http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: BHAT KALIDAS SHAMJI (DEAD) BY L.RS. & ORS.

       Vs.

RESPONDENT: P.J. PATHAK & ORS.

DATE OF JUDGMENT08/09/1989

BENCH: KANIA, M.H. BENCH: KANIA, M.H. THOMMEN, T.K. (J)

CITATION:  1989 AIR 2214            1989 SCR  Supl. (1)  78  1989 SCC  Supl.  (2) 134 JT 1989 (3)   606  1989 SCALE  (2)595

ACT:     Saurashtra Land Reforms Act 1951/Saurashtra Land Reforms Rules  1951--Sections  2(12), 4, 5, 21, 22, 23  and  24/Rule 21--Girasdar--Allotment   of  land--Lesser  hardship   being caused to tenant-Taking of judicial notice.

HEADNOTE:     The appeallants are the tenants of certain  intermediary landlords  known as Girasdars. Respondents Nos. 4-5 are  the legal  heirs  of  certain Girasdars from whom  some  of  the appellants held lands on lease. Respondent No. 9 is a Giras- dar  who is represented by the Assistant  Custodian  Evacuee Property. The other respondents, being statutory authorities are  formal parties. The dispute between the parties  relate to  the mode of allotment to the Girasdars which has  arisen in the following circumstances.     After  the  coming  into force of  the  Saurashtra  Land Reforms Act 1951, the respondents Girasdars, as required  by the Act filled in Form I showing therein the cultivable land in the estate as 1353.34 acres. The family of the  Girasdars was treated as an ’A’ class Girasdar.     The  Mahalkari  Kutiana by his decision dated  June  25, 1959  held that the entire area comprising  cultivable  land formed  part  of the joint and undivided estate of  all  the Girasdars  and on that basis he allotted to them three  eco- nomic  units  of land amounting to 60 acres.  The  Girasdars preferred  an appeal against the said decision and  in  that appeal,  the Deputy Collector, Porbander, Respondent No.  2, modified  the allotment made by Mahalkari. He took the  view that some of these Girasdars had separate or swang lands and thus  entitled to separate allotments from swang lands,  out of their swang estate.     A revision application was preferred before the  Gujarat Revenue Tribunal against the decision of the Deputy  Collec- tor.  The Tribunal agreed in principle with the Deputy  Col- lector  that the Girasdars were entitled to separate  allot- ment  both from the estate held jointly by them and also  to separate allotments from the Estates separately by them. The Tribunal  accordingly held that the Girasdars were  entitled to three 79

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

economic units out of the aforesaid cultivable lands jointly held  by  them and some of them were  entitled  to  separate allotments  out  of the lands separately held  by  them  but included in the aforesaid area of 1353.34 acres.     The  tenants  thereupon challenged the decision  of  the Tribunal before the High Court by means of a writ  petition. The High Court held that in respect of the joint or  "Majmu" estate  of the concerned Girasdars, they were liable  to  be treated  as  one unit and entitled to allotment  as  an  ’A’ class  Girasdars  and were thus entitled  jointly  to  three economic  holdings  which came to 60 acres. The  High  Court affirmed  the  decision of the Tribunal in the case  of  Ali Khokhar,  Girasdars who had handed over 15 acres of land  of the  joint  estate and directed that on the basis  of  joint holding, the Girasdars were entitled to the balance area  of 45  acres. It also upheld the decision of the Tribunal  that some  of the Girasdars were entitled to separate  allotments as ’C’ class Girasdars with respect to their separate  hold- ings.  Thus  the  High Court treated the  total  holding  of 1353.34  acres as partly joint and the remaining  part  com- prised separate holdings of some of the Girasdars.     The appellants-tenants have appealed to this Court after obtaining special leave. Dismissing the appeal, this Court,     HELD:  Judicial  notice can be taken  that  much  lesser hardship would be caused to a tenant whose land holding  was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdars than  to a tenant whose excess holding was only marginal if a part of his land is taken for such allotment. [85F]     The Revenue Tribunal in deciding as to whose excess land should be handed over by the tenants has proceeded on a just and  equitable basis that it should touch only such  tenants whose  land substantially exceeds the economic holding,  and smaller tenants should not be asked to surrender any part of their holdings. [85E]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8 to  10 of 1972.     From  the  Judgment  and Order dated  15.1.1970  of  the Gujarat  High  Court  in  Special  Civil  Application   Nos. 305,368, 526, 384 and 495 of 1962. 80 T.U. Mehta, U.A. Rana and K.L. Hathi for the Appellants. G.A. Shah and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by      KANIA,  J. These are appeals by special  leave  against the  judgment of a learned Single Judge of the Gujarat  High Court in Special Civil Applications Nos. 305,368 and 526  of 1972.      The  controversy raised in the appeal is  very  limited and hence, the relevant facts can be very briefly stated.      The  appellants  before us are the tenants  of  certain intermediary landlords known as Girasdars. Respondents  Nos. 1  to  3 are statutory authorities, namely,  the  Mahalkari, Kutiana,  Deputy  Collector of Porbandar  Division  and  the Gujarat Revenue Tribunal respectively. They have no interest in  the result of these appeals but they are represented  by counsel before us. Respondents Nos. 4-5 are the legal  heirs of  certain Girasdars from whom some of the appellants  held lands  on lease. One Respondent No. 9 is a Girasdar  who  is represented  by the Assistant Custodian of Evacuee  property

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

and the rest of the respondents are the remaining  Girasdars from whom the appellants held lands on leases.      Before going into the facts or the arguments  advanced, we  propose to take note of the relevant provisions  of  the Saurashtra  Land Reforms Act, 1951 (hereinafter referred  to as "the said Act"). The said Act was enacted with the object of  improvement of the land revenue administration  and  for ultimately  putting  an end to the Girasdari system  and  to regulate  the  relations  between the  Girasdars  and  their tenants.  We  may  mention that, very  briefly  stated,  the Girasdars were in the nature of intermediary landlords  like the  Zamindars.  Unlike most of the land reforms  acts,  the object of which was to take away completely the right of the Zamindars  or intermediary landlords, the said Act  provided for  the abolition of the Girasdars system and at  the  same time  sought to achieve equitable distribution of  land  for personal  cultivation between the Girasdars and  their  ten- ants.               Sub-section (12) of section 2 of the said  Act               runs as follows:                   "  ’economic holding’ in relation  to  any               region speci-               81               fied in Column I of the First Schedule,  means               a  holding  of land of an area  shown  in  the               corresponding entry in Column 2 thereof."     Column 2 specifies the area of land comprised in econom- ic holdings for the various districts to which the said  Act was applicable. Sub-section (14) of section 2 lays down that "Gharkhed"  means  any  land reserved by or  allotted  to  a Girasdar  before  the 20th May, 1950  for  being  cultivated personally  and which is in his personal  cultivation.  Sub- section  (15)  of section 2 contains the definition  of  the term  "Girasdar" and provides that the said  expression  in- cludes within its ambit a talukar, bnagdar, bhayat, cadet or mulgirasia  and includes any person declared by the  Govern- ment by a notification to be a Girasdar for the purposes  of the  said Act. Under sub-section (18) of section 2 the  term "land"  basically means agricultural land. Section 4 of  the said Act provides that all land of whatever description held by a Girasdar is and shall continue to be liable to  payment of land revenue to the State of Gujarat. Section 5  provides for  classification of Girasdars. It is sufficient  to  note that under sub-section (1) of that section a Girasdar  shall be deemed to belong to A class if the total area of agricul- tural  land  comprised in his estate exceeds  eight  hundred acres,  to  B Class if the total area of  agricultural  land comprised in his estate exceeds one hundred and twenty acres but  does not exceed eight hundred acres and to C  Class  if the total area of agricultural land comprised in his  estate does  not  exceed one hundred and twenty acres.  Section  21 deals with the question of allotment of land to Girasdars of Classes  A and B. For our purposes it is sufficient to  note that  a  Girasdar of Class A is entitled to  three  economic holdings  and a Girasdar of Class B is entitled to two  eco- nomic holdings. Section 22 inter alia deals with the princi- ples and method of allotment of land to Girasdars of A and B Classes.  The  relevant  part of the said  section  for  the purposes of the appeal runs as follows:               "In making an allotment of land to any  Giras-               dars of A Class or B Class the Mamlatdar shall               have  due regard to the following  provisions,               namely:               (a) firstly, such of the bid land or  cultiva-               ble waste of the estate as the Girasdar wishes

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

             to  utilise for personal cultivation shall  be               allotted to him;               (b)  secondly,  if  the  land  allotted  under               clause (a) is not sufficient, such agricultur-               al land as is held by a               82               tenant in excess of one economic holding shall               be available for allotment."                   The  relevant portion of section 23  which               deals with the topic of Girasdars to whom  the               land may be allotted runs as follows:               "23.  Under  the provisions of  this  Chapter,               land shall be allotted--               (a)  in  the case of an  undivided  family  of               Girasdar  only  to the head of the  family  on               behalf of the family; or               (b)  in case of a family divided  in  interest               only, to all the members of the family jointly               as to a single unit; or               (c)  in the case of a Girasdar whose land  was               separate from that of the other members of his               family  by  metes and bounds  before  the  1st               February, 1951, to such Girasdar."     Section  24  provides  that agricultural  land  will  be allotted to C Class Girasdars for being cultivated personal- ly  to the extent of one half of the total area of the  land held by each of his tenants provided that the total area  of the holding of a C Class Girasdar made up of Gharkhed in his estate  and any bid land or cultivable waste land and  other land of a kind set out in the proviso to sub-section (1)  of the said section does not exceed one economic holding in the case  of  one  in whose estate agricultural  land  does  not exceed  eighty acres and one and half economic  holdings  in the  case of one in whose estate agricultural  land  exceeds eighty  acres  but does not exceed one  hundred  and  twenty acres. Chapter IV of the said Act which includes sections 22 to  24 referred to earlier provides that if the land in  the Girasdar or for personal cultivation of the Girasdar is less than  the land he is entitled to as per the  economic  units allottable  to him, his tenants who hold excess  land,  that is, in excess of an economic holding, are liable to  surren- der the same or a part of the same to enable the Girasdar to make  up  the deficit in the land which he  is  entitled  to hold. A reading of the relevant portion of Schedule I of the said  Act (under section 22) makes it clear that an A  Class Girasdar  in  the district with which we are  concerned  was entitled to hold 40 acres of land. We may also at this stage take note of some of the rules framed under the said 83 Act  and known as "The Saurashtra Land Reforms Rules,  1951" (hereinafter  referred to as "the said Rules"). Rule  50  of the said Rules provides that in making allotment of land  to any Girasdar of A Class or B Class, the Mamlatdar shall have due regard to the provisions contained in section 22 and for allotment of land to a Girasdar of C Class to the provisions contained in section 24. The said rule also provides that in cases  arising  under section 22(b) and (e) and  proviso  to subsection  (1) of section 24, the land will be  taken  from tenants proportionately to the excess or the holdings as the case  may be. There is, however, a proviso to Rule 50  which states that where the proportionate excess or holding to  be given by a tenant as above works hardship in any  individual case, the Mamlatdar may decide the proportion of land to  be given by each of the tenants in a manner just and equitable.     It was pointed out by Mr. Mehta, learned counsel for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

appellants that in the form I filled in by the Girasdars  as required  under  the said Act, the cultivable  land  in  the estate was shown as 1353.34 acres. The family of the  Giras- dars  was  treated  as an A Class  Girasdar.  The  Mahalkari Kutiana  by his decision dated June 25, 1959 held  that  the entire  area comprising cultivable land formed part  of  the joint and undivided estate of all the Girasdars and on  that footing  he allotted to them three economic units  amounting to  60 acres. The Girasdars preferred an appeal against  the said  decision  and in that appeal,  the  Deputy  Collector, Porbandar,  respondent  No. 2, modified the  allotment  made under  the  order of Mahalkari. He held that some  of  these Girasdars  had separate or swang lands and were entitled  to separate  allotments  from swang lands out  of  their  swang estate.  There was a revision application preferred  to  the Gujarat  Revenue  Tribunal from the decision of  the  Deputy Collector. The Tribunal agreed in principle with the  Deputy Collector  that  the  Girasdars were  entitled  to  separate allotments  both  from the estate held jointly by  them  and also to separate allotments from the estates separately held by  them.  In substance, it held by the  Tribunal  that  the Girasdars  were entitled to three economic units out of  the aforesaid  cultivable land jointly held by them and some  of them  were entitled to separate allotments out of the  lands separately  held by them but included in the aforesaid  area of  1353.34  acres. This decision was assailed by way  of  a Special Civil Application before the Gujarat High Court.  In all,  five petitions were filed by tenants  challenging  the decision of the Gujarat Revenue Tribunal. The learned Single Judge  who disposed of the said petitions held that  in  re- spect of the joint or ’Majmu’ estate of the concerned Giras- dars,  they were liable to be treated as one unit and  enti- tled  to  allotment  as an A Class Girasdar  and  were  thus entitled jointly to 84 three economic holdings which came to 60 acres. However,  as found by the Tribunal, one Girasdar, Ali Khokhar, had handed over possession of 15 acres of land of the joint estate  and hence,  on  the footing of the joint holding  the  Girasdars were  entitled to the balance area of 45 acres.  Apart  from this, the learned Judge upheld the decision of the  Tribunal that some of the Girasdars were entitled to separate  allot- ment  as  C Class Girasdars in respect of  their  respective separate  holdings. The learned Judge clearly  proceeded  on the  footing that out of the said total holding  of  1353.34 acres  was  partly joint and the  remaining  part  comprised separate holdings of some of the Girasdars.     The appellants are represented by senior counsel  before us  and  so also the respondent nos. 1 to 3 who  are  formal respondents. However, the rest of the respondents, who would be  really  affected  by the result of the  appeal  are  not appearing although served. Mr. Mehta learned counsel for the appellants  fairly conceded that he can find no  fault  with the  judgment  of the learned Single Judge in so far  as  he took  the view that the Girasdars were entitled to  separate allotments,  one  allotment in respect of the land  held  by them  jointly and the separate allotments in respect of  the land held by them separately if the estate held by them  was partly  joint  and partly separate.  He,  however,  strongly contended that the learned Single Judge had wrongly  assumed that  a part of the said estate was joint and the  remaining part  was separate. According to him, the entire estate  was joint  and the Girasdars were entitled only to an  allotment of 60 acres in all as an A Class Girasdar. In our view, this argument  cannot  be entertained at this stage at  all.  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

finding of the Mahalkari that the estate was entirely  joint was  set aside by the Deputy Collector. The decision of  the Deputy  Collector, that some of the Girasdars were  entitled to separate allotments in addition to the joint allotment as aforestated,  was appealed against before the Tribunal.  The Tribunal  also proceeded on the same footing as  the  Deputy Collector  and  there is no challenge in  the  said  special civil applications to the effect that the Tribunal had  gone wrong  in  treating the estate as partly  joint  and  partly separate.  In view of this, Mr. Mehta cannot now be  allowed to raise a contention that the entire estate was joint.  The next submission urged by him was that, although some of  the tenants  of the Girasdars were in the village Mal,  none  of them has been asked to make any contribution to make up  the land liable to be allotted to the Girasdars. As pointed  out by  learned Single Judge that the contention was  not  urged before  the  Revenue Tribunal at all and hence, it  was  not open  to the appellants to raise this contention before  the High Court nor is it open to them to raise it before us.  It is significant that none of the 85 tenants of the said Girasdars in Mal village has joined as a respondent  to the present appeal and it appears  that  this argument is nothing more than an after-thought.    The last submission of Mr. Mehta is that, as it was found that certain lands were liable to be allotted to the  Giras- dars  to  make up the land allottable to them  for  personal cultivation, the said land should have been made up by call- ing  upon or directing all the tenants who had excess  land, that is, in excess of the economic holding, to surrender a proportionate  part of the excess land. To  appreciate  this contention,one  must  notice that Mr. Mehta  represents  the larger tenants who have been asked to surrender a portion of their  land  whereas the tenants whose  holdings  were  only marginally  in  excess  of the economic  holding  have  been spared. It was urged by Mr. Mehta that this is against the provisions  of Rule 50 of the said Rules which we  have  al- ready  set out earlier and which provides for  taking  lands from tenants proportionately to the excess of land, that is, land in excess of the economic holding which they were enti- tled  to hold. He, however, forgets that there is a  proviso to  this Rule which we have referred to earlier  which  pro- vides  that where taking of such proportionate  excess  land would  lead  to hardship, in that case,  the  Mamlatdar  can decide  the  proportion of land to be given by each  of  the tenants.  As pointed out by the learned Single Judge of  the Revenue  Tribunal  in deciding as to the excess land  to  be handed over by the tenants has proceeded on a just and equi- table  basis  that it should touch only such  tenants  whose land substantially exceeds the economic holding and  smaller tenants  should not be asked to surrender any part of  their holdings.  Judicial  notice can be taken  that  much  lesser hardship would be caused to a tenant whose land holding  was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdar than in the case of a tenant whose excess holding was only marginal.     In view of this, we find that no fault can be found with the decision of the Tribunal or the High Court.     In  the result, the appeals fail and are dismissed  with no order as   to costs. Y.  Lal                                        Appeals  dis- missed. 86

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7