CHHITUBHAI GHELABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These are two petitions challenging the vires of secs. 56C to 56F and sec. 57(4) of the Bombay Irrigation Act 1879 (hereinafter referred to as the Act) and for restraining the respondents from recovering the irrigation cess under the relevant provisions of the Act. The petitioner in Special Civil Application No. 420 of 1964 is a cultivator holding lands in village Sankari and village Timbarva of Bardoli Taluka in Surat District. The petitioner also owns certain lands jointly with his wife and is the holder of lands in the same village. The petitioner has been served with a notice dated 4th May 1964 whereby he has been asked to pay Rs. 358-09 ps. by way of dues on account of irrigation cess. That notice was issued by respondent No. 3. The petitioners in Special Civil Application No. 833 of 1968 hold lands in certain villages in Taluka Olpad of Surat District. On or about 14th February 1963 the Talati's of the villages in which the lands of the petitioners are situate demanded irrigation cess from the occupants by making proclamations. The petitioners in both the petitions are thus subjected to the levy of irrigation cess the rates whereof have been fixed by certain notifications annexed with the petitions. The petitioners therefore challenge the said notifications and secs. 56C to 56 and sec. 57(4) of the Act which relate to the levy and recovery of the irrigation cess.

(2.) In Special Civil Application No. 420 of 1964 the notifications which relate to the fixation of the rates at which irrigation cess is to be levied are produced as Annexure B C D E and F and the same notifications have been produced in Special Civil Application No. 833 of 1968 as Annexure C D E F and G to the petition. The first notification is dated 29th January 1959 and fixes the rates for the period from 15th February 1959 to 14th February 1960. In that notification the rates are fixed at Rs. 22-50 per acre per annum for lands under sugarcane or equivalent perennial crops receiving water for only one or two seasons and not during full year; at Rs. 4-00 per acre per season for lands under other perennial crops receiving water for only one or two seasons and not during full year; at Rs. 2-50 per acre for lands under eight month blocks and lastly at Rs. 2-50 per acre per annum for all other lands. The second notification is dated 4th February 1960 and fixes similar rates as in the first notification for the period from 15th February 1960 to 14th February 1961. The third notification is dated 8th February 1961 and fixes similar rates for the period from 15th February 1961 to 14th February 1962. The fourth notification is dated 9th February 1962 and fixes similar rates for the period from 15th February 1962 to 14 June 1962 and so also the fifth notification dated 1st June 1962 fixes similar rates for the period from 15th June 1962 to 14th February 1963. Then there is notification Annexure G in Special Civil Application No. 420 of 1964 which is the same as Annexure H in Special Civil Application No. 833 of 1968 which is dated 28th February 1962 which fixes rates for the period from 15th February 1963 to 14th February 1966 at the rate of Rs. 6-18 ps. per hectare per annum or Rs. 2-50 per acre per annum. A notification dated 10th February 1966 has been produced as Annexure I in Special Civil Application No. 833 of 1968 which is for the period from 15th February 1966 to 14th June 1966 fixing the same rates as the notification Annexure H referred to above. The last notification is produced at Annexure J in Special Civil Application No. 833 of 1968 and is dated 19th January 1967 which fixes rates for the period from 15th February 1967 to 14th February 1968 at the rates as were fixed by Annexure H.

(3.) Both these petitions which involve the same points relating to the validity of secs. 56C to 56F and sec. 57(4) of the Act were heard together and as similar points arise for determination in both the petitions we shall deal with them together by this common judgment. The grounds of challenge which were referred to by the learned advocates of the petitioners may now be summarized as follows:-