ORDER
1. The judgments in this writ petition and some other writ petitions were kept reserved to await the decision of the Division Bench of this Court on a reference made by the learned single Judge of this Court ([ENTITY] J. as he then was) in [CASE NUMBER] in regard to the ration of the decision of another learned single Judge of this Court ([ENTITY], J. as he then was) in [ENTITY] v. State of Maharashtra, [PRECEDENT]. The Dicision Bench has now answered the reference in the above special civil application by its judgment dt. 17-9-1984. I am, therefore, devevering the judgment in this case in the light of the aforesaid judgment of the Division Bench of this Court.
2. In this petition, the sole contention raised on behalf of the petitioners is about the applicability of [SECTION] of the [ACT], (for short the [ACT]) in respect of transfers of lands made prior to 20-9-19756 by a member of a family unit, who held land separately below the ceiling limit prior to 26-9-1970. A decision of the learned single Judge ([ENTITY], J) of this court in [ENTITY] v. State, [CASE NUMBER] is heavily relied upon on behalf of the petitioners to show that the above contention raised by them stands concluded by the said decision.
3. Briefly the facts are that the family unit in the instant case consisted of the petitioner No. 1, his wife [ENTITY] and his minor sone, the petitioner 2 ans 3. The petitioner No. 1, in the return filed under [SECTION] of the [ACT] on behalf of the family unit, disclosed 85.39 acres of land as belonging to his aforesaid family unit. However, he did not disclose the land admeasuring 19.12 acres from S.No. 436/1 of village Edwa, which had gone to the share of his wife Smt. [ENTITY] and which she had sold by the sale-deed dt. 19-11-1971 pursuant to the alleged agreement of sale arrived at on 19-5-1969.
4. The learned Surplus Land Determination Tribunal (for short the S.L.D.T.) held that even after 26-9-1970, the cultivating possession of the aforesaid field [SECTION] was of the wife of the petitioner No. 1 Smt. [ENTITY], which continued till the year 1974-75. The S.L.D.T. therefore held that the transaction of sale was not acted upon and the land continued in possession of [ENTITY]. It held that the petitioner No. 1 failed to prove that the field was sold due to the compelling necessity. Hence it held that the transaction of sale of [SECTION] was hit by the provisions of [SECTION] of the [ACT]. The total holding of the family unit of the petitioner No. 1 was determined as 104.32 acres, out of which the surplus land belonging to the family unit of the petitioner No. 1 was declared as 44.17 acres. The petitioner No. 1 preferred an appeal before the Maharashtra Revenue Tribunal (for short M.R.T.) against the aforesaid Order of the learned S.L.D.T. The learned M.R.T. however, affirmed the order of the Learned S.L.D.T. by its order dt. 19-7-1977. Being aggrieved, the petitioners have preferred the instant writ petition in this Court.
5. The sole contention raised on behalf of the petitioners, as aforestated, is about the applicability of [SECTION] of the [ACT] to the transaction of transfer of [SECTION] admeasuring 19.12 acres under the sale-deed dt. 19-11-1971. To appreciated the contention, it may be stated that the original [ACT] was extensively amended and in fact [SECTION] of the old [ACT] were replaced by the [ACT], defined in [SECTION] of the [ACT] as the "[ACT]" hereinafter referred to also as the '[ACT]'. Although the Bill for the [ACT] was introduced in 1972 as [CASE NUMBER], it remained pending for a long time and was passed as [ACT], which was published in the Government Gazette on 7-8-1975 after having received the assent of the President. However, it did not come into force on 7-8-1975 immediately because by [SECTION] of the [ACT] it was necessary for the State Government to issue a Notification in official gazette to bring it into force. Accordingly, the state Government issued a notification of 19-9-1975 under [SECTION] of the [ACT] bringing it into force from the date. It is pertinent to notice that the [ACT] was passed to lower the ceiling limit as per the decision of the Chief Ministers of all the States held in New Delhi on 26-9-1970. The [ACT], also introduced the artificial concept of the family unit to plug the loopholes under the old [ACT] under which to save land from being declared as Surplus bogus or benami transfers were effected in the name of the near relations such as other spouse or spouses or minor sons and minor-unmarried daughters.
6. The [ACT] was, however, further amended by the [ACT] which was assented to by the President on 19-9-1975. This [ACT] also required the Notification by the State Government for being brought into force. The said notification was issued immediately on 20-9-1975 to bring the [ACT] into force from that date. From the point of view of this petition, it is important to notice that the [SECTION] of the [ACT] which was introduced by the [ACT] was deleted by the [ACT]. In other words, the [SECTION] had its life for only one day. [SECTION] with its proviso as it stood originally in the [ACT], which is relevant to this petition, is reproduced below :
"4. Land held by family unit - (1) All land held by each member of a family unit whether jointly or separately shall for the purpose of determining the ceiling area of the family unit, be deemed to be held by the family unit :
Provided that, if any person, who is a member of a family unit holds land which is possessed separately before the 26th day of Sept. 1970, as a result of acquisition by testamentary disposition or devolution on death or by operation of law or is acquired as a result of a transfer or partition effected prior to the 26th day of Sept. 1970, then for determining the surplus land in any holding which is in excess of the ceiling area on or before the commencement date, such land shall not be deemed to be held by the family unit"
"Transfer" means transfer by act of parties (whether by sale, gift, mortgage with possession, exchange, lease or any other disposition made inter vivos) and includes transfer made under decree or order of a Court, Tribunal or Authority, and "partition" has the same meaning as in [SECTION]. Explanation - A "family unit" means (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any, or(b) where any spouse is dead, the surviving spouse or spouses, and and minor sons and minor unmarried daughters: or
(c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses."
7. Another [ACT] of which it is necessary to take notice is the [ACT], which replaced the [ACT]. By this [ACT] [SECTION] introduced by the [ACT] giving the definition of the expression "commencement date" as the date from which the [ACT] would come into force was changed. The commencement date in [SECTION] was defined as "w-10-1975" as per the [ACT].
8. In the light of the above legislative history of the aforesaid amendments to the [ACT], the submission of behalf of the petitioer is that the [SECTION] as per the [ACT] was in existence and was in force on 19-9-1975. It is, therefore, urged that as per the said [SECTION] as it existed in the original [ACT], the separate land held by the wife of the petitioner No. 1 [ENTITY] as per the partition effected on 20-7-1961 i.e before 26-9-1970, could not be clubbed together with the land held by the family unit of the Petitioner No. 1. According to the petitioners, the wife of the petitioner No. 1 admittedly held land below the ceiling limit introduced by the [ACT], on the date of the sale of [SECTION] on 19-11-1971. The submission, therefore, is that since the [SECTION] existed and was force on 19-11-1971, the land belonging to the wife of the petitioner No. 1 was not the land deemed to be belonging to the family unit and, as such, it cannot be said that the sale dated 19-11-1971 was intended to avoid or defeat the object of the [ACT], particularly in view of [ENTITY]'s case, [PRECEDENT], in which it is held that the transfer effected by the landholder who held land below the ceiling limit on the date of the transfer is not hit by [SECTION] of the [ACT].
9. It is the true that the decision of this Court by the learned single Judge ([ENTITY], J.) in [ENTITY]'s case cited supra supports the contention raised by the petitioners in this petition. However, the above question is considered by the Division Bench of this Court in [CASE NUMBER] cited supra which is rendered upon a reference made by the learned single Judge ([ENTITY], J. as he then was) in that case. Although the judgment of [ENTITY], J. referred to above is not in terms considered by the Division Bench in that case. The learned single Judge in [ENTITY]'s case, relying upon [ENTITY]'s case held in the said case that any land held by a member of the family unit and separately possessed by him on 26-9-1970 could not be deemed to be held by the family unit for determining the suplus land. The Division Bench in the judgment cited supra held that no such proposition is supported by [ENTITY]'s case. The Division Bench further held that the reference in para 5 of the judgment in [ENTITY]'s case to the [SECTION] in the [ACT], and its deletion by the [ACT] were merely recitals of facts and were not the basis of the said decision. The learned single Judge ([ENTITY] J. ) in [ENTITY]'s case ([CASE NUMBER]) cited supra has also relied for his view upon the observations in para 5 of the judgment in [ENTITY]'s case, referred to above, which, as held by the Division Bench, does not lay down the proposition that any land separately held and possessed by a member of the family unit before 26-9-1970 could not be deemed to be held by the family unit for determining the surplus land.
10. The further and the most important question considered by the Division Bench in the judgment cited supra is in its para 17. The question which is considered by the Division Bench is whether the expression 'the [ACT]' used in [SECTION] of the [ACT] should be read as the [ACT], prioro to its amendment by the [ACT] or the [ACT] as amended by [ACT]. The important expression which has been construed by the Division Bench in the case cited supra as well as by [ENTITY]. J. in [ENTITY]'s case in the context of the [ACT] "The Division Bench has laid emphasis upon the expression "the object of" in construing the said expression occurring in [SECTION] of the [ACT] and its First Explanation. The Division Bench held that what is intended by using all these words is to look to "the object of the [ACT], and not to the various provision contained therein. "According to the Division Bench, the preamble to the Act serves broadly as an object of the Act, though the object can also be gathered from the scheme and various provisions of the Act taken together. The Division Bench held that the object of the [ACT] is to lower the ceiling on holding of agricultural land for making available additional land for distribution to landless and other persons. The Division Bench also held that what the [ACT] did was merely to amend some of the provisions of the [ACT], and that it did not make any departure from the object with which the [ACT] was enacted. The Division Bench thus held that whether the words "the [ACT]" occurring in [SECTION] are read referring to that Act as it stood amended by the [ACT], or without it, it would not make any different.
11. However, the learned single Judge ([ENTITY] J.) In [ENTITY]'s case ([CASE NUMBER]) cited supra held that the explanation to [SECTION] regarding the deeming provision related only to assuming of intention on the part of the transferors of avoiding or defeating the object of the [ACT], prior to its amendment by the [ACT], which came into force on 20-9-1975 by which the [SECTION] of the [ACT] was deleted. (See para 8 of the report). The view of [ENTITY], J. Therefore is that the object of the [ACT], is different from the object of the [ACT] which came into force on 20-9-1975 by which the [SECTION] of the [ACT] was deleted. (See para 8 of the report). The view of [ENTITY], J. therefore is that the object of the [ACT], is different from the object of the [ACT] which view as stated above in inconsistent with the view taken by the Division Bench in the judgment cited supra. The Division Bench further held in para 18 of its judgment that the [ACT], as amended by the [ACT] amended the original [ACT] relying upon the judgment of the earlier Division Bench of this Court in [ENTITY] Undhorao Uttarwar v. State, . The Division Bench thus held that wherever the [ACT] is cited, it would have to be read as including the amendments made by the [ACT]. It, therefore, answered in the affirmative the point No. III in the reference on the question as to whether the expression "[ACT]" used in [SECTION] of the [ACT] should be read as "[ACT] as amended by the Amendment Act, 1975". It is thus clear that the view taken by [ENTITY], J. in [ENTITY]'s case cited supra is contrary to the view taken by the Division Bench in the aforesaid case. In fact, [ENTITY], J. has also heavily relied upon the decision in [ENTITY]'s case which, as held by the Division Bench in the aforesaid case, is not applicable to a case in which the family unit existed on the commencement date i.e. 2-10-1975.
12. In my view, in construing the expression "[ACT]" occurring in [SECTION] of the [ACT] resort can be had to the canon of construction that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the rarlier Act must thereafter be read and construed (except where that would lead to a repugnance, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words secured out so that thereafter there is no need to refer to the [ACT] at all. The above canon of construction is approved and is made applicable by the Supreme Court in the case of [PRECEDENT], in a case under the [ACT], as amended by [SECTION] of the [ACT]. In para 7 of the report, where the aforesaid canon of construction is considered by the Supreme Court, reliance is placed upon [ENTITY] on Statute Law, 5th Edn. page 207, Crawford on Statutory Construction page 110. The Supreme Court held, vide para 7 of the report, that bearing the above principle in mind, the expression 'The Act of 1950' remained the Act of 1950 even with its subsequent amendments and , therefore, the moment the [ACT] was passed and [SECTION] came into operation, the Act of 1950 meant the Act of 1950 as amended by [SECTION] of the [ACT].
13. In the instant case, on or after the commencement date when [SECTION] would be made applicable the original [ACT] had stood amended by the [ACT] after it came into force on 20-9-1975. The expression "[ACT]" occurring in [SECTION] has, therefore, to be construed as the [ACT] as it stood amended by the [ACT] because it stood incorporated in the former Act by reason of which the [SECTION] stood deleted. As will be presently pointed out, the above construction does not intend to give retrospective effect to the [ACT] but only seeks to interpret the expression "[ACT]" occurring in [SECTION] of the [ACT] made applicable on or after the commencement date.
14. The above construction of the [ACT], is of great assistance in properly interpreting the legal fiction created in the first Explanation to [SECTION] of the [ACT] that all transfers made after the 26th day of Sept. 1970 but before the commencement date, shall bedeemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the [ACT]. If the expression '[ACT]' in [SECTION] meant the [ACT] as amended by [ACT], as it stood on or after the commencement date, then giving full effect to the legal fiction it will have to be understood that all transfers made after the 26th day of Sept. 1970 but before the commencement date shall be deemed to have been made in anticipation of or in order to avoid or defeat the object of the [ACT] the [SECTION] of which stood deleted by the [ACT].
15. It is well settled that full effect must be given to the statutory fiction and it should be carried to its logical conclusion (see [PRECEDENT], ). It is also necessary for giving full effect to the legal fiction to assume all those facts on which alone the fiction can operate (see [PRECEDENT], ). The classic oft-quoted passage of Lord [ENTITY] from [PRECEDENT] at page 589, can be usefully referred to in this regard :
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it."
16. Bearing the above principles in mind and also the fact that under [SECTION] of the [ACT], the surplus land as belonging to any person or any family unit has to be determined on or after the commencement date, in aid of which [SECTION] in which the legal fiction is created must be imagined to mean the [ACT] after the deletion of the [SECTION] by the [ACT]. The presumption created by the legal fiction would therefore be that the transfers made during the period from 26-9-1970 to the commencement date i.e. 2-10-1975 would be in anticipation of or in order to avoid or defeat the object of the [ACT], as it stood after deletion of the [SECTION] by the [ACT].
17. If looked at in this way, since the [SECTION] originally introduced by the [ACT] was not in existence on the commencement date i.e. 2-10-1975 or thereafter, there is no merit in the contention that the said proviso should be taken into consideration in determining the expression '[ACT]' occurring in the legal fiction created in the first Explanation to [SECTION] of the [ACT]. There is no rationale in assumption of the intention on the part of the transderors of avoiding or defeating the object of the [ACT], upon the footing that the said Act originally came into force on 19-9-1975. It would have been a different thing if any ceiling area under [SECTION] of the [ACT] were to be determined on 19-9-1975. It is quite clear that the original [ACT] was not in force prior to 19-9-1975 so that no actual knowledge could be attributed to the transferor that prior to 19-9-1975 they were free to transfer the land in their possession held separately by them on or before 26-9-1970 in view of the [SECTION] of the [ACT]. The occasion to apply [SECTION] can only arise when the ceiling area is to be determined under [SECTION] of the [ACT], i.e. on or after the commencement date when the return is filed. It is, therefore, the [ACT] which existed on or after the commencement date which is relevant for the purpose of the legal fiction created in the first Explanation to [SECTION] of the [ACT], In this view of the matter, the contention raised on behalf of the petitioners that in view of the [SECTION] in the [ACT], existing on 19-9-75 i.e. prior to its deletion by the [ACT], the transfer effected on 19-11-1971 by Smt. [ENTITY], is not within the mischief of [SECTION] of the [ACT] deserves to be rejected.
In the result, the writ petition fails and is dismissed. However, in the circumstances of the case there will be no order as to costs.
18. Petition dismissed.