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PETITIONER: KUMAR SHREE DIGBIJAYSINHJI

       Vs.

RESPONDENT: NANJISAVDAS & ORS.

DATE OF JUDGMENT: 23/07/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1969 AIR  370            1969 SCR  (1) 405

ACT: Saurashtra  Land Reforms Act,  1951  (Act 25 of 1951).   18, 19-Grant of land by former ruler of merged State  recognised by  Government of    India on condition that  grantee  would not  be entitled  to evict tenants-Such condition whether  a right or privilege of the tenant  within  the meaning of  s. 18--Grantee declared by State Government notification to  be a Girasdar subject to s. 18--Such Girasdar whether can  file application  under  s. 19 for allotment of  land  for  self- cultivation after eviction  of tenants.

HEADNOTE: In  1947  the Ruler of Virpur State  in  Saurashtra  granted certain  agricultural lands to the appellant.   Later  these lands  were  exchanged  for          others.   In  1948  the administration   of   Virpur  State  was  assumed   by   the United  State  of  Saurashtra.   The  Saurashtra  Government questioned the        grant but the Government of India at a conference  with  the  Ruler recognize  it  as  having  been lawfully made to the appellant, with the condition      that he  would  not  evict  the  tenants  from  the  lands.   The arrangement was       set out in a letter dated November  2, 1949   from  the  Political    Department                the Government of India to the Revenue Department, United  State of    Saurashtra.  Though the appellant was not a  party  to the arrangement            he was aware of and accepted  the arrangement  and  the conditions upon             which  his grant  was  confirmed  by  the  Government  of  India.   The Saurashtra Land Reforms Act came into effect on September 1, 1951.E    On January 29, 1954 the Government  of  Saurashtra issued  a notification under s. 15(2) of the  Act  declaring the  appellant  to  be a Girasdar for purposes  of  the  Act subject  to  the provisions of s. 18 thereof, and  this  was later by another notification, clarified to mean that he was a   Girasdar  subject  to  the  condition  imposed  by   the Government at the time of his recognition, that he could not evict  the tenants.  In the meantime the appellant  made  an application  to. the Mamlatdar for an allotment of.land  for personal   cultivation  under  s.  19  of  the  Act.    This application  was  allowed by the Mamlatdar but  the  Revenue Tribunal  in revision held that the application under s.  19 was  not maintainable.  The appellant’s petition before  the

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High  Court  under s. 227 of the Act was  dismissed  on  the grounds  that (i) the conditions incorporated in the  letter of  November 2, 1949 having been accepted by  the  appellant enured  for  the benefit of the tenants under s. 18  of  the Act; (ii) the rights of the Girasdar were restricted by  the notification under s. 2(15) of the Act declaring him to be a Girasdar   and   tile   appellant  was   bound   by    those restrictions.   Against  the  High  Court’s   judgment   the appellant came to this Court.       HELD:  (i)  Had the Government of India  annulled  the grant made to the appellant the annulment would have been an Act  of   State   and could not  be  questioned  before  the Municipal  Tribunals.   Instead of annulling the  grant  the government  elected to confirm it subject to the  conditions incorporated  in the letter dated  November  2,  1949.   The appellant accepted the grant subject to those conditions and was bound by them. [408 F]       State of Saurashtra v. Jamadar Mohamad Abdulla, [1962] 3 S.C.R. 970, referred to. 406     (ii)  The  conditions incorporated in the  letter  dated November  2,  1949  were intended for  the  benefit  of  the tenant.   The  tenants  could  claim  the  benefit  of   the condition  that  the appellant could not  evict  them.   The condition  was annexed to the grant to the  appellant.   The right  or  privilege  of  the tenant  arising  out of this condition  was a right or privilege arising out of  a  grant within  the meaning of  s.  18.  The  expression ’grant’  in s. 18 is wide enough to take within its sweep a grant by the Government to the Giraffes and is not limited to a grant  by the Girasdar to the tenant. [409 G-H]     (iii) On the strength of the order of allotment of  land for  personal  cultivation under s. 20(2)  the  Girasdar  is entitled  to  evict the tenants. from the land  allotted  to him.  When the Girasdar applies under s. 19 for allotment of land for personal cultivation, he seeks to evict the  tenant from  the  land.   Therefore when the  appellant  filed  his application  under  s.  19 he sought an  order  which  would enable  him  to evict the tenants in  contravention  of  the condition of his grant that he would not evict the  tenants. In  view of s. 18 nothing in Chapter IV of the  Act  enabled him to obtain an order limiting or abridging the rights  and privileges of the tenants arising under the condition.   The Mamlatdar  could not under s. 20 pass an order  which  would enable  the appellant to evict them.  The application  filed by the appellant under s. 19 was therefore incompetent.  [4- 10 F-G]

JUDGMENT:  CIVIL APPELLATE JURISDICTION: Civil Appeal No.  37 of 1965.     Appeal from the judgment and order dated August 12, 1958 of the Bombay High Court at Rajkot (now Gujarat High  Court) in special civil Application No. 55 of 1957. B.  Sen, P.V. Hathi, K.L. Hathi and Atiqur  Rehman,      for the appellant. M.V. Goswami, for respondents Nos. 1, 2, 3, 6 and 7. N.S. Bindra and S.P. Nayar, for respondents Nos. 26 and 27. The Judgment of the Court was delivered by     Bachawat,   J.    This  appeal   raises   questions   of interpretation of certain provisions of the Saurashtra  Land Reforms  Act  1951 (Act No. XXV of 1951).  On June  1,  1947 Narendrasinghji  the then ruler of the Virpur State  granted certain  agricultural lands situate within the State to  the

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appellant,  his  paternal  uncle.   On  February  11,   1948 Narendrasinghji and the appellant effected an exchange under which the appellant returned the lands at Matiya and Guda to Narendrasinghji  and in lieu thereof  was   granted  certain lands   in   Kharedi.   The  lands  in   Kharedi   are   the subjectmatter  of dispute in this litigation.   On  February 17,  1948 the grant was recorded in the "Hak Patrak’ of  the Virpur  State.  On March 8, 1948 the administration  of  the Virpur State was assumed by the United State of  Saurashtra. The grant to the appellant was questioned by the  Saurashtra Government.  Thereafter at a conference called the  Jamnagar Conference, it was arranged between Narendrasinghji and  the Government of India that the lands     407 in  Kharedi  should be regarded as lawfully granted  to  the appellant  subject to the condition that the  grantee  would not  evict  the cultivators from the land.  The  arrangement was  set  out in a letter dated November 2,  1949  from  the officer  on special duty (Integration) Political  Dept.,  to the   Secretary,   Revenue  Department   United   State   of Saurashtra.  The letter stated:                         "According    to    the     Jamnagar               Conference  decision  as  this  grant  was  an               exchange,    it    was     acceptable    after               verification  regarding reasonableness of  the               exchange.  It having been decided  on  enquiry               that the exchange was reasonable, the grant is               accepted subject, however, to the liability of               the grantee (a) to pay 121/2 %  as  assessment               (b) to see that no cultivator shall be evicted               from   the  land   ....   The   grantee   K.S.               Digvijaysinghji may kindly be informed of this               assessment  charge and the other  contents  of               this  letter and may be put in  possession  of               the  land  and allowed to be retained  by  him               subject  to the liabilities specified in  this               letter." Though the appellant was not a party to the arrangement,  he was: aware of and accepted the arrangement and the condition upon  which  his grant was confirmed by  the  Government  of India. Had’ he not accepted those conditions, it was  likely that  the government would have resumed the grant under  the Saurashtra  Land Resumption Ordinance No. 84 of  1949  which came  into force on January 13, 1950.  The  Saurashtra  Land Reforms  Act  came  into force on  September  1,  1951.   On January  29,  1954  the Government of  Saurashtra  issued  a notification  under  sec.  15(2) of the  Act  declaring  the appellant  to be a Girasdar for purposes of the Act  subject to  the  provisions of sec. 18 thereof.  By  a  notification dated  July 20, 1954 the Saurashtra   Government   clarified the  earlier notification stating that the appellant  was  a Girasdar  subject to the provisions of sec. 18 of  the  Act, i.e.,  the  condition imposed by the government at ’the time of his recognition that he cannot evict the tenants.  In the meantime   the   appellant  had applied  to  the  Mamlatdar, Kalawad,  for  an order of allotment of  land  for  personal cultivation  under sec. 18 of the Act.  The application  was resisted  by  the tenants who are the  respondents  in  this appeal.  The tenants claimed that they had "char" rights and that  in any event the appellant was not entitled  to  eject them.  The Mamlatdar allowed the application and allotted to the appellant lands out of the holding of four tenants.   An appeal    from  his  order  was  dismissed  by  the   Deputy Collector,   Eastern   Division,  Halar.   On   a   revision application filed by the tenants the Bombay Revenue Tribunal

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set aside these orders and  dismissed  the application filed under  sec. 19.  All the tribunals concurrently  found  that the  tenants  did not hold "char"  rights.   The  Mamlat-dar allowed the application under sec. 19 on the ground that the 408 conditions imposed upon the appellant before ’the passing of the Act did not debar him from taking the benefits under the Act. The Deputy Collector affirmed this order on the  ground that  by  obtaining  the order of  allotment  of  lands  for personal cultivation the appellant was not seeking to  evict tenants  ’by  exercising  his rights  as  a  landlord.   The Tribunal  disagreed with the views of the Mamlatdar and  the Deputy  Collector and observed that as ,the,  appellant  was aware  of  and  accepted  the  conditions  imposed  by   the arrangement  incorporated in the letter dated  November   2. 1949, he was bound by them and his rights in the  land  were limited  by  the  condition  that he  could  not  evict  the tenants. The Tribunal held that the tenants were entitled to ,take advantage the conditions under sec. 18 of the Act and the  application under sec. 19 was therefore not maintainable.     The  appellant then applied to the High Court of  Bombay at Rajkot under Art. 227 of the Constitution challenging the correctness of the order of the Revenue Tribunal.  The  High Court   dismissed  ,the  application.   It  held  that   the conditions  incorporated in the letter of November  2,  1949 having  been  accepted  by the :appellant  endured  for  the benefit  of the tenants under sec. 18 of the Act.   It  also held  that  the rights of the appellant  as  Girasdar  -were restricted  by the notification under sec. 2(15) of the  Act declaring him to be a "Girasdas" and the appellant was bound by   those  restrictions.   The  present  appeal  has   been preferred  by ’the appellant under a certificate granted  by the High Court.     It is not disputed that the Government of India had  the power   to   impose  upon  the  appellant   the   conditions incorporated  in the letter dated November 2, 1949 and  that the appellant is bound by them.  The government could refuse to recognise  the  grant made to the appellant by the  ruler of  ,the  Virpur  State and to annul  the  grant.   Had  the government annulled the grant, the annulment would have been an  Act  of  State and could not be  questioned  before  the municipal  tribunals  [see State of  Saurashtra  v.  Jamadar Mohamad  Abdulla(1)].   Instead of annulling the  grant  the government  elected to confirm it subject to the  conditions incorporated   in the letter dated  November 2,  1949.   The appellant accepted the grant subject to those conditions and is bound by them.     The  question  is  whether in spite  of  the  conditions incorporated  in  the  letter dated  November  2,  1949  the appellant is entitled to allotment of land under sec. 19  of the  Saurashtra Land Reforms Act 1951.  The Act  was  passed for  the improvement of land revenue administration and  for ultimately putting an end to the Girasdari system.  It makes provisions   to  regulate  the  relationship   between   the Girasdars and their tenants, to enable the latter (1) [1962] 3 S.C.R. 970.    409 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.   Girasdar   means   any talukdar,    bhagdar,  bhayat,  cadet  or  mul-girasia   and includes any person whom the government may by  notification in  the  official gazette declare to be a Girasdar  for  the purposes  of the Act, [s. 2( 15)].  It is common  case  that

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the appellant is a Girasdar by virtue  of  the  notification of the Saurashtra Government declaring him to be a Girasdar. The Act overrides other laws.  Save as otherwise provided in the   Act,  its  provisions  have  effect,   notwithstanding anything  inconsistent therewith contained in any other  law for  the time being in force or any instrument having effect by  virtue  of  any  such  law  or  any  usage,   agreement, settlement,  grant sand or any decree or order of any  court or  other  authority,  (s. 3).. Chapter  III  regulates  the relationship of  Girasdar  with  their tenants.  Subject  to certain  exceptions any person who is  lawfully  cultivating any land belonging to a Girasdar is for the purposes of  the Act  deemed  to be the tenant, (s. 6).  Sections  6  to  17’ confer  on  the  tenants certain  benefits,  privileges  and immunities  in  respect  of  rent,  cess,  rate,  hak,  tax, service,  termination  of tenancy and eviction from dwelling houses.  Particularly  s. 12 provides that no tenancy can be terminated  except  in  accordance with  the  provisions  of Chapter IV or except on certain specified grounds.   Section 18 provides:                      "Nothing contained in this Act shall be               construed  to limit or abridge the  rights  or               privileges  of any tenant under any  usage  or               law for the time being in force or arising out               of  any contract, grant, decree or order of  a               court or otherwise howsoever." Section  18 shows that the Act is intended to confer on  the tenant  fights  and privileges which he does  not  otherwise enjoy  or  possess under any usage or law in  force  or  any contract,  grant, decree or order of a court or  arising  in any  other  way.  If the tenant has any fight  or  privilege apart from the provisions of the Act, he needs no protection under the Act.  He can  claim  protection under his existing rights and privileges.  His existing rights and.  privileges are not limited or abridged by anything in the Act.     The conditions incorporated in the letter dated November 2,  1949 were intended for the benefit of the tenants.   The tenants  can  claim the benefit of the  condition  that  the appellant would not evict them.  The condition is annexed to the grant  to  the appellant.  The right or privilege of the tenant arising out of this condition is a right or privilege arising  out of a grant within the meaning of sec. 18.   Tht expression "grant" in sec. 18 is wide enough to take  within its  sweep a grant by the government to the Girasdar and  is not limited to a grant by the Girasdar  to  the tenant. 410 The  next question is whether the rights and  privileges  of the  tenant arising out of the conditions  incorporated   in the  letter dated November 2, 1949 is limited or abridged by an  order for allotment of land to the appellant under  sec. 19  for  personal cultivation.  Chapter IV enables Girasdars to  obtain allotment of land for personal cultivation.   Any Girasdar  may file an application for such allotment  before the  Mamlatdar  under sec. 19 within     certain  time.   On making  the  necessary enquiries the Mamlatdar may  pass  an order  making  an allotment of land to  ,the  Girasdar,  [s. 20(2)].   After making the order the Mamlatdar has to  issue an  occupancy certificate to the Girasdar in respect of  the deed.   [s. 20(3)].  No Girasdar can obtain  possession   of any  land held by a tenant except in accordance  with   such order, [s. 20(4)].  Nothing contained in Chapter IV  applies to  any land in respect of which a tenant has acquired  char or buta hak, (s. 27).  Under s. 39 the Girasdar   may obtain an occupancy -certificate in respect of land allotted to him under   Chapter IV Section 50(2) provides for  execution  of

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orders  of  the Mamlatdar awarding  possession.   Chapter  V provides  for acquisition of occupant. y rights by  tenants. Having  regard to sec. 30(1) and the proviso to  sec.  32(b) the acquisition  of occupancy  rights  by tenants is subject to  an order of allotment to the Girasdar under  Chapter  IV and  any occupancy certificate issued to a tenant ceases  to be effective as soon as any agricultural land or any portion thereof  is allotted to a Girasdar under Chapter  IV  either before or after the date on which the occupancy  certificate issued to the tenant has become effective.     On  the strength of the order of allotment of  land  for personal  cultivation  under  sec.  20(2)  the  Girasdar  is entitled  to  evict the tenants from ,the land  allotted  to him.  When the Girasdar applies under sec. 19 for  allotment of  land  for personal cultivation, he seeks  to  evict  the tenants from the land.  Therefore  when  the appellant filed his application under sec. 19 he sought an order which would enable  him  to evict the tenants in  contravention  of  the condition of his grant that he would not evict the  tenants. In  view  of see. 18 nothing in Chapter IV  enables  him  to obtain  an  order  limiting  or  abridging  the  rights  and privileges of the tenants arising under the condition.   The Mamlatdar  could   not  under sec. 20’ pass an  order  which would have the effect of limiting or abridging those  fights and  privileges.   The appellant had no right to  evict  the tenants  and  the Mamlatdar could not pass  an  order  which would  enable the appellant to evict them.  The  application filed   by  the  appellant  under  sec.  19  was   therefore incompetent.     The   appellant  as  a  Girasdar  was  subject  to   the provisions of sec. 18.  The declaration in the  notification dated January 29, 1954 that he was subject to the provisions of sec. 18 stated what followed from the express  provisions of the Act.  Because of sec.    411 18, the appellant was subject to the conditions imposed   by the Government at the time of his recognition that he cannot evict  the  tenants.  The notification dated July  20,  1954 declared the existing disability of the appellant in respect of eviction of tenants.     The application filed by the appellant under sec. 19 was rightly dismissed by the Revenue Tribunal and the High Court rightly  refused to interfere with this decision under  Art. 227  of  the Constitution. The appeal is dismissed with costs. G.C.                                  Appeal dismissed. 412