{"id":74140,"date":"2009-10-16T00:00:00","date_gmt":"2009-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-shri-murarao-malojirao-ghorpade-on-16-october-2009"},"modified":"2017-08-05T13:14:12","modified_gmt":"2017-08-05T07:44:12","slug":"the-state-of-maharashtra-vs-shri-murarao-malojirao-ghorpade-on-16-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-shri-murarao-malojirao-ghorpade-on-16-october-2009","title":{"rendered":"The State Of Maharashtra vs Shri Murarao Malojirao Ghorpade on 16 October, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The State Of Maharashtra vs Shri Murarao Malojirao Ghorpade on 16 October, 2009<\/div>\n
Bench: S.B. Mhase, A.M. Khanwilkar<\/div>\n
                             1\n\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                   \n                  CIVIL APPELLATE JURISDICTION \n\n                     SECOND APPEAL NO. 411 OF 1990\n\n\n\n\n                                           \n     1.   The State of Maharashtra,              )       Appellant \n\n\n\n\n                                          \n                                                         Orig.Defendant\n     2.   Chairman, Surplus Lands                )\n          Determination Tribunal,                )\n          Ajara, District - Kolhapur.            )\n\n\n\n\n                                \n     3.   The Chairman, Lands Distribution\n                   ig                            )\n          Tribunal, Ajara, Dist. - Kolhapur.     )\n                 \n                       Versus\n\n\n     1.   Shri Murarao Malojirao Ghorpade,       )\n      \n\n          Age 56 years, Occu: Agri.& Service,    )\n          Gajendragad at Present Nipani, )\n   \n\n\n\n          District - Belagaum.                   )\n\n     2.   Smt. Ashwanidevi W\/o. Shanbhusing )\n          Ghorpade, age 34, r\/o - do-       )\n\n\n\n\n\n     3.   Shri Daulatrao Shambhusing Ghorpade,)\n          Age 14, Minor, through G.A. L.    )\n          Plaintiff No.2.                   ).... Respondents\n                                                 (Org.Plaintiffs )\n\n\n\n\n\n                --\n<\/pre>\n
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\n                                2<\/span><\/p>\n
                                  ALONG WITH <\/p>\n
                   CIVIL APPLICATION NO. 2431 OF 1993
\n                                   IN
\n                     SECOND APPEAL NO. 411 OF 1990<\/p>\n
     1.    The State of Maharashtra,                  )<\/p>\n
     2.    Chairman, Surplus Lands                    )
\n           Determination Tribunal,                    )
\n           Ajara, District – Kolhapur.                )<\/p>\n
     3.    The Chairman, Lands Distribution
\n                     ig                               )
\n           Tribunal, Ajara, Dist. – Kolhapur.         )..     Petitioners<\/p>\n
                         Versus<\/p>\n
     1.    Shri Murarao Malojirao Ghorpade,           )
\n           Age 56 years, Occu: Agri.& Service,        )
\n           Gajendragad at Present Nipani, )<\/p>\n
           District – Belagaum.                       )<\/p>\n
     2.    Smt. Ashwanidevi W\/o. Shanbhusing )
\n           Ghorpade, age 34, r\/o – do-       )<\/p>\n
     3.    Shri Daulatrao Shambhusing Ghorpade,)<\/p>\n
           Age 14, Minor, through G.A. L.\/   )
\n           Respondent\/Plaintiff No.2.        )..      Respondents
\n                                                    (Org.Plaintiffs )\n<\/p>\n
                       —\n<\/p>\n
     S\/Shri   R.M.   Kadam,   Advocate   General,   with   A.A.   Kumbhakoni,
\n     N.P.   Deshpande,   AGP   and   Ms   G.P.   Mulekar,   AGP   for   the
\n     Appellants.\n<\/p>\n
     S\/Shri   D.J.   Khambatta,   Additional   Solicitor   General,   Amicus
\n     Curaie.\n<\/p>\n
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\n                                   3<\/span><\/p>\n
     Shri   Shekhar   Jagtap   with   Mrs.   Manisha   S.   Jagtap   and   Shailesh
\n     Chavan i\/by M\/s. J. Shekhar & Co. for Respondent Nos.1 and 2.\n<\/p>\n
     Shri S.P. Thorat for Respondent No.3.\n<\/p>\n
                          —\n<\/p>\n
                   CORAM :        SWATANTER KUMAR, C.J.,\n                                  S.B. MHASE, A.M. KHANWILKAR, \n\n\n\n\n                                                  \n                                  A.S. OKA & R.M. SAVANT, JJ \n\n\n\n\n                                     \n     JUDGMENT RESERVED ON       :   14TH SEPTEMBER, 2009\n                     \n<\/pre>\n
     JUDGMENT PRONOUNCED ON :  16TH OCTOBER, 2009<\/p>\n
     JUDGMENT : ( PER SWATANTER KUMAR, C.J. ) <\/p>\n
                   The   State   of   Maharashtra   enacted   the   Maharashtra <\/p>\n
     Agricultural   Lands   (Ceiling   on   Holdings)   Act,   1961   (hereinafter <\/p>\n
     referred to as “the Act”),  primarily with an  object to give effect to <\/p>\n
     the  State policy so that the operation of the economic system does <\/p>\n
     not result in the concentration of wealth and means of production <\/p>\n
     to the common detriment as well as to ensure the ownership and <\/p>\n
     control   of   the   material   resources   of   the   community   are   so <\/p>\n
     distributed as best to subserve the common good.    The Directive <\/p>\n
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\n                                   4<\/span><\/p>\n
     Principles   of   State   policy   contained   under   Part   IV   of   the <\/p>\n
     Constitution   of   India   had   attained   a   different   significance   and <\/p>\n
     legal stature of the  Directive  Principles was  uplifted by the 25th <\/p>\n
     Amendment   Act,   1971   of   the   Constitution.     Article   31-C   of   the <\/p>\n
     Constitution   states   that,   notwithstanding   anything   contained   in <\/p>\n
     Article 13, no law giving effect to the policy of the State towards <\/p>\n
     securing all or any of the principles laid down in Part IV shall be <\/p>\n
     deemed to be void on the ground that it is inconsistent with, or <\/p>\n
     takes away or abridges  any of the rights conferred by Article 14 or <\/p>\n
     Article 19 of the Constitution, and no law containing a declaration <\/p>\n
     that it is for giving effect to such policy shall be called in question <\/p>\n
     in any court on the ground that it does not give  effect to such <\/p>\n
     policy.    Article 39 of the Constitution places an obligation upon <\/p>\n
     the State under Clauses (b) and (c) to ensure and appropriately <\/p>\n
     control   the   distribution   and   ownership   of   material   resources <\/p>\n
     available to the community.   The Act, therefore, was intended to <\/p>\n
     unequivocally declare the State policy towards securing principles <\/p>\n
     specified in Clauses (b) and (c) of Article 39 of the Constitution.\n<\/p>\n
     The implementation of the provisions of the Act faced number of <\/p>\n
     practical and legal impediments and the Act, within the span of <\/p>\n
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\n                                      5<\/span><\/p>\n
     1962   to   2006,   was   subjected   to   State   Amendment   Bills   by <\/p>\n
     amending different provisions of the said Act  23 times,  including <\/p>\n
     latest amendment by Maharashtra Act 8 of 2006.  The Amendment <\/p>\n
     of 2006 was introduced by the Legislature to impose a maximum <\/p>\n
     limit   or   ceiling   on   holdings   of   agricultural   land   in   the   State   of <\/p>\n
     Maharashtra   and   to   provide   for   acquisition   and   distribution   of <\/p>\n
     land held in excess of such ceiling.\n<\/p>\n
     2.<\/p>\n
                     Ours is an agricultural country with large population <\/p>\n
     living in the rural areas and depending upon agriculture for their <\/p>\n
     livelihood.     It   was   felt   necessary   by   the   framers   of   the   Act   to <\/p>\n
     provide   that   the   lands   taken   over   from     undertakings   and   the <\/p>\n
     integrity of which is maintained in compact blocks, for ensuring <\/p>\n
     the     full   and   efficient   use   of   the   land   for   agriculture   and   its <\/p>\n
     efficient management through a Corporation or Company, the aim <\/p>\n
     was made clear to secure and distribute the agricultural land as <\/p>\n
     best to subserve the common good and thus it was felt expedient <\/p>\n
     in  the  public  interest  to impose  a  maximum  limit  or  ceiling  on <\/p>\n
     acquisition   of   land.       Section   3   of   the   Act   incorporated   the <\/p>\n
     prohibition on holding land in excess of ceiling area declaring the <\/p>\n
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\n                                    6<\/span><\/p>\n
     area   in   excess   of   ceiling   to   be   surplus   lands.       Constitutional <\/p>\n
     validity of Section 3 of the Act was challenged before a bench of <\/p>\n
     this Court.\n<\/p>\n
     3.             The   Amending   Act   21   of   1975   had   introduced   two <\/p>\n
     important changes viz. definition of ‘family unit’ and requiring a <\/p>\n
     landholder in the State to declare the agricultural land holding in <\/p>\n
     any other part of the State and States in India for the purposes of <\/p>\n
     clubbing together, in order to determine the ceiling on holdings.\n<\/p>\n
     By these  amendments, the  landholders  also had a grievance, as <\/p>\n
     under the earlier Act the land possessed by them was lower than <\/p>\n
     the ceiling limit but by amendment, even that land was partially <\/p>\n
     adversely affected.   The land owners were required to file fresh <\/p>\n
     returns   within   the   specified   time   under   the   amended   Act,   even <\/p>\n
     declaring the lands held by them situated in other States of India.\n<\/p>\n
     Various Writ Petitions were filed from time to time which came to <\/p>\n
     be clubbed together before different Benches of this Court.   The <\/p>\n
     Division Bench which was hearing the bunch of cases was inter <\/p>\n
     alia concerned with the challenge to the definition of the ‘family <\/p>\n
     unit’ and lowering of the limit.  They came to be disposed of by a <\/p>\n
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\n                                       7<\/span><\/p>\n
     judgment of this Court in the case of Vithalrao Udhaorao Uttarwar  <\/p>\n
     v. The State of Maharashtra,  AIR<\/a> 1977 Bom. 99.   However, as a <\/p>\n
     result of oversight, some matters were not listed before the Court <\/p>\n
     and they came up for hearing before another Division Bench.   The <\/p>\n
     Division   Bench   hearing   other   group   of   the   matters   at   Nagpur <\/p>\n
     found that they were unable to agree with the conclusions reached <\/p>\n
     by the Division Bench at Bombay.     In fact, the Judges presiding <\/p>\n
     over the Division Bench differed with each other on the question <\/p>\n
     of   extra   territorial   jurisdiction.     The   judgment   of   the   Court   in <\/p>\n
     Vithalrao’s case (supra) was challenged before the Supreme Court <\/p>\n
     but   in   that   Petition,   the   question   of   extra   territoriality   of   the <\/p>\n
     ceiling provision had not been raised.  In these circumstances, the <\/p>\n
     matter was placed before the Full Bench on the issue whether the <\/p>\n
     question   should   be   determined   by   the   Full   Bench   itself   or   the <\/p>\n
     matter  needs  to be  referred to a  3rd  Judge  as a member  of  the <\/p>\n
     Division   Bench   at   Nagpur   had   differed   on   certain   basic   issues, <\/p>\n
     therefore,   the   Full   Bench   while   dealing   with   the   case   of <\/p>\n
     Shankarrao   &   Ors.   v.   State   of   Maharashtra,<\/a>  1980   MhLJ   888 <\/p>\n
     decided to deal and decide  the questions of law by itself ( Full <\/p>\n
     Bench).     At   this   stage   itself,   it   will   be   relevant   to   refer   to   the <\/p>\n
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\n                                    8<\/span><\/p>\n
     questions   framed   by   the   Full   Bench.     Paragraph   4   of   the   said <\/p>\n
     judgment reads as under: –\n<\/p>\n
                 “4.     Since   the   other   challenges   are   negatived   by
\n                 the   judgment   of   the   Supreme   Court,   the   referring
\n                 judgment framed as many as three points.  With the <\/p>\n
                 consent   of   the   learned   counsel   on   either   side,   we
\n                 have reframed the questions as below:- <\/p>\n
                 (1)       Whether the scheme of section 3(1), (2) and
\n                        ig (3) read with section 4(1) as well as section
\n                           6   of   the   Maharashtra   Agricultural   Lands
\n                           (Ceiling   on   Holdings)   Act,   1961,   is   extra-
\n                           territorial in operation?\n<\/p><\/blockquote>\n
                 (2)       Whether   the   provisions   of   Chapter   III
\n                           regarding   the   restrictions   on   transfers,
\n                           acquisitions,   partitions   and   consequences <\/p>\n
                           ensuing as well as the penalties or liabilities
\n                           provided for by Sections  10(3), 21-A, 40-A <\/p>\n
                           and   section   43-A   have   extra-territorial
\n                           operation ?\n<\/p><\/blockquote>\n
                 (3)       Whether there exist nexus which is sufficient <\/p>\n
                           and pertinent for the purpose of the present
\n                           law ?\n<\/p><\/blockquote>\n
     4.             On   these   questions,   the   Full   Bench   found   that   the <\/p>\n
     provisions   of  the   Maharashtra   Act  were  extra-territorial   in   their <\/p>\n
     operation   and   therefore   declared   the   same   as   beyond   the <\/p>\n
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\n                                   9<\/span><\/p>\n
     competence   of   State   Legislature   and,   in   paragraph   27   of   the <\/p>\n
     Judgment, the Full Bench concluded as under:-\n<\/p>\n
                   “27. The   next   question   that   arises   for   our
\n                   consideration   is   whether   these   provisions   are
\n                   severable and is it possible to save the Act minus <\/p>\n
                   those provisions ?   We think it is quite possible to
\n                   give   pointed   references   to   certain   words   and
\n                   expressions   which,   if   deleted,   would   give   full
\n                   effect   to   our   conclusions   in   this   judgment.\n<\/p><\/blockquote>\n
                   Accordingly, we declare that in sub-section (2) of
\n                   section 3 the word “whether” in the first line, and <\/p>\n
                   the group of words “or any other part of India”,
\n                   occurring  in the  second line, should be declared
\n                   beyond   the   competence   of   the   State   Legislature <\/p>\n
                   and should be struck down.  As a consequence, the
\n                   entire   Explanation   clause   to   sub-section   (2)   is
\n                   unlawful   and   is   being   declared   inoperative   and
\n                   beyond   the   competence   of   the   State   Legislature.\n<\/p><\/blockquote>\n
                   We   further   hold   that   the   last   sentence   in   sub-
\n                   section   (1)   of   section   43A   beginning   with   the <\/p>\n
                   words “The person” and ending with the words “to
\n                   any Tahsildar” (i.e. “The person shall also furnish
\n                   such particular of land held by him, if any, in any
\n                   other part of India to any Tahasildar” should also <\/p>\n
                   be   declared   beyond   the   competence   of   State
\n                   Legislature.  If these provisions are struck down as
\n                   beyond the competence of the State Legislature, as
\n                   they have the effect of operating extra-territorially,
\n                   there is no other challenge before us so far as the <\/p>\n
                   Ceiling Act is concerned.”\n<\/p><\/blockquote>\n
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\n                                   10<\/span><\/p>\n
     5.             Thus, the Full Bench settled the position of law as far <\/p>\n
     as  this  Court  is  concerned  in  the  year  1980,  whereafter  certain <\/p>\n
     cases   had   been   decided   by   different   Benches   of   this   Court <\/p>\n
     following the law enunciated by the Full Bench.\n<\/p>\n
     6.             One Murarao Malojirao Ghorpade instituted suit for <\/p>\n
     declaration that the order passed in Ceiling Case No.43A and as <\/p>\n
     confirmed by the Chairman Surplus Land Determination Tribunal <\/p>\n
     was   bad,   illegal,   null   and   void,   without   jurisdiction   and <\/p>\n
     inoperative for different reasons and particularly inter alia that the <\/p>\n
     judgment   of   the   Full   Bench   of   this   Court   in   Shankarrao’s   case <\/p>\n
     (supra) was the foundation of the suit.   The suit was decreed in <\/p>\n
     favour of the Plaintiff.  The Appeal filed by the State (Civil Appeal <\/p>\n
     No.46 of 1984) also came to be dismissed vide judgment of the 3rd <\/p>\n
     Additional   District   and   Sessions   Judge,   Kolhapur   dated   23rd <\/p>\n
     October, 1989.   Being aggrieved by the affirmation of the decree <\/p>\n
     of the Trial Court dated 15th October, 1983 by the Appellate Court, <\/p>\n
     the State felt aggrieved and filed the Second Appeal before this <\/p>\n
     Court   challenging   the   decisions   of   the   Courts   below.     It   was <\/p>\n
     contended   that   the   Full   Bench   decision   of   the   Court   in <\/p>\n
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\n                                   11<\/span><\/p>\n
     Shankarrao’s case (supra)  was not applicable to the facts of this <\/p>\n
     Case.   When this Appeal came up for hearing before the learned <\/p>\n
     Single Judge of this Court for final disposal, the judgment of the <\/p>\n
     Supreme Court in  the  case  of  Shrikant Bhalchandra Karulkar  &  <\/p>\n
     Ors. v.  State   of   Gujarat,<\/a>  (1994)5  SCC    459   was   brought   to  the <\/p>\n
     notice of the learned Single Judge.     The contention was raised <\/p>\n
     that in view of the judgment of the Supreme Court, the decision of <\/p>\n
     the Full Bench of this Court was no longer a good law while on <\/p>\n
     behalf of the Respondents, the contention was that the decision of <\/p>\n
     the Full Bench was binding on the learned Single Judge and the <\/p>\n
     Court should follow the law stated rather than referring the matter <\/p>\n
     to a Larger Bench.    The learned Single Judge formed an opinion <\/p>\n
     that the matter should be referred to a Larger Bench under Rule 7 <\/p>\n
     Chapter I of the Bombay High Court (Appellate Side) Rules, 1960.\n<\/p>\n
     The order of Reference dated 28th July, 2009 reads as under:-\n<\/p>\n
                 “1.          The Second Appeal has been preferred <\/p>\n
                 by the State contending that the Courts below have
\n                 wrongly interpreted the judgment of the Full Bench
\n                 in the case of Shankarrao v\/s. State of Maharashtra,
\n                 1980   Mh.L.J.   888.       It   is   also   the   case   of   the
\n                 appellant that the Full Bench judgment of this Court
\n                 will not hold the field today in view of the decision <\/p>\n
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\n                         12<\/span><\/p>\n
       of   the   Supreme   Court   in   the   case   of   Shrikant
\n       Bhalchandra & Ors. v\/s. State of Gujarat, 1994 (5) <\/p>\n
       SCC   459.     According   to   the   appellants,   both   the
\n       Courts below have not interpreted the provisions of
\n       the   Maharashtra   Agricultural   Lands   (Ceiling   on <\/p>\n
       Holdings) Act in its true spirit.\n<\/p><\/blockquote>\n
       2.             The   question   raised   is   whether   while <\/p>\n
       determining the land holding of a person in excess
\n       of the ceiling area it is necessary to club all lands
\n       owned   by   him   anywhere   in   India   with   the   lands
\n       owned by him in the State of Maharashtra.   While <\/p>\n
       interpreting   section   3(1)   of   the   Maharashtra
\n       Agricultural   Lands   (Ceiling   on   Holdings)   Act   (for <\/p>\n
       short, hereinafter referred to as `the Ceiling Act’),
\n       the Full Bench has opined that State of Maharashtra
\n       did not have legislative competence to decide about <\/p>\n
       the   holdings   of   a   person   in   areas   other   than   the
\n       State   of   Maharashtra.       As   a   consequence   it   was
\n       held   that   the   explanation   to   subsection   (2)   of
\n       section   3 is   unlawful  and inoperative   and  beyond <\/p>\n
       the   competence   of   the   State   Legislature.   The   last
\n       sentence in subsection (1) of section 43A of the Act, <\/p>\n
       requiring a person to furnish particulars of the land
\n       held by him in other parts of India to the Tehsildar
\n       was also declared to be beyond the competence of
\n       the   State   Legislature.   While   so   holding   the   Full <\/p>\n
       Bench considered similar provisions in the State of
\n       Gujarat   and   other   adjoining   states.   The   Court
\n       observed   that   the   Agricultural   Ceiling   Acts   of
\n       Gujarat   and   Maharashtra   are   similar   and   on   par,
\n       whereas the Madhya Pradesh and Andhra Pradesh <\/p>\n
       Acts,   although   similar   do   not   take   cognisance   of
\n       holdings of agricultural lands by the holders in any
\n       other part of India.\n<\/p>\n
       3.          The   Supreme   Court   in   the   case   of
\n       Shrikant Bhalchandra Karulkar & Ors. (supra), was <\/p>\n
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\n                        13<\/span><\/p>\n
       dealing with the Gujarat Agricultural Land Ceiling
\n       Act, 1960.       The Supreme Court observed that in <\/p>\n
       view of the provisions of Article 245 and 246 of the
\n       Constitution of India, the State Legislature has no
\n       legislative   competence   to   make   laws   having   extra <\/p>\n
       territorial  operation.  The  Supreme  Court observed
\n       thus:\n<\/p>\n
               7.             It   is   no   doubt   correct   that   under
\n               Articles 245 and 246 of the Constitution  of
\n               India   the   Legislature   of   a   State   can   make
\n               laws   for   the   State   or   any   part   thereof.   It <\/p>\n
               would   be   overstepping   the   limits   of   its
\n           ig  legislative   field   when   it   purports   to   affect
\n               men and property outside the State. In other
\n               words the State Legislature has no legislative
\n               competence   to   make   laws   which   have <\/p>\n
               extraterritorial operation.     Meaning of the
\n               words “extraterritorial operation” have been
\n               authoritatively   laid   down   by   this   court   in
\n               various judgments.     A State Legislature has <\/p>\n
               plenary jurisdiction to enact laws in respect
\n               of   subjects   i   Lists   II   and   III,   Seventh <\/p>\n
               Schedule,   Constitution   of   India.   Such   laws
\n               may   be   in   respect   of   person   within   the
\n               territory,   of   property   –   immovable   or
\n               movable   –   situated   within   the   State,   or   of <\/p>\n
               acts   and   events   which   occur   within   its
\n               borders.   So   long   as   the   law   made   by   the
\n               State Legislature is applicable to the persons
\n               residing  within its territory and to all things
\n               and   acts   within   its   territory,   it   cannot   be <\/p>\n
               considered extraterritorial. This Court – over
\n               a   period   of   three   decades   –   has   evolved   a
\n               principle called “doctrine of territorial nexus”
\n               to   find   out   whether   the   provisions   of   a
\n               particular   State   law   have   extraterritorial
\n               operation.   The   doctrine   is   well-established <\/p>\n
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\n                         14<\/span><\/p>\n
                that there is no dispute as to its principles.  If
\n                there   is   a   territorial   nexus   between   the <\/p>\n
                persons\/property   subject-matter   of   the   Act
\n                and   the   State   seeking   to   comply   with   the
\n                provisions of the Act then the Statute cannot <\/p>\n
                be   considered   as   having   extraterritorial
\n                operation.   Sufficiency   of   the   territorial
\n                connection   involves   consideration   of   two
\n                elements,   the   connection   must   be   real   and <\/p>\n
                not   illusory   and   the   liability   sought   to   be
\n                imposed under the Act must be relevant to
\n                that   connection.   The   Act   has   to   satisfy   the
\n                principles   of   territorial   nexus   which   are <\/p>\n
                essentially   discernible   from   the   factual
\n            ig  application of the provisions of the Act.\n<\/p><\/blockquote>\n
       4.       It then observed that within the State a ceiling <\/p>\n
       can   be   fixed   by   law   beyond  which   no  person   can
\n       hold   agricultural   land   and   if   for   determining   the
\n       extent   of   the   ceiling   the   land   held   by   the   person
\n       outside the State is taken into consideration such a <\/p>\n
       provision   of   law   pertaining   to   fixation   of   such   a
\n       ceiling   would   not   become   extra   territorial.   This   is <\/p>\n
       because   in   pith   and   substance,   the   law   remains   a
\n       legislation, imposing the ceiling on holding of land
\n       within the State, under the Entry 18 List II r\/w Entry
\n       42 List III, 7th Schedule of the Constitution of India.\n<\/p>\n
       5.      The learned Counsel for the appellants herein
\n       submits   that   in   view   of   the   ratio  in   the   case   of
\n       Shrikant Bhalchandra Karulkar (supra), the decision <\/p>\n
       of the Full Bench would no longer be a good law. It
\n       is submitted that the observations of the Full Bench
\n       judgment   in   the   case   of   the   Shankarrao   (supra),
\n       would have to be revisited especially in light of para
\n       9 of the judgment in Shrikant Bhalchandra Karulkar
\n       (supra).   Para 9 reads as under:\n<\/p>\n
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\n                        15<\/span><\/p>\n
              9.      “……. It is obvious that the provisions
\n              of   Section   6(3-A)   of   the   Act   and  Section
\n              3(2)   of   the   Bombay   Act   are   entirely <\/p>\n
              different. On the plain reading of   Section
\n              3(2) of the Bombay Act it is patent that the
\n              Maharashtra Legislature was making law in
\n              respect   of   the   land   held   by   a   person <\/p>\n
              anywhere   in   India.       The   expression   “all
\n              land held by a person or as the case may be
\n              by a family unit whether in this part of the
\n              Maharashtra   Legislature   to   make <\/p>\n
              extraterritorial law. No assistance can, thus,
\n            igbe taken  by the   learned Counsel  from the
\n              Full   Bench   judgment   of   the   Bombay   High
\n              Court.  Even  otherwise  we   are  of  the   view
\n              that   various   observations   made   by   the <\/p>\n
              learned Judges  of  the  Bombay High Court
\n              are, rather, broadly stated and require to be
\n              straightened,   if   necessary,   in   some
\n              appropriate proceedings.”\n<\/p><\/blockquote>\n
       6.      According to the learned counsel appearing for
\n       the State, the observations  made by the Full Bench
\n       must be reconsidered in the light of the ruling of the
\n       Supreme   Court   while   dealing   with   the   Gujarat <\/p>\n
       Agricultural   Land   Ceiling   Act   1960.   He   therefore
\n       submits that the matter be placed before the learned
\n       Chief Justice under Rule 7 Chapter 1 of the Bombay
\n       High Court (Appellate Side) Rules, 1960.\n<\/p>\n
       7.             The   learned   advocate   for   the   respondent
\n       submits   that   such   an   exercise   would   not   be
\n       necessary.   She   points   out   the   judgment   of   the
\n       Supreme   Court   in   the   case   of  Tribhovandas
\n       Purshottam   Thakkar   vs.   Ratilal   Motilal   Patel,   AIR <\/p>\n
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\n                                   16<\/span><\/p>\n
                  1968   SC   372   and   submits   that   the   Full   Bench
\n                  judgment   is   binding   on   the   Single   Judge   of   this <\/p>\n
                  Court   and,   therefore,   there   would   be   no   need   to
\n                  place the matter before a larger Bench.\n<\/p>\n
                  8.          There can be no doubt that the judgment of
\n                  the Full Bench is binding on a  Single Judge of this
\n                  Court.   However,   in   view   of   the   judgment   of   the <\/p>\n
                  Supreme Court in the case of Shrikant Bhalchandra
\n                  Karurkar   (supra),   in   my   opinion,   it   would   be
\n                  appropriate to place the matter before the learned
\n                  Chief Justice for necessary directions under Rule 7 <\/p>\n
                  Chapter   1   of   the   Bombay   High   Court   (Appellate
\n                  Side) Rules, 1960.\n<\/p>\n
                  9.      Registry to take necessary steps accordingly.”\n<\/p>\n
     7.             In view of the above Order of Reference and in view <\/p>\n
     of the fact that the correctness of the law stated by Full Bench of <\/p>\n
     this Court in Shankarrao’s case (supra) was questioned, the matter <\/p>\n
     was   referred   to   the   present   Bench   consisting   of   five   Judges.\n<\/p>\n
     When   the   matter   came   up   for   hearing,   it   was   noticed   that   the <\/p>\n
     learned   Single   Judge   had   not   formulated   any   question   and\/or <\/p>\n
     proposition   of   law   which   is   required   to   be   considered   by   the <\/p>\n
     Larger   Bench   as   suggested   by   the   learned   Single   Judge   in   the <\/p>\n
     Order of Reference.  When the matter came up for hearing before <\/p>\n
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\n                                     17<\/span><\/p>\n
     us   on   26th  August,   2009   and   after   hearing   the   learned   counsel <\/p>\n
     appearing   for   the   parties,   we   felt  that   it   will   be   appropriate   to <\/p>\n
     formulate the questions which need to be examined by the Larger <\/p>\n
     Bench during the course of hearing.   Thus, in paragraph 4 of our <\/p>\n
     Order, we recorded the questions as under:-\n<\/p>\n
                    “4.    As no question of reference to be answered <\/p>\n
                    by this Bench has been formulated by the learned
\n                    Single Judge vide order dated 28th July, 2009, we <\/p>\n
                    would like to prefer to state broadly the matters in
\n                    issue before this Bench:\n<\/p><\/blockquote>\n
                     (a)      What is the scope of an order of reference
\n                              and   whether   the   order   of   reference   was
\n                              called for in view of the Judgment of the
\n                              Supreme   Court   in   the   case   of  Shrikant <\/p>\n
                              Bhalchandra   Karulkar   &   Ors.   v.   State   of
\n                              Gujarat,<\/a> 1994(5) SCC 459.\n<\/p><\/blockquote>\n
                     (b)      How the law declared by the Full Bench of
\n                              this Court could be construed in light of the
\n                              judgment of the Supreme Court and what <\/p>\n
                              will be its effect and consequences;\n<\/p><\/blockquote>\n
                     (c)      Whether the judgment of this Bench would
\n                              relate back to the date of earlier decision of
\n                              the   Full   Bench   or   will   be   given   effect <\/p>\n
                              prospectively   in   view   of   the   fact   that   the
\n                              Full Bench had declared the provisions of
\n                              Section   43A(1)   of   the   Maharashtra
\n                              Agricultural   Lands   (Ceiling   on   Holdings)
\n                              Act, 1961 as ultra vires.”\n<\/p><\/blockquote>\n
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\n                                  18<\/span><\/p>\n
     8.            From   paragraph   4   of   our   order   dated   26th  August, <\/p>\n
     2009, it necessarily follows that the first and foremost question to <\/p>\n
     be considered by us relate to the law of precedents and judicial <\/p>\n
     propriety.\n<\/p>\n
     9.            Salmond   on   Jurisprudence   discusses   in   some   detail <\/p>\n
     the origin  and significance  of judicial precedents.       In the  12th <\/p>\n
     Edition  of Salmond on Jurisprudence, it has been recorded that <\/p>\n
     the   importance   of   judicial   precedents   has   always   been   a <\/p>\n
     distinguishing characteristic of English law.     In recent years, the <\/p>\n
     value of doctrine of precedent has been much debated.   It has two <\/p>\n
     meanings.  The first, which may be called the loose meaning, and <\/p>\n
     the   second,   the   strict   meaning.     Under   the   first   meaning, <\/p>\n
     precedents   are   reported,   may   be   cited,   and   will   probably   be <\/p>\n
     followed by the courts.  Whilst in the second meaning, precedents <\/p>\n
     not only have great authority but must in certain circumstances be <\/p>\n
     followed.     It is said that the practice is necessary to secure the <\/p>\n
     certainty   of   the   law,   predictability   of   decisions   being   more <\/p>\n
     important than approximation to an ideal, any very unsatisfactory <\/p>\n
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\n                                   19<\/span><\/p>\n
     decision   can   be   reversed   for   the   future   by   statute.       Judicial <\/p>\n
     decisions   may   be   distinguished   as   authoritative   and   persuasive.\n<\/p>\n
     An   authoritative   precedent   is   one   which   judges   must   follow <\/p>\n
     whether they approve of it or not.  A persuasive precedent is one <\/p>\n
     which the judges are under no obligation to follow, but which they <\/p>\n
     will take into consideration, and to which they will attach such <\/p>\n
     weight   as   it   seems   to   them   to   deserve.       In   other   words, <\/p>\n
     authoritative precedents are legal sources of law, while persuasive <\/p>\n
     precedents are merely historical.  ( Ref : Salmond on Jurisprudence,  <\/p>\n
     12th Edition, by P.J. Fitzgerald. )   <\/p>\n
     10.            A Full Bench of this Court in the case of M\/s. Emkay  <\/p>\n
     Exports   &   Anr.   v.   Madhusudan   Shrikrishna,<\/a>  2008(4)   MhLJ   843, <\/p>\n
     while dealing  with the  concept of precedent and significance in <\/p>\n
     judicial decision making process, held as under:-\n<\/p>\n
                   “6.        The   concept   of   precedent   has   attained <\/p>\n
                              important role in administration of justice
\n                              in the modern times.  The case before the
\n                              Court   should   be   decided   in   accordance
\n                              with law and the doctrines.   The mind of
\n                              the Court should be clearly reflecting on
\n                              the   material   in   issue   with   regard   to   the <\/p>\n
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\n                 20<\/span><\/p>\n
            facts of the case.  The reason and spirit of
\n            case   make   law   and   not   the   letter   of   a <\/p>\n
            particular   precedent.     Halsbury’s   “The
\n            Laws   of   England”,   explained   the   word
\n            “ratio decidendi” as “It may be laid down <\/p>\n
            as a general rule that that part alone of a
\n            decision   by   a   Court   of   Law   is   binding
\n            upon Courts of coordinate jurisdiction and
\n            inferior   Courts   which   consists   of   the <\/p>\n
            enunciation   of   the   reason   or   principle
\n            upon which the question before the Court
\n            has   really   been   determined.     This
\n            underlying principle which forms the only <\/p>\n
            authoritative   element   of   a   precedent   is
\n         ig often termed the ratio decidendi.”  It is by
\n            the choice of material facts that the Court
\n            create law.   The law so created would be
\n            a   good   precedent   for   similar   subsequent <\/p>\n
            cases unless it falls within the exceptions
\n            hereinafter indicated.\n<\/p><\/blockquote>\n
       7.   The   doctrine   of   precedent   relates   to <\/p>\n
            following of previous decisions within its
\n            limitations.    It   introduces   the  concept  of <\/p>\n
            finality   and   adherence   to   the   previous
\n            decisions and while attaining it, it creates
\n            consistency   in   application   of   law.     The
\n            later   judgment   should   be   similar   to   the <\/p>\n
            earlier judgment, which on material facts
\n            are the same.   Finding ratio decidendi is
\n            not a mechanical process but an art which
\n            one   gradually   acquires   through   practice.
\n            What is really involved in finding the ratio <\/p>\n
            decidendi   of   a   case   is   the   process   of
\n            abstraction.       Ratio   decidendi   is   a   term
\n            used in contrast to obiter dictum which is
\n            not   necessariloy   binding   in   law.\n<\/p>\n
            According   to   Sir   John   Salmond,   “a
\n            precedent   is   a   judicial   decision,   which <\/p>\n
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\n                 21<\/span><\/p>\n
            contains   in   itself   a   principle.     The   only
\n            principle   which   forms   its   authoritative <\/p>\n
            element   is   often   termed   the   `ratio
\n            decidendi’.     The   concrete   decision   is
\n            binding between the parties to it, but it is <\/p>\n
            the   abstract   ratio   decidendi   which   alone
\n            has the force of law as regards the world
\n            at   large”.       According   to   Austin,   the
\n            general   reasons   or   principles   of   judicial <\/p>\n
            decision   abstracted   from   peculiarities   of
\n            the   case  are  commonly styled  by  writers
\n            on jurisprudence as `ratio decidendi’.\n<\/p>\n
       8.   Amongst  the   principles   of   law  governing
\n         ig the binding  value of judgments, doctrine
\n            of precedent is   not  only a  well  accepted
\n            principle but is one fo the most pertinent
\n            facets of judicial interpretation.   A ruling <\/p>\n
            of Bench of higher court is considered to
\n            be   binding   on   the   lower   courts   and   the
\n            courts   having   a   smaller   Bench   structure.\n<\/p>\n
            Earlier   judgments   are   even   taken   to   be <\/p>\n
            binding on subsequent equi Bench unless
\n            and until reasons compelling for taking a <\/p>\n
            divergent view are stated.   To apply this
\n            principle,   the   court   must   examine   by
\n            process of appropriate reasoning as to the
\n            applicability of  the precedent cited before <\/p>\n
            the   court   or   even   which   of   the   views
\n            expressed   by   a   higher   court   or   even   a
\n            larger   Bench   or   even   a   Bench   of   equi
\n            strength   is   more   aptly   applicable   to   the
\n            facts   and   circumstances   of   the   case   in <\/p>\n
            hand.   The essence of law of precedent is
\n            its   applicability   on   the   basis   of   ratio
\n            decidendi.     The   importance   and
\n            significance   of   adherence   to   alw   of
\n            precedent   was   emphasized   by   the
\n            Supreme Court in the case of S.I. Rooplal <\/p>\n
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\n                                   22<\/span><\/p>\n
                              and another v. Lt. Governor through Chief
\n                              Secretary,   Delhi   and   others,   A.I.R.   2000 <\/p>\n
                              SC 594.”\n<\/p>\n
     11.            With   the   development   of   law,   the   doctrine   of <\/p>\n
     precedents has become an integral part of judicial discipline.  The <\/p>\n
     doctrine   of   precedent   is   a   habit   of   following   previous   decisions <\/p>\n
     within   more   or   less   well-defined   limits.     What   the   doctrine   of <\/p>\n
     precedent declares is  that cases must be decided  the  same way <\/p>\n
     when their material facts are the same.  The part of a case that is <\/p>\n
     said to possess authority is the “ratio decidendi”.   Finding  “ratio  <\/p>\n
     decidendi”  is   not   a   mechanical   process   but   is   an   art   that   one <\/p>\n
     gradually   acquires   through   practice   and   study.     What   is   really <\/p>\n
     involved in finding the  “ratio decidendi”  of a case is a process of <\/p>\n
     abstraction.   The ascertainment of the “ratio decidendi”  of a case <\/p>\n
     depends upon a process of abstraction from the totality of facts <\/p>\n
     that occured in it.  The higher the abstraction, the wider the “ratio  <\/p>\n
     decidendi”.    In   contrast   with   the  “ratio   decidendi”  is   the  “obiter  <\/p>\n
     dictum”.   “Obiter dictum”  is a mere saying by the way, a chance <\/p>\n
     remark, which is not binding on the future Courts, though it may <\/p>\n
     be respected according to reputation of the Judge, the eminence of <\/p>\n
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\n                                   23<\/span><\/p>\n
     the   Court   and   the   circumstances   in   which   it   came   to   be <\/p>\n
     pronounced.   The reason for not regarding an  “obiter dictum”  as <\/p>\n
     binding is that it was probably made without a full consideration <\/p>\n
     of the case on the point, and that, if very broad in its terms, it was <\/p>\n
     probably   made   without   a   full   consideration   of   all   the <\/p>\n
     consequences that may follow from it; or the judge may not have <\/p>\n
     expressed a concluded opinion.   ( Ref : Paper submitted in Third  <\/p>\n
     Workshop   of   2005   on   the   Subject   of   Law   of   Precedents   and  <\/p>\n
     appropriate use of case law in Court working by U.B. Shukla.) <\/p>\n
     12.            In   light   of   the   above,   now   let   us   examine   some <\/p>\n
     judgments of the Supreme Court which have some bearing on the <\/p>\n
     issue   before   us.       In   the   case   of  Tribhovandas   Purshottamdas  <\/p>\n
     Thakkar   v.   Ratilal   Motilal   Patel   &   Ors.,  AIR<\/a>   1968   SC   372,   the <\/p>\n
     Supreme Court examined the question as to when a reference can <\/p>\n
     be   made   to   a   Full   Bench   and   whether   mere   irregularity   in   the <\/p>\n
     constitution of Full Bench would nullify the law laid down by the <\/p>\n
     so constituted larger bench.   The Supreme Court held as under: –\n<\/p>\n
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\n                        24<\/span><\/p>\n
       “10. The  effect  of   a   precedent  of   the   Gujarat  High
\n       Court   fell   to   be   considered   indirectly   in   this   case.\n<\/p>\n
       Before Raju, J., it was urged for the first time in the
\n       course   of   this   litigation   that   in   the   absence   of   the
\n       sanction   of   the   Charity   Commissioner   the   Court   sale <\/p>\n
       was   invalid.   Counsel   for   the   auction   purchaser
\n       contended that this question was not raised before the
\n       District Court and that Court cannot be said to have
\n       acted   illegally   or   with   material   irregularity   in   not <\/p>\n
       deciding   the   question.     Counsel   for   the   auction
\n       purchaser relied upon two decisions in support of that
\n       proposition : Pinjare  Karimbhai  v Shukla  Hariprasad,
\n       1962-3 Guj LR 529 and Haridas v Ratansey, 23 Bom LR
\n       802: (AIR 1922 Bom 149).   He urged that under the <\/p>\n
       Bombay Reorganization Act, 1960, the jurisdiction of
\n       the Bombay High Court which originally extended over <\/p>\n
       the territory now forming part of the State of Gujarat,
\n       ceased when a new High Court was set up in the State
\n       of Gujarat, but it was held by a Full Bench of the High
\n       Court of   Gujarat in State of Gujarat v Gordhandas, 3 <\/p>\n
       Guj LR 269: (AIR 1962 Guj 128) (FB) that the decision
\n       of the Bombay High Court will be regarded as binding
\n       since   the   Gujarat   High   Court   had   inherited   the
\n       jurisdiction,   power   and   authority   in   respect   of   the <\/p>\n
       territory   of   Gujarat.     When   pressed   with   the
\n       observations made in the two cases cited at the Bar, <\/p>\n
       Raju, J., found an easy way out.  He observed that the
\n       judgment of the Full Bench of the Gujarat High Court
\n       had   “no   existence   in   law”,   for   in   the   absence   of   a
\n       provision   in   the   Constitution   and   the   Charter   Act   of
\n       1861, a Judge of a High Court had no power to refer a <\/p>\n
       case to a Full Bench for determination of a question of
\n       law   arising   before   him,   and   a   decision   given   on   a
\n       reference “had no existence n law”.  The learned Judge
\n       also thought that if a Judge or a Division Bench of a
\n       Court makes a reference on a question of law to a Full <\/p>\n
       Bench for decision, it would in effect be assuming the
\n       jurisdiction which is vested by the Charter of the Court
\n       in the Chief Justice of the High Court.  In so observing
\n       the learned Judge completely misconceived the nature
\n       of a reference made by a Judge or a Bench of Judges to
\n       a large Bench.  When it appears as a Single Judge or a
\n       Division Bench that there are conflicting decisions of <\/p>\n
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\n                                    25<\/span><\/p>\n
                   the same Court, or there are decisions of other High
\n                   Courts in India which are strongly persuasive and take <\/p>\n
                   a different view from the view which prevails in his or
\n                   their   High   Court,   or   that   a   question   of   law   of
\n                   importance arises in the trial of a case, the Judge or the <\/p>\n
                   Bench passes an order that the papers be placed before
\n                   the Chief Justice of the High Court with a request to
\n                   form a special or Full Bench to hear and dispose of the
\n                   case or the questions raised in the case.   For making <\/p>\n
                   such a request to the Chief Justice, no authority of the
\n                   Constitution   or   of   the   Charter   of   the   High   Court   is
\n                   needed, and by making such a request a Judge does
\n                   not assume to himself the powers of the Chief Justice.
\n                   A Single Judge does not by himself refer the matter to <\/p>\n
                   the Full Bench: he only requests the Chief Justice to
\n                   constitute a Full Bench for hearing the matter.  Such a <\/p>\n
                   Bench   is   constituted   by   the   Chief   Justice.   The   Chief
\n                   Justice of a Court may as a rule, out of deference to the
\n                   views expressed by his colleague, refer to the case; that
\n                   does   not   mean,   however,   that   the   source   of   the <\/p>\n
                   authority is in the order of reference.   Again it would
\n                   be impossible to h old that a judgment delivered by a
\n                   Full Bench of a High Court after due consideration of
\n                   the points before it is liable to be regarded as irrelevant <\/p>\n
                   by Judges of that Court on the ground of some alleged
\n                   irregularity in the constitution of the Full Bench.”\n<\/p>\n
     13.           While citing the above judgment with approval, the <\/p>\n
     Supreme Court again in the case of Sub-Inspector Rooplal & Anr. v.\n<\/p>\n
     Lt. Governor Through Chief Secretary, Delhi & Ors.,  (2000)1 SCC <\/p>\n
     644 considered the question that subordinate Court is bound by <\/p>\n
     the precedent of superior court, and a Bench of a Court is bound <\/p>\n
     by   the   precedent   of   a   Coordinate   Bench.   While   discussing   the <\/p>\n
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\n                                     26<\/span><\/p>\n
     jurisprudential   basis   for   honouring   a   precedent,   the   Supreme <\/p>\n
     Court   also   expressed   a   view   that   even   the   co-ordinate   bench <\/p>\n
     cannot pronounce a judgment contrary to declaration of law made <\/p>\n
     by another Bench.  The Supreme Court held as under: –\n<\/p>\n
                   “12.                  At   the   outset,   we   must   express   our
\n                   serious   dissatisfaction   in   regard   to   the   manner   in
\n                   which   a   Coordinate   Bench   of   the   Tribunal   has <\/p>\n
                   overruled,   in   effect,   an   earlier   judgment   of   another
\n                   Coordinate   Bench   of   the   same   Tribunal.     This   is <\/p>\n
                   opposed to all principles of judicial discipline. If at all,
\n                   the   subsequent   Bench   of   the   Tribunal   was   of   the
\n                   opinion that the earlier view taken by the Coordinate
\n                   Bench of the same Tribunal was incorrect, it ought to <\/p>\n
                   have referred the matter to a larger Bench so that the
\n                   difference   of   opinion   between   the   two   Coordinate
\n                   Benches on the same point could have been avoided. <\/p><\/blockquote>\n
                   It   is   not   as   if   the   latter   Bench   was   unaware   of   the <\/p>\n
                   judgment   of   the   earlier   Bench   but   knowingly   it
\n                   proceeded to disagree with the said judgment against
\n                   all   known   rules   of   precedents.     Precedents   which <\/p>\n
                   enunciate   rules   of   law   form   the   foundation   of
\n                   administration of justice under our system. This is a
\n                   fundamental principle which every presiding officer of
\n                   a   judicial   forum   ought   to   know,   for   consistency   in <\/p>\n
                   interpretation   of   law   alone   can   lead   to   public
\n                   confidence in our judicial system.  This Court has laid
\n                   down   time   and   again   that   precedent   law   must   be
\n                   followed   by   all   concerned;   deviation   from   the   same
\n                   should   be   only   on   a   procedure   known   to   law.     A <\/p>\n
                   subordinate court is bound by the enunciation of law
\n                   made by the superior courts.  A Coordinate Bench of a
\n                   Court   cannot   pronounce   judgment   contrary   to
\n                   declaration of law made by another Bench.  It can only
\n                   refer it to a larger Bench if it disagrees with the earlier
\n                   pronouncement.     This   Court   in   the   case   of
\n                   Tribhovandas Purshottamdas Thakkar v Ratilal Motilal  <\/p>\n
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\n                        27<\/span><\/p>\n
       Patel,  AIR 1968 SC 372, while dealing with a case in
\n       which a Judge of the High Court had failed to follow <\/p>\n
       the   earlier   judgment   of   a   larger   Bench   of   the   same
\n       Court observed thus:\n<\/p>\n
               “The judgment of the Full Bench of the Gujarat
\n               High   Court   was   binding   upon   Raju,   J.     If   the
\n               learned Judge was of the view that the decision
\n               of   Bhagwati,   J.,   in   Pinjare   Karimbhai   case, <\/p>\n
               (1962) 3 Guj LR 529 and of Macleod, C.J., in
\n               Haridas case, AIR 1922 Bom 149(2) did not lay
\n               down the correct law or rule of practice, it was
\n               open to him to recommend to the Chief Justice
\n               that   the   question   be   considered   by   a   larger <\/p>\n
               Bench.     Judicial   decorum,   propriety   and
\n          ig   discipline required that he should not ignore it.\n<\/p><\/blockquote>\n
               Our system of administration of justice aims at
\n               certainty  in  the   law   and   that  can  be   achieved
\n               only if Judges do not ignore decisions by courts
\n               of coordinate authority or of superior authority.\n<\/p><\/blockquote>\n
               Gajendragadkar,   C.J.,   observed   in   Bhagwan   v
\n               Ram Chand, AIR 1965 SC 1767 :\n<\/p><\/blockquote>\n
                     ‘It   is   hardly   necessary   to   emphasise   that <\/p>\n
                     considerations   of   judicial   propriety   and
\n                     decorum   require   that   if   a   learned   Single <\/p>\n
                     Judge hearing a matter is inclined to take
\n                     the   view   that   the   earlier   decisions   of   the
\n                     High Court, whether of a Division Bench or
\n                     of a Single Judge, need to be reconsidered,
\n                     he   should   not   embark   upon   that   inquiry <\/p>\n
                     sitting as a Single Judge, but should refer
\n                     the   matter   to   a   Division   Bench,   or,   in   a
\n                     proper   case,   place   the   relevant   papers
\n                     before   the   Chief   Justice   to   enable   him  to
\n                     constitute   a   larger   Bench   to   examine   the <\/p>\n
                     question.  That is the proper and traditional
\n                     way   to   deal   with   such   matters   and   it   is
\n                     founded   on   healthy   principles   of   judicial
\n                     decorum and propriety.’ ”\n<\/p><\/blockquote>\n
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\n                                    28<\/span><\/p>\n
     14.            The respect for the law of precedent was illucidated <\/p>\n
     by the Supreme Court again in the case of  Govenment of Andhra <\/p>\n
     Pradesh   &   Anr.   v.   B.   Satyanarayana   Rao   (Dead)<\/a>   by   Lrs.   &   Ors., <\/p>\n
     (2000)4 SCC 262, where the Court explained rule of per incuriam <\/p>\n
     decisions and held as under: –\n<\/p><\/blockquote>\n
                    “8.  …..   The rule of per incuriam can be applied <\/p>\n
                    where a court omits to consider a binding precedent
\n                    of the same court or the superior court rendered on
\n                    the  same  issue  or  where  a court omits  to consider
\n                    any statute while deciding that issue. ……”\n<\/p><\/blockquote>\n<\/blockquote>\n
     15.            Similarly, in the case of Lily Thomas & Ors. v. Union of  <\/p>\n
     India & Ors.,<\/a> (2000)6 SCC 224, the Supreme Court reiterated the <\/p>\n
     principle that   rulings of larger benches should be followed and <\/p>\n
     those of coordinate benches of equal strength not be differed from <\/p>\n
     and  must be followed.   The Supreme Court also observed that the <\/p>\n
     division  bench would not be justified in ignoring the full bench <\/p>\n
     judgment or  even that of a coordinate bench.\n<\/p><\/blockquote>\n
     16.            The law declared by the Supreme Court is binding on <\/p>\n
     all the Courts but such a decision has to be made on the expected <\/p>\n
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\n                                    29<\/span><\/p>\n
     norms of the ratio decidendi.   The Supreme Court itself stated a <\/p>\n
     word of caution that the judgment of the Supreme Court and the <\/p>\n
     law   declared   should   not   be   applied   mechanically   but   after   due <\/p>\n
     examination and specifying the fact that the judgments are really <\/p>\n
     applicable to the facts and circumstances of the case.   In the case <\/p>\n
     of  Delhi   Administration   (Now   NCT   of   Delhi)   v.   Manohar   Lal,<\/a> <\/p>\n
     (2002)7 SCC 222, the Court held as under:-\n<\/p>\n
                   “5.\n<\/p><\/blockquote>\n
                      ig    We  have carefully considered the submissions
\n                   of   the   learned   counsel   appearing   on   either   side.\n<\/p><\/blockquote>\n
                   Apparently, the learned Judge in the High Court was
\n                   merely   swayed   by   considerations   of   judicial   comity
\n                   and  propriety and  failed to  see  that merely because
\n                   this Court has issued directions in some other cases, to
\n                   deal with the fact situation in those other cases, in the <\/p>\n
                   purported   exercise   of   its   undoubted   inherent   and
\n                   plenary powers to do complete justice, keeping aside <\/p>\n
                   even   technicalities,   the   High   Court,   exercising
\n                   statutory powers under the criminal laws of the land,
\n                   could   not   afford   to   assume   to   itself   the   powers   or
\n                   jurisdiction to do the same or similar things.  The High <\/p>\n
                   Court   and   all   other   courts   in   the   country   were   no
\n                   doubt ordained to follow and apply the law declared
\n                   by this Court, but that does not absolve them of the
\n                   obligation and responsibility to find out the ratio of
\n                   the decision and ascertain the law, if any, so declared
\n                   from a careful reading of the decision concerned and <\/p>\n
                   only   thereafter   proceed   to   apply  it  appropriately,   to
\n                   the cases before them.  Considered in that context, we
\n                   could   not   find   from   the   decisions   reported   in
\n                   Sukumaran and Santosh Kumar any law having been
\n                   declared   or   any  principle   or   question  of  law   having
\n                   been decided or laid down therein and that in those <\/p>\n
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\n                                    30<\/span><\/p>\n
                  cases   this   Court   merely   proceeded   to   give   certain
\n                  directions   to   dispose   of   the   matter   in   the   special <\/p>\n
                  circumstances noticed by it and the need felt, in those
\n                  cases, by this Court to give such a disposal.  The same
\n                  could   not   have   been   mechanically   adopted   as   a <\/p>\n
                  general formula to dispose of, as a matter of routine,
\n                  all   cases   coming   before   any   or   all   the   courts   as   a
\n                  universal   and   invariable   solution   in   all   such   future
\n                  cases also.  The High Court had no justifying reason to <\/p>\n
                  disturb the conclusion of the first appellate court, in
\n                  this regard.”\n<\/p><\/blockquote>\n
     17.           The importance of following the law declared by the <\/p>\n
     Supreme Court was emphasized by the Court in the case of State <\/p>\n
     of  Punjab  v.   Bhag   Singh,<\/a>  (2004)1   SCC   547   where   the  Supreme <\/p>\n
     Court said that judicial discipline to abide by declaration of law by <\/p>\n
     the Supreme Court cannot be forsaken under any pretext by any <\/p>\n
     authority or court, be it even the highest court in a State, oblivious <\/p>\n
     to Article 141 of the Constitution.\n<\/p>\n
     18.           Of course, it was aptly stated by the Supreme Court in <\/p>\n
     R.L. Jain  (D)  By Lrs. v. DDA  & Others,<\/a>  (2004)4  SCC 79, that  a <\/p>\n
     decision is an authority for what it actually decides.  What is of the <\/p>\n
     essence in a decision is its ratio and not every observation found <\/p>\n
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\n                                    31<\/span><\/p>\n
     therein nor what logically follows from the various observations <\/p>\n
     made therein.\n<\/p>\n
     19.             Normally, the judgment of a higher Court or a larger <\/p>\n
     bench or coordinate bench would be binding on a bench of a lesser <\/p>\n
     strength.     The   exception   to   the   applicability   of   the   law   of <\/p>\n
     precedent is, if on the facts of a given case and the law applicable, <\/p>\n
     the   case   falls   for   good   and   valid   reasons   within   the   exception <\/p>\n
     specified in the judgment, or that the judgment is per incuriam, <\/p>\n
     sub   silentio   and\/or   hit   by   stare   decisis.     Unless   the   subsequent <\/p>\n
     judgment discusses such an issue and records reasons, it may fall <\/p>\n
     within the mischief of violating the law of precedent which may <\/p>\n
     not be in conformity with the canons of judicial discipline.   The <\/p>\n
     concept   of   certainty   and   finality   is   essential   in   judicial   decision <\/p>\n
     making process.\n<\/p>\n
     20.             Whether a precedent is binding and effective itself is <\/p>\n
     an issue to be considered by the Court.    The ratio and effect of <\/p>\n
     the judgment is required to be ascertained with reference to the <\/p>\n
     question   of   law   as   decided   by   the   Court.     The   ratio   of   the <\/p>\n
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\n                                    32<\/span><\/p>\n
     judgment   or   the   principle   upon   which   the   question   before   the <\/p>\n
     Court is decided is alone binding as a precedent, and this must be <\/p>\n
     ascertained and determined by analysing all the material facts and <\/p>\n
     issues   involved   in   the   case.     While   observing   so,   the   Supreme <\/p>\n
     Court in the case of ICICI Bank & Anr. v. Municipal Corporation of  <\/p>\n
     Greater Bombay & Ors.,<\/a> (2005)6 SCC 404 relied upon the decision <\/p>\n
     in the matter of Paisner v. Goodrich, (1955)2 All ER 530, (All ER at <\/p>\n
     p.332 H-1), where Lord Denning observed :-\n<\/p>\n
                    “When the judges of this Court give a decision
\n                    on the interpretation of an Act of Parliament, the
\n                    decision   itself   is   binding   on   them   and   their
\n                    successors: see Cull v. IRC, (1939)3 All ER 761, <\/p>\n
                    Morelle Ltd. v. Wakeling, (1955)1 All ER 708.
\n                    But the words which the judges use in giving the <\/p>\n
                    decision  are   not  binding.     This  is   often  a  very
\n                    fine distinction, because the decision can only be
\n                    expressed   in   words.     Nevertheless,   it   is   a   real
\n                    distinction   which   will   best   be   appreciated   by <\/p>\n
                    remembering that, when interpreting a statute,
\n                    the   sole   function   of   the   court   is   to   apply   the
\n                    words of the statute to a given situation.  Once a
\n                    decision has been reached on that situation, the
\n                    doctrine   of   precedent   requires   us   to   aply   the <\/p>\n
                    statute in the same way in any similar situation;
\n                    but not in a different situation. Wherever a new
\n                    situation   emerges,   not   covered   by   previous
\n                    decisions,   the   courts   must   be   governed   by   the
\n                    statute and not by the wordsw of the judges.”\n<\/p><\/blockquote>\n
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\n                                    33<\/span><\/p>\n
     21.            The Supreme Court in the case of  Bharat Petroleum  <\/p>\n
     Corpn. Ltd. v. Mumbai Shramik Sangh & Ors.,<\/a>  (2001)4 SCC 448 <\/p>\n
     held as under: –\n<\/p>\n
                    “2.    We   are   of   the   view   that   a   decision   of   a
\n                    Constitution Bench of this Court binds a Bench of
\n                    two learned Judges of this Court and that judicial <\/p>\n
                    discipline obliges them to follow it, regardless of
\n                    their doubts about its correctness.   At the most, <\/p>\n
                    they could have ordered that the matter be heard
\n                    by a Bench of three learned Judges.”\n<\/p><\/blockquote>\n
     22.            The   settled   principle   of   judicial   discipline   and <\/p>\n
     propriety requires that a smaller Bench normally may not question <\/p>\n
     the   correctness   of   the   decision   of   a   larger   Bench   even   on   the <\/p>\n
     ground of sub silentio or per incuriam.   Generally,  it would lie in <\/p>\n
     the domain of equi Bench to make a reference.   The concept of <\/p>\n
     finality as well as judicial hierarchy in the administration of justice <\/p>\n
     would   suffer   if   the   norm   of   precedent   is   not   applied   to   the <\/p>\n
     functioning of the Court, much less a smaller Bench, that even a <\/p>\n
     equi Bench is expected to follow the law, may be for valid and <\/p>\n
     appropriate   reason.     It   may   request   for   a   reference   to   a   larger <\/p>\n
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\n                                   34<\/span><\/p>\n
     Bench   but   the   earlier   decision   cannot   be   thrown   out   for   any <\/p>\n
     purposes whatsoever.\n<\/p>\n
     23.            In contra distinction to a binding precedent, the Court <\/p>\n
     has to be careful about the  `obiter dictum’  made by a court in a <\/p>\n
     judgment.  Again in the case of Director of Settlements, A.P. & Ors.\n<\/p>\n
     v. M.R. Apparao & Anr., (2002)4 SCC 638, the Supreme Court held <\/p>\n
     that it was necessary to follow the law declared by the Supreme <\/p>\n
     Court and said that a judgment of the  Court has  to be read in <\/p>\n
     context of questions which arose for consideration in the case in <\/p>\n
     which   the   judgment   was   delivered.     An  “obiter   dictum”  as <\/p>\n
     distinguished   from   a  “ratio   decidendi”  is   an   observation   by   the <\/p>\n
     Court on a legal question suggested in a case before it but not <\/p>\n
     arising in such manner as to require a decision.   Such an obiter <\/p>\n
     may not have an effect of a binding precedent but it cannot be <\/p>\n
     denied that it is of considerable weight.\n<\/p>\n
     24.            The   law   of   precedent   thus   takes   in   its   ambit   an <\/p>\n
     implied but apparent requirement of following the judicial dictum <\/p>\n
     settled   by   the   Superior   Court,   a   larger   Bench   with   strict <\/p>\n
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\n                                   35<\/span><\/p>\n
     application   equally   binding   is   the   judgment   of   an   earlier <\/p>\n
     coordinate bench unless there are grounds and reasons felt by the <\/p>\n
     Bench dealing with subsequent matter that the law enunciated by <\/p>\n
     an earlier judgment falls within the exceptions of law of precedent <\/p>\n
     and the facts and circumstances of the case so require.   As already <\/p>\n
     noticed, such an approach would be essential to maintain judicial <\/p>\n
     discipline,   consistency   and   certainty   in   judicial   decisions   to <\/p>\n
     advance  the doctrine of finality.   The Full Bench Judgment of this <\/p>\n
     Court in Shankarrao’s case (supra) as well as the judgment of the <\/p>\n
     Supreme Court in Shrikant Karulkar’s case (supra) were before the <\/p>\n
     learned Single Judge.   As already noticed, the Supreme Court in <\/p>\n
     the case Delhi Administration v. Manoharlal (supra), had observed <\/p>\n
     that the High Court and all other courts in the country were no <\/p>\n
     doubt ordained to follow and apply the law declared by this Court, <\/p>\n
     and   responsibility   to   find   out   the   ratio   of   the   decision   and <\/p>\n
     ascertain the law, if any, so declared from a careful reading of the <\/p>\n
     decision   concerned   and   only   thereafter   proceed   to   apply   it <\/p>\n
     appropriately, to the cases before them.   Therefore, in our humble <\/p>\n
     view,   the   appropriate   course   of   action   that   the   learned   Single <\/p>\n
     Judge ought to have taken was to decide the case in light of the <\/p>\n
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\n                                   36<\/span><\/p>\n
     law stated in the aforesaid two judgments, if in the opinion of the <\/p>\n
     learned Single Judge the law stated by the Full Bench was not a <\/p>\n
     good   law   in   view   of   the   judgment   of   the   Supreme   Court,   the <\/p>\n
     judgment of the Supreme Court being that of the superior Court <\/p>\n
     and in terms of Article 141 of the Constitution of India, the same <\/p>\n
     being binding on all Courts, Tribunals and the Government as the <\/p>\n
     law of land declared by the Supreme Court should be followed.\n<\/p>\n
     On   the   other   hand,   if   the   learned   Single   Judge   felt   that   the <\/p>\n
     Supreme Court had practically accepted the view of the Full Bench <\/p>\n
     or there was no conflict between the two judgments, the principles <\/p>\n
     stated by the Full Bench could have been applied.   Be that as it <\/p>\n
     may, it is not necessary for this Bench to deliberate on the said <\/p>\n
     issue any further.   Suffice it to note that the learned Single Judge, <\/p>\n
     while relying upon Rule 7(1) of the Bombay High Court (Appellate <\/p>\n
     Side) Rules, 1960, felt that it would be more advantageous that <\/p>\n
     the matter be heard and decided by two or more judges, which <\/p>\n
     view was accepted by one of us ( Chief Justice ), and the present <\/p>\n
     Bench   was   constituted.       Since   the   learned   Single   Judge   had <\/p>\n
     framed no questions of law for reference to a larger Bench, this <\/p>\n
     Bench   by   its   order   dated   26th  August,   2009   formulated   the <\/p>\n
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\n                                   37<\/span><\/p>\n
     questions   of   law.     The   said   questions   of   law   as   are   of   some <\/p>\n
     importance,  it   would  be  more   advantageous  that   the  matter   be <\/p>\n
     heard and decided by a larger Bench.  Thus, we would proceed to <\/p>\n
     discuss the questions of law formulated by us.\n<\/p>\n
     25.            The   ratio   decidendi   of   a   previous   judgment   if <\/p>\n
     applicable   to   a   fact   of   a   subsequent   case   would   be   a   binding <\/p>\n
     precedent.  Similarly, an obiter dicta of the Supreme Court again <\/p>\n
     is having a binding effect but not of the value as that of a binding <\/p>\n
     precedent if the obiter is a finding recorded on the facts of a given <\/p>\n
     case.   Mere observations  on facts, the superior Court cannot be <\/p>\n
     said   to   be   binding   precedent.     However,   they   may   have   some <\/p>\n
     weightage   or   persuasive   value   subject   to   exercise   of   judicial <\/p>\n
     discretion   by   the   Court   hearing   the   case.       Once   the  “ratio  <\/p>\n
     decidendi”  of an earlier judgment does  not fall within  the  three <\/p>\n
     exceptions i.e. Per incuriam, stare decisis and\/or sub silentio with <\/p>\n
     reference  to   facts   and  law  of  a   subsequent   case,   it   would  be  a <\/p>\n
     binding precedent to be followed, particularly where the judgment <\/p>\n
     is of the Supreme Court.   It will be law of land and binding in <\/p>\n
     terms of Article 141 of the Constitution of India.  The judgment of <\/p>\n
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\n                                   38<\/span><\/p>\n
     the Supreme Court in the case of Shrikant Karulkar (supra) has to <\/p>\n
     be taken as a binding precedent.   Before the Supreme Court, the <\/p>\n
     Appellants   had   raised   the   contentions   based   on   the   Full   Bench <\/p>\n
     Judgment of the Bombay High Court in the case of  Shankarrao’s  <\/p>\n
     (supra)  which   was   duly   considered   by   the   Supreme   Court   and <\/p>\n
     upon discussion the findings were recorded in paragraph 9 of the <\/p>\n
     judgment.     In   other   words,   a   point   was   raised,   argued   and <\/p>\n
     entertained   by   the   Supreme   Court   with   direct   reference   to   the <\/p>\n
     question   for   consideration   before   that   Court   and   the   reasoned <\/p>\n
     findings were recorded.  Quantitative and qualitative value of the <\/p>\n
     findings   recorded   by   the   superior   Court   cannot   be   a   matter   of <\/p>\n
     consideration   before   a   Court   as   the   judgment   of   the   Supreme <\/p>\n
     Court   is   binding   in   terms   of   the   Constitutional   mandate   on   all <\/p>\n
     other Courts.  Thus, we must accept the judgment of the Supreme <\/p>\n
     Court to the facts and circumstances of the case before us in its <\/p>\n
     appropriate perspective.\n<\/p>\n
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\n                                   39<\/span><\/p>\n
     KEEPING IN VIEW THE PROVISIONS OF THE MAHARASHTRA
\n     ACT, HOW THE LAW DECLARED BY THE FULL BENCH IS TO <\/p>\n
     BE   CONSTRUED   IN   LIGHT   OF   THE   JUDGMENT   OF   THE
\n     SUPREME COURT:\n<\/p>\n
     26.            At   the   very   outset,   it   will   be   important   for   us   to <\/p>\n
     examine   the   provisions   of   Section   3(2)   of   the   Maharashtra   Act.\n<\/p>\n
     Section 3(2) of the Maharashtra Act reads thus:-\n<\/p>\n
                   “3(2)      All the land held by a person, or as the <\/p>\n
                   case may be, a family unit whether in this State or
\n                   any   other   part   of   India  in   excess   of   the   ceiling
\n                   area, shall, notwithstanding anything contained in <\/p>\n
                   any law for the time being in force or usage, be
\n                   deemed to be surplus land, and shall be dealt with
\n                   in   the   manner   hereinafter   provided   for   surplus
\n                   land.\n<\/p><\/blockquote>\n
                          In   determining   surplus   land   from   the <\/p>\n
                   holdings of a person, or as the case may be, of a
\n                   family   unit,   the   fact   that   the   person   or   any
\n                   member of the family unit has died (on or after
\n                   commencement   date   or   any   date   subsequent   to <\/p>\n
                   the date on which the holding exceeds the ceiling
\n                   area, but before the declaration of surplus land is
\n                   made in respect of that holding ) shall be ignored;
\n                   and   accordingly,   the   surplus   land   shall   be
\n                   determined as if that person, or as the case may <\/p>\n
                   be, the member of a family unit had not died.\n<\/p><\/blockquote>\n
                   Explanation:-  In calculating the ceiling area to be
\n                   held   in   this   State,   and   determining   the   surplus
\n                   land, the area of land in any other part of India
\n                   (being   land   which   a   person   or   family   unit   is <\/p>\n
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\n                                  40<\/span><\/p>\n
                   entitled to hold in such other part of India under
\n                   any law relating to ceiling on land) shall be taken <\/p>\n
                   into consideration.   Only land held in this  State
\n                   may be declared as surplus.”\n<\/p><\/blockquote>\n
     27.            The Full Bench of this Court, while dealing with <\/p>\n
     the case of Shankarrao (supra), had declared that the above <\/p>\n
     underlined  portions   of   Section   3(2)   and  explanation  thereto <\/p>\n
     are extra territorial in its operation and, therefore, is unlawful <\/p>\n
     and   inoperative   and   beyond   the   competence   of   the   State <\/p>\n
     Legislature.    The judgment of the Full Bench of this Court has <\/p>\n
     not been assailed in appeal before the Supreme Court either by <\/p>\n
     the parties or by the State. Thus, it has attained finality as far <\/p>\n
     as this  Court is concerned.     In other words, the underlined <\/p>\n
     portions   “in   any   part   of   India”,     and   the   word   “whether”\n<\/p>\n
     occuring in Section 3(2) were declared beyond the legislative <\/p>\n
     competence of the State Legislature, and therefore, were struck <\/p>\n
     down.  The Bench further clarified that the entire explanation <\/p>\n
     clause to sub-section (2) of Section 3 of the Maharashtra Act <\/p>\n
     was  unlawful and declared it  inoperative as being beyond the <\/p>\n
     legislative competence of the State Legislature.   The Judgment <\/p>\n
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\n                                   41<\/span><\/p>\n
     of the Full Bench  was declared in the year 1980.  Since then <\/p>\n
     neither the State Legislature has taken any steps to amend the <\/p>\n
     provision of Section 3(2) of the Maharashtra Act nor the State <\/p>\n
     Government has  assailed the judgment of the Court before the <\/p>\n
     Higher   Court.   The  obvious  and  inevitable   result is  that  the <\/p>\n
     judgment of the Full Bench  of this Court has been accepted by <\/p>\n
     the parties and now for all these 28 years, the said judgment <\/p>\n
     has remained in force.  Large number of cases have been dealt <\/p>\n
     with and disposed of by this Court in terms of law enunciated <\/p>\n
     by the Full Bench of this Court.\n<\/p>\n
     28.            Both   the   parties   before   us   had   relied   upon   and <\/p>\n
     referred   to   the   judgment   of   the   Supreme   Court   in   the   case   of <\/p>\n
     Shrikant Karulkar (supra).     In that case, the Supreme Court was <\/p>\n
     considering the provisions of Section 6(3A) of Gujarat Agricultural <\/p>\n
     Land   Ceiling   Act,   1960   (hereinafter   referred   to   as   the   “Gujarat <\/p>\n
     Act”).   In order to avoid any ambiguity, we consider it appropriate <\/p>\n
     to reproduce  the   said  provision  at this  juncture  itself.     Section <\/p>\n
     6(3A) of the Gujarat Act reads thus:-\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:13:55 :::<\/span>
\n                                  42<\/span><\/p>\n
                  “6(3A)           Where any person hold any land in
\n                  any   other   part   of   the   India   outside   the   State, <\/p>\n
                  then,   the   area   of   land   so   held   by   him   in   such
\n                  other part, not exceeding the maximum area of
\n                  land,   which   such   person   is   entitled   to   hold   in <\/p>\n
                  such other part of India under any law, if any,
\n                  relating   to   ceiling   on   land,   used   or   capable   of
\n                  being   used   for   agricultural   purposes,   shall   be
\n                  excluded from the ceiling area in excess of which <\/p>\n
                  a person is not entitled to hold land under this
\n                  section and the extent of land determined after so
\n                  excluding   such   area   shall   in   relation   to   such
\n                  person, be deemed to be the ceiling area, held by <\/p>\n
                  him in this State:  Provided that where any such
\n                  disposes of, at any time before the determination <\/p>\n
                  of ceiling area under this  Act, any land or part
\n                  thereof so held by him in any other part of India
\n                  outside   the   State,   in   accordance   with   the <\/p>\n
                  provisions of law in force in such part, the area
\n                  equal to the land or part thereof so disposed of
\n                  shall   not   be   excluded   while   determining   the
\n                  ceiling area under this sub-section.”\n<\/p>\n
     29.          The Supreme Court, while dealing with the provisions <\/p>\n
     of Gujarat Act, discussed the question of extra territoriality with <\/p>\n
     reference to the doctrine of territorial nexus as well as examined <\/p>\n
     the implications arising out of the provisions of Section 6(3A) of <\/p>\n
     the Gujarat Act.   It will be useful to reproduce the relevant extract <\/p>\n
     of the Supreme Court judgment.  The Supreme Court after noticing <\/p>\n
     the provisions in paragraph 3 held as under:-\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:13:55 :::<\/span>
\n                                  43<\/span><\/p>\n
                  “3.    ……………………………………………………………\n<\/p><\/blockquote>\n
                  It is clear from the plain languageof Section 6(3-\n<\/p><\/blockquote>\n
                  A) of the Act that for the purpose of computing
\n                  the  permissible area of a person in the State  of
\n                  Gujarat the area held by him in any other part of
\n                  India, not exceeding the maximum area of land <\/p>\n
                  which such person is entitled to hold there, is to
\n                  be   excluded   from   the   permissible   ceiling   area
\n                  under the Act.  In other words, the ceiling area of
\n                  land   permissible   under   the   Act   is   reduced   by <\/p>\n
                  deducting the area of the land owned by a person
\n                  in another State —- not exceeding the maximum <\/p>\n
                  area of land which such person is entitled to hold
\n                  in the other State —- and whatever is the balance
\n                  would be the ceiling area in the State of Gujarat <\/p>\n
                  under the Act.   If a person already holds land in
\n                  other   State\/States   in   excess   of   the   ceiling
\n                  provided under the Act, he becomes disentitled to
\n                  hold any land in the State  of Gujarat.   Holding
\n                  agricultural land outside the State of Gujarat is, <\/p>\n
                  thus, considered as a relevant factor for deciding
\n                  whether a person can hold agricultural land in the <\/p>\n
                  State of Gujarat and, if so, to what extent.”\n<\/p><\/blockquote>\n
     30.          Paragraphs 7 to 9 of the Supreme Court Judgment in <\/p>\n
     Shrikant Karulkar’s case (supra)  are the other observations which <\/p>\n
     need to be referred by us in order to examine the matter in its <\/p>\n
     proper perspective.\n<\/p>\n
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\n                44<\/span><\/p>\n
       “7.   It is no doubt correct that under Article
\n             245 and 246 of the Constitution of India <\/p>\n
             the Legislature of a State can make laws
\n             for   the   State   or   any   part   thereof.     It
\n             would be overstepping the limits of its <\/p>\n
             legislative   field   when   it   purports   to
\n             affect   men   and   property   outside   the
\n             State.       In   other   words   the   State
\n             Legislature   has   no   legislative <\/p>\n
             competence   to   make   laws   which   have
\n             extraterriotorial operation.   Meaning of
\n             the   words   “extraterritorial   operation”\n<\/p>\n
             have been authoritatively laid down by <\/p>\n
             this Court in various judgments.  A State
\n         ig  Legislature   has   plenary   jurisdiction   to
\n             enact laws in respect of subjects in Lists
\n             II   and   III,   Seventh   Schedule,
\n             Constitution of India.  Such laws may be <\/p>\n
             in   respect   of   persons   withijn   the
\n             territory, of property —- immovable or
\n             movable   —-   situated   within   the   State,
\n             or of acts and events which occur within <\/p>\n
             its borders.  So long as the law made by
\n             the State Legislature is applicable to the <\/p>\n
             persons residing within its territory and
\n             to all things and acts within its territory,
\n             it cannot be considered extraterritorial.
\n             This   Court   —-   over   a   period   of   three <\/p>\n
             decades   —-   has   evolved   a   principle
\n             called “doctrine  of territorial nexus” to
\n             find   out   whether   the   provisions   of   a
\n             particular State law have extraterritorial
\n             operation.       The   doctrine   is   well-\n<\/p>\n
             established and there is no dispute as to
\n             its   principles.     If   there   is   a   territorial
\n             nexus   between   the   persons\/property
\n             subject-matter of the Act and the State
\n             seeking to comply with the provisions of
\n             the   Act   then   the   Statute   cannot   be <\/p>\n
                                    ::: Downloaded on – 09\/06\/2013 15:13:55 :::<\/span>
\n               45<\/span><\/p>\n
            considered   as   having   extraterritorial
\n            operation.   Sufficiency of the territorial <\/p>\n
            connection   involves   consideration   of
\n            two   elements,   the   connection   must   be
\n            real   and   not   illusory   and   the   liability <\/p>\n
            sought to be imosed under the Act must
\n            be relevant to that connection.  The Act
\n            has to satisfy the principles of territorial
\n            nexus   which   are   essentially  discernible <\/p>\n
            from   the   factual   application   of   the
\n            provisions of the Act.\n<\/p>\n
       8.   The State Legislature has the legislative
\n         ig competence to enact th Act under Entry
\n            18, List II, read with Entry 42, Seventh
\n            Schedule,   Constitution   of   India.     The
\n            lands —- governed by the provisions of <\/p>\n
            the   Act   —-   are   situated   within   the
\n            territory   of   the   State   of   Gujarat.     The
\n            provisions   of   the   Act   provide   for
\n            frixation   of   ceiling   in   respect   of   the
\n            agricultural lands which are within the <\/p>\n
            territory   of   the   State   of   Gujarat.     The
\n            declaration   of   the   surplus   land   under <\/p>\n
            the   Act   is   also   in   respect   of   the   lands
\n            held by various persons in the State of
\n            Gujarat.     The   territorial   nexus   is
\n            obvious.   It is the land and the persons <\/p>\n
            holding such land within the territory of
\n            Gujarat  to  which   the   provisions  of   the
\n            Act are applicable.   If a person has no
\n            land   within   the   State   of   Gujarat   the
\n            provisions of the Act are not applicable <\/p>\n
            to   him   or   to   the   land   which   he   owns
\n            outside   the   territory   of   the   State   of
\n            Gujarat.    The  sine  qua non  within  the
\n            State   of   Gujarat.     The   territorial
\n            connection   is   thus,   real   and   sufficient <\/p>\n
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\n              46<\/span><\/p>\n
           and  the  liability  sought   to  be   imposed
\n           under   Section   6(3-A)   of   the   Act   is <\/p>\n
           directly   in   relation   to   that   connection.\n<\/p>\n
           The   factum   of   a   person   holding   land
\n           outside   the   State   of   Guajarat   is <\/p>\n
           undoubtedly an aspect pertinent to the
\n           question   of   his   entitlement   under   the
\n           Act to hold land in the State of Gujarat.\n<\/p>\n
           There is no dispute that within the State <\/p>\n
           a   ceiling   can   be   fixed   by   law   beyond
\n           which   no   person   can   hold   agricultural
\n           land, and if for determining the extent
\n           of said ceiling, the land held by a person <\/p>\n
           outside   the   State   is   taken   into
\n        ig consideration,   the   law   pertaining   to
\n           fixation   of   ceiling   would   not   become
\n           extraterritorial.     In   pith   and   substance
\n           the   law   remains   to   be   a   legislation <\/p>\n
           imposing the ceiling on holding of land
\n           within the State under Entry 18, List II,
\n           read   with   Entry   42,   List   III,   Seventh
\n           Schedule,   Constitution   of   India.     Mere <\/p>\n
           consideration   of   some   factors   which
\n           exist outside the State, for the purpose <\/p>\n
           of legislating in respect ofr the subject
\n           for which the legislature is competent to
\n           make   law,   would   not   amount   to
\n           extraterritorial   legislation.       Such <\/p>\n
           considerations   are   part   of   the   plenary
\n           legislative   function   of   the   State
\n           Legislature.   The legislative entries not
\n           only   indicate   the   subjects   for   the
\n           exercise   of   legislative   power   but   their <\/p>\n
           scope   is   much  wider  in  the   sense   that
\n           they specify a field for legislation on the
\n           subject   concerned.     Therefore,   when   a
\n           statute   fixes   a   ceiling   on   agricultural
\n           land holding within the State, it would
\n           not   become   extraterritorial   simly <\/p>\n
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\n                     47<\/span><\/p>\n
                  because   it   provides   that   while
\n                  determining   the   permissible   area   of   a <\/p>\n
                  person under the  said statute  the  land
\n                  owned by him outside the State is to be
\n                  taken   into   consideration.     We   are, <\/p>\n
                  therefore,   of   the   view   that   the
\n                  impugned   provisions   are   within   the
\n                  legislative   competence   of   the   State
\n                  Legislature   and   have   been   validly <\/p>\n
                  enacted.\n<\/p>\n
       9.         The  learned  counsel  for  the  appellants
\n                  have placed reliance on the Full Bench <\/p>\n
                  judgment of the Bombay High Court in
\n         ig       Shankarrao   v.   State   of   Maharashtra,<\/a>
\n                  1980 Mah. LJ 888 and other connected
\n                  matters   decided   on   2-10-1980.     We
\n                  have been taken through the judgment <\/p>\n
                  of the Full Bench.   Section 3(2) of the
\n                  Maharashtra   Agricultural   Lands   Act,
\n                  1961 ( Bombay Act) which was struck
\n                  down by the Bombay High Court was as <\/p>\n
                  under:-\n<\/p>\n
                         “All   land   held   by   a   person,   or   as
\n                         the   case   may   be,   a   family   unit
\n                         whether in this State or any other
\n                         part   of   India   in   excess   of   the <\/p>\n
                         ceilinhg              area,             shall,
\n                         notwithstanding                     anything
\n                         contained in any law for the time
\n                         being in force or usage, be deemed
\n                         to   be   surplus   land,   and   shall   be <\/p>\n
                         dealt   with   in   the   manner
\n                         hereinafter   provided   for   surplus
\n                         land …..”\n<\/p><\/blockquote>\n
       It is obvious that the provisions of Section 6(3-A)
\n       of   the   Gujarat   Act   and   Section   3(2)   of   the <\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                     48<\/span><\/p>\n
                    Maharashtra   Act   are   entirely   different.     On   the
\n                    plain reading of Section 3(2) of the Maharashtra <\/p>\n
                    Act it is patent that the Maharashtra Legislature
\n                    was making law in respect of the land held by a
\n                    person   anywhere   in   India.    The   expression   “all <\/p>\n
                    land held by a person or as the case may be by a
\n                    family unit whether in this State or any other part
\n                    of India…”  clearly indicates the intention on the
\n                    part   of   the   Maharashtra   Legislature   to   make <\/p>\n
                    extraterritorial  law.    No assistance  can,  thus, be
\n                    taken by the learned counsel from the Full Bench
\n                    judgment   of   the   Bombay   High   Court.     Even
\n                    otherwise   we   are   of   the   view   that   vasrious <\/p>\n
                    observations  made by the  learned Judges  of the
\n                    Bombay   High   Court   are,   rather,   broadly   stated <\/p>\n
                    and   require   to   be   straightened,   if   necessary,   in
\n                    some appropriate proceedings.”\n<\/p>\n
     31.             Here it is appropriate to make reference to a decision <\/p>\n
     in the case of Som Mittal v. State of Karnataka,<\/a> (2008)3 SCC 574, <\/p>\n
     where the Supreme Court held that the  stray observation or obiter <\/p>\n
     of the Supreme Court cannot be relied to do away with the ratio of <\/p>\n
     the judgment.\n<\/p>\n
     32.             From a bare reading of the above paragraphs in the <\/p>\n
     Supreme Court judgment in  Shrikant Karulkar’s case (supra),  it is <\/p>\n
     clear that; (a) the provisions of Section 6(3-A) of the Gujarat Act <\/p>\n
     were   held   to   be   not   suffering   from   the   legislative   vice   of   extra <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                     49<\/span><\/p>\n
     territorial legislation as the essentials of the doctrine of territorial <\/p>\n
     nexus were satisfied.   The territorial connection was found to be <\/p>\n
     real and sufficient and the  liability sought to be imposed under <\/p>\n
     Section 6(3-A) of the Gujarat Act was noticed to be direct in that <\/p>\n
     connection.  The statute which fixes ceiling on an agricultural land <\/p>\n
     holding within the State, would not become extra territorial simply <\/p>\n
     because it provides that while determining the permissible area of <\/p>\n
     a person under the said Statute the land owned by him outside the <\/p>\n
     State is to be   taken into consideration.     Thus, it was held that <\/p>\n
     Section 6(3-A) of the Gujarat Act does not have extra territorial <\/p>\n
     operation   and   the   appeal   preferred   by   the   land   owners   was <\/p>\n
     dismissed;     (b)   the   Supreme   Court   noticed   the   provisions   of <\/p>\n
     Section   3(2)   of   the   Maharashtra   Act   and   specifically   held   in <\/p>\n
     paragraph 9 that the provisions of Section 6(3A) of the Gujarat Act <\/p>\n
     and Section 3(2) of the Maharashtra Act are entirely different; (c) <\/p>\n
     The supreme Court specifically held that the expression “all land <\/p>\n
     held by a person, or as the case may be, by a family unit whether <\/p>\n
     in   this   State   or   any   other   part   of   India…”   clearly   indicated   the <\/p>\n
     intention on the part of the Maharashtra Legislature to make extra <\/p>\n
     territorial law.   The above dichotomy of the findings clearly shows <\/p>\n
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\n                                    50<\/span><\/p>\n
     that the view taken by the Full Bench of this Court was specifically <\/p>\n
     noticed by the Supreme Court with approval.   The provisions of <\/p>\n
     the Maharashtra Act were found to be entirely different than the <\/p>\n
     Gujarat Act, of course, only limited part of the provision of  Section <\/p>\n
     3(2) of the Maharashtra Act, has been reproduced in the judgment <\/p>\n
     of the Supreme Court however as noticed in the opening line of <\/p>\n
     paragraph 9 the provisions were brought to the notice of the Court <\/p>\n
     and   it   had   been   gone   into   by   the   Supreme   Court.       These <\/p>\n
     undisputed facts and categorical findings recorded by the Supreme <\/p>\n
     Court, which are binding on us, leaves   no further doubt in our <\/p>\n
     minds that the provisions of the Maharashtra Act are different and <\/p>\n
     distinct   from   the   provisions   of   the   Gujarat   Act,   as   held   by   the <\/p>\n
     Supreme Court.  The provisions of the Gujarat Act were held to be <\/p>\n
     not having extra territorial operation while the provisions of the <\/p>\n
     Maharashtra Act were clearly stated to be based on intent of the <\/p>\n
     Maharashtra Legislature to make extra territorial law which in face <\/p>\n
     of   Articles   245,   246   of   the   Constitution   of   India   was   not <\/p>\n
     permissible.  The observations  of the Supreme Court in paragraph <\/p>\n
     9 of the judgment that the principles broadly stated by the Full <\/p>\n
     Bench   are   required   to   be   straightened,   if   necessary,   in   some <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                   51<\/span><\/p>\n
     appropriate  proccedings,   neither falls within the amibt of binding <\/p>\n
     precedent nor even a  obiter dictum.   These are mere observations <\/p>\n
     of the Supreme Court.   The stand of the Full Bench of this Court <\/p>\n
     was   not   overruled   even   impliedly   much   less   expressly.       The <\/p>\n
     findings recorded by the Supreme Court take the same view as is <\/p>\n
     expressed by the Full Bench of this Court and therefore, would be <\/p>\n
     a binding precedent as far as this Court is concerned.  We may also <\/p>\n
     notice that these observations of the Supreme Court at best can be <\/p>\n
     referred to the view expressed by the Full Bench of this Court in <\/p>\n
     the case of Shankarrao (supra) where it observed that the Ceiling <\/p>\n
     Acts of Gujarat and Maharashtra are similar and on par.   Thus, we <\/p>\n
     have to follow what has been infact decided with reference to the <\/p>\n
     direct provisions of the Maharashtra Act and follow it as a binding <\/p>\n
     precedent.  A  mere observation by the Supreme Court will have to <\/p>\n
     be understood in its proper perspective and with reference to the <\/p>\n
     part   of   the   findings   which   are   directly   in   conflict   with   the <\/p>\n
     observations or findings recorded by the full Bench of this Court in <\/p>\n
     Shankarrao’s case (supra).\n<\/p>\n
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\n                                 52<\/span><\/p>\n
     33.           In the case of  Punjab  Land  Development v. Presiding  <\/p>\n
     Officer, Labour Court,<\/a> (1990)3 SCC 682, the Supreme Court while <\/p>\n
     referring to ratio decidendi of a case observed that the only thing <\/p>\n
     in a Judge’s decision binding as an authority upon a subsequent <\/p>\n
     Judge is the principle upon which the case was decided.   The ratio <\/p>\n
     decidendi   of   a   decision   may   be   narrowed   or   widened   by   the <\/p>\n
     Judges  before whom it was cited as a  precedent.  In the process, <\/p>\n
     the ratio decidendi which the judges who decided the case would <\/p>\n
     themselves have chosen may be even different from the one which <\/p>\n
     has   been   approved   by   subsequent   judges.     Therefore,   that   is <\/p>\n
     binding.\n<\/p>\n
     34.           Now we will proceed on the basis that, as noticed by <\/p>\n
     the Supreme Court, the provisions of the Maharashtra and Gujarat <\/p>\n
     Act are entirely different.  A bare reading of the provisions of the <\/p>\n
     Gujarat Act shows that any land which any person is entitled to <\/p>\n
     hold in such other part of India outside the State under the law, if <\/p>\n
     any, relating to ceiling on land, shall be excluded from the ceiling <\/p>\n
     area in excess to which a person is not entitled hold a land under <\/p>\n
     those   provisions   and   the   extent   of   land   determined   after   so <\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                    53<\/span><\/p>\n
     excluding such area shall in relation to such person, be deemed to <\/p>\n
     be ceiling area, held by him in the State of Gujarat.  Therefore, the <\/p>\n
     provisions   of   the   Gujarat   Act   contemplates   “exclusion   or <\/p>\n
     reduction”.     The   term   “exclusion”   is   derived   from   the   word <\/p>\n
     “exclude” which means deny access to or keep out or remove from <\/p>\n
     consideration and exclusion is the process or state of excluding or <\/p>\n
     being excluded. ( Ref : Oxford Dictionary, Indian Edition ).\n<\/p>\n
     35.<\/p>\n
                    Section 3(2) of the Maharashtra Act does not use the <\/p>\n
     expression “excluded”.     On the contrary, under the Maharashtra <\/p>\n
     Act, it states that all land held by a person, whether in this State or <\/p>\n
     in   any   other   part   of   India   in   excess   of   ceiling   area   shall, <\/p>\n
     notwithstanding anything contained in any other law for the time <\/p>\n
     being   in   force   would   be   deemed   to   be   surplus   land.     The <\/p>\n
     explanation then provides how the surplus land is to be calculated.\n<\/p>\n
     In terms of explanation, while calculating the ceiling area to be <\/p>\n
     held   in   the   State   of   Maharashtra,   and   determining   the   surplus <\/p>\n
     land, the  area of land in any part of India, being land which a <\/p>\n
     person or family unit is entitled to hold in such other part of India <\/p>\n
     under   any   law   relating   to   ceiling   on   land,   shall   be   taken   into <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                   54<\/span><\/p>\n
     consideration,   though,   only   the   land   held   in   the   State   may   be <\/p>\n
     declared as surplus.     As is obvious, in contra distinction  to the <\/p>\n
     provisions   of   the   Gujarat   Act   which   uses   the   word <\/p>\n
     “excluded\/excluding”, the land held in other State has to be taken <\/p>\n
     into   consideration  while   calculating   the   surplus   land.     The <\/p>\n
     expression “consideration” means a fact that is taken into account <\/p>\n
     for   making   a   decision.       The   consideration   normally   would   not <\/p>\n
     mean   incidental   or   colateral.     It   has   to   be   a   matter   directly <\/p>\n
     connected   to   the   subject   matter.       (   Ref   :   Aiyar’s   Judicial <\/p>\n
     Dictionary, 11th Edition ).\n<\/p>\n
     36.            The provisions of the Maharashtra Act thus are to be <\/p>\n
     examined   while   keeping   in   mind   the   fact   that   the   expression <\/p>\n
     noticed by the Full Bench is no longer valid and in fact does not <\/p>\n
     remain on the statute book as a lawful piece of legislation.     The <\/p>\n
     two main distinctions, therefore, will be the extra territorial law <\/p>\n
     emerging in Section 3(2) of the Maharashtra Act and use of the <\/p>\n
     word   “consideration”   instead   of   word   “exclusion”   as   used   in <\/p>\n
     Section 6(3-A) of the Gujarat Act.\n<\/p>\n
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\n                                    55<\/span><\/p>\n
     37.            The   Supreme   Court,   having   unambiguously   found <\/p>\n
     that   the   provisions   of   the   Acts   of   two   States   viz.   Gujarat   and <\/p>\n
     Maharashtra  were distinct  and different,  there is  nothing  in  the <\/p>\n
     judgment which would demonstrate that the Supreme Court has <\/p>\n
     set-aside   the   reasons   recorded   by   the   Full   Bench   (Shankarrao’s <\/p>\n
     case)   while   declaring   the   part   of   provisions   of   section   3(2)   as <\/p>\n
     extra-territorial.     On   the   contrary,   the   Supreme   Court   itself   has <\/p>\n
     come   to   a   definite   conclusion   that   the   provisions   of   the <\/p>\n
     Maharashtra Act are extra-territorial and therefore, the question of <\/p>\n
     legislative  competence would hit the provisions.   In the  light of <\/p>\n
     these   findings,   the   judgment   of   the   Full   Bench   can   hardly   be <\/p>\n
     faulted with except to the extent we have specifically noticed.  The <\/p>\n
     determination   of   land   holding   has   to   be   examined   and   the <\/p>\n
     calculations as to surplus must be made in terms of provisions of <\/p>\n
     section 3(2) while ignoring the offending expressions used by the <\/p>\n
     Legislature in that provision.  Interestingly, notice can be taken of <\/p>\n
     another judgment of the Supreme Court in Tatoba Bhau Savagave <\/p>\n
     (dead) by LRs. and another v. Vasantrao Dhindiraj Deshpande and  <\/p>\n
     others,  (2001)   8   SCC   501,   where   the   Supreme   Court   was <\/p>\n
     considering  the  provisions  of  Section        43(1-B) of  the  Bombay <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                 56<\/span><\/p>\n
     Tenancy and Agriculture Lands Act, 1948, in relation to the land <\/p>\n
     owner   who   was   a   member   of   the   Armed     Forces   claiming <\/p>\n
     exemption to the extent of his share in certain lands held by the <\/p>\n
     tenants.   The application was dismissed as not maintainable but <\/p>\n
     the revision was allowed by the High Court remanding the matter <\/p>\n
     to  the Collector requiring him to record the findings.  The decision <\/p>\n
     of the Collector was confirmed in revision and by the High Court in <\/p>\n
     its writ jurisdiction.  The authorities had taken into consideration <\/p>\n
     the land held by the member of the Armed Forces in Karnataka <\/p>\n
     and added the same to the land held by him in Maharashtra to <\/p>\n
     calculate   the   entitlement   of   exemption.     The   Supreme   Court <\/p>\n
     referred to its  judgment in Shrikant Karulkar’s case and held as <\/p>\n
     under:\n<\/p>\n
                  “12. Relying   on   the   judgment   of   this   Court   in
\n                  Shrikant Bhalchandra Karulkar v. State of Gujarat<\/a>
\n                  it   was   urged   by   Mr.   Lalit   that   as   there   was
\n                  territorial nexus in this case hence the land of the
\n                  first   respondent   in   Karnataka   State   had   to   be <\/p>\n
                  taken into computation.   We are unable to agree
\n                  with this submission.   In that case the validity of
\n                  Section 6(3-A) of the Gujarat Agricultural Lands
\n                  Ceiling Act, 1960 was under challenge.  The High
\n                  Court   upheld   the   validity   of   the   said   provision.
\n                  On appeal, this Court confirmed the judgment of <\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                57<\/span><\/p>\n
                 the   High  Court.    It  was  held:   (SCC  pp. 463-64,
\n                 para 7)<\/p>\n
                        “This Court – over a period of three decades\n<\/p><\/blockquote>\n
                        – has evolved a principle called `doctrine of <\/p>\n
                        territorial   nexus’   to   find   out   whether   the
\n                        provisions   of   a   particular   State   law   have
\n                        extraterritorial  operation.   The  doctrine  is
\n                        well established and there is no dispute as <\/p>\n
                        to   its   principles.     If   there   is   a   territorial
\n                        nexus   between   the   persons\/property
\n                        subject-matter   of   the   Act   and   the   State
\n                        seeking   to   comply   with   the   provisions   of <\/p>\n
                        the   Act   then   the   statute   cannot   be
\n                   ig   considered   as   having   extraterritorial
\n                        operation.     Sufficiency   of   the   territorial
\n                        connection   involves   consideration   of   two
\n                        elements, the connection must be real and <\/p>\n
                        not  illusory  and  the  liability  sought   to  be
\n                        imposed under the Act must be relevant to
\n                        that connection. The Act has to satisfy the
\n                        principles   of   territorial   nexus   which   are <\/p>\n
                        essentially   discernible   from   the   factual
\n                        application of the provisions of the Act.”\n<\/p><\/blockquote>\n
                13. In the  instant case  there is  no provision  in
\n                the Act like Section 6(3-A) of the said Gujarat Act.
\n                That judgment is of no help to the appellant.”\n<\/p><\/blockquote>\n
     38.         As   the   provisions   like   section   6(3-A)  of   the   Gujarat <\/p>\n
     Act were not to be found in the  Bombay Tenancy Act the view <\/p>\n
     taken by the High Court setting-aside the action of the authorities <\/p>\n
     in taking into consideration the land in Karnataka was affirmed.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                    58<\/span><\/p>\n
     Thus, the absence of specific provision was found to be the basic <\/p>\n
     infirmity  in  the  actions   of  the   respondents   while   in   the   present <\/p>\n
     case   the   provisions   of   section   3(2)   of   the   Maharashtra   Act   as <\/p>\n
     enacted   suffer   from   excessive   legislation.     The   State   Legislature <\/p>\n
     has no powers to enact laws which will have  real and effective <\/p>\n
     impact on the property situated in another State.   The section to <\/p>\n
     that extent has extra-territorial operation and is not protected by <\/p>\n
     the doctrine of territorial  nexus and therefore, necessarily has to <\/p>\n
     be quashed.  The Supreme Court and the Full Bench of this Court <\/p>\n
     have clearly stated the law that the provisions of section 3(2) of <\/p>\n
     the   Maharashtra   Act   to   the   extent   mentioned   in   Full   Bench <\/p>\n
     judgment in Shankarrao’s case are beyond legislative competence <\/p>\n
     of the State Legislature.\n<\/p>\n
                                     CONCLUSIONS<\/p>\n
     39.             Since   we   were   of   the   considered   view   that   the <\/p>\n
     findings recorded by the Supreme Court in para 9 of the judgment <\/p>\n
     in  the  case  of  Shrikant  Karulkar  (supra)  has  the  force   of   “ratio  <\/p>\n
     decidindi”  to   be   followed   by   us   in   the   present   case,   we   felt   it <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                    59<\/span><\/p>\n
     unnecessary   to   discuss   in   detail   the   principle   of   statutory <\/p>\n
     interpretation in relation to the provisions of section 3(2) of the <\/p>\n
     Maharashtra Act.  In any case, the Full Bench judgment of this case <\/p>\n
     in   the   case   of   Shankarrao   (supra)   holding   part   of   Section   3(2) <\/p>\n
     ultra   vires   on   the   principle   of   extra   territorial   operation   having <\/p>\n
     found favour with the Supreme Court as well, that question in any <\/p>\n
     case,   hardly   calls   for   any   further   deliberation.     On   appropriate <\/p>\n
     analysis of the law of precedent and other principles of law stated <\/p>\n
     by   us   (supra)   and   particularly   in   terms   of   the   judgment   of   the <\/p>\n
     Supreme Court in Shrikant’s case it is evident that there is a clear <\/p>\n
     markable distinction between the provisions of section 3(2) of the <\/p>\n
     Maharashtra   Act   and   section   6(3-A)   of   the   Gujarat   Act.     The <\/p>\n
     Supreme Court has recorded that they are `entirely different’.  The <\/p>\n
     second linguistic distinction between the two provisions which is <\/p>\n
     bound to have some effect on the application of these provisions is <\/p>\n
     the use of the word `consideration’ in the explanation to section <\/p>\n
     3(2)   of   the   Maharashtra   Act   and   “exclusion”   in   section   6(3-A).\n<\/p>\n
     These words convey the legislative intent which has to be given its <\/p>\n
     ordinary meaning in implementing the provisions of the Act.  It is <\/p>\n
     a settled principle of law that no sentence or word in a provision is <\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                    60<\/span><\/p>\n
     used by the  Legislature  without   any purpose.   Unless  otherwise <\/p>\n
     necessitated, every word has to be given its meaning in accordance <\/p>\n
     with   the   doctrine   of   “plain   interpretation”   unless   there   were <\/p>\n
     compelling circumstances to divert from such an approach.   The <\/p>\n
     part of provisions of Section 3(2) of the Maharashtra Act has been <\/p>\n
     stated   to   be   exfacie   extra   territorial   in   its   operation   and,   thus, <\/p>\n
     beyond legislative competence of the State.  Extra territorium jus <\/p>\n
     dicenti non paretur impune.   One who exercises jurisdiction out of  <\/p>\n
     his territory is not obeyed with impunity.\n<\/p>\n
     40.             Neither we are expected nor we propose to go into <\/p>\n
     the   question   of   calculation   of   surplus   land   on   the   basis   of   the <\/p>\n
     principle aforestated.   We are required only to state\/re-state the <\/p>\n
     principles of law which emerge from the judgment of the Supreme <\/p>\n
     Court  (Shrikant’s   case)  ,   Full   Bench   of   this   court  (Shankarrao’s  <\/p>\n
     case)  and the provisions of section 3(2) of the Maharashtra Act.\n<\/p>\n
     The merits of the matter and impact of the principles stated on the <\/p>\n
     question of calculation of surplus land will have to be examined by <\/p>\n
     the court of competent jurisdiction.   However, we are unable to <\/p>\n
     approve   the   finding   recorded   by   the   Full   Bench  (Shankarrao’s  <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                  61<\/span><\/p>\n
     case)  that the provisions of the Maharashtra Act and the Gujarat <\/p>\n
     Act are  “on par”  or similar.   These observations cannot hold the <\/p>\n
     field primarily for the reason that the Supreme Court in the case of <\/p>\n
     Shrikant   Karulkar   (supra)  has   returned   the   finding   that   these <\/p>\n
     provisions  are “entirely different”.   The distinction  between   the <\/p>\n
     provisions is not a fine one but there is a markable difference in <\/p>\n
     language and its consequencial effect in law.  In the Maharashtra <\/p>\n
     Act, there is not merely a reference to the land held in other State <\/p>\n
     but in fact, all the land held by a person or a family unit whether <\/p>\n
     in the State of Maharashtra or any other part of India in excess of <\/p>\n
     ceiling area by deeming fiction of law becomes the surplus land.\n<\/p>\n
     As per the explanation provided to Section 3(2) in calculating the <\/p>\n
     ceiling   area   to   be   held   in   Maharashtra   State   and   determining <\/p>\n
     “surplus land”, the area of land in any part of India shall be taken <\/p>\n
     into consideration.  Considering all the land held by a person or as <\/p>\n
     the case may be by a family unit whether in State or any part of <\/p>\n
     India, was found to be beyond legislative competence of the State <\/p>\n
     by   the   Full   Bench  (Shankarrao’s   case)  and   was   termed   by   the <\/p>\n
     Supreme Court as an “intent to enact extra territorial law”.   We <\/p>\n
     have   already   indicated   that   the   observations   recorded   by   the <\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                    62<\/span><\/p>\n
     Supreme   Court   in   the   last   line   of   para   9   are   neither   a   binding <\/p>\n
     precedent nor obiter.   They are simple observations made by the <\/p>\n
     Supreme Court expressing its desire to state the law in a better <\/p>\n
     manner   than   the   law   stated   by   Full   Bench   of   this   court.   These <\/p>\n
     observations   of   the   Supreme   Court   are   ascribable   to   the <\/p>\n
     observations   of   the   Full   Bench   with   regard   to   the   similarity <\/p>\n
     between the provisions of the Maharashtra and Gujarat Act.\n<\/p>\n
     41.<\/p>\n
                     It   was   contended   before   us   that   as   per   the   judicial <\/p>\n
     dictum   stated   by   the   Supreme   Court   in   the   case   of   Srikant <\/p>\n
     Karulkar (supra) the provisions of section 6(3A) of the Gujarat Act <\/p>\n
     were   not   having   an   extra   territorial   operation   and   as   such,   the <\/p>\n
     provisions of section 3(2) of the Maharashtra Act would also have <\/p>\n
     to   fall   in   the   same   category   and   to   that   extent,   Full   Bench <\/p>\n
     judgment   of   this   court   would   stand   overruled.     Firstly,   this <\/p>\n
     contention   is   misconceived.     The   Supreme   Court   neither <\/p>\n
     specifically   nor   by   necessary   implication   has   set   aside   the   Full <\/p>\n
     Bench judgment of this court.  On the contrary, it has specifically <\/p>\n
     stated that the provisions of section 3(2) of the Maharashtra Act is <\/p>\n
     a   law   enacted   by   the   legislature   with   the   intent   of   creating   an <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                                   63<\/span><\/p>\n
     extraterritorial   law.     The   Supreme   Court   after   noticing   the   Full <\/p>\n
     Bench   judgment   in   Shankarrao’s   case   specifically   held   that   the <\/p>\n
     provisions   of   the   Maharashtra   and   Gujarat   Acts   were   entirely <\/p>\n
     different.   In these circumstances, this contention is incapable of <\/p>\n
     acceptance.     Furthermore,   in   the   case   of  K.   Sahadeo   v.   Suresh, <\/p>\n
     1995   SCC   (Supp)   3),   668,   the   Supreme   Court   enunciated   the <\/p>\n
     principle that:-\n<\/p>\n
                   “5.\n<\/p><\/blockquote>\n
                      ig  In our opinion the learned Single Judge in
\n                   recording   the   finding   that   the   decision   in   Ataur <\/p>\n
                   Rehman   was   no   more   a   good   law,   did   not   act
\n                   properly as unless the decision in Ataur Rehman
\n                   was   set   aside   by   a   larger   bench   the   declaration
\n                   given by it that Section 4 was ultra vires could not <\/p>\n
                   be put at naught by a decision given by this Court
\n                   in respect of another Act.   The proper course for <\/p>\n
                   the learned Single Judge was to refer the matter to
\n                   the  Division  Bench.   In the  absence  of  any such
\n                   decision  by a larger bench the section could not
\n                   revive.”\n<\/p><\/blockquote>\n
     42.            Merely   because   the   provisions   of   some   enactments <\/p>\n
     appear to be para materia, they cannot be stated to be impliedly <\/p>\n
     struck down.   Merely because the provisions of Gujarat Act were <\/p>\n
     upheld by the Supreme Court would not mean that the provisions <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                              64<\/span><\/p>\n
     of Maharashtra Act are also free from any legal infirmity, more so <\/p>\n
     when they have been found to be distinctly different.\n<\/p>\n
     43.         Now   we   proceed   to   record   our   answers   to   the <\/p>\n
     questions formulated by us in our order dated 26th August, 2009:\n<\/p>\n
                 (a)     In our humble view, the appropriate course of <\/p>\n
                   ig    action before the learned Single Judge would <\/p>\n
                         have been to decide the case in the light of <\/p>\n
                         the judgment of the Full Bench of this court in <\/p>\n
                         Shankarrao’s case (supra) and the judgment of <\/p>\n
                         the   Supreme   Court   in   the   case   of  Shrikant <\/p>\n
                         Karulkar (supra).   However, keeping in view <\/p>\n
                         the language of Rule 7 of the Bombay High <\/p>\n
                         Court, Appellate Side Rules, 1960 and feeling <\/p>\n
                         that the matter can be appropriately decided <\/p>\n
                         by the larger bench, the question raised being <\/p>\n
                         of some importance, this Bench has proceeded <\/p>\n
                         to deal with the matter on merits.\n<\/p><\/blockquote>\n
                                               ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                   65<\/span><\/p>\n
       (b)    From   the   findings   recorded   by  the   Supreme <\/p>\n
              Court in the case of Srikant Karulkar (supra), <\/p>\n
              it is clear that the Full Bench judgment of this <\/p>\n
              court has neither been overruled nor can be <\/p>\n
              stated to be incorrect exposition of law.   To <\/p>\n
              reiterate   and   follow   the   dictum   of   the <\/p>\n
              Supreme Court, we hold that the provisions of <\/p>\n
         ig   section   3(2)   of   the   Maharashtra   Act   are <\/p>\n
              ‘entirely different’ from section 6(3-A) of the <\/p>\n
              Gujarat Act.   The view of the Full Bench of <\/p>\n
              this court in the case of   Shankarrao (supra) <\/p>\n
              holding that the words “all the land held by a <\/p>\n
              person or as the case may be by a family unit <\/p>\n
              whether   in   this   State   or   any   part   of   India”, <\/p>\n
              had   extra   territorial   operation   and   are, <\/p>\n
              therefore, beyond the  legislative competence <\/p>\n
              of   the   State   Legislature   is   approved   by   the <\/p>\n
              Supreme   Court.     Thus,   these   provisions <\/p>\n
              cannot be given effect to since it has an extra <\/p>\n
              territorial   operation   beyond   the   State   of <\/p>\n
                                      ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                  66<\/span><\/p>\n
             Maharashtra. In fact, it does not exist in the <\/p>\n
             statute   book   in   view   of   the   decision   of   the <\/p>\n
             Full Bench that the same is unconstitutional.\n<\/p>\n
             We make it clear that the finding recorded by <\/p>\n
             the Full Bench treating the two provisions are <\/p>\n
             similar and on par is not a good statement in <\/p>\n
             law.   Whereas   the   judgment   of   the   Supreme <\/p>\n
         ig  Court   that   these   provisions   are   entirely <\/p>\n
             different shall be binding on this court.   The <\/p>\n
             observations that Section 3(2) of Maharashtra <\/p>\n
             Act   and   Section   6(3-A)   of   Gujarat   Act   are <\/p>\n
             “similar and on par”, made by the Full Bench <\/p>\n
             alone have been disapproved by the Supreme <\/p>\n
             Court.\n<\/p>\n
       (c)   As far as question (c) is concerned, it need not <\/p>\n
             be   answered   by   us   as   it   will   be   purely   an <\/p>\n
             academic  question  in view of our answer to <\/p>\n
             questions (a) and (b) and would hardly arise <\/p>\n
             for consideration.\n<\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>
\n                              67<\/span><\/p>\n
     44.          Having answered the questions of law as formulated <\/p>\n
     by this Bench, now we direct the matter to be placed before the <\/p>\n
     learned Single Judge for disposal in accordance with law. Keeping <\/p>\n
     in view the importance of the  questions involved in the present <\/p>\n
     case, we leave the parties to bear their own costs.\n<\/p>\n
                                            CHIEF JUSTICE <\/p>\n
                                            S.B. MHASE, J <\/p>\n
                                            A.M. KHANWILKAR, J <\/p>\n
                                            A.S. OKA, J <\/p>\n
                                            R.M. SAVANT, J <\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:13:56 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The State Of Maharashtra vs Shri Murarao Malojirao Ghorpade on 16 October, 2009 Bench: S.B. Mhase, A.M. Khanwilkar 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, ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-74140","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe State Of Maharashtra vs Shri Murarao Malojirao Ghorpade on 16 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-shri-murarao-malojirao-ghorpade-on-16-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Maharashtra vs Shri Murarao Malojirao Ghorpade on 16 October, 2009 - 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