Holding

The partition finding is conclusive and cannot be revisited; land outside the Bombay area cannot be counted for ceiling‑area purposes under Section 43‑IB, and Directive Principles cannot be used to read into the Act provisions not expressly provided.

Summary

The landlord, a serving member of the armed forces, filed a tenancy case under Section 43‑IB of the Bombay Tenancy and Agricultural Lands Act, 1948 seeking resumption of land from the tenants. The High Court, after remand, held that the partition of the joint family lands in 1944 was conclusive and that land owned by the landlord in Karnataka, outside the Bombay area, could not be counted towards his ceiling area. The tenants appealed, arguing that the partition finding could be reopened and that Directive Principles required inclusion of the out‑of‑state land. The Supreme Court held that the partition finding was barred by issue estoppel, that the Act’s ceiling‑area calculation is limited to land within the Bombay area, and that Directive Principles cannot be used to read into the statute provisions not expressly provided. Consequently, the appeal was dismissed.

Issues considered

The partition of the joint family lands by metes and bounds can be re‑opened after the High Court's remand.
Whether land held by the landlord outside the Bombay area (Karnataka) should be included in computing his ceiling area under Section 43‑IB.
Whether Directive Principles of State Policy can be invoked to expand the statutory scheme of the Act.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 2, s. 34(2)(a), s. 43-IB, s. 5, s. 6, s. 7
Constitution of Indias. Article 136, s. Article 38, s. Article 39(b), s. Article 39(c)

Subjects

Land ceilingTenancyPartitionIssue estoppelBombay Tenancy and Agricultural Lands ActDirective PrinciplesTerritorial nexusArmed forces landlord

Judgment

TATOBA BHAU SAVAGAVE (D) BY LRS. AND ANR. A
v.
VASANTRAO DHINIRAJ DESHPANDE AND ORS.

OCTOBER 5, 2001

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B
- Land Laws:

Bombay Tenancy and Agricultural Lands Act, 1948-Section 43-1 B-
Calculation of ceiling area of land of landlord and resumption of.land from
tenants mi termination o.f tenancy-Contention by petitioners that there was no
c
partition o_f joint family lands o.f respondent-Inclusion of land belonging to
respondent lying in another State for calculating ceiling area-Held, on facts
and.findings by Revenue authorities as confimied by High Court, partition o.f
joint family by metes and bounds already e.ffected-Same po"int cannot be
agitated by applying 'principle o.f issue estoppel '-Land lying in another State D
cannot be included-Constitution of India, 1950-Article 136.

Interpretation of Statutes:

Reading the provisions o.f a statute-Application o.f Directive principles
of State Policy-Held, cannot be applied iii reading the provisions o.f the Act E
which the legislature has not provided either expressly or by necessary
implication-Constitution o.f India, 1950-Articles 38, 39(b) and (c).

Respondent~landlord, a member of the Armed Forces, filed a tenancy

- case before Collector under Section 43-IB of the Bombay Tenancy and
· Agricultural Lands Act, 1948 for resumption on land from petitioners-
teitants to the extent of 1/2 share in Survey No. 98 and 2/3rd share in
F

Survey No. 99. The Collector dismissed the tenancy case as not maintainable•.
In appeal, Additional Commissioner held that the tenancy case was
..1
maintainable before the Collector on the ground that the partition of ttie
joint family· took place in 1944 but confined resumption of land tO I/3rd. G
share in Survey No. 99. The order of the AdditionaiCommissioner was
affirmed by High Court and the matter was remanded back to the Collector
for calculating the total land held by the respondent and the extent of land
available for resumption from the petitioners. The Collector, for calculation
purposes, did not include the land held by the respondent in the State of H
609
610 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A Karnataka and considered only the land held in the area of Bombay and
decided that the respondent was entitled· to resume possession of l/3rd .
share in Survey No. 99 froin the petitioners. '.fhe order of the Collector was
confirmed by the Commissioner and the High Court.

In appeal to this Court, the petitioners contended that no partition ·
B took place of the joint family lands of the respondent by metes and bounds;
that the findings of the High Court in the order of remand can be challenged;
and that having regard to the Directive Principles of State P9licy contained -
in the Constitution of India, the land held by the respondent in the State of
Karnataka must also be included in calculating the total holding of the
C land under the Act.

The respondent contended that the issue relating to the partition of
. the joint family property was already confirmed by the High Court in its
order of remand and the same cannot be permitted to be re~opened; and
that the land held by the first re~pondent outside the Bombay area cannot ~
D be taken into account for determining totai land held by him under the
Act.

Dismissing the appeal, the Court _;_

HELD: 1:1. The question of partition of lands of the joint family was
E found against the petitioners in the fir~t round of litigation by the. Revenue
Authorities. High Court held that, by. virtue of partition in 1944, the
respondent did not get any share in Survey No. 98 while his brothers got 1/
3rd share each in Survey No, 99. The status of the joint family had come to
an end and the shar~s of th~ members of the erstwI:tile joint family had
F been _defined. Furth~r, the High Court upheld the order of the Additional
fomm.issioner that the respondent was entitled to apply under Section 43-
lB of the Bombay Tenancy and Agricultural Lands Act, 1948 for possession
~ • • • T -

of the 1/3rd share in Survey No. 99. Thus, having confirmed the findings
. '
recorded by the Revenqe Authorities, the case was remanded.back to the
Collect~r for. determination ~f the. total land held by the first r~spondent
G .and the extent of the land available for res~mption.. The petitioners are
now ~arred from agitating the same p~int by principle of 'issue est!lppel' o

Secondly, when the Rev.enue Authorities concurrently found that there
was parti.tion of joint family lands by metes and bounds which was accepted
. by the High Court in the earlier rou~.il of litigation, this Court in its
H jurisdiction
. under Article --136
-
of the
.
Constitution will not permit the
,. .
TATOBA BHAU SAVAGAVE v. VASANTRAO DHINIRAJ 611

petitioners to agitate the concurrent findings of fact in the proceedings A
after remand. [615-C-G]

Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr., [1999] 5
sec 590, relied on.
1.2. The Act aims at achieving improved production and agricultural B

- efficiency while safeguarding the interest of Rayat and creating and
encouraging 'peasant proprietorship' in respect of holding of suitable size
in the erstwhile State of Bombay - now Bombay area of the State of
Maharashtra. A perusal of various clauses of Section 2 containing the
definition of "land", "landholder", "tenant". "to hold land" and the
provisions of Sections 5 and 6 leaves no room for doubt that the various c
categories of land enumerated in Sections 5 and 6 are classified having
regard to the nature of the land in the Bombay area and ceiling area is
fixed having regard to the condition and requirements of landlord and
tenant in the Bombay area. Section 7 of the Act empowers the Government
to vary ceiling area and economic holding in public interest regard being D
had to: (a) the situation of the land, (b) its productive capacity, (c) the fact
that the land is located in a backward area, and (d) any other factors
which may be prescribed. There is nothing in the Act to suggest that land
outside Bombay area, anywhere in India or the world should be taken into
account for purposes of calculatin_g the holding or ceiling area of the
E
landlord or the tenant. All these factors need to be determined with reference
to the Bombay area. The Act postulates that the land within the Bombay
area is required to be taken into computation for purposes of determining
the ceiling area. It will therefore, be impermissible to take into account any
land held by the respondent in the State of Karnataka. [616-D-H; 617-A]
F
Chhanubhai Karnsang v. Sardul Mansang, (1956) 58 Bombay Law
Reporter 463, approved.

Shrikant Bhalchandra Karulkar & Ors. etc. v. State of Gi~jarat & Anr.
etc., [1994] 5 sec 459, distinguished.

2~ There can be no gainsaying the fact that while interpreting a . G
beneficial legislation like the Act, the Directive Principles of State Policy
contained in Article 38 and Clauses (b) and (c) of Article 39 of the
Constitution should be uppermost in the mind of a Judge. But that principle
cannot be extended to reading in the provisions of the Act that which the
legislature has not provided either expressly or by necessary implication. A H .
-
612 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A perusal of section 43-lB of the Act indicates that it has taken care of the
right of a tenant and safeguarded the possession of the land held by a
tena~t when the holding of the landlord is equal to the_ ceiling area; even
when the holding of the landlord is less than th~ ceiling area; only so much
of the land held by the tenant as will be sufficient to make up the total land·
g in the actual possession of the landlord equal to the ceiling area, is permitted
to be resumed •. (615-H; 616-A-B]

Steel Authority of India Ltd. & Ors. etc. etc. v.
National Union, Water
Front Workers & Ors. etc. etc., JT (2091) SC 268, relied on.
.
C CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1809 of 1992.

From the Judgment and Order dated 9/10: 1.92 of the Bombay High
Court in W.P. No. 3205 of 1981.

U.U. Lalit and Gaurav Agarwal for the Appellants.
D
A.S. Bhasme, Sanja)'. K. · Visen and Manoj K. Mishra, Adv. for the
Respondents.

The Judgment of the Court was 'delivered by

SYED SHAH MOHAMMED QUADRI, J. This appeal by special
E
leave is filed by the tenant against the order of the High Court of Judicature
at Bombay in ·writ Petition No.3205 of 1982 dated January 9/10, 1992.

The question that arises in this appeal is: whether in calculating the
ceiling area of the landl<;>rd for purposes of Clau~e (a) of sub-section (1) of
F Section 43-lB of the Bombay Tenancy and Agricultural Lands Act, 1948,
should any land held by him outside the State of Maharashtra be computed?

By Maharashtra Act XXXIX of 1964 Chapter III-AA was inserted in the
Bombay Tenancy and Agricultural Lands Act, 1948 (for short, 'the Act') and
the words "or serving member of the armed forces" were deleted from Section
G 32-F.of the Act. Chapter III-AA contains special provisions for termination of
.tenancy by landlords who are or have been serving members of the Armed
Forces,and for purchase of their lands by tenants. Section 43-lB which is one
of .the main provisions in· that chapter confers a right on the landlord to
terminate the tenancy of any land and· obtain possession from the tenant
H thereoLWe shall s_et out here sub-section (1) of Section 43-lB :
TATOBABHAU SAVAGAVE v. VASANTRAO DHINIRAJ [QUADRI, J.] 613
"43-lB.(1) Notwithstanding anything contained in the foregoing pro- A
visions of this Act, but subject to the provisions of this section, it shall
be lawful to a landlord at any time after the commencement of the
Tenancy and Agricultural Lands Laws (Amendment) Act, 1964, to
terminate the tenancy of any land and obtain possession thereof, but-

.(a) of so much of such land as will be sufficient to make up the total B
land in his actual possession equal to the ceiling area; and

(b) where the landlord is a member of a joint family, only to the extent
of his share in the land (not exceeding the ceiling area) held by
the joint family, provided that, the Mamlatdar on inquiry is
satisfied that such share has (regard being had to the area,
c
assessment, classification and value of land), been separated by
metes and bounds in the same proportion as his share in the entire
joint family property and not in a larger proportion.

(2) to (4) ****** ***" D
From a perusal of sub-section (1) of Section 43-lB it is noticeable that
it overrides the provisions of Chapters I to III but is subject to the provisions
of that section. It eriables a landlord, at any time after the commencement of
the said Act XXXIX of 1964, to terminate the tenancy of any land and obtain
possession from the tenant thereof., This righ~ is subject to the following E
co!lditions :

(1) the landlord is entitled to take possession of so much of such land
only as will be sufficient to make up the total land in his actual
possession equal to the ceiling area and where the landlord is a member
of a joint family, only to the extent of his share in the land (not F
exceeding the ceiling area) held by the joint family;

(2) on enquiry the Mamlatdar has to be satisfied that such share of the
landlord has been separated by metes and bounds in the same propor-
tion as his share in the entire joint family property and is not in a larger
G
proportion. In recording his satisfaction the Mamlatdar has to take into
account the area, assessment, classification and value of th.e land.

Section 43- lA defines "landlord" for purposes of that Chapter to mean
a landlord (including a certificated landlord within the meaning of Section
33A) who is or has ceased to be, a serving member of the armed forces; and H
614 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A in relation to the land of a landlord who is dead includes his widow, son, son's
son, unmarried daughter, father or mother.

A brief account of the facts may be helpful in hitting upon a solution.

The first respondent (landlord) was a member of the Armed Forces from
B 1941 to 1970. On February 27, 196f he filed Tenancy Case No.1 of 1968
before the Collector, Kolhapur, under Section 43-1 B for resumption of the land
to the extent of share in Survey No. 98 and 2/3rd share in Survey No. 99 held
by the appellants as tenants. On September 22, 1970, the case was dismissed
as not maintainable. The first respondent carried the matter in revision before
the Additional Commissioner, Poona Division, Poona, who, by his order dated
c November 30, 1974, opined that the partition of the joint family took place in
1944, therefore, the case before the Collector was maintainable and confined
resumption of land to l/3rd share in Survey No. 99. That order was affirmed
in Special Civil Application No.744 of 1975 by the High Court of Bombay on
July 3, 1979 and the case was remanded to the Collector for recording findings
D in regard to the holdings of the first respondent and the extent of the land he
could resume from the appellants. On April 6, 1981, after remand, in computing
.his holding, the Coll~ctor dedined tci take into consideration the land owned
by the first respondent in the State of Karnataka, the extent of that land is not
beyond controversy, and conduded that he was having in his actual possessi.on
E 13 acres 12 gunthas in the State of Maharashtra and he was entitle;d to resume
possession of l/3rd share in Survey No. 99 from the appellants which would
come 5 acres 27 gunthas; thus, his total holding on resumption of the land from
them under Section 43~1B would become·18 acres 14 gunthas (though 13 acres
. 12 gunthas + 5 acres 27 gunthas add up to 18 acres 39 gunthas) which was far
less than the ·ceiling area of 48 acres. That order was confirmed by the
F Commissioner in revi~ion on August 29, 1981: The appellants challenged the
correctness of the order of the Commissioner in Writ Petition No. 3205 of 1981.
On January 9/10/1992, the High Court dismissed the writ petiti~n, it is from
that order "that the presen~ appeal arises.

Mr. U.U. Lalit, the learned counsel for the appellants,. argued that no
G partitiori by metes and bounds of the land held by tbe first respondent's joint
family.took place as such subsequent events including order of remand would
be inconsequential and that they could challenge the finding affirmed by the
High Court in the order of remand. He contended that having regard to the
directive principles contained in the Constitution, the land held by the first
H respondent in Karnataka State must be added to the land held by him in
TATOBA BHAU SAVAGAVE v. VASANTRAO DHINIRAJ [QUADRI, J.] 615
Maharashtra State for arriving at the correct extent of the land he would be A
entitled to resume from the appellants under Clause (a) aforementioned.

Mr. A.S. Bhasme, the learned counsel appearing for the first respondent,
has argued that the first contention of the appellant is concluded by the earlier
order of the High Court remanding the case to the Collector for determining
his holding and that the same cannot be permitted to be re-opened. Relying on B
the judgment of a Division Bench of the Bombay High Court in Chhanubhai
Karansang v. Sardul Mansang, (1956) 58 Bombay Law Reporter 463, Mr.
Bhasme has submitted that the land held by the first respondent outside the
Bombay area cannot be taken into account for determining total land held by
him under the Act. c
The first contention of Mr. Lalit need not detain us. Firstly the question
of partition of lands of the joint family was found against the appellant in the
first round oflitigation by the Revenue Authorities. On July 3, 1979, in Special
Civil Application No. 744 of 1975, the High Court held that by virtue of
partition in 1944, the first respondent did not get any share in Survey No. 98 D
while his brothers got l/3rd share each in Survey No. 99. The status of the joint
family had come to an end and the shares of the members of the erstwhile joint
family had been defined. Further, the High Court upheld the order of the
Additional Commissioner that the first respondent was entitled to apply under
Section 43-IB of the Act for possession of the l/3rd share in Survey No. 99 E
and it was made clear that the order would be subject to the findings of the
Collector on issue Nos. 5 & 6. Thus, having confirmed the findings recorded
by the Revenue Authorities the case was remanded to the Collector to decide
issue Nos. 5 and 6 which related to determination of the total land held by the
first respondent and the extent of the land he would be entitled to resume. The
appellants are now barred from agitating the same point by principle of 'issue . F
estoppel'. [See: Hope Plantation_s Ltd. v. Taluk Land Board, Peermade & Am:,
[1999] 5 SCC 590. Secondly, when the Revenue Authorities concurrently
found that there was partition of joint family lands by metes and bounds which
was accepted by the High Court in the earlier round of litigation this Court in
its jurisdiction under Article 136 will not permit the appellants to agitate the · G
concurrent findings of fact in proceedings after remand.

In regard.to the second contention of Mr. Lalit, there can be no gainsaying
the fact that while interpreting a beneficial. legislation like the Act under
consideration, the Directive Principles of state policy contained in Article 38
and Clauses (b) and (c) of Article 39 of the Constitution should be uppermost H
616 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A in the mind of a Judge. But that principle cannot be extended to reading in the
pro~isions of the Act that which the legislat.ure has not provided either expressly
. or by necessary implication [See : Steel Authority of India Ltd. & Ors. etc. etc.
v. National Union Water Front Workers & Ors: etc. etc., IT (2001) 7 SC 268.
A perusal of Section 43-IB indicates that it has taken care of the right of a tenant
and safeguarded the possession of the land held by a tenant when the holding
B
of the landlord is equal to the ceiling area; even when the holding of the
landlord is less than the ceiling area, only so much of the land held by the tenant
as will be sufficient to make up the total land in the actual possession of the
landlord equal to the ceiling area, is permitted to be resumed. The controversy
here, as noted above, relates to computation of the holding of the first respondent.
c Should the land held by the first respondent-landlord in Karnataka State be
taken into account in computing his holding? The High Court answered the
question in the negative and we are not persuaded to take a different view. The
reasons are not far to seek. The Act aims at achieving improved production and
agricultural efficiency while safeguarding th~ interest of Rayat and creatip.g
D and encouraging 'peasent proprietorship' in respect of holding of suitable size
in the erstwhile State of Bombay - now Bombay area of the State of Maharashtra
(referred to in this judgment a~, 'Bombay area'). Clause (2-D) of Section 2 of
th~ Act defines "ceiling area" to mean in relation to land held by a person
whether as a owner or a tenant or partly as owner or partly as tenant -the area
pf the land fixed as. ceiling area under Sections 5 or 7 of the Act. A perusal
E of various clauses of Section 2 containing the definition of "land", "landholde(,
"tenant", "to hold land'.' and the provisiqns of Sections 5 and 6 leaves no ro<?m
for doubt that the various categories of land enumerate~ in Sections 5 and 6
are Classified having regard to the nature of the land in the Bombay area and
ceiling area is fixed having regard to the conditions and requirements of
F landlord and tenant in the Bombay area, Section 7 of the Act empowers the
Government to vary ceiling area.an.d economic holding in public interes.t regard
being had to: (a) the situation of th~ land, (b) its productive capacity, (c) the
fact that the land is located in a backward area, and (d) any other factors which
may be prescribed. There is nothing in the said provisions or for that matter
in any provisions of the Act to suggest that land outside Bombay .area, anywhere
G in India or the world should be taken into account for purposes of calculating
the holding or ceiling area of the landlord or the tenant. All these factors need
to be determined with reference to the Bombay area. The above discussion
leads to irresistible conclusion that the Act -postulates that the land within the
Bombay area is required to be taken into computation for purpose of determining
H the ceiling area. It will, therefore, be impermissible to take into account any
TATOBA BHAU SAVAGAVE v. VASANTRAO DHINIRAJ [QUADRI, J.] 617
land held by the first respondent in the State of Karnataka. A
The High Court relied on the judgment of a Division Bench of the
Bombay High Court in Chhanubhai Karansang (supra). In that case a Division
Bench of the Bombay High Court considered the import of the expression
"other land" in Section 34(2)(a) of the Act. (since deleted by Maharashtra Act
XXVII of 1961). Clause (a) of sub-section (2) of Section 34 prohibited the B
landlord to terminate the tenancy of a protected tenant if the landlord has been
cultivating personally "other land" to an extent of 50 acres or more. However,
the right of the landlord to terminate the tenancy of the protected tenant and
take possession of the land leased to him was saved when the land under the
personal cultivation of the landlord was less than 50 acres anµ in such a case c
. resumption of Jarid was limited to such area as would be sufficient to make up
the area of the land under personal cultivation to the extent of 50 acres. The
question was whether the land held by the landlord in Saurashtra State would .
fall within the meaning of "other land" in that section. It was contended that
the land held by the landlord in Saurashtra State did not fall within the meaning
of "other land" and that that expression would take in only the land in the D
Bombay area. Chief Justice Chagla speaking for the Court gave a good number
of reason to hold as to why the land held by the landlord in the State of
Saurashtra could not be brought withiri the meaning of "other land" in Section
34(2) and that expression must be restricted to land in the State of Bombay.
We are in entire agreement with the conclusion recorded therein. E
Relying on the judgment of this Court in Shrikant Bhalchandra Karulkar
and Ors. etc. v. State o.f Gujarat and Anr. etc., [1994] 5 SCC 459, it was urged
by Mr. Lalit that as there was territorial nexus in this case hence the land of
the first respondent in Karnataka State had to be taken into computation. We
are unable to agree with this submission. In that case the validity of Section F
6(3-A) of the Gujarat Agricultural Lands Ceiling Act, 1960 was under challenge.
The High court upheld the validity of the said provision. On appeal, this Coui:t
confirmed the judgment of the High Court. It was held,

"This Court - over a period of three decades - has evolved a
principle called "doctrine of te.rritorial nexus" to find out whether the G
provisions of a particular State law have extraterritorial operation. The
doctrine is well-established and there is no dispute as to its principles.
If there is a terriforial nexus between the persons/property subject-
matter of the Act and the State seeking to comply with the provisions
of the Act then the St11tute cannot be considered as having extraterritorial H
618 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A operation. Sufficiency of the territorial connection involves
consideration of two elements, the connection must be real and not
illusory and thy liability sought to be imposed under the Act must be
relevant to that connection. This Act has to satisfy the principles of
territorial nexus which are essentiaily discernible from the factual
application of the provisions of the Act."
B
In the instant case there is no· provision in ·the Act like Section 6(3-A)
of the said Gujarat Act. That judgment is of no help to the appellant.

In this view of the matter, we find no illegality in the impugned order
of the High Court holding that the land alleged to be in occupation of the first
c respondent in the State 6f Karnataka cannot be taken into account in calculating
the total land in his actual possession to ascertain if he holds the land equal to
the ceiling area~ for purposes of Clause (a) of sub-section (1) of Section 43-
IB of the Act.

D In the result, the appeal is dismissed but in the circumstances of the case,
the parties are directed to bear their own costs.

B.S. Appeal dismissed.