Decided on October 28,1983

STATE Respondents


R.J.SHAH, B.K.MEHTA - (1.) Thakore Advocate General with Arvind J. Patel Assistant Government Pleader instructed by D. G. Karia for M/s. Purnanand & Company for the Respondents in all the Special Civil Applications. B. K. MEHTA J. By this group of petitions the petitioners challenge the validity of the Gujarat Land Revenue (Amendment) Rules 1977 enacted by the State Government by the Government Notification of 24/04/1978 under sec. 214 of the Bombay Land Revenue Code with effect from September 1 1976 The petitioners also challenge the Bombay Land Revenue (Gujarat Amendment and Validation) Act 1981 by which it inter alia sought to amend sec. 214 of the Bombay Land Revenue Code (hereinafter referred to as the Code) so as to empower the State Government to make rules retrospectively and purporting to validate the Amendment Rules so far as they levied non-agricultural assessment retrospectively
(2.) Since the Validation Act the Amendment Rules and the consequent levy as aforesaid have been impugned on almost identical grounds in this group of petitions except Special Civil Applications Nos. 2249 and 1786/81) which are to be disposed of by separate orders we propose to set out the relevant facts broadly by way of model facts from Special Civil Application No. 583 of 1978 and consider and decide the question raised by this common judgment.
(3.) Petitioner No. 1 of Special Civil Application No. 583 of 1978 is a public limited company registered under the Companies Act inter alia for purposes of business of manufacturing textile goods. Petitioner No. 2 is a shareholder of the said Company. The Petitioner -company holds a large parcel of land admeasuring about 2 0 0 sq. meters comprising of as many as 30 different survey numbers situated in Asarwa within the Municipal limits of the Ahmedabad Municipal Corporation. Prior to 1/08/1976 these lands were assessed for purposes of land revenue as Lands used for non agricultural purposes at the rate of 0-02 paise per sq. metre under Rule 8(2) of the Gujarat Land Revenue Rules 1972 (hereinafter referred to as the Old Rules) as was in force at the relevant time. The petitioner-company was paying total land revenue in the sum of Rs. 5853-23 Ps. for non-agricultural use of the aforesaid lands. In addition to the land revenue the petitioner-company was also paying local fund cess and education cess being 50% each of the total amount of the land revenue as aforesaid. It appears that the State Government in exercise of its rule making power under sec. 214 of the Code amended some of the provisions of the Old Rules pertaining to levy of non-agricultural assessment retrospectively that is with effect from 1/09/1976 Since sec. 214 of the Code required prior publication of the Rules the State Government published a draft notification dated 21/07/1976 in the State Government Gazette (Extraordinary) on 22/07/1976 inviting objections and suggestions to the proposed amendments from persons likely to be affected thereby on or before 30/07/1976 We will deal with the precise nature of the proposal at the appropriate time. Suffice it to say for the present purposes that by the proposed amendment the State Government sought to empower the Collector for purposes of determining generally the rate of non-agricultural assessment leviable from time to time to divide the villages towns and cities into different classes having regard to the population and then to fix the non-agricultural assessment at different rates specified having regard to the nature of the use namely residential industrial commercial and other uses of the lands in question in these classes. As no objections were received by the State Government to the preliminary notification the final notification dated 31/07/1976 was published and accordingly the Gujarat Land Revenue (Second Amendment) Rules 1976 (hereinafter described as the Amendment Rules 1976 came into effect retrospectively i.e. from 1/08/1976 As the time for filing the objections against the aforesaid preliminary notification was too short some of the textile mills and others who were prejudicially affected thereby challenged the Amendment Rules of 1976 in this Court by petitions being Special Civil Applications Nos. 209 to 219 and 254 of 1977 inter alia on the ground that the persons affected had no sufficient opportunity of making representation as required under sec. 24 of the Bombay General Clauses Act. On the Counsel for the State Government stating before this Court that the Government would not assess the landowners at the new rates for purposes of non-agricultural assessment and that the Government would consider the objections and suggestions received upto 15/04/1977 in respect of the preliminary Notification of 21/07/1976 from the affected persons notwithstanding the fact that the time limit stipulated originally was 31/07/1976 the petitioners of those special civil applications agreed to withdraw the petitions without prejudice to their right to challenge the retrospective or prospective operation of the new rates. In view of this consensus the Division Bench of this Court consisting of J. B. Mehta Acting C. J. and D. A. Desai J. (as they then were) by its order of 11/03/1977 granted permission to withdraw the said petitions to enable the petitioners to avail of fresh opportunity to file their objections in time. Pursuant to the aforesaid order of this Court the State Government published on 28/06/1977 a Notification cancelling the final Notification of 31/07/1976 but keeping alive the draft Notification dated 21/07/1976 and invited fresh objections and suggestions from the persons affected against the said preliminary Notification. Inadvertently however even in this Notification of 28/06/1977 the time specified to file objections and suggestions was 7/07/1977 and therefore a corrigendum was issued on 5/07/1977 by the State Government for filing objections and suggestions by 27/07/1977 instead of 7/07/1977. It is claimed by the petitioners that pursuant to this Notification of 28/06/1977 thousand of persons filed their objections before the State Government on various grounds praying intea alia for personal hearing in the matter. The State Government however on consideration of these objections but without granting any personal hearing to any or all of the affected persons finalised the proposed amendment and made rules known as the Gujarat Land Revenue (Amendment) Rules 1977 (hereinafter described as the impugned Rules) amending the Old Rules of 1972 and published the same in the Government Gazette of 24/01/1978 by the Notification of the even date (hereinafter described as the impugned Notification). The impugned Rules have been made effective retrospectively i. e. with effect from 1/09/1976 The State Government promulgated Gujarat Ordinance No. 20 of 1980 on 10/12/1980 seeking to amend sec. 214 of the Code so as to authorise the State Government to make Rules retrospectively and validating rules already made under sec. 214 of the Code before the commencement of the Ordinance as if they had always been validly made in accordance with law and as if the principal Act had been in force as amended by the Ordinance at all material times when such rules were made and anything done or any action or proceeding taken under such rules shall not be called into question in any Court of Law or before any other officer or the authority on the ground that it was made without any power in that behalf under sec. 214 of the Code. The said Ordinance was succeeded by Gujarat Act No. 2 of 1981 known as the Bombay Land Revenue (Gujarat Amendment and Validation) Act 1981 (hereinafter described as the impugned Validation Act) and the same was put on the statute book with effect from 24/02/1981 to achieve the same purpose. The net effect of these Rules is so far as the petitioner-company is concerned that it is liable to pay non-agricultural assessment at the rate of Rs.0-10 paise per sq. metre instead of Rs. 0-02 paise per sq. metre with the result that the aggregate amount of land revenue which the petitioner-company would be required to pay would be Rs. 20 452 paise and consequently the same amount by way of local fund cess and education cess at the rate of 50% each of the aggregate of the land revenue. The total liability according to the petitioner-company has thus increased by about 500%. The petitioners have therefore moved this Court for appropriate writs orders and directions declaring that the impugned rules are arbitrary unjust and ultra vires sec. 214 of the Code and bad in law and void inasmuch as they are violative of principles of natural justice and Arts. 14 19 31 and 265 of the Constitution of India and also for declaring that the Validation Act 1981 is also bad in law and void inasmuch as it is violative of Article 19 (1)(g) 245 265 and 300-A of the Constitution of India and consequently restraining the State Government from raising any demand or recovering the land revenue under the impugned Rules.;

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