JORAWARKHANJI LATIFKHANJI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is a petition challenging a notification issued by Government on October 29, 1953, Under Section 8 (2) of the Bombay Tenancy and Agricultural Lands Act, 1948. The petitioner is a tuluqdar of several villages in the Dliolka taluka in the Ahme-dabad District, including the village of Varna. Oil 1-11-1952, Government issued a notification under Section 6 (2) of the Act and it fixed the maximum rent-at one-sixth of the crop value instead of one-third as provided by Section 6 (1 ). On 1-11-1952, Government issued a notification under Section 8 (1) of the Act declaring that the rents payable wholly or partly as a crop share in the villages specified in column 3 of the Schedule appended to that notification, which included the village of Varna, shall, with effect from 1-8-1953, be commuted into cash rent. On the same date Government issued a circular drawing the attention of the Collector of Ahmedabad to the notification which it had issued with regard to the commutation of crop share, and in this circular it points out that the Mamlatdars and the Mahalkari concerned should be asked to apprise the landlords of the necessity of making applications in Form I appended to the Bombay Tenancy Act to the Mamlatdar or the Mahalkari or the Aval Karkun concerned for commutation of crop share rent into cash within three months from the date of the publication of the notification in the regional language. The Mamlatdar, the Mahalkari or the Aval Karkun were directed to determine as quickly as possible the rates of commutation in the manner prescribed in Sub-rules (4) and (5) of the Bombay, Tenancy and Agricultural Lands Rules, 1949. The petitioner made the necessary application and the proceedings were pending before the Mamlatdar. In the meanwhile on 29-10-1953, the Government issued the notification which is challenged by this petition, and by that notification which was purported to have been issued under Section 8 (2), Government fixed the rates of commutation as specified in Schedule II appended to that notification with effect from 1-8-1953, and the rate in Schedule II is the following:

(2.) THE question that we have to consider and determine is not from the point of view of the loss sustained by the landlord, but from the point of view of the power of Government to issue the particular notification under Section 8 (2 ). Our attention has been drawn to a judgment recently delivered in the case of -- 'chimanlal Dipchand v. Bombay State', AIR 1954 Bom 397 (A) and the Advocate General has particularly emphasised the observations in the judgment that the Act we are considering is an ameliorative measure and that we must not overlook that this legislation was put upon the statute book in order to improve the economic and social conditions of peasants. We must constantly bear that objective in mind, but even bearing that objective in mind we have got to consider whether the Legislature has empowered the Government to issue the particular notification that it has. In that case we were called upon to consider the validity of a notification issued under Section 6 (2), and we held that Government had the power to vary the maximum fixed under Section 6 (1) from time to time and to fix any maximum it thought proper, and also to fix the maximum not only on the basis of crop share but on any other suitable basis.

(3.) NOW, the scheme of Section 8, which we have to consider in this case, is, in our opinion, fairly clear. Section 8 (1) gives the power to the Government to declare that the rents which were payable by tenants in crop or in kind should be commuted into cash. Therefore, once the notification is issued under Section 8 (1), there would be no longer an obligation upon the tenant to pay the rent by means of giving to the landlord a share in the crop which he has grown, but the obligation would be to pay the rent in cash. Section 8 (1) does not lay down what is to be the rate of commutation or how the cash rent is to be determined on the basis of the crop share to which the landlord is entitled. It was for that purpose that the Legislature enacted Section 8 (2 ). Under Section 8 (2) the power of the Government is to fix the rate of commutation. Commutation in its plain grammatical meaning as used in this context is a payment in money for payment in kind, and what the Government is empowered to do is to fix, as it were, the rate of exchange between the two commodities mentioned in this sub-section. On the one hand is the crop which the tenant grows, on the other hand is the cash or the money, and the Government is given wide power to determine how the tenant should pay to the landlord rent in money instead of in kind which he used to pay before the issue of the notification under Section 8 (1 ). In our opinion, the power to fix the rate of commutation must necessarily imply that that power must be exercised bearing in mind that there should be a reasonable relationship to the value of the crop in fixing the money worth of that crop. It is impossible to contend that when you are fixing the value of the crop in terms of money you should pay no attention whatsoever to the quantity of the crop raised, to the quality of the crop, or to its value. The whole object of Section 8 (2) is to provide a machinery whereby the rate of exchange should be determined, and you cannot determine a rate of exchange if you ignore or overlook the value of the commodity which you are exchanging into money. Now, what the Government has done in this case is to fix the rate of commutation as three times the assessment. The lands in question were surveyed for the purpose of assessment more than 25 years ago and the assessment was fixed on the basis of the lands as they were at that time. Undoubtedly, the fertility of the land, the crops grown, and other factors were taken into consideration in fixing the assessment, but that, as we said, was more than 25 years ago and a great deal of history has been written in our country in the last 25 years. Today when Government fixes the rate of commutation on the basis of assessment, it is impossible to contend that the assessment would have any bearing whatsoever upon the value of the crop grown on the land which bears a particular assessment, and Government is very frank about it because in its affidavit it has accepted the position as they have denied the petitioner's submission that it was incumbent upon Government to fix a rate which bore a reasonable proportion or relation to the value of the crop share commuted. Therefore, the notification that is being issued fixing the rate is without taking into consideration the yield of the crop, without taking into consideration the agreement between the landlord and the tenant as to the payment of the crop share, without taking into consideration the market value of the crop at a particular time, and also without taking into consideration the kind or the quality of the crop that may be grown on the land. A Hat rate on the basis of assessment is fixed, al-though on a particular land rice might be grown, on another land wheat might be grown, on a third land sugarcane or cotton might be grown, and there may be a particular land which may be fallow or 'warkas'.