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2013 DIGILAW 208 (GUJ)

SHANTILAL MOHANLAL SHAH v. STATE OF GUJARAT

2013-04-12

JAYANT PATEL

body2013
Judgment JAYANT PATEL, J. The present petition is directed against the order passed by the Tribunal dated 5-3-2003, whereby the Tribunal has set aside the order passed by the Deputy Collector and the earlier order of the Mamlatdar for permitting one unit has been confirmed. 2. The short facts of the case are that one B. Shantilal & Company was holding agricultural land at Village Chiklota, Taluka Valiya. The form was filed by the partner of the said firm on behalf of the firm under Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as 'the Act'). The form was processed, and ultimately, vide order dated 18-4-1983, Mamlatdar & A.L.T. declared that the land admeasuring 56 acres and 30 gunthas as surplus land under Sec. 21(1), (2) of the Act. Being aggrieved by the aforesaid order, the matter was carried in appeal before the Deputy Collector being Appeal No. 10 of 1984 and the said appeal came to be rejected by the Deputy Collector vide order dated 13-8-1984. The matter was further carried in revision before the Tribunal being B.A. Nos. 1329 and 1534 of 1984 and both the appeals vide common judgment dated 27-6-1988 were decided by the Tribunal and the matter was remanded to the Mamlatdar and A.L.T. Thereafter, the Mamlatdar and A.L.T. issued notices, heard the parties and declared the land admeasuring 56 acres and 30 gunthas as surplus land. The matter was carried in appeal before the Deputy Collector, Rajpipla and the Deputy Collector, Rajpipla, vide order dated 17-7-1989 confirmed the order of the Mamlatdar. The matter was further carried in revision before the Tribunal being Revision B.A. No. 710 of 1989 and the Tribunal vide order dated 28-6-1993 quashed the order of the Deputy Collector and Mamlatdar and remand the matter to the Mamlatdar and A.L.T. The Mamlatdar and A.L.T. again tried the matter and vide order dated 30th September, 1993 he withdrew the notices under the Act. The matter was taken up in revision by the Deputy Collector against the order of the Mamlatdar being Revision Application No. 1/93-94 and the Deputy Collector confirmed the order of the Mamlatdar. The matter was further carried in revision by the Government before the Tribunal being Revision Application No. 884 of 1994. The matter was taken up in revision by the Deputy Collector against the order of the Mamlatdar being Revision Application No. 1/93-94 and the Deputy Collector confirmed the order of the Mamlatdar. The matter was further carried in revision by the Government before the Tribunal being Revision Application No. 884 of 1994. The Tribunal vide order dated 5-3-2003 set aside the order of the Deputy Collector and restored the first order of the Mamlatdar dated 18-4-1983, whereby the land admeasuring 56 acres 30 gunthas was declared as the surplus land. It is under these circumstances, the petitioners have approached this Court by the present petition. 3. We have heard Mr. Yadav, learned Counsel appearing for the petitioners and Mr. Jayswal, learned A.G.P. for the respondents. 4. It appears from the order passed by the Tribunal that the Tribunal has mainly relied upon the decision of the Division Bench of this Court in Letters Pntent Appeal No. 123 of 2000 dated 4-3-2003 for the purpose of considering the definition of person as provided under Sec. 2(21) of the Act read with Sec. 3(35) of the Bombay General Clauses Act. The Tribunal has reproduced the relevant portion of the observations made by the Division Bench of this Court, relevant of which is at Paragraph 9 reads as under : "9. This question can be examined with reference to the provisions of Bombay General Clauses Act, 1904 also. Section 3 of the General Clauses Act, 1904 defines certain words and phrases. The opening' words of the said Section are very important. As per the opening words, the definition of words given in Sec. 3 of the said Act would be applicable to the words used in the said Act and in all Bombay Acts or Gujarat Acts made after the commencement of the Act, unless there is anything repugnant in the subject or context. Section 3, sub-sec. (35) of the General Clauses Act provides that "person" shall include any company or association or body of individuals, whether incorporated or not. It is not in dispute that the Ceiling Act has been enacted after the commencement of Bombay General Clauses Act, 1904, and after Sec. 3 of the said Act was amended by Gujarat A.O. 1960. (35) of the General Clauses Act provides that "person" shall include any company or association or body of individuals, whether incorporated or not. It is not in dispute that the Ceiling Act has been enacted after the commencement of Bombay General Clauses Act, 1904, and after Sec. 3 of the said Act was amended by Gujarat A.O. 1960. Thus, by force of opening words of Sec. 3 itself, word "person" as defined in the Ceiling Act shall also include any company or association or body of individuals whether incorporated or not. A conjoint and meaningful reading of the provisions of the Ceiling Act with the provisions of the Bombay General Clauses Act, 1904, in no uncertain terms establishes that the word "person" would mean not only such things as it signifies according to its natural import, but also includes any company or association or body of individuals, whether incorporated or not as provided in Sec. 3(35) of the Bombay General Clauses Act, 1904, and also a joint family as provided in Sec. 2(21) of the Ceiling Act. In M.M. Ipoh v. I.T. Commissioner, Madras, AIR 1968 SC 317 , the Supreme Court noticed that the expression "person" as defined in Sec. 2(9) of the Income Tax Act, 1922 included a Hindu Undivided Family and a local authority, and has while construing said expression, ruled that, when the definition is inclusive, resort may appropriately be had to the general clauses Act to ascertain the meaning of the expression "person". In the said decision, it is held that a firm is a "person" within the meaning of Income Tax Act. The plea based on the decision of the Supreme Court in Dulichand v. I.T. Commissioner, AIR 1956 SC 354 that resort to the Bombay General Clauses Act should not be made as the definition of the word "person" occurring in Sec. 3(35) of the said Act is repugnant to the subject of Ceiling law, has no merits. In Dulichand (supra) the Supreme Court had occasion to consider the question whether a partnership purporting to be one between firms, a Hindu Undivided Family business and an individual as a firm required registration. It was noticed that the word "persons" in Sec. 4 of the Partnership Act contemplated only natural or artificial i.e. legal persons and a firm is not a "person". It was noticed that the word "persons" in Sec. 4 of the Partnership Act contemplated only natural or artificial i.e. legal persons and a firm is not a "person". Therefore, it has been held that to import the definition of the word "person" occurring in Sec. 3(42) of the General Clauses Act, 1897 into Sec. 4 of Partnership Act is not proper as it is totally repugnant to the subject of partnership law. In our view, reading of the definition of the word "person" occurring in Sec. 3(35) of the Bombay General Clauses Act, 1904 into Sec. 2(21) of Ceiling Act is not repugnant to the subject of Ceiling law, but is in consonance with the avowed object of the Ceiling Act. Further, definitions contained in the General Clauses Act are intended for proper interpretation of all Gujarat Acts made after the commencement of that Statute and the terms defined by that enactment will have the same meaning, in all subsequent enactments which employ that term, unless there be something inconsistent or repugnant to the context in the latter Act. Therefore, Sec. 3(35) of the Bombay General Clauses Act, 1904, would be applicable to the Ceiling Act because it could not be successfully pointed out on behalf of the appellants that there is anything repugnant in the subject or context of the Ceiling Act." (Emphasis supplied) 5. The Tribunal thereafter found that as the form was filed by the partnership firm and copy of the partnership deed dated 15-1-1930 was also produced on record, which provided for continuation of the partnership firm and there was no express evidence produce for written dissolution of the partnership firm, one unit would be available as that of the partnership firm and not separate for each of the partners or their legal heirs, and therefore, ultimately allowed the revision application. 6. Mr. Yadav, learned Counsel for the petitioners mainly contended that the partnership firm was registered as back as in the year 1930 and when the Act does not specifically prohibit the holdings of the land by the partnership firm and as the partnership firm cannot be termed as legal entity, either full-fledged inquiry should be undertaken for such purpose, or in any case, separate unit should be made available for each of the partners for the purpose of calculating the ceiling limit under the Act. 7. 7. At the first brush, one may gather an impression that if the partnership firm is not a legal entity whether could be said as included in the definition of Sec. 2(21) of the Act or not. Section 2(21) of the Act for ready reference reads as under : "Section 2(21) : Words and expressions used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879, and the Transfer of Property Act, 1882 as the case may be." 8. The aforesaid shows that the definition is inclusive definition, which also includes joint family. Further, the said definition has to be read, keeping in view the provisions of Sec. 3(35) of the Bombay General Clauses Act, 1904. In my view, the issue is as such covered by the decision of the Apex Court in the case of Ramanlal Bhailal Patel v. State of Gujarat, reported in 2008 (3) GLR 1841 (SC). The relevant discussion on the said question, as observed by the Supreme Court in the above referred decision, are from Paragraphs 22 to 29, which read as under : "Question (i) - who is a 'person' ? 22. The extent of land that could be held by the appellants depends upon the interpretation of the word 'person' in Sec. 6(1) of the Ceiling Act which provides that "no person shall..... be entitled to hold ... land in excess of the ceiling area". If the ten co-owners are considered as an 'association of persons' or 'body of individuals', and consequently as a 'person', then the ten co-owners together as a person, will be entitled to only one unit of land which is the ceiling area per person. But if 'association of persons' or body of individuals is not a 'person', or if a co-ownership is not an association of person/body of individuals, then each co-owner or the family of each co-owner, as the case may be will be a separate 'person' having regard to the definition of person in Sec. 2(21) of Ceiling Act, in which event, each family will be entitled to hold one unit of land. 23. The word 'person' is defined in the Act, but it is an inclusive definition, that is "a person includes a joint family". 23. The word 'person' is defined in the Act, but it is an inclusive definition, that is "a person includes a joint family". Where the definition is an inclusive definition, the use of the word 'includes' indicates an intention to enlarge the meaning of the word used in the Statute. Consequently, the word must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. Thus, where a definition uses the word 'includes', as contrasted from 'means', the word defined not only bears its ordinary popular and natural meaning, but in addition also bear the extended statutory meaning (See S.K. Gupta v. K.P. Jain, AIR 1979 SC 734 following Dilworth v. Commissioner of Stamps, 1899 AC 99 and Jobbins v. Middlesex County Council, 1949 (1) KB 142). 24. The ordinary, popular and natural meaning of the word 'person' is 'a specific individual human being'. But in law the word 'person' has a slightly different connotation, and refers to any entity that is recognized by law as having the rights and duties of a human being. Salmond defines 'person' as 'any being whom the law regards as capable of rights and duties' or as 'a being, whether human or not, of which rights and duties are the attributes (Jurisprudence: 12th Edition Page 299). Thus, the word 'person', in law, unless otherwise intended, refers not only to a natural person (male or female human being), but also any legal person (that is an entity that is recognized by law as having or capable of having rights and duties). The General Clauses Act thus defines a 'person' as including a corporation or an association of persons or a body of individuals whether incorporated or not. The said general legal definition is, however, either modified or restricted or expanded in different statutes with reference to the object of the enactment or the context in which it is used. For instance, the definition of the word 'person' in Income Tax Act, is very wide and includes an individual, a Hindu Undivided Family, a company, a firm, an association of persons or body of individuals whether incorporated or not, a local authority and every other artificial juridical person. For instance, the definition of the word 'person' in Income Tax Act, is very wide and includes an individual, a Hindu Undivided Family, a company, a firm, an association of persons or body of individuals whether incorporated or not, a local authority and every other artificial juridical person. At the other extreme is the Citizenship Act, Sec. 2(f) of which reads thus : "Person does not include any company or association or body of individuals whether incorporated or not." Similarly, the definition under Sec. 2(g) of Representation of People Act, 1950, is "person" does not include a body of persons. 25. Both definitions of the word 'person', in General Clauses Act and Ceiling Act, are inclusive definitions. The inclusive definition of 'person' in General Clauses Act applies to all Gujarat Act unless there is anything repugnant in the subject or the context. The inclusive definition of 'person' in Sec. 2(21) of the Ceiling Act, does not indicate anything repugnant to the definition of 'person' in General Clauses Act, but merely adds 'joint family' to the existing definition. Therefore the definition of person in the Ceiling Act, would include the definition of person in Sec. 3(35) of General Clauses Act. The resultant position can be stated thus : The definition of person in General Clauses Act, being an inclusive definition, would include the ordinary, popular and general meaning and those specifically included in the definition. The inclusive definition of 'person' in the Ceiling Act, in the absence of any exclusion, would have the same meaning assigned to the word in the General Clauses Act, and in addition, a 'joint family' as defined. Thus, the word 'person' in the Ceiling Act will, unless the context otherwise requires, refer to : (i) a natural human being, (ii) any legal entity which is capable of possessing rights and duties, including any company or association of persons or body of individuals (whether incorporated or not); and (iii) a Hindu Undivided Family or any other group or unit of persons, the members of which by custom or usage, are joint in estate and residence. 26. We are fortified in this view by the decision of this Court in Hasmukhalal Dahayabhai v. State of Gujarat, 1976 (4) SCC 100 , wherein this Court had occasion to consider the definition of 'person' in the Ceiling Act, in a different context. 26. We are fortified in this view by the decision of this Court in Hasmukhalal Dahayabhai v. State of Gujarat, 1976 (4) SCC 100 , wherein this Court had occasion to consider the definition of 'person' in the Ceiling Act, in a different context. It was contended in that case that in view of the definition of 'person' in General Clauses Act, 1897, a central enactment, that is, 'person' shall include any company or association or body of individuals, whether incorporated or not, there cannot be a different definition in the Ceiling Act, and therefore, Sec. 6(2) of the Ceiling Act treating family as a 'person' was unconstitutional. It was pointed out that Sec. 6(2) had the effect of making a person who held land within ceiling limit, to lose part of his/her holding, on marriage to someone who also held land within ceiling limit. (For example, if a bachelor who was holding 35 acres of land which is within ceiling limit, married someone who held 20 acres, they will together lose 19 acres by reason of the fact that they formed a 'family'). This Court negatived the challenge to the definition of 'person'. In that context, this Court observed that the term 'person' is not, strictly speaking, defined in the Act, and the definition merely clarified that the term includes a joint family and did not exclude an individual from being a person in the eye of law. This Court observed that the term 'person' for the purposes of Ceiling Act would include individuals as natural persons as well as group or body of individuals as artificial persons, as also a joint family and a family: This Court proceeded to explain Sec. 6(2) thus : "16. We do not find any fixed concept of "person" anywhere. No doubt the concept is wide so that it could be contended that it should not be narrowed down or confined. But does Sec. 6(2) do that? Sec. 6(2) does not either disable a husband or wife from owning or holding their separate properties separately. It does not merge or destroy their separate legal personalities. It requires their separate holdings to be grouped together as though they were held by one person only for the purpose of determining the ceiling limit for each member of a family. Sec. 6(2) does not either disable a husband or wife from owning or holding their separate properties separately. It does not merge or destroy their separate legal personalities. It requires their separate holdings to be grouped together as though they were held by one person only for the purpose of determining the ceiling limit for each member of a family. It may indirectly have the effect of disabling a member of a family from holding land upto the prescribed ceiling Emit for a person holding as an individual. In other words, the result is that such a member of a family will have to be content with a holding less than that of an unmarried individual. It has the effect of making it clear that what have to be grouped together are the separate properties of individuals belonging to families other than what are "joint families", in law. It takes in and applies to members of families other than Undivided Hindu Families. It means that married persons and their minor children will have to be viewed as though they hold one lot together even though they retain their separate legal personalities and remain competent owners of their separate holdings. It does not affect either their legal status or competence. It does reduce their individual holdings." "Question (ii) - Whether co-owners are together a 'person'? 27. When several persons acquire undivided shares (as contrasted from defined portions) in a property, either equal or unequal, they become co-owners of the property; or where an owner of a property transfers a share in the property to another, the transferee becomes a co-owner along with the original owner. To be termed as co-owners, the right of each owner should be co-ordinate with the other 'owners'. If the right of one is higher in degree than that of the other, there is no co-ownership. For example, a mortgagor and mortgagee are not co-owners. A lessor and lessee are not co-owners. Whether the shares are equal or not, each co-owner is entitled to be in possession of every part of the property, jointly with the other co-owners. In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335 , this Court observed :- "27. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. Whether the shares are equal or not, each co-owner is entitled to be in possession of every part of the property, jointly with the other co-owners. In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335 , this Court observed :- "27. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place....." This Court also relied on the following passage from Salmond's 'Jurisprudence': "It is an undivided unity, which is vested at the same time in more than one person..... The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned." 28. The terms 'association of persons' and 'body of individuals' (which are interchangeable) have a legal connotation and refer to an entity having rights and duties. They are not to be understood literally. For example, if half a dozen people are travelling in a car or a boat, or standing in a bus stop, they may be a group of persons or a 'body of individuals' in the literal sense. But they are not an association of persons/body of individuals in the legal sense. When a calamity occurs or a disaster strikes, and a band of volunteers or doctors meet at the site and associate or cooperate with each other for providing relief to victims, and not doing anything for their own benefit, they may literally be an association of persons, but they are not an association of persons/body of individuals in the legal sense. A mere combination of persons or coming together of persons without anything more, without any intention to have a joint venture or carryon some common activity with a common understanding and purpose will not convert two or more persons into a body of individuals/association of persons. A mere combination of persons or coming together of persons without anything more, without any intention to have a joint venture or carryon some common activity with a common understanding and purpose will not convert two or more persons into a body of individuals/association of persons. An 'association of persons/body of individuals' is one in which two or more persons join in a common purpose and common action to achieve some common benefit. Where there is a combination of individuals by volition of the parties, engaged together in some joint enterprise or venture, it is known as 'association of persons/body of individuals'. The common object will have some relevance to determine whether a group or set of persons is an association of persons or body of individuals with reference to a particular statute. For example, when the said terms 'association or persons' or 'body of individuals' occur in a Section which imposes a tax on income, the association must be one the object of which is to produce income, profit or gain. [Vide : Commissioner of Income Tax v. Indira Balkrishna, AIR 1960 SC 1172 , Mohammed Noorulla v. Commissioner of Income Tax, Madras, AIR 1961 SC 1043 , M. V. Shanmugam v. Commissioner of Income Tax, Madras, AIR 1970 SC 1707 and Meera and Company v. Commissioner of Income Tax, 1997 (4) SCC 677 ]. But the object need not always be to carryon commercial or business activity. For example, when the word 'person' occurs in a statute relating to agriculture or ceiling on land holding, the term 'association of persons/body of individuals' may refer to a combination of individuals who join together to acquire and own land as co-owners and carry on agricultural operations as a joint enterprise. 29. Normally, where a group of persons have not become co-owners by their volition with a common purpose, they cannot be considered as a 'person'. When the children of the owner of a property succeed to his property by testamentary succession or inherit by operation of law, they become co-owners, but the co-ownership is not by volition of parties nor do they have any common purpose. Each can act in regard to his/her share, on his/her own, without any right or obligation towards the other owners. The legal heirs though co-owners, do not automatically become an 'association of persons/body of individuals'. Each can act in regard to his/her share, on his/her own, without any right or obligation towards the other owners. The legal heirs though co-owners, do not automatically become an 'association of persons/body of individuals'. When different persons buy undivided shares in a plot of land and engage a common developer to construct an apartment building, with individual ownership in regard to respective apartment and joint ownership of common areas, the co-owners of the plot of land, do not become an 'association of persons/body of individuals', in the absence of a deeming provision in a statute or an agreement. Similarly, when two or more persons merely purchase a property, under a common sale-deed, without any agreement to have a common or joint venture, they will not become an 'association of persons/body of individuals'. Mere purchase under a common deed without anything more, will not convert a co-ownership into a joint enterprise. Thus, when there are ten co-owners of a property, they are ten persons and not a 'body of individuals' to be treated as a 'single person'. But if the co-owners proceed further and enter into an arrangement or agreement to have a joint enterprise or venture to produce a common result for their benefit, then the co-owners may answer the definition of a 'person'." 9. If the observations made by the Apex Court, more particularly at Paragraph 28 referred to hereinabove, are considered, it appears that it has been ruled by the Apex Court that if two or more persons jointly undertake to acquire and own land to carryon agricultural operation as joint enterprise, it may be referred to as the body of individuals. 10. If the facts of the present case are examined, it is not a matter where two or more persons, without any purpose or object, had purchased the property in the joint name, but is a case where the partnership firm was formed and the land was purchased. Not only that but the partnership firm had filed the form through its partners. It is hardly required to be stated that when a partnership firm is formed, the same is as a joint venture by all partners of the firm with an object to earn profit or gain. Further, the partnership firm is governed by the statute under the Partnership Act. It is hardly required to be stated that when a partnership firm is formed, the same is as a joint venture by all partners of the firm with an object to earn profit or gain. Further, the partnership firm is governed by the statute under the Partnership Act. The rights of the partners and the liabilities of the partners are, inter se, inter-linked and inter-connected. Hence, the partnership firm could be termed as a body of individuals or an association of persons, even if not incorporated to be included in the definition of 'a person' and the same can rather be read in contradistinction to the cases where two or more persons jointly purchased the property without any joint venture for earning income, profit or gain. 11. Therefore, it appears that the view taken by the Tribunal cannot be said to be erroneous. It is hardly required to be stated that in a petition under Art. 227 of the Constitution arising from the order of the Tribunal, scope of judicial scrutiny is limited. Even if two views are possible, Court may decline interference to the order of the lower authority. In the present case, the view of the Tribunal is not only based on the view taken by the Division Bench of this Court in the above-referred Letters Patent Appeal, but is also getting support from the above-referred decision of the Apex Court in the case of Ramanlal Bhailal Patel v. State of Gujarat (supra). Under these circumstances, it appears that the order passed by the Tribunal, which is impugned in the present petition does not deserve to be interfered with. 12. In the result, the petition fails. Hence, dismissed. No order as to costs. 13. The learned Counsel for the petitioners at this stage prayed that the operation of this order be suspended for some time, so as to enable his client to approach before the higher forum. Considering the facts and circumstances, status-quo qua the possession and title of the land in question shall be maintained for a period of four weeks from today. (NRP) Petition dismissed.