JILUBHAI NANBHAI KHACHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These five appeals raise four-pronged attack on the constitutionality of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act 8 of 1982 (for short "the Amendment Act"). Though unsuccessful in the High Court of Gujarat in Special Applications Nos. 1118 of 1982 and batch by judgment of the Division Bench dated 7/8 September, 1983 and followed in Special Civil Application No. 763/82 dated September 16, 1988 the appellants had leave of this Court. A short shift of the antecedent history of land tenures in Saurashtra region of the State of Gujarat is necessary to focus the focal points posed for decision, by common judgment. The appellants are successors of Barkhalidars and Girasdars. The erstwhile Saurashtra State consisted of 220 princely States ruled by Sovereign Rulers in their own rights. The lands in these appeals form present parts of Surendra Nagar and Bhavnagar districts. In the State of Saurashtra, the Rulers entered into agreements with Taluqadars and estate holders and also created a class of interested people known as "Barkhalidars or Girasdars." Various parcels of lands together with all rights in or interest over those lands were granted for cultivation on payment of revenue etc. with a right of succession in favour of their cadets or relations or favourites known as "Girasdars" or "Barkhalidars". "Gharkhed", known in South India estate tenures as "Homefarm lands", means land reserved by land holder for personal cultivation. "Bid Land" means such lands as has been used by the land holders for grazing his cattle or for cutting grass for the cattle. "Land holder" means Zamindar, Jagirdar, Girasdar, Taluqdar etc. or any person who is a holder of land or who is interested in land and whom the Government has declared, on account of the extent and value of the land or his interests therein, to be a landholder.

(2.) The system in vogue was that the lands that were under control of the rulers through the agriculturists, the latter had to bring their produce to a common place "khali" meaning thereby threshing floor. The ruler or his agent used to take stock of the total produce harvested and set apart towards the ruler's share according to the custom or the contract and the remainder belongs to the agriculturists. In the other system the land was granted to the "Girasdars" or "Barkhalidars", and the requirement of bringing the harvest by the agriculturists to the threshing-floor was dispensed with. This anachronistic land tenure system was done away with by progressive different land tenures conferring permanent ryotwari settlements on the tiller of the soil through "The Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 which later became the Act, the Saurashtra Land Reforms Act, 1951; the Saurashtra Barkhali Abolition Act, 1951 and the Saurashtra Estates Acquisition Act, 1952 (for short "the Act"). Under the respective statutes the rights and liabilities of Girasdars or Barkhalidars have been determined. The details whereof are not relevant for the purpose of these appeals. Suffice it to state that S. 2(c) of the Act defines "estate" to mean 'all land of whatever description or an undivided share thereof held by a Girasdar and includes uncultivable waste land etc. S. 2(a) defines land as "land of any description whatever and includes benefits whatsoever arise out of the land and things attached to the earth or permanently anything attached to the earth. These definitions are of wide amplitude to include mines and mineral wealth beneth surface land of whatever description. S.3(1) abolishes Girasdari or Barkhalidari tenures by a notification published by the Government in the official gazette, from time to time declaring with effect from a specified date that all rights, title and interest of the Girasdars or Barkhalidars shall, in respect of any estate or part of an estate comprised in the notification, ceased and to be vested in the State and all the incidents of the said tenures attaching to any land comprised in such estate or part thereof shall be deemed to have been extinguished. Sub-sec. (2) thereof empowers the State Government to issue notification from time to time in respect of an estate or part of an estate or in respect of any area specified in the said notification. The consequences of the abolition of Girasdars' and Barkhalidars' rights in the estate have been provided in S.4 of the Act. Under Cl. (2) of S. 4 relevant for the purpose of this case, it has been provided that consequent upon the notification issued by the Government under S. 3, with effect from the specified date, all cultivable and non-cultivable waste land, excluding land used for building or other non-agricultural purposes ...... which are comprised in the estates so notified shall, except in so far as any rights of any person other than the Girasdar or the Barkhalidar may be established in and over the same .... and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the State and all rights held by a Girasdar or a Barkhalidar in such property shall be deemed to have been extinguished. (emphasis supplied) and it shall be lawful for the Collector, subject to the general or special orders of the Revenue Commissioner, to dispose of them as he deems fit, subject always to the rights of way and or other rights of the public or of individuals legally subsisting. Under S.7, a Girasdar or Barkhalidar is entitled to compensation for the extinguishment of their rights and the details thereof are not necessary for the purpose of this case. At this juncture, it is relevant to note that Saurashtra Land Reforms Act, 1951 defines 'agriculture' by S.2(2) which includes horticulture and the raising of crops, fodder or garden produce and "agricultural land" means any land, including wells, which is used for the purpose of agriculture and includes sites of farm buildings appurtenant to land used for agricultural purposes and sites of dwelling houses and wades occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses. Under S. 2(15) "Girasdar" means any taluqadar, bhagdar, bhayat, cadet or mulgirasia and includes any person whom the Government may, by notification in the Official Gazette, declare to be a Girasdar for the purpose of this Act. In the same Act, under S. 2(13) "estate" means all land of whatever description or an undivided share thereof held by a Girasdar and includes uncultivable waste, whether such land is used for the purposes of agriculture or not and S. 2(18) defines "land" which means any agricultural land, bid land or cultivable waste. S. 2(7) defines "cadet" which means a brother or a son of a Ruler to whom a grant of land was made by such Ruler after 14th day of August, 1947, and who is allowed to retain such grant by the Government or any heir or successors of such person. Under S. 2(8) "Code" means the Bombay Land Revenue Code, 1879 for short "the Code" as adapted and applied to the State. Under S. 4, all Girasdari lands are liable to payment of land revenue. The Saurashtra Barkhali Abolition Act, 1951 defines under Section 2(i) "Bharkhalidar" which means a person who holds a tenure as Barkhalidar, Jiwaidar, Chakariyat, Kherati, or Dharmada and includes any holder of an estate whom the Government may, by notification in the Official Gazette, declare to be a Barkhalidar for the purpose of this Act. S. 2(iia) defines "estate" which includes a Jagir, inam or other grant or interest or aggregate of interests of similar nature in land but shall not include an occupancy. S. 5 of the Act abolishes Barkhali tenure existing as on the date and Barkhali estate shall cease and be vested in the State free from all encumbrances, subject to the provisions of this Act. The Act gives right to the Barkhalidar to make an application for personal cultivation and the details etc. are not necessary for the purposes of these appeals.

(3.) As seen, consequent upon the abolition of the estate under S. 3(1) of the Act by issuance of the notification and ensuing consequences under S. 4, the Girasdari or Barkharidari tenures stood extinguished and vested in the State. When questioned in Civil Application No. 689/65 in T. K. Gohil and others v. C.K. Dave by a decision dated 14-8-69 J.B. Mehta, J. held that the provisions of Ss. 3 and 4 of the Act would be applicable only to uncultivable waste lands which alone stood vested in the State and the lands with mines and minerals could not be held to be uncultivable waste lands and did not vest in the State. The said decision was confirmed by the Division Bench in L.P.A. No. 73/70 dated March 15, 1971. S. 69 of the Code, which was admittedly adapted to the Saurashtra region of the Gujarat State, states that the right of the Government to mines and mineral products in all unalienated land is and hereby declared to be expressly reserved provided that nothing in this Section shall be deemed to affect any subsisting rights of any occupant of such land in respect of such mines or mineral products. S. 3(20) defines "alienated" means "transfer" in so far as the rights of the State Government on payment of rent or land revenue, wholly or partially to the ownership of any person. Consequent upon this definition; the operation of S. 69 and the interpretation made by the High Court, the mines and minerals in the alienated lands stood excluded from the abolition and extinguishment of the rights of Girasdars or Barkhalidars under Ss. 3 and 4 of the Act. To obviate the interpretation and to be in conformity with the object and purposes of the Act, initially the ordinance and later the Amendment Act came to be made which was reserved for the consideration, received the assent of the President on February 23, 1982 came into force with retrospective effect from May 1, 1960 - the date on which the Gujarat State was formed.