STATE OF GUJARAT Vs. NATHIBEN HEIRS OF RABARI HARIBHAI RANCHHODBHAI DECD
LAWS(GJH)-1979-7-21
HIGH COURT OF GUJARAT
Decided on July 19,1979

STATE OF GUJARAT Appellant
VERSUS
NATHIBEN (HEIRS OF RABARI HARIBHAI RANCHHODBHAI (DECD)). Respondents

JUDGEMENT

G.T.NANAVATI, S.H.SHETH - (1.) Land beating survey No. 502 of village Vejalpur in Ahmedabad District originally belonged to the Inamdar of Vejalpur. It admeasures 156 Acres and 32 Gunthas. Respondent-1 and others have been grazing their cattle in that land. The dispute which arose between the State on one hand and respondent 1 and others on the other hand was whether the land in question had vested in the State under sec. 7 of the Bombay Personal Inams Abolition Act 1952 An enquiry was held by the City Deputy Collector who held that the land in question had not been cultivated within the meaning of sec. 7 of the said Act and had therefore vested in the State. He made that order on 27th October 1960. Respondents 1 and 2 appealed against that order to the Collector. The Collector confirmed the order and dismissed the appeal. Thereafter they challenged that order in an appeal to the Gujarat Revenue Tribunal. The Tribunal recorded the finding that the land in question had been used for grazing purposes and that therefore it could not be said to have remained uncultivated. Therefore the Tribunal held that it did not vest in the State under sec. 7 because respondents 1 and 2 have rights therein. It is that order which is challenged by the State of Gujarat in this petition.
(2.) . The first contention which has been raised before us relates to the construction of the expression all uncultivated lands (excluding lands used for building or other non-agricultural purposes) used in sec. 7 of the said Act. Explanation to sec. 7 provides:- For the purposes of this section land shall be deemed to be uncultivated if it has not been cultivated for a continuous period of three years immediately before the appointed date. In the instant case the finding which has been recorded by the Courts below is that the land in question has remained uncultivated permanently. In THE STATE OF GUJARAT V. THAKOR DOLATSINGH JIVANSINGH AIR 1979 GUJARAT 129 (20 G.L.R. 344) a Full Bench of this Court has construed the expression all uncultivated lands used in see 6 of the Bombay Taluqdari Tenure Abolition Act 1949 The scheme of sec. 6 of the Bombay Taluqdari Tenure Abolition Act 1949 and the scheme of sec. 7 of the Bombay Personal Inams Abolition Act 1952 is verbatim the same. The Explanation appended to sec 6 of the first-mentioned Act and the Explanation appended to sec. 7 of the latter-mentioned Act are also verbatim the same. It has been held by a Full Bench of this High Court in the decision above referred to that all lands which were not cultivated for three years prior to the appointed date vested in the State. It has also been held that even if a land was in possession of a tenant and was otherwise governed by sec. 5 of the Bombay Taluqdari Tenure Abolition Act it would vest in the State under sec. 7 by virtue of the fact that it had remained uncultivated for three years prior to the appointed date or for a longer period. Therefore the question which arises in this case is concluded by the decision of the Full Bench above referred to.
(3.) . However Mr. J. J. Shah has tried to argue that under sub-sec. (2) (b) of sec. 5 of the Bombay Personal Inams Abolition Act 1953 a land held by a tenant who is an inferior holder vests in him and that he becomes the occupant thereof. In light of the Full Bench decision above referred to we are unable to accede to this contention raised by Mr. J. J. Shah because on a comparative analysis of the provisions of sec. 5 and sec. 7 we find that an inam land which is in occupation of a tenant must also vest in the State under sec. 7 if it has remained uncultivated at least for three years prior to the appointed date. Sec. 7 does not make any distinction between the land held by the Inamdar himself and the land held by his tenant. Therefore if a land held by the Inamdar vests under sec. 7 in the State merely on account of the first that it had remained uncultivated for the specified period or longer there is no reason to take the view that the land held by the Inamdars tenant does not vest in the State under similar circumstances The test is not who holds the land but whether it had remained uncultivated for a period of three years prior to the appointed date. It is clear therefore. that sec. 7 in so far as it relates to vesting of all uncultivated lands in the State within the meaning of that section prevails over sec. 5(2) (b) of the Bombay Personal Inams Abolition Act 1952 Respondents 1 and 2 therefore cannot become the occupants of the land in question.;


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