1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 411 OF 1990
1. The State of Maharashtra, ) Appellant
Orig.Defendant
2. Chairman, Surplus Lands )
Determination Tribunal, )
Ajara, District - Kolhapur. )
3. The Chairman, Lands Distribution
ig )
Tribunal, Ajara, Dist. - Kolhapur. )
Versus
1. Shri Murarao Malojirao Ghorpade, )
Age 56 years, Occu: Agri.& Service, )
Gajendragad at Present Nipani, )
District - Belagaum. )
2. Smt. Ashwanidevi W/o. Shanbhusing )
Ghorpade, age 34, r/o - do- )
3. Shri Daulatrao Shambhusing Ghorpade,)
Age 14, Minor, through G.A. L. )
Plaintiff No.2. ).... Respondents
(Org.Plaintiffs )
--
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ALONG WITH
CIVIL APPLICATION NO. 2431 OF 1993
IN
SECOND APPEAL NO. 411 OF 1990
1. The State of Maharashtra, )
2. Chairman, Surplus Lands )
Determination Tribunal, )
Ajara, District – Kolhapur. )
3. The Chairman, Lands Distribution
ig )
Tribunal, Ajara, Dist. – Kolhapur. ).. Petitioners
Versus
1. Shri Murarao Malojirao Ghorpade, )
Age 56 years, Occu: Agri.& Service, )
Gajendragad at Present Nipani, )
District – Belagaum. )
2. Smt. Ashwanidevi W/o. Shanbhusing )
Ghorpade, age 34, r/o – do- )
3. Shri Daulatrao Shambhusing Ghorpade,)
Age 14, Minor, through G.A. L./ )
Respondent/Plaintiff No.2. ).. Respondents
(Org.Plaintiffs )
—
S/Shri R.M. Kadam, Advocate General, with A.A. Kumbhakoni,
N.P. Deshpande, AGP and Ms G.P. Mulekar, AGP for the
Appellants.
S/Shri D.J. Khambatta, Additional Solicitor General, Amicus
Curaie.
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Shri Shekhar Jagtap with Mrs. Manisha S. Jagtap and Shailesh
Chavan i/by M/s. J. Shekhar & Co. for Respondent Nos.1 and 2.
Shri S.P. Thorat for Respondent No.3.
—
CORAM : SWATANTER KUMAR, C.J.,
S.B. MHASE, A.M. KHANWILKAR,
A.S. OKA & R.M. SAVANT, JJ
JUDGMENT RESERVED ON : 14TH SEPTEMBER, 2009
JUDGMENT PRONOUNCED ON : 16TH OCTOBER, 2009
JUDGMENT : ( PER SWATANTER KUMAR, C.J. )
The State of Maharashtra enacted the Maharashtra
Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter
referred to as “the Act”), primarily with an object to give effect to
the State policy so that the operation of the economic system does
not result in the concentration of wealth and means of production
to the common detriment as well as to ensure the ownership and
control of the material resources of the community are so
distributed as best to subserve the common good. The Directive
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Principles of State policy contained under Part IV of the
Constitution of India had attained a different significance and
legal stature of the Directive Principles was uplifted by the 25th
Amendment Act, 1971 of the Constitution. Article 31-C of the
Constitution states that, notwithstanding anything contained in
Article 13, no law giving effect to the policy of the State towards
securing all or any of the principles laid down in Part IV shall be
deemed to be void on the ground that it is inconsistent with, or
takes away or abridges any of the rights conferred by Article 14 or
Article 19 of the Constitution, and no law containing a declaration
that it is for giving effect to such policy shall be called in question
in any court on the ground that it does not give effect to such
policy. Article 39 of the Constitution places an obligation upon
the State under Clauses (b) and (c) to ensure and appropriately
control the distribution and ownership of material resources
available to the community. The Act, therefore, was intended to
unequivocally declare the State policy towards securing principles
specified in Clauses (b) and (c) of Article 39 of the Constitution.
The implementation of the provisions of the Act faced number of
practical and legal impediments and the Act, within the span of
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5
1962 to 2006, was subjected to State Amendment Bills by
amending different provisions of the said Act 23 times, including
latest amendment by Maharashtra Act 8 of 2006. The Amendment
of 2006 was introduced by the Legislature to impose a maximum
limit or ceiling on holdings of agricultural land in the State of
Maharashtra and to provide for acquisition and distribution of
land held in excess of such ceiling.
2.
Ours is an agricultural country with large population
living in the rural areas and depending upon agriculture for their
livelihood. It was felt necessary by the framers of the Act to
provide that the lands taken over from undertakings and the
integrity of which is maintained in compact blocks, for ensuring
the full and efficient use of the land for agriculture and its
efficient management through a Corporation or Company, the aim
was made clear to secure and distribute the agricultural land as
best to subserve the common good and thus it was felt expedient
in the public interest to impose a maximum limit or ceiling on
acquisition of land. Section 3 of the Act incorporated the
prohibition on holding land in excess of ceiling area declaring the
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area in excess of ceiling to be surplus lands. Constitutional
validity of Section 3 of the Act was challenged before a bench of
this Court.
3. The Amending Act 21 of 1975 had introduced two
important changes viz. definition of ‘family unit’ and requiring a
landholder in the State to declare the agricultural land holding in
any other part of the State and States in India for the purposes of
clubbing together, in order to determine the ceiling on holdings.
By these amendments, the landholders also had a grievance, as
under the earlier Act the land possessed by them was lower than
the ceiling limit but by amendment, even that land was partially
adversely affected. The land owners were required to file fresh
returns within the specified time under the amended Act, even
declaring the lands held by them situated in other States of India.
Various Writ Petitions were filed from time to time which came to
be clubbed together before different Benches of this Court. The
Division Bench which was hearing the bunch of cases was inter
alia concerned with the challenge to the definition of the ‘family
unit’ and lowering of the limit. They came to be disposed of by a
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7
judgment of this Court in the case of Vithalrao Udhaorao Uttarwar
v. The State of Maharashtra, AIR 1977 Bom. 99. However, as a
result of oversight, some matters were not listed before the Court
and they came up for hearing before another Division Bench. The
Division Bench hearing other group of the matters at Nagpur
found that they were unable to agree with the conclusions reached
by the Division Bench at Bombay. In fact, the Judges presiding
over the Division Bench differed with each other on the question
of extra territorial jurisdiction. The judgment of the Court in
Vithalrao’s case (supra) was challenged before the Supreme Court
but in that Petition, the question of extra territoriality of the
ceiling provision had not been raised. In these circumstances, the
matter was placed before the Full Bench on the issue whether the
question should be determined by the Full Bench itself or the
matter needs to be referred to a 3rd Judge as a member of the
Division Bench at Nagpur had differed on certain basic issues,
therefore, the Full Bench while dealing with the case of
Shankarrao & Ors. v. State of Maharashtra, 1980 MhLJ 888
decided to deal and decide the questions of law by itself ( Full
Bench). At this stage itself, it will be relevant to refer to the
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questions framed by the Full Bench. Paragraph 4 of the said
judgment reads as under: –
“4. Since the other challenges are negatived by
the judgment of the Supreme Court, the referring
judgment framed as many as three points. With theconsent of the learned counsel on either side, we
have reframed the questions as below:-(1) Whether the scheme of section 3(1), (2) and
ig (3) read with section 4(1) as well as section
6 of the Maharashtra Agricultural Lands
(Ceiling on Holdings) Act, 1961, is extra-
territorial in operation?(2) Whether the provisions of Chapter III
regarding the restrictions on transfers,
acquisitions, partitions and consequencesensuing as well as the penalties or liabilities
provided for by Sections 10(3), 21-A, 40-Aand section 43-A have extra-territorial
operation ?(3) Whether there exist nexus which is sufficient
and pertinent for the purpose of the present
law ?4. On these questions, the Full Bench found that the
provisions of the Maharashtra Act were extra-territorial in their
operation and therefore declared the same as beyond the
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9competence of State Legislature and, in paragraph 27 of the
Judgment, the Full Bench concluded as under:-
“27. The next question that arises for our
consideration is whether these provisions are
severable and is it possible to save the Act minusthose provisions ? We think it is quite possible to
give pointed references to certain words and
expressions which, if deleted, would give full
effect to our conclusions in this judgment.Accordingly, we declare that in sub-section (2) of
section 3 the word “whether” in the first line, andthe group of words “or any other part of India”,
occurring in the second line, should be declared
beyond the competence of the State Legislatureand should be struck down. As a consequence, the
entire Explanation clause to sub-section (2) is
unlawful and is being declared inoperative and
beyond the competence of the State Legislature.We further hold that the last sentence in sub-
section (1) of section 43A beginning with thewords “The person” and ending with the words “to
any Tahsildar” (i.e. “The person shall also furnish
such particular of land held by him, if any, in any
other part of India to any Tahasildar” should alsobe declared beyond the competence of State
Legislature. If these provisions are struck down as
beyond the competence of the State Legislature, as
they have the effect of operating extra-territorially,
there is no other challenge before us so far as theCeiling Act is concerned.”
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105. Thus, the Full Bench settled the position of law as far
as this Court is concerned in the year 1980, whereafter certain
cases had been decided by different Benches of this Court
following the law enunciated by the Full Bench.
6. One Murarao Malojirao Ghorpade instituted suit for
declaration that the order passed in Ceiling Case No.43A and as
confirmed by the Chairman Surplus Land Determination Tribunal
was bad, illegal, null and void, without jurisdiction and
inoperative for different reasons and particularly inter alia that the
judgment of the Full Bench of this Court in Shankarrao’s case
(supra) was the foundation of the suit. The suit was decreed in
favour of the Plaintiff. The Appeal filed by the State (Civil Appeal
No.46 of 1984) also came to be dismissed vide judgment of the 3rd
Additional District and Sessions Judge, Kolhapur dated 23rd
October, 1989. Being aggrieved by the affirmation of the decree
of the Trial Court dated 15th October, 1983 by the Appellate Court,
the State felt aggrieved and filed the Second Appeal before this
Court challenging the decisions of the Courts below. It was
contended that the Full Bench decision of the Court in
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11Shankarrao’s case (supra) was not applicable to the facts of this
Case. When this Appeal came up for hearing before the learned
Single Judge of this Court for final disposal, the judgment of the
Supreme Court in the case of Shrikant Bhalchandra Karulkar &
Ors. v. State of Gujarat, (1994)5 SCC 459 was brought to the
notice of the learned Single Judge. The contention was raised
that in view of the judgment of the Supreme Court, the decision of
the Full Bench of this Court was no longer a good law while on
behalf of the Respondents, the contention was that the decision of
the Full Bench was binding on the learned Single Judge and the
Court should follow the law stated rather than referring the matter
to a Larger Bench. The learned Single Judge formed an opinion
that the matter should be referred to a Larger Bench under Rule 7
Chapter I of the Bombay High Court (Appellate Side) Rules, 1960.
The order of Reference dated 28th July, 2009 reads as under:-
“1. The Second Appeal has been preferred
by the State contending that the Courts below have
wrongly interpreted the judgment of the Full Bench
in the case of Shankarrao v/s. State of Maharashtra,
1980 Mh.L.J. 888. It is also the case of the
appellant that the Full Bench judgment of this Court
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12of the Supreme Court in the case of Shrikant
Bhalchandra & Ors. v/s. State of Gujarat, 1994 (5)SCC 459. According to the appellants, both the
Courts below have not interpreted the provisions of
the Maharashtra Agricultural Lands (Ceiling onHoldings) Act in its true spirit.
2. The question raised is whether while
determining the land holding of a person in excess
of the ceiling area it is necessary to club all lands
owned by him anywhere in India with the lands
owned by him in the State of Maharashtra. Whileinterpreting section 3(1) of the Maharashtra
Agricultural Lands (Ceiling on Holdings) Act (forshort, hereinafter referred to as `the Ceiling Act’),
the Full Bench has opined that State of Maharashtra
did not have legislative competence to decide aboutthe holdings of a person in areas other than the
State of Maharashtra. As a consequence it was
held that the explanation to subsection (2) of
section 3 is unlawful and inoperative and beyondthe competence of the State Legislature. The last
sentence in subsection (1) of section 43A of the Act,requiring a person to furnish particulars of the land
held by him in other parts of India to the Tehsildar
was also declared to be beyond the competence of
the State Legislature. While so holding the FullBench considered similar provisions in the State of
Gujarat and other adjoining states. The Court
observed that the Agricultural Ceiling Acts of
Gujarat and Maharashtra are similar and on par,
whereas the Madhya Pradesh and Andhra PradeshActs, although similar do not take cognisance of
holdings of agricultural lands by the holders in any
other part of India.3. The Supreme Court in the case of
Shrikant Bhalchandra Karulkar & Ors. (supra), was::: Downloaded on – 09/06/2013 15:13:54 :::
13dealing with the Gujarat Agricultural Land Ceiling
Act, 1960. The Supreme Court observed that inview of the provisions of Article 245 and 246 of the
Constitution of India, the State Legislature has no
legislative competence to make laws having extraterritorial operation. The Supreme Court observed
thus:7. It is no doubt correct that under
Articles 245 and 246 of the Constitution of
India the Legislature of a State can make
laws for the State or any part thereof. Itwould be overstepping the limits of its
ig legislative field when it purports to affect
men and property outside the State. In other
words the State Legislature has no legislative
competence to make laws which haveextraterritorial operation. Meaning of the
words “extraterritorial operation” have been
authoritatively laid down by this court in
various judgments. A State Legislature hasplenary jurisdiction to enact laws in respect
of subjects i Lists II and III, SeventhSchedule, Constitution of India. Such laws
may be in respect of person within the
territory, of property – immovable or
movable – situated within the State, or ofacts and events which occur within its
borders. So long as the law made by the
State Legislature is applicable to the persons
residing within its territory and to all things
and acts within its territory, it cannot beconsidered extraterritorial. This Court – over
a period of three decades – has evolved a
principle called “doctrine of territorial nexus”
to find out whether the provisions of a
particular State law have extraterritorial
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14that there is no dispute as to its principles. If
there is a territorial nexus between thepersons/property subject-matter of the Act
and the State seeking to comply with the
provisions of the Act then the Statute cannotbe considered as having extraterritorial
operation. Sufficiency of the territorial
connection involves consideration of two
elements, the connection must be real andnot illusory and the liability sought to be
imposed under the Act must be relevant to
that connection. The Act has to satisfy the
principles of territorial nexus which areessentially discernible from the factual
ig application of the provisions of the Act.4. It then observed that within the State a ceiling
can be fixed by law beyond which no person can
hold agricultural land and if for determining the
extent of the ceiling the land held by the person
outside the State is taken into consideration such aprovision of law pertaining to fixation of such a
ceiling would not become extra territorial. This isbecause in pith and substance, the law remains a
legislation, imposing the ceiling on holding of land
within the State, under the Entry 18 List II r/w Entry
42 List III, 7th Schedule of the Constitution of India.5. The learned Counsel for the appellants herein
submits that in view of the ratio in the case of
Shrikant Bhalchandra Karulkar (supra), the decisionof the Full Bench would no longer be a good law. It
is submitted that the observations of the Full Bench
judgment in the case of the Shankarrao (supra),
would have to be revisited especially in light of para
9 of the judgment in Shrikant Bhalchandra Karulkar
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159. “……. It is obvious that the provisions
of Section 6(3-A) of the Act and Section
3(2) of the Bombay Act are entirelydifferent. On the plain reading of Section
3(2) of the Bombay Act it is patent that the
Maharashtra Legislature was making law in
respect of the land held by a personanywhere in India. The expression “all
land held by a person or as the case may be
by a family unit whether in this part of the
Maharashtra Legislature to makeextraterritorial law. No assistance can, thus,
igbe taken by the learned Counsel from the
Full Bench judgment of the Bombay High
Court. Even otherwise we are of the view
that various observations made by thelearned Judges of the Bombay High Court
are, rather, broadly stated and require to be
straightened, if necessary, in some
appropriate proceedings.”6. According to the learned counsel appearing for
the State, the observations made by the Full Bench
must be reconsidered in the light of the ruling of the
Supreme Court while dealing with the GujaratAgricultural Land Ceiling Act 1960. He therefore
submits that the matter be placed before the learned
Chief Justice under Rule 7 Chapter 1 of the Bombay
High Court (Appellate Side) Rules, 1960.7. The learned advocate for the respondent
submits that such an exercise would not be
necessary. She points out the judgment of the
Supreme Court in the case of Tribhovandas
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161968 SC 372 and submits that the Full Bench
judgment is binding on the Single Judge of thisCourt and, therefore, there would be no need to
place the matter before a larger Bench.8. There can be no doubt that the judgment of
the Full Bench is binding on a Single Judge of this
Court. However, in view of the judgment of theSupreme Court in the case of Shrikant Bhalchandra
Karurkar (supra), in my opinion, it would be
appropriate to place the matter before the learned
Chief Justice for necessary directions under Rule 7Chapter 1 of the Bombay High Court (Appellate
Side) Rules, 1960.9. Registry to take necessary steps accordingly.”
7. In view of the above Order of Reference and in view
of the fact that the correctness of the law stated by Full Bench of
this Court in Shankarrao’s case (supra) was questioned, the matter
was referred to the present Bench consisting of five Judges.
When the matter came up for hearing, it was noticed that the
learned Single Judge had not formulated any question and/or
proposition of law which is required to be considered by the
Larger Bench as suggested by the learned Single Judge in the
Order of Reference. When the matter came up for hearing before
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17us on 26th August, 2009 and after hearing the learned counsel
appearing for the parties, we felt that it will be appropriate to
formulate the questions which need to be examined by the Larger
Bench during the course of hearing. Thus, in paragraph 4 of our
Order, we recorded the questions as under:-
“4. As no question of reference to be answered
by this Bench has been formulated by the learned
Single Judge vide order dated 28th July, 2009, wewould like to prefer to state broadly the matters in
issue before this Bench:(a) What is the scope of an order of reference
and whether the order of reference was
called for in view of the Judgment of the
Supreme Court in the case of ShrikantBhalchandra Karulkar & Ors. v. State of
Gujarat, 1994(5) SCC 459.(b) How the law declared by the Full Bench of
this Court could be construed in light of the
judgment of the Supreme Court and whatwill be its effect and consequences;
(c) Whether the judgment of this Bench would
relate back to the date of earlier decision of
the Full Bench or will be given effectprospectively in view of the fact that the
Full Bench had declared the provisions of
Section 43A(1) of the Maharashtra
Agricultural Lands (Ceiling on Holdings)
Act, 1961 as ultra vires.”::: Downloaded on – 09/06/2013 15:13:55 :::
188. From paragraph 4 of our order dated 26th August,
2009, it necessarily follows that the first and foremost question to
be considered by us relate to the law of precedents and judicial
propriety.
9. Salmond on Jurisprudence discusses in some detail
the origin and significance of judicial precedents. In the 12th
Edition of Salmond on Jurisprudence, it has been recorded that
the importance of judicial precedents has always been a
distinguishing characteristic of English law. In recent years, the
value of doctrine of precedent has been much debated. It has two
meanings. The first, which may be called the loose meaning, and
the second, the strict meaning. Under the first meaning,
precedents are reported, may be cited, and will probably be
followed by the courts. Whilst in the second meaning, precedents
not only have great authority but must in certain circumstances be
followed. It is said that the practice is necessary to secure the
certainty of the law, predictability of decisions being more
important than approximation to an ideal, any very unsatisfactory
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19decision can be reversed for the future by statute. Judicial
decisions may be distinguished as authoritative and persuasive.
An authoritative precedent is one which judges must follow
whether they approve of it or not. A persuasive precedent is one
which the judges are under no obligation to follow, but which they
will take into consideration, and to which they will attach such
weight as it seems to them to deserve. In other words,
authoritative precedents are legal sources of law, while persuasive
precedents are merely historical. ( Ref : Salmond on Jurisprudence,
12th Edition, by P.J. Fitzgerald. )
10. A Full Bench of this Court in the case of M/s. Emkay
Exports & Anr. v. Madhusudan Shrikrishna, 2008(4) MhLJ 843,
while dealing with the concept of precedent and significance in
judicial decision making process, held as under:-
“6. The concept of precedent has attained
important role in administration of justice
in the modern times. The case before the
Court should be decided in accordance
with law and the doctrines. The mind of
the Court should be clearly reflecting on
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20facts of the case. The reason and spirit of
case make law and not the letter of aparticular precedent. Halsbury’s “The
Laws of England”, explained the word
“ratio decidendi” as “It may be laid downas a general rule that that part alone of a
decision by a Court of Law is binding
upon Courts of coordinate jurisdiction and
inferior Courts which consists of theenunciation of the reason or principle
upon which the question before the Court
has really been determined. This
underlying principle which forms the onlyauthoritative element of a precedent is
ig often termed the ratio decidendi.” It is by
the choice of material facts that the Court
create law. The law so created would be
a good precedent for similar subsequentcases unless it falls within the exceptions
hereinafter indicated.7. The doctrine of precedent relates to
following of previous decisions within its
limitations. It introduces the concept offinality and adherence to the previous
decisions and while attaining it, it creates
consistency in application of law. The
later judgment should be similar to theearlier judgment, which on material facts
are the same. Finding ratio decidendi is
not a mechanical process but an art which
one gradually acquires through practice.
What is really involved in finding the ratiodecidendi of a case is the process of
abstraction. Ratio decidendi is a term
used in contrast to obiter dictum which is
not necessariloy binding in law.According to Sir John Salmond, “a
precedent is a judicial decision, which::: Downloaded on – 09/06/2013 15:13:55 :::
21contains in itself a principle. The only
principle which forms its authoritativeelement is often termed the `ratio
decidendi’. The concrete decision is
binding between the parties to it, but it isthe abstract ratio decidendi which alone
has the force of law as regards the world
at large”. According to Austin, the
general reasons or principles of judicialdecision abstracted from peculiarities of
the case are commonly styled by writers
on jurisprudence as `ratio decidendi’.8. Amongst the principles of law governing
ig the binding value of judgments, doctrine
of precedent is not only a well accepted
principle but is one fo the most pertinent
facets of judicial interpretation. A rulingof Bench of higher court is considered to
be binding on the lower courts and the
courts having a smaller Bench structure.Earlier judgments are even taken to be
binding on subsequent equi Bench unless
and until reasons compelling for taking adivergent view are stated. To apply this
principle, the court must examine by
process of appropriate reasoning as to the
applicability of the precedent cited beforethe court or even which of the views
expressed by a higher court or even a
larger Bench or even a Bench of equi
strength is more aptly applicable to the
facts and circumstances of the case inhand. The essence of law of precedent is
its applicability on the basis of ratio
decidendi. The importance and
significance of adherence to alw of
precedent was emphasized by the
Supreme Court in the case of S.I. Rooplal::: Downloaded on – 09/06/2013 15:13:55 :::
22and another v. Lt. Governor through Chief
Secretary, Delhi and others, A.I.R. 2000SC 594.”
11. With the development of law, the doctrine of
precedents has become an integral part of judicial discipline. The
doctrine of precedent is a habit of following previous decisions
within more or less well-defined limits. What the doctrine of
precedent declares is that cases must be decided the same way
when their material facts are the same. The part of a case that is
said to possess authority is the “ratio decidendi”. Finding “ratio
decidendi” is not a mechanical process but is an art that one
gradually acquires through practice and study. What is really
involved in finding the “ratio decidendi” of a case is a process of
abstraction. The ascertainment of the “ratio decidendi” of a case
depends upon a process of abstraction from the totality of facts
that occured in it. The higher the abstraction, the wider the “ratio
decidendi”. In contrast with the “ratio decidendi” is the “obiter
dictum”. “Obiter dictum” is a mere saying by the way, a chance
remark, which is not binding on the future Courts, though it may
be respected according to reputation of the Judge, the eminence of
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23the Court and the circumstances in which it came to be
pronounced. The reason for not regarding an “obiter dictum” as
binding is that it was probably made without a full consideration
of the case on the point, and that, if very broad in its terms, it was
probably made without a full consideration of all the
consequences that may follow from it; or the judge may not have
expressed a concluded opinion. ( Ref : Paper submitted in Third
Workshop of 2005 on the Subject of Law of Precedents and
appropriate use of case law in Court working by U.B. Shukla.)
12. In light of the above, now let us examine some
judgments of the Supreme Court which have some bearing on the
issue before us. In the case of Tribhovandas Purshottamdas
Thakkar v. Ratilal Motilal Patel & Ors., AIR 1968 SC 372, the
Supreme Court examined the question as to when a reference can
be made to a Full Bench and whether mere irregularity in the
constitution of Full Bench would nullify the law laid down by the
so constituted larger bench. The Supreme Court held as under: –
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24“10. The effect of a precedent of the Gujarat High
Court fell to be considered indirectly in this case.Before Raju, J., it was urged for the first time in the
course of this litigation that in the absence of the
sanction of the Charity Commissioner the Court salewas invalid. Counsel for the auction purchaser
contended that this question was not raised before the
District Court and that Court cannot be said to have
acted illegally or with material irregularity in notdeciding the question. Counsel for the auction
purchaser relied upon two decisions in support of that
proposition : Pinjare Karimbhai v Shukla Hariprasad,
1962-3 Guj LR 529 and Haridas v Ratansey, 23 Bom LR
802: (AIR 1922 Bom 149). He urged that under theBombay Reorganization Act, 1960, the jurisdiction of
the Bombay High Court which originally extended overthe territory now forming part of the State of Gujarat,
ceased when a new High Court was set up in the State
of Gujarat, but it was held by a Full Bench of the High
Court of Gujarat in State of Gujarat v Gordhandas, 3Guj LR 269: (AIR 1962 Guj 128) (FB) that the decision
of the Bombay High Court will be regarded as binding
since the Gujarat High Court had inherited the
jurisdiction, power and authority in respect of theterritory of Gujarat. When pressed with the
observations made in the two cases cited at the Bar,Raju, J., found an easy way out. He observed that the
judgment of the Full Bench of the Gujarat High Court
had “no existence in law”, for in the absence of a
provision in the Constitution and the Charter Act of
1861, a Judge of a High Court had no power to refer acase to a Full Bench for determination of a question of
law arising before him, and a decision given on a
reference “had no existence n law”. The learned Judge
also thought that if a Judge or a Division Bench of a
Court makes a reference on a question of law to a FullBench for decision, it would in effect be assuming the
jurisdiction which is vested by the Charter of the Court
in the Chief Justice of the High Court. In so observing
the learned Judge completely misconceived the nature
of a reference made by a Judge or a Bench of Judges to
a large Bench. When it appears as a Single Judge or a
Division Bench that there are conflicting decisions of::: Downloaded on – 09/06/2013 15:13:55 :::
25the same Court, or there are decisions of other High
Courts in India which are strongly persuasive and takea different view from the view which prevails in his or
their High Court, or that a question of law of
importance arises in the trial of a case, the Judge or theBench passes an order that the papers be placed before
the Chief Justice of the High Court with a request to
form a special or Full Bench to hear and dispose of the
case or the questions raised in the case. For makingsuch a request to the Chief Justice, no authority of the
Constitution or of the Charter of the High Court is
needed, and by making such a request a Judge does
not assume to himself the powers of the Chief Justice.
A Single Judge does not by himself refer the matter tothe Full Bench: he only requests the Chief Justice to
constitute a Full Bench for hearing the matter. Such aBench is constituted by the Chief Justice. The Chief
Justice of a Court may as a rule, out of deference to the
views expressed by his colleague, refer to the case; that
does not mean, however, that the source of theauthority is in the order of reference. Again it would
be impossible to h old that a judgment delivered by a
Full Bench of a High Court after due consideration of
the points before it is liable to be regarded as irrelevantby Judges of that Court on the ground of some alleged
irregularity in the constitution of the Full Bench.”13. While citing the above judgment with approval, the
Supreme Court again in the case of Sub-Inspector Rooplal & Anr. v.
Lt. Governor Through Chief Secretary, Delhi & Ors., (2000)1 SCC
644 considered the question that subordinate Court is bound by
the precedent of superior court, and a Bench of a Court is bound
by the precedent of a Coordinate Bench. While discussing the
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26jurisprudential basis for honouring a precedent, the Supreme
Court also expressed a view that even the co-ordinate bench
cannot pronounce a judgment contrary to declaration of law made
by another Bench. The Supreme Court held as under: –
“12. At the outset, we must express our
serious dissatisfaction in regard to the manner in
which a Coordinate Bench of the Tribunal hasoverruled, in effect, an earlier judgment of another
Coordinate Bench of the same Tribunal. This isopposed to all principles of judicial discipline. If at all,
the subsequent Bench of the Tribunal was of the
opinion that the earlier view taken by the Coordinate
Bench of the same Tribunal was incorrect, it ought tohave referred the matter to a larger Bench so that the
difference of opinion between the two Coordinate
Benches on the same point could have been avoided.It is not as if the latter Bench was unaware of the
judgment of the earlier Bench but knowingly it
proceeded to disagree with the said judgment against
all known rules of precedents. Precedents whichenunciate rules of law form the foundation of
administration of justice under our system. This is a
fundamental principle which every presiding officer of
a judicial forum ought to know, for consistency ininterpretation of law alone can lead to public
confidence in our judicial system. This Court has laid
down time and again that precedent law must be
followed by all concerned; deviation from the same
should be only on a procedure known to law. Asubordinate court is bound by the enunciation of law
made by the superior courts. A Coordinate Bench of a
Court cannot pronounce judgment contrary to
declaration of law made by another Bench. It can only
refer it to a larger Bench if it disagrees with the earlier
pronouncement. This Court in the case of
Tribhovandas Purshottamdas Thakkar v Ratilal Motilal::: Downloaded on – 09/06/2013 15:13:55 :::
27Patel, AIR 1968 SC 372, while dealing with a case in
which a Judge of the High Court had failed to followthe earlier judgment of a larger Bench of the same
Court observed thus:“The judgment of the Full Bench of the Gujarat
High Court was binding upon Raju, J. If the
learned Judge was of the view that the decision
of Bhagwati, J., in Pinjare Karimbhai case,(1962) 3 Guj LR 529 and of Macleod, C.J., in
Haridas case, AIR 1922 Bom 149(2) did not lay
down the correct law or rule of practice, it was
open to him to recommend to the Chief Justice
that the question be considered by a largerBench. Judicial decorum, propriety and
ig discipline required that he should not ignore it.Our system of administration of justice aims at
certainty in the law and that can be achieved
only if Judges do not ignore decisions by courts
of coordinate authority or of superior authority.Gajendragadkar, C.J., observed in Bhagwan v
Ram Chand, AIR 1965 SC 1767 :‘It is hardly necessary to emphasise that
considerations of judicial propriety and
decorum require that if a learned SingleJudge hearing a matter is inclined to take
the view that the earlier decisions of the
High Court, whether of a Division Bench or
of a Single Judge, need to be reconsidered,
he should not embark upon that inquirysitting as a Single Judge, but should refer
the matter to a Division Bench, or, in a
proper case, place the relevant papers
before the Chief Justice to enable him to
constitute a larger Bench to examine thequestion. That is the proper and traditional
way to deal with such matters and it is
founded on healthy principles of judicial
decorum and propriety.’ ”::: Downloaded on – 09/06/2013 15:13:55 :::
2814. The respect for the law of precedent was illucidated
by the Supreme Court again in the case of Govenment of Andhra
Pradesh & Anr. v. B. Satyanarayana Rao (Dead) by Lrs. & Ors.,
(2000)4 SCC 262, where the Court explained rule of per incuriam
decisions and held as under: –
“8. ….. The rule of per incuriam can be applied
where a court omits to consider a binding precedent
of the same court or the superior court rendered on
the same issue or where a court omits to consider
any statute while deciding that issue. ……”
15. Similarly, in the case of Lily Thomas & Ors. v. Union of
India & Ors., (2000)6 SCC 224, the Supreme Court reiterated the
principle that rulings of larger benches should be followed and
those of coordinate benches of equal strength not be differed from
and must be followed. The Supreme Court also observed that the
division bench would not be justified in ignoring the full bench
judgment or even that of a coordinate bench.
16. The law declared by the Supreme Court is binding on
all the Courts but such a decision has to be made on the expected
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29
norms of the ratio decidendi. The Supreme Court itself stated a
word of caution that the judgment of the Supreme Court and the
law declared should not be applied mechanically but after due
examination and specifying the fact that the judgments are really
applicable to the facts and circumstances of the case. In the case
of Delhi Administration (Now NCT of Delhi) v. Manohar Lal,
(2002)7 SCC 222, the Court held as under:-
“5.
ig We have carefully considered the submissions
of the learned counsel appearing on either side.
Apparently, the learned Judge in the High Court was
merely swayed by considerations of judicial comity
and propriety and failed to see that merely because
this Court has issued directions in some other cases, to
deal with the fact situation in those other cases, in thepurported exercise of its undoubted inherent and
plenary powers to do complete justice, keeping asideeven technicalities, the High Court, exercising
statutory powers under the criminal laws of the land,
could not afford to assume to itself the powers or
jurisdiction to do the same or similar things. The HighCourt and all other courts in the country were no
doubt ordained to follow and apply the law declared
by this Court, but that does not absolve them of the
obligation and responsibility to find out the ratio of
the decision and ascertain the law, if any, so declared
from a careful reading of the decision concerned andonly thereafter proceed to apply it appropriately, to
the cases before them. Considered in that context, we
could not find from the decisions reported in
Sukumaran and Santosh Kumar any law having been
declared or any principle or question of law having
been decided or laid down therein and that in those::: Downloaded on – 09/06/2013 15:13:55 :::
30cases this Court merely proceeded to give certain
directions to dispose of the matter in the specialcircumstances noticed by it and the need felt, in those
cases, by this Court to give such a disposal. The same
could not have been mechanically adopted as ageneral formula to dispose of, as a matter of routine,
all cases coming before any or all the courts as a
universal and invariable solution in all such future
cases also. The High Court had no justifying reason todisturb the conclusion of the first appellate court, in
this regard.”
17. The importance of following the law declared by the
Supreme Court was emphasized by the Court in the case of State
of Punjab v. Bhag Singh, (2004)1 SCC 547 where the Supreme
Court said that judicial discipline to abide by declaration of law by
the Supreme Court cannot be forsaken under any pretext by any
authority or court, be it even the highest court in a State, oblivious
to Article 141 of the Constitution.
18. Of course, it was aptly stated by the Supreme Court in
R.L. Jain (D) By Lrs. v. DDA & Others, (2004)4 SCC 79, that a
decision is an authority for what it actually decides. What is of the
essence in a decision is its ratio and not every observation found
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31
therein nor what logically follows from the various observations
made therein.
19. Normally, the judgment of a higher Court or a larger
bench or coordinate bench would be binding on a bench of a lesser
strength. The exception to the applicability of the law of
precedent is, if on the facts of a given case and the law applicable,
the case falls for good and valid reasons within the exception
specified in the judgment, or that the judgment is per incuriam,
sub silentio and/or hit by stare decisis. Unless the subsequent
judgment discusses such an issue and records reasons, it may fall
within the mischief of violating the law of precedent which may
not be in conformity with the canons of judicial discipline. The
concept of certainty and finality is essential in judicial decision
making process.
20. Whether a precedent is binding and effective itself is
an issue to be considered by the Court. The ratio and effect of
the judgment is required to be ascertained with reference to the
question of law as decided by the Court. The ratio of the
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32
judgment or the principle upon which the question before the
Court is decided is alone binding as a precedent, and this must be
ascertained and determined by analysing all the material facts and
issues involved in the case. While observing so, the Supreme
Court in the case of ICICI Bank & Anr. v. Municipal Corporation of
Greater Bombay & Ors., (2005)6 SCC 404 relied upon the decision
in the matter of Paisner v. Goodrich, (1955)2 All ER 530, (All ER at
p.332 H-1), where Lord Denning observed :-
“When the judges of this Court give a decision
on the interpretation of an Act of Parliament, the
decision itself is binding on them and their
successors: see Cull v. IRC, (1939)3 All ER 761,Morelle Ltd. v. Wakeling, (1955)1 All ER 708.
But the words which the judges use in giving thedecision are not binding. This is often a very
fine distinction, because the decision can only be
expressed in words. Nevertheless, it is a real
distinction which will best be appreciated byremembering that, when interpreting a statute,
the sole function of the court is to apply the
words of the statute to a given situation. Once a
decision has been reached on that situation, the
doctrine of precedent requires us to aply thestatute in the same way in any similar situation;
but not in a different situation. Wherever a new
situation emerges, not covered by previous
decisions, the courts must be governed by the
statute and not by the wordsw of the judges.”
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33
21. The Supreme Court in the case of Bharat Petroleum
Corpn. Ltd. v. Mumbai Shramik Sangh & Ors., (2001)4 SCC 448
held as under: –
“2. We are of the view that a decision of a
Constitution Bench of this Court binds a Bench of
two learned Judges of this Court and that judicialdiscipline obliges them to follow it, regardless of
their doubts about its correctness. At the most,they could have ordered that the matter be heard
by a Bench of three learned Judges.”
22. The settled principle of judicial discipline and
propriety requires that a smaller Bench normally may not question
the correctness of the decision of a larger Bench even on the
ground of sub silentio or per incuriam. Generally, it would lie in
the domain of equi Bench to make a reference. The concept of
finality as well as judicial hierarchy in the administration of justice
would suffer if the norm of precedent is not applied to the
functioning of the Court, much less a smaller Bench, that even a
equi Bench is expected to follow the law, may be for valid and
appropriate reason. It may request for a reference to a larger
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34
Bench but the earlier decision cannot be thrown out for any
purposes whatsoever.
23. In contra distinction to a binding precedent, the Court
has to be careful about the `obiter dictum’ made by a court in a
judgment. Again in the case of Director of Settlements, A.P. & Ors.
v. M.R. Apparao & Anr., (2002)4 SCC 638, the Supreme Court held
that it was necessary to follow the law declared by the Supreme
Court and said that a judgment of the Court has to be read in
context of questions which arose for consideration in the case in
which the judgment was delivered. An “obiter dictum” as
distinguished from a “ratio decidendi” is an observation by the
Court on a legal question suggested in a case before it but not
arising in such manner as to require a decision. Such an obiter
may not have an effect of a binding precedent but it cannot be
denied that it is of considerable weight.
24. The law of precedent thus takes in its ambit an
implied but apparent requirement of following the judicial dictum
settled by the Superior Court, a larger Bench with strict
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35
application equally binding is the judgment of an earlier
coordinate bench unless there are grounds and reasons felt by the
Bench dealing with subsequent matter that the law enunciated by
an earlier judgment falls within the exceptions of law of precedent
and the facts and circumstances of the case so require. As already
noticed, such an approach would be essential to maintain judicial
discipline, consistency and certainty in judicial decisions to
advance the doctrine of finality. The Full Bench Judgment of this
Court in Shankarrao’s case (supra) as well as the judgment of the
Supreme Court in Shrikant Karulkar’s case (supra) were before the
learned Single Judge. As already noticed, the Supreme Court in
the case Delhi Administration v. Manoharlal (supra), had observed
that the High Court and all other courts in the country were no
doubt ordained to follow and apply the law declared by this Court,
and responsibility to find out the ratio of the decision and
ascertain the law, if any, so declared from a careful reading of the
decision concerned and only thereafter proceed to apply it
appropriately, to the cases before them. Therefore, in our humble
view, the appropriate course of action that the learned Single
Judge ought to have taken was to decide the case in light of the
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36
law stated in the aforesaid two judgments, if in the opinion of the
learned Single Judge the law stated by the Full Bench was not a
good law in view of the judgment of the Supreme Court, the
judgment of the Supreme Court being that of the superior Court
and in terms of Article 141 of the Constitution of India, the same
being binding on all Courts, Tribunals and the Government as the
law of land declared by the Supreme Court should be followed.
On the other hand, if the learned Single Judge felt that the
Supreme Court had practically accepted the view of the Full Bench
or there was no conflict between the two judgments, the principles
stated by the Full Bench could have been applied. Be that as it
may, it is not necessary for this Bench to deliberate on the said
issue any further. Suffice it to note that the learned Single Judge,
while relying upon Rule 7(1) of the Bombay High Court (Appellate
Side) Rules, 1960, felt that it would be more advantageous that
the matter be heard and decided by two or more judges, which
view was accepted by one of us ( Chief Justice ), and the present
Bench was constituted. Since the learned Single Judge had
framed no questions of law for reference to a larger Bench, this
Bench by its order dated 26th August, 2009 formulated the
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37
questions of law. The said questions of law as are of some
importance, it would be more advantageous that the matter be
heard and decided by a larger Bench. Thus, we would proceed to
discuss the questions of law formulated by us.
25. The ratio decidendi of a previous judgment if
applicable to a fact of a subsequent case would be a binding
precedent. Similarly, an obiter dicta of the Supreme Court again
is having a binding effect but not of the value as that of a binding
precedent if the obiter is a finding recorded on the facts of a given
case. Mere observations on facts, the superior Court cannot be
said to be binding precedent. However, they may have some
weightage or persuasive value subject to exercise of judicial
discretion by the Court hearing the case. Once the “ratio
decidendi” of an earlier judgment does not fall within the three
exceptions i.e. Per incuriam, stare decisis and/or sub silentio with
reference to facts and law of a subsequent case, it would be a
binding precedent to be followed, particularly where the judgment
is of the Supreme Court. It will be law of land and binding in
terms of Article 141 of the Constitution of India. The judgment of
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38
the Supreme Court in the case of Shrikant Karulkar (supra) has to
be taken as a binding precedent. Before the Supreme Court, the
Appellants had raised the contentions based on the Full Bench
Judgment of the Bombay High Court in the case of Shankarrao’s
(supra) which was duly considered by the Supreme Court and
upon discussion the findings were recorded in paragraph 9 of the
judgment. In other words, a point was raised, argued and
entertained by the Supreme Court with direct reference to the
question for consideration before that Court and the reasoned
findings were recorded. Quantitative and qualitative value of the
findings recorded by the superior Court cannot be a matter of
consideration before a Court as the judgment of the Supreme
Court is binding in terms of the Constitutional mandate on all
other Courts. Thus, we must accept the judgment of the Supreme
Court to the facts and circumstances of the case before us in its
appropriate perspective.
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39
KEEPING IN VIEW THE PROVISIONS OF THE MAHARASHTRA
ACT, HOW THE LAW DECLARED BY THE FULL BENCH IS TO
BE CONSTRUED IN LIGHT OF THE JUDGMENT OF THE
SUPREME COURT:
26. At the very outset, it will be important for us to
examine the provisions of Section 3(2) of the Maharashtra Act.
Section 3(2) of the Maharashtra Act reads thus:-
“3(2) All the land held by a person, or as the
case may be, a family unit whether in this State or
any other part of India in excess of the ceiling
area, shall, notwithstanding anything contained inany law for the time being in force or usage, be
deemed to be surplus land, and shall be dealt with
in the manner hereinafter provided for surplus
land.
In determining surplus land from the
holdings of a person, or as the case may be, of a
family unit, the fact that the person or any
member of the family unit has died (on or after
commencement date or any date subsequent tothe date on which the holding exceeds the ceiling
area, but before the declaration of surplus land is
made in respect of that holding ) shall be ignored;
and accordingly, the surplus land shall be
determined as if that person, or as the case maybe, the member of a family unit had not died.
Explanation:- In calculating the ceiling area to be
held in this State, and determining the surplus
land, the area of land in any other part of India
(being land which a person or family unit is::: Downloaded on – 09/06/2013 15:13:55 :::
40entitled to hold in such other part of India under
any law relating to ceiling on land) shall be takeninto consideration. Only land held in this State
may be declared as surplus.”
27. The Full Bench of this Court, while dealing with
the case of Shankarrao (supra), had declared that the above
underlined portions of Section 3(2) and explanation thereto
are extra territorial in its operation and, therefore, is unlawful
and inoperative and beyond the competence of the State
Legislature. The judgment of the Full Bench of this Court has
not been assailed in appeal before the Supreme Court either by
the parties or by the State. Thus, it has attained finality as far
as this Court is concerned. In other words, the underlined
portions “in any part of India”, and the word “whether”
occuring in Section 3(2) were declared beyond the legislative
competence of the State Legislature, and therefore, were struck
down. The Bench further clarified that the entire explanation
clause to sub-section (2) of Section 3 of the Maharashtra Act
was unlawful and declared it inoperative as being beyond the
legislative competence of the State Legislature. The Judgment
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41
of the Full Bench was declared in the year 1980. Since then
neither the State Legislature has taken any steps to amend the
provision of Section 3(2) of the Maharashtra Act nor the State
Government has assailed the judgment of the Court before the
Higher Court. The obvious and inevitable result is that the
judgment of the Full Bench of this Court has been accepted by
the parties and now for all these 28 years, the said judgment
has remained in force. Large number of cases have been dealt
with and disposed of by this Court in terms of law enunciated
by the Full Bench of this Court.
28. Both the parties before us had relied upon and
referred to the judgment of the Supreme Court in the case of
Shrikant Karulkar (supra). In that case, the Supreme Court was
considering the provisions of Section 6(3A) of Gujarat Agricultural
Land Ceiling Act, 1960 (hereinafter referred to as the “Gujarat
Act”). In order to avoid any ambiguity, we consider it appropriate
to reproduce the said provision at this juncture itself. Section
6(3A) of the Gujarat Act reads thus:-
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42
“6(3A) Where any person hold any land in
any other part of the India outside the State,
then, the area of land so held by him in such
other part, not exceeding the maximum area of
land, which such person is entitled to hold in
such other part of India under any law, if any,
relating to ceiling on land, used or capable of
being used for agricultural purposes, shall be
excluded from the ceiling area in excess of which
a person is not entitled to hold land under this
section and the extent of land determined after so
excluding such area shall in relation to such
person, be deemed to be the ceiling area, held by
him in this State: Provided that where any such
disposes of, at any time before the determination
of ceiling area under this Act, any land or part
thereof so held by him in any other part of India
outside the State, in accordance with the
provisions of law in force in such part, the area
equal to the land or part thereof so disposed of
shall not be excluded while determining the
ceiling area under this sub-section.”
29. The Supreme Court, while dealing with the provisions
of Gujarat Act, discussed the question of extra territoriality with
reference to the doctrine of territorial nexus as well as examined
the implications arising out of the provisions of Section 6(3A) of
the Gujarat Act. It will be useful to reproduce the relevant extract
of the Supreme Court judgment. The Supreme Court after noticing
the provisions in paragraph 3 held as under:-
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43
“3. ……………………………………………………………
It is clear from the plain languageof Section 6(3-
A) of the Act that for the purpose of computing
the permissible area of a person in the State of
Gujarat the area held by him in any other part of
India, not exceeding the maximum area of landwhich such person is entitled to hold there, is to
be excluded from the permissible ceiling area
under the Act. In other words, the ceiling area of
land permissible under the Act is reduced bydeducting the area of the land owned by a person
in another State —- not exceeding the maximumarea of land which such person is entitled to hold
in the other State —- and whatever is the balance
would be the ceiling area in the State of Gujaratunder the Act. If a person already holds land in
other State/States in excess of the ceiling
provided under the Act, he becomes disentitled to
hold any land in the State of Gujarat. Holding
agricultural land outside the State of Gujarat is,thus, considered as a relevant factor for deciding
whether a person can hold agricultural land in theState of Gujarat and, if so, to what extent.”
30. Paragraphs 7 to 9 of the Supreme Court Judgment in
Shrikant Karulkar’s case (supra) are the other observations which
need to be referred by us in order to examine the matter in its
proper perspective.
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44
“7. It is no doubt correct that under Article
245 and 246 of the Constitution of India
the Legislature of a State can make laws
for the State or any part thereof. It
would be overstepping the limits of its
legislative field when it purports to
affect men and property outside the
State. In other words the State
Legislature has no legislative
competence to make laws which have
extraterriotorial operation. Meaning of
the words “extraterritorial operation”
have been authoritatively laid down by
this Court in various judgments. A State
ig Legislature has plenary jurisdiction to
enact laws in respect of subjects in Lists
II and III, Seventh Schedule,
Constitution of India. Such laws may be
in respect of persons withijn the
territory, of property —- immovable or
movable —- situated within the State,
or of acts and events which occur within
its borders. So long as the law made by
the State Legislature is applicable to the
persons residing within its territory and
to all things and acts within its territory,
it cannot be considered extraterritorial.
This Court —- over a period of three
decades —- has evolved a principle
called “doctrine of territorial nexus” to
find out whether the provisions of a
particular State law have extraterritorial
operation. The doctrine is well-
established and there is no dispute as to
its principles. If there is a territorial
nexus between the persons/property
subject-matter of the Act and the State
seeking to comply with the provisions of
the Act then the Statute cannot be
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45
considered as having extraterritorial
operation. Sufficiency of the territorial
connection involves consideration of
two elements, the connection must be
real and not illusory and the liability
sought to be imosed under the Act must
be relevant to that connection. The Act
has to satisfy the principles of territorial
nexus which are essentially discernible
from the factual application of the
provisions of the Act.
8. The State Legislature has the legislative
ig competence to enact th Act under Entry
18, List II, read with Entry 42, Seventh
Schedule, Constitution of India. The
lands —- governed by the provisions of
the Act —- are situated within the
territory of the State of Gujarat. The
provisions of the Act provide for
frixation of ceiling in respect of the
agricultural lands which are within the
territory of the State of Gujarat. The
declaration of the surplus land under
the Act is also in respect of the lands
held by various persons in the State of
Gujarat. The territorial nexus is
obvious. It is the land and the persons
holding such land within the territory of
Gujarat to which the provisions of the
Act are applicable. If a person has no
land within the State of Gujarat the
provisions of the Act are not applicable
to him or to the land which he owns
outside the territory of the State of
Gujarat. The sine qua non within the
State of Gujarat. The territorial
connection is thus, real and sufficient
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46
and the liability sought to be imposed
under Section 6(3-A) of the Act is
directly in relation to that connection.
The factum of a person holding land
outside the State of Guajarat is
undoubtedly an aspect pertinent to the
question of his entitlement under the
Act to hold land in the State of Gujarat.
There is no dispute that within the State
a ceiling can be fixed by law beyond
which no person can hold agricultural
land, and if for determining the extent
of said ceiling, the land held by a person
outside the State is taken into
ig consideration, the law pertaining to
fixation of ceiling would not become
extraterritorial. In pith and substance
the law remains to be a legislation
imposing the ceiling on holding of land
within the State under Entry 18, List II,
read with Entry 42, List III, Seventh
Schedule, Constitution of India. Mere
consideration of some factors which
exist outside the State, for the purpose
of legislating in respect ofr the subject
for which the legislature is competent to
make law, would not amount to
extraterritorial legislation. Such
considerations are part of the plenary
legislative function of the State
Legislature. The legislative entries not
only indicate the subjects for the
exercise of legislative power but their
scope is much wider in the sense that
they specify a field for legislation on the
subject concerned. Therefore, when a
statute fixes a ceiling on agricultural
land holding within the State, it would
not become extraterritorial simly
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47
because it provides that while
determining the permissible area of a
person under the said statute the land
owned by him outside the State is to be
taken into consideration. We are,
therefore, of the view that the
impugned provisions are within the
legislative competence of the State
Legislature and have been validly
enacted.
9. The learned counsel for the appellants
have placed reliance on the Full Bench
judgment of the Bombay High Court in
ig Shankarrao v. State of Maharashtra,
1980 Mah. LJ 888 and other connected
matters decided on 2-10-1980. We
have been taken through the judgment
of the Full Bench. Section 3(2) of the
Maharashtra Agricultural Lands Act,
1961 ( Bombay Act) which was struck
down by the Bombay High Court was as
under:-
“All land held by a person, or as
the case may be, a family unit
whether in this State or any other
part of India in excess of theceilinhg area, shall,
notwithstanding anything
contained in any law for the time
being in force or usage, be deemed
to be surplus land, and shall bedealt with in the manner
hereinafter provided for surplus
land …..”
It is obvious that the provisions of Section 6(3-A)
of the Gujarat Act and Section 3(2) of the
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48
Maharashtra Act are entirely different. On the
plain reading of Section 3(2) of the Maharashtra
Act it is patent that the Maharashtra Legislature
was making law in respect of the land held by a
person anywhere in India. The expression “all
land held by a person or as the case may be by a
family unit whether in this State or any other part
of India…” clearly indicates the intention on the
part of the Maharashtra Legislature to make
extraterritorial law. No assistance can, thus, be
taken by the learned counsel from the Full Bench
judgment of the Bombay High Court. Even
otherwise we are of the view that vasrious
observations made by the learned Judges of the
Bombay High Court are, rather, broadly stated
and require to be straightened, if necessary, in
some appropriate proceedings.”
31. Here it is appropriate to make reference to a decision
in the case of Som Mittal v. State of Karnataka, (2008)3 SCC 574,
where the Supreme Court held that the stray observation or obiter
of the Supreme Court cannot be relied to do away with the ratio of
the judgment.
32. From a bare reading of the above paragraphs in the
Supreme Court judgment in Shrikant Karulkar’s case (supra), it is
clear that; (a) the provisions of Section 6(3-A) of the Gujarat Act
were held to be not suffering from the legislative vice of extra
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49
territorial legislation as the essentials of the doctrine of territorial
nexus were satisfied. The territorial connection was found to be
real and sufficient and the liability sought to be imposed under
Section 6(3-A) of the Gujarat Act was noticed to be direct in that
connection. The statute which fixes ceiling on an agricultural land
holding within the State, would not become extra territorial simply
because it provides that while determining the permissible area of
a person under the said Statute the land owned by him outside the
State is to be taken into consideration. Thus, it was held that
Section 6(3-A) of the Gujarat Act does not have extra territorial
operation and the appeal preferred by the land owners was
dismissed; (b) the Supreme Court noticed the provisions of
Section 3(2) of the Maharashtra Act and specifically held in
paragraph 9 that the provisions of Section 6(3A) of the Gujarat Act
and Section 3(2) of the Maharashtra Act are entirely different; (c)
The supreme Court specifically held that the expression “all land
held by a person, or as the case may be, by a family unit whether
in this State or any other part of India…” clearly indicated the
intention on the part of the Maharashtra Legislature to make extra
territorial law. The above dichotomy of the findings clearly shows
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50
that the view taken by the Full Bench of this Court was specifically
noticed by the Supreme Court with approval. The provisions of
the Maharashtra Act were found to be entirely different than the
Gujarat Act, of course, only limited part of the provision of Section
3(2) of the Maharashtra Act, has been reproduced in the judgment
of the Supreme Court however as noticed in the opening line of
paragraph 9 the provisions were brought to the notice of the Court
and it had been gone into by the Supreme Court. These
undisputed facts and categorical findings recorded by the Supreme
Court, which are binding on us, leaves no further doubt in our
minds that the provisions of the Maharashtra Act are different and
distinct from the provisions of the Gujarat Act, as held by the
Supreme Court. The provisions of the Gujarat Act were held to be
not having extra territorial operation while the provisions of the
Maharashtra Act were clearly stated to be based on intent of the
Maharashtra Legislature to make extra territorial law which in face
of Articles 245, 246 of the Constitution of India was not
permissible. The observations of the Supreme Court in paragraph
9 of the judgment that the principles broadly stated by the Full
Bench are required to be straightened, if necessary, in some
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51
appropriate proccedings, neither falls within the amibt of binding
precedent nor even a obiter dictum. These are mere observations
of the Supreme Court. The stand of the Full Bench of this Court
was not overruled even impliedly much less expressly. The
findings recorded by the Supreme Court take the same view as is
expressed by the Full Bench of this Court and therefore, would be
a binding precedent as far as this Court is concerned. We may also
notice that these observations of the Supreme Court at best can be
referred to the view expressed by the Full Bench of this Court in
the case of Shankarrao (supra) where it observed that the Ceiling
Acts of Gujarat and Maharashtra are similar and on par. Thus, we
have to follow what has been infact decided with reference to the
direct provisions of the Maharashtra Act and follow it as a binding
precedent. A mere observation by the Supreme Court will have to
be understood in its proper perspective and with reference to the
part of the findings which are directly in conflict with the
observations or findings recorded by the full Bench of this Court in
Shankarrao’s case (supra).
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52
33. In the case of Punjab Land Development v. Presiding
Officer, Labour Court, (1990)3 SCC 682, the Supreme Court while
referring to ratio decidendi of a case observed that the only thing
in a Judge’s decision binding as an authority upon a subsequent
Judge is the principle upon which the case was decided. The ratio
decidendi of a decision may be narrowed or widened by the
Judges before whom it was cited as a precedent. In the process,
the ratio decidendi which the judges who decided the case would
themselves have chosen may be even different from the one which
has been approved by subsequent judges. Therefore, that is
binding.
34. Now we will proceed on the basis that, as noticed by
the Supreme Court, the provisions of the Maharashtra and Gujarat
Act are entirely different. A bare reading of the provisions of the
Gujarat Act shows that any land which any person is entitled to
hold in such other part of India outside the State under the law, if
any, relating to ceiling on land, shall be excluded from the ceiling
area in excess to which a person is not entitled hold a land under
those provisions and the extent of land determined after so
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53
excluding such area shall in relation to such person, be deemed to
be ceiling area, held by him in the State of Gujarat. Therefore, the
provisions of the Gujarat Act contemplates “exclusion or
reduction”. The term “exclusion” is derived from the word
“exclude” which means deny access to or keep out or remove from
consideration and exclusion is the process or state of excluding or
being excluded. ( Ref : Oxford Dictionary, Indian Edition ).
35.
Section 3(2) of the Maharashtra Act does not use the
expression “excluded”. On the contrary, under the Maharashtra
Act, it states that all land held by a person, whether in this State or
in any other part of India in excess of ceiling area shall,
notwithstanding anything contained in any other law for the time
being in force would be deemed to be surplus land. The
explanation then provides how the surplus land is to be calculated.
In terms of explanation, while calculating the ceiling area to be
held in the State of Maharashtra, and determining the surplus
land, the area of land in any part of India, being land which a
person or family unit is entitled to hold in such other part of India
under any law relating to ceiling on land, shall be taken into
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54
consideration, though, only the land held in the State may be
declared as surplus. As is obvious, in contra distinction to the
provisions of the Gujarat Act which uses the word
“excluded/excluding”, the land held in other State has to be taken
into consideration while calculating the surplus land. The
expression “consideration” means a fact that is taken into account
for making a decision. The consideration normally would not
mean incidental or colateral. It has to be a matter directly
connected to the subject matter. ( Ref : Aiyar’s Judicial
Dictionary, 11th Edition ).
36. The provisions of the Maharashtra Act thus are to be
examined while keeping in mind the fact that the expression
noticed by the Full Bench is no longer valid and in fact does not
remain on the statute book as a lawful piece of legislation. The
two main distinctions, therefore, will be the extra territorial law
emerging in Section 3(2) of the Maharashtra Act and use of the
word “consideration” instead of word “exclusion” as used in
Section 6(3-A) of the Gujarat Act.
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55
37. The Supreme Court, having unambiguously found
that the provisions of the Acts of two States viz. Gujarat and
Maharashtra were distinct and different, there is nothing in the
judgment which would demonstrate that the Supreme Court has
set-aside the reasons recorded by the Full Bench (Shankarrao’s
case) while declaring the part of provisions of section 3(2) as
extra-territorial. On the contrary, the Supreme Court itself has
come to a definite conclusion that the provisions of the
Maharashtra Act are extra-territorial and therefore, the question of
legislative competence would hit the provisions. In the light of
these findings, the judgment of the Full Bench can hardly be
faulted with except to the extent we have specifically noticed. The
determination of land holding has to be examined and the
calculations as to surplus must be made in terms of provisions of
section 3(2) while ignoring the offending expressions used by the
Legislature in that provision. Interestingly, notice can be taken of
another judgment of the Supreme Court in Tatoba Bhau Savagave
(dead) by LRs. and another v. Vasantrao Dhindiraj Deshpande and
others, (2001) 8 SCC 501, where the Supreme Court was
considering the provisions of Section 43(1-B) of the Bombay
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56
Tenancy and Agriculture Lands Act, 1948, in relation to the land
owner who was a member of the Armed Forces claiming
exemption to the extent of his share in certain lands held by the
tenants. The application was dismissed as not maintainable but
the revision was allowed by the High Court remanding the matter
to the Collector requiring him to record the findings. The decision
of the Collector was confirmed in revision and by the High Court in
its writ jurisdiction. The authorities had taken into consideration
the land held by the member of the Armed Forces in Karnataka
and added the same to the land held by him in Maharashtra to
calculate the entitlement of exemption. The Supreme Court
referred to its judgment in Shrikant Karulkar’s case and held as
under:
“12. Relying on the judgment of this Court in
Shrikant Bhalchandra Karulkar v. State of Gujarat
it was urged by Mr. Lalit that as there was
territorial nexus in this case hence the land of the
first respondent in Karnataka State had to betaken into computation. We are unable to agree
with this submission. In that case the validity of
Section 6(3-A) of the Gujarat Agricultural Lands
Ceiling Act, 1960 was under challenge. The High
Court upheld the validity of the said provision.
On appeal, this Court confirmed the judgment of::: Downloaded on – 09/06/2013 15:13:56 :::
57the High Court. It was held: (SCC pp. 463-64,
para 7)“This Court – over a period of three decades
– has evolved a principle called `doctrine of
territorial nexus’ to find out whether the
provisions of a particular State law have
extraterritorial operation. The doctrine is
well established and there is no dispute asto its principles. If there is a territorial
nexus between the persons/property
subject-matter of the Act and the State
seeking to comply with the provisions ofthe Act then the statute cannot be
ig considered as having extraterritorial
operation. Sufficiency of the territorial
connection involves consideration of two
elements, the connection must be real andnot illusory and the liability sought to be
imposed under the Act must be relevant to
that connection. The Act has to satisfy the
principles of territorial nexus which areessentially discernible from the factual
application of the provisions of the Act.”
13. In the instant case there is no provision in
the Act like Section 6(3-A) of the said Gujarat Act.
That judgment is of no help to the appellant.”
38. As the provisions like section 6(3-A) of the Gujarat
Act were not to be found in the Bombay Tenancy Act the view
taken by the High Court setting-aside the action of the authorities
in taking into consideration the land in Karnataka was affirmed.
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58
Thus, the absence of specific provision was found to be the basic
infirmity in the actions of the respondents while in the present
case the provisions of section 3(2) of the Maharashtra Act as
enacted suffer from excessive legislation. The State Legislature
has no powers to enact laws which will have real and effective
impact on the property situated in another State. The section to
that extent has extra-territorial operation and is not protected by
the doctrine of territorial nexus and therefore, necessarily has to
be quashed. The Supreme Court and the Full Bench of this Court
have clearly stated the law that the provisions of section 3(2) of
the Maharashtra Act to the extent mentioned in Full Bench
judgment in Shankarrao’s case are beyond legislative competence
of the State Legislature.
CONCLUSIONS
39. Since we were of the considered view that the
findings recorded by the Supreme Court in para 9 of the judgment
in the case of Shrikant Karulkar (supra) has the force of “ratio
decidindi” to be followed by us in the present case, we felt it
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59
unnecessary to discuss in detail the principle of statutory
interpretation in relation to the provisions of section 3(2) of the
Maharashtra Act. In any case, the Full Bench judgment of this case
in the case of Shankarrao (supra) holding part of Section 3(2)
ultra vires on the principle of extra territorial operation having
found favour with the Supreme Court as well, that question in any
case, hardly calls for any further deliberation. On appropriate
analysis of the law of precedent and other principles of law stated
by us (supra) and particularly in terms of the judgment of the
Supreme Court in Shrikant’s case it is evident that there is a clear
markable distinction between the provisions of section 3(2) of the
Maharashtra Act and section 6(3-A) of the Gujarat Act. The
Supreme Court has recorded that they are `entirely different’. The
second linguistic distinction between the two provisions which is
bound to have some effect on the application of these provisions is
the use of the word `consideration’ in the explanation to section
3(2) of the Maharashtra Act and “exclusion” in section 6(3-A).
These words convey the legislative intent which has to be given its
ordinary meaning in implementing the provisions of the Act. It is
a settled principle of law that no sentence or word in a provision is
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60
used by the Legislature without any purpose. Unless otherwise
necessitated, every word has to be given its meaning in accordance
with the doctrine of “plain interpretation” unless there were
compelling circumstances to divert from such an approach. The
part of provisions of Section 3(2) of the Maharashtra Act has been
stated to be exfacie extra territorial in its operation and, thus,
beyond legislative competence of the State. Extra territorium jus
dicenti non paretur impune. One who exercises jurisdiction out of
his territory is not obeyed with impunity.
40. Neither we are expected nor we propose to go into
the question of calculation of surplus land on the basis of the
principle aforestated. We are required only to state/re-state the
principles of law which emerge from the judgment of the Supreme
Court (Shrikant’s case) , Full Bench of this court (Shankarrao’s
case) and the provisions of section 3(2) of the Maharashtra Act.
The merits of the matter and impact of the principles stated on the
question of calculation of surplus land will have to be examined by
the court of competent jurisdiction. However, we are unable to
approve the finding recorded by the Full Bench (Shankarrao’s
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61
case) that the provisions of the Maharashtra Act and the Gujarat
Act are “on par” or similar. These observations cannot hold the
field primarily for the reason that the Supreme Court in the case of
Shrikant Karulkar (supra) has returned the finding that these
provisions are “entirely different”. The distinction between the
provisions is not a fine one but there is a markable difference in
language and its consequencial effect in law. In the Maharashtra
Act, there is not merely a reference to the land held in other State
but in fact, all the land held by a person or a family unit whether
in the State of Maharashtra or any other part of India in excess of
ceiling area by deeming fiction of law becomes the surplus land.
As per the explanation provided to Section 3(2) in calculating the
ceiling area to be held in Maharashtra State and determining
“surplus land”, the area of land in any part of India shall be taken
into consideration. Considering all the land held by a person or as
the case may be by a family unit whether in State or any part of
India, was found to be beyond legislative competence of the State
by the Full Bench (Shankarrao’s case) and was termed by the
Supreme Court as an “intent to enact extra territorial law”. We
have already indicated that the observations recorded by the
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62
Supreme Court in the last line of para 9 are neither a binding
precedent nor obiter. They are simple observations made by the
Supreme Court expressing its desire to state the law in a better
manner than the law stated by Full Bench of this court. These
observations of the Supreme Court are ascribable to the
observations of the Full Bench with regard to the similarity
between the provisions of the Maharashtra and Gujarat Act.
41.
It was contended before us that as per the judicial
dictum stated by the Supreme Court in the case of Srikant
Karulkar (supra) the provisions of section 6(3A) of the Gujarat Act
were not having an extra territorial operation and as such, the
provisions of section 3(2) of the Maharashtra Act would also have
to fall in the same category and to that extent, Full Bench
judgment of this court would stand overruled. Firstly, this
contention is misconceived. The Supreme Court neither
specifically nor by necessary implication has set aside the Full
Bench judgment of this court. On the contrary, it has specifically
stated that the provisions of section 3(2) of the Maharashtra Act is
a law enacted by the legislature with the intent of creating an
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63
extraterritorial law. The Supreme Court after noticing the Full
Bench judgment in Shankarrao’s case specifically held that the
provisions of the Maharashtra and Gujarat Acts were entirely
different. In these circumstances, this contention is incapable of
acceptance. Furthermore, in the case of K. Sahadeo v. Suresh,
1995 SCC (Supp) 3), 668, the Supreme Court enunciated the
principle that:-
“5.
ig In our opinion the learned Single Judge in
recording the finding that the decision in AtaurRehman was no more a good law, did not act
properly as unless the decision in Ataur Rehman
was set aside by a larger bench the declaration
given by it that Section 4 was ultra vires could notbe put at naught by a decision given by this Court
in respect of another Act. The proper course forthe learned Single Judge was to refer the matter to
the Division Bench. In the absence of any such
decision by a larger bench the section could not
revive.”
42. Merely because the provisions of some enactments
appear to be para materia, they cannot be stated to be impliedly
struck down. Merely because the provisions of Gujarat Act were
upheld by the Supreme Court would not mean that the provisions
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64
of Maharashtra Act are also free from any legal infirmity, more so
when they have been found to be distinctly different.
43. Now we proceed to record our answers to the
questions formulated by us in our order dated 26th August, 2009:
(a) In our humble view, the appropriate course of
ig action before the learned Single Judge would
have been to decide the case in the light of
the judgment of the Full Bench of this court in
Shankarrao’s case (supra) and the judgment of
the Supreme Court in the case of Shrikant
Karulkar (supra). However, keeping in view
the language of Rule 7 of the Bombay High
Court, Appellate Side Rules, 1960 and feeling
that the matter can be appropriately decided
by the larger bench, the question raised being
of some importance, this Bench has proceeded
to deal with the matter on merits.
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65
(b) From the findings recorded by the Supreme
Court in the case of Srikant Karulkar (supra),
it is clear that the Full Bench judgment of this
court has neither been overruled nor can be
stated to be incorrect exposition of law. To
reiterate and follow the dictum of the
Supreme Court, we hold that the provisions of
ig section 3(2) of the Maharashtra Act are
‘entirely different’ from section 6(3-A) of the
Gujarat Act. The view of the Full Bench of
this court in the case of Shankarrao (supra)
holding that the words “all the land held by a
person or as the case may be by a family unit
whether in this State or any part of India”,
had extra territorial operation and are,
therefore, beyond the legislative competence
of the State Legislature is approved by the
Supreme Court. Thus, these provisions
cannot be given effect to since it has an extra
territorial operation beyond the State of
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66
Maharashtra. In fact, it does not exist in the
statute book in view of the decision of the
Full Bench that the same is unconstitutional.
We make it clear that the finding recorded by
the Full Bench treating the two provisions are
similar and on par is not a good statement in
law. Whereas the judgment of the Supreme
ig Court that these provisions are entirely
different shall be binding on this court. The
observations that Section 3(2) of Maharashtra
Act and Section 6(3-A) of Gujarat Act are
“similar and on par”, made by the Full Bench
alone have been disapproved by the Supreme
Court.
(c) As far as question (c) is concerned, it need not
be answered by us as it will be purely an
academic question in view of our answer to
questions (a) and (b) and would hardly arise
for consideration.
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67
44. Having answered the questions of law as formulated
by this Bench, now we direct the matter to be placed before the
learned Single Judge for disposal in accordance with law. Keeping
in view the importance of the questions involved in the present
case, we leave the parties to bear their own costs.
CHIEF JUSTICE
S.B. MHASE, J
A.M. KHANWILKAR, J
A.S. OKA, J
R.M. SAVANT, J
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