- (1.) Leave granted. Heard parties. This appeal by special leave raises the question whether a tank will fall within the definition of "land" under section 2(f) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 as applicable in the State of Jharkhand ('Act' for short), extracted below : "Land" means land which is used or capable of being used for agriculture of 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.- "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. Explanation II. - Land perennially submerged under water shall not include submerged in the bed of a river."
(2.) The appellant is a land-holder. Proceedings were initiated in the year 1973 for determination of the surplus land held by it. The appellant filed a return showing the extent of land in its possession as 379.12 acres. The Circle Officer submitted a report to the Land Reforms Deputy Collector, Jamshedpur, showing the extent of land in the possession of appellant as 443.09 acres. The appellant filed the objections contending that certain tanks which did not fall under the definition of land in all measuring 43.29 acres had been wrongly included in the draft publication. By order dated 9.10.1982, the Addl. Collector held that the tanks covering an area of 43.29 acres fell within the definition of "land" and therefore, had to be taken into account for determining the surplus area. The challenge to the inclusion of the "tank" area was rejected by the appellate authority on 22.3.1983 and upheld by the Board of Revenue on 22.11.1983.
(3.) Feeling aggrieved, the appellant filed a writ petition (WP No.995 of 1984), contending that while "even land perennially submerged under water" was 'land' for the purpose of the ceiling area, a tank cannot be considered to be land. The appellant contended that only land which was arable, that is land which was used or capable of being used for agriculture or horticulture could be considered as land for determining surplus land and a tank which is land covered with water incapable of being used for agriculture or horticulture could not be treated as land for the purpose of the Act. A learned Single Judge of the Patna High Court rejected the said contention and dismissed the writ petition by order dated 2.3.1993. He held that the legislative intent was to include all tanks and ponds used for agricultural purposes, within the definition of "land" by including in the definition "even land perennially submerged under water". The appeal filed by the appellant was dismissed by order dated 19.2.2004 affirming the reasoning and findings of the Learned Judge. The Division Bench also noticed the amendment to the Act in the State of Bihar by Act 5 of 2002 by which the words 'also the land' were substituted for the words "even land" and held that the subsequent amendment showed the legislative intent was that 'land' should also include any land perennially submerged under water. The said order is challenged in this appeal, giving rise to the question whether a tank will be 'land' for purposes of the Act.;