BUDHUKHOKHAR SHAHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The question arising in this petition lies In a very narrow compass and a brief statement of the facts giving also to the petition is sufficient to explain how it arises The petitioners were formerly girasdars holding lands in five villages namely Kutiyana Mandva Pasvali Ujad Thepda and Sagras situate in Kutiyana Taluka Junagadh District. Several of these lands were being cultivated by tenants and on the coming into force of the Saurashtra Land Reforms Act 1951 the tenants made applications to the Mamlatdar under sec. 28 of the Act for acquisition of occupancy rights in respect of the lands held by them as tenants. Sec 29 provided as to how the Mamlatdar should deal with an application under sec. 28 and it said that on receipt of such application the Mamlatdar shall issue notice to the girasdar concerned and after giving the parties an opportunity of being heard shall make an Inquiry in the prescribed manner and after making such inquiry according to sec. 30(1) the Mamlatdar may subject to any order of allotment for gharkhed pass an order specifying therein (a) the holding or the part thereof In respect of which the tenant may be declared to be an occupant (b) the assessment on such occupancy holding and (c) the amount payable by the tenant to the girasdar as compensation is respect of such occupancy holding. The Mamlatdar was required to specify in the order under sec. 30(1) the assessment on the occupancy holding in respect of which the tenant was declared to be an occupant and the power to fix the assessment on the occupancy holding was conferred upon him under sec. 44. That section in so far as Is material for the purpose of the present petition provided:

(2.) It is apparent from the statement of facts given above that the average rates of assessment in respect of girasdari that is non-khalsa lands situate in the aforesaid five villages were fixed by the Mamlatdar under sec. 44 read with rule 99 and they were the average rates of assessment applicable generally to girasdari that is non-khalsa lands in those villages. But so far as the lands in possession of the tenants were concerned in respect of which the tenants had made applications for acquisition of occupancy rights they were according to the petitioners lands falling within the proviso to rule 99(1) and the assessment on those lands was therefore liable to be determined at four times three times or double the average rates of assessment fixed for those villages according as those lands were classified as Uttam Madhyam or Kanishtha. The petitioners therefore made applications to the Mamlatdar for the purpose of determining the assessment on those lands in accordance with rule 44 read with the proviso to rule 99(1). Now on the plain terms of sec. 44 the power to determine the assessment on any land is vested In the Mamlatdar and this is made amply clear by the provision enacted in sec. 46(n). The opening part of rule 99 also clearly indicates that it is for the Mamlatdar to determine the assessment on any land under sec. 44. Now the mode of determination of assessment on any land to be made by the Mamlatdar under sec. 44 is laid down in rule 99(1) and the proviso to rule 99(1) has therefore to be applied by the Mamlatdar in determining the the assessment on land wherever the land falls within the description given in the proviso and the proviso becomes applicable. It is for the Mamlatdar to decide while determining the assessment on any land whether the assessment should be made in accordance with the proviso and for that purpose he has to consider whether the land falls within the proviso. He has to decide whether the land is very rich land or garden land with fruit trees and the assessment on such land calculated on the basis of the average rate of assessment is low having regard to the produce of such land. If this condition is satisfied he is under an obligation to calculate the assessment on such land at four times three times or double the average rate of assessment of the village according as the land may be classified as Uttam Madhyam or Kanishtha: if on the other hand this condition is not satisfied the proviso would not apply and the assessment on such land would be made on the basis of the average rate of assessment. The order of the Mamlatdar determining the assessment whether on an application of the proviso or otherwise would be appealable under sec. 51(1) to the Collector and against the order of Collector in appeal a revision application albeit on limited grounds would lie to the Revenue Tribunal under sec. 52(1). Rule 101(1) also postulates that against the order of the Mamlatdar determining the assessment on any land an appeal would lie to the Collector and a further revision to the Revenue Tribunal The State Government is not given any power to determine the assessment on any land except in the case contemplated by the proviso to sec. 44(2) where it is provided that where the assessment calculated by the Mamlatdar is manifestly unfair the State Government may modify it keeping in view the principle set out in sec. 44(1). But this power of modifying the assessment conferred upon the State Government is clearly a power applicable only to the determination of the average rate of assessment. It can have no application where the question is whether the assessment should be made under the proviso for the proviso is clearly obligatory in its terms and leaves no scope for an argument as to whether the assessment is fair or unfair. The proviso says that in cases falling within its scope and ambit assessment shall be determined at four times three times or double the average rate of assessment according as the land is classified as Uttam Madhyam or Kanishtha. If the average rate of assessment fixed by the Mamlatdar is manifestly unfair the State Government can certainly modify it under the proviso to sec. 44(2) but once the average rate of assessment is determined by the Mamlatdar and there is either no modification by the State Government under the proviso to sec. 44(2) or such modification is made by the State Government and the average rate of assessment is finally determined the State Government goes out of the picture altogether and it has no power to interfere with the determination of the Mamlatdar whether the proviso applies or not. The question whether the proviso to rule 99(1) applies or not is one to be determined by the Mamlatdar and no power is given to the State Government to decide it. Here in the present case we find that it was the Commissioner and not the Mahalkari who decided that the proviso to rule 99(1) does not apply and consequently the assessment on the lands in question must be calculated on the basis of the average rate of assessment. The Commissioner clearly acted beyond his power In holding that the proviso to rule 99(1) was not applicable and usurped the jurisdiction which belonged to the Mamlatdar under sec. 44 read with rule 99. The order passed by the Commissioner on 23rd December 1963 negativing the applicability of the proviso to rule 99(1) and rejecting the applications of the petitioners was therefore beyond his jurisdiction and must be declared to be null and void. And if that be so the revisional orders passed by the State Government must also be held to be bad for there could be no revision against a nullity.

(3.) I therefore allow the petition and make the rule absolute by issuing a writ of mandamus quashing and setting aside the order of the Commissioner dated 23rd December 1963 and the revisional orders of the State Government dated 10th December 165 and 1st February 1966. The Mamlatdar having jurisdiction over the area in which the lands are situate will proceed to dispose of the applications of the petitioners in exercise of jurisdiction conferred upon him under sec. 44 read with rule 99. The first respondent will pay the costs of the petition to the petitioners. Petition allowed.