially irrigated, seasonally irrigated and rice lands. But that definition of dry crop land also includes a special type of land which is called grass land and the definition says that the dry crop land 'includes grass land, that is to say, land which abounds in grass grown naturally and which is capable of being used for agricultural purposes'. Therefore, ordinarily grass land would be dry crop land within the meaning of the Act. But the Act also makes provision for promotion of grass land to the category of rice land and that is provided for in Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act. A reading of that Clause (f) shows that grass land of the kind mentioned in Clause (e) can be promoted to the category of rice land if (i) that grass land is situated in a local area referred to in Clause (d), and (ii) in the opinion of the State Government it is fit for the cultivation of rice. Therefore, the promotion of grass land to the category of rice land is dependent upon an objective fact which is justiciable and the determination of a subjective fact by the State Government. The objective fact is that the grass fend must be situated in an area where the average annual rainfall is not less than 35' and the subjective fact which is to be determined by the State Government is that grass land must be fit for cultivation of rice. Section 2(6), Explanation (f) states that, on the determination by the Government as aforesaid, the grass land 'shall be deemed to be rice land'. Reading Explanations (e) and (f) to Section 2(6) together, we find that it is necessary that the following objective facts must co-exist and if, on the coexistence of those objective facts, is superadded the declaration of the Government that the land concerned is fit for rice cultivation, then, the fiction provided for in Clause (f) aforesaid arises. The fiction is that such land shall be deemed to be rice land for the purposes of the Act. The objective facts which must co-exist are (i) that the land must be grass land of the kind mentioned in Clause (e), that is, it must be land which abounds in grass, (ii) that the grass grows naturally, (iii) that the land must be capable of being used for agricultural purposes; and (iv) that the land must be situated in an area where the average annual rainfall has been not less than 35 inches during a certain period. If all these facts co-exist and, if the Government is of the opinion that the land is fit for rice cultivation then, on the expression of such opinion, the land would be deemed, for the purposes of the Act, not to be dry crop land as originally it was without the expression of such opinion by the Government, but that it would be rice land and the surplus land would come to be determined on the basis that such land was rice land. If one turns to Schedule I which prescribes the ceiling area, one will find that the ceiling area of rice land is approximately 2/3 of the ceiling area of dry crop land. In these petitions, the impugned declarations are made by the Government under the power vested in it under Section 2(6), Explanation (f) aforesaid. The result has been that whereas, without the orders, in a large majority of cases, the total area which the petitioner or petitioners concerned will be holding will be less than the ceiling area, on the making of the aforesaid declarations, total land in the hands of petitioners will exceed the ceiling area and a part of their holding is liable to be declared as surplus land under the provisions of Section 21 of the Act. Petitioners do not dispute the aforesaid declarations on the ground that the objective facts do not co-exist, but, they challenge the declarations only on one and narrow ground that the power of the Government under Section 2(6), Explanation (f) to express the opinion in regard to the grass land had become exhausted and was no longer surviving on the date on which the aforesaid declarations were made by the Government, and that, therefore, though the Government had expressed the opinion, in law, the grass land must still be regarded as dry crop land and not as rice land. The petitioners admit that all the objective facts necessary for the exercise of the power exist in the present case. They do not even challenge on any legal ground the power of the State Government to express the opinion. The question, therefore, as already stated, which arises for consideration is what is the stage at which the power of the Government is exercisable, or, in other words, what is the stage at which the power of the Government comes to an end. In the present petitions, the power has been exercised by the Government nearly three or three and a half years after the commencement of the Act. The argument on behalf of the petitioners is that, having regard to the provisions which we have mentioned above, the Government did not possess the power of making the aforesaid declarations which would have the effect of promoting dry land to the category of rice land.

6. Now, we may preface the discussion of the various points which were urged by the learned Counsel on both the sides by first stating that the problem which we are called upon to solve in this group of petitions is one for which no express provision is to be found in the provisions of the Act. Section 2(6), Explanation (f) of the Act does not throw any light as to the time when the power is exercisable and when it comes to an end, and, because of this position, the arguments which were addressed at the bar all centred round either the general principles of law or the provisions of the Act which, in the submissions of the learned Counsel on both the sides, throw light on the solution of the problem. The broad submission which the learned Advocate-General makes is that the power contained in Section 2(6), Explanation (f) is a power of subordinate legislation and, that being so, in law, there is not and cannot be any time limit as to the exercise of that particular power. He submits that, as and when a declaration comes to be made by the Government under Section 2(5), Explanation (f) of the Act, the declaration has the status of law and, at whatever point of time the declaration comes to be promulgated, the Tribunal or any other authority entrusted with the administration of the Act is bound to treat it, when brought to its notice, as a legislative provision and give effect to it as if it were a provision contained in the Act, In this light, the learned Advocate-General submits that there is no question whatsoever of considering the other provisions of the Act and trying to find out as to whether there is or is not any limitation implied by the provisions of the Act as to the time when the power is so exercised. The learned Advocate General contends that in a case where no proceeding has been started under the Act and if, as a result of the making of the aforesaid declaration by the State Government, a person comes to hold surplus land and if the matter conies to the notice of the Tribunal concerned, the Tribunal is bound to take notice of that particular fact, and the result of such a declaration by the State Government in such a case will be that the person will be contravening the provisions of Section 6 of the Act which prohibits a person from holding land beyond a ceiling area and, in that event, the Tribunal can start proceedings for the purpose of taking away the surplus land for the purpose of the Act. The learned Advocate-General also contends that, in a pending case, that is, a case in respect of which a proceeding has been started under Section 10 of the Act, if a declaration of the aforesaid kind happens to be made by the State Government, the Tribunal concerned is bound, at any stage until an order under Section 21 of the Act comes to be passed, to have regard to that declaration as a piece of legislation and to calculate the total holding and to arrive at the surplus land, if any, on the basis of that particular declaration and there is no bar whatsoever to his arriving at the surplus land on the basis of such a declaration by the State Government. He further contends that even if an order happens to be passed and if an appeal is pending, the appellate authority is also bound to have regard to the aforesaid declaration by the State Government as a piece of legislation and to calculate the total holding and the surplus land on the basis of that legal declaration. The learned Advocate-General further contends that, even if a final order happens to be passed, even then, the matter does not become final so far as the determination of the surplus land is concerned and it is open to the Collector in a case where no appeal has been filed to call for the record and proceeding and to revise the order passed under Section 21 of the Act on the basis of the declaration made by the State Government under Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act on the ground that, having regard to that particular declaration, the order of the Tribunal under Section 21 of the Act is either illegal or improper. Though the learned Advocate-General did not concede that, in law, any surplus land cannot be reached after the power of revision of the Collector was exhausted, he says that, for the purpose of deciding the present petitions, he was willing to argue the cases on the assumption that, when an order under Section 21 of the Act becomes final in the sense that it is not open to revision under Section 37, then, a declaration under Section 2(6), Explanation (f) of the Act may not be such as can be given effect to under the machinery provided by the Act. The learned Advocate-General contends that this result follows not because the declaration under Section 2(6) Explanation (f) cannot be made by the State Government at any time, but the result is the consequence of the fact that, by virtue of the order passed by a competent authority under Section 21 of the Act, a vested right had been created in the land-holder to hold the land including that which was liable to be held as surplus as a result of the declaration under Section 2 (6), Explanation (f) of the Act, as available to him as the land which he was entitled to retain. He contends that this is so for a totally different reason and cannot be grounded on the basis that the power of the Government had become exhausted at some anterior point of time. He further submits that the power conferred on the Government under Section 2(6), Explanation (f) is a power of conditional legislation and, that being so, the question of legislative policy is not of any importance at all. He submits that even if the power is regarded to be a power of delegated legislation, even then, he is prepared to show, on the materials existing on the record, that the legislative policy was clearly laid down by the Legislature and that the matter is such as can be dealt with only by delegating the legislative function to the Government and it cannot have been performed by the Legislature itself so as to achieve the object which the Legislature had in view in enacting Section 2(6), Explanation (O) of the Act. The learned Advocate-General, alternatively, submits that, even if the power is not regarded as a piece of subordinate legislation, either conditional or delegated, and even if it is regarded as an executive power, it does not make any difference because, once the power is exercised, any authority administering the Act, is bound to have regard to that particular declaration and to give effect to that declaration. There is considerable force in the argument of the learned Advocate-General that the power conferred on the Government under Section 2(6), Explanation (f) is a power of subordinate legislation, though we demur to his submission that it is a piece of conditional legislation. Mr. Nanavati himself at one stage had contended that this was a piece of subordinate legislation. Of course, he withdrew that submission at a later stage. But the only argument which Mr. Nanavati urges to repel the argument of the learned Advocate-General is that the aforesaid power cannot be said to be a power of subordinate legislation because an opinion is never expressed in a formal order and that, in order that a power may be a power of subordinate legislation, that power must be exercised in some formal way as by framing rules, orders and notifications. The learned Advocate-General draws our attention to two authorities of the Supreme Court, in one of which it is assumed that the formation of an opinion was the exercise of subordinate legislation and, in the second of which, it is definitely laid down that the expression of such an opinion is such a kind of legislation. The authorities are Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal U.P. and Ors. : (1961)IILLJ419SC and Edward Mills Co. Ltd. Beawar and Ors. v. State of Ajmer and Anr. : (1954)IILLJ686SC But, Mr. Nanavati distinguishes these two authorities on the ground that in both of them, the formation of opinion by the Government led to the passing of a formal order, and that such was not the case in the present petitions. We are unable to see the validity or force of this distinction. In the first instance, there is no reason to believe that the Government is not required to embody, in a formal order, the opinion formed by it under Section 2(6), Explanation (f). Ordinarily, the Government is likely to express its opinion in some formal manner. In all the present petitions, opinion has been so expressed. Even if one were to proceed on the basis that the opinion is not required to be so expressed, even then, having regard to the context, in which that power has been conferred upon the Government, there cannot be any doubt whatsoever that the Legislature has assigned to the Government a part of its legislative function. Section 2(6) defines four categories of lands. These categories have been defined primarily for the purpose of fixing the ceiling area in respect of each category. The Legislature has directed that grass land shall be included in the category of dry crop land; but it, in its wisdom, has also willed that grass land of the type mentioned in Clause (c) of Explanation aforesaid shall be held to be rice land, provided that grass land is fit for rice cultivation. It is easy to see that whether a particular grass land is or is not fit for rice cultivation will be a matter for investigation and enquiry. The fitness for rice cultivation will have to be considered with reference to each grass land. The number of grass lands existing in the State is legion. We are told that in the four talukas of Bulsar District alone grass lands abound to such an extent that as many as 18,000 acres of lands can be available to the Government as surplus lands. These facts would make it difficult for the Legislature to decide without proper and on-the-spot enquiries whether a particular grass land is or is not fit for rice cultivation. Unless all the materials in respect of each grass land are collected, sifted and weighed, Legislature will not be in a position to determine the question affecting lands of such a huge magnitude. The question is necessarily particular and detailed in its nature and can be dealt with better by a subordinate agency rather than the Legislature. The Legislature undoubtedly has laid down a legislative policy. It has prescribed certain conditions which are justiciable. Before grass land can be held by the Government to be rice land, the land must be situated in an area having a certain amount of rainfall; it must be land which must abound in grass growing naturally; and the land must be fit for agricultural purposes. It is only after these conditions are satisfied that the Government can determine as to whether a particular piece of land is or is not fit for cultivation. Under the circumstances, there is considerable force in the argument of the learned Advocate-General that the power partakes of the character of subordinate legislation and the declaration made in exercise of such power must be regarded to be a part of the law of the land. However, though this is so, we cannot agree with the learned Advocate-General that there can be no limitation as to the time when the power is to exercised because it is a piece of subordinate legislation. The learned Advocate-General concedes that, if the Legislature had so willed, it can have laid down a time-limit for the performance of the function. The learned Advocate-General, however, contends that, if any time-limit is to be imposed, it can be imposed only expressly and not by implication. We cannot agree with this submission. In our judgment, neither principle nor authority requires that a Legislature must express its will on this topic only by explicit and not by implicit legislation. Just as the Legislature can express its will expressly, it can do so by implication. The question as to whether there is or is not any such implied time-limit in the exercise of a power, of course, will have to be decided on well recognized rules of construction of statutes and it may be that such implied time-limit may not be easily inferred. Under the circumstances, in our judgment, the question posed by Mr. Nanavati will have still to be resolved in the light of his arguments based on the provisions of the Act. In that view of the matter, the question as to whether the aforesaid power is legislative or executive loses its importance. However, the broad proposition of Mr. Nanavati that, in every statute, a reasonable time-limit must be taken to have been imposed on the exercise of a power cannot be upheld. Mr. Nanavati is unable to cite any authority in support of this proposition, nor do we find any principle on the basis of which such a proposition can be supported. The doctrine of reasonable time-limit, which is applicable in the domain of the law of contract cannot be applied to the domain of the exercise of either legislative or executive power. Even in the law of contract the time-limit as regards the performance of a contract is the result of legislative provision contained in Section 46 of the Indian Contract Act. Therefore, though there is force in the contention of Mr. Nanavati that if, on a perusal of all the provisions of an enactment, a time-limit is necessarily implied, the same must be given effect to, we cannot agree with his broad proposition that, in every case of a legislative enactment, a time-limit must necessarily be implied and that if there is no time provided for either expressly or by necessary intendment, then, a reasonable time-limit must be taken to have been imposed within which the power must be exercised. Mr. Nanavati contends that, in the present set of cases, the power has been exercised nearly three and a half years after the commencement of the Act and the result of the contention of the learned Advocate-General is that the power can be exercisable at any time so long as the Act is on the statute book. Mr. Nanavati contends that it is hardly probable that the Legislature can have intended to confer a power to be exercised so arbitrarily on the State Government and he further supplements this argument by contending that the exercise of a power after the 'appointed day' would have a retroactive action and would be disturbing situations and transactions which might have taken place on the basis that there was no surplus land in the hands of a land-holder possessing grass land. So far as the first prong of the argument of Mr. Nanavati is concerned, the obvious answer is to be found in Section 14 of the Bombay General Clauses Act, 1904 (No. 1 of 1904). That section provides that where, by any Bombay Act made after the commencement of the Bombay General Clauses Act, any power is conferred on any Government, then that power may be exercised from time to time as occasion requires. Mr. Nanavati contends that this section is not applicable to the facts of the present cases because the exercise of power from time to time is dependent upon the requirement of an occasion and, in his submission, no occasion has arisen for the exercise of that power in the present cases. We are unable to agree with this argument. A solemn duty has been entrusted by the Legislature to the Government of determining the question in regard to grass lands, answering the description mentioned in Clauses (e) and (f) of Explanation to Sub-section (6) of Section 2 of the Act, as to whether these lands are or are not fit for rice cultivation. It is obvious that this duty cannot have been performed by the State Government even if it was willing to devote its whole time and energy on that particular subject alone for a considerable period of time having regard to the fact that, in the four talukas of Bulsar District alone, there were many lands which required to be considered for determination as to whether they were fit for rice cultivation or not. Therefore, as and when the Government takes up each particular case and determines the capacity of the land for rice cultivation and comes to the conclusion that it is so fit, an occasion does arise for the exercise of the aforesaid power. As regards the contention that the declaration would have a retrospective operation, there is an obvious fallacy in that argument. The distinction between retroactive action of a piece of legislation and a fiction has been brought out, if we may say so, with great respect, with great lucidity by Mr. Justice S.T. Desai of the Bombay High Court in the case of New Shorrock Spg. and Mfg. Co. Ltd. v. N.U. Raval, Income-tax Officer and Anr. reported in : AIR1959Bom477 Briefly stated, the distinction is that, in a retroactive action, the power operates on a completed and past transaction, whereas, in the case of a fiction, a state of affairs is imagined to exist, though the actual fact is otherwise. In the latter case, the Legislature bids one to treat an imaginary state of affairs as real if a certain putative state of affairs is in existence; whereas, in the former case, the power is being exercised on a state of affairs which exists and which actually came into existence before the power came to be exercised. We have no doubt whatsoever that Section 2(6), Explanation (f) of the Act creates a fiction. It says that if there is grass land of the type mentioned in Section 2(6), Clauses (e) and (f) of the Explanation, and if in the opinion of the Government, grass land is fit for rice cultivation, then it shall be deemed, for the purposes of the Act, to be rice land. There is no question of any retrospective operation being given on the format on of the opinion by the Government. All that happens in such a case is that, on the opinion being formed, that which was grass land in fact will have to be treated as rice land for the purposes of the Act. Under the circumstances, the broad and general submissions of Mr. Nanavati must be rejected.

7. Mr. Nanavati, however, contends that a number of provisions contained in the Act tend to show that the power cannot be exercised after the 'appointed day'. He contends that if no limitation of time is laid on the power of the Government, then, a number of provisions contained in the Act will be rendered ineffectual; that the power will come to be exercised even at a time when innocent persons will come to suffer as a result of the exercise of the power; and that, in any case, a substantial part of the machinery of the Act will fail if no such limitation is imposed. All these contentions of Mr. Nanavati were raised at the stage of his argument which dealt with the submission that a time-limit must be imposed even if the power can be exercised after the 'appointed day' and that the time-limit was ninety days from the date of the commencement of the Act. Before we deal with these arguments, we will dispose of his first contentions that the power must be exercised before the commencement of the Act, or, in any case, on the 'appointed day'.

8. As regards Mr. Nanavati's submission that the power must be exercised before the 'appointed day', there are many good and sound reasons for holding that such cannot have been the legislative intention. It is undoubtedly true that, under Section 22 of the Bombay General Clauses Act, 1904, the executive authority has power to do a number of things where an Act does not come into operation immediately on the passing thereof, but, comes into operation a later date. The section states that, in such a contingency, where a power is conferred to make rules or by-laws, or to issue orders with respect to the application of the Act, or with respect to the establishment of any Court or office, or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which anything is to be done under the Bombay General Clauses Act, then, that power 'may be exercised at any time after the passing thereof, 'i.e. even before the commencement, of the Act. There is high authority for the proposition that the acts in relation to which this power under Section 22 of the Bombay General Clauses Act, 1904, can be exercised must necessarily relate to non-substantive acts or orders. In Venkateswaraloo and Ors. v. Supdt., Central Jail, Hyderabad State and Ors. : 1953CriLJ501 Their Lordships had to decide a similar question arising under Section 22 of the Central General Clauses Act, 1897. That section is in the same terms as Section 22 of the Bombay General Clauses Act, 1904. In regard to the former provision, Their Lordships held as follows:.it (Section 22) validates rules, bye-laws and orders made before the enactment comes into force provided they are made after the passing of the Act coming into force. It does not authorize or empower the State Government to pass substantive orders against any person in exercise of the authority conferred by any particular section of the new Act.

Moreover, it is highly improbable that the Legislature could have intended postponement of the 'appointed day' simply because the Government was not ready to exercise its power in connection with all the grass lands which could be considered for rice cultivation. There is no reason to believe that the Government was negligent in this matter in regard to the three talukas. In fact, in regard to one of the talukas, the Pardi taluka, some materials were already collected by the Government as far back as 1954-55 and two reports-one of Mr. P.N. Driver and the other of Ravishanker Maharaj were available. Even though this was so, Mr. Utsavbhai Parikh, the Hon'ble Minister, paid a visit to the taluka, interviewed a large number of land-holders and made local inspection. It is quite obvious that even this collection of the general information was not enough for passing individual orders in respect of each land. Mr. Nanavati himself concedes that this was more or less an expert and a technical job and could not have been undertaken or accomplished successfully unless on-the-spot enquiry was made. If the Government were required to a wait until this huge task was performed, it is quite obvious that the operation of the whole Act would be held up because the Government would not be ready to exercise its powers in regard to a small portion of the lands in some parts of the State consisting of grass lands. Apart from these considerations, in our judgment, there can be a serious challenge to the power of the Government, if it happens to be exercised before the 'appointed day.' Any decision arrived at by the Government before the 'appointed day' is at once liable to be challenged on the simple ground that such a decision is of no validity whatsoever inasmuch as fitness for rice cultivation has to be decided with reference to the state of affairs existing on the 'appointed day'. The fiction is to operate only if, on the 'appointed day', the grass land is fit for rice cultivation. If the Government were to take a decision before the 'appointed day', then, it is open to the person concerned to challenge that decision on the ground that the Government had formed an opinion with reference to the fitness of the land on a date anterior to the 'appointed day', and not with reference to the 'appointed day' itself. Under the circumstances, we are not impressed by the argument of Mr. Nanavati that the Legislature had willed that the power must be exercised before the 'appointed day'.

9. Mr. Nanavati's submission that the power was, in any case, to be exercised on the 'appointed day' has even less merit than the first submission has. The submission means that the Government is expected to finish the Herculean task of determining the capacity of grass lands spread over the State within twenty-four hours. Even if Mr. Nanavati were right in his contention that the Government could have collected all the necessary materials before the commencement of the Act, having regard to the immensity of the task, it is hardly probable or would be fair or just to expect that the Government should finish the job within that short span of time. Further, it would be unreasonable to attribute an intention to the Legislature that for such a stupendous task as is involved in determining whether grass lands are or are not fit for rice cultivation, it should have left only twenty-four hours at the disposal of the State Government to determine that question and that, if it is not able to do so, it does so at the peril of the power conferred and the duty imposed by Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act. Mr. Nanavati himself found difficulty in the course of his argument in substantiating this proposition and, therefore, he qualified this submission after touching it by stating that, in his submission, the power should have been exercised by the Government within ninety days, the period prescribed for the submission of statements by landholders under Section 10 of the Act.

10. That brings us to the main submission of Mr. Nanavati that the main object of the Act is the determination of the surplus land and that determination centres round the appointed day. He contends that, having regard to this central feature of the Act, the conclusion must necessarily follow that the power is to be exercised by the Government within a reasonable period of time after the appointed day, and before changes take place in the categories of the lands of the four classes mentioned in Section 2(6) of the Act. The learned Advocate-General disputes this proposition vehemently and he submits that the true scheme of the Act is that the total land is to be determined on the 'appointed day' and the surplus land is to be determined not with reference to the 'appointed day' but with reference to the day on which the order under Section 21 of the Act is to be passed. In the submission of the learned Advocate-General, the determination of the surplus land follows the determination of the total land and that it would be very strange if surplus land were to be determined first and then the total land. In his submission, the whole scheme of the Act is that, first, the total land is to be determined because that is an invariable factor, something which does not change, and after the total land of a landholder is determined, the question as to whether he has surplus land or not has to be determined with reference to the criteria fixed by the Act itself in regard to the ceiling area and that being an invariable quantity, the actual amount of surplus land has to be determined on the basis of the aforesaid two invariable quantities and the determination of the latter has no reference to the appointed day whatsoever. After giving our best consideration to all that was said at the bar, we have come to the conclusion that both the view-points urged before us have demerits and are not in consonance with the provisions of the Act. Both the view-points represent partial truths. We agree with the submission of Mr. Nanavati that the scheme of the Act is that the surplus land has to be determined as on the appointed day. We agree with the submission of the learned Advocate-General that the surplus land is notional from the appointed day upto the date of its determination under Section 21 of the Act and that the surplus land assumes a concrete character only on the date on which the order under Section 21 is made. We agree with the learned Advocate General that it is on the basis of the total land that the surplus land has to be arrived at; but we cannot agree with him that the total land as envisaged by the Act is an invariable quantity and exists physically on the appointed day. In our Judgment, Mr. Nanavati is right in contending that the concept of the total land under the Act is as much notional, until the order under Section 21 is made, as the concept of the surplus land is under the Act. The true position is that the land actually and physically held by a land-holder on the appointed day is to be taken as the basis on which the total quantity and the surplus land are to be determined. The total land under the Act is not the total acreage of the physical land which a land-holder possesses. The area of the actual end physical land has got to be converted into the area of the total land on the basis of the formula contained in Section 5, Sub-section (2) of the Act. It is easy to see that the latter acreage would depend on the category of the land or lands held by a land-holder on the appointed day and the area of the total land as a result of a change occurring in the category of the land by virtue of the fiction created by Clause (f) of Explanation to sub-section (6) of Section 2 of the Act is bound to change. We now proceed to consider the varif is arguments which were urged by the learned Counsel on both the sides

11. 'Surplus land' is defined as meaning land which is deemed to be or declared to be surplus land under the provision of the Act. This definition by its own force does not throw any light jus to the time when land is deemed to be surplus land. Under the definition, the provisions of the Act will have to be seen for the purpose of determining the question. Surplus land is referred to in sub-section (4) of Section 6 of the Act. Under that sub-section, it is stated that land which a. person is not entitled to hold under the foregoing provisions of the section shall be deemed to be surplus land. This provision also does not throw any light on the same topic. Then comes Section 10. Under that section, a landholder holding land in excess of the ceiling area is required to submit a statement to the Mamlatdar. The section enjoins the land-holder to submit a statement, not only in respect of land in excess of the ceiling area on the appointed day, but also in respect of land after the appointed day. When the section uses the expression 'land in excess of the ceiling area', the concept of surplus land is undoubtedly brought in and this section in so far as it requires the land-holder to give a statement in respect of such land after the appointed day does militate against the contention of Mr. Nanavati. But Mr. Nanavati has an explanation to offer. Firstly, he contends that it is true that Section 10 requires a land-holder to give a statement in regard to surplus land held by him even after the appointed day, but he says that is done only for a limited period of ninety days, after which there is no such obligation. Secondly, he points out that the section does not require a land-holder to furnish more than one statement. He submits that if a landholder has furnished a statement, then, he is not required to show surplus land if he happens to acquire it after the statement is made by him. However, Mr. Nanavati's broad and main contention in regard to Section 10 is that it should not be construed by itself in isolation, but that it must be read in the context of the scheme as a whole. Mr. Nanavati submits that if we read all the sections together conjointly, the conclusion is inevitable that surplus land has to be determined by the Tribunal with reference to the state of affairs existing on the appointed day and once that surplus land has been so determined or, in other words, once the ceiling area is fixed on that footing, then, under the provisions of Section 6 of the Act, the land-holder is prohibited from acquiring or holding any more surplus land. Mr. Nanavati contends that the further acquisition, that is acquisition after the appointed day, can be in one of the following modes, viz., (i) by transfer; (ii) by sub-division; (iii) by succession; (iv) by partition; and (v) exempted lands becoming non-exempted. Mr. Nanavati contends that if we scan all the provisions of the Act, we find that an acquisition by transfer or sub-division is prohibited by Sections 7 and 9 except in cases where transactions are entered into between persons holding land less than and not exceeding the ceiling area. He further contends that if a person acquires surplus land after the appointed day, that surplus land is forfeited. He submits that, in the aforesaid cases, the acquisition of surplus land could have been prevented by the parties themselves and, as they acted in contravention of the provisions of the Act, forfeiture follows; but he submits that, in the other three cases, obviously, the parties cannot be blamed as they happen to acquire surplus lands on account of either the operation of law or by exercise of the right to demand a partition or by the change of character of the land from exempted to non-exempted land. Mr. Nanavati contends that inasmuch as no distinct provision has been made forbidding acquisition of land by succession, partition or conversion of exempted lands into non-exempted lands, a provision has been made under Section 26 of the Act for dealing with such cases and such cases are dealt with exactly in the Same manner as cases of ordinary surplus lands. Therefore, Mr. Nanavati's interpretation of Section 10 is that the provision relating to the furnishing of a true statement after the appointed day has reference to only those cases where any change in the land-holding takes place either by succession, partition or conversion of exempted into non-exempted lands. He contends that the rest of the sections beginning from Section 13 onwards upto Section 21 show that, though the statement is to contain information relating to lands acquired after the appointed day, the decision regarding the extent of surplus land is to be recorded with reference to the state of affairs existing on the appointed day. He submits that the only way in which the Tribunal can reach land acquired after the appointed day would be by having recourse to Section 26 of the Act which would apply fully in all the aforesaid cases. He submits that as the state of affairs would be known to the land-holder on the date on which he furnishes the statement, an obligation is also cast upon him to disclose lands acquired by him in the aforesaid modes so that the Tribunal can start suo motu proceedings under Section 26 by following the procedure as laid down in that section. Prima facie, there is considerable force in the argument of Mr. Nanavati. Having regard to the scheme of the Act, the question in hand as to whether surplus land is or is not to be determined with reference to the appointed day must be decided on the conjoint reading of all the sections including Section 10 of the Act in the construction of which the explanation offered by Mr. Nanavati which appears to us to be reasonable must necessarily be borne in mind. Then we come to Section 13. That section requires the Tribunal to prepare a list of persons holding surplus land. We agree with the learned Advocate General that even at this stage the surplus land is notional. This is quite clear from Clause 2(c) which states that, in the list, what is required to be stated is 'the extent of land to be deemed to be surplus land'. But, at the same time, the provisions of Section 15 are of considerable assistance in deciding this question. The principal part of Section 15 deserves to be read in full. It is as follows:

15. The extent of surplus land, if any, held by any person on the appointed day shall be computed on the basis of the total land held by such person on that day.

It is true that the computation envisaged by this section is not a final step, but it is one of the steps taken for passing the final order under Section 21. But, all the same, the section in express terms says that extent of both the surplus land and the total land has to be computed by reference to the appointed day. The argument against this interpretation as urged by the learned Advocate-General is based on logic. He contends that if the section is read logically, it cannot mean that first the surplus land is to be determined on the appointed day and, thereafter, the total land is to be determined. The learned Advocate-General says that whatever the language of Section 15 might be, the intention of the Legislature must be that the total land must be first determined and thereafter the surplus land. One cannot take any exception to this line of argument. But, that line is no reply to the interpretation of the section suggested by Mr. Nanavati. The section says in express terms that the extent of the surplus land is to be computed as on the appointed day and that of the total land also on the same day. It is true that, even at this stage, the surplus land is notional. But, as we have already shown, it is equally true that the total land is notional too. Having regard to the language used in Section 15, it is impossible to uphold the contention that the appointed day does not come into the picture whilst determining the extent of the surplus land. Under Section 20, the list accompanying the notice will include the surplus land as computed under Section 15. Then comes the important Section 21. The language used in Section 21 of the Act strengthens the submission made on behalf of petitioners that total and the surplus lands have to be determined as on the appointed day. In regard to the total land, Section 21 says in specific terms that the order must specify the total land held by a land-holder on the appointed day. The order must also specify which land out of the total land is surplus land. The contention of the learned Advocate-General is that the qualifying words 'on the appointed day' are not to be found in Clause (2) of Section 21 as they are found in regard to Clause (1). But that does not make any difference because the expression 'out of the total land' does, in fact, bring in the notion regarding the appointed day even in regard to the surplus land. It is true that, under this clause, the order must specify the actual land which is to be demarcated as surplus land. But that process must also include the process of determining the surplus land held by a land-holder and, in doing so, as surplus land is to be carved out from the total land held on the appointed day, the surplus land has necessarily reference to the appointed day too. Under the circumstances, in our judgment, though, in Section 10, there are words which show that the statement is to be made also in regard to land held by a land-holder after the appointed day, the true construction of all the relevant sections shows that all the steps in regard to those lands are taken with a view to determine the total land on the appointed day and to determine the surplus land also on the appointed day and, in regard to land which come into the hands of a land-holder, but not in contravention of any provisions of the Act, a separate proceeding has to be started under Section 26 for the purpose of determining the true nature of the surplus lands so acquired and their liability to be treated under the provisions of the Act.

12. However, in our judgment, the conclusion that the surplus lands have to be determined with reference to the appointed day does not necessarily establish the proposition for which Mr. Nanavati contends, namely, that the power under Section 2(6), Explanation (f) of the Act must be exercised on the appointed day. It is not correct to say that if the power is exercised after the appointed day, land, total or surplus, in which grass land is comprised will come to be determined as on the day on which the power is exercised and not as on the appointed day. Whether grass land is to be promoted to the category of rice land depends upon the fitness of such land for rice cultivation on the appointed day. Clause (f) of the Explanation creates a fiction and though the power may be exercised on a subsequent day, the fiction comes to be created and speaks from the appointed day. In other words, when grass land is promoted to the category of rice land, whatever be the date on which the promotion is made, in law, the promotion will be deemed to have taken place as on the appointed day. Therefore, when grass land, when promoted as rice land, comes to be computed under Section 15 or other provisions of the Act, the computation takes place as on the appointed day. Consequently, it is quite clear that if any surplus land happens to be carved out from such grass land, the carving would take place with reference to the appointed day. Grass land ex hypothesi was physically and actually in existence on the appointed day. It is this grass land which, when the order is passed under Section 21 of the Act, will be treated for the purposes of the Act. Even if the power is exercised on a later date, the computation of the grass land is done with reference to the character which fictionally it enjoys on the appointed day. Mr. Nanavati amplifies his submission on the basis of a few posers which may now be considered. He says that having regard to our conclusion that the total and the surplus lands have to be determined with reference to the appointed day, it must necessarily follow that any change in the category of lands as held on the appointed day, subsequent to the appointed day, is not be taken into account. Mr. Nanavati contends that suppose there is seasonally irrigated land on the appointed day and, by reason of subsequent improvement, it becomes perennially irrigated land or if there is dry crop land and by reason of improvement it becomes seasonally irrigated land or if dry crop land happens to become rice land by change of user, then, having regard to our above conclusion, it is quite clear that these lands will be regarded as belonging to that category to which they originally belonged on the appointed day and not belonging to the category which they subsequently acquire after the appointed day. It cannot be denied that having regard to our aforesaid conclusion, the lands in the aforesaid categories will retain their original category and they cannot be treated as belonging to the categories which they acquired by reason of the subsequent improvement. We are conscious of the fact that in so treating the lands, probably, full effect may not come to be given to the provisions contained in Section 6 of the Act. Section 6 states that, with effect from the appointed day, no one shall hold land in excess of the ceiling area. It is obvious that if a subsequent change or metamorphosis takes place in a land as a result of its conversion from one category to another, a situation may arise wherein a land-holder-may come in possession of more than the ceiling area on account of such change or metamorphosis. However, in our judgment, this difficulty is not peculiar only to a situation of the aforesaid kind. It is easy to see that if the metamorphosis, instead of taking place between the appointed day and the day on which the order under Section 21 becomes final, happens to take place after the aforesaid order is passed, then also, though a land-holder would be in possession of land more than the ceiling area, according to the concession made by the learned Advocate General, the excess ceiling area is not amenable to be treated under the machinery of the Act. The whole scheme of the Act appears to be that the rights of land-holders in regard to their land-holding become crystallised with reference to the appointed day and, if any change in the land-holding takes place thereafter as a result of either transfer, partition, sub-division, succession or exempted lands becoming non-exempted, the same is treated under the provisions of the Act. But if any change takes place in the total area of a land-holding on account of the subsequent conversion of land of one category into that of another category and thereby the ceiling area becomes exceeded, there does not appear to be any machinery provided in the Act for reaching the surplus area arising for such other reason in spite of the fact that Section 6 does apparently prohibit possession of such surplus land. There is no doubt that a study of the provisions of the Act does reveal this lacuna in the machinery provided in the Act for separating surplus land from the ceiling area. But the lacuna is not peculiar only to a case where the metamorphosis takes place after the appointed day and before the order under Section 21 comes to be passed. The lacuna is there even in a case where the change takes place after an order under Section 21 is passed. It is difficult to say whether the Legislature omitted to provide machinery for reaching surplus land so arising on purpose or whether it is just a case of casus omissus.

13. However, in our judgment, the lacuna pointed out by Mr. Nanavati cannot by itself furnish a good ground for holding that the power can be exercised only on the appointed day. In our judgment, a change arising in the category of land by an act of a land-holder cannot stand on the same footing as a change arising on account of the exercise of the aforesaid power. When the power under Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act is exercised, then, the fiction operates as from the appointed day and, that being so, when grass land is determined as rice land, it is so determined because it holds on the appointed day that character by virtue of the aforesaid fiction and not because of any change taking place on account of the exercise of the aforesaid power. When a declaration under Section 2(6), Explanation (f), is made, the character of the land changes undoubtedly because of the declaration. But the effect thereof is that the character changes not after the appointed day, but it changes as on the appointed day on account of the existence of that particular declaration. Under the aforesaid circumstances, in our judgment, the mere fact that the total and the surplus lands have to be determined with reference to the appointed day does not necessarily support the argument of Mr. Nanavati that the power must be exercised only on the appointed day and not thereafter.

14. Mr. Nanavati further contends that if once his aforesaid Interpretation is found to be correct and still the power were left to be exercised by the State Government at any time after the appointed day, then, a number of difficulties will arise in the administration of the Act. His submission is that equities will be affected in such a manner that that rule of construction must be adopted which says that if a statute is capable of two interpretations, then, that particular interpretation which does not create difficulties in its administration or does not lead to anomalies in its working must be adopted. This submission of Mr. Nanavati is based upon a conjoint reading of the various sections beginning from Section 10 onwards. He says that ninety days are allowed to land-holders to file statements. If a declaration under Section 2(6), Explanation (f), is not made on the appointed day, then, persons similarly situated in regard to grass lands can file their statements on any one of the ninety days allotted to them, and, if a statement has already been filed before the declaration under Section 2(6), Explanation (0 of the Act is made, then, the case of such a land-holder will be treated by the Tribunal on the basis of the statement that the land is grass land, that is, dry crop land, whereas if it happens to be filed in a similar case after the declaration is made, then, it will be treated as belonging to the category of rice land. Mr. Nanavati says that there is no obligation on the part of a land-holder to file a second statement if the declaration happens to be made after his statement is filed. There is a fallacy in this line of argument. Even if we assume that there is no obligation on the part of a land-holder to file a second statement, it is not correct to say that the case of a land-holder in regard to whose land a declaration under Section 2(6), Explanation (f) is made will be treated only on the basis of the statement which he has filed. The Tribunal is enjoined to prepare the first list under sec, 13, not only on the basis of the statement filed by the land-holder, but also on the basis of the other prescribed records, and a perusal of the forms which the Mamlatdar is enjoined to supply to the Tribunal will show that all the records in relation to that land-holder will be available to the Tribunal including the character of lands held by the land-holder Even the statement which a land-holder is bound to supply is likely to contain information on the aforesaid account. Moreover, there is nothing in the provisions of the Act which prevents the Tribunal from determining, for the purpose of preparing a list under Section 13 of the Act, the character of lands held by a land-holder with reference to any order which may be passed before that list is prepared by the Tribunal. The moment the Tribunal finds that there is grass land in respect of which information is supplied to it either by the statement of the land-holder or by the prescribed record and if it finds that there is a declaration made by the Government under Clause (f) of Explanation to Section 2(6) of the Act in that regard, the Tribunal must treat that particular piece of grass land as rice land having regard to the aforesaid declaration and take proceedings accordingly. This process is open till the last stage when the order under Section 21 of the Act comes to be passed, for, as we have already pointed out, as the other steps after the preparation of the list, viz., of publication of general and individual notices, the computation of the total and the surplus lands, have all to be taken before the order under Section 21 comes to be passed. Even on the date on which the Tribunal is passing the order under Section 21, Section 21 enjoins that the Tribunal shall take into consideration not only the information already collected, but may also, if it so thinks fit, make such enquiry as it deems fit, and if, on an enquiry, it comes to the knowledge of the Tribunal that a declaration under Section 2(6), Explanation (f) has been made by the State Government, the Tribunal is bound to give effect to the same. Therefore, in regard to all those cases in which statements have been filed under Section 10 and proceedings are pending, it cannot be said that the aforesaid declaration cannot be given effect to. But Mr. Nanavati contends that, even if this is so, there may be cases on the border line, cases in which the landholder would be holding lands below the ceiling area but whose lands would exceed the ceiling area if grass land is to be treated as rice land. He contends that, in such cases, the Tribunal would not be able to reach the land-holder. We cannot agree. The Mamlatdar is enjoined to supply information to the Tribunal in regard to all the land-holders in the village. Even if this is not so, the records of each village would be available to the Tribunal and as soon as a declaration under Section 2(6), Explanation (f) is made, all that the Tribunal has to do is to find out the names of the land-holders in respect of whose grass lands the declaration is made and consider whether, on the basis of the said declaration, the ceiling area of the lands held by that land-holder does or does not come to be exceeded. Therefore, so far as pending cases or cases on the border line are concerned, there cannot be any difficulty in the working of the Act even if a declaration happens to be made after the appointed day. But Mr. Nanavati further contends that, even if this be so, at least in respect of those cases in which lands are below the ceiling areas on the appointed day and in regard to which no proceedings are required to be undertaken under the Act, declarations under Section 2(6), Explanation (f) of the Act may come to be made after the lapse of a number of years. He contends that, although a landholder may have proceeded during the interval on the basis that the land held by him is less than the ceiling area, on the making of the declaration, he may find himself suddenly, at some remote point of time, in a situation where he would be the holder of surplus land. Mr. Nanavati contends that such a situation would keep the sword hanging on holders of lands below the ceiling area for a point of time which may work hardship on them. Even if this be so, we do not see any difficulty whatsoever as to why the power of the Government should be curtailed because there is this possibility of the power being exercised at some remote point of time. It is true that some of the provisions of the Act are of a temporary nature in the sense that the provisions have been so designed as to see that the orders in respect of landholder come to be passed within a reasonable period of time after the appointed day and the rights of the parties crystallised accordingly. It is also equally true that the provisions of the Act are so designed as to see that any land-holder who holds lands more than the ceiling area on the appointed day yields to the State the surplus land. However, if any land-holder happens to hold grass land on the appointed day, answering the objective factors mentioned in Section 2(6), Explanation (f), and, if the land has the potentiality of rice cultivation, then, the land-holder is bound to know that his land is amenable to be treated under the provisions of the Act, and, if power happens to be exercised by the Government during the subsistence of the aforesaid Act, it cannot be said that the exercise of the power by the Government at some remote point of time but whilst the Act is on the statute book will work hardship. Mr. Nanavati contends that not only the Government will be in a position to exercise the power at any time, but, if the power happens to be exercised, innocent parties are likely to suffer on account of the exercise of that power. Mr. Nanavati illustrates this point by giving two illustrations: one under Section 7 and the other under Section 9. The first illustration of Mr. Nanavati is that supposing there is a landholder who has fifty acres of lands, twenty acres of which are grass lands but in respect of which no declaration is made by the Government for a considerable period of time after the appointed day. He says that such a land-holder can sell any part of his holding without taking permission under Section 7 of the Act. He says that the moment a declaration under Clause (f) of Explanation to Sub-section (6) of Section 2 of the Act is made, twenty acres of grass lands would be equivalent to thirty acres of dry crop land and the result would be that the total area held by such a land-holder would be sixty acres, and, if the land happens to be situated in the class 'A' area, then, the person would be holding land more than the ceiling area and, on such a contingency occurring, the transfer which otherwise was valid at the date when it took place would contravene the provisions of Section 7 and such a transfer would have the consequences mentioned in Section 15(b) and Section 17 of the Act. He says that, as a result of this, both the transferor and the transferee would suffer although, on the date on which the transfer took place, none had any knowledge that any such consequences would follow. The conclusion to which Mr. Nanavati arrives at by no means follows under the provisions of the Act. In the first instance, there is some force in the argument of the learned Advocate-General that the question as to whether the aforesaid transaction under the illustration does or does not contravene the provisions of Section 7 would depend upon the character of land on the date on which the transfer took place and not on the date on which the declaration under Section 2(6)(f) happens to be made. We do not propose to undertake a discussion on this aspect of the case because, even if the transfer is to be ignored as it is bound to be under the provision of Section 7 for the purpose of computing the total land in the hands of the transferor, no damage is likely to occur to the innocent transferee provided of course, on the date of the transfer, he happens to hold land less than the ceiling area. It is true that so far as the transferor is concerned, the transferred land will be included in the computation of the total land of the transferor. At the same time, it is quite clear that this situation does not arise on account of the said transfer, but it arises on account of the fact that the land partook of the character of grass land and was one which was amenable to treatment under Section 2(6)(f) of the Act. If we read Sections 17 and 24 (6) of the Act together, it is equally clear that, though the land is to be so computed vis-a-vis the transferor, the land is not to be allocated as surplus land so long as the surplus can be obtained from the other lands of the transferor. If this is so, then, in that case, the transferred land is bound to remain in the hands of the transferee. We are not in agreement with the contention of Mr. Nanavati that the result of such a transaction is that it is void from inception or would be discovered to be void on the date on which the declaration under Section 2(6), Explanation (f), is made. There are no words in Section 7 which justify this view. All that Section 7 provides is that a transaction in contravention of Section 7 is to be ignored for the purpose of computing the total lands for the purposes of the Act. That the transaction has not any such effect is also quite clear from the further direction given in Section 17 which says that first, the surplus land is to be separated from out of the other total lands of the transferor. It is true that, if this cannot be done, then, surplus land cannot be carved out from the transferred land. But, in that contingency, the Legislature has provided that compensation shall be payable to the transferee. It is hardly probable that the Legislature would have enacted such a provision if the transaction was void ab initio or was to be regarded as having become void on the making of the aforesaid declaration. A conjoint reading of Sections 7, 17 and 24(6) of the Act leads to the conclusion that a transfer in contravention of Section 7 is a transfer which should not be allowed to affect the administration of the Act but that if, in the administration of the Act, any part of the transferred land requires to be treated as surplus land, the same should be so done. This is quite different from saying that the transaction is void as between the parties inter se. The transaction remains valid under the general law between the parties inter se and the only effect of contravention of the provisions contained in Section 7 appears to be that the lands transferred under the transaction or a part thereof would be available to the Tribunal concerned for acquisition as surplus land if the same cannot be carved out from the other lands in the hands of the transferor. In such a contingency, compensation in respect of such land has to be paid from out of the surplus land. Not only this but the Legislature has further made a provision that if the transferee is not in a position to get the whole amount of price, he is at liberty to institute a suit against transferor and recover the balance of the price. The second illustration of Mr. Nanavati is that supposing the land-holder in the first illustration transfers five acres in favour of a transferee who already holds fifty acres, twenty acres of which are grass lands. Mr. Nanavati contends that if a declaration happens to be made after such a transfer takes place, then, the total area of the land in the hands of the transferee would be sixty-five acres and he contends that the result would be that, when the order under Section 21 comes to be passed, the transferee will have to part with four acres by way of surplus land from out of the lands which he held in the beginning and he will have to forfeit five acres of lands purchased from the transferor. Mr. Nanavati says that the result of the aforesaid transfer would be that the five acres of land would be forfeited under Section 9 of the Act. In our judgment, this conclusion is reached by a wrong interpretation of the provision contained in Section 9. Section 9 forfeits land transferred not only on account of a transfer inter vivos but a transfer in consequence of which the total land by such person exceeds the area which he is entitled to hold under Section 6. Therefore, in order that provision of Section 9 may be attracted, it is necessary that the latter condition must be satisfied too and, in the illustration given by Mr. Nanavati, that condition is not satisfied because it cannot be said that the excess land was acquired in consequence of any transfer at the date when it took place. The excess area would be in the hands of the transferee on account of the operation of the declaration which came to be made subsequently. Therefore, although the aforesaid area would be treated as excess land in the hands of the transferee, the transferred land would not come to be forfeited and if the aforesaid area of five acres happens to be allocated as surplus land, then, the transferee will receive compensation under Sections 23 and 24 of the Act. Therefore, none of the two illustrations given by Mr. Nanavati shows that any innocent person is likely to suffer on account of the interpretation that we are giving to the provisions of the Act as to the time when the power is exercisable by the State Government under Section 2(6), Explanation (f). The learned Advocate-General not only dealt with the two illustrations given by Mr. Nanavati but also gave a third illustration of his own, which is still more stringent than the illustrations given by Mr. Nanavati. The illustration was of a transfer without permission by a transferor holding land more than the ceiling area to a transferee, also holding land more than the ceiling area. For the reasons already given by us, the learned Advocate-General is right in saying that, even in a case of this type, all that would follow would be that the transfer would be ignored whilst dealing with the case of the transferor under the provisions of Section 7, Sub-section (3) of the Act and the acquisition of excess land will be forfeited to the Government by the transferee. But the latter result follows not by virtue of any declaration which is made by the State Government under Explanation (f) to Section 2(6) of the Act, but it arises on account of the fact that, on the date of the transfer itself, the transferee was acquiring land which Was more than the ceiling area.

15. Mr. Nanavati further contends that time-limit is implied in the very nature of the power which is conferred on the Government. He contends that the Legislature could not have left in the hands of the State Government a power to be exercised by the Government for an indefinite period of time. In his submission, a presumption must be raised that the Legislature intended that no case was to escape the exercise of the power by the Government or that the exercise of that power was not to be rendered futile. He contends that we must proceed on the assumption that the Legislature intended to act fairly and justly in regard to all the landholders in the State and the Legislature could not have left the exercise of such a power to be modulated by determining cases individually in respect of different land-holders. We are unable to find any support for any of these propositions in the provisions or the scheme of the Act. We are unable to see how all the land-holders similarly situated would not come to be fairly and justly treated if the Government is given the power to exercise it at any time after the appointed day. On the contrary, if any time-limit were to be imposed as contended for by Mr. Nanavati, a situation is likely to arise were persons similarly situated would not come to be treated on a par. If the Government were required to exercise the power on the appointed day or, as Mr. Nanavati contends alternatively, within ninety days, having regard to the immensity of the task, the job may not be finished by the Government during that particular period of time and a number of cases which otherwise could have been dealt with as willed by the Legislature would escape. Having regard to the fact that the case in regard to each piece of grass land has to be considered with a view to determine its fitness for cultivation, the Legislature must necessarily have left to the State Government sufficient latitude of time within which to commence and finish the enquiry with a view to ultimately decide whether the power should or should not be exercised in a particular case. It is true that, in an extreme case, as Mr. Nanavati puts it, the Government may come to exercise a power after a considerable lapse of time. But we cannot proceed on an assumption that the Government will not perform its duty diligently and with a view to carry out the objects which the Legislature had in view in enacting the Act. It is easy to see that, at least in regard to those cases, which come to the notice of the Tribunal, the Government may be required to be vigilant before the final order is passed under Section 21 of the Act and before the time for revising such an order expires. In such a case where the rights of the parties become crystallised and an order comes to be passed entitling the land-holder to retain a certain quantum of land, the Government, by its inaction, may lead itself to a situation were the exercise of the aforesaid power may not be of any use. The fact that such a result flows from the operation of an order of a Tribunal, entrusted with judicial duties, does not necessarily mean that there is a limitation on the power of the Government itself or that the power which the Government undoubtedly possesses should be curtailed or restricted in regard to those cases which have not been dealt with by the Tribunal.

16. For the aforesaid reasons, we have come to the conclusion that the submission of Mr. Nanavati that the power vested in the Government under Section 2(6)(f) of the Act of forming an opinion regarding the fitness of grass land for rice cultivation cannot be exercised after the appointed day and was not exercisable on the dates on which the declarations were made, must be rejected. We may mention that though, in the course of this judgment, we have, after considering all the provisions of the Act, come to the conclusion that the power can be exercised by the Government at any time in regard to a person whose case is not dealt with under the provisions of the Act and that the power will not be able to reach that person whose case becomes conclusive and final under the provisions of the Act, our decision must be taken to be restricted only to this that, in the present set of cases, where the power came to be exercised in the case Of twenty-one persons or a group of persons before final orders were passed in their cases was validly exercisable. The rest of our judgment in regard to the time-limit must be regarded to be obiter dicta. In regard to other two cases in regard to which orders under Section 21 of the Act were passed, the Government had still the power to pass effective orders on account of the fact that the orders passed under Section 21 were ultimately set aside by a competent authority under Section 37 of the Act.

17. At the fag-end of has argument, Mr. Nanavati vehemently contended that an order passed under Section 21 could not be revised on the ground that a declaration came to be made by the Government under Section 2(6), Explanation (O of the Act. Mr. Nanavati contended that, in such a situation, it cannot be said that the order under Section 21 was either illegal or improper. Apart from the question of illegality, the order can be set aside on the ground of impropriety on account of the fact that the Government had exercised the aforesaid power before the order became finally conclusive under Section 37 of the Act.

18. That brings us to the second submission of Mr. Nanavati that the Government had not applied its mind before making the impugned declarations. There is no merit in this submission also. The impugned declarations consist of three paragraphs. In the first paragraph, the Government makes a reference to the report of the Tribunal to the effect that grass lands mentioned in the report were situated in a local area where the average rainfall was not less than 35 and that grass lands were capable of being used for agricultural purposes. The second para graph recites that the report further discloses that the lands surrounding the aforesaid grass lands were used for rice cultivation. It also recites that grass lands mentioned in the report were capable of being used for rice cultivation. In the third paragraph, the Government further recites that having regard to the facts stated in the report of the Tribunal and the Government being satisfied that the lands were capable of rice cultivation, the Government thereby declares that, in its opinion, grass lands were fit for rice cultivation. Now Mr. Nanavati's contention was that an analysis of the aforesaid declaration of the Government showed that the declaration was based on the opinion expressed by the Tribunal that the lands were fit for rice cultivation and its report that the surrounding lands were fit for rice cultivation. Mr. Nanavati, at first, contended that the latter fact was irrelevent. But, when he was asked as to whether petitioners could or could not have contested the opinion to be formed by the Government on the ground that the surrounding lands were not being cultivated for rice, Mr. Nanavati withdrew that objection and did not press it any further. However, Mr. Nanavati seriously contends that the aforesaid declaration is based entirely upon the opinion of the Tribunal and thereby the Government had abdicated its power to the opinion of the Tribunal and that it itself had not formed the opinion as required by the statute. He contends that the mere fact that there is also a recital that the surrounding lands were fit for rice cultivation is not enough because that fact is also really in the nature of an opinion expressed by the Tribunal. Mr. Nanavati contends that, in view of this analysis of the aforesaid declaration, a presumption must be raised to the effect that the Government had not applied its mind and that, though it was open to the Government to prove that the opinion had, in fact, been formed by itself by application of its own mind by leading evidence aliunde, there was no such evidence whatsoever on record. The contention of Mr. Nanavati as to the burden of proof is contrary to the decision of Their Lordships of the Supreme Court in the case of Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P. and Ors. reported in : (1961)IILLJ419SC In this case, Their Lordships hold that where an opinion has to be formed by the Government and that opinion is recited in the impugned order itself, then the burden of proving that the Government had not, in fact, formed such an opinion was upon the petitioners, but that, in the reverse case, where there was no such recital, the burden would be upon the Government to do so. In our judgment, there is a clear recital in the impugned declaration that the Government had itself been satisfied that the lands in question were fit for rice cultivation and, therefore, the burden of proof would be on the petitioners. But, apart from the question of petitioners' burden, Mr. Nanavati is not right in contending that the aforesaid declaration itself contains internal evidence to the effect that the Government had abdicated its power to the Tribunal. There is a clear distinction between abdication of one's power and reposition of confidence in the report made by someone to the person who has to exercise the power. In the present set of cases, undoubtedly, the Government has made reference to the report of the Tribunal. But, there is nothing in the aforesaid declaration which would lead us to the conclusion that the report had been blind-foldedly accepted by the Government without application of its own mind. The declaration itself states that the Government had taken into consideration the facts disclosed in the report. It is not correct to say that the Government had only taken into consideration the fact that the surrounding lands were fit for rice cultivation. The reference in the latter part of the declaration is not to a fact but to facts. There is nothing in law which requires that the Government must recite all the facts which influenced it in making the declaration. Nor can we agree with Mr. Nanavati that it was the duty of the Government to produce the report in support of the declaration. However, we notice that some facts in the report have been brought out in the affidavits and the respondents have craved leave to refer to the report in case of necessity. The learned Advocate-General stated that he had the report with him in each of the aforesaid cases and that he was prepared to disclose it to the Court if it was so necessary. Mr. Nanavati at no time gave notice to the respondents to give inspection of the reports. In the face of the clear recital that the Government itself was satisfied on the reports and the facts disclosed therein, it is impossible to hold that the Government had not applied its mind regarding the fitness of each land for cultivation. But apart from all these considerations, in regard to the cases which come from Pardi taluka, there is evidence to show that the formation of the opinion in each case was preceded by the reports made to it by Mr. Driver and Ravishanker Maharaj in regard to fitness of grass land situated in that Taluka for nice cultivation. In addition to this, we have the affidavits of Mr. Utsavbhai Parikh, the Hon'ble Minister in charge of Agriculture, Forests and Revenue Departments of the State of Gujarat, and Mr. U.V. Bhat, Under - Secretary to Government of Gujarat, Revenue Department, which disclose that the Hon'ble Minister had paid a visit to all the three talukas, discussed the matters with the representative leaders and that visit was followed by inspection of the lands by Tribunals concerned. There are no materials on record to show that the Tribunals were incompetent to inspect the lands and to form the opinion. From the definition of the 'Tribunal', it appears that it is a body which is entrusted with the administration of tenancy law and where the relevant tenancy law does not provide for the constitution of the Tribunal in any part of the State, the officer to be appointed is one who must be acquainted with the revenue administration. It is impossible that the Government itself should be in a position to inspect each and every grass land situated in the State. The Government is bound to take into consideration the reports of the officers. But there is nothing in the record to show that a blind reliance was placed upon the reports. If a report is made and if it happens to be considered in the light of the reasons and the facts elicited in the report and if the knowledge and competence of the person who actually makes the report are borne in mind, then, it cannot be said that the Government had abdicated its power and had not exercised it by not applying its own mind under the aforesaid statute. In the aforesaid circumstances, there is no substance in the aforesaid submission of Mr. Nanavati also.

19. Before we end this judgment, we may mention that after the present petitions were filed, a new paragraph 11(a) was introduced by the petitioners in the petitions charging the Government with mala fides in the exercise of the power. Both the sides had filed affidavits for and against that contention. However, at the time of arguments, both Mr. Nanavati and Mr. B.J. Shelat expressly stated to us that they did not want to press the plea of mala fides. Therefore, the same has not been considered by us in the present petitions.

20. For the aforesaid reasons, all the petitions deserve to be dismissed with costs Rules discharged with costs. At this stage, Mr. B.J. Shelat on behalf of all the petitioners prays for a certificate for leave to appeal to the Supreme Court in all the petitions under Article 133(1)(c) of the Constitution of India. Having regard to the fact that this is a new piece of legislation and the question debated in our Court is an important question, in our judgment, this is a fit case for the grant of a certificate prayed for we order accordingly. Mr. B.J. Shelat further prays for an injunction restraining the Government from taking possession of the surplus lands involved in all these petitions for a period of one month in order to enable him to obtain necessary proper orders from the Supreme Court. In our judgment, the request is fair and deserves to be granted. An injunction to issue to the respondents not to take possession of the surplus lands for a period of one month from to-day.


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