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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: GUJARAT REVENUE TRIBUNAL & ORS.

DATE OF JUDGMENT08/08/1979

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) UNTWALIA, N.L.

CITATION:  1980 AIR   91            1980 SCR  (1) 233  1979 SCC  (4)  40  CITATOR INFO :  D          1992 SC 221  (2)

ACT:      Bombay Taluqdari Tenure Abolition Act, 1949-S. 6-Bombay Personal Inams Abolition Act, 1952-S. 7-Scope of.      Words & phrases-Waste lands-Meaning of.

HEADNOTE:      The object  and purpose  of the Bombay Taluqdari Tenure Abolition Act,  1949 and the Bombay Personal Inams Abolition Act, 1952  was to abolish taluqdari and inamdari rights as a measure of  agrarian reform. Section 6 of the former Act and s. 7  of the  latter Act  (both of  which are  identical  in terms) provide  that among  others "....all  unbuilt village site lands,  all waste  lands  and  all  uncultivated  lands (excluding lands used for building or other non-agricultural purposes), which  are not  situate within  the limits of the wantas......  "     shall   vest  in   the  Government.  The Explanation to  this section  provides "for  the purposes of this section  land shall be deemed to be uncultivated, if it has nor  been cultivated  for a  continuous period  of three years immediately  before the  date on  which this Act comes into force."      The respondents  were former  Taluqdars  and  Inamdars. Vast stretches  of hilly  tracks  which  were  incapable  of cultivation, but  on which  there was  spontaneous growth of grass formed  part of  the taluqdari estates and inams. When grass was  cut from  these lands,  care was taken not to cut stubs but they were allowed to remain in tact so that in the following year  grass grew  with the  onset  of  rains.  The respondents secured  income from  the  grass  grown  on  the lands;  for  earning  income  they  kept  watchmen  so  that unauthorised pasturing by cattle did not destroy the growing grass.      With the  abolition of  the taluqdari  rights and inams the lands  were regarded as having vested in the Government. The respondents  thereupon sought  a  declaration  that  the lands were  neither vacant  lands nor uncultivated lands and being in their possession they became the occupants thereof. The Mahalkari  held that  the lands  were not waste lands or uncultivated  lands   and  since  the  respondents  were  in possession thereof  they  became  occupants.  The  Collector

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reversed this  order and  held that by reason of Explanation to s. 6 of the Taluqdari Abolition Act and Explanation to s. 7 of the Inams Abolition Act, the lands should be treated as unoccupied  lands   and,  therefore,   they  vested  in  tho Government. The  Revenue Tribunal  reversed the order of the Collector.      On further  appeal the  High Court  held that  the land were productive lands in the sense that grass grew naturally and that the Explanation contemplates only those lands which could  be   cultivated  but   which  were  left  fallow  and uncultivated for a continuous period of three years 234      Dismissing the appeals; ^      HELD: 1. The High Court as well as the Revenue Tribunal were right  in holding  that the disputed lands did not vest in the  Government under s. 6 of the Taluqdari Abolition Act and s. 7 of the Inams Abolition Act. [242A]      2. It would be evident from s. 6 that the vesting is in respect of  properties which  could be put to public use. It leaves  private  properties,  of  the  taluqdars  untouched. Public properties  situate in  a taluqdar’s estate vested in the Government  because they  were meant  for public use. In spite of  vesting of  such property  in the  Government, the conferral of  the rights  of an occupant on a taluqdar under s. 5(1)(b)  in respect of the lands in his actual possession is saved. [239D-F]      3. The  contention that the grass lands on hilly tracks which were  incapable of  cultivation were  waste lands  and uncultivated lands  within the  meaning of  s. 6  cannot  be accepted. The  expression "all  waste lands" has been joined by  the   conjunction  "and"   with  the   expression   "all uncultivated lands".  They indicate  two distinct  types  of lands. If  the legislature  had intended  that the aforesaid expression should indicate one class of lands the expression would have  been  "all  waste  and  uncultivated  lands"  as against the  expression "all  waste and uncultivated lands". There are,  therefor, two  distinct categories of properties viz., waste lands and uncultivated lands. [240A-B]      4. The  expression "waste  lands" means lands which are desolate, abandoned  and not  fit  ordinarily  for  use  for building purposes.  In the  sequence in which the expression waste lands  appears in  the two sections it cannot but have its ordinary etymological meaning viz., lands Lying desolate or useless without trees or grass or vegetation, not capable of any use. [240C]      Rajanand Brahma  Shah v.  State of U.P. & Ors. [1967] 1 SCR 373,  Ishwarlal  Girdharilal  Joshi  etc.  v.  State  of Gujarat & Anr., [1968] 2 SCR 267; referred to.      5(a). The  grass lands  on hilly  tracts were not waste lands. They  were productive  lands in  the sense that grass grew naturally  and so  they were not desolate, abandoned or barren waste lands with no vegetation. The expression "waste lands" in the context would be clearly in the original sense of the  term waste as meaning barren or desolate lands which are unfit for any use or worthless. That test is not clearly satisfied. [240H]      (b) The expression "uncultivated lands" in s. 6 must in the context  m which  it appears  means "cultivable  but not cultivated", "allowed  to lie fallow". It is uncultivable or unfit for cultivation. [241B]      6. The  Explanation below s. 6 has a two-fold function: (1) to  explain the  meaning of the expression "uncultivated lands" in  the substantive provision and (2) it is a key for ascertaining the  meaning of  the  expression  "uncultivated

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lands". Without  the Explanation any land Lying uncultivated on the  date of  the vesting even for a year i.e. allowed to lie fallow  according to  the normal  agricultural  practice would vest  in the  Government. But the Explanation steps in and seeks  to mitigate  the rigour.  It says  that the  land allowed to  lie fallow  continuously for  a period  of three years shall alone be deemed to be uncultivated land. meaning there-by that a piece of land allowed to lie 235 fallow intermittently  for a period of less than three years will not be deemed  "uncultivated lands . [241 C-E]      7. In  the instant  case there were no basic operations as tilling of the land, sowing or disseminating of seeds and planting of  grass. The  subsequent operations viz., the act of securing  the income  of the  grass by  engaging watchmen etc. by  themselves would  not tantamount  to cultivation of the land. [241G]      8.  The   Acts  make   no  provision   for  payment  of compensation for the acquisition of the rights of the former Taluqdar and Inamdars in such lands. Section 7 of the former Act and  s. 10 of the latter Act speak of the extinguishment of  any  right  or  interest  in  land  which  is  waste  or uncultivated but  is culturable.  The lands  in question not benefit for  cultivation were  not culturable and therefore, they do  not fall  within the  ambit of these provisions. If the contention  of the  appellants were  to prevail it would have the  effect of taking these lands out of the purview of s. 14  of the  former Act and s. 17 of the latter Act though such lands are not governed by s. 17 and s. 10 respectively. This would result in deprivation of property without payment of compensation. [242B-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 2411- 2427 and 2431-2440 of 1969.      Appeals by  Special Leave  from the  Judgment and Order dated 5-11-1968  of the  Gujarat High  Court in  S.C.A. Nos. 570/63, 629,  and 634/63.  283-286 of  1966 and  287-296 and 300-309/66.      G. A. Shah and M. N. Shroff for the Appellant.      D. V.  Patel, I.  N. Shroff,  P. V.  Hathi  and  H.  S. Parihar for the Respondents.      The Judgment of the Court was delivered by      SEN J.  These twenty-seven  appeals, by  special leave, directed against  judgment of  the Gujarat  High Court dated November. 5 1968 raise a common question and are, therefore, disposed of by this common judgment.      The short question involved in these matters relates to interpretation of  s.  6  of  the  Bombay  Taluqdari  Tenure Abolition Act, 1949, "the Taluqdari Abolition Act", and s. 7 of the  Bombay Personal  Inams  Abolition  Act,  1952,  "the Personal Inams Abolition Act".      In the  present appeals, certain facts are no longer in dispute. The  respondents are  the  erstwhile  taluqdars  or inamdars what  was known  as Ghogha  Mahal, which  now forms part of the Bhavnagar district. There were vast stretches of hilly tracts  described as ’Dunger’, which were incapable of cultivation, but  on which  there was  spontaneous growth of grass. These lands formed part of their taluqdari estates or inams. They used to sell the grass growing on these 236 lands and  it was  a definite  source of  income to them. It appears that  the lands  were recorded  as  Kharaba  in  the

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record  of   rights  and,  therefore,  consequent  upon  the abolition of taluqdari rights by the Taluqdari Abolition Act and with  the Abolition  of inams  under the  Personal Inams Abolition Act,  the lands  were recorded as having vested in The Government.  Thereupon, the  respondents  made  separate claims  before   the  Mahalkari,  Ghogha  Mahal,  seeking  a declaration under s. 37(2) of the Bombay I and Revenue Code, 1879  that   the  lands   were  neither   vacant  lands  nor uncultivated lands  and  being  in  their  possession,  they become the occupants thereof.      In  an  enquiry  held  under  s.  3(2),  the  Mahalkari examined the claimants individually, the village talatis and the relevant  entries in  the records of rights which showed that the  taluqdars and  inamdars were  deriving income from the grass growing on the lands. It was also in evidence that considerable effort  and expenses had to be incurred by them for securing  the income  of this  grass i.e.,  by   keeping watchmen etc.  to see  that unauthorised pasturing by cattle brought on  land or  trespassing on  it did  not destroy the growing grass,  but that  it grew  to full  stature so as to give a  fair and  full yield.  When operation for cutting of the grass  used to  commence, the stubs were not cut off but were allowed  to remain  intact so  that the next year after The rains,  the grass  would grow naturally again. A portion of the  grass-lands were  also kept apart by the respondents for the  grazing of their cattle by fencing of the area. The Mahalkari, Ghogha  Mahal by his order dated October 28, 1958 held on this evidence that the lands could not be treated as waste lands or uncultivated lands, and since the respondents were in possession thereof, they became the occupants.      The Collector,  Bhavnagar, in  exercise of his suo motu powers of  revision under  s. 211  of the  Code by his order dated  February  28,  1961  set  aside  the  orders  of  the Mahalkari and  held in  all these  twenty-seven cases,  that since the  lands in  question were  not being  cultivated by taluqdars or  inamdars, they  must, by reason of Explanation to s. 6 of the Taluqdari Abolition Act and Explanation to s. 7 of  the Inams  Abolition Act, be treated to be ’unoccupied lands’, and,  therefore, the  lands vest  in the Government. The Revenue  Tribunal, however, by its two orders dated June 19, 1962  and March  26, 1965,  reversed the  order  of  the Collector and  restored that  of the  Mahalkari holding  the respondents to  be the  occupants of  the lands in question. The State  Government of  Gujarat  filed  twenty-seven  writ petitions in  the High  Court for quashing the orders of the Revenue Tribunal. 237      Agreeing with the Revenue Tribunal, the High Court held that there  was evidence  that the lands in dispute were not lying desolate,  abandoned or barren with no vegetation, but were, in  fact, productive  lands, in  the sense  that grass grew naturally  and so, they could not be regarded as ’waste lands’, although they were wrongly recorded as such. It also held that the hilly tracts on which grass grew naturally, by their very nature were unfit for cultivation and, therefore, could not  be treated  as ’uncultivated lands’. It relied on the Explanation  to the  two sections  and observed  that it contemplates only  those lands which could be cultivated but which were  left fallow  and uncultivated  for a  continuous period of  three years.  In  its  opinion,  the  expressions ’waste lands’  and ’uncultivated  lands’, therefore, did not cover grass-lands on hilly tracts which by their very nature are incapable  of cultivation,  but which are not useless so as to be not capable of any use.      The question  for consideration  in  these  appeals  is

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whether the  High  Court  was  right  in  holding  that  the respondents, who  were taluqdars  or inamdars, were entitled to settlement  of  these  grass-lands  on  hilly  tracts  as ’occupants’ thereof  under s.  5(1)  (b)  of  the  Taluqdari Abolition Act and s. 5(2) (b) of the Inams Abolition Act.      Before dealing with the judgment of the Court below, it will be  convenient to  refer to  the scheme of the two Acts and to  set out the relevant sections. The provisions of the two Acts  are identical  in terms.  It would source, for our present purposes,  to generally  refer to  the provisions of the Taluqdari  Abolition Act.  The object and purpose of the Act, as  is clear  from the  preamble, was  to  abolish  the taluqdari rights  as a measure of agrarian reform. Section 3 abolished  the   taluqdari  tenure   and  extinguished   all incidents of  the tenure attached to any land comprised in a taluqdari estate  save as  provided in  the Act. Under s. 4, all revenue  surveys and  settlements made under s. 4 of the Gujarat Taluqdars  Act, 1888  are deemed  to have  been made under (Chapter  VIII and VIII-A of the Land Revenue Code. By s. 5(1)(a)  all taluqdari lands are henceforth liable to the payment of land revenue in accordance with the provisions of the Land Revenue Code.      The abolition of the taluqdari tenure, however, did not deprive the  taluqdars of the lands in their possession, and s. 5(1)(b)  provides that  a taluqdar  holding any taluqdari land shall be deemed to be an occupant within the meaning of the Land Revenue Code or any other law for the time being in force. Than comes s. 6 which provides that all public roads, lanes etc.,  not situate  within the  wants belonging  to  a taluqdar, shall vest in the government and all rights 238 held by  a taluqdar in such property shall be deemed to have been  extinguished.   Section  7  provides  for  payment  of compensation to taluqdars for extinguishment of rights under s. 6  Clause (b)  (i) thereof  provides that if the property acquired is  ’waste or uncultivated but is culturable land’, the amount  of  compensation  shall  not  exceed  three  the assessment of  the land.  Section 14 provides for payment of compensation to taluqdars for extinguishment or modification of any other right where such extinguishment or Modification amounts to transference to public ownership of such lands or any right in and over such land, i.e. in any land other than those in  respect of  which provision  for  the  payment  of compensation has been made under s. 7.      The scheme  under the  Personal Inams  Abolition Act is more   or    less   similar.   Section   4   provides   that notwithstanding anything contained in any usage, settlement, grant, sanad,  or order  or a  decree or order of a Court or any law  for the  time being in force (1) all personal inams shall be  deemed to have been extinguished, with effect from and on the appointed date; (2) all rights legally subsisting on the  said date in respect of such personal inams shall be deemed to have been extinguished, save as expressly provided by or under the provisions of the Act. Similarly s. 5(2) (a) provides that  an inamdar  in resect of the inam land in his actual possession  or in possession of a person holding from him other  than an  inferior holder  referred to  in cl.(b), shall be  entitled to  all the rights and shall be liable to all obligations  in respect  of such  land as  an  occupant. Under cl.(b)  an inferior  holder holding  an inam  land  is entitled to the same rights.      Turning now  to s. 6 of the Taluqdari Abolition Act and s.  7  of  the  Personal  Inams  Abolition  Act,  which  are identical in  terms, the  first thing  to be noticed is that they  deal   with  specific   properties  alone,  which  arc

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enumerated therein  and in  which  all  the  rights  of  the taluqdars or inamdars are completely extinguished.      Section 6 of the Taluqdari Abolition Act reads:           "6. All public roads, lanes and paths, the bridges      ditches, dikes  and fences, on or beside, the same, the      bed of the sea and of harbours, creeks below high water      mark, and  of rivers, streams, nallas, lakes, wells and      tanks, and  all canals,  and  water  courses,  and  all      standing and  flowing water,  all unbuilt  village  sit      lands,  all  waste  lands  and  all  uncultivated  land      (excluding  lands  used  for  building  or  other  non-      agricultural purposes),  which are  not situate  within      the limits of the wantas belonging to a taluqdar in 239      taluqdari estate  shall except  in so far as any rights      of  any   person  other   than  the   taluqdar  may  be      established in  and over  the same  and except  as  may      otherwise be  provided by any law for the time being in      force, vest  in and  shall be  deemed to  be, with  all      rights in or over the same or appertaining thereto, the      property of  the Government  and all  rights held  by a      taluqdar in  such property shall be deemed to have been      extinguished and  it shall be lawful for the Collector,      subject  to  the  general  or  special  orders  of  the      Commissioner, to  dispose them  of  as  he  deems  fit,      subject always to the rights of way and of other rights      of the public or individuals legally subsisting.           Explanation-For  the  purposes  of  this  section,      land shall  be deemed to be uncultivated, if it has not      been cultivated  for a continuous period of three years      immediately before  the date  on which  this Act  comes      into force". (Emphasis supplied)      On a  fair reading  of the section, it would be evident that the  vesting is in respect of properties which could be put to  public use.  It leaves the private properties of the taluqdar untouched.  The legislative intent is manifested by clear enumeration of certain specific properties not situate within the  wantas of  a taluqdar.  It begins  by specifying ’All public  roads, lanes, paths, bridges, etc.’ and ends up with ’all  village site  lands,  all  waste  lands  and  all uncultivated  lands’.  and  these  being  public  properties situate in  a taluqdar’s estate must necessarily vest in the Government because  they are  meant for public use. In spite of vesting  of such property in the Government, however, the conferral of  the rights  of an occupant on a taluqdar under s. 5(1)(b) in respect of the lands in his actual possession, is saved.      Pausing there,  it is fair to observe that the words in parenthesis ’excluding lands used for building or other non- agricultural  purposes’,  exemplify  the  intention  of  the legislature not  to deprive  a taluqdar  of such  land, even though such  property  is  uncultivated  land,  due  to  its inherent character as well as by reason of the Explanation.      lt is  therefore, evident that the determination of the question whether a particular category of property belonging to a  taluqdar in  a  taluqdari  estate  is  vested  in  the Government or  not, and  the determination  of the  question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property. The expression ’all 240 waste lands’  has been  joined by conjunctive ’and’ with the expression  ’all   uncultivated  lands’.   They,  therefore, indicate two distinct types of lands. If the legislature had intended that  the aforesaid  expression should indicate one

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class of  lands, the  expression rather would have been ’all waste and uncultivated lands’ as against the expression ’all waste lands  and  all  uncultivated  lands"  were  we  have, therefore, two  distinct categories of properties viz. ( 1 ) waste lands, and (2) uncultivated lands. The contention that the grass-lands  on hilly  tracts  which  are  incapable  of cultivation  were  ’waste  lands’  or  ’uncultivated  lands’ within the meaning of s. 6 cannot be accepted.      Now, the  expression ’waste  lands’ has  a well-defined legal  connotation.  It  means  lands  which  are  desolate, abandoned, and not fit ordinarily for use building purposes. In Shorter  oxford English  Dictionary 3rd  Ed., vol.  2, p. 2510, the meaning of word waste’ s given as           "1. Waste  or desert land, uninhabited or sparsely      inhabited and uncultivated country; a wild and desolate      region; 2.  A piece  of land not cultivated or used for      any purpose,  and producing  little or  no  herbage  or      wood. In  legal use,  a piece  of such  land not in any      man’s occupation  but lying  common.  3.  A  devastated      region."      In the  sequence in  which the expression ’waste lands’ appears in the two relevant sections, it cannot but have its ordinary etymological meaning as given in the Shorter oxford Dictionary i.e..  land lying  desolate or  useless,  without trees or  grass or  vegetation, not  capable of  any use. In Rajanand Bramha  Shah v.  State of  Uttar Pradesh & Ors this Court, while  discerning the  meaning of  ’waste and  arable land’ in  s.  17(4)  Of  the  Land  Acquisition  Act,  1894, observed that  the expression  ’waste land’ as contrasted to ’arable  land’,   would  mean  ’land’  which  is  unfit  for cultivation and  habitation, desolate  and barren  land with little or  no vegetation  thereon. To the same effect is the decision in  Ishwarlal Girdharilal  Joshi etc.  v. State  of Gujarat & Anr.      It is clear that these grass-lands on hilly tracts were not waste  lands. They  were productive  lands in  the sense that grass  grew naturally  and so  they were  not desolate, abandoned or  barren waste  lands with  no  vegetation.  The expression ’waste lands’ in the context would be clearly, in the original sense of the term ’waste’ as 241 meaning barren or desolate lands which are unfit for any use or which are worthless. That test is not clearly fulfilled.      The   appellants    alternative   contention    raises, primarily, the  question whether  upon a proper construction of s.  6 these grass-lands on hilly tracts were uncultivated lands. That  depends upon  the terms  of  the  section.  The expression ’uncultivated  lands’  in  s.  6,  must,  in  the context in  which  it  appears,  mean  ’cultivable  but  not cultivated’ i.e.  fit for  cultivation, but  allowed to  lie fallow. It is uncultivable or unfit for cultivation.      The Explanation  below s.  6   has a two-fold function. The purpose  of the  Explanation first  is  to  explain  the meaning  of  the  expression  ’uncultivated  lands’  in  the substantive provision.  It then  seeks to curtail the effect of the  section. It is a key for ascertaining the meaning of the   expression    ’uncultivated   lands’.    Without   the Explanation, any land lying uncultivated, on the date of the vesting, even  for a  year.  i.e.,  allowed  to  lie  fallow according to the normal agricultural practice, would vest in the Government.  But then the Explanation steps in and seeks to mitigate the rigour. It says that the land allowed to lie fallow continuously for a period of three years, shall alone be deemed  to be  uncultivated land,  meaning thereby that a piece of  land allowed  to lie fallow, intermittently, for a

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period  of   less  than  three  years  will  not  be  deemed ’uncultivated lands’.      In that  view of  the matter,  the grass-lands on hilly tracts which  ere incapable of any cultivation could not, in law, be treated to be uncultivated lands’ within the meaning of s. 6, read with the Explanation thereto.      There seems  to be  no doubt  on the  facts of the case that there  were no  such basic operations as tilling of the land, sowing  or disseminating  of seeds,  and  planting  of grass. The  subsequent operations i.e., operations performed after the  grass grew on the land, e.g., the act of securing the income  of this  grass by  engaging watchmen etc. to see that unauthorised  pasturing by  cattle brought  on land  or trespassing on it did not destroy the growing grass but that it grew to full stature so as to give a fair and full yield, or when  operations  for  cutting  off  the  grass  used  to commence, the act of tending the stubs so that they were not cut off  but were  allowed to remain intact so that the next year after  the rains, the grass would grow naturally again, by themselves  would not be tantamount to cultivation of the land. 242      In our  opinion, the  High Court as well as the Revenue Tribunal were, therefore, right in holding that the disputed lands did  not vest  in tile  government under  s.   of  the Taluqdari Abolition  Act and  s. 7  of  the  Personal  Inams Abolition Act.      In reaching.  that conclusion,  we cannot but take into consideration the  fact that  the  Acts  make  no  provision whatever for payment of any compensation for the acquisition of the  rights of  the former taluqdars and inamdars in such lands. They  are not  entitled to  any  compensation  either under s.  7(1)(b)(i) of  the Taluqdari  Abolition Act and s. 10.(1) (b)  (i) of  the Personal  Inams Abolition Act. These provisions speak  of the  extinguishment  of  any  right  or interest in  land which  is ’waste  or uncultivated  but  is culturable’.  The  lands  in  question  not  being  fit  for cultivation, were  not ’culturable’  and. therefore, they do not fall  within the  ambit  of  these  provisions.  If  the contention of  the appellant  were to prevail, it would lead to an anomalous position. It would have the effect of taking these lands  out of  the purview  of s.  14 of the Taluqdari Abolition Act and s. 17 of the Personal Inams Abolition Act, though such  lands are  not governed by s. 7(1)(b)(i) of the former Act  and s.  10(1)(i) of  the latter  Act. This would result  in   deprivation  of  property  without  payment  of compensation.      Our attention  was drawn  to the  decision  in  Ambabai Janhavibai  v.  State  of  Maharashtra.  (1)  That  judgment proceeds on the footing that there was a conflict between s. S and  s. 7 of the Personal Inams Abolition Act. There is no basis for  this assumption.  Further, the  observation  that ’since it  is admitted  that no agricultural operations were carried out  on the  lands for  the purpose  of  raising  or growing grass  on the lands’, the contention that ’the lands on which  grass grew  naturally could  not  be  said  to  be uncultivated, cannot  be accepted’, even though the inamdars were making  use of these lands and were realising income by selling the  grass which grew thereon, appears to proceed on a  wrongful  assumption  that  the  sine  qua  non  for  the applicability  of   s.  5   was  actual   cultivation.  This observation, in our view, cannot be supported.      In  the   result,  these  appeals  must  fail  and  are dismissed with costs. P.B.R.                                    Appeals dismissed.

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