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Jilubhai Nanbhai Khachar, Etc. vs State Of Gujarat And Another, Etc. on 20 July, 1994

Jilubhai Nanbhai Khachar, Etc. vs State Of Gujarat And Another, Etc. on 20 July, 1994
Equivalent citations: AIR 1995 SC 142, JT 1994 (4) SC 473, 1994 (3) SCALE 389
Author: K Ramaswamy
Bench: K Ramaswamy, N Venkatachala

ORDER

K. Ramaswamy, J.

1. These five appeals raise four-pronged attack on the Constitutionality of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act 8 of 1982 (for short “the Amendment Act”). Though unsuccessful in the High Court of Gujarat in Special Civil Application Nos. 1118 of 1982 and batch by judgment of the Division Bench dated 7/8 September, 1983 and followed in Special Civil Application No. 763/82 dated September 16, 1988 the appellants had leave of this Court. A short shift of the antecedent history of land tenures in Saurashtra region of the State of Gujarat is necessary to focus the focal points posed for decision, by common judgment. The appellants are successors of Barkhalidars and Girasdars. The erstwhile Saurashtra State consisted of 220 princely states rules by sovereign Rulers in their own rights. The lands in these appeals form present parts of Surendra Nagar and Bhavnagar districts. In the State of Saurashtra, the Rulers entered into agreements with Taluqadar and estate holders and also created a class of interested people known as “Barkhalidars or Girasdars. Various parcels of lands together with all rights in or interest over those lands were granted for cultivation on payment of revenue etc. with a right of succession in favour of their cadets or relations or favourites known as “Girasdars” or “Barkhalidars”. “Gharkhed”, known in South India estate tenures as “Homefarm lands”, means land reserved by land holder for personal cultivation. “Bid Land” means such lands as has been used by the land holders for grazing his cattle or for cutting grass for the cattle. “Land holder” means Zamindar, Jagirdar, Girasdar, Taluqadar etc. or any person who is a holder of land or who is interested in land and whom the Government has declared, on account of the extent and value of the land or his interests therein, to be a landholder.

2. The system in vogue was that the lands that were under control of the rulers through the agriculturists, the latter had to bring their produce to a common place “khali” meaning thereby threshing floor. The ruler or his agent used to take stock of the total produce harvested and set apart towards the ruler’s share according to the custom or the contract and the remainder belong to the agriculturists. In the other system the land was granted to the “Girasdars” or “barkhalidars”, and the requirement of bringing the harvest by the agriculturists to the threshing floor was dispensed with. This anachronistic land tenure system was done away with by progressive different land tenures conferring permanent ryotwari settlements on the tiller of the soil through “The Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 which later became the Act, the Saurashtra Land Reforms Act, 1951; the Saurashtra Barkhali Abolition Act, 1951 and the Saurashtra Estates Acquisition Act, 1952 (for short “the Act”). Under the respective statutes the rights and liabilities of Girasdars or Barkhalidars have been determined. The details whereof are not relevant for the purpose of these appeals. Suffice it to state that Section 2(c) of the Act defines “estate” to mean ‘all land of whatever description or an undivided share thereof held by a Girasdar and includes uncultivable waste land etc. Section 2(a) defines land as “land of any description whatever and includes benefits whatsoever arise out of the land and things attached to the earth or permanently anything attached to the earth. These definitions are of wide amplitude to include mines and mineral wealth beneath surface land of whatever description. Section 3(1) abolishes Girasdari or Barkhalidari tenures by a notification published by the government in the Official Gazette, from time to time declaring with effect from a specified date that all rights, title and interest of the Girasdars or Barkhalidars shall, in respect of any estate or part of an estate comprised in the notification, ceased and to be vested in the State and all the incidents of the said tenures attaching to any land comprised in such estate or part thereof shall be deemed to have been extinguished. Sub-Section (2) thereof empowers the State Government to issue notification from time to time in respect of an estate or part of an estate or in respect of any area specified in the said notification. The consequences of the abolition of Girasdars’ and Barkhalidars’ rights in the estate have been provided in Section 4 of the Act. Under Clause (2) of Section 4 relevant for the purpose of this case, it has been provided that consequent upon the notification issued by the government under Section 3, with effect from the specified date, all cultivable and non-cultivable waste land, excluding land used for building or other non-agricultural purposes which are comprised in the estates so notified shall, except in so far as any rights of any person other than the Girasdar or the Barkhalidar may be established in and over the same and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the State and all rights held by a Girasdar or a Barkhalidar in such property shall be deemed to have been extinguished, (emphasis supplied) and it shall be lawful for the Collector, subject to the general or special orders of the Revenue Commissioner, to dispose of them as he deems fit, subject always to the rights of way and or other rights of the public or of individuals legally subsisting. Under Section 7, a Girasdar or Barkhalidar is entitled to compensation for the extinguishment of their rights and the details thereof are not necessary for the purpose of this case. At this juncture, it is relevant to note that Saurashtra Land Reforms Act, 1951 defines ‘agriculture’ by Section 2(2) which includes horticulture and the raising of crops, fodder or garden produce and “agricultural land” means any land, including wells, which is used for the purpose of agriculture and includes sites of farm buildings appurtenant to land used for agricultural purposes and sites of dwelling houses and wades occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses. Under Section 2(15) “Girasdar” means any taluqadar, bhagdar, bhayat, cadet or mulgirasia and includes any person whom the Government may, by notification in the Official Gazette, declare to be a Girasdar for the purpose of this Act. In the same Act, under Section 2(13) “estate” means all land of whatever description or an undivided share thereof held by a Girasdar and includes uncultivable waste, whether such land is used for the purposes of agriculture or not and Section 2(18) defines “land” which means any agricultural land, bid land or cultivable waste. Section 2(7) defines “cadet” which means a brother or a son of a Ruler to whom a grant of land was made by such Ruler after 14th day of August, 1947, and who is allowed to retain such grant by the Government or any heir or successors of such person. Under Section 2(8) “Code” means the Bombay Land Revenue Code, 1879 for short “the Code” as adapted and applied to the State. Under Section 4, all Girasdari lands are liable to payment of land revenue. The Saurashtra Barkhali Abolition Act, 1951 defines under Section 2(i) “Bharkhalidar” which means a person who holds a tenure as Barkhalidar, Jiwaidar, Chakariyat, Kherati, or Dharmada and includes any holder of an estate whom the Government may, by notification in the Official Gazette, declare to be a Barkhalidar for the purpose of this Act. Section 2(iia) defines “estate” which includes a Jagir, inam or other grant or interest or aggregate of interests of similar nature in land but shall not include an occupancy, Section 5 of the Act abolishes Barkhali tenure existing as on the date and Barkhali estate shall cease and be vested in the State free from
all encumbrances, subject to the provisions of this Act. The Act gives right to the Barkhalidar to make an application for personal cultivation and the details etc. are not necessary for the purposes of these appeals.

3. As seen, consequent upon the abolition of the estate under Section 3(1) of the Act by issuance of the notification and ensuring consequences under Section 4, the Girasdar or Barkharidari tenures stood extinguished and vested in the State. When questioned in Civil Application No. 689/65 in T.K. Gohil and Ors. v. C.K. Dave by a decision dated 14.8.69 J.B. Mehta, J. held that the provisions of Sections 3 and 4 of the Act would be applicable only to uncultivable waste lands which alone stood vested in the State and the lands with mines and minerals could not be held to be uncultivable waste lands and did not vest in the State. The said decision was confirmed by the Division Bench in L.P.A. No. 73/70 dated March 15, 1971. Section 69 of the Code, which was admittedly adapted to the Saurashtra region of the Gujarat State, states that the right of the Government to mines and mineral products in all unalienated land is and hereby declared to be expressly reserved provided that nothing in this Section shall be deemed to affect any subsisting rights of any occupant of such land in respect of such mines or mineral products. Section 3(20) defines “alienated” means “transfer in so far as the rights of the State Government on payment of rent or land revenue, wholly or partially to the ownership of any person. Consequent upon this definition; the operation of Section 69 and the interpretation made by the High Court, the mines and minerals in the alienated lands stood excluded from the abolition and extinguishment of the rights of Girasdars or Barkhalidars under Sections 3 and 4 of the Act. To obviate the interpretation and to be in conformity with the object and purposes of the Act, initially the ordinance and later the Amendment Act came to be made which was reserved for the consideration, received the assent of the President on February 23, 1982 came into force with retrospective effect from May 01, 1960 – the date on which the Gujarat State was formed.

4. By Clause (a) of Section 2 of the Amendment Act the word “unalienated” was deleted from Section 69 of the Code and Clause (b) provides that the proviso to Section 69 shall be and shall be deemed always to have been deleted w.e.f. 1.5.1960. Under Section 3 thereof, Section 69A was brought on statute. Section 6 (1) and Section 6 (4) are relevant for the purpose of this case which read thus : –

69.A(1) Notwithstanding anything contained in any custom, usage, grant, sanad or order or agreement, or any law for the time being in force, or in any judgment, decree, or order of a court or of other authority, with effect on and from the 1st May, 1960 all mines whether being worked or not and minerals whether discovered or not and all quarries which are situate within the limits of any land, granted or recognised under any contract, grant or law for the time being in force or decree of a court, shall vest “in and with all rights over the same or appurtenant thereto be the property of the State Government and the State Government shall, subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 have all powers necessary for the proper enjoyment and disposal of such rights.

Sub-section 4 says that :

Any occupant, whose rights to mines, minerals or quarries in any land, existing immediately before 1st May, 1960 have vested in the State Government on that date under Sub-Section (1), shall be entitled to compensation of an amount equivalent to the average of the net annual income received by the occupant in respect of the mines and mineral products during the three years immediately proceeding the date of vesting.

5. It is settled law that the concept ‘estate’ denotes that the person holding the estate should be in direct relationship with the State paying land revenue except what is remitted in whole or in part or exempted etc. There may be variation in the local equation. The other Section 6s are not relevant for disposal of these appeals. Hence omitted.

6. The first contention of the appellants is that, under Entry 54, of List I of the Seventh Schedule to the Constitution, since Regulation of Mines and Minerals Development Act, 1957 occupies the field of mines and minerals covered in Section 69A of the Amendment Act, it is void and is ultra vires of the Constitution. We find no force in this contention. The State Legislature under Entry 18 (land) and Entry 23 (Regulation of Mines and mineral development) of part II of the State List of Seventh Schedule and Entry 42 of List III of the Seventh Schedule (Acquisition of Property) under which the State Legislature claims to have made the Amendment Act, we have to see whether it is well founded.

7. It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related Articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude. Burden is on the appellants to prove affirmatively of its invalidity. It must be remembered that we are interpreting the Constitution and when the court is called upon to interpret the Constitution, it must not be construed in any narrow or pedantic sense and adopt such construction which must be beneficial to the amplitude of legislative powers. The broad and liberal spirit should inspire those whose duty is to interpret the Constitution to find whether the impugned Act is relatable to any entry in the relevant List.

8. In India Cement Ltd. and Ors. v. State of Tamil Nadu and Ors. , relied on by the appellants, a bench of seven judges held that “entries in the three lists of the Seventh Schedule to the Constitution, are legislative heads or fields of legislation. These demarcate the area over which appropriate legislature can operate. It is well settled that widest amplitude should be given to the language of these entries but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the Lists. The Lists are designed to define and delimit the respective areas of respective competence of the Union and the States. They neither impose any implied restriction on the legislative power conferred by Article 246 of the Constitution, nor prescribe any duty to exercise that legislative power in any particular manner. Hence, the language of the Entries should be given widest scope to find out which of the meaning is fairly capable in the set up of the machinery of the government. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. In interpreting an Entry, it would not be reasonable to impart any limitation by comparing or contrasting that Entry with any other one’s in the same list.

9. It is in this background that one has to examine the present controve
rsy. It is seen that under Entry 18 of List II (State List) “land”, that is to say, right in or over the land Entry 23 (Regulation of Mines and Mineral Development) subject to the provision of List I in respect of regulation and development under the control of the Union Govt. So it relates to regulation and development of mines and minerals. Entry 42 of List III (Concurrent List) concerns Acquisition and Requisition of property as amended by Section 26 of the Constitution (7th Amendment Act, 1956). These specify the field of legislation given to the Gujarat State Legislature Subject to Entry 54 of List I (Union List). It is seen that under Entry 18 of the State List, land, i.e. rights in or over land which includes acquisition of the property. Entry 23 of List II which is subject to Entry 42 of List III (Concurrent List), provides field of legislation by the State legislature. Article 246(3) of the Constitution gives exclusive power to make law for the State of Gujarat or any part thereof. It is seen that Amendment Act had received the assent of the President.

10. Land in Entry 18 is not restricted to agricultural land alone but includes non-agricultural land etc. The words ‘rights in’ or ‘over land’ confer very wide power which are not limited by rights between the land holders inter se or the land holder or the State or the landholder or the tenant. It is seen that restriction or extinction of existing interest in the land includes provision for abolition and extinguishment of the rights in or over the land. Resumption of the estate is one of the objectives of the government and the Act seeks to serve that object. Resumption includes all ancillary provisions, cancellation or extinguishment of any existing grant by the ex-Rules or lease by grant with retrospective effect as was upheld in Thakur Raghubir Singh and Ors. etc. v. The State of Ajmer (now Rajasthan) and Ors. [1959] SCR Supp. 1, 478.

11. In Black’s Law Dictionary (Sixth Edition) at page 877, land is defined to mean- “in the most general sense, comprehends any ground, soil or earth whatsoever, including rocks. “Land” may include any estate or interest in lands, either legal or equitable, as well as easements and incorporeal hereditaments. Technically, land signifies everything comprehending all things of a permanent nature, and even of an unsubstantial provided they be permanent. Ordinarily, the term is used as descriptive of the subject of ownership and not the ownership. Land is the material of the earth, whatever may be the ingredients of which it is composed, weather, soil, rock, or other substance, and includes free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted by law.

12. The Law Lexicon (Reprint edn. 1987) by Ramanatha Iyer p. 701, the word “land” in the ordinary legal sense comprehends everything of a fixed or permanent nature and, therefore, growing trees, land includes the benefit arise out of the land and things attached to the earth or permanently means everything attached to the earth and also the share in or charges on, the revenue or rent of villages or other defined portions of territory. Land includes the bed of the sea below high water mark Land shall extend to messuages, and all other hereditaments, whether corporal or incorporeal and whether freehold or of any other tenure and to money to be paid out in the purchase of land. Land in its widest signification would therefore include not only the surface of the ground, cultivable, uncultivable or waste lands but also everything on or under it. In Jagannath Singh v. State of U.P. AIR (1960) SC 1563 p. 1568, this Court held that the word “land” is wide enough to include all lands whether agricultural or non-agricultural land. In State of U.P. v. Sarju Devi [1978] 1 SCR 18, this Court held that the definition of the land in Section 3(14) shows that it is not necessary for the land to fall within its purview that it must be actually under cultivation or occupied for purposes connected with agriculture. The requirement is amply satisfied even if the land is either held or occupied for the purposes connected with agriculture. The word “held” only means possession of legal title and does not require actual connected occupation. In State of Gujarat v. Kamla Ben Jivan Bhai [1979] Supp. 2 SCC 440, this Court held that actual cultivation is not necessary to constitute an estate and the right to collect grass is a right annexed to land which was held to be an estate and abolition of the right to pay annual amount was an agrarian reform. In Sri Ram Ram Narain Medhi v. State of Bombay [1959] Supp. 1 SCR 489, this Court held that the Code is a law relating to land tenures. The right in relation to an estate used in Article 31A has been noted in a very comprehensive sense. In Digvijay Singh Hamirsinhji v. Manji Savda , this Court interpreting Section 18 of Saurashtra

Land Re-forms Act, 1951 held that the Girasdar to whom the ruler made the grant was bound by the provisions of that Act and that he was not entitled to have his tenant evicted except in accordance with the provisions of the Act.

13. The aforestated respective Acts clearly deal with the rights of Girasdars or Barkhalidars of their occupation and enjoyment of the land as land-holder in terms of the grant made by the erstwhile Rulers. Section 3 and 4 of the Act abolish the estate under the Act and

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