Decided on April 04,1966



A.S.SARELA - (1.) The short question arising for determination in this second appeal is whether the plaintiff-respondent was liable to be assessed for non-Gharkhed in his holding at the rate of 121/2% of the total assessment of those lands. The plaintiff's case was that he was not so liable. The contention of the State-defendant was that he was so liable at that rate. Both the lower courts have found in favour of the plaintiff-respondent. The defendant-State has come in appeal.
(2.) The facts bearing on this question are few and are not in dispute. The plaintiffs-respondent was the holder of what is known as Dhank Jagir which was a Jagir under the Gondal State. That State integrated with State of Saurashtra and became part of the territory of the State of Saurashtra. The State of Saurashtra after it was formed immediately undertook a number of legislative measures for agrarian reform and one of such measures was the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance 1949 popularly known as Gharkhed Ordinance (hereinafter to be referred to as the Ordinance). In that Ordinance the lands held by the land holders are dealt with under two broad heads namely Gharkhed and non-Gharkhed. Both these classes of land are made liable under sec. 22 of the Ordinance for payment of land revenue. sec. 21 of the Ordinance which calls for construction in this appeal lays down the extent of that liability for land revenue. It reads as under:- 21 Assessment over land In any estate to which this Ordinance applies land revenue payable shall be the aggregate of the assessment computed in the following manner:- (a) in respect of Gharkhed land if any at the rate of four annas per acre of such land; (b) in respect of non-Gharkhed land 121 of the total assessment thereof. The assessment on non-Gharkhed land shall be determined in accordance with the rules made by Government from time to time. The defendant-State sought to assess the plaintiffs holding at 121/2% under clause (b) of sec. 21 in respect of certain lands in that holding on the footing that they were non-Gharkhed land. The plaintiff disputed that liability. The lower appellate court has held mainly relying on a decision of the Saurashtra High Court to which reference will be made presently that till the Gharkhed lands are allotted to the plaintiff under the provisions of the Ordinance no such liability under clause (b) of sec. 21 can arise. The lower appellate court gave the plaintiff a declaration in the following terms:- The decree of the trial court is confirmed subject to the modification that the plaintiffs lands would not be liable to assessment under clause (b) of sec. 21 of the Ordinance No. 41 of 1949 till such time as Gharkhed lands are allotted to him or till the Ordinance continued in force whichever is earlier and that the defendant would be restrained from so recovering thereunder. His right to challenge his liability under the Act 25 of 1951 shall however remain open. The ground of the lower appellate courts decision is that there can be no non-Gharkhed which is the expression used in clause (b) of sec. 21 till after the Gharkhed is determined and allotted to the land holder because any land in the holding is liable to be allotted as Gharkhed and as in this case no allotment had been done no particular land in the holding can be held to be liable to assessment under clause (b) as non-Gharkhed for it may well happen that in the final allotment it may be treated as Gharkhed in which case its liability would be under clause (b) which is much less. Reliance was placed by the learned Judge on the following passage from the unreported judgment of the Saurashtra High Court in Civil Miscellaneous Application No. 30 of 1951 (Patel Bhikha Moolji v. D. S. Champraj Vala and another) decided on 11th October 1951. Their Lordships were construing sec. 18 of the Ordinance and they said:- Gharkhed land is defined by sec. 2(h) of the Ordinance as land reserved by a landholder for cultivating it personally whilst sec. 16 says that all lands other than Gharkhed land shall be considered as non-Gharkhed land. This means that before any land can be considered as non-Gharkhed land under the Ordinance it must be shown that it is other than Gharkhed land i. e. until the landlord is allotted his full quota of Gharkhed land. Only after this is done that the landlord is finally debarred from claiming any portion of the remaining land of Gharkhed and only such remaining land can be properly considered as other than Gharkhed land. Until this is done every portion of the land on his estate continues to be liable to be claimed as Gharkhed land and how can land which continues to be so liable by him be definitely regarded as other than Gharkhed land. The condition for coming into existence of non-Gharkhed land is thus setting apart in the first instance the full quota of Gharkhed land for the landlord. As the opponent No. 1 has not been allotted Gharkhed land for no default of his own no portion of the land in his estate can be termed as non-Gharkhed land and therefore sec. 18(1) cannot apply to it. The learned Assistant Government Pleader argues that the decision of the Saurashtra High Court does not apply firstly because it relates to sec. 18 of the Ordinance and secondly because here the question of allotment of Gharkhed land is not shown to have arisen because there is nothing to show that the landlord made any reservation for Gharkhed.
(3.) To appreciate the real point in controversy it is necessary to look at the relevant provisions of the Ordinance. The first Chapter is preliminary and contains definitions. Clause (h) of sec. 2 defines Gharkhed as under:- Gharkhed means land reserved by a landholder for cultivating personally; provided that the land shall continue to be Gharkhed land even if a landholder allows the same to be cultivated by the tenant cultivating the land on 1st January 1948 It is clear from the definition that for any land to be Gharkhed it shall be reserved by a land holder for cultivating personally. The question then is how is the reservation to be made. This appears to have been provided for in Chapter II which contains general provisions regarding Gharkhed land. Sec. 5 mentions the different land holders who are entitled to reserve land for Gharkhed. Sec. 8 lays down the extent of the land from his holding which the holder can reserve for himself for cultivation. There is a ratio laid down of the total of the land in his holding. Sec. 6 which is material provides for the manner in which reservation is to be made. Sub-sec. (1) of that section which is relevant reads as under:- (1). Every land-holder who under sec. 5 is entitled to Gharkhed land may terminate the tenancy of his tenant by giving him one years notice in writing stating therein that the land-holder bona fide requires the land for cultivating the same personally. Therefore reservation is to be made by giving one years notice to the tenant in occupation stating that the land-holder requires the land for his personal cultivation. On receipt of such notice the tenant may hand over the land in respect of which the notice is given in which case nothing further remains to be done so long as the reservation dose not exceed the limits laid down under sec. 8. But if the tenant does not hand over the land then sec. 7 provides for the procedure for taking possession of the land covered by the notice. Sub-sec. (1) of sec. 7 which is material reads as under:- (1) On the expiry of period of such notice if a tenant fails to hand over possession of the land tenancy of which is terminated under sec. 6 to his landholder the landholder may apply to the Mamlatdar within the limits of whose jurisdiction his estate or major portion of his estate is situated for the settlements of his Gharkhed land. The other sub-sections of that section relate to the details of the inquiry to be held by the Mamlatdar on such application and also provide for the contents of the order of settlement of Gharkhed land to be passed by of the Mamlatdar. It is not necessary to refer to the other provisions of this Chapter for the purposes of this case. ;

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