BHAT KALIDAS SHAMJI (DEAD) BY L.RS. & ORS. v. P.J. PATHAK & ORS.

The Judgment of the Court was delivered by

B KANIA, J. These are appeals by special leave against thejudg- ment of a learned Single fodge 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 henc<>, the relevant facts can be very briefly stated. c 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 rep- II> resented 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 rep- resented by the Assistant Custodian of Evacuee property and the rest of the respondents are the remaining Girasdars from whom the appel- lants held lands on le,ases. E Before going into the facts or the arguments advanced, we pro- pose to take note of the relevant provisions of the Saurashtra Land Reforms Act, 1951 (hereinafter referred to as "the said Aci"). The said Act was enacted with the object of improvement of the land revenue administration and for ultimately putting an end to the IF Girasdari system and to regulate the relations between the Girasdar5 and their tenants. We may ~ention 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 interme- diary landlords, the said Act provided for the abolition cf the G Girasdars system and at the same time sought to achieve equitable distribution of land for personal cultivation between the Girasdars and their tenants.

Sub-section ( 12) of section 2 of the said Act runs as follows:

" 'economic holding' in relation to any region sped-

p. 81 Copy page pinpoint

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 economic hold- ings 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 includes within its ambit a talukar, bnagdar, bhayat, cadet or mulgirasia and includes any person declared by the Government by a notification to be a Girasdar for the purposes of the said Act. Under sub-section (18) of c 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 D section a Girasdar shall be deemed to belong to A class if the total area of agricultural land comprised in his estate exceeds eight hundered 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. E 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 economic holdings. Section 22 inter alia deals with the principles and method of allotment of land to , Girasdars of A and B Classes. The relevant part of the said section for F · the purposes of the appeal runs as follows:

"In making an allotment of land to any Girasdars of A Class or B Class the Mamlatdar shall have due regard to the following provisions, namely: G (a) firstly, such of the bid land or cultivable waste of the estate as the Girasdar. wishes to utilise for personal cultivation shall be allotted to him;

(b) secondly, if the land allotted under clause (a) is not sufficient, such agricultural land as is held by.a. H

82 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

A 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:

B "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 c (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 0 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 personally to the extent of one E ' 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 allotable to him, his tenants who hold excess land, that is, in excess of an economic holding, are liable to surrender 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 clearthat 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 rulesframed under the said

B.K. SHAMJI v. P:J. PATHAK [KANIA, J.] 83

Act and known as "The Saurashtra Land Reforms Rules, 19S 1" A (hereinafter referred to as "the said Rules"). Rule SO of the said Rules provides that in making alloiment of land to any Girasdar of A Class or B Class, the Marnlatdar shall have due regard to the provisions con- tained 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 sub- B section (1) of section 24, the land will be taken from tenants propor- tionately to the excess or the holdings as the case may be. There is, however, a proviso to Rule SO which states that where the proportio- nate 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. c Itwas pointed out by Mr. Mehta, learned counsel for the appel- lants 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 13S3.34 acres. The family of the Girasdars was treated as an A Class Girasdar. The Mahalkari Kutiana by his decision dated June 2S, 19S9 held that the D 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 pre- ferred an appeal against the said decision and in that appeal, the Deputy Collector, Porbandar, respondent No. 2, modified the allot- ment made under the order of Mahalkari. He held that some of these E 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 sepa- f' rate 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 13S3 .34 acres. This decision was assailed by way of a Special Civil G Application before the Gujarat High Court. In all, five petitions were filed by tenants challenging the decision of the Gujarat Revenue Tri- bunal. The learned Single Judge who disposed of the said petitions 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 ~" allotment as an A Class Girasdar and were thus entitled jointly to H

84 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

three economic holdings which came to 60 acres. However, as found A by the Tribunal, one Girasdar, Ali Khokhar, had handed over posses- sion 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- B ment as C Class Girasdars in respect of their respective separate hold- illgs. The learned Judge clearly proceeded on the footing that out of i:he said total holding of 1353 .34 acres was partly joint and the remain- ing 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. How- c ever, 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 I) ·· allotment in respect of the land held by them jointly and the separate allotments in respect of the land held by them separ&tely 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 I:E Gjrasdars 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 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, F was appealed against before the Tribunal. The Tribunal also pro- ceeded 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 Iii open to them to raise .it before us. It is significant that none of the -·

J3.K. SHAMJI v. IU. PATHAK .[KANIA, J.] 85

tenants of the said Girasdars in Mal village has joined as a respondent A 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 ..lhat certain lands were liable to be allotted lo the Girasdars to make up the B ·1and allotable to them for personal cultivation, the said laiid should have been made up by calling 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 c<intention, 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 economi9 holding c 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 already set out earlier and which provides for taking lands from tenants proportion- ately to the excess of land, that is, land in excess of the economic holding which they were entitled to hold. He, however, forgets that there is a proviso to this Rule which we have referred to earlier which D _provides that where taking of such proportionate excess land would lead to hard,hip, in that case, the Mamlatdar can decide the propor- tion 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 equitable basis that it should touch only such tenants whose land E substantially exceeds the economic holding and smaller tenants should -I 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 F -. 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. G

Y. Lal Appeals dismissed.