JUDGMENT - Puranik S.W. J. -This petition under Article 227 of the Constitution is directed against the concurrent orders passed by the Member of Maharashtra Revenue Tribunal, Nagpur, in Ceiling Appeal No. A/o-A-1717/1976 dated 15th July, 1976 and by the Surplus Land Determination Tribunal in Revenue Case No. 93/60-A (5)/1975–76 dated 27th May of 1976. 2. The petitioner challenges the order of the Surplus Land Determina-tion Tribunal as well as of the Member of Maharashtra Revenue Tribunal, regarding assessment of holdings of the petitioner, his wife and minor son together, on several grounds. On furnishing returns as provided under the Ceiling Act, the Surplus Land Determination Tribunal found that the peti-tioner holds lands in his personal names as well as in the name of his wife Smt. Vimal and minor son Sanjaya. The Tribunal found that the total land held by the petitioner, his wife and minor son was 90.38 acres of land while the entire family unit was entitled to 54.00 acres only. It also foundthat the petitioner as a head of the family unit was also entitled to hold 5.38 acres as potkharab land plus 2.36 acres as non-agricultural land and 3.80 acres sold for compelling necessity. The Surplus Land Determination Tribunal, therefore, held that he was entitled to retain 65.44 acres of land and thus was holding 24.94 acres land as surplus. 3. The petitioner thereafter preferred appeal before the Member, Maharashtra Revenue Tribunal. The Revenue Tribunal after hearing the petitioner and the Government's representatives passed an order dated 15th July, 1975 dismissing the appeal. In short, it confirmed the findings of the Surplus Land Determination Tribunal. 4. In this petition Shri J. N. Chandurkar, the learned counsel appear- ing for the petitioner has raised several grounds, but at the time of argu- ments he restricted his arguments to the legal aspects regarding exclusion or non-exclusion of the transfers effected by members of the petitioner's family during the period 26–9-1970 to 19–9-1975. According to Shri Chandurkar, the petitioner held 50 66 acres of land before the appointed day of 26th September, 1970, out of the said land he had sold nine acres out of survey number 52 on 18–6-1973 and 6.15 acres on 17–6-1974. According to Shri Chandurkar, the petitioner held 50 66 acres of land before the appointed day of 26th September, 1970, out of the said land he had sold nine acres out of survey number 52 on 18–6-1973 and 6.15 acres on 17–6-1974. The petitioner from out of his personal lands had also sold 4.20 acres out of survey No. 37/1 on 17–6-1973 and 1.80 acres out of the same survey number on 1–7-1974 and lastly, 2.40 acres out of survey number 113 was treated as a potkharab land, according to the land records. Shri Chandurkar further submitted that on the appointed day of 26th September, 1970, the wife of the petitioner was in exclusive ownership and possession of survey numbers 28/1, 92/1, 102/7, 101 /2-A and 97/2, out of these holdings totalling about 35 acres, the wife of the petitioner had sold 15 acres of survey No. 101/2A on 20–1-1971 and 3.80 acres of survey number 97/2 on 25–1-1972, while 7.45 acres out of survey No. 28/1 was in continuous possession of one Keshav Pund as a tenant from 1968–69. Shri Chandurkar then contended that these transfers were no doubt effected after 26th September, 1970, but much before 19th September, 1975, and in that event it cannot be said that they were sold with a view to defeat the provisions of the Amending Act, 1972. His main con- tention is that the Ceiling Act as originally framed imposed the ceiling on individual holders and even by the Amending Act of 1972, we have the concept of the family unit so introduced for the first time. It was enacted per section 4 in Chapter II of the Act No. XXI of 1975 as follows:- “4(1). His main con- tention is that the Ceiling Act as originally framed imposed the ceiling on individual holders and even by the Amending Act of 1972, we have the concept of the family unit so introduced for the first time. It was enacted per section 4 in Chapter II of the Act No. XXI of 1975 as follows:- “4(1). All land held by each member of a family unit, whether jointly or separately, shall for the purposes 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 Septem-ber 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 September 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.” Shri Chandurkar, the learned counsel for the petitioner, submitted that the petitioner, his wife and his minor son had effected partition of the family properties on l5 th January, 1970 and the lands were separately mutated in their respective names. The wife of the petitioner also got certain lands from her parents before 26th day of September, 1970. Thus, each member of the family unit was holding certain lands and possessing separately before 26th day of September, 1970. Original Act known as the Maharashtra Agri-cultural Lands (Ceiling on Holdings) Act, 1961 was amended by the Maha-rashtra Act No. XXI of 1975 and which is known as 'Maharashtra Agricul-tural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972'. This amending Act of 1972 was further amended by the Maharashtra Act No. XLVII of 1975 and is known as 'Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Amendment Act, 1975. By this second amendment the earlier proviso to section 4, sub-section (1) as well as the definition of transfer was deleted. This amending Act of 1972 was further amended by the Maharashtra Act No. XLVII of 1975 and is known as 'Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Amendment Act, 1975. By this second amendment the earlier proviso to section 4, sub-section (1) as well as the definition of transfer was deleted. Thus according to this new Act No. XLVII/75 the lands held separately by members of a family unit prior to 26th September, 1970, and transferred thereafter will also have to be taken into account for computation while deciding the surplus land held by the family unit. Shri Chandurkar further contended that the main substantive Act, section 10 and the Explanation remains unaltered. Sec-tion 10 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 as amended upto 5th October 1975 creates a legal fiction by introducing a deeming provision. It states that “if any person or a member of a family unit, after the 26th day of September 1970, but before the commencement date, transfers any land in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, or then in calculating the ceiling area which that person or as the case may be, the family unit, is entitled to hold the land so transferred shall be taken into consideration and the land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area for that holding, notwithstanding that the land remaining with him or with the family unit may not in fact be in excess of the ceiling area”. The Explanation to section 10 of the Act further states “All transfers made after the 26th day of September 1970 but before the commencement date, shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972?. According to Shri Chandurkar, the learned counsel for the peti- tioner, the transfers made after 26th September, 1970 by members of a family unit are deemed to be made in order to avoid or defeat the object of Amending Act, 1972, unless contrary is proved. According to Shri Chandurkar, the learned counsel for the peti- tioner, the transfers made after 26th September, 1970 by members of a family unit are deemed to be made in order to avoid or defeat the object of Amending Act, 1972, unless contrary is proved. In the instant case it is submitted that the transfers which were effected by the members of the petitioner's family unit between 1971 to 1974 were such which were per- missible under the Act, which is in force namely Maharashtra Act No. XXI of 1975 known as Amending Act, 1972. The law prevalent at the material time when the transfers took place permitted such transfers, then by the subsequent Amending Act XLVII of 1975 while deeming provision cannot be construed against such transfers, and as such the sales will have to be excluded from consideration while ascertaining the total holdings of the petitioner's family unit. 5. Shri V. V. Naik, the learned Assistant Government Pleader for respondent No. 1 supported the impugned orders of both the Tribunals. According to him once the second amendment by Maharashtra Act No. XLVII of 1975 came into force then the position on the date of com-mencement of the Act, namely, 5th October, 1975, will have to be taken into consideration. Shri Naik, therefore, strongly urged that in October 1975 when the final Act as amended was brought into force the petitioner's family unit shall be deemed to consist of himself, his wife and minor child and all transfers effected by any members of the said family unit from 26th September, 1970 till the commencement of the Act will have to be deemed to have been effected with a view to defeat or to avoid the objects of the Amending Act. He, therefore, contended that the submissions of Shri Chandurkar, the learned counsel for the petitioner, are of no help to the petitioner and the petition is liable to be thrown out. 6. Without going into merits of the case regarding evaluation of the bona fide natures of the sales effected as also his claims regarding potkharab land, I find that there is much substance in the legal position contended by the petitioner's counsel. 7. The Act after all the amendments as it finally stands today, has section 10 with the following Explanation regarding transfers effected by any person or member of the family unit. 7. The Act after all the amendments as it finally stands today, has section 10 with the following Explanation regarding transfers effected by any person or member of the family unit. The said Explanation states that all transfers made after 26th September, 1970, but before the commencement date, shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972. Thus, what is intended is that all transfers made by a person or a member of a family unit after appointed day, 26th September, 1970, and before the commencement date of 5th October, 1975, shall be deemed to have been made in anticipation or in order to avoid or defeat the object of the Amending Act, 1972. The original Act of 1961 did not enforce the ceiling on the holdings of a family unit as such but on the individuals. It was for the first time by the Maharashtra Act No. XXI of 1975 that the family unit was introduced and even then section 4 of the Maharashtra Act No. XXI/75 stated that if the land was held by a member separately before 26th September, 1970, yet the same would be taken into consideration for determining the ceiling area of the family unit and shall be deemed to be held by the family unit provided if any such person or member of the family unit was already holding land and possessing it separately before 26th September, 1970 as a result of either acquisition /evolution or as a result of transfer or partition effected prior to 26th September, 1970 then for deter- mining the surplus land in any holdings which is in excess of the ceiling-area on or before the commencement date, such land shall not be deemed to be held as surplus land. 8. Now in the present case it seems that from the appointed date, namely, 26th September, 1970 some of the members of the petitioner's family unit have transferred certain lands albeit for certain exigencies like marriages which we need not consider at this juncture in any event till the time that the Amending Act, 1972 (Maharashtra Act No. XXI/1975) which is brought in force on 19th September, 1975. A person or member of the family unit if he held separately and possessed it separately before 26th day of September, 1970, then such land could not have been computed as held by the family unit. In other words, according to the Amending Act, 1972, each member of a family unit could hold certain lands independently of the family unit only if they were owned and possessed separately from before 26th September 1970. The question is if the transfers are effected by any member of the family during the period 26th September, 1970 till 19–9-1975, whether they could be hit by the deeming provision of section 10(1) and its Explanation as per the final Act. In my opinion, the Explanation to sec-tion 10 in the final Act as it stands today relates that all transfers made after 26th day of September, 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 Amending Act, 1972, unless the contrary is prov-ed. In the instant case such intention cannot be deemed inasmuch as the Amending Act, 1972 enabled a person to hold land separately if he owned and possessed the same since prior to 26th September 1970 and the said lands were not to be computed in the assessment of the family unit. It, therefore, follows that if such a member of the family unit who were already holding such land before 26th day of September, 1970, there can be no question of any intention to avoid or defeat the object of Amending Act, 1972, which itself permitted them to hold such land separately and which further permitted that such separate land would not be computed in the family unit. This Explanation to section 10 regarding the deeming provi-sion only relates to assuming an intention on the part of the transferors of avoiding or defeating the object of the Amending Act, 1972 and it does not relate to the Amending Act XLVII/1975. This Explanation to section 10 regarding the deeming provi-sion only relates to assuming an intention on the part of the transferors of avoiding or defeating the object of the Amending Act, 1972 and it does not relate to the Amending Act XLVII/1975. It is therefore, clear to my mind that such transfers effected by members of a family unit who were already holding lands separately and possessing them separately prior to 26th day of September, 1970, were permitted to transfer such land and not only that at the material dates when they were transferred, they could not be construed even by deeming provision to have been effected with intent to defeat the provisions of the Amending Act, 1972. It is to be noted that the Amending Act, 1972, which is the Maharashtra Act “No. XXI of 1975 has the com-mencement date 19th September 1975 while the next Amending Act which is the Maharashtra Act No. XLVII/75 has the commencement date 20–9-1975. An individual, therefore, holding and possessing land separately before 26th day of September 1970 and even though a member of the family unit, his land could not be computed in the family unit and if each of such members were holding land within the ceiling limit their transfers during the period from 26th day of September, 1970 to 19th day of September 1975 could not be said to have been effected in anticipation or in order to avoid or defeat the object of the Amending Act, 1972 (Maharashtra Act No. XXI of 1975) for the simple reason that such Act itself permitted such separate holdings. 9. Shri V. V. Naik, for the respondent No. 1 State heavily relied upon the ruling in the matter (Narayanibai widow of Rambilas v. State of Maharashtra and another)1. However, to my mind the said ruling would not be of much help to the respondents. The learned Judge while rendering the judgment has observed in para 5 as follows : “ It is section 3 of the Act (as amended) which prevents a person or a family unit from holding land in excess of the ceiling area. The prohibition becomes operative from the commencement date of the Act, namely, 2–10–1975. This prohibition has no application to the holding of the land in excess of the ceiling area as defined under the unamended enactment. The prohibition becomes operative from the commencement date of the Act, namely, 2–10–1975. This prohibition has no application to the holding of the land in excess of the ceiling area as defined under the unamended enactment. In fact, the unamended enactment did not contain any conception of family unit as such, nor it was pregnant with such drasticimplication under the Act No. 21 of 1975. The proviso to sec- tion 4 of the Act No. 21 of 1975, the bill No. LVI of 1972 for, which was initiated in the Assembly on 7–8-1972 and reserved for assent of the President till 6–8-1975 contemplated exclusion of such lands* from the holding of the family unit, as were required by the members thereof in their own rights as specified therein before 26th September, 1970. It is only when the proviso was deleted by section 3 of the Maharashtra Act No. 47 of 1975 on 20–9-1975, that such land also became liable to be included in the holding of family unit. The seller, like the petitioner could not have imagined on the date of the sale of he or she being ever required to rebut any such fiction or presumption as a member of any such family unit. ' Such legal conception, with its retrospective implica- tions, was not in existence and could not have been even foreseen till the amendment of the Act by Act No. 47 of 1975 on 20–9-1975” 10. Thus, I feel that I am supported by these observations of Shri V. S. Deshpande, J., as he then was, even in the facts and circumstances of the present case. In this view of the matter, 1 have no hesitation in allowing this petition on this short ground without considering the merits of the case. Hence, the following order : 11. Petition is allowed. The impugned orders of both the Tribunals below are quashed and set aside. Rule made absolute. Petition allowed. -----