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Nathubhai Gandabhai Desai Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1184 of 1954
Judge
Reported in(1955)57BOMLR199
AppellantNathubhai Gandabhai Desai
RespondentThe State of Bombay
DispositionPetition dismissed
Excerpt:
bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 2, 65-constitution of india, articles 31 a, 31b-grass growing naturally and spontaneously on land-cutting of such grass whether 'agriculture' within section 2-expression 'raising grass' in section 2 whether includes cutting of grass or activity for protection of grass-whether proviso to section 65 prevents manager from leasing land at rate higher than assessment-government whether can assume management of lands under section 65 without giving notice-articles 31a and 31b, construction of-establish' ment of fact left to subjective determination of authority-whether such fact justiciable.;when the legislature leaves the establishment of a fact to the subjective determination of any authority, the legislature clearly.....m.c. chagla, c.j.1. by these various petitions the petitioners challenge orders made by government under section 65 of the bombay tenancy and agricultural lands act, 1948, assuming management of their respective lands. the substantial facts in most of these petitions are identical and perhaps it would be sufficient if we deal with the facts of one petition, and if there are any differentiating facts in the other petitions draw attention to those facts. we will deal with petition no. 1184 of 1954.2. now, in that case a notice was given by the mamlatdar to the petitioner on august 18, 1953, and by that notice the petitioner was ordered to arrange to cultivate either personally or by tenant the lands belonging to him and a fortnight's time was given. the petitioner owns 100 acres and 24.....
Judgment:

M.C. Chagla, C.J.

1. By these various petitions the petitioners challenge orders made by Government under Section 65 of the Bombay Tenancy and Agricultural Lands Act, 1948, assuming management of their respective lands. The substantial facts in most of these petitions are identical and perhaps it would be sufficient if we deal with the facts of one petition, and if there are any differentiating facts in the other petitions draw attention to those facts. We will deal with petition No. 1184 of 1954.

2. Now, in that case a notice was given by the Mamlatdar to the petitioner on August 18, 1953, and by that notice the petitioner was ordered to arrange to cultivate either personally or by tenant the lands belonging to him and a fortnight's time was given. The petitioner owns 100 acres and 24 gunthas in the village Sonwada, Taluka Pardi, District Surat. As the petitioner did not comply with this notice, an order was passed on June 10, 1954, and this order contains a recital that inasmuch as the lands of the petitioner in village Sonwada had been kept fallow for more than two consecutive years, and whereas notice was duly served upon him on August 18, 1953, and whereas he had failed to get the aforesaid lands cultivated personally or through tenants during the current cultivation season, the Prant officer in exercise of the powers delegated to him by Government Notification dated October 31, 1949, in pursuance of Section 65 of the Tenancy Act, declared that the management of the land described below was assumed by Government, and the Mamlatdar was appointed the manager of the land, and the area of the land which is the subject matter of this declaration is about 10 acres. It is this order which is being challenged by the petitioner.

3. The order has been made under Section 65 of the Tenancy Act, and we must turn to the provisions of that section in order to decide whether the order has been validly made by Government. Sub-section (1) of that section provides:

If it appears to the State Government that for any two consecutive years any land has remained uncultivated through default of either the landlord or tenant or any other cause whatsoever, the State Government may, after making such inquiry as it thinks fit, declare that the management of such land shall be assumed. The declaration so made shall be conclusive.

Now, in order that the State Government may validly make a declaration under this section, two conditions have to be satisfied. The first condition is that it should appear to the State Government that any land has remained uncultivated for any two consecutive years, and the second condition is that an inquiry must be held, but the inquiry must be such as the State Government thinks fit. With regard to the first condition it will become immediately apparent that it is left to the subjective, satisfaction of the State Government as to whether the land in question has remained uncultivated for a period of two consecutive years. Mr. Banaji has put forward a rather curious argument that although it is clear that it is left to the subjective determination of Government, still it must be objectively ascertained as a fact that the land ad remained uncultivated for a period of two consecutive years. Now, when the Legislature eaves the establishment of a fact to the subjective determination of any authority, the Legislature clearly intends that the decision of that authority with regard to the establishment of that fact is final. There must be a mental satisfaction of the authority in uestion that a particular fact is established. That fact is not a justiciable fact ; it is not a fact which has got to be objectively established in a Court of law. If the authority comes to Court and states that it has applied its mind to the particular question and it is satisfied that the fact has been established, the condition is clearly complied with. It is true that the subjective satisfaction must be a genuine subjective satisfaction. It must not be a colourable satisfaction, it must not be a satisfaction influenced by any external considerations, it must not be a satisfaction which is arbitrary or capricious; but if the satisfaction is a bona fide satisfaction, then the Court has no jurisdiction to question the decision and to investigate as to the correctness of the decision arrived at by the authority. As we shall presently point out, although attempts have been made to challenge the bona fides of the State Government in various petitions, apart from a bald assertion no particulars whatever are given to make out a proper legal case of mala fides on the part of Government. Therefore, it would be perhaps possible to dispose of all these petitions on the narrow ground that it has appeared to the State Government that the lands in question have remained uncultivated for a period of two consecutive years, and as that condition has been satisfied, no further is investigation permissible under the provisions of, that sub-section. But as well considered and able arguments have been advanced before us as to whether in fact the lands in question have remained uncultivated for a period of two consecutive years, we think it roper to refer to these arguments and to decide whether in coming to the conclusion the Government have acted properly or not.

4. Now, the first question that we have to consider is : What did the Legislature actually intend when it used the expression 'any land has remained uncultivated,' and for that purpose we must turn to Section 2 which is the definition section. In that section 'to cultivate' has been defined as 'to carry on any agricultural operation, 'and' agriculture' has been defined as including Horticulture, the raising of crops grass or garden produce, dairy farming, poultry farming, stock breeding and grazing, but does not include cutting of wood only. Briefly, the contention of the State of Bombay is that the lands which have been the subject matter of the declaration are grass lands in which grass grows, but grass grows spontaneously, grass is a natural crop and no human agency or human Industry or effort is required for the purpose of growing grass. On the other hand, the contention of the petitioners is that the grass that they grow requires the sowing of seeds, it requires the process of weeding, and at least in one case it has been suggested that there is actually a well out of which water has to be supplied in order to enable the grass to grow. Now, these are divergent versions of what actually is being done on the lands of the petitioners. As we have pointed out, it is for the Government to be satisfied as to what is actually being done on these lands. It is for the Government to decide whether the land is uncultivated as provided by the statute. Realising this difficulty the petitioners have argued these petitions on the basis that the version given by the Government as to what is being done on these lands is the correct version, and even so it is urged by the petitioners that the result of the growing of this grass on the lands is agriculture and the petitioners are cultivating their lands within the meaning of that definition in Section 2.

5. The question therefore which presents itself to us is whether it could be said of a person on whose land grass grows naturally and spontaneously without any effort on his part or without any activity on his part, that he is raising grass and he is carrying on an agricultural operation. The only agricultural operation we are concerned with in this case is the raising of grass, and the case of the Government is, which we must accept for the purpose of these petitions, that all that the petitioners do is to cut the grass and use it as fodder for their cattle, and it is urged on behalf of the State that merely cutting of grass can in no view of the case amount to the raising of grass as required by the Act. It will be noticed that the definition of 'agriculture' is an inclusive definition; it is not an exhaustive definition ; and by an inclusive definition it is always open to a Legislature to extend the natural meaning of a word or expression. It may give an artificial meaning to an expression and include in the connotation of that expression a connotation which it does not naturally bear, and it will be open to the petitioners to suggest that inasmuch as the definition of 'agriculture' is not exhaustive, if they satisfy us that 'agriculture' in its plain natural meaning would include the process witch Government admit the petitioners carried out on their lands, then undoubtedly there would be a strong case made out by the petitioners for our holding that the mere cutting of grass is 'agriculture' although the grass is grown naturally and spontaneously.

6. Now, in our opinion, before we go to the natural and plain meaning of 'agriculture,' first turning to the meaning given to the word 'agriculture' by the Legislature itself, the raising of grass cannot possibly mean the mere cutting of it when the petitioners have taken no part in the actual growing of the grass. Raising would mean promoting or causing the growth of, and therefore unless the petitioners in some way promote or cause the growth of grass, they would not be raising grass. In order to promote or cause the growth of grass some operation must be done to the land itself. Either it may be sowing seeds or it may be watering or it may be weeding or whatever other operation there may be. A rather ingenious argument was advanced by Mr. Jahagirdar that it is admitted by Government that the lands of the petitioners are fenced and watchmen are kept to see that grass when it is cut and stacked on the land is not damaged by cattle or other animals straying into the land, and Mr. Jahagirdar says that in doing that they are promoting or causing the growth of the grass. In our opinion, in fencing the land and in keeping watchmen to 'protect the grass, all that the petitioners are doing is to prevent the destruction or deterioration of the grass ; but that is something very different from the raising of grass. As we pointed out, raising must refer to the growth of the grass itself, not to an operation that takes place after the grass is grown. Mr. Jahagirdar says that if there was no fence the grass may not grow at all or may not grow to its natural height and it may be damaged. But that again is an act to prevent something being done to the grass, whereas raising suggests some active operation on the part of a land owner in relation to the grass which he wants to be grown upon his land. It was then urged that the Act does not draw any distinction beween an artificial and a natural crop and it was said that if grass grew on the land and whether the grass was natural or grown by human agency, it would make no difference to the question as to whether an agricultural operation was carried out on that land. It must be borne in mind that the emphasis that the Act places is not upon what is grown on the land, but the emphasis is placed upon what operation is carried on on the land, because what 'cultivate' emphasises is carrying on of an agricultural operation. There fore, even though grass may grow on the land, unless an agricultural operation is carried out by the owner in relation to the growing of that grass, the definition of 'to cultivate' would not be satisfied.

7. It is pointed out by Mr. Joshi that the revenue records maintained under the Land Revenue Code show these lands as grass land and also show that the crop grown on these lands is grass. Now, these records are maintained for the purpose of the Land Revenue Code and we are concerned with the object of the Legislature in enacting the Tenancy Act, and it is difficult to understand how the argument of the petitioners is advanced by referring to the fact that in the revenue records the lands of the petitioners are shown as grass lands. What is urged is that if these lands are shown as grass lands and if the grass is shown as actually growing on these lands, it could not be said that these lands are uncultivated or have remained uncultivated for a period of two consecutive years. Now, the expression 'remained uncultivated' must not be looked at in the ordinary sense. It is true that these lands have not remained fallow; it is true that some crop has grown on this land ; but even so, unless the owner of the land has done something to raise the crop or the grass, could not be said of Him that he is cultivating the land, and] therefore a distinction must be drawn between the land itself and the crop grown/ upon it and the activity of the owner of that land in relation to that land and in relation to that crop.

8. Mr. Jahagirdar has further urged that the key words to Section 65 are supplied by the proviso to that section, and the proviso is that the manager shall have power to give such land on lease at rent equal to the amount of its assessment, and Mr. Jahagirdar says that this clearly suggests that the lands, the management of which can be assumed, are lands which are not being cultivated and which yield no profit. The tenant merely pays the assessment which the landlord would have had to pay and no question of any profit made by the landlord being lost to him could arise. It is pointed out that these very lands grow grass, profit is made, and if land was to be let out to the tenants only on the terms that the tenant should pay the assessment, the landlord would clearly suffer by being deprived of the profit which, he would otherwise have made. In our opinion, all that the proviso does is to safeguard the revenue of Government. The proviso does not prevent the manager from giving land on lease at a rent higher than the amount of the assessment, but the proviso lays down the minimum rent at which land should be leased out, because as far as Government is concerned it is only interested in seeing that its own revenue is recovered, and in our opinion it would be rather stretching the ordinary canon of construction to read into this proviso the suggestion that only such lands should be assumed where no profit can possibly be made by anything being grown on them.

9. Our attention has then been drawn to the history of the legislation with regard to the definition of the expression 'agriculture' and it is pointed out that in the first Tenancy Act which was Act XXIX of 1939 'agriculture' was defined as 'horticulture, the raising of crops or garden produce, dairy farming, poultry farming, stock breeding and grazing, but does not include cutting of grass or, wood Only.' In that Act the expression 'to cultivate' was not denned. This Act was amended by Act XXVI of 1946 and the words 'grass or' in the definition of 'agriculture' were deleted. Therefore from the definition of 'agriculture' the cutting of wood was excluded but not the cutting of grass. That Act for the first time introduced the definition 'to cultivate' which was the same as in the present Act, viz. 'to carry on any agricultural operation,' and when we come to the present Act the definition is altered by including the 'the raising of grass' which was not there in the Act of 1989 and the exclusion of cutting of wood has been maintained. Now, what is argued is that when the exclusion of cutting of grass was deleted by the Act of 1946, the Legislature intended that the cutting of grass should be part of the definition of 'agriculture' but not the cutting of wood, and it is pointed out by Mr. Limaye that in the present Act the very fact that only the cutting of grass has not been excluded, In our opinion, it is never safe to attribute to the Legislature whenever it amends any legislation that ever amendment necessarily conveys an alteration of the law. Very often amendments are made for the purpose of better drafting. It is clear that as the definition of 'agriculture' in the Act of 1939 did not even include the raising of grass, it was unnecessary to provide for the cutting of grass. It is only if the raising of grass was mentioned that perhaps for greater caution the Legislature might have made it clear that raising of crop did not include the cutting of grass, and therefore the deletion of the expression 'cutting of grass' may easily be explained on the ground of better drafting. When we come to the present Act, the Legislature in relation to grass expressly provided that only the raising of grass is an agricultural operation. If the intention was to make the cutting of grass also an agricultural operation, there was nothing to prevent the Legislature from providing that agriculture included the raising and cutting of grass. The Legislature was familiar with the well known activity in the State where grass is cut and stacked and used as fodder for cattle. The cutting of wood had to be referred to in the definition because no reference is made to wood in the main body of the definition of 'agriculture'. But unless an irresistible inference can be drawn by past legislative history, our duty must be to construe the Act which applies to the parties and which calls for a construction at our hands, and if the language of that Act is clear, then it is not permissible to hark back to past history in order to give an interpretation which the words cannot bear. Therefore, in our opinion, it is clear that as far as the expression 'raising of grass' is' concerned, it cannot possibly include the cutting of grass or any activity for the protection of grass either while it is growing or after it is cut, and to the extent that we are concerned with this inclusive definition the activity of the petitioners which the Government admits does not fall within the ambit of the definition.

10. But it is urged that even though the cutting of grass may not fall within the ambit of the definition given in Section 2, we must look at the plain natural meaning of the expression 'agriculture', and if the petitioners' activities can be considered as an agricultural operation, inasmuch as the definition is not exhaustive, we must hold it to be covered by the Act Now in order that the petitioners can succeed in that contention, they must satisfy us that the ordinary connotation of 'agriculture' includes the cutting of grass. The extended meaning given by the Legislature to agriculture does not, it is true, preclude the natural definition being applicable to the provisions of the Act. If the intention of the Legislature was to make the definition given in the Act the only definition, it could have made that definition exhaustive, but the Legislature has not chosen to do so. The question therefore is, can it be said on considering what 'agriculture' means in its plain ordinary connotation that the cutting of grass or the putting up of fences or keeping watchmen to protect the grass is part of 'agriculture'? Now, in its plain etymological sense, the expression 'agriculture' emphasises the cultivation of land. Any operation which has something to do with the land, any operation which helps the land to yield its fruits or its crops, any operation which improves the natural produce of the land, may come within the expression 'agriculture', but any activity which is unconnected with the land, which is unconnected with the cultivation of the land, cannot in our opinion come within its natural meaning. It is difficult to understand how it can possibly be said that when you cut grass which nature in its bounty has permitted to grow on the land, or when you put up fences to protect that grass, you are cultivating the land or that you are carrying out any activity which has any reference whatsoever to the land or to the crop.

11. In our opinion, therefore, the activities of the petitioners which are admitted by the Government are not agricultural operations either within the extended meaning of 'agriculture' given in the Act or within its natural meaning, and therefore the Government, on the facts as ascertained by them, were justified in forming the opinion that the lands of the petitioners had remained uncultivated.

12. Some point was sought to be made by the language used in the declaration that the land had been kept fallow, and it was said that there is a different between land remaining uncultivated and land having been kept fallow. In our opinion, as far as this declaration is concerned, no distinction can be drawn between these two expressions. It may be that a land which is fallow may mean a land which was cultivated in the past and which has not been cultivated at the relevant time whereas uncultivated land may mean a land which has never been cultivated and which is incapable of being cultivated. But for the purposes of Section 65 all that i: necessary is that the land should have remained uncultivated for two consecutive years. It is immaterial whether prior to that period it was cultivated or not, and therefore the expression 'fallow' in the order has been merely used for the purpose of pointing out that in the two consecutive years the owner of the land has not carried out any agricultural operation on that land.

13. The next point urged is that an inquiry is a condition precedent to the making of the order, and Mr. Jahagirdar's contention has been that there has been no inquiry as required by the section. We have already pointed out that Section 65 does not lay down what the nature of the' inquiry should be. It is left entirely to Government to decide the nature and extent of inquiry. It is pointed out in Mr. Jahagirdar's application, which is No. 1206 of 1954, that there is an affidavit by the District Deputy Collector and he states in his affidavit that he had caused inquiries to be made and he was fully satisfied in the matter before the said declaration was made. It may be pointed out that a power of delegation has been given to Government under Section 83 and Government by a notification has delegated its powers under the Act to Assistant and Deputy Collectors, and in this case pursuant to the power of delegation the order was made by the Deputy Collector. Mr. Jahagirdar is right that the jnquiry contemplated by Section 65 has to be made either by the State Government or by the officer upon whom the power is delegated under Section 83, and Mr. Jahagirdar's grievance is that this affidavit clearly shows that the Deputy Collector never made any inquiry himself but he asked someone else to make the inquiry, and Mr. Jahagirdar says that a delegate cannot delegate his own authority. Now, when the Deputy Collector says in his affidavit that he caused inquiries to be made, he does not mean that he did not make the inquiry himself. The plural 'inquiries' used in the affidavit clearly shows that pursuant to the duty to be discharged by him of holding the inquiry he sought information from various people. Section 65 does not require, as Mr. Jahagirdar suggests, that the Deputy Collector must go on the site and make the inquiries himself. Inasmuch as the nature of the inquiry is not indicated in Section 65, it is for him to gather such information as he likes and from such sources as he likes, and if instead of getting the information directly himself by going to the site he made inquiries from various people, it could not be said that the provisions of Section 65 are not satisfied. It was open to the Legislature to have prescribed a judicial or a quasi-judicial inquiry or to have laid down certain procedure as to how the inquiry should be held. But inasmuch as the Legislature has left it entirely to the discretion of the State or the delegated authority to hold such inquiry as it thinks proper, if an inquiry is held, the Court cannot then consider as to whether the inquiry was a proper one or whether a better inquiry would not have yielded better results.

14. It is then pointed out by Mr. Jahagirdar in support of his contention that the inquiry was not proper and that the Deputy Collector did not apply his mind properly, that after the order was made a panchnama was held and the panchnama revealed that 8 acres and 20 gunthas out of the 10 acres and 13 gunthas belonging to this petitioner and which were the subject matter of the order in his case were ploughed by a tractor and on this panchnama being made the original order with regard to the 10 acres and 13 gunthas was amended by excluding 3 acres and 20 gunthas. Now, if anything, this goes to show that as soon as the Government were satisfied that part of the petitioner's land was actually under the plough, they realised that there was no justification for assuming management of the whole land and excluded part of it. It may be that the original information given to the Deputy Collector was incorrect and when that mistake was discovered the necessary amendment was made. But this neither shows that no inquiry was held or that the authority concerned did not necessarily apply its mind. It is not always that all facts are known to a person or authority that holds an inquiry or that all facts are correctly established before him.

15. One further contention has been urged by Mr. Oza on behalf of one of the petitioners that the notices issued prior to the making of the order under Section 65 have been, issued by the Mamlatdar, and as the delegated authority is the Deputy Collector and not the Mamlatdar, the Mamlatdar had no authority under the Act to issue the notices. In advancing this argument what is overlooked is that no notice is required to be given under the Act. It is not a statutory notice. Government has the power under Section 65 to assume management of lands without notice but it was in order to give an opportunity to the persons against whom it was proposed that an Order should be made under Section 65 to bring their lands under plough that such notices were given, and as it is not an exercise of the power under the Act, there is no reason why the notices could not have been given by the Mamlatdar.

16. We have already indicated earlier that the plea of mala fides in all these petitions is not a proper plea at all. Mr. Banaji in his petition drew our attention to the fact that he has alleged that the socialists threatened a Satyagraha if the management of grass lands was not assumed by Government, and in order to placate the socialists the Mamlatdar gave the notice. Now, in order to sustain a plea of mala fides what must be alleged is that the authority issuing the order is guilty of mala fides. The charge made in this petition is against the Congress Party, but there is no reason to assume, and we should be very sorry to assume that any officer of Government is in any way associated with the Congress Party. It is one thing to say that the Congress Party wanted to placate the socialists and therefore these lands were brought within the ambit of Section 65 ; it is entirely another thing to say that the Deputy Collector was an instrument of the Congress Party and was merely carrying out the behest of the Congress Party in order to satisfy that party. There is not even a suggestion that the Deputy Collector was in any way a creature of the Congress Party, The allegations with regard to mala fides in the other petitions are even vaguer and more unsatisfactory and in our opinion they not only do not establish but do not even contain a plea that the authority issuing the order under Section 65 was actuated by mala fides.

17. There is only one point which remains to be considered and that is the constitutionality of Section 65. Mr. Limaye has urged that the Tenancy Act, although it falls under Article 31B of the Constitution, inasmuch as it is one of the Acts specified in the Ninth Schedule, it cannot be saved by that article unless it satisfies also the provisions of Article 31A. Now, the scheme of these two articles has often been considered by this Court. Article 31A refers to laws which may be passed in future and therefore these laws require the assent of the President and in. the case of these laws they must refer to the extinguishment or modification of any rights in land. Article 31B deals with laws which have already been passed and which are included in the Ninth Schedule, and it provides that once an Act is found in the Ninth Schedule, it is not open to anyone to contend that any provisions of that Act are void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III which deals with fundamental rights, and it goes further to say that these Acts would continue in force notwithstanding any judgment, decree or order of any Court or tribunal unless a competent Legislature repeals or amends any of these laws. Now, what is relied upon is the opening words of Article 31B and those words are : 'Without prejudice to the generality of the provisions contained in Article 31A'. Mr. Limaye's argument is that inasmuch as the provision of the Act that we are considering does not deal with extinguishment or modification of any right in land, it is open to him to challenge its constitutionality on the ground that fundamental rights have been violated although the Act may be included in the Ninth Schedule. In other words, his contention is that not only must we be satisfied that an Act is included in the Ninth Schedule, but we must also be satisfied that it complies with the provisions of Article 31A. In our opinion that contention is entirely untenable. The expression 'without prejudice to the generality of the provisions contained in Article 31A' makes it clear that the specific particular provision contained in Article 31B does not in any way affect the provisions of Article 31A. In other words, Article 31B must not be read as limiting Article 31A, but to the extent that Article 31B deals with the specific case of an Act being included in the Ninth Schedule we have only to look at Article 31B in order to decide whether the Act can be challenged or not. We cannot import into Article 31B the provisions of Article 31A. The only condition which Article 31B lays down in order to save an Act from the challenge under Part III is that it should be included in the Ninth Schedule. Once it is included, no further argument is open to a petitioner, nor is it open to him to suggest that the Act is void because it infringes any of his fundamental rights.

18. Therefore, in our opinion, the various orders passed in these petitions by the Government under Section 65 are valid orders inasmuch as the State has complied with the two conditions requisite in order to issue the orders, viz. that it is clear on the record that the Government have been satisfied that the lands of the various petitioners have remained uncultivated for a continuous period of two years, and in all these cases the Government have also held an inquiry before coming to this decision.

19. An application has been made by all the petitioners that they want to lead evidence to satisfy us that the operation carried on by them on the lands is not merely the cutting of grass and the protection of the grass as alleged by the Government, but they actually sow seeds and carry out other agricultural operations. Now, ordinarily, we have laid down as a matter of practice that when there is a disputed question of fact we would not decide it on a petition for a writ, but we would refer the party to a civil litigation. Mr. Banaji rightly points out that that practice cannot be made applicable in this case because the petitioners are debarred from going to a civil Court under Section 65, and therefore Mr. Banaji says that some Court at least must decide this disputed fact and that Court can only be this Court exercising its jurisdiction under Article 226, or 227. If it was open to the petitioner to establish a fact contrary to the allegation of Government, we would undoubtedly have considered whether this was not a case where our ordinary practice should not be departed from. But as we have pointed out, Section 65 leaves it to the State Government to decide whether the land has remained uncultivated for the period of two consecutive years. We fail to understand what object can be served by our permitting the petitioners to lead evidence to establish facts contrary to the allegations of Government. Assuming those facts are established and assuming we are satisfied that the Government were wrong in the view that they took and the petitioners are right in what they allege, it is not for us to be satisfied as to the facts, it is not for us to sit in appeal over the decision of Government, and however erroneous the view taken by the Government might be, if that view has been arrived at bona fide, that is the only view that is relevant for the purpose of Section 65. Therefore, inasmuch as our granting the application for leading evidence would be of no value whatsoever and the evidence led would have no relevancy for the purpose of Section 65, we have refused the application of the petitioners.

20. There is one point which may be mentioned before we dispose of these petitions, Most of the petitioners have told us that if the view of Government is that in order to raise crops they must carry on some agricultural operation in the sense of causing the grass to grow or promoting its growth, they are quite prepared to give an undertaking to do so, and one petitioner for whom Mr. Trivedi appears, (Sp. C.A. No. 1855 of 1954) is even prepared to undertake that he would grow such crops as Government may suggest provided those crops could be grown on his lands. Now, we are not prepared to interfere with the policy of Government with regard to carrying out the provisions of the Tenancy Act, but if the petitioners are prepared to grow such crops on their lands as Government think proper in the interest of the State, we are sure Government will not insist upon assuming the management of these lands and will restore the management to the petitioners. We are sure that Government will also hear the point of view of the petitioners, and if the petitioners satisfy them that in the interest of the State what should be grown on these lands is grass and not any other crop, they will also reconsider their decision to assume the management of the lands. We see the force of the petitioners' contention that grass which is required for fodder for cattle may be as important for the State as the growing of crops. Cattle is an important part of national wealth and it is necessary to have sufficient fodder in order properly to rear and maintain cattle. But ultimately it is for Government to decide whether under particular circumstances it is more important to grow food or to grow fodder and this is more a question where by mutual accommodation a reasonable settlement may be arrived at. But the Advocate General has assured us that he will request Government to hear the point of view of the petitioners and try to see whether they cannot bring about a situation by which the petitioners will be satisfied.

21. In petition No. 1454 Mr. Chikarmane appears for the petitioner. We propose to dismiss that petition on the ground that there is a gross delay in presenting the petition. In that case the notice was issued by the Mamlatdar on December 1, 1952, the order was made on January 11, 1953 and the petition was preferred to this Court on July 14, 1954. What is worse is that soon after the order was issued the lands were taken possession of by the Government and they are being managed by Government. Notwithstanding that the petitioner did not come to this Court for nearly 18 months. In our opinion the delay is gross and the petition must be dismissed on that ground alone.

22. Therefore all the petitions fail and are dismissed.

23. With regard to costs, Mr. Banaji points out various resolutions passed by Government laying down their policy under the Act. Attention is first drawn to aresolution dated October 31 1949, where Government laid down the, following policy:

The management should be assumed only of those lands which arc cultivable but have remained uncultivated for any two consecutive years. A good test of such land would be the fact that it was cultivated in the recent past.

Then there was a resolution dated 6, 1953, and that resolution was to the effect:

Lands on which grass is grown without active effort and cultivation on the part of the owner, landlord or tenant, as the case may be, to raise it, istreated as 'uncultivated' and can be resumed under Section 65.

This left no doubt as to the attitude of Government which they have now supported in answer to this petition. But a memorandum was issued by Government on December 7, 1953. This memorandum was from the Assistant Secretary to the Government of Bombay and this memorandum was to the effect that

Government-considers that grass land which were never under any food crops since 18th August 1953 should not be taken under such management.

Mr. Banaji says that if this policy was carried out, his lands and the lands of all the petitioners would have been saved. Now, the Advocate General has drawn attention to the fact that on March 16. 1954. Government_passed a resolution recently cancelling the memorandum of December 7, 1953, and therefore the original policy of Government as laid down in the Government resolution of June 6, 1953, was restored. Strictly speaking we are not concerned with these resolutions, nor are we concerned with the policy of Government. These are merely administrative directions which have no force of law. Mr. Banaji further points out that when his client received a notice he Wrote to Government on August 28, 1953, and asked Government to inform him that if in any of the lands instead of growing grass any other crops could be economically grown, he would arrange to raise the. crops as directed by Government, and according to Mr. Banaji without giving any answer to this letter ultimately the order was issued on June 10, 1954. As a matter of fact, Mr. Banaji says that they were under the impression that the memorandum of December 7, 1953, still held the ground and they had no knowledge of its cancellation. The Advocate General fairly concedes that before Government issued I what is tantamount to an expropriatory order they should have given the petitioners an opportunity of complying with the notice and bringing their land under I plough. But in our opinion these facts by themselves are not sufficient to make us take the view that Government should be totally deprived of the costs of these petitions. These petitions have taken some time of this Court, the order of Government has been vigorously and vehemently challenged, and the petitioners have lost on all points urged by them. Under the circumstances we think that the fairest order to be made in all these petitions except No. 1454 would be that the petitioners should pay half the cost of Government. In the case of petition No. 1454, as we have dismissed that petition on the ground that there was gross delay in presenting the petition, that petition will be dismissed with costs.


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