2011(7) ALL MR 551
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.M. KANADE, J.

The State Of Maharashtra & Ors. Vs. Shri Murarrao Malojirao Ghorpade & Ors.

Second Appeal No.411 of 1990,Civil Application No. 2431 of 1993,Second Appeal No.411 of 1990

1st July, 2011

Petitioner Counsel: Mr. V.S. MHAISPURKAR
Respondent Counsel: Mr. J. SHEKHAR i/b M/s J. SHEKHAR & CO.

Maharashtra Agricultural Lands (Ceiling on Holdings) Act (1961), S.3(2) - Ceiling proceedings - Possession of surplus land-Land owned by the land owner situated in other States in India - Held, such a land could not be taken into consideration for deciding whether he is in possession of surplus land. (1994) 5 SCC 459 - Ref. to. (Para 7)

Cases Cited:
Shankarrao and others Vs. State of Maharashtra, 1980 Mh.L.J.888 [Para 5,6]
Shrikant Bhalchandra Karulkar and others Vs. State of Gujarat and another, (1994) 5 SCC 459 [Para 6]


JUDGMENT

JUDGMENT :- Heard the learned Assistant Government Pleader appearing on behalf of the Appellant and the learned Counsel appearing on behalf of Respondent No.2.

2. This second appeal is filed by the State of Maharashtra challenging the judgment and order passed by the 3rd Additional District & Sessions Judge, Kolhapur in Civil Appeal No.46 of 1984 whereby the learned District Judge was pleased to dismiss the appeal and confirm the Judgment and Order dated 15/10/1983 passed by the Trial Court in Regular Civil Suit No.571 of 1981.

3. Brief facts are as under:-

4. Respondents are original Plaintiffs and the Appellants are original Defendants. For the sake of convenience, parties shall be referred to as "Plaintiffs" and "Defendants".

5. Plaintiffs filed a suit being Regular Civil Suit No.571 of 1981 for a declaration that orders passed by the authorities under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 are null and void and also asked for consequential reliefs in view of the judgment of the Full Bench of this Court in Shankarrao and others vs. State of Maharashtra, 1980 Mh.L.J. 888. The suit was decreed. The first appeal filed by the State before the 3rd Additional District & Sessions Judge, Kolhapur was also dismissed. Being aggrieved by the said judgment and order passed by the lower Courts, the State filed second appeal, challenging the judgment and decree which was passed in Regular Civil Suit No.571 of 1981 and confirmed in Regular Civil Appeal No.46 of 1984.

6. Reliance was placed on the judgment of the Apex Court in Shrikant Bhalchandra Karulkar and others vs. State of Gujarat and another (1994) 5 SCC 459. in which, according to the Government, the Hon'ble Apex Court has taken a view that similar provision in Gujarat Agricultural Lands Ceiling Act, 1960 is not extra territorial and, therefore, the State has legislative competence to enact the said provision. When the matter came up for hearing before the learned Single Judge of this Court, the learned Single Judge was pleased to refer the issue to a larger Bench by order dated 28/7/2009. In view of the said order, the matter was referred to the five Judges Bench of this Court, which was decided on 16/10/2009 and the Full Bench of this Court has held in para 43 of its Judgment as under:-

"43. Now we proceed to record our answers to the questions formulated by us in our order dated 26th August, 2009:

(a) In our humble view, the appropriate course of action before the learned Single Judge would have been to decide the case in the light of the judgment of the Full Bench of this Court in Shankarrao's case (supra) and the judgment of the Supreme Court in the case of Shrikant Karulkar (supra). However, keeping in view the language of Rule 7 of the Bombay High Court, Appellate Side Rules, 1960 and feeling that the matter can be appropriately decided by the larger Bench, the question raised being of some importance, this Bench has proceeded to deal with the matter on merits.

(b) From the findings recorded by the Supreme Court in the case of Srikant Karulkar (supra), it is clear that the Full Bench judgment of this court has neither been overruled nor can be stated to be incorrect exposition of law. To reiterate and follow the dictum of the Supreme Court, we hold that the provisions of section 3(2) of the Maharashtra Act are 'entirely different' from section 6(3-A) of the Gujarat Act. The view of the Full Bench of this court in the case of Shankarrao (supra) holding that the words "all the land held by a person or as the case may be by a family unit whether in this State or any part of India", had extra territorial operation and are, therefore, beyond the legislative competence of the State Legislature is approved by the Supreme Court. Thus, these provisions cannot be given effect to since it has an extra territorial operation beyond the State of Maharashtra. In fact, it does not exist in the statute book in view of the decision of the Full Bench that the same is unconstitutional. We make it clear that the finding recorded by the Full Bench treating the two provisions are similar and on par is not a good statement in law. Whereas the judgment of the Supreme Court that these provisions are entirely different shall be binding on this court. The observations that Section 3(2) of Maharashtra Act and Section 6(3- A) of Gujarat Act are "similar and on par", made by the Full Bench alone have been disapproved by the Supreme Court.

(c) As far as question (c) is concerned, it need not be answered by us as it will be purely an academic question in view of our answer to questions (a) and (b) and would hardly arise for consideration."

The Full Bench of this Court has clearly held that the judgment of the Apex Court in Shrikant Bhalchandra Karulkar and others vs. State of Gujarat and another (1994) 5 SCC 459 has neither overruled the Full Bench Judgment of this Court in Shankarrao and others vs. State of Maharashtra 1980 Mh.L.J. 888 nor it could be said that the said judgment had decided the exposition of law. The Full Bench also held that the provisions of section 3(2) of the Maharashtra Act are 'entirely different' from section 6(3-A) of the Gujarat Act.

7. The short controversy which is raised in this appeal is : whether the land owned by the Plaintiffs and which was situated in other States of India could be taken into consideration for the purpose of deciding whether Plaintiffs were in possession of surplus land as defined under the said Act? In view of the judgment of the five judges Bench of this Court, the said issue has now been answered in favour of the Plaintiffs. Therefore, the substantial question of law which has been raised by the Appellant - State of Maharashtra has been accordingly answered in favour of the Plaintiffs by the said Full Bench Judgment dated 16/10/2009. This second appeal is, therefore, dismissed.

8. Since this second appeal itself is dismissed, Civil Application does not survive and the same is also disposed of.

Appeal dismissed.