Decided on September 08,1983



Bhatt, J. - (1.) All these petitions by different citizens but against the common respondents, namely, the State of Guiarat and the concerned officers of the State essentially raise a common question of law regarding the vires of S. 69A(1) of the Land Revenue Code which had come to be introduced into the said Code by the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gtijaral Amendment) Act, 1982, wlii,,h \vas the successor of the Bombay Lind Revenue Code and Land Tenure Abolition (Gujarat Amendment) Ordinance, 1981. In all these petitions the substantive prayer and, if we say so, the, main prayer is striking down of these provisions and the other reliefs that are sought in these petitions are flowing from the said main prayer. The other prayers are pertaining to the requisitions by the Revenue Officers calling upon these petitioners to hand-over the mines and minerals in question or stop conducting mining operations therein, etc.
(2.) In order to understand the confror versies, a few facts are required to he stated which take us into the history of erstwhile State of Saurashtra which had come to be formed in the year 1949 or thereabout. It is well known that Saurashtra region was having the largest number of princely States and these princely Slates, sovereign in a sense under the suzerainty of the British Empire had created a class of interested people known a "Girasdars" or "Barkhalidars". Various parcels of land together with all rights to or in those lands had conic lo be devolved by those Rulers in favour 4 their cadets or relations or favouriles who were popularly known as ' "Gir isdars" or "Barkhalidars". The term "Barkhalidar" has got its historical meaning The lands that were under the direct control of the respective ruler were of course with agriculturists, but all those agriculturists had to bring all their prcr duce at the fixed place known as "khal," or a threshing floor. After the respective ruler or his agent took stock of' the total produce, his share defined as per the local laws or customs of that particular State was to be then taken out and remainder used to go to the concerned the agriculturist. So, these lands the produce of which was required to be stored in the first instance in those threshing floors were known as "khali lands". The lands which were given away by the rulers to their cadets and others were required to be treated separately. The produce in those granted lands was not required to be brought into those "Khalis" or threshing floors and, therefore, all those lands were popularly known as "Barkhalil, meaning thereby the lands out of the operation of the "Khali" (Vernacular ornitted-Ed.) and the holders of such lands the produce of which was not required to be collerted atid ascertained in those threshing floors were known as "Barkhalidars". The "Girasdars" meaning the cadets or agnates of the rulers also in the above sense were "Barkhalidars" and the United States of Saurashtra having brought into being obviously this anachronistic land tenure scheme was required to be done away with and the and the progressive State of Saurashtra tried to achieve this by striking, golden halance. Various pieces of laws made and one of them was 'the Saurashtra Estates Acquisition Act, 1952, being Saurashtra State Act No. 3 of 1952. Section 3 of ihe said Act provides State Government from time to tiem by a Notification in the Official Gazette, may declare that with effect from such date as may be specified in the notification, all the rights, title and interest of Girasdars or Barkhalidars in respect of any estate or part of ar estate comprised in the notification, Case and be vested in the State Goveriiment and all the incidents of ihe said tenures attachinq to any land comprised in such eslate or part thereof shall be doemed to have been extinguished. The provisions of this Act of Saurashtra State materially differ from the similar provisions of the Taluqdari Tenure Aboli,ion Act of the Bombay State, being tho Act No. 52 of 1949 and other Bonr bay Acts like the Personal Enam. Abolitio n Act, 1952 and the Bombay Merged Territory Areas (Jagirs Abolition) Act, 1953. The Bombay Acts provided that with effect from the date on which the TCsPective Acts came into force those tenures automatically stood abolished and all the incidents of such tenures attaching, to any land comprised in those estates stood by operation of the statute If extinguished. In the Saurashtra Act, however, may be for some historical reasons, there was no forthright or forth with Pxtinction of all rights, title and in'torest of all "Girasdars" or Barkhalidars, occupying the estates. On the other hand power was conferred on the State Covernmejit to select time and to select estates or parts thereof for the purpose of applying exproprietarv provisions of the Aclause Section 3 (1) of the Saurashtra Act is reproduced below, because some of the arguments that were advanced before us in the course of the hearing go to refer to it. "3. (1) The Government may, from time to time, by notification in the Official Gazette, declare that with effect from such date as may be specified in the notification, all the rights, title and interest of Girasdars or arkhalidars shall, in respect of any estate or part of an estate comprised in the notification, case with be vested in the (State of Gujarat) and all the incidents of the saul tenures attaching to any land comprised in such estate or part thereof shall be deemed to have been extinguished." Section 4 of the said Act then provides 'for the consequences of abolition of Girasdari or Barkhali in any estate and that is also reproduced herein below :- "4.When a notification is issued by the Gevernment in respect of an estate or any part thereof under S. 3, then, with effect from the date specified in the notification, the following consequences, shall in respect of that estate or ,part thereof, ensue, namely:- a) (i) all public road, land, paths, bridges, ditches, dikes and fences on, or beside the same, the bed of the sea and ' " harbours, creeks below high water mark, and of rivers, streams, nalas, lakes public wells and tanks, all bunds and palas, standing and flowing water gauchars. (ii) all cultivable and uncultivable waste lands (excluding land used ior building or other non agricultural purposes); (iii) all bid lands; iv) all unbuilt village site lands and village site lands on which dwelling houses of artisans and landless labourer are situated, and (v) all schools, dharmashalas, village choras, public temples and such other public buildings or structures as may be specified in the notification together with the sites on which such buildings and strwtures stand, which are comprised in the estates so notified shall, except in so far as any rights of any person other than the Girasdar or the Barkhalidar may be established in and over the same, and except as may otherwise be provided by any law, for the time being in force, vest in, and shall be deemed lo be, with all rights in or over the same or appertaining thereto, the property of the (Sate of Gujarat) and all rights held by a Girasdar or a Barkhalidar in such property shall be deemed to have been extinguisbed, and it shall be lawful forthe Collector, subject to the general or special orders of the (Collector), to deems, fit, subject way and of other dispose of them as he always to,the rights of r,jlhts Of the public Or Of individuals legally subsisting. (b) a Girasdar or 4 Barkhalidar shall, subject to the 1)::ovisions of this Act, be deemed to be an occupant in respect -)f all other land held by him." The combined effect of Ss. 3 and 4 of tb-e Act is that it was left,to the Government concerned. to pick and choose on administrative grounds, the various parts or whole of the estates of the Girasdars or Barkhaliclars for the purpose of application of the Act by issuance a Notification in the Official Gazette, and its effects, thouch not required to be specifically notified, were in fact notified by the State of Saurasatra in those day Our attention was invited by Mr. S. M, Shah to one of such Notifications beLlig No. RD/4/2541 dated 2nd Sept. 1954 occuring at page 1590 of Part-V of the Saurashtra Government Gazetle. The said Notification is reproduced herkn below as a specimen. 'Sub:- Acquisition of uncultivable waste land in Saurashtra. Rajkot, 2nd Sept. 1954. No. RD/IV/`2541.- Whereas it is necessary to acquire all uncultivable -waste land held by trasdars/Barkhalidars in Saurashtra; Now, therefore, in exercise of the poviers conferred by S. 3 of the Saurashtra Estate Acquisition Act; 1952 (111 of 1952'), Government is pleased to declare that with effect from the date of this Notification all the rights, title and interest of all Girasdars/Barkhalidars in Saurashtra in respect of the uncultivable waste land held by them, being part of the estate held by these Girasdars Barkhalidars shall cease and be vested in the state tale and that all the incidents, of the said tenures attachina to such lands shall be deemed to have been extinguished. By order and in the name of the Rai Pramukh of Saurashtra, BANESINHJI, Secretary to the Government' of Saurashtra, Revenue Deptt., It is because of the language of the Notification that we say that the Government, of Saurashtra used to adopt one or other kinds of properties enumerated in sub-cls. (i) to (v) of clause (a) of . S. 4 of the Saurashtra Act for applying rigorcus provisions of S. 3 (1) of the said Act. We 'are told that for different kinds of properties enumerated in sub-cis. (i) to (v) Of clause (a) of S. 4 of the said Act different notifications had come to be issued. If all pervading notifications, general in character, in respect of all the properties would come to be issued under S. 3 (1), the properties other than those enumerated in sub-cis, (i) to (v) of clause (a) of S. 4 were to remain with the Girasdars or the Barkhalidars as occupants as per clause (b) of S. 4. The question is: What would happen. if the, Government of Saurashtra did not issue a general notification in respect of the entire or whole estate of a Girasdar or a Barkhalidar, but issued a notification only with resspect to properties mentioned in subcls. (1) to (v) of clause (a) of S. 4 of the said Act'? The obvious effect would be that the cl, (b) will not be attracted and the remainder. of the properites in the estate will continue to be the property of the Girasdar or the Barkhalidars is such,This inevitable inference is referred to by us because at some later stage an argument based on it is required to be examined by us.
(3.) Now it so happened that the authorities of the Gujarat Government did not properly comprehend the effect of the provisions of Ss. 3 and 4 of the Saurashtra Estate Acquisition Act, 1952 referred to hereinabove. The former Courts had recognised and declared the rights of various Girasdars and Barkhalidars to the mines and minerals in the bhayati i. e. Barkhali lands. Still, the officers of the respondent-State disputed , those rights and so, the matter, had come to this Court in the year 1965. The case of Girasdars like the petitioners in the Special Civil Application No. 689 of 1965 between Temubha RhodLvbha Gohil v.Chhaganlal K. Dave was decided on 14-8-1969' by J. B. Mehta J. In that case ,it was held specifically by 'special reference to the provisions of this Act and the notifications under Ss. 3 and 4 of the Act that the, notification was confiied to only-uncultivable waste land vesting the State and that the lands with mines and minerals could not be 'said to be umcultivable, waste lands.. The result,was that the learned single Judge clerly held the quarries which were used, by the petitioners of that petition on tqe relevanj date for non-agricuttural purposes could never be waste lands and on that basis both the impugned orders must be quashed. This judgment of the learned single Judge had come to be confirmed bv the Division Bench consisting of Justice P. N. Bhagwati, the then Chief justice and P. D. Desai, J., the then Pusne Judge, by dismissing the Letters Patent Appeal No. 73 of 1970 summarily by their Order dt. 15-3-1971. It is, therefore, too late in the day now to say that all these petitioners were not entitled to the mines and minerals in the various lands wh;ch were certainly not Uncultivabte waste lands nor were they cultivable lands.;

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