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TMI Blog1968 (4) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... the reference to include the whole appeals so that they might be decided in their entirety at the same sitting. 2. These are appeals against the judgment and order of the High Court of Gujarat, 4/5 May, 1966 from many petitions questioning the declaration made by the Deputy Collector, Bulsar under Section 65 of the Act. Below is given the text of the section with the amended portion material to these appeals underlined. As a result of the declaration the appellants stand to lose possession of their lands. The facts on which the several declarations have come to be made may now be stated. 3. The appellants own and possess lands in the district of Bulsar and claim to carry on agricultural operation by raising and cutting grass used as fodder. They were served with notices under Section 65 of the Act. A sample notice Is Annexure 'B' to the petition of Ramanlal Gulabchand Shah in the High Court. It was issued from the office of the Deputy Collector on February 5, 1966 addressed to Ramanlal Gulabchand Shah. It read as follows:- This is to inform you that during the Inquiry made by us it has been found that you are holding the following grass land together with the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and in this manner formerly after cultivating the land with plough the seeds have been sown therein and since last six years or thereafter by cultivating the said lands continuously with the Tractor and sowing seeds of grass therein, the grass is being grown in the said land. Therefore, that allegation that said land has been kept uncultivated continuously for two years namely 1963-64 and 1964-65 and for the years prior to that made in the notice is absolutely false and we specifically deny the same. Further, over and above the cultivation in the said land we are also making the said land clean and also we are erecting hedge round about it we are also removing the thorns and other things lying in the said land and also keeping continuous watch over the same as soon as the grass grown therein and when the grass becomes fit to be cut, we cut the same and bring the same at our house for our cattle and our cattle eat the same for the whole year....... ..(sic) . The case was then sent to the Additional Mamlatdar for report. The Mamlatdar's report is not before us. On February 28, 1965 the Dist. Deputy Collector, Bulsar made his declaration and we get the gist of the Mamlatdar& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re fulfilling the requirements of cultivation as laid down in the Act itself. 7. Before entering into a discussion of these points we may first see what the Act enacts to achieve by itself and by its Rules. The Act has a long preamble which indicates the object of the law. It says inter alia:- And whereas on account of the neglect of a landholder or disputes between a landholder and his tenants, the cultivation of his estate has seriously suffered, or for the purpose of improving the economic and social conditions or peasants to ensuring the full and efficient use of land for agriculture, it is expedient to assume management of estates held by landholders and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the Province of Bombay and to make provisions for certain other purposes hereinafter appearing; it is hereby enacted as follows :- The following definitions are material to our purpose. Section 2 (1) provides: Agriculture includes horticulture, the raising of crops, grass or garden produce, the use by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancy lands with reference to jirayat, seasonal irrigated and perennially irrigated lands. Section 7 authorises Government to vary the ceiling area and economic holding taking into consideration the situation of the land, its productive capacity, its situation in backward areas and any other factor that may be prescribed. Chapter III then deals with special rights and privileges of tenants and makes provision for distribution of land for personal cultivation. We are not concerned with any matter involved in it. Chapter IV deals with management of estates held by landholders. In view of the definition of landholder' this Part cannot be applied directly to non landholders but the provisions of Section 65 (2) make the provisions of Chapter IV applicable to the lands of non-landholders. The intention of Chapter V is to arrange for the management of the land of landholders with a view to better management and the liquidation of their debts. The relevant sections in this chapter (which applies in this indirect manner to non-landholders' lands) are Sections 44 to 48, 58, 59 and 61. Section 44 reads: Notwithstanding any law for the time being in force, usage or custom or the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims to be made against the estate and the power to remove the mortgage in possession. Sections 58 and 59 may be read here. They confer powers of sales and lease on the Manager and to pass receipts for any moneys, rents or profits raised or received by him and the discharge of the persons on the strength of such receipts. 58. Subject to the rules made under this Act, the Manager after the liquidation scheme has been sanctioned as aforesaid, shall have power to sell or grant on lease all or any part of the estate under the management: Provided that the estate or any part thereof shall not be sold or leased for a period exceeding ten years without the previous permission or the Collector: Provided further that the Collector shall not give such permission unless he is satisfied that such sale or lease is necessary for the benefit of the estate (or unless such sale is in favour of a tenant under Section 32, 32-F, 32-1 or 32-O). The decision of the Collector shall be final. 59. The Manager's receipt for any moneys, rents or profits raised or received by him under this Act shall discharge the person paying the same therefrom or from being concerned to see to the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to continue the management for the purpose for which it was assumed. (2) After taking Into consideration the report of the Manager made under Sub-rule (1), the State Government shall decide whether the management should be terminated under Section 61 or continued further and if so, for what period, such period not being in excess of five years at a time. (3) If the State Government decides to continue the management the Manager shall, from time to time, forward his report through the Collector and shall in any case submit a report not later than two months before the expiry of the current period of the management to enable Government to decide whether the management shall be terminated under Section 61 or shall further be continued: Provided that if the management is to be continued beyond the expiry of ten years from the date on which it was assumed the Collector shall hold a formal inquiry in the manner prescribed by the Bombay Land Revenue Code, 1879, and after recording the statement of the landholder or any person acting on his behalf, shall submit the record and proceedings of the inquiry and his report to the State Government, which shall be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the matter under these two clauses separately. Article 31-A(1)(a) and (b) read: 31-A (1) Notwithstanding anything contained in article 13, no law providing for- (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31. The amendment of Section 65 gives additional power of taking over lands of non-land- holders for management on two grounds. The first is that the land must have remained uncultivated for two consecutive years and the second is that full and efficient use of the land had not been made of the land. In so far as the first is concerned Section 65 in its original form included that condition and it cannot be challenged because of the protection of Article 31-B read with the Ninth Schedule. Therefore action could be taken against any lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 31-A with retrospective effect after Raghubir Singh's case, [1953]4SCR1049 . Raghubir Singh's case, [1953]4SCR1049 did not interpret the article as it is today. In view of the retrospective amendment of the article it may be said that this Court interpreted an article which never was enacted in that form. Therefore the less we speak of the matter from the angle of observations in Raghubir Singh's case, [1953]4SCR1049 the better. But even so the matter is not advanced much further. 12. Looking at the matter in the light of Article 31-A as it is today (and it must be deemed to have been so always) 'management' is specially provided in (b) and must be considered under that clause. The words of that clause are 'the taking over of the management of any property'. 'Any property' means property of any land and would embrace land of landholders and non-landholders alike. The words by the State' indicate that the taking over must be by the State. The next requirement is that this taking over must be either in the public interest or in order to secure the proper management of the property. And lastly the taking over must be for a limited period. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine the provisions. 15. We must first clear one misapprehension and it is that the provisions of Chapter IV can be said to apply in toto. It must be remembered that that chapter is primarily concerned with the liquidation of liability of landholders and schemes to effect that purpose. Section 58 does not give a clean power of sale but only after a liquidation scheme is sanctioned. That applies to landholders and may not be made applicable to non-landholders. 16. To see how the management is to work in respect of non-landholders we have to turn to the rules. Here the pertinent rule is Rule 35. That rule requires a report from the Manager after about a year to enable the State Government to consider whether it is necessary to continue management. The State Government may then decide to release the land from management, or continue it. The management may continue for periods of 5 years at a time on the strength of periodic reports but if management is to continue beyond 10 years a formal inquiry is necessary and then Government may decide to continue the management further. No limit of time is then indicated. There is, therefore, no limit set at all. The protection of Article 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s some distinct advantage in the new management to carry on the new kind of agriculture. The Deputy Collector merely thinks that the land can grow grain or fruits. But so can any grass land or pasture. There is nothing to show that from an agrarian point of view grass grown in these lands was not necessary at all or was being inefficiently grown. A person is entitled to hold and enjoy his property as he thinks best. If regard is to be had for the benefits of society a clear law and a clear determination are required. Both the elements are missing. It is not said in what circumstances cultivation can be said to be inefficient. It is also not said what would be considered efficient cultivation and what inquiries are needed to determine this. It is also not said under what circumstances different kind of cultivation can be imposed upon the land. The law does not provide for an opportunity to the cultivator to change his cultivation from one kind to another. It does not even re-; quire that the management should be; efficient. After taking over the lands the Manager can lease them to others but it is not stated what conditions they have to observe. Merely on the opinion of an' offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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