VANRAJSINH PRABHATSINH GOHIL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these petitions by different citizens but against the common respondents, namely, the State of Guiarat and the concerned officers of the State essentially raise a common question of law regarding the vires of S. 69A(1) of the Land Revenue Code which had come to be introduced into the said Code by the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gtijaral Amendment) Act, 1982, wlii,,h \vas the successor of the Bombay Lind Revenue Code and Land Tenure Abolition (Gujarat Amendment) Ordinance, 1981. In all these petitions the substantive prayer and, if we say so, the, main prayer is striking down of these provisions and the other reliefs that are sought in these petitions are flowing from the said main prayer. The other prayers are pertaining to the requisitions by the Revenue Officers calling upon these petitioners to hand-over the mines and minerals in question or stop conducting mining operations therein, etc.

(2.) In order to understand the confror versies, a few facts are required to he stated which take us into the history of erstwhile State of Saurashtra which had come to be formed in the year 1949 or thereabout. It is well known that Saurashtra region was having the largest number of princely States and these princely Slates, sovereign in a sense under the suzerainty of the British Empire had created a class of interested people known a "Girasdars" or "Barkhalidars". Various parcels of land together with all rights to or in those lands had conic lo be devolved by those Rulers in favour 4 their cadets or relations or favouriles who were popularly known as ' "Gir isdars" or "Barkhalidars". The term "Barkhalidar" has got its historical meaning The lands that were under the direct control of the respective ruler were of course with agriculturists, but all those agriculturists had to bring all their prcr duce at the fixed place known as "khal," or a threshing floor. After the respective ruler or his agent took stock of' the total produce, his share defined as per the local laws or customs of that particular State was to be then taken out and remainder used to go to the concerned the agriculturist. So, these lands the produce of which was required to be stored in the first instance in those threshing floors were known as "khali lands". The lands which were given away by the rulers to their cadets and others were required to be treated separately. The produce in those granted lands was not required to be brought into those "Khalis" or threshing floors and, therefore, all those lands were popularly known as "Barkhalil, meaning thereby the lands out of the operation of the "Khali" (Vernacular ornitted-Ed.) and the holders of such lands the produce of which was not required to be collerted atid ascertained in those threshing floors were known as "Barkhalidars". The "Girasdars" meaning the cadets or agnates of the rulers also in the above sense were "Barkhalidars" and the United States of Saurashtra having brought into being obviously this anachronistic land tenure scheme was required to be done away with and the and the progressive State of Saurashtra tried to achieve this by striking, golden halance. Various pieces of laws made and one of them was 'the Saurashtra Estates Acquisition Act, 1952, being Saurashtra State Act No. 3 of 1952. Section 3 of ihe said Act provides State Government from time to tiem by a Notification in the Official Gazette, may declare that with effect from such date as may be specified in the notification, all the rights, title and interest of Girasdars or Barkhalidars in respect of any estate or part of ar estate comprised in the notification, Case and be vested in the State Goveriiment and all the incidents of ihe said tenures attachinq to any land comprised in such eslate or part thereof shall be doemed to have been extinguished. The provisions of this Act of Saurashtra State materially differ from the similar provisions of the Taluqdari Tenure Aboli,ion Act of the Bombay State, being tho Act No. 52 of 1949 and other Bonr bay Acts like the Personal Enam. Abolitio n Act, 1952 and the Bombay Merged Territory Areas (Jagirs Abolition) Act, 1953. The Bombay Acts provided that with effect from the date on which the TCsPective Acts came into force those tenures automatically stood abolished and all the incidents of such tenures attaching, to any land comprised in those estates stood by operation of the statute If extinguished. In the Saurashtra Act, however, may be for some historical reasons, there was no forthright or forth with Pxtinction of all rights, title and in'torest of all "Girasdars" or Barkhalidars, occupying the estates. On the other hand power was conferred on the State Covernmejit to select time and to select estates or parts thereof for the purpose of applying exproprietarv provisions of the Aclause Section 3 (1) of the Saurashtra Act is reproduced below, because some of the arguments that were advanced before us in the course of the hearing go to refer to it.

(3.) Now it so happened that the authorities of the Gujarat Government did not properly comprehend the effect of the provisions of Ss. 3 and 4 of the Saurashtra Estate Acquisition Act, 1952 referred to hereinabove. The former Courts had recognised and declared the rights of various Girasdars and Barkhalidars to the mines and minerals in the bhayati i. e. Barkhali lands. Still, the officers of the respondent-State disputed , those rights and so, the matter, had come to this Court in the year 1965. The case of Girasdars like the petitioners in the Special Civil Application No. 689 of 1965 between Temubha RhodLvbha Gohil v.Chhaganlal K. Dave was decided on 14-8-1969' by J. B. Mehta J. In that case ,it was held specifically by 'special reference to the provisions of this Act and the notifications under Ss. 3 and 4 of the Act that the, notification was confiied to only-uncultivable waste land vesting the State and that the lands with mines and minerals could not be 'said to be umcultivable, waste lands.. The result,was that the learned single Judge clerly held the quarries which were used, by the petitioners of that petition on tqe relevanj date for non-agricuttural purposes could never be waste lands and on that basis both the impugned orders must be quashed. This judgment of the learned single Judge had come to be confirmed bv the Division Bench consisting of Justice P. N. Bhagwati, the then Chief justice and P. D. Desai, J., the then Pusne Judge, by dismissing the Letters Patent Appeal No. 73 of 1970 summarily by their Order dt. 15-3-1971. It is, therefore, too late in the day now to say that all these petitioners were not entitled to the mines and minerals in the various lands wh;ch were certainly not Uncultivabte waste lands nor were they cultivable lands.