JADEJA HABHUBHA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is an application under Arts. 226 and 227 of the Constitution of India and it is filed by one Jadeja Habhubha Viraji of Kalawad. The reliefs which the Petitioner has prayed for are declarations (i) that "extinguishment" of his Mulgiras rights by S. 39 of the Saurashtra Land Reforms Act 1951 is void, and (ii) that the lands held by the Petitioner are not liable to any assessment, tax or cess. A further prayer made by the Petitioner is that it should be declared that sub-ss. (2) and (3) of S. of the Saurashtra Local Development Fund Act, 1956, are ultra vires the legislative competence of the Saurashtra State Legislature and that the notice dated 14-4-1957 issued upon the Petitioner by the Mamlatdar for the levy of cess in pursuance of the Saurashtra Local Development Fund Act, 1956, is void and illegal and should therefore be quashed. It is contended by the petitioner that the levy of cess from him at the rate of three annas on the amount of full assessment is void, unauthorised and illegal. A prayer is also made by the Petitioner that the authorities be restrained from recovering any amount of cess from him under the Saurashtra Local Development Fund Act, 1956.

(2.) THE facts upon which this Petition is founded may be briefly stated. The Petitioner says that he is a citizen of India and that he is a Girasdar of C class within the meaning of S. 2 (15) read with s. 5 (l) (c) of the Saurashtra Land Reforms Act, 1951. He contends that his ancestors were holding Mulgiras lands at Khandhera and Sanala villages in the Kalawad Taluka under the old Nawanagar State. The Petitioner says that his ancestors were enjoying full proprietary rights over the aforesaid Mulgiras lands. These rights of his ancestors as full owners of the Mulgiras lands were recognised by various Hak Patraks which were issued in their favour by the Rajasthanik Court of the old Political Agency of Kathiawar.

(3.) THE Petitioner next contends that he had in his possession and of his ownership Giras lands admeasuring 37 acres and 3 gunthas at Khandhera and giras land admeasuring 19 acres and 22 gunthas at Sanala, aggregating to 56 acres and 25 gunthas. According to the Petitioner, he was enjoying full proprietary rights over these lands till the year 1948, during which year, on 15th April, the Ruler of the former Nawanagar State handed over the administration of his State to the Rajpramukh of the United State of Kathiawar. The Petitioner says that the proprietary rights of the former girasdars of Kathiawar, as they existed upon the date of the merger, were accepted and recognised by the United State of Kathiawar. According to the Petitioner, the Giras-dar-landholders were enjoying their lands by personally cultivating them or by leasing them out. The Petitioner then refers to Ordinance No. 41 of 1949 dated 8-7-1949, by which a provision was made for the reservation or allotment of Gharkhed land to the Girasdars. The Petitioner then says that on 1-9-1951, when the Saurashtra Land Reforms Act, 1951, came into force, the Girasdari system was ended and a scheme was embodied in the Act itself to provide for the payment of compensation to the Girasdars for the extinguishment of their rights as such. The Petitioner refers to an application made by him to the Mamlatdar for occupancy certificate in respect of his Gharkhed lands. An occupancy certificate was granted to him by the Mamlatdar of Kalavad. It was granted on 15-9-1954. Under the said occupancy certificate, the lands held by the Petitioner are made liable to assessment under S. 40 of the Land Reforms Act read with the third Schedule to the said Act. The Petitioner says that under S. 40 of the Land Reforms Act, he is made liable to pay land revenue to Government at the rate of four annas per acre for the first twenty-one years and thereafter he is made liable to pay full assessment for these lands. It is not disputed that the full assessment for these lands under S. 44 of the Land Reforms Act would be Rs. 83-6-7, whereas the assessment recoverable from the petitioner under S. 40 of the Act at the rate of four annas per acre would be Rs. 9-4-4. The Petitioner's grievance is that" by virtue of the enactment of the Land Reforms Act of 1951, his status as a Girasdar was put an end to and he was converted into an ordinary occupant of lands which were formerly held by him as a Mulgirasia. It is in the context of these circumstances that the Petitioner contends in para 7 of his petition that the "extinguishment" of his status and rights as a Mulgirasia was ultra vires and unconstitutional. The Petitioner says that he is not merely an occupant of his lands, but he has got full proprietary rights over his lands in his capacity as a Girasdar. That being so, says the Petitioner, he is not liable to pay any assessment to Government for these lands either under S. 44 or under S. 40 of the Land Reforms Act. The Petitioner next contends that even upon the assumption that his status as a Girasdar was lawfully extinguished and he was validly created an occupant under the Land Reforms Act, even so he cannot be made liable to pay assessment for his lands as an ordinary occupant would be. He has made this contention in this way. It is his case that the lands which are retained by him are retained by way of compensation for the deprivation of his status and privileges as a Mulgirasia by the coming into force of the Land Reforms Act. As the lands of which he is now in possession have been allowed to be retained by him by way of compensation, he cannot be saddled with a liability to pay assessment for these lands. It is in this way that he contends that even if it be held that he was validly converted into an occupant of these lands, even so the notice issued to. him to pay assessment for these lands to Government was an illegal notice.