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TMI Blog1993 (5) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... dly the said land was within the Gaya Municipality and now within Gaya Municipal Corporation. The petitioner contends that some portions of the lands are lying vacant and the said land is used for sahan and not for agricultural purpose. 3. The matter came up before this Court earlier in C. W.J. No. 2524 of 1989 and by an order dated 10-4-1989 which is contained in Annexure 1 to the writ application, the case was remitted to the Collector for deciding the question as to whether the land in question is within Gaya Municipality or not in the following words: The third question is about 1.52 acres of land being within Gaya Municipality, Annexure-4 to this application seems to support the petitioners. This matter also will, therefore, be considered afresh by the Collector after affording opportunity to the parties. Pursuant to the said order of this Court a report was called for and the Land Reforms Deputy Collector inter alia held that the land in question was within the municipal area from before and now is within the Gaya Municipal Corporation. It was further stated therein that at that time no agricultural operation was being carried out. The said report is contained in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an intricate one. The interpretation clause in Section 2 begins with the words 'in this Act, unless there is anything repugnant in the subject or context'. 'Land' has been defined in Section 2(f) in the following terms: 'Land' means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, kharhur or pasturage or forest land or even land perennially submerged under water or the homestead of a land holder. Explanation I of the aforesaid clause reads thus: Homestead means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden orchard and out building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. 9. From a bare perusal of the aforementioned definition of land, it is evident that the land has not only to be agricultural land but it also brings within its premises the well known concept of 'homestead land of the land-holder' as defined in Clause (f) of Section 2 and includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof. However, by reason of the said amendment Sub-section (2) of Section 5 was inserted by the aforementioned Bihar Act 1 of 1973 in the following terms : (2) A land-holder may in addition to the ceiling area retain - (i) any land forming part of his homestead not exceeding one acre equivalent to 0.4047 hectares in area: Provided that the land-holder shall be entitled to retain ail permanent structures and the land as may, in the opinion of the Collector, be necessary for the use and enjoyment thereof and shall continue to retain the same only so long as the land remains his homestead . 13. It is, therefore, clear from the aforementioned provision that in terms of Sub-section (2) of Section 5 of the said Act as amended by Bihar Act 1 of 1973 a land-holder was not only entitled to retain the lands falling within the ceiling area and any land forming part of the homestead not exceeding one acre, but also all other permanent structures and the land, which in the opinion of the Collector may be necessary for the use and enjoyment thereof and shall continue to retain the same as the land remains as homestead. 14. Clause (ii) of Sub-section (2) of Section 5 also permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icultural purpose (hereinafter referred to as Class IV land), or (e) thirty seven and a half acres, equivalent to 15,368 hectares of diara land, or chaur (hereinafter referred to as Class V land), or (f) forty five acres, equivalent to 18,211 hectares of hilly, sandy or other kind of land none of which yields paddy, rabbi or cash-crop (hereinafter referred to as Class VI land). 15. By reason of Sections of the aforementioned 1973 Amendment, Sub-section (2) of Section 5 of the Act was directed to be omitted and the same would always be deemed to be omitted. 16. It is, therefore, clear that Clauses (c), (d) and (e) of Section 4 of the Act of Bihar Act XII of 1962 as amended by Bihar Act 1 of 1973 was substantially retained as Clause (d), (e) and (f) of Section 4 subject to the amendments made therein. 17. Section 4 of the Act had undergone further amendment by reason of Bihar Act 22 of 1976 by reason whereof the words 'the following shall be the ceiling area of land for one family consisting of not more than five members for the purposes of this Act' were substituted by the words 'on the appointed day, the following shall be the ceiling area of land for on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction may be made to the decision in the case of Bain v. Central Vermont RJY. Co. (AIR 1921 PC 221) and Nazir Ahmad v. Tamijaddi Ahmed (AIR 1929 Cal 430). 21. The intent and purport of the legislature has to be found out from the phraseology used in the statute itself. It is significant to note that other kinds of lands which are not capable of being used for agricultural or horticultural purpose have specifically been retained in Section 4 of the Act, namely, orchard, kharhur or pasturage or forest land, hilly land, sandy land or land perennially submerged under water except that submerged in the bed of the river. 22. However, although the legislature specifically included homestead land in the original Act, the same was deleted from Clause (e) of Section 4 of the Act by reason of Bihar Act 1 of 1973. Such deliberate act on the part of the legislature in deleting the word 'homestead' in my opinion, has not to be given full effect to as evidently the legislature did no intend to deprive the land-holder of him homestead land by including the same in the ceiling area. There cannot be any doubt that the definition of the land as contained in Section 2(f) of the Act havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bihar, reported in 1989 Pat LJR 1203, it has been held by this Court that when decision has been rendered without taking into consideration any earlier decision or a provision of statute, the same does not create a binding precedent. It was further held that a point not argued before a Bench cannot deter a subsequent Bench to decide the same. The same view has been reiterated by a Full Bench of this Court in Md. lainul Ansari v. Md. Khalil, reported in (1990) 2 Pat LJR 378, upon taking into consideration the decisions of A. Antulay v. R.S. Nayak, (1988) 1 SCC 602: (AIR 1988 SC 1531); Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 : (AIR 1989 SC 38); Union of India v. Raghubir Singh, (1989) 2 SCC 754 : (AIR 1989 SC 1933) and M/s. Goodyear India Ltd. v. State of Haryana, analogous cases, (1990) 2 SCC 72: (AIR 1990 SC 781). 27. Again this view has been taken by this Court in Md. Nazimuddin v. State of Bihar, reported in (1990) 2 Pat LJR 505. 28. Yet recently in Durga Pada Banerjee v. Smt. Sushmita Banerjee, (1993) 1 BLJ 313, it has been held : Question which now arises for consideration is as to whether the decision of this Court in Bankim Chandra Roy' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was sought to be remedied and then discover the true rationale for such a remedy. In Black Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg Ag. ((1975) 1 All ER 810 : 1975. AC 591 : (1975) 2 WLR 513 (HL)) Lord Reid observed as follows : (All ER, p. 814) : One must first read the words in the context of the Act as a whole, but one is entitled to go beyond that. The general rule in construing any document is that one should put oneself 'in the shoes' of the maker or makers and take into account relevant facts known to them when the document was made. The same must apply to Acts of Parliament subject to one qualification. An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time. That may be common knowledge at the time or it may be some published information which Parliament can be presumed to have had in mind. It has always been said to be important to consider the 'mischief which the Act was apparently intended to remedy. The word 'mischief is traditionally I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat was the position before insertion of Section 11A in the Act and whether it disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Amending Act. 33. In any event the deletion of the word homestead' from the purview of Clause (e) on Section 4 of the Act in 1962 Act and non-insertion thereof subsequently in Bihar Act No. IX of 1973 must be held to because omissus which cannot be supplied by the Court. It is now well known that causus omissus is an application of the principle that the matter which should have been, but has not been provided in statute cannot be supplied by the Court as to do so will be legislation and not construction. Reference in this connection may be made to Wali Ram Banan Hirai v. Mr. Justice B Lendi, (AIR 1988 SC 2267 at 2283). 34. In P.K. Unni v. Nirmala Industries, [(1990) 2 SCC 378]: AIR 1990 SC 933, it has been held as follow (at p 936 of AIR): Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the court can of course, adopt a construction which will carry out the obvious intention of the legislature. In doing so ..... 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