Kumar Shree Digbijaysinhji v. Nanjisavdas & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 37 of 1965. Appeal from the judgment and order dated August 12, 1958 of the Bombay High Court at Rajkot (how Gujarat High Court) in specia: civil Application No. 55 of 1957. B. Sen, P. V. Hathi, K. L. Hathi and Atiqur Rehman, for the appellant. M. V. Goswami, for respondents Nos. 1, 2, 3, 6 and 7. N. S. Bindra and S. P. Nayar, for respondents Nos. 26 and 27. The Judgment of the Court was delivered by Bachawat, J, This appeal raises questions of interpretation of certain provisions of the Saurashtm Land Reforms Act 1951 (Act No. XXV of 1951 ). On June !, 1947 Narendrasinghji the then ruler of 1he Virpur State granted certain agricultural lands situate within the State to the appellant, his paternal uncle. On February 11. 1948 Narcndrasinghji and the appellant effected _an exchange under which the appellant returned the lands at Mat1ya and Guda to Narendrasinghji and in lieu thereof was gra~tcd certain lands in Kharcdi.

The lands in Kharcdi arc the sub1ectmaner of dispute in this litigation. On February 17. 1948 the grant was recorded in the "Hak Patrak' of the Virpur State. On March 8, 1948 the administration of the Virpur State was assumed by the Uniicd State of Saurashtra. The grant to the appellant was questioned by the Saurashtra Government. Thereafter at a conference called the Jamnagar Conference, ti w~s arranged between Narendrasinghji and the Government of India that the lands DIGB!JAYSINHJI v. NANJISAVDAS (Bachawat, J.) in Kharedi should be regarded as lawfully granted to the arpellant subject to the condition that the grantee would not ~v1ct the cultivators from the land. The arrangement was set out m a letter da1ed Noveniber 2, 1949 from the officer on special duty (Integration) Political Dept., to the Secretary, Revenue Departmem, United State of Saurashtra.

The Jetter stated : · "According to the Jamnagar Conference decision as this grant was an exchange, it was acceptable after verification regarding reasonableness of the exchange. It having been decided on enquiry that the exchange was reasonable, the grant is accepted subject, however, to the liability of the grantee (a) to pay 12t% as assessment (b) to see that no cultivator shall be evicted from the land . . . . The grantee K. S. Digvijaysinghji may kindly be informed of this assessment charge and the other contents of this letter and may be put in possession of the land and allowed to be retained by him subject to the liabilities specified in this Jetter." Though the appellant was not a party to the arrangement, he was· aware of and accepted the arrangement and the condition upon which his grant was confirmed by the Government of India.

Had" he not accepted those conditions, it was likely that the government would have resumed the grant under the Saurashtra Land Resumption Ordinance No. 84 of 1949 which came into force on January 13, 1950. The Saurashtra Land Reforms Act came into force on September 1, 1951. On January 29, 1954 the Government of Saurashtra issued a notification under sec. 15 (2) of the· Act declaring the appellant to be a Girasdar for purposes of the Act subject to the provisions of sec. 18 thereof. By a notification dated July 20, 1954 the Saurashtra Government clarified the earlier notificatio1n stating that the appellant was a Girasdar subject to the provisions of sec. 18 of the Act, i.e., the condition imposed by the government at the time of his recognition that he cannot evict the tenants. In the meantime the apPellant had applied to the Mamlatdar, Kalawad, for an order of allotment of land for personal cultivation under sec. 18 of the Act.

The application was resisted by the tenants who are the respondents in this appeal. The tenants claimed that they had "chav" rights and that in any event the appellant was not entitled to eject them. Tue Mamlatdar allowed the application and allotted to the appellant lands out of the holding of four tenants. An appeal from his order was dismissed by the Deputy Collector, Eastern Division, Halar. On a revision application filed by the tenants the Bombay Revenue Tribunal set aside these orders and dismissed the application filed under sec. 19. All the tribunals concurrently found that the tenants did not hold "chav" rights. The Mamlatdar aJlowed the application under sec. 19 on the ground that the [ 1969] I S.C.R. conditions imposed upon the appellant before the passing of the Act did not debar him from taking the henetils under the Act.

The Deputy Collector affirmed this order on the ground that by obtaining the order of allotment of lands for personal cultivation the appellant was not seeking to evict tenants by exercising his rights as a landlord. The Tribunal disagreed with the views of the Mamlatdar and the Deputy Collector and observed that a; ·ihc appellant was aware of and accepted the conditions imposed by the arrangement incorporated in lhe letter dated Novc1ubcr 2. 1.949, he was bound by them and his rights in the lard were limited by the condition that he could not evict the tenants. The Tribunal held that the tenants were entitled to lake ;1dvantage of the conditions under sec. 18 of the Act and the application under sec. 19 was therefore not maintainable The appellant then applied to the High Couri of Ho111bay at Rajkot under Art. 227 of the Constitution challenging the correctness of the order of the Revenue Tribunal. The High Court di:imissed the application.

It held that the conditions incorporated in the letter of November 2, 1949 having been accepted by the appellant enured for the benefit of the tenants under sec. 18 of the Act. It also held that the ri~hts of the appellant as Girasdar were restricted by the notification under sec. 2 ( 15) of the Act declaring him to be a "Girasdas" and the appellant \\>as bound by those restrictions. The present appeal has been preferred by the appellant under a certificate granted by the High Court. It is not disputed that the Government of India had the power to impose upon the appellant the conditions incorporated in the letter dated November 2, 1949 and that the· appellant is bound by them. The government could refuse to recognise the grant made to the appellant by the ruler of ·the Virpur State and to annul the grant. Had the government annulled the grant, the annulment would have been an Act of State and could not he questioned before the municipal tribunals [see Srate of Sa11raslrtra v. Jamadar Mohamad A bd11//a( 1 ) ].

Instead of annulling the grant the government elected to confirn1 it subject lo the conditions incorporated in the Jetter dated November 2, 1949. The appellant accepted the _grant subject to those conditions and is bound by them. The question is whether in spite of the conditions incorporated in the Jetter dated November 2, 1949 the appellant is entitled to allotment of land under sec. 19 of the Saurashtra I .and Reforms Act 195 I. The Act was passed for the improvement of land revenue administration and for ultimately putting an end to the Girasdari system. It makes provisions to regula1e the relation- ·ship between the Girasdars and their tenants, to enable the latter ii) [1062) J S.C.R. 970. DIGBIJAYSINHJI v. NANJISAVDAS (Bachawat, !.) to become occupants of the land held by them and to provide for the payment of compensation to the Girasdars for the extinguishment of their rights.

Girasdar means any talukdar, bhagdar, bhayat, cadet or mul-girasia and includes any person whom the government may by notification in the official gazette declare t_o be a .Girasdar for the purposes of the Act, [s. 2(15)]. It JS common case that the appellant is a Girasdar by virtne of the notification of the Saurashtra Government declaring him to be a Girasdar. The Act overrides other laws. Save as otherwise provided in the Act, its provisions have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority, ( s. 3). Chapter III regulates the relationship of Girasdar with their tenants. Subject to certain exceptions any person who is lawfully cultivating any land belonging to a Girasdar is for the purposes of the Act deemed to be the tenant, ( s. 6).

Sections 6 to 17 confer on the tenants certain benefits, privileges and immunities in respect of rent, cess, rate, hak, tax, service, termination of tenancy and eviction from dwelling houses. Particularly s. 12 provides tha!l no tenancy can be terminated except in accordance with the provisions of Chapter IV or except on certain specified grounds. Section 18 provides :- "Nothing contained in this Act sha]] be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever." Section 18 shows that the Act is intended to confer on the tenant rights and privileges which he does not otherwise enjoy or possess under any usage or law in force or any contract, grant, decree or order of a court or arising in any other way. If the tenant has any right or privilege apart from the provisions of the Act, he needs no protection under the Act.

He can claim protection under his existing rights and privileges. His existing rights and privileges are not limited or abridged by anything in the Act. The con.ditons incorporated in the letter dated November 2, 1949 were mtended for the benefit of the tenants. The tenants can claim the benefit of the condition that the appellant would not evict them. The condition is annexed to the grant to the appellant. The right or privilege of the tenant arising out of this condition is a right or privilege arising out of a grant within the meaning of sec. 18. Tht expression "grant" in sec. 18 is wide enough to take within its sweep a grant by the government to the Girasdar and is not limited to a grant by the Girasdar to the tenant. SL"PREM E CO CRT REPORTS 11969] I S.C.R. The next question is whether the rights and privileges of the tenant arising om of the conditions incorporated in the Jetter dated Novcmher 2, 1949 is limited or abridged by an order fo: allotment of land to the appe!Iant under sec.

19 for persona: .culiivation. Chapter IV enables Girasdars to obtain allotment of land for personal cultivation. Any Girasdar may file an application for such allotment before the Mamlatdar under sec. 19 within a certain time. On making the necessary enquiries the Mamlatdar may pass an order making an allotment of land to lhe Girasdar, [s. 20(2)). After making the order the Mam!atdar has to issue an occupancy certificate to the Girasdar in respect of the deed. [s. 2013)). :-lo Girasdar can obtain possession of any land held by a tenant except in accordance with such order, [s. 20( 4) ]. Nothing contained in Chapter IV applies to any land in respect of which a tenant has acquired chav or buta hak, (s. 27). Cnder s. 39 the Girasdar may obtain an occupancy certificate in respect of land allotted to him under Chapter IV. Section 50 ( 2) provides for execution of orders of the Mamlatdar awarding possession. Chapter V provides for acquisition of occupancy rights by tenants.

Having regard to sec. 30( I) and the proviso to sec. 32(b) the acquisition of occupancy rights by tenants is subject to an order of allotment to the Girasdar under Chapter IV and any occupancy certificate issued to a tenant ceases to be effective as soon as any agricultural land or any portion thereof is allotted to a Girasdar under Chapter IV either before or after the date on which the occupancy certificate issued to the 1cnant has become effective. On the strength of the order of allotment of land for personal cultivation under sec. 20(2) the Girasdar is entitled to evict the tenants from 1he land allotted to him. When the Girasdar applies 1mder sec. 19 for allotment of land for personal cultivation. he seeks to evict the tenants from the land. Therefore when the appellant filed his application under sec. 19 he sought an order which would enable him to evict the tenants in contravention of the condition o[ his grant that he would not evict the tenants. In view of sec.

I 8 nothing in Chapter IV enables him to obtain an order limiting or abridging the rights and privileges of the tenants arising under the condition. The Mamlatdar could not under sec. io pass an order which would have the effect of limiting or abridging those rights and privileges. The appellant had no right to evict the tenan1s and the Mamlatdar could not pa% an order which would enable the appellant to evict them. The application filed by the appellant under sec. 19 was therefore incompetent. 1be appel!ant as a Girasdar was subject to the provisions of sec. I 8. The declaration in the notification dated January 29, 1954 that he was suhject to the provisions of sec. 18 stated what followed from the express provisions of the Act. Because of sec. DIGBIJAY SINHJI v. NANJISAVDAS (Bachawat, J.) 18, the appellant was subject to the conditions imposed by the Government at the time of his recognition that he cannot eviot the tenants.

The notification dated July 20, 1954 declared the existing disability of the appellant in respect of eviction of tenants. The application filed by the appellant under sec. 19 was right!~' dismissed by the Revenue Tribunal and the High Court rightly refused to interfere with this decision under Art. 227 of the Constitution. The appeal is dismissed with costs. G.C. Appeal dismissed .