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Juwansinhji Balvirisinhji Vs. Members of the Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Property
CourtMumbai High Court
Decided On
Case NumberCivil Appl. No. 11 of 1956
Judge
Reported inAIR1957Bom182; (1957)59BOMLR287; ILR1957Bom459
ActsCode of Civil Procedure (CPC), 1908; Tenancy Law; Saurashtra Land Reforms Act, 1951 - Sections 2, 2(13), 2(15), 2(23), 2(28), 5, 19, 19(1), 20, 23 and 40; Constitution of India - Article 226
AppellantJuwansinhji Balvirisinhji
RespondentMembers of the Tribunal and ors.
Appellant AdvocateM.O. Shah, Adv.
Respondent AdvocateB.R. Sompura, Special Govt. Pleader
Excerpt:
.....(1951) 53 bom. l.r. 1009 : s.c [1952] a.i.r. bom. 235 referred to. - - ' this definition of the word 'estate' clearly contemplates both the entire land held by a girasdar as also an undivided share of a girasdar who has an interest in giras lands with others though that interest may not yet have been divided by metes and bounds. it is somewhat manifest therefore from the definitions of the word 'estate',holding' and 'girasdar' that the legislature while providing for these definitions distinctly contemplated to treat an undivided share as a distinct entity and therefore included in the term 'girasdar' both a 'bhagdar' as well as a cadet. 11. section 23 of the act makes the position still clearer because it provides distinctly that in case of lands belonging to an undivided family the..........manifestly wrong. the learned special government pleader urged that though the sections use the word girasdar in singular the word would mean the plural also under the interpretation act being in force in saurashtra. that would ordinarily be so but in this act the legislature has by giving definitions expressed their intention to the contrary. 16. that being the position the next question is whether we would issue a writ of certiorari in a, case where there is clearly a wrong interpretation of a statute or a disregard to a part of such a statute. ordinarily the writ of certiorari would be issued to correct the decisions of an inferior tribunal when such decisions are either given in excess of jurisdiction or in the irregular exercise of jurisdiction or when in the exercise of such.....
Judgment:

Shelat, J.

1. The petitioner and his four brothers had as Cadets of the former Lakhtar State received as Giras from that State four villages viz. Moti Kishol, Mul Kishol, Rupavati and Karangadh and other lands situate in the village of Talavani, and had obtained the Hak Patrak dated 15th October 1928 duly registered before the Political Agent of the old Eastern Kathiawar Agency.

2. Of these villages only Karangadh and the lands situated in Talavani are situate within the territory of the then State of Saurashtra and therefore, the Saurashtra Land Reforms Act XXV of 1951 as stated in Section 2 thereof would only be applicable to those lands situate in the villages of Karangadh and Talvani. The case of the petitioner is that being divided and separate in food, worship and estate he and his brothers are holding the Giras as tenants-in-common as the lands are not yet divided by motes and bounds. They therefore say that they are Girasdars within the meaning of Section 2 (15) of the said Act.

3. The applicant on behalf of himself and his four brothers made an application before the Mamlatdar of Lakhtar as provided for by Clause 1 of Section 16 of the Act for allotment of the lands describing themselves therein as Girasdars of 'A' class. On the 19th December 1952 however the petitioner applied to the Mamlatdar stating that it was through an error that he had described himself and his brothers as 'A' class Girasdars but that they were in fact 'E' class Girasdars. Their contention was that they were riot 'A' class Girasdars because the total area of agricultural lands in their possession and enjoyment Was only 495 acres and 37 gunthas in Karangadh and 180 acres and 26 gunthas in Talavani village aggregating in all to 676 acres and 23 gunthas and therefore they contended that under Section 5 of the Act they would be Girasdars of 'B' class only. In that application they also stated that since they have had already in their possession 180 acres 26 gunthas for personal cultivation as Girasdars, no. question of any allotment remained to be determined.

4. By his order dated the 25th of February 1953 the Malatdar declared the petitioner and his brothers as 'A' class Girasdars and in that order agreed that no question of allotment arose as the applicant and his brothers were already in possession of 180 acres and 26 gunthas of land as Gharkhed lands. The Mamlatdar however made no order on the second application dated 19th of December 1952 whereby the petitioner had asked for the amendment of his original application by stating that they were not 'A' class but 'B' class Girasdars. Both the Deputy Collector of Limbdi and the Revenue Tribunal confirmed the said order by their orders in appeals before them dated 8th May J954 and 11th November 1954 respectively. The Revenue Tribunal held that under the proviso to Section 5 of the Act the petitioner and his brothers were Girasdars of 'A', class.

5. Mr. Shah for the petitioner contended that the applicant and his brothers being tenants-in-common which position was not disputed before any of the Tribunals below and the total agricultural lands owned by them being only 676 acres and 23 gunthas they should have been treated as 'B' class Girasdars. He further contended that the proviso to Section 5 did not apply to them as it contemplated individual Girasdars and not Girasdars who hold the lands jointly as tenants-in-common. He also contended and that has not been disputed by the learned Special Government Pleader that the village Karangadh is not included in Schedule 2 of the Act as majmu village and therefore Karangadh cannot be regarded as the Girasdar's village under the proviso to Section 5 of the Act.

6. He further contended that the order passed by the Tribunal was illegal since the petitioner and his brothers have had already in their possession 180 acres and odd as Gharkhed lands and therefore since no question of allotment remained to be decided the only thing that remained to be done by the Tribunal was to dismiss the applications.

7. The question which the Tribunal framed as an issue before them was whether the Proviso to Section 5 applied to lands in Karangadh held jointly by the petitioner and his brothers and which are not divided by metes end bounds. In other words the question that they raised was whether the applicant and his brothers can be said to be a joint Girasdar owning the village Karangadh within the meaning of the proviso to Section 5. The only reason given by the Tribunal in the very last sentence of their order was that the lands in question being held jointly and the management thereof being done by the petitioner alone on behalf of himself and his four brothers, the lands fell under the proviso to Section 5.

8. The question that has been raised before us is whether the construction put upon that proviso by the Tribunal is a correct construction tO appreciate the real contentions it is necessary to examine certain other Sections of the Act. Section 2 (15) of the Act defines Girasdar. That definition inter alia includes in the term 'Girasdar' a 'Bhagdar' i.e. a co-sharer and a cadet. As the definition therefore stands prima facie it would mean that if there are more than one co-sharer or Cadet in respect of giras lands, each of them irrespective of the fact that the lands in question are jointly held and not divided by metes and bounds would be a Girasdar within the meaning of that definition. This interpretation of Section 2 (15) gains support in Clause 13 of Section 2 which defines the word 'estate.' There an 'estate' is defined as all land of whatever description and expressly includes therein 'an undivided share thereof held by a Girasdar.' This definition of the word 'estate' clearly contemplates both the entire land held by a Girasdar as also an undivided share of a Girasdar who has an interest in Giras lands with others though that interest may not yet have been divided by metes and bounds. The inclusion of an undivided share in this definition makes it therefore evident that the undivided share of a tenant-in-common is an 'estate' within the meaning of that sub-clause, Clause 17 of Section 2 then defines 'holding' as meaning a parcel or parcels of land and includes in that definition also an undivided share thereof again making a share of a tenant-to-common though undivided by metes and bounds as a distinct holding. It is somewhat manifest therefore from the definitions of the word 'estate', 'holding' and 'girasdar' that the Legislature while providing for these definitions distinctly contemplated to treat an undivided share as a distinct entity and therefore included in the term 'Girasdar' both a 'bhagdar' as well as a cadet. It cannot be said that while defining the word 'Girasdar' the Legislature was unaware of fact that there were in Saurashtra Giras lands jointly held by members of a joint and undivided family or by members of such a family though separate in estate yet holding lands under a joint management and not physically divided by metes and bounds. Yet the Legislature has treated each cadet and each member of such a family as a distinct Girasdar in his individual capacity by reason of his having an interest as such in the lands.

9. some assistance in construing these terms can also be had from the other definitions found in Section 2 for the Legislature wherever it meant otherwise have in fact defined words with an unusual connotation. For instance in Clause 23 of Section 3 a joint and undivided Hindu family contrary to the general notions of law has been regarded a distinct entity by treating it as 'a person'. Likewise where it defines a 'Talukdar' in Clause 28 it expressly provides that a Talukdar means a Talukdar whose name stood on the Tribute List maintained by the Political Agency on the 14th August 1947 or who owned an estate on Political Tenure on the 14th August 1947 and includes any Bhagdar and Peta Bhagdar provided however that where the great-grand-father, grand-father or father of any Talukdar is alive only the great-grand father, grand-father or the father as the case may be, who is alive, shall be deemed to be the Talukdar. The talukdari estate is thus treated in this clause as one entity where the father, grand-father or the great-grand-father of such a shareholder is surviving, otherwise a shareholder or even a sub-sharer is to be treated as a Talukdar within the meaning of Section 2 (28).

10. Chapter IV of the Act-deals with the allotment of lands to Girasdars for personal cultivation. Section 19 (1) provides for an application to be made within the prescribed time by a Girasdar to the Mamlatdar. The word 'Girasdar' used in this section must be taken to mean a Girasdar as defined in Section 2 (15). Under Clause 2 of Section 19 such a Girasdar has to set out certain particulars in his application, among other things, the approximate area of the land in his estate. The word 'estate' it must be recollected not only includes his separate estate but also his undivided share if any in a divided family as contemplated by Section 2 (13). Clause 3 of Section 19 then provides that where a Girasdar makes an application, on his own behalf as also on behalf of other Girasdars who are Jointly entitled with him to the allotment of lands, the application is to contain the names of those persons on whose behalf the allotment is prayed for and the full particulars of the joint estate, and of Gharkhed of all such persons. Clause 3 of Section 19 therefore again shows that each one of the persons interested in the lands jointly held is treated as a separate person for the purposes of this Section for otherwise there would be no sense in making it necessary to show separately the quantum of Gharkhed of each of them. The Mamlatdar has to allot the land in such a case after considering the Gharkhed of all such persons and it is after consideration of these factors that the Mamlatdar is to make the order of allotment under Section 20 and issue the occupancy certificate.

11. Section 23 of the Act makes the position still clearer because it provides distinctly that in case of lands belonging to an undivided family the allotment is to be made to the head of the family on behalf of the family. That is quite consistent with the definition of the word ''person' in Section 2 (23) which includes an undivided Hindu family. As a clear contrast to such a case, in the case of a family divided in interest only, the allotment is to be made to all the members of the family jointly as to a single unit ; and in the case of a Girasdar whose land was divided from that of the other members of his family by metes and bounds prior to the 1st February 1951, to such a Girasdar. This section therefore recognises all the three positions; (1) of a joint and undivided Hindu family where lands are held jointly, and the interest of each member of the family is in the whole estate in its entirety (2) of a family divided in food, estate and worship and where the share of each is ascertained though not physically partitioned by metes and bounds and (3) where the lands are divided to each one of the members by metes and bounds and where each one of the members therefore is in physical possession of his ascertained and divided share. It is clear from these Sections that whereas in the first category the holder is the family, a person recognised by the Act itself, in categories 2 and 3 each person having an as certained share whether divided in metes and bounds or not is a Girasdar recognised in his Individual capacity for the purposes of the Act.

12. Section 40 of the Act provides for the assessment payable by Girasdars in respect of lands allotted to them and Sch. 3 to the Act affords certain concessions to Girasdars of ' B' and 'C' classes while no such concessions are given to 'A' class Girasdars. It is because of this loss of concession that Mr. Shah makes a grievance of having been declared as 'A' class Girasdar although the agricultural lands held by the petitioner and its brothers are only 676 acres and odd which fact is not disputed in the order of the Tribunal.

13. In the light of these various provisions of the Act we now return to Section 5 and its proviso whose interpretation is the subject-matter of the present controversy. Section 5 is concerned with the classification of Girasdars. Clause 1 provides inter alia that for the purpose of assessment of revenue payable under Section 40 a Girasdar shall be deemed to belong to ' A' class if the total area of agricultural land comprised in his estate exceeds 800 acres, to 'E' class if it exceeds 120 acres but does not exceed 800 acres and to 'C' class if it does not exceed 120 acres. The proviso to this Section then provides that if a Girasdar owns one or more villages he shall be deemed to belong to ''A' class irrespective of the total area of agricultural land comprised in his estate. The question therefore to consider is what meaning should be attached to the words 'Girasdar' and his 'estate' mentioned in this proviso.

14. Now it is a well-settled principle of construction that where a special statute of the kind that we have before us lays down the definition of a word or a class of persons the meaning so given must be given to that word or category of persons wherever it occurs in the statute unless in the context in the same Statute it is otherwise provided for aS stated by Jessel M.R. in Spencer v. Metropolitan Board of Works (1882) 22 Ch. D. 142, and quoted by Maxwell in his Interpretation of Statutes (10th Edition) page 322 :

'It is at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. Accordingly, in ascertaining the meaning to be attached to a particular word in a section of an Act, though the proper course would seem to be to asceitam that meaning if possible from a consideration of the section itself, yet, if the meaning cannot be so ascertained, other sections may be looked at to fix sense in which the word is there used.'

It is a canon of interpretation that all words if they be general and not express and precise are to be restricted to the fitness of the matter i.e., they must be construed with reference to the subject-matter of the legislation and limited to it. Thus enactments which often use the word 'person' would be variously understood according to the circumstances in which the word was used, for instance, including or not including Corporations, Thus in the Act under consideration the word 'person' has been given a wider connotation to include even a joint and an undivided Hindu family although such a family is not an entity according to the general law. Another rule of interpretation equally well settled is that in a statute which throws a burden on the subject and deprives him of his right to property if there is ambiguity as to the meaning of a section, inasmuch as it is disabling section, the construction which is in favour- of the freedom of the subject should always be given effect to. Similarly in a Fiscal or a Taxing Act one has to look merely at what is clearly said for there is no room for any intendment nor for any equity nor for any presumption. (See Maxwell on Interpretation of Statutes (10th Edition) page 286).

15. Since the word 'Girasdar' is defined in Section 2 (15) as including a bhagdar or a cadet within which meaning the applicant and his brothers would prima facie fall, there could be no difficulty in treating each one of them as a separate Girasdar notwithstanding the fact that their lands are not yet divided by metes and bounds. Similarly the word 'estate' as defined in Section 2 (13) as being inclusive of an undivided share held by a Girasdar would mean a share though ascertained but not physically partitioned. In the context of these definitions and in keeping the principles of construction aforesaid in mind the same meaning must also be attached to the word 'Girasdar' as used in the proviso to Section 5 of the Act. Therefore a Girasdar as used in that proviso must mean an individual owning a village or more villages and not the members of a family divided from each other in food, estate and worship though the properties held by them are jointly held and not divided by metes and bounds on or before the 1st February 1051 as mentioned in Section 23. If the Legislature had meant otherwise they would have said distinctly as they have done in the case of a Talukdar that a Girasdar for the purpose of this proviso shall mean all the members of the family though divided but who have not yet partitioned their properties by metes and bounds. That not being done we must attach to the words 'Girasdar' and 'estate'' the same meaning as is given in Sections 2 (15) and 2 (13) of the Act, On the face of the order of the Tribunal therefore the meaning given to the proviso to Section 5 is in our opinion manifestly wrong. The learned Special Government Pleader urged that though the Sections use the word Girasdar in singular the word would mean the plural also under the Interpretation Act being in force in Saurashtra. That would ordinarily be so but in this Act the Legislature has by giving definitions expressed their intention to the contrary.

16. That being the position the next question is whether we would issue a writ of certiorari in a, case where there is clearly a wrong interpretation of a statute or a disregard to a part of such a statute. Ordinarily the writ of certiorari would be issued to correct the decisions of an inferior Tribunal when such decisions are either given in excess of jurisdiction or in the irregular exercise of jurisdiction or when in the exercise of such jurisdiction canons of natural justice are disregarded. But as has been observed in K.P. Mushran v. B.C. Patil, : AIR1952Bom235 (B), the High Court has also the jurisdiction to issue a Writ Of certiorari even to correct an error of law on the face of the record. Such an error must of course be an error so patent and manifest that the Superior Court will not permit the Subordinate Court or Tribunal to come to a decision in the face of a clear ignorance or disregard of a provision of law. If a Section of a statute is misconstrued or if a provision of law is overlooked or not applied and that appears from the judgment of the lower Court itself, then the superior Court would interfere by a writ of certiorari. We do not agree with the contentions urged by the learned Special Government Pleader that the Tribunal having jurisdiction to entertain the application and having already exercised it, it would not be open to this Court to interfere with the findings of the Tribunal. That would be begging a question because the writ of certiorari is intended in fact to cure manifest defects in an order made by the Tribunal. In our view the order passed by the Tribunal falls under this dictum, it being opposed to the definitions as also the Sections which we have already referred to. The order of the Tribunal therefore must be quashed.

17. The learned Special Government Pleader lastly contended that the State of Saurashtra, should not have been made a party to this petition inasmuch as they were not a party before the Tribunal. We find however that the State of Saurashtra has filed its returns and there no objection of the type now contended for the first time has been raised. In fact this petition has been resisted in the main by the State. That being the position we cannot accept at this stage the contention raised by the Special Government Pleader.

18. The result therefore is that the order of the Tribunal is quashed and the rule made absolute. There will be no order for costs.

19. Rule made absolute.


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