Vithaldas Jagannath Khatri and another vs State of Maharashtra and others

H.W. Dhabe, J.—This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as amended by the Act No. 21 of 1975 (for short, the Ceiling Act).

The petitioner No. 1 filed a return u/s 12 of the Ceiling Act, pursuant to which a ceiling case was opened in respect of the family unit of the petitioner No. 1 consisting of himself, his wife Kamla Devi and his minor son and daughter i.e. respondents 4 and 5. The respondents 6 and 7 are also the daughters of the petitioners but according to the petitioners, they were major on the commencement date i.e. 2-10 1975 and therefore, they do not fall in the family unit of the petitioners defined in section 4(1) of the Ceiling Act.

This matter had on a previous occasion came to this Court after determination of the surplus land by the Surplus Land Determination Tribunal (for short, S.L.D.T.). this Court by its judgment dated 2-3-1982 remitted the proceedings back to the learned trial Court for a fresh decision according to law after giving proper opportunity to the petitioners to lead evidence if they chose to do so. After remand, the learned Sub-Divisional Officer (for short S.D.O.), who held the inquiry after remand, determined the surplus land belonging to the family unit of the petitioners as 59 acres 15 gunthas. The petitioners preferred an appeal before the learned Maharashtra Revenue Tribunal (for short, the M.R.T.). The State also filed a cross-objection in the appeal. The learned M.R.T. dismissed the appeal filed by the petitioners but allowed the cross-objection filed by the State. It, therefore, accordingly modified the surplus land belonging to the family unit of the petitioners. Being aggrieved the petitioners have preferred the instant writ petition in this Court.

The Learned Counsel for the petitioners has filed an application for amendment dated 27-7-1987 seeking permission to raise additional grounds in this writ petition. By the additional grounds, the petitioners want to challenge the validity of section 44B of the Ceiling Act on the ground that it is beyond the powers of the State Legislature in view of Entries Nos. 77 and 78 in list I i.e. the Union List in the Seventh Schedule of the Constitution and further on the ground that it is contrary to the provisions of section 30 of the Advocates Act, 1961 and section 14 of the Indian Bar Councils Act, 1926. The said contention is obviously based upon the recent decision of the Supreme Court in the case of H.S. Srinivasa Raghavachar Vs. State of Karnataka and Others, . in which section 48(8) of the Karnataka Land Reforms Act, 1962, prohibiting the legal practitioners from appearing before the Land Tribunals was held unconstitutional. Since the amendment seeks to raise a pure question of law, the same is allowed.

Before. I consider the question relating to the validity of section 44B of the Ceiling Act. raised in the light of the judgment of the Supreme Court in the case cited supra, I would prefer to deal with the contentions on merits raised on behalf of the petitioners in this writ petition. According to the petitioners, there was a partition between the petitioner No. 1 and his father Jagannath on 20-1-1955 by a registered document and further on the same date by a registered gift-deed, field S. No. 94 admeasuring 22 acres 7 gunthas, field survey No. 87 admeasuring 16 acres 2 gunthas, both of village Mangrul Naoghare and field Survey No. 106 admeasuring 21 acres 24 gunthas of village Sawangi Gaoli were gifted to the petitioner No. 2 i.e. the wife of the petitioner No. I. As regards the field survey No. 106 gifted to the petitioner No. 2, it is the submission that in spite of the aforesaid gift-deed, the said field continued in cultivating possession of the father of the petitioner No. 1.

The petitioners have further alleged that on 31 -1 -1970, the petitioner No. 1 executed a registered partition deed in between himself and the respondents 4 to 7 who are his sons and daughters. As per the aforesaid partition deed, according to the petitioners, the respondents 6 and 7, who were major on the commencement date i.e. 2-10-1975 but were minor at the time of the execution of the registered partition-deed, were allotted the field Survey No. 12 admeasuring 17 acres 20 gunthas and 14 acres 6 gunthas out of field Survey No. 14 admeasuring 35 acres 12 gunthas both of Mouza Babulgaon. As regards the shares allotted to the petitioner No. 1 and the respondents Nos. 4 and 5, it is not material to notice their shares because even assuming that they separately held the lands as per the partition deed executed prior to 26-9-1970, their shares are liable to be clubbed together as they formed a family unit u/s 4(1) of the Ceiling Act. However, according to the petitioners, the respondents 6 and 7, who are daughters were major on 2-10-1975 i.e. the commencement date as they were born on 3-11-1955 and 29-8 -1957. respectively, and hence the shares given to them in the aforesaid partition deed dated 31-1-1970 are liable to be excluded.

The learned M.R.T. held that the daughters who were not the coparceners, had no right to a share on partition of the ancestral property and that they could claim right in the share of their father after his death only. The decision of this Court in the case of Bhagwandas Heda vs. State of Maharashtra. 1983 Mh.L.J.825. and another unreported judgment of this Court in Writ Petition No. 2997of 1976decided on 27-7-1981 were relied upon by the learned M.R.T. in support of the above view. Both these decisions and particularly the latter one clearly support the view taken by the learned M.R.T. which, therefore, deserves to be upheld.

Moreover, it may be seen that although the respondents 6 and 7 were major on the commencement date i.e. 2-10-1975. they were still minor being aged 14 and 12 and half years, respectively, on 31-1-1970. when the partition was effected. In fact, their father was, therefore, in possession of their alleged shares in field S. No. 14 of village Babhulgaon and the crop statements for the years 1970-1971 and 1971-1972 show his cultivation, while the crop statements for the years 1972-1973 to 1974-1975 show the joint cultivation by him and his daughter Durgadevi. As regards field Survey No. 12, during the year 1974-1975 the father Vithaldas along with his daughter Shakuntala is shown as jointly cultivating the said field. As regards field survey No. 14 for the years 1970-1971 and 1971 1972, Vithaldas is shown to have cultivated the said field. It is on the basis of these facts that the learned M.R.T. held that the petitioner Vithaldas was holding Field Survey No. 12 admeasuring 17 acres 23 gunthas and Survey No. 14 admeasuring 14 acres 6 gunthas of village Babhulgaon, which is alleged to be allotted to the shares of the respondents 6 and 7. respectively, in the alleged partition deed dated 31 1-1970. In my view, the above finding is correct, or at any rate cannot be said to be perverse on the basis of the evidence on record in the instant case. It. therefore, deserves to be upheld.

As regards the field Survey No. 106 admeasuring 21 acres 24 gunthas of village Pimpari Gaoli. it is alleged that along with the field Survey Nos. 94 and 87. it was gifted to Kamladevi, the wife of the petitioner Vithaldas. by him and his father by a registered gift deed dated 20-1-1955. As regards the field Survey Nos. 94 and 87 from the date of the gift deed itself, the name of Kamladevi is mutated as owner in the revenue records. However, as regards field Survey No. 106, the name of the father of Vithaldas i.e. Jagannath is shown as owner in the revenue records. The learned M.R.T. held that as regards the mutation entries, the burden was upon the said Kamladevi or the donors to inform the revenue officers concerned about the mutation of the name of Kamladevi. At any rate, since the gift was by a registered document, the concerned revenue officers should have taken note of the change. It held that the entry in the record of right was an administrative function which, if not performed, would not take away the legal effect of the registered document of gift executed in favour of Kamladevi. According to it. once registered gift-deed was executed. Kamladevi would become owner of the field Survey No. 106. It is also observed that when the gift is operative in respect of field Survey Nos. 94 and 87, it cannot be held to be invalid or inoperative in regard to field Survey No. 106. only because there is no mutation entry in regard to the said field.

It may be seen that apart from the fact that Jagannath. who was the father in-law of Kamladevi. could himself cultivate the field on her behalf being his close relative and the member of the family although Kamladevi was the real owner of the field Survey No. 106. Jagannath is not examined in the instant proceedings to assert his own ownership of field Survey No. 106 despite the gift deed dated 20-1 1955 executed by him. There is also no evidence of the said gift by Jagannath as per section 126 of the Transfer of Property Act. If he was holding any land in excess of the ceiling area, his return is not even filed to show whether he has included the field Survey No. 106 in his holding. In these circumstances, the inference thus drawn by the learned M.R.T. that Jagannath was cultivating the field on behalf of Kamladevi being the close relation and the member of the family, is correct and it has to be upheld. It has, therefore, to be held that Kamladevi was holding the said field Survey No. 106 as an owner thereof by virtue of the aforesaid gift-deed dated 20-1 -1955, along with field Survey Nos. 94 and 87.

It may. however, be pointed out that there is an error in the total holding calculated by the learned M.R.T. and the surplus land declared by it. It may be seen that the total holding of the family unit of the petitioners calculated by the learned S.L.D.T. was 120 acres and 10 gunthas and in doing so, the learned S.L.D.T. had excluded the following lands from the following survey numbers:

(i) Survey No. 12-17 acres 23 gunthas situate at

(ii) Survey No. 14-14 acres 06 gunthas Babhulgaon.

(iii)Survey No. 106-21 acres and 24gunthas (situate at Sawangigaoli).

The learned M.R.T. had allowed the cross-objection of the State in respect of the above lands. If these 53 acres and 13 gunthas are. therefore, added to the total holding determined by the learned S.L.D.T. the total land held by the family unit of the petitioners would be 173 acres 3 gunthas and not 181 acres and 26 gunthas as held by the learned M.R.T. The learned M.R.T. had allowed 15 acres 27 gunthas as pot-kharab land. After deducting the same, the total holding of the family unit of the petitioners would be 157 acres 36 gunthas. Since the members of the family unit of the petitioners were 4 their family unit was entitled to retain 54 acres of land under the Ceiling Act. Therefore, according to proper calculations, the surplus land belonging to the family unit of the petitioners would be 103 acres 36 gunthas instead of 59 acres 35 gunthas as declared by the learned S.D.O.

As regards the question of delimitation of the aforesaid surplus land, the Learned Counsel for the petitioners states that a fresh choice of retention should be allowed in that regard. The above request is just and proper in view of the modification made by the learned M.R.T. in the total land declared as surplus by the learned S.D.O. The finding of the learned M.R.T. disallowing a fresh retention, therefore, deserves to be set aside. I. thus declare that the family unit of the petitioners possesses 103 acres 36 gunthas of land as surplus land which should be delimited afresh after giving a fresh choice of retention to the petitioners.

Let me now consider the most important question raised in this writ petition regarding the validity of section 44(b) of the Ceiling Act. which excludes the appearance of the advocates in the proceedings under the Ceiling Act before the authorised officer. Tribunal, the Collector, Commissioner. State Government and the M.R.T. The submission is that in view of the provisions of section 30 of the Advocates Act or section 14 of the Indian Bar Councils Act. 1926. the advocates can appear as of right in any proceedings before any authority legally entitled to take evidence. It is then urged that section 44B of the Ceiling Act is repugnant to the aforesaid provisions of the aforesaid Central Acts enacted by virtue of the legislative power of the Parliament in regard to a matter covered under Entries 77 and 78 of the Union List which is the exclusive list of the Union. It is. therefore, submitted that section 44B (1) the Ceiling Act which is repugnant to the aforesaid provisions of the Central Act cannot be enforced and the advocates cannot be prohibited from appearing in any proceedings under the Ceiling Act. The second limb of the submission is that the power to enact law in regard to the right of the advocates to appear in any proceedings before any authority is comprehended within the legislative entries 77 and 78 of the Union List in the seventh Schedule of the Constitution and. therefore, to that extent, the legislative entry No. 26 in the Concurrent List in the Seventh Schedule, which is a general entry stands denuded of the said subject matter.

In support of the above submissions, heavy reliance is placed by the Learned Counsel for the petitioners upon the latest decision of the Supreme Court rendered by Chinnapa Reddy, J. in H.S. Srinivasa Raghavachar Vs. State of Karnataka and Others, . in which it is held that, section 48(8) of the Karnataka Land Reforms Act. prohibiting the legal practitioners from appearing before the Lands Tribunals under the said Act is unconstitutional. Para 9 of the aforesaid judgment would show that in coming to the above conclusion the Supreme Court has adopted the reasoning of the Full Bench of the Punjab and Haryana High Court in Smt. Jaswant Kaur and Another Vs. The State of Haryana and Another, . rendered by Chinnapa Reddy, J. himself as he then was. It is necessary to state at this stage that the above contentions have been considered by the larger Benches of the Supreme Court to which we shall later on refer to.

It is, however, material to see that although the Supreme Court held in the said case that section 48(8) of the said Act relating to appearance of the legal practitioners before the Land Tribunals should not be enforced being unconstitutional, the said direction was not made applicable to the decisions which were already rendered by the Lands Tribunals and. therefore, the Court directed that it was not necessary to reopen the said decisions on the ground that the legal practitioners were not allowed to appear before the Lands Tribunals in the said cases. Thus, even assuming that section 44B of the Ceiling Act is unconstitutional and cannot be enforced in the light of the above reasoning of the Supreme Court in the aforesaid case the said directions cannot be made applicable to the decisions which are. already rendered by the lands tribunals and hence the proceedings of the Tribunals below in the instant case cannot be reopened on the ground that (he legal practitioners were not allowed to appear before them.

The Learned Counsel for the petitioners has still urged before me that the question about the validity of section 44B of the Ceiling Act needs to be decided since many matters are pending before the ceiling authorities in which the appearance of the Advocates is barred. He has also staled that there are other writ petitions pending in this Court on this question and therefore, a decision on this question would be necessary. Shri S. R. Deshpande. Advocate, who has also raised the same question in other matters and in particular the matters which are pending before the ceiling authorities has also intervened in this matter and is heard. I have, therefore, decided to consider and decide the aforesaid question in this petition.

To appreciate the submissions made on behalf of the petitioners it would be convenient to reproduce the relevant entries from the Union List and the Concurrent List of the Seventh Schedule of the Constitution. List-I Union List: Entry No. 77. Constitution Organisation, Jurisdiction and powers of the Supreme Court (including contempt of such Court) and the fees taken therein; persons entitled to practise before the Supreme Court. Entry No. 78- Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Court. List III-Concurrent list; Entry No. 26, Legal, medical and other professions.

It is well settled that the entries in the legislative lists in the Seventh Schedule of the Constitution which are heads of legislation should be liberally construed so as to comprehend within them such matters which are relevant for the effective legislation thereunder. From Entries 77 and 78 of the Union List the subject-matter which is relevant to this writ petition, is as regards persons who are entitled to practise before the Supreme Court or before the High Courts. The aforesaid topic in the aforesaid legislative entries was considered by the Supreme Court in the case of O.N. Mohindroo Vs. The Bar Council of Delhi and Others, .The question raised in the said case was whether the subject matter of section 38 of the Advocates Act falls within the mischief of Article 138(2) of the Constitution and therefore, whether the said section 38 is invalid in the absence of "special agreement" between the Central Government and the State Government. Section 38 of the Advocates Act provides for an appeal to the Supreme Court against the decision of the Bar Council of India u/s 36 or section 37 of the said Act. Article 138(1) of the Constitution provides that the Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer. The question thus raised in the said case was whether the subject matters of section 38 was a matter which would be covered by any of the items in the Union List. It is in this context that the scope of the entries 77 and 78 of the Union List and the entry 26 of the Concurrent List in the Seventh Schedule of the Constitution fell for consideration before the Supreme Court in the above case.

The Supreme Court held in the above case that the entries 77 and 78 of the Union List are special entries so far as the subject matters relating to the persons entitled to practice before the Supreme Court and the High Courts are concerned as compared to the general entry No. 26 in the Concurrent List relating to the legal, medical and other professions. It, therefore, held that the power to legislate in respect of persons entitled to practise before the Supreme Court and the High Courts which is covered by the entries 77 and 78 of List-I is, therefore, carved out from the general entry No. 26 in the Concurrent List, with the result that only the power to legislate for the rest of the practitioners would remain comprehended within that entry.

After examining the scheme of the Advocates Act, the Supreme Court held that in pith and substance it relates to the legal practitioners and enacts provisions regarding qualifications, enrolment, right to practise and discipline of the advocates. According to it, the Act creates one common Bar and only one class of legal practitioners viz. the advocates who have a right to practise in the Supreme Court and the High Courts. As such, it was held that the Advocates Act is a piece of legislation which deals with the persons entitled to practise before the Supreme Court and the High Courts and would, therefore, fall within the Entries 77 and 78 of the Union List. The Supreme Court, therefore, repelled the contention that partly the Advocates Act was under Entries 77 and 78 of the Union List and partly under Entry No. 26 of the Concurrent List because the power to legislate in regard to persons entitled to practise in the Supreme Court or the High Courts was carved out and taken away from the general power to legislate in respect of the subject matter of the Legal. Medical and other professions in Entry No. 26 of the Concurrent List. The Supreme Court thus held that the Advocates Act was a piece of legislation with respect to the subject matter in the Union List and was. therefore, covered by Article 138(1) of the Constitution of India.

It is this judgment of the Supreme Court, which is heavily relied upon by the Full Bench of the Punjab and Haryana High Court in the case of Smt. Jaswant Kaur and Another Vs. The State of Haryana and Another, . Section 20A of the Haryana Ceiling on Land Holdings Act. which prohibited the legal practitioners from appearing before the Ceiling Authorities under the said Act was inter alia impugned before the Punjab and Haryana High Court in the said case. After referring to the decision of the Supreme Court in O.N. Mohindrao''s case, cited supra, on the question of the ambit of Entries 77 and 78 of the Union List and further its ratio that the Advocates Act is enacted under the said entries, the Full Bench of the Punjab and Haryana High Court held that section 20A of the Haryana Ceiling on Land Holdings Act. was repugnant to section 30 of the Advocates Act which permitted the Advocates'' to appear as of right before any authority legally empowered to take evidence, which would include the Ceiling Authorities.

It appears that after the judgment of the Full Bench in the above case was prepared, it was brought to the notice of the Full Bench that section 30 of the Advocates Act was not brought into force by the Central Government. However, it was of the view that since in view of section 50(3)(c) of the Advocates Act. section 14 of the Indian Bar Councils Act. 1926. was to continue in force, no difference was made as to their conclusion regarding the repugnancy of section 20A of the Haryana Act. which would still be repugnant to section 14(1)(b) of the Indian Bar Council Act. After examining the scheme of the Bar Councils Act. the Full Bench held that it was primarily concerned with the qualification, enrolment right to practise and discipline of the advocates entitled to practise in the High Courts like the Advocates Act. and. therefore, whatever, it said with reference to section 30 of the Advocates Act was equally applicable with the same vigour to section 14 of the Indian Bar Councils Act. In the result, the Full Bench held section 20A of the Haryana Ceiling Act as ultra vires. It is this view which is adopted by the Supreme Court in regard to section 48(8) of the Karnataka Land Reforms Act. without any independent reasoning of its own in para 9 of its judgment in (he case of H.S. Srinivasa Raghavachar vs. State of Karnataka. cited supra upon which heavy reliance is placed on behalf of the petitioners.

There are. however, two other relevant decisions of the Supreme Court which need to be noticed in appreciating the validity of section 44B of the Ceiling Act. In the case of Paradip Port Trust, Paradip Vs. Their Workmen, . section 36(4) of the Industrial Disputes Act. 1947. was challenged as being repugnant to section 30 of the Advocates Act. It may be noticed that it is a decision of the three Judges'' Bench of the Supreme Court. Para 23 of the said judgment is most relevant. After having observed that section 30 of the Advocates Act cannot be invoked because it has not come into force, the Supreme Court held in the said case that the Industrial Disputes Act. 1947. is a special piece of legislation enacted with the avowed aim of labour welfare and representation before adjudicator) authorities therein. As such it held that the Special Act would prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all Courts. Tribunals and other authorities. However, when the provision of section 14(1)(b) of the Bar Councils Act was pressed into service after finding that section 30 of the Advocates Act had not come into force, the Supreme Court has pointed out the difference in the nature of the right conferred by the aforesaid two provisions by referring to the phraseology u/s 30 of the Advocates Act and the phraseology of section 14(1)(b) of the Bar Councils Act. in which it is provided that an advocate shall be entitled as of right to practise save as otherwise provided by or any other law in any Courts, tribunal (other than the High Courts).

23A. It is thus necessary to notice the difference between the aforesaid two provisions. For a proper understanding of the above provisions, they are reproduced below for ready reference:

"Indian Bar Councils Act. 1926.

14( I) An Advocate shall be entitled as of right to practise

(a) subject to the provisions of sub-section (4) of section 9. in the High Court of which he is an advocate, and

(b) save as otherwise provided by sub-section (2) or by or under any other law for the time being in force in any other Court in British India and before any other Tribunal or person legally authorised to take evidence, and

(c) before any other authority or person before whom such advocate is by or under the law for the time being in force entitled to practise."

Advocates Act, 1961.

"30. Subject to the provisions of this Act. even advocate whose name is entered in the State Roll shall be entitled as of right to practise throughout the territories to which this Act extends -

(i) in all Courts including the Supreme Court.

(ii) before any tribunal or person legally authorised to take evidence, and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise...

The next case of the Supreme Court which now needs to be noticed and the judgment which rendered by the three Judges'' Bench of the Supreme Court (which includes Justice O. Chinnapa Reddy) is in the case of Lingappa Pochanna vs. State of Maharashtra, AIR 1998 SC 389. Section 9A of the Maharashtra Restoration of Lands to Scheduled Tribes Act. I9''?5. was challenged before the Supreme Court on the ground that the restriction upon appearance of the advocates therein was violative of the fundamental right of the advocates under Article 19(1)(g) of the Constitution. The contention was also raised that the advocate enrolled under the Advocates Act has an absolute right to practise before all the Courts and Tribunals u/s 30 of the Advocates Act. After negativing the said contention on the ground that section 30 of the Advocates Act has not been brought into force, the Supreme Court observed in para 34 of the judgment that a person enrolled as an advocate under the Advocates Act is not ipso facto entitled to a right o\\'' audience in all the Courts unless section 30 of that Act is first brought into force. It further observed that that is a matter which is still regulated by different statutes and the extent of the right to practise must depend on the terms of those statutes. It then stated that the right of an advocate to practise is. therefore, just what is conferred on him by section 14(1)(a), (b) and (c) of the Indian Bar Council Act, 1926.

It is, therefore, clear from the aforesaid decision of the Supreme Court that the right of an advocate brought on the rolls of a common bar is still regulated by section 14(1)(a)(b) and (e) of the Bar Councils Act. With respect, it must be pointed out that although the Full Bench of the Punjab and Haryana High Court in Smt. Jaswant Kaur and Another Vs. The State of Haryana and Another, . cited supra whose view is adopted without any independent reasoning by the two Judges'' Bench of the Supreme Court in the case of H.S. Srinivasa Raghavachar Vs. State of Karnataka and Others, . has ultimately when it was pointed out that section 30 of the Advocates Act was not brought into force, referred to section 14(1)(a)(b) and (c) of the Bar Councils Act and has slated that there is no difference between section 30 of the Advocates Act and the said section 14 of the Bar Councils Act. it is clear that in the case of Paradip Port Trust, in para 23, the Supreme Court has itself pointed out the distinction between section 30(ii) of the Advocates Act and section 14(l)(b) of the Bar Councils Act. It is pointed out that although section 30(h) of the Bar Councils Act provided for appearance of the advocates as of right. section 14(1)(b) of the Bar Councils Act makes it subject to any other law for the time being in force. Section 14(1)(b) of the Bar Councils Act thus shows that the appearance of the Advocates in any Court other than the High Court, the Tribunals and the persons legally authorised to take evidence can be regulated by other statutes as also held by the Supreme Court in Lingappa''s case, cited supra. It is in the light of the aforesaid decisions that it is necessary to consider the question about repugnancy arid/or invalidity of section 44B of the Ceiling Act raised in this petition.

It may be at this stage stated that previously when the validity of the Ceiling Act was questioned in the case of Vithalrao Udhaorao Uttarwar and Others Vs. The State of Maharashtra, , the validity of section 44B was also questioned. this Court held in paras 213 to 218 of the said judgment that it is primary for (he Legislature 10 consider whether the appearance of the advocates should be allowed in the particular proceedings or not and the enactment, of section 44B therefore, cannot be challenged on the ground of the violation of the principles of natural justice. It is observed, however, in para 213 that the pleaders by themselves are the class of authorised agents and that particular professional is subjected to prohibition, u/s 44B of the Ceiling Act which prohibition is in accordance with the scheme of the Ceiling Act. Although it is true that the validity of section 44B of the Ceiling Act was not canvassed before the Supreme Court in the appeal taken before it from the above judgment of this Court in the case of Dattatraya Govind Mahajan and Others Vs. State of Maharashtra and Another, . nonetheless the above judgment of this Court stands confirmed as the appeals were dismissed by the Supreme Court in its aforesaid judgment.

Be that as it may. as already pointed out. since section 30 of the Advocates Act is not brought into force, can it be said that section 44B of the Ceiling Act is repugnant to section 14(1)(b) of the Bar Councils Act. The other question to be considered is whether the enactment of section 44B is upon a topic of persons entitled to practise before the Supreme Court and the High Courts covered by entries 77 and 78 of the Unionist. In my view. it is dear that in Paradip Port Trust case and in the case of Lingappa. cited supra, the view taken by the larger Bench of the Supreme Court" does not show that section 44B of the Act can be held repugnant to section 14(1)(b)/ of the Bar Councils Act. It is true that in the case of Paradip Port Trust the special enactment i.e. the Industrial Disputes Act. 1947 was the Central Enactment and therefore, on the principle of the special provision excluding the general one. the special provision in section 36(4) of the Industrial Disputes Act. 1947 was held to exclude the general provision u/s 14(1)(b) of the Bar Councils Act.

However, in Lingappa''s case the Supreme Court was concerned with the State Enactment and still it is not held by the Supreme Court that section 9A of the Maharashtra Restoration of Lands to Scheduled Tribes Act. which is in pari materia with section 44B of the Ceiling Act is repugnant to section 14(1)(b) of the Bar Councils Act. On the contrary, as already pointed out. it is observed by the Supreme Court in para 34 of the said judgment that this is a matter which is still regulated by different statutes and the extent of right to practise was depending upon the terms of those statutes. In this context, section 14(1)(a)(b) and (c) of the Bar Councils Act is referred to by the Supreme Court in the said judgment.

When section 14(1)(b) itself is subject to any other law for the time being in force, it would postulate that the legislative field for appearance of legal practitioners in Courts or tribunals other than the High Courts and the Supreme Court is kept open and ''does riot stand occupied by the Central enactment. In other words, it may be seen that clause (a) of section 14(1) permits appearance of advocates as of right before the High Court of which he is an advocate. However, apart from clause (b). clause (c) of section 14(1) of the Bar Councils Act also permits his appearance before any authority or person i.e. other than those referred in clauses (a) and (b) if by or under (sic) law for the time being in force, he is entitled to practise before it. Clause Id also, therefore, shows that the appearance of advocates before any other authority or person can be regulated by or under the law other than the Bar Councils Act.

It may also be seen that the Bar Councils Act is an existing law within the definition of the said expression given in Article 366(10) of the Constitution which defines it to mean a Preconstitutional Law. If the field is not occupied by the Central Legislation in the sense that it had conferred an absolute right upon the advocate to appear before any Tribunal or an authority, in my view, the said field is open under the general Entry 26 in the Concurrent List under the Seventh Schedule of the Constitution.

At any rate, it cannot be said that section 44B of the Ceiling Act which has received the assent of the President is repugnant to section 14(1 Mb) of the Bar Councils Act as the said provision itself permits legislation in this regard.

The next question urged before me is that since the field of appearance of advocates is covered by the entries in the Union List, the State Legislature has no power to make any laws in relation to the same as such a legislation is exclusively within the domain of Parliament. In appreciating the above submission, it is necessary to refer to the scope and ambit of Entries 77 and 78 in the Union List as laid down by the Supreme Court in O. N. Mohindroo ''s case, cited supra. It is held by the Supreme Court in para 8 of its judgment in the said case that to the extent that the persons entitled to practise before the Supreme Court and the High Courts are concerned, the power to legislate in regard to them is carved out from the general power relating to the professions in Entry 26 in List III i.e. the Concurrent List and it is this field of legislation which is made exclusive field for Parliament. It is then made clear that barring those entitled to practise in the Supreme Court and the High Courts, the power to legislate with respect to the; rest of the practitioners would still seem to be retained under Entry 26 of the Concurrent List. However, as to what extent the power to legislate with respect to the rest of the practitioners is covered by Entry 26 in List III. the Supreme Court did not go into that question as it was not called upon to do in the said case.

It is thus clear from the judgment of the Supreme Court in O. N. Mohindroo''s case, cited supra, that the question of practitioners before the Courts other than the High Courts and the Supreme Court. Tribunals or other authorities is not within the Entries 77 and 78 of the Exclusive List of the Parliament. After referring to its judgment in O.N. Mohindroo''s case cited supra, the Supreme Court, in the case of the The Bar Council of Uttar Pradesh Vs. The State of U.P. and Another, . has held in para II of the report that from the relevant entries the scheme with reference to the persons entitled to practise before the Supreme Court and the High Courts is that the Parliament has the Exclusive power under Entry 77 and Entry 78 of List I to prescribe inter alia the qualifications and conditions on the fulfilment of which persons would be entitled to practise before the Supreme Court or the High Courts.

Turning now to the Ceiling Act. it is a State Law passed under the Legislative powers of the State Legislature primarily under Entry No. IX of the State List i.e. List II in the Seventh Schedule of the Constitution. However, as regards the jurisdiction and the powers of the Courts created under the said Act, the same are referable to Entry No. 65 and/or Entry No. 3 (prior to its amendment) of the State List. The said Entries are reproduced below;-

It is a cardinal rule of interpretation of legislative entries in the various legislative lists of the Constitution that what they contain are mere legislative heads or topics, the power to legislate with respect to the said topics being contained in Article 246 of the Constitution. It is further a cardinal rule of interpretation of the legislative entries, that they should be liberally construed so as to comprehend within them all subsidiary and incidental matters so that the Parliament or the State Legislature as the case may be, can pass the effective legislation. It is clear from Entry No. 65 of the State List that the State Legislature is competent thereunder to create and confer jurisdiction and powers upon the Courts in respect of Land Legislation under the Ceiling Act as a matter subsidiary or ancillary to the subject of Entry No. 18 of the said List. See AIR 1947 72 (Privy Council) . The words of these Entries are comprehensive enough to include the procedural powers to be conferred upon the Courts or Tribunals created under the Ceiling Act. See AIR 1941 16 (Federal Court) . Brij Bhukan Kalwar and Others Vs. S.D.O. Siwan and Others, . AIR 1946 16 (Federal Court) .

34-A. It is, therefore, clear that the Entries 18 and 65 of the State List would themselves comprehend the procedural matter relating to appearance of the Agent of the landlord including the legal practitioners before the Land Tribunals constituted under the Ceiling Act. Even otherwise, the subject matter relating to procedure in revenue Courts contained in Entry 3 of the List-II can also comprehend the procedure to be followed by the Land Tribunals constituted under the Ceiling Act. Thus apart from Entries 13 and 26 of the List HI the above provisions in the List II themselves contain the power of the State Legislature to provide for the procedure to be followed by the Lands Tribunals in exercising the jurisdiction conferred upon them under the Ceiling Act. The Ceiling Act including its section 44B is a piece of legislation which is in pith and substance relatable to the above entries in the State List. Even section 44B of the said Act which places restrictions upon the appearance of the legal practitioners before the Lands Tribunals cannot be said to be a law which is in pith and substance relatable to the Entries 77 and 78 of the Union List i.e. relatable to the persons entitled to practise in the High Courts and the Supreme Court as understood by the Supreme Court in its judgments cited supra.

It is pertinent to see that the Doctrine of pith and substance i.e. the true nature of the enactment with its allied Doctrine of the incidental encroachment was evolved under sections 91 and 92 of the British North America Act, 1867 (i.e. Canadian Constitution Act) as a rule of interpretation to save a statute from being invalidated if purporting to deal with a subject matter in one List it touches a subject matter in the forbidden List. See Gallaghar vs. Lynn. (37) A.C. 863 (PC) . The said doctrine is firmly established under the Government of India Act, 1935 and thereafter in our Constitution also to resolve the question of overlapping jurisdiction of the Parliament and the State Legislature with respect to laws purported to be enacted within their exclusive legislative fields. Sec AIR 1941 47 (Federal Court) . AIR 1947 60 (Privy Council) and A.S. Krishna Vs. State of Madras, .

35 -A. Moreover, recently the Supreme Court has considered exhaustively the whole law about the distribution of legislative powers under Article 246 and Article 254 of the Constitution in the case of Hoechst Pharmaceuticals Ltd. and Others Vs. State of Bihar and Others, . In paras 40 to 61 the Supreme Court has considered in the above judgment the question of the legislative powers of the Parliament and the State Legislatures under Article 246 of the Constitution and the question of their conflicting and overlapping jurisdiction to resolve which it has approved the rule of pith and substance. After referring to the above judgments of the Federal Court and the Privy Council it held in para 61 of its judgment cited supra that it is within the competence of the State Legislature under Article 246(3) to provide for matters which though within the competence of Parliament are necessarily incidental to effective legislation by the State Legislature on the subject of legislation expressly enumerated in List-II.

It may be seen that the Ceiling Act is a welfare legislation enacted with the object of achieving equitable redistribution of agricultural land. It appears that since it was a matter of common experience that appearance of legal practitioners in the legal proceedings caused delay in their disposal, therefore, to achieve speedy implementation of the land reform laws and thus to make the legislature effective, section 44B is enacted prohibiting appearance of the legal practitioners before the Lands Tribunals. Even therefore, assuming that there is any encroachment upon the Entries 77 and 78 of the Union List by enactment of section 44B of the Ceiling Act, such an encroachment is incidental and is necessary for the effective legislation of the State Legislature under Entry 18 of the State List in relation to the Land-reform laws. Such an incidental encroachment cannot, therefore, invalidate section 44B of the Ceiling Act. I am also supported in this view by a very lucid and exhaustive majority judgment of the Full Bench of the Allahabad High Court in the case of Hakim Singh Vs. Shiv Sagar and Others, , in which it is held that the UP. High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1972 under which the right of an intra court appeal under the Letters Patent of the High Court against the judgment of the learned Single Judge under Articles 226 and 227 of the Constitution in relation to proceedings arising out of the Land Laws is abolished is not invalid on the ground of legislative competence of the State Legislature although the said enactment trenched upon the legislative field of the Parliament in Entry 78 of the Union List upon the topic of the Constitution and organisation of the High Court since the subject matter of the above Amending Act is in pith and substance relatable to Entry 13 relating to the CPC in the concurrent list and is passed with the assent of the President. As regards the Ceiling Act, apart from the fact that it is passed with the assent of the President, as already pointed out, section 14(1)B of the Bar Councils Act does not occupy but keeps the field open for other legislation and thus there are no overlapping enactments upon the same topic.

For all these reasons, the contentions raised on behalf of the petitioners cannot be accepted. Section 44B of the Ceiling Act cannot, therefore, be held to be incompetent or ultra vires of the powers of the State Legislature and cannot be struck down.

In the result, the instant petition fails and is dismissed. However, as already held by me the order of the learned M.R.T. as regards determination of the surplus land is modified by declaring that the family unit of the petitioners holds 103.36 acres of land as surplus land. The petitioners are, however, allowed fresh choice of retention in regard to delimitation of surplus land and the learned trial Court is directed to allow the petitioners a fresh choice of retention and shall thereafter delimit the surplus land belonging to the family unit of the petitioners. There would, however, be no order as to costs in this petition.