Decided on June 20,1960

PA, GANDA KALA Appellant


N.M.MIABHOY - (1.)The principal question that arises on this petition lies in a narrow compass and relates to the construction of section 44(3) of the Saurashtra Land Reforms Act 951 (No. XXV of 1951) That Act as is clear from its various provisions was enacted primarily for the purpose of putting an end to the Girasdari system and to regulate the relationship between the Girasdar and their tenants to enable the latter 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. Petitioners who are 73 in number cultivated lands situated in Charkha in the Babra Taluka Madhya Saurashtra District of the State of Bombay. They were grantees from talukdars of what are knows as Chav Hak rights which put them in a status higher than that of an ordinary tenant. Respondents Nos. 2 and 3 are Girasdars of the lands cultivated by the petitioners within the meaning of the expression Girasdar in section 2(15) of the Land Reforms Act to be referred to by us as the Act. According to the petitioners they had become full and absolute owners of the land by virtue of the grant in their favour and enjoyed full and exclusive right as Chav-Hak holders in respect of the land held by them. The Act came in force in September 1951 and by operation of it all rights title and interest of the Girasdars were extinguished and became vested in the State and the tenants became occupants of the State in accordance with the provisions laid down in the Act. Section 25 of the Act provides for the acquisition of the occupancy rights by tenants on payment of the amount equal to six times the assessment in respect of land held by them subject to certain restrictions regarding Gharkhed etc. contained in Chapter IV of the Act. The petitioners being grantees of Chav-Hak rights enjoyed a status higher than that of ordinary tenants and in various provisions of the Act reference is made to the higher status of a grantee of such rights. Proviso to section 28 rules that a tenant who has acquired Chav-Hak shall acquire occupancy rights without any payment as laid down in that section.
(2.)It is the case of the petitioners that being Chav-Hak holders they applied for and obtained occupancy certificate without any payment of compensation and became direct occupants of their holdings from the State. It is also their case that as such direct occupants their rights and obligations began to be governed by the provisions of Bombay Land Revenue Code and they became liable to pay assessment only to the State.
(3.)It will be convenient to set out here the provisions of section 44 in extenso. Although the point before us is really a short one considerable argument has been advanced before us on behalf of the petitioners Girasias. Section 44 is under:-
"Assessment :- (1) For the purposes of this assessment shall mean in relation to any land until the village in which such land is situated is surveyed and settled assessment calculated on an arithmetic average of assessment leviable in the surrounding and adjoining Khalsa or Assessed non Khalsa lands or villages. (2) For the purpose of determining the assessment on any land the Mamlatdar may hold an inquiry in the prescribed manner and fix the assessment on such land and the assessment so determined shall be published in such manner as may be prescribed:- (3) Where any land is surveyed Government may by notification in the Official Gazette direct that the assessment on the area of such land as determined by such survey shall be levied at the late at which the assessment is fixed by Mamlatdar under clause (b) of sub-section (1) of section 30 from such date and in such manner as may be specified in such notification and notwithstanding anything contained in this Act the term assessment shall be construed accordingly in respect of payment of compensation to be made under section 33 after the date specified in such notification. Nothing contained in sub-section (3) or in any notification issued thereunder shall affect (a) the land allotted to a Girasdar as respects its area or (b) the land in respect of which an occupancy certificate has been issued to a tenant as respects its area Before the date specified in the notification issued under sub-section (3) (5) Where the amount of six times the assessment is paid by a tenant in respect of such land and where after survey it is found that the land in respect of such payment was actually less than that declared by the Girasdar the amount so overpaid by the tenant shall be refunded to such tenant and if it is found that such land actually more than that declared by the Girasdar then the tenant shall be liable to pay to the Girasdar the difference on account of the larger area. Provided that where the assessment so calculated is manifestly unfair the Government may modify it keeping in view the above principle."

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