VORA SAIYEDBHAI KADARBHAI A PARTNERSHIP FIRM Vs. SAIYED INTAJAM HUSSEN SEDUMIYA

JUDGEMENT

(1.) This petition raises a number of questions of law of wide importance under The Gujarat Rural Debtors Relief Act 1976 which came into force on 15/08/1976. The Act wiped off the debts of certain categories of debtors and scaled those of certain other categories Respondents Nos. 1 and 2 claimed to be marginal farmers or small farmers within the meaning of those expressions assigned to them under the Act and applied to the Debt Settlement Officer for extinguishment of the debt which they owed to the petitioner. It is alleged that respondents Nos. 1 and 2 sold off survey No. 368 on 12/08/1977- that is to say after the Act came into force. On 14/12/1978 the Debt Settlement Officer held that respondents Nos. 1 and 2 were small farmers on the appointed day within the meaning of that expression assigned to it under the Act and therefore were debtors within the meaning of the Act. After having considered the merits of the case he declared that the entire debt which respondents Nos. 1 and 2 owed to the petitioner was extinguished. As a consequence of the declaration which he made he ordered the petitioner to deliver possession of the land which was mort- gaged by respondents Nos. 1 and 2 to the petitioner. It is not in dispute that the land which was mortgaged by respondents Nos. 1 and 2 to the petitioner was under agreement between the parties built upon by the petitioner. The question arose as to what would happen to the building which the petitioner has constructed upon the land in question. The Debt Settlement Officer directed the petitioner to apply to the Civil Court for compensation if it was permissible for him to do so.

(2.) The petitioner appealed to the Appellate Authority against that order. On 19/07/1979 the Appellate Officer dismissed the appeal. It is that order which is challenged in this writ petition.

(3.) Mr. N. R. Oza who appears on behalf of the petitioner has raised before us several contentions. They are as follows (1) The Act enacted by the President in pursuance of the power conferred upon him under the Gujarat State Legislature (Delega- tion of Powers) Act 1976 was beyond the legislative competence of the State Legislature. (2) At the time when the impugned Act was enacted by the Presi- dent the State of Gujarat was under Presidents Rule and the President could not have enacted the impugned Act without con- sulting the Consultative Committee of Parliament. Inasmuch as the President did not do so the impugned Act was not a valid piece of legislation. (3)Sec. 14 of the impugned Act is violative of Arts. 19(1)(f) 19 (g) and 31 of the Constitution and is not saved by the Forty Second Amendment. In case it is held that Forty Second Amend- ment saves it Forty Second Amendment itself is ultra vires Art. 368 of the Constitution. (4) Sec. 14 is not protected by Forty-fourth Amendment. If it is held that it is saved by 44th Amendment. Forty-fourth Amendment is ultra vires Art. 368. (5) Sec. 14 in any case violates Art. 300A. (6) Sec. 14 upon its true interpretation is confined to properties which are agricultural lards and does not extend to the other types of immovable properties. (7) Neither on the date when respondents Nos. 1 and 2 made an application for adjustment of their debts nor on date of the decision of the Debt Settlement Officer respondents No. 1 and 2 were marginal farmers or small farmers. Therefore their application was not maintainable. (8) The transaction between the petitioner and respondents No. 1 and 2 by virtue of which respondents No. 1 and 2 became peti- tioners debtors was a transaction of usufructuary mortgage. Therefore respondents No. 1 and 2 had no personal liability to pay the debt. Therefore they were not debtors within the mea- ning of that expression given in the Act. (9) The land in question was not situated in a rural area. There- fore the impugned Act did not apply to it.