IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 597 of 2000 in SPECIAL CIVIL APPLICATION.No 4015 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and Hon'ble MR.JUSTICE R.R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : YES of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- STATE OF GUJARAT Versus MANOHARSINHJI PRADYUMANSINHJI JADEJA -------------------------------------------------------------- Appearance: MR SN SHELAT, ld. Addl.Advocate General with MS HARSHA DEVANI, ld.AGP for Appellants (original respondents) MR JR NANAVATI and MR PV HATHI with MR AR THAKKAR for Respondent (original petitioner) -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MR.JUSTICE R.R.TRIPATHI Date of decision: 11/10/2000 & 20/10/2000 ORAL JUDGEMENT (Per : MR.JUSTICE M.R.CALLA) The State of Gujarat has come in appeal against the judgment and order dated 6th May 1999 passed by the learned Single Judge in Special Civil Application No.4015 of 1990 whereby the petition was allowed and the judgment and order dated 8th September 1989 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.R.4 of 1989 confirming the orders at Annexures.A and B in Special Civil Application as had been passed by the Dy.Collector, Mamlatdar and ALT in so far as the bid land Survey No.111/2 admeasuring 30 acres and 30 gunthas and Survey No. 111/3 admeasuring 529 acres and 27 gunthas are concerned was quashed and set aside and the Rule was made absolute. 2. The controversy between the parties hinges around the provisions of the Gujarat Agricultural Lands Ceiling Act, 1960 and the amendment made therein vide Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972 and the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and the Urban Land (Ceiling and Regulation) Repeal Act, 1999. The Gujarat Agricultural Lands Ceiling Act, 1960 (Gujarat Act No.XXVII) of 1961 came into force on 15th June 1961. The Gujarat Agricultural Lands (Ceiling Amendment) Act, 1972, i.e. the Gujarat Agricultural Lands Ceiling Amendment Act, 1972 (Gujarat Act No.2) of 1974 came into force on 1.4.1976. On 14th August 1972, a resolution was passed by the Gujarat State Legislative Assembly under Clause (1) of Article 252 of the Constitution and that resolution dated 14th August 1972 is reproduced as under: "Whereas this Assembly considers that there should be a ceiling on the holding of urban immovable property; And Whereas the imposition of such ceiling and acquisition of the urban immovable property in excess of their ceiling are matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 of the Constitution; And Whereas it appears to this Assembly to be desirable that the aforesaid matter should be regulated in the State of Gujarat by Parliament by law; Now, therefore, in pursuance of clause (1) of Article 252 of the Constitution, this Assembly hereby resolves that the imposition of the ceiling on the holding of urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto should be regulated in the State of Gujarat by Parliament by law." Thereafter, the Urban Land (Ceiling and Regulation) Act, 1976 was enacted by the Parliament after the Gujarat State Legislative Assembly resolution dated 14th August 1972 and the said Urban Land (Ceiling and Regulation) Act, 1976 came into force on 17th February 1976. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No.15 of 1999) was adopted by resolution passed by the Gujarat Legislative Assembly on 30th March 1999 and the same is reproduced as under: "WHEREAS on the 14th August, 1972, this Assembly in pursuance of clause (1) of Article 252 of the Constitution of India, resolved to the effect that the matters relating to the imposition of ceiling on the holding of urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto be regulated in the State by Parliament by law; AND WHEREAS by virtue of the said Resolution, the Parliament has enacted the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976) providing for imposition of ceiling on vacant land in urban agglomerations; AND WHEREAS in pursuance of clause (2) of Article 252 of the Constitution of India, Resolutions have been passed by the Legislatures of the States of Haryana and Punjab to the effect that the aforesaid Act of 1976 should be repealed in those States by Parliament by law; AND WHEREAS the Parliament has enacted the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No.15 of 1999) repealing the said Act of 1976 in the States of Haryana and Punjab and all the Union Territories and the said Act shall also apply to such other State which adopts this Act by Resolution passed in that behalf under clause (2) of Article 252 of the Constitution of India; AND WHEREAS it is expedient to repeal the said Act of 1976 in the State of Gujarat, so that land in urban area may be available for its proper utilisation and for reviving the stagnant housing industry; AND WHEREAS the Government is committed to provide housing to the economically weaker sections and low income groups of the society and for developing infrastructural facilities such as water supply, drainage, sanitation, roads, etc.; AND WHEREAS Government of India has laid down guidelines of a recommendatory nature for achieving social objectives after repeal of the Act of 1976; AND WHEREAS in pursuance of the said guidelines, the Government is considering taking steps to provide affordable living accommodation for those who are without shelter and especially the people belonging to economically weaker sections of the society and to low income groups in the State; AND WHEREAS in pursuance of the said guidelines, Government is also considering imposition of tax on vacant land in urban area within a period of three months so as to persuade the land holders to put their land to use and also to provide financial assistance for housing schemes of economically weaker section of the society and of low income groups and for developing infrastructural facilities such as water supply, drainage, sanitation, roads etc. in the urban areas; NOW, THEREFORE, in pursuance of clause (2) of Article 252 of the Constitution of India, read with clause (1) thereof, this Assembly hereby resolves that the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No.15 of 1999) be adopted for this State." 3. The original petitioner - the respondent herein claims to be the heir of the Ruler of the Erstwhile Rajkot State. The lands which were retained by the Ruler of the Rajkot included the land Survey No. 111/2 admeasuring 30 acres and 30 gunthas and Survey No.111/3 admeasuring 579 acres and 27 gunthas total of which comes to 610 acres and 27 gunthas. The said lands were bid lands and according to the petitioner, they were highly uneven, hilly, rocky and uncultivable where no grass grows. It is the case of the petitioner that the said lands devolved upon him and he was the holder of these lands amongst other lands. On 29th June 1976, the original petitioner filled in Form under Section 10 of the Gujarat Agricultural Lands Ceiling Act, 1960 with regard to the lands as aforesaid comprising of Survey Nos.111/2 and 111/3 since they were bid lands and were required to be shown having regard to the provisions of Section 2(17) of the Gujarat Agricultural Lands Ceiling Act, 1960. 20th Oct.2000: 4. Learned Addl.Advocate General has submitted that whereas the Urban Land Ceiling and Regulation Act had come into force on 17th Feb.1976 and the Agricultural Lands Ceiling Act which was enacted in 1960 was amended on 23rd Feb.1974, even if it was brought into force on 1.4.1976, i.e. the date after 17th Feb.1976, whereby the definition of land was amended so as to include bid lands, it cannot be said that the State Legislature could not amend the definition with regard to bid lands in the Act merely because the resolution had been passed by the Assembly on 14th Aug.1972. By passing the said resolution, the State Legislature cannot be said to have abdicated its powers with regard to making amendment in the Act of 1960 and it was also submitted that the amendment was only with regard to the definition of the land and there was amendment with regard to the subject to ceiling of the agricultural land. He has submitted that no changes have been made so far as the provision relating to the Ceiling Act is concerned and that the State Legislature is not wholly denuded from the power of making any enactment on the aspects other than the aspects which directly deal with the question of ceiling. In Part-XI, i.e. Relations between the Union and the States under Chapter 1, distribution of Legislative Powers, through Article 245, the extent of laws made by Parliament and by the Legislatures of States has been provided and this Article 245 is reproduced as under: "245. Extent of laws made by Parliament and by the Legislatures of States-- (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation." Article 246 deals with the subject-matter of laws made by Parliament and by the Legislature of States. Article 249 provides for the power of the Parliament to legislature with respect to a matter in the State List in the national interest and Article 252 provides for power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State. Article 252 is reproduced as under: "252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State. (1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolution to that effect are passed by all the Houses of the Legislature of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State. (2) Any Act so passed by Parliament may be amended or repealed by an act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State." Under List II - State List of Sch.VII, item no.8 is reproduced as under: "18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization." Entry No.42 of List-III,i.e. Concurrent List, provides for acquisition and requisitioning of property. 4. It is, therefore clear that unless there is a resolution passed by the State Assembly under Article 252 by Legislatures of two or more States that in matters with respect to which the Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law and after resolutions to that effect are passed by all the Houses of the Legislature of those States, the Parliament cannot legislate with regard to the State subject which is specifically provided in the State List-II of the Sch.VII of the Constitution. In the instant case, there is no dispute that such a resolution had been passed by the State Assembly and the resolutions had been passed by more than two States. On that basis, the Urban Land Ceiling Act was passed and the same was brought into force from 1.4.1976. It is to be noted that there are two Acts before us; one with regard to the Agricultural Lands Ceiling and the other is with regard to the Urban Land Ceiling. The controversy has assumed importance because the agricultural land in question forms part of the urban agglomeration and the factual position is that the agricultural land forms part of an urban agglomeration is not in dispute. The question which therefore arises is as to whether any law could be framed by way of amendment or otherwise by the State Legislature and brought into force from 1.4.1976 with regard to such land which formed part of an urban agglomeration which was to be dealt with under the Ceiling law and for which the law had been made by the Parliament and brought into force from 1.4.1976. The State Legislature had virtually abdicated its power to legislate on the subject and only on the basis of such abdication of power, the Parliament had enacted the Urban Land Ceiling Act and the provisions of such Act when applied to the urban agglomeration, if any, the agricultural lands form part of the urban agglomeration, there could not be any State law for that purpose after 1.4.1976. On this aspect of the matter, it was also submitted that the Gujarat Agricultural Lands Ceiling Act, 1950 had come into force on 15th June 1961 and the amending Act was enacted on 23rd Feb.1976 and that this date is prior to the date on which the Ceiling Act came into force. This submission, however, cannot help the appellants for the simple reason that even if the enactment was made on 23rd Feb.1976, the same was brought into effect on 1.4.1976, i.e. after 17th Feb.1976. On behalf of the respondent, Mr.J.R.Nanavati placed reliance on the decision of the Supreme Court in the case of Thumati Venkaiah etc. v. State of Andhra Pradesh and ors., reported in AIR 1980 SC 1568 and in the case of Krishna Bhimrao Deshpande v. Land Tribunal, Dharwad, reported in AIR 1993 SC 833. In the case of Thumati Venkaiah (supra), the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 was in question in which an amendment was made. The amending Act was enacted in the year 1977 and it was given retrospective effect from 1.1.1975. While the amending Act itself was enacted after 17th Feb.1976, it was brought into force from 1.1.1975, i.e. the date prior to the date to 17.2.1976. Thus, the amending Act enacted after 17th Feb.1976 was given retrospective effect from a date prior to 17th Feb.1976, i.e.1.1.1975. The Supreme Court in such a fact-situation held that the Andhra Pradesh Legislature had at the time when the Andhra Pradesh Act was enacted, no power to legislate with respect of ceiling on urban immoveable property and that power stood transferred to Parliament and as a first step towards the eventual imposition of ceiling on immoveable property of every other description, the Parliament enacted the Central Act with a view to impose ceiling on vacant land other than the land mainly used for the purpose of agriculture in an urban agglomeration. The argument was also considered that the Andhra Pradesh Act sought to impose ceiling on land in the whole of Andhra Pradesh including land situate in urban agglomerations and since the concept of urban agglomeration defined in Section 2(n) of the Central Act was an expansive concept and any area with an existing or future population of more than one lakh could be notified to be an urban agglomeration, the whole of the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature, plausible though it may seem, is unsustainable. It was held that it could not be contended that merely because an area may possibly in the future be notified as an urban agglomeration under S.2(n)(A)(ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area, even though it was not an urban agglomeration on the date of enactment of the Andhra Pradesh Act, but it has been made clear that when an area is notified as an urban agglomeration under S.2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application, but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in Section 3(j) and situate within such area. It is, therefore, clearly discernible from this decision of the Supreme Court that so far as the urban agglomerations are concerned, it no more remains within the legislative competence of the State to provide for imposition of ceiling on land situate within the urban agglomeration. By changing the definition of the land in the Agricultural Lands Ceiling Act, if any lands which form part of the urban agglomeration are sought to be dealt with, it would certainly have an effect on the ceiling on urban agglomeration and therefore, it would certainly fall outside the legislative competence of the State. Once it is found that the change of definition of land includes the bid lands which are otherwise part of the urban agglomeration, the amending Act shall certainly besiege the legislative competence of the State. In yet another decision in the case of Krishna Bhimrao Deshpande (supra), the Supreme Court held that passing of a resolution by two or more State Legislatures is a condition precedent for the Parliament to exercise its legislative power under Article 252 of the Constitution of India. Article 252 vests the power to legislate in the Parliament, only if two or more State Legislatures think it desirable to have a law enacted by the Parliament on such matters in Sch.VII List-II, i.e. with respect to which the Parliament has otherwise no power to make law for State. In this case before the Supreme Court, the Karnataka Land Reforms Act, 1962 was amended in the year 1974, i.e. on 1.4.1974 and the same was given effect to on 2.1.1985, i.e. after the date on which the Ceiling Act came into force on 17th Feb.1976. In para 4 of this judgment, after referring to the various provisions of the Urban Ceiling Act and after considering the definition of the urban agglomeration and urban land as provided in Sec.2(n) and 2(o) of the Ceiling Act, it has been observed that the provisions under Chapter-III which exclusively deal with the conferment of occupancy rights on tenants have nothing to do with the imposition of ceiling on holdings of agricultural land under the Act. It is only Chapter-IV of the said Act which deals with ceiling on land holdings and now that the land in the instant case comes under the urban agglomeration the imposition of the ceiling should naturally be under the provisions of the Urban Ceiling Act and not under the Karnataka Land Reforms Act. It was also observed that the High Court did not deal with this aspect and therefore, it was made clear that in respect of imposing ceiling on the land under the Urban agglomeration the provisions of the Ceiling Act alone are applicable and to that extent, the provisions of Chapter-IV of the Act which also deal with the imposition of the ceiling would not be applicable. The earlier decision in the case of Thumati Venkaiah (supra) has also been referred to and the following observations have been quoted from the said judgment: "It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside the area of its legislative competence, since it cannot provide for imposition of ceiling on urban immoveable property." The Supreme Court had then stated the crucial question as to whether the provisions of Chapter-III of the Act also become inoperative by virtue of the resolution passed under Article 252 and particularly on the ground that it is a matter of imposition of ceiling on urban land or other matters connected therewith or ancillary and incidental thereto. In para 6 of this judgment, it has been observed that it is well settled that the legislative power of the State has to be reconciled with that of the Parliament and that in their respective fields each is supreme. Learned Addl.Advocate General has also placed reliance on this very decision. While referring to Kannan Devan Hills Produce Company Ltd. v. State of Kerala, reported in AIR 1972 SC 2301, the observations made by the Supreme Court in this case have been quoted in para 6 as under: "It seems to us clear that the State has legislative competence to legislate on Entry 18, List II and Entry 42 List III. This power cannot be denied on the ground that it has some effect on an industry controlled under Entry 52, List I. Effect is not the same thing as subject matter. If a State Act, otherwise valid, has effect on a matter in List I it does not cease to be a legislation with respect to an entry in List II or List III." The Supreme Court then found that in the case before it there was no conflict and the imposition of ceiling on urban immoveable property was an independent topic and could not be construed as to nullify the other subject left in the domain of the State Legislature under Entry 18 inasmuch as imposition of ceiling is a distinct and separately identifiable subject and does not cover the other measures such as regulation of relationship of landlord and tenant in respect of which the State Legislature has competence to legislate. Thus the one topic that is transferred in the resolution based under Article 252 is distinct and separately identifiable and does not include the remaining topics under Entry 18 in respect of which the State alone has the power to legislate. An examination of the various provisions of the State Act makes this aspect clear. The object underlying the Act is to make a uniform law in the State of Karnataka relating to agrarian relations, conferment of ownership on tenants, ceiling on land holdings etc. Reference has also been made to the relevant provisions and it was found that the ceiling on the area in this context was only for the purpose of Section 45 and that these were topics regarding the conferment of occupancy rights on the respective tenants and they do not in any way conflict with the subject matter transferred to the Parliament by the resolution passed under Article 252 and consequently the Special Leave Petitions were dismissed. It is on this portion that great emphasis had been laid down by learned Addl.Advocate General and as such, notwithstanding the resolution passed by the State Legislature under Article 252 in this case only the State Legislature has power to legislate with regard to any amendment in the Agricultural Lands Ceiling Act, 1960. We have considered the ratio of both these decisions of the Supreme Court and we find that the whole object of the resolution which was passed by the State Legislature under Article