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

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

                             SEPTEMBER 8, 1989

lB               [M.H. KANIA AND T.K. THOMMEN, JJ.]

          Saurashtra Land Reforms Act 1951/Saurashtra Land Reforms
     Rules 1951-Sections 2(12), 4, 5, 21, 22, 23 and 24/Rule 21-Giras-
     dar-Allotment of land-Lesser hardship being caused to tenant-
     Taking of judicial notice.
c      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 Girasdar who is represented by the. Assistant
  Custodian Evacuee Property. The other respondents, being statutory
D 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 l
E 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
p    them three economic 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
     G irasdars had separate or swang lands and thus entitled to separate
     allotments from swang lands, out oftheir swang estate.
G
        A revision application was preferred before the Gujarat Revenue
  Tribunal against the decision of the Deputy Collector. The Tribunal
  agreed in principle with the Deputy Collector that the Girasdars were
  entitled to separate allotment both from the estate held jointly by them
  and also to separate allotments from the fatates separately by them.
H The Tribunal accordingly held that the Girasdars were entitled to three
                                         78
                       B.K. SHAMJI v. P.J. PATHAK                       79

economic units out of the aforesaid cultivable lauds jointly held by them
                                                                              A
and some of them were entitled to separate allotments out of the lands
separatly 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        B
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·Giriisilars 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   c
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 holdings. Thus the High
Conrt treated the total holding of 1353.34 acres as partly joint and the
remaining part comprised separate holdings of some of the Girasdars.          D

      The appellants-tenants have appealed to this Court after obtain-
ing special leave.

      Dismissing the appeal, this Court,
                                                                              E
      HELD: Judicial !!otice 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 Gir"!'dars than to a tenant whose excess holding was
only marginal if a part of his land is taken for such allotment. [85F J
                                                                              F
      The Revenue Tribunal in deciding as to whose excess land 'should
be banded over b_y the tenants bas proceeded on a just and equitable
basis that i~ should touch only such tenants whose land substantially
exceeds the economic holding, and smaller tenants should not be asked
to snrrender any part of their holdings. [SSE I
                                                                              G
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8 to
lOof 1972.

      From the Judgment and Order dated 15. l.1970 of the Gujarat
High Court in Special Civil Application Nos. 305, 368, 526, 384 and
495 of 1962.                                                        H
      80         SUPREME COURT REPORTS                 [1989] Supp. l s.C.R.

A
           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

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-
                             .
                 B.K. SHAMJI v. P.J. PATHAK [KANIA, J.]                 81

             fied in Column I of the First Schedule, means a holding of
                                                                              A
             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         B
  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
F 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
G 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
H 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.


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