PRAHLAD K. MODI AND ORS. (DEAD) BY LRS.versusSTATE OF GUJARAT

A            PRAHLAD K. MODI AND ORS. (DEAD) BY LRS.
                               v.
                       STATE OF GUJARAT

                               OCTOBER 18, 1994

B                   [K. RAMASWAMY ANDS. C. SEN, JJ.]

          Bombay Personal Jnams Abolition Act, 1952 :

          Sections 4, 5 and 7-Explanation-Scope and interpretation of
c         These appeals are against the judgment of the High Court Gujarat.
    The land which is the subject matter of these appeals is governed by the
    Bombay Personal loams Abolition Act, 1952. On behalf of the appellant,
    it was contended that Section 5 of the Act gives right to the Inamdar to
    retain the land subject to the payment of land revenue. Since Section 7
D itself made in exception to the lands used for building or non-agricultnral
 , purposes, it must be read in conjunction with section 5 and that, therefore,
  . the land which is being used for building purposes and also non-agricul-
    tural purposes, shall be deemed to be the land which bad not been vested
    in the State by operation of Sections 4 and 7 of the Act. The High Court,
E it was contended, erred in its conclusion that the aforesaid land stood
    vested in the State.

          Dismissing the appeal, this Court

          HELD : 1. The operation of Section 7 of the Bombay Personal Inams
F Abolition Act, 1952 is independent of and not subsidiary to section 5 nor
    an exception to section 5. Section 5 deals only with cultivated land. [471-CJ

          2. Explanation to Section 7 makes clear the meaning of the uncul-
    tivated and stating that if the land had not been used for a continuous
    period of three years immediately before the appointed date, it is an
G   uncultivated land. Past tense "uncultivated" would clearly indicate that the
    land which is used for agricultural purpose alone was saved and the
    Inamdar was allowed to retain its possession. In all other lands, the pre-
    existing right, title and interest of the Inamdar has been extinguished and
    vested In the State. The lands used for building and non-agricultural
H   purpose alone were saved from the operation of Section 7. The Explanation
                                         468
                   PRAHLAD K MODI v. STATE OF GUJ.                       469

engrafted in Section 7 that the fands used for over three years prior to the    A
appointed date for building or non-agricultural purposes alone are saved
from the operation of section 7. In other words, the land must be actually
used for building purposes or non-agricultural purpose. That land alone
stood excluded from vesting. All other uncultivated land or waste land
shall vest in the State and the pre-existing right, title and interest of the   B
Inamdar stood extinguished from the appointed date. The possibility of its
future use for building or non-agricultural purpose is not a relevant
consideration to exclude such land from operation of section 7.
                                                           [470-H, 471-A-C]
     Ambabhai Janhavibai v. State of Maharashtra, (1967) BLR 291, dis-          C
approved.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2315-16
of 1978.

    ·From the Judgment and Order dated 29.4.78 of the Gujarat High              D
Court in F.A. Nos. 351 & 355 of 1972.

        P.H. Parekh and B.N. Agrawal for the Appellants.

        Yashank Adhyaryu, Anip Sachthey and C.B. Babu for the Respon-
dent.
                                                                                E
        The following Order of the Court was delivered :

       These appeals by special leave arise from the judgment of the High
Court of Gujarat in F.A. Nos. 351 & 355/1972. The lands bearing survey
Nos. 6 & 9 admeasuring 1 acre 5 gunthas and 1acre10 gunthas respectively
situated in village Sahikpur Bogha, taluka city, Dist. Ahmedabad are the F
subject matter in these appeals. The land is governed by the Bombay
Personal loams Abolition Act, 1952 which came into force w.e.f. June 20,
1953. By operation of s.4 of the Act all personal inams shall be. deemed to
have been extinguished. Section 7 provides that all public roads: ...... waste
land and all uncultivated lands (excluding lands used for building or other G
non-agricultural purposes) which are situated within the limits of any inam
village or inam land shall, except in so far as any rights of any person other
than inamdar may be established in or 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 all over the same or appertaining
thereto, the property of the State Government and all rights held by an H
    470                    SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.

A inamdar in such property shall be deemed to have extinguished and it shall
    be lawful for the Collector, subject to the general or special orders of the
    State Government, to dispose them of as he deems fit, subject always to
    the rights of a way and other rights of the public of individuals legally
    subsisting.

B         Explanation - for the purpose 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 appointed date.

           It is neatly contended by Shri P.H. Parekh, learned counsel for the
C   appellant after a thorough preparation that s.5 of the Act gives right to the
    lnamdar of ret•jning the land subject to the payment of land revenue in
    accordance with the provisions of the Code and the Rules made there-
    under. The land is being used for building purposes and also non-agricul-
    tural purposes. Since s.7 itself made an exception to the lands used for
D   building or non-agricultural purposes, it must be read in conjunction with
    s.5 and that, therefore, 2 acres 15 gunthas of land in Survey Nos. 6 and 9
    shall be deemed to be the land which had not been vested in the State by
    operation of ss.4 and 7 of the Act. The High Court was, therefore, not right
    in its conclusion that the aforesaid 2 acres 15 gunthas stood vested in the
    State by proper reading of the provisions of the Act. We find no force in
E   the contention.

           It is seen that s.4 makes clear that notwithstanding anything con-
    tained 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, with effect from and on
F   the appointed date, all personal inams shall be deemed to have been
    extinguished. As its part, and composit scheme of the Act, s. 7 expressly
    enumerates the properties and appurtentant lands held by the inamdar
    shall stand vested in the State. The pre-existing right, title and interest held
    by the inamdar shall be deemed to have been extinguished and the property
    shall belong to State though it was held by the Inamdar prior to the
G   appointed date. It shall be lawful to the Collector to take possession of the
    land subject to the right of the third party enumerated in s.7. Explanation
    makes clear the meaning of the uncultivated land stating that if the land
    had not been used for a continuous period of three years immediately
    before the appointed date, it is an uncultivated land. Past tense "uncul-
H   tivated" would clearly indicate that the land which is used for agricultural
                  PRAHLAD K. MODI v. STATE OF GUJ.                        471

purpose alone was saved and the Inamdar was allowed to retain its pas-           A
session. In all other lands, the pre-existing right, title and interest of the
Inamdar has been extinguished and vested in the State. The lands used for
building and non-agricultural purpose alone were saved from the operation
of s. 7. The explanation engrafted in s. 7..... that the lands used for over
three years prior to the appointed date for building or non-agricultural         B
purposes alone are saved from the operation of s.7. In other words, the
land must be actually used for building purposes or non-agricultural pur-
pose. _That land alone stood excluded from vesting. All other uncultivated
fand or waste land shall vest in the State and the pre-existing right, title
and interest of the Inamdar stood extinguished from the appointed date.
The possibility of its future use for building or non-agricultural purpose is    C
not a relevant consideration to exclude such land from operation of s.7.
The operation of s. 7 is independent of and not subsidiary to s.5 nor an
exception to s.5. Section 5 deals only with cultivated land. Shri P.H. Parekh
sought reliance on the judgment of the Bombay High Court in Ambabhai
Janhavibai v. State of Maharashtra, (1967) BLR 291. In view of the above         D
construction, the Bombay High Court was not right in its conclusion that
s.7 is to be read with s.5 and the lands which are capable of being used in
futqre should be uncultivated land to which the Inamdar is entitled to the
possession is clearly illegal. In that view, we find no ground warranting
interference. The appeals are dismissed. No costs.
                                                                                 E
T.N.A.                                                    Appeals dismissed.