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PETITIONER: AZIZUDDIN

       Vs.

RESPONDENT: THE BOARD OF REVENUE & ORS.

DATE OF JUDGMENT:       12/02/1999

BENCH: D.P.Wadhwa, A.P.Misra,

JUDGMENT:

MISRA.  J.

       The  first question raised for our consideration is, whether erstwhile land holders holding  the  land  in  joint Khata  under  the  then Ruler of Bhopal would be entitled to the benefit of the Notification No.   71  dated  25th  Feb., 1941  under which the land owners who were dispossessed from their land could claim preferential right of reallotment  of their  land,  and  whether  the said Notification is only an executive order issued by the Govt.  of  Bhopal,  as  it  is signed by the Assistant Revenue Secretary, Govt.  of Bhopal, having no force of law or was it issued by the Ruler himself which  would  undisputably have the force of law and in that case, whether the appellant is entitled to be conferred  the benefit under it?

       The  second question raised is if the appellant lost right in his  holding  on  account  of  non-payment  of  the tractorization  charges which was due under the Bhopal State Reclamation and Development of Lands (Eradication  of  Kans) Ordinance,  1949  (No.  XXXVIII  of  1949)  and  the  Bhopal Reclamation and Development of Lands (Eradication  of  Kans) Act, 1954 (Act No. XIII of 1954) (hereinafter referred to as ’the  Ordinance’ and ’the 1954 Act’ respectively), and since the provisions for charging the tractorization charges  both under  the  Ordinance  and  the  1954 Act respectively), and since the provisions for charging the tractorization charges both under the Ordinance and the 1954 Act having  been  held to  be  ultra  vires,  consequently,  notices  under it also declared illegal in the ccase of State of  Bhopal  and  Ors. Vs.  Charmpalal  and  Ors., 1964 (6) SCR P.35, then, whether the appellant would not be entitled to  get  back  his  lost disputed land?

       In  order  to  appreciate  the  controversy  and  to adjudicate the point in issue, it is necessary to give  some of the essential facts of this case.

       The appellant, Axixuddin, owned 128.41 acres of land under his individual Khata, in his  own  name,  situated  in village Khari  even  prior  to  1363 F.  He also possessed a joint Khata in the same village and village Rasulia  Bazyaft measuring  376.501  acres and 201.83 acres, respectively, in his own name and in the name of four  others  namely,  Ahmad Khan, Mohamadi  Begum,  Ahamadi  Begum,  Alia Bee.  The said

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persons were legal heirs of one Amir Khan.    The  appellant had  purchased  the share of the fifth son of Amir Khan viz. Abdul Mateen.  The dispute relates only in respect  of  land of this joint holding and not in respect of his 128.41 acres of land  which  he holds in his individual Khata.  After the death of Amir Khan in 1948, the appellant purchased the said 1/5th share belonging to Abdul Mateen which comes to approx. 167.68 acres in the said joint holding  and  thus  became  a co-owner with the aforesaid persons in the said joint Khata. The  appellant name was duly mutated in the revenue records. On  1st  June.,  1949,  Union  of  India   took   over   the administration of Bhopal-Princely State for five years and a Chief Commissioner  was  appointed.    Then an Ordinance No. XXXVIII of 1949 as aforesaid, was promulgated  by  the  then Chief Commissioner.    On  18th January, 1951 a notification was issued under it declaring all the villages in  the  same tahsil as  Kans infested.  In this the land of the appellant was also included.  The  authority  then  issued  notice  to Abdul  Mitten  and  others  through the Reclamation Officer, Land Reclamation Board, Bhopal, in respect of  the  land  in question  to  ascertain  the capacity of each land holder to cultivate their lands by desiring them to produce number  of pairs of bullocks required for ploughing the area on a fixed date.   The ratio fixed was one pair of bullock for every 15 acres of land.  To this notice Abdul Mitten informed that he had  already  transferred  his  share   in   the   land   to Azizuddin-appellant, hence  notice  be sent to him.  On 22nd Oct.  1952, a loan of Rs 1500/- was  sanctioned  as  taccavi for purchase  of  seeds  under  the  G.M.F.  Scheme to Abdul Mitten which was duly paid to the appellant recognising  him to be  the  occupant  of  the land.  Thereafter notices were issued on 4th/14th June, 1953, to the  appellant  and  other joint owners with respect to the said joint Khata and to the appellant  alone  for  his  individual  Khata  demanding the tracrtorization charges at the rate of Rs.  10/- per acre to be paid by 15th June, 1953.  The case of  the  appellant  is that  the  said  the tractorization charges were illegal and hence the same was not payable.  Some of the  agriculturists had   already  challenged  the  validity  of  the  aforesaid Ordinance,  including  Abdul  Mitten,  before  the  Judicial Commissioner, Bhopal.    However,  on  the  other  hand,  on account of non-payment of the said dues both the land of his individual Khata and joint Khata were auctioned  to  recover the  tractorization  charges, land revenue and penalty under the Bhopal Land Revenue Act, 1932 (the 1932 Act).   Auctions were held 22 times but it failed as no bidders came forward. Thereafter  on 21st January, 1954, Tehsildar passed an order under Section 137(C) of  the  1932  Act  that  in  case  the Khatedars failed  to  pay the said Gotv.  dues they shall be evicted.  On 22nd May, 1954, Tehsildar passed  an  order  of injunction  and attachment restraining the land holders from making any sale, gift or transfer of the land  in  question. Thereafter, orders for eviction from land was passed and the said land was declared Taluqdeh (Unoccupied).

       However  in  the  other  proceedings,  by some other agriculturists, on  9th  April,  1956,  Chief  Commissioner, Bhopal,  struck  down  some  of  the  provisions of the said Ordinance and the 1954 Act holding it  to  be  ultra  vires. Thereafter,   on   1st   Oct.,   1959,   pursuant   to   the reorganisation of the States, the State  of  Madhya  Pradesh came into  existence which issued similar Ordinances Nos.  7 of  1956  and  8  of  1957  authorising  recovery   of   the tractorization charges.  Meanwhile, in view of the aforesaid judgment  of  the  Chief  Commissioner  the  recovery of the

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tractorization charges were stopped but the State Government filed an appeal before this Court under  Article  133(1)  of the Constitution  of  India.    During  the  pendency of the appeal though the State  Govt.    is  said  to  have  stayed further  recovery  of  the  tractorization charges but still State started taking further coercive  measures  as  against the  appellant  of taking delivery of possession of his land because so far appellant is concerned, the recovery  of  the said charges already concluded and even a declaration of his land as  Taluqdeh  was  made  earlier.   Hence the appellant moved an application before the Tehsildar Praying that  till the  question  of validity of the tractorization charges are not settled by the Supreme Court, on action be  taken.    In the  alternative,  he  claimed  right  under  the  aforesaid Notification/proclamation No.   71  dated  25th  Feb.,  1941 issued   by   the   Govt.of  Bhopal,  as  aforesaid,  for  a preferential right for reallotment of  his  land  which  was declared  Taluqdeh  and  for  which  he  offered to pay full amount of any dues to the extent of his share  in  the  said joint holding.      The   Tehsildar   on  12th  Aug.,  1959, recommended for the rejection of  this  application  of  the appellant as  benefit  under  the  said proclamation No.  71 could not be given in the changed  circumstances,  as  there now  exists  superseding  rules relating to unoccupied land. The  Deputy  Collector  accepted  the  said  report,   hence rejected the  said  application.  The appellant preferred an appeal before the Commissioner who dismissed the same on the ground that he is a rank defaulter and deserves no  leniency and since circumstances have also changed no further benefit could be  given.    A  second appeal was preferred which was allowed resulting into quashing of the aforesaid two  orders and remanded the case back to examine the nature of the said proclamation,  whether  it  has  any  force  of  law  on the relevant date?  Consequently, Tehsildar examined and filed a report that it had a legal force and was  in  force  at  the relevant time.   On  14th  March, 1966, the S.D.O.  accepted the said report and  concluded  the  said  proclamation  had legal  force  and was in force at the relevant time thus the appellant was granted relief in respect  of  his  individual Khata  for  the  said  area of 128.41 acres which was in his name but his claim  in  respect  of  the  joint  Khatas  was rejected  for  the  reason  that  this  claim  could  not be considered in the absence of any  such  request  through  an application  by  all  the joint holders which was admittedly not made.  The Additional Collector upheld this order.   The second   appeal  by  the  appellant  before  the  Additional Commissioner, Bhopal was also rejected  by  further  holding that   the   said  proclamation  No.71  was  not  under  any provisions of law and it stood  superseded  by  Notification No.  41   dated  2nd  January,  1951.    Further,  the  said proclamation/notification No.71 was only an executive  order declaring  the  intention of the Ruler to give preference to the dispossessed holders.   It  was  further  recorded  that since  the appellant was never dispossessed and continued in possession without paying a single penny, hence not entitled for the relief even in terms of the said proclamation.   The appellant  preferred  a  revision before the Board which was also rejected.  Review was also preferred on the ground that Notification  No.71  of   1941   was   wrongly   translated. According to the appellant the said notification if properly translated  would  only  mean that it is issued by the Ruler and in not an executive order  of  the  Govt.    of  Bhopal. Thereafter  the  appellant  filed a writ petition before the High Court in addition also seeding relief in  view  of  the judgment  of  this Court in Champalal (supra) to restore the

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land to the appellant.  The said writ petition was  rejected on  the  ground  that rules framed under Bhopal Land Revenue Act, 1932, does not give any preference, and  the  aforesaid Notification No.    71  is  merely  an executive instruction which cannot be given effect as it was  not  issued  by  the Ruler.   The  High  Court further recorded that this was the only point argued before the Board  and  this  is  the  only point which can be considered in this petition.

       Challenging this order, the  contention  of  learned senior  Counsel  Mrs. Shobha Dixit for the appellant is that the High Court failed to take into consideration the case of Champa Lal (supra) and also the amendment  in  1933  in  the General  Clauses  Act.  1931  by Bhopal Legislature by which Section 2(12) was amended, as the appellant did specifically took all these grounds in the writ petition.

       We  proceed  now  to  scrutinise  out  of  the   two questions  first, whether the appellant would be entitled or not, to get back his land when  the  tractorization  charges were  declared to be illegal by this Court, for the recovery of which he lost his land. The tractorization  charges  were levied  under Section 4 read with Section 7 of the 1954 Act. The Preamble of the Act spells out:

       "to provide for the reclamation and  development  of         lands  by  eradication of kans weed in certain areas         of the State of Bhopal."

       Kans is a kind of  noxious  weed.  Under  Section  4 Government  was empowered, if it is of the opinion, that any area  is  infested  with  kans,  to  declare  such  area  by notification  Officer  may enter upon any such land and take possession for such period  as  may  be  necessary  for  the purpose  of  eradication  of  kans from such area. Section 6 gives power to survey and carry  on  eradicating  operation. Under  sub-section  (1) after issuance of notification under Section  4,  the  Reclamation  Officer  notwithstanding  the provisions  of  the  Bhopal  Land  Revenue  Act  1932, under sub-clause (b) take possession of the whole or any  part  of the  kans area and carry on eradicating and other anciallary and  subsidiary  operations  therein.  Section  7  casts   a liability  on the owner of such land to pay the cost of such eradicating operations, namely removal of such kans from his land.  Charges  recoverable  for  this  is  known   as   the tractorization  charges.  The  recovery  for this is made as land revenue under Section 8. Section 4 was declared in  the Champa  Lal  (supra)  to be violative of Article 19(1)(f) of the Constitution. It held:

       "The  Act  contains  no  provision  for  the  person         interested  having  an opportunity to establish that         the particular land in which he was  interested  was         not  kans  infested  and  therefore did not stand in         need of any eradication operation. Section 4(1) read         in conjunction with the power contained  in  section         4(4)  coupled  with the absence of any provision for         entertaining objections would, in the  circumstances         of  there  being  admittedly  patches of land in the         same tehsil which had been cleared at least in  1941         must  be  characterised as arbitrary and imposing an         unreasonable restriction on the right  to  hold  and         enjoy   property   within  Art.  19  (1)(f)  of  the         Constitution."

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The Court further held that since the  possession  taken  by the  Reclamation  Officer  being  exclusive, it may be for a short period, but  it  would  amount  to  taking  possession within the meaning of Article 31 (2) hence Section 4(1) read with  Section  6(1)(h) is unconstituional being violative of Article 31(2). Section 7 palces liability on  the  owner  of such  land  for  payment  of the expenditure incurred by the govt. on such  eradication  of  Kans.  The  cost  is  to  be equitably  apportioned  by the Reclamation Board between the several holders of or persons having interest in  the  lands comprised  in  the  kans  area.  The said Champa Lal (supra) held:         "...It   is   common   ground   that   the         Reclamation    Board    never    met   and         consequently neither  computed  the  total         expenditure  incurred or to be incurred of         the creadication operations,  nor  did  it         make  the  allocation among the holders of         the lands on which eradication  operations         were  conducted...  The  learned  Judicial         Commissioner  held  that  the   terms   of         Section  7  were  madatory and that unless         the mind  of  the  Reclamation  Board  was         brought  to  bear on the question, and the         Board computed the  total  expenditure  as         well as the proper allocation of this sume         among  the  several  land-owners no lawful         demand could be made under section 8,  nor         could  the  same  be  recovered  from  the         respondents. We find ourselves  in  entire         agreement   with   the   learned  Judicial         Commissioner  in  holding  (1)  that   the         procedure   prescribed  by  Section  7  is         mandatory and (2) that as admittedly there         was no compliance with it no lawful demand         could be made for the contribution payable         by any landholder by the Central Govt.  or         by  the State Govt. at the instance of the         Central  Govt.  without  recourse  to  the         machinery   provided  by  Section  7.  The         notices   of   demand   were,   therefore,         properly quashed as illegal."

So  not  only  the  aforesaid sections were held to be ultra vires but even notice of demand was also held to be illegal. It is not in dispute that the appellant  was  not  party  in this writ petition.

       It  is  very  unfortunate  that  in  spite  of  such declaration, no relief could be granted  to  the  appellant. Admittedly  the  appellant’s land was proceeded for recovery and was declared as Taluqdeh before coming into force of the 1954  Act.  The  recovery  was  made  in  pursuance  of  the aforesaid  Ordinance  and  its  recovery  coucluded  through proceeding under the Bhopal Land Revenue Act.  1932.  It  is significant  that Section 17 of the 1954 Act was not held to be ultra vires or invalid, which read as:

       "all    acts    done,   any   notification   issued,         appointment, authorisation  or  enquiry  made,  duty         assigned,  notice  served,  or any action taken with         respect to or on account  of  cradication  of  kans,         during the period commencing on the 20th Oct.  1949,         and  ending  with  the  date of commencement of this         Act, by the Govt.  or by any Officer  of  the  Govt.

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       or  by  any  other  authority under the Bhopal State         Reclamation and Development of Lands (Eradication of         Kans), Ordinance, 1949....  and ending with the date         of commencement of this Act, by the Govt.  or by any         Officer of the Govt.   or  by  any  other  authority         lunder  the Bhopal State Reclamation and Development         of Lands (Eradication of Kans),  Ordinance,  1949...         are  hereby declared lawfut and confirmed, and shall         be as valid and operative as if they had been  done,         issued,  made,  assigned,   served   or   taken   in         accordance   with   law.  No  suit  or  other  legal         proceedings shall be maintained or continued against         the Govt. or any person  whatsoever  on  the  ground         that  any  such acts or proceedings were not done or         taken in accordance with law."

       It  is  admitted  between  the  parties  that   this recovery   for  the  tractorization  charges  including  the penatly etc. under the aforesaid 1949  Ordinance,  including the  declaration  of  the  disputed  land  to  be  Taluqdeh, concluded before coming into force of the 1954 Act. Thus  by virtue  of  Section  17  all  actions  taken  or act done on account of eradication fo kans stood declared as lawful  and confirmed  and  is deemed valid as if they have been done in accordance with law. Hence, apart from the  reason  recorded by  the  High  Court,  so  far  this issue is concerned, the appellant cannot succeed.

       Returning  to  the  first  question,  the  bone   of contention   for  the  appellant  is  that  the  High  Court committed  an  error  by  hlding  with  reference   to   the Proclamation Notification No. 71 dated 24th Feb., 1941, that it  is  an  executive  order  issued by the Govt. and not an order by the Ruler, hence it has no force of law, and at the relevant time there existed  Section  51  under  the  Bhopal State  Land  Revenue Act, 1932 which specifically dealt with the disposal of unoccupied land.

       It is not necessary for us, for the reasons  we  are recording hereunder, to go into the question, whether it was issued by the Ruler himself?  We find there was amendment in the year 1933 in the General Clauses Act, 1931 by the Bhopal Legislature whereby Section 2 (12) was amended. By virtue of this  amendment the said Proclamation / Notification even if issued by the Govt. is declared to have the force of law. It seems this fact was not bought to the  notice  of  the  High Court.  Thus,  Notification  No.  71  dated 24 th Feb. 1941, would have the force of law.  This  taken  us  to  the  next question   if  this  has  a  force fo law, whether still the appellant  would  be  entitled  for  any  relief  under  it? Learned counsel for the appellant while challenging the High Court  finding  that  since  there existed Section 51 in the aforesaid 1932 Act dealing with the unoccupied  land,  hence the  appellant  case would only be governed under it and not under the Notification No. 71, he further submitted this  to be  erroneous  and  illegal  as  the  said  land  was  never unoccupied in spite of the declaration it to be Taluqdeh, as the appellant continued in possession over the said land and was never dispossessed. Thus Section  51  of  the  1932  Act would not apply.