BUDDHISAGAR BHAIJIBHAI Vs. LAKHA GOVIND

JUDGEMENT

(1.) THIS is a reference made to this Court by the learned Civil Judge, Senior Division, Baroda, under the proviso to Section 113, Civil P. C. which has been added by Act 24 of 1951. The learned Judge was satisfied that fhe case in which he has made the present reference involves the decision of the question as to the validity of the Baroda Ordinance No. 11 of 1949, and he has added that he was himself disposed to take the view that the Ordinance was invalid. That is why he has made the present reference.

(2.) THE Ordinance in question is Ordinance No. 11 of 1949 and it was promulgated by the Maharaja of Baroda on 30-4-1949. The object of promulgating this Ordinance, as mentioned in the Ordinance itself, was to give protection to agriculturists who needed immediate relief on account of the emergency which had arisen owing to scarcity of rain. The duration of the Ordinance was limited for one year from the date of its promulgation. The Ordinance contained two operative sections. Section 1 of this Ordinance provided that, notwithstanding anything contained in Sub-section (2) of Section. 64 of the "jamin Mahesul Nibhandh" (Baroda Land Revenue Code), no holder of land or any person on his behalf shall be entitled to take possession of the land from the tenant. Section 2 of the Ordinance provided for the restoration of possession to the tenant from the landlord in cases where the landlord has dispossessed the tenant. The benefit of this Section was confined to the tenants who had cultivated the lands in the monsoon of the year 2004 Samvat and who had been deprived of their possession otherwise than in execution of a decree of a civil Court. The Ordinance further directed that the 'vahivatdar' should arrange to get possession from the landlord if he is not willing to part with it in favour of the tenant. Section 3 of the Ordinance provides for punishment for contravention of the provisions of the ordinance.

(3.) IT appears that the plaintiff who has instituted the present suit No. 757 of 1948-49 was dispossessed by the 'vahivatdar' by virtue of the provisions of the said Ordinance and the tenant was put in possession, These orders were passed on an application made by the tenant invoking the protection of the Ordinance. In the present suit, the landlord claims to re cover possession of the suit lands, and the principal ground on which he makes the claim is based on his contention that Ordinance No. 11 of 1949, under which he has been dispossessed, was 'ultra vires' the authority of the Maharaja of Baroda. If this plea succeeds, the plaintiff would be entitled to recover the possession of his lands. That is how the principal issue which the learned Judge has to try in this suit is whether the Ordinance impugned is 'ultra vires' of the Baroda State. Since the learned Judge was himself disposed to take the view that the Ordinance was 'ultra vires', he has made the present reference to us for the decision of the said question.